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Presentation on theme: "TRAINING FOR THE WEIGHTS AND MEASURES OFFICIAL"— Presentation transcript:


COURSE CURRICULUM MODULE 1 Introduction MODULE 2 Laws & Regulations MODULE 3 Enforcement Procedures MODULE 4 Legal Action MODULE 5 Legal Metrology MODULE 6 Field Standards & Test Equipment MODULE 7 Basic Weighing / Measuring Principles

COURSE CURRICULUM MODULE 8 Device Type Evaluation MODULE 9 Weighing Devices MODULE 10 Measuring Devices MODULE 11 Weighmaster Enforcement MODULE 12 Petroleum Products MODULE 13 Quantity Control MODULE 14 Service Agencies and Agents

Module Four “LEGAL ACTION” Fourth in a series of 14

5 Module Objectives Familiarize you with the basic legal procedures and concepts that direct weights and measures enforcement processes Explain what evidence is, why it is important, and how to handle and preserve it Explain what is contained in an understandable and effective case report Explain how to properly prepare and present your case to the Prosecutor

6 Weights & Measures Officials - Authority and Responsibilities
A Weights and Measures Official: Is a public officer, not a peace officer Has the authority to arrest Verifies the accuracy of: - Weighing and measuring equipment - Quantity statements on packaged and bulk commodities - Advertising, labeling, and quality of petroleum and automotive products

7 Weights & Measures Officials – Authority and Responsibilities
Must have a working knowledge of: Investigations Report Writing The Constitution The California Legal System

8 Constitutional Issues
Innocent until proven guilty United States Constitutional Amendments 5th Amendment No person shall be held to answer for a capital crime… unless on a presentment or indictment of a Grand Jury, …, nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;… 14th Amendment Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The right against self-incrimination The right to: - A trial - Questioning of witnesses - Access to evidence - Legal representation - Free from unreasonable searches and seizures - Due process

9 Due Process Due process of law is the right of every person and is guaranteed by the U.S. Constitution U.S. Constitution, Amendment V (1791) No person shall….be deprived of life liberty or property, without due process of law. U.S. Constitution, Amendment XIV (1868) Nor shall any State deprive any person of life liberty or property, without due process of law.

10 Due Process - Court Decisions
Rath 1978, Supreme Court: California’s off sale procedures met the test for due process, but only for products that are not highly perishable For highly perishable products the Supreme Court held that the packer must be: Notified in writing of the short measure finding Provided with a copy of the inspection report Given an opportunity to dispute the charge prior to any off-sale action

11 Due Process - Court Decisions
Menafee and Son vs. The California Dept. of Food and Agriculture The California Appellate Court held: Minimum due process requires a notice and an opportunity for a hearing Must precede even a temporary deprivation of property interest

12 Due Process – The Field Official
Due Process – Exceptions In 1975, the California Appellate Court stated in the Travers case: "The automobile is a recognized necessity in our society and the function of its engine, transmission, and brakes is a matter of vital importance to the motorist. It is in the interest of public safety to prevent the malfunction and break down of motor vehicles traveling on our crowded streets and highways." Action against products that are nonconforming is considered an emergency (health and safety) situation, hearings in this area can be postponed until such time as the "emergency" is corrected.

13 Due Process – Our Obligations
Notification of action against the violator and inform them of their options Provide an opportunity to be heard Ensure the right to review procedures and to question the authority Ensure fundamental fairness and reasonableness of enforcement action All persons subject to the laws you enforce, are entitled to the due process of law Your actions may result in the deprivation of their personal property

14 Search and Seizure You will encounter search and seizure issues in your work - Can you or do you: Search that desk or file drawer? Search that back room? Search inside that scale house? Seize visible evidence when you get inside? Use binoculars? Need to get a search warrant?

15 Governed by rules derived from the 4th Amendment
Search and Seizure Governed by rules derived from the 4th Amendment Two different acts A search is an exploration to find things A seizure is taking custody or control of something A search can be made without a seizure A seizure can be made without a search The 4th Amendment doesn’t prohibit all searches, just “unreasonable” searches

16 Search and Seizure The 4th Amendment right relating to ‘unreasonable’ searches and seizures cannot be diminished by any law. It applies to: All people, including illegal aliens and corporations Any place there is a reasonable expectation of privacy A search is considered ‘unreasonable’ if it is done without a search warrant There is no specified penalty in the Amendment for unreasonable searches The courts have decided the remedy/penalty is the exclusion of the evidence at trial

17 Fruit of the Poison Tree
Search and Seizure Exclusionary Rule “The exclusionary rule requires that any evidence obtained by police using methods that violate a person’s constitutional rights be excluded from being used in a criminal prosecution against that person. The exclusionary rule was first developed in 1914 and the case of Weeks v. United States…” Fruit of the Poison Tree “The exclusionary rule extends to any evidence which was directly or indirectly obtained as a result of the initial unlawful search or seizure…”

18 Search Warrants A search warrant is a written order, signed by a judge, directed to a peace officer, commanding him/her to search a specified place for specified personal property, and, if found, to bring the items before the judge Search Warrant Generally searches without a warrant are ‘unreasonable’, but there are exceptions

19 Search Warrant -Exceptions
The following situations do not require search warrants: Eavesdropping Public Places Plain View Open Fields Optical Aids

20 International Standards
What Is Evidence Testimony, objects, writings or other things presented to a jury to prove the existence or nonexistence of a fact It enables the jury to decide whether a defendant is guilty or not guilty Its introduction is governed by the California Evidence Code that contains the Rules of Evidence

21 Rules of Evidence The main purpose is to protect the jury from seeing or hearing evidence which is irrelevant, unreliable or unfairly prejudicial The weights and measures official who understands the basic principles should have little problem with how the rules apply to his or her job Various cases have made it clear that you have no duty to gather or collect evidence which might be helpful to the defense Serious problems may result if you lose or destroy evidence once it comes into your possession. The most serious is that you will not be able to testify about the evidence at all

22 Types of Evidence There are several types of evidence and some may overlap: Direct Circumstantial Testimonial Documentary Demonstrative (Real)

23 Documentation of Evidence
Carefully document what the evidence is, where, when, and how it was obtained Use an evidence tag to help you record required information

24 Evidence – Chain of Possession
Chain of possession is a listing of what happened to the evidence between the time it was seized and when it is offered into evidence at trial Carefully document what, where, when, and how the evidence was maintained or it may not be admissible

25 The Case Report Who ? What? Where? Why? When? How?
The purpose of the case report is to answer the following questions: Who ? What? Where? Why? When? How? Reports are permanent written records that communicate important facts to be used in the ensuing investigation

26 Do not use abbreviations
The Case Report Reports record facts into a permanent record. A fact is a statement that can be proven It is factual, accurate, objective, complete, concise, clear, easy to understand, and does not contain opinions Written in the first person active tense using short sentences organized into short paragraphs. Includes pictures, charts, and graphs if applicable Do not use abbreviations

27 Field Notes Field notes are the basis for formal reports written later. Field notes should include: Descriptions Addresses and telephone numbers of suspects and witnesses Dates, times, and locations of occurrences Evidence seized The who, what, when, where, why, and how?

28 Field notes can be destroyed if:
You destroy them in good faith You incorporate them into a formal report Your report accurately reflects the contents of the field notes The defense counsel is given a copy of your report before trial by the prosecutor

29 The Case Report Your report is used by: Your supervisor
The prosecutor and defense attorney The court and judge The media Other investigators The public (Freedom of Information Act requests)

30 Your investigation is only as good as your report
The Case Report Your investigation is only as good as your report Great investigators have been made to look incompetent because they failed to write clear and accurate reports and review them before testifying It is often the most powerful weapon in the defendant’s arsenal at trial because of inaccuracies or incompleteness A bad report may lead the jury to conclude that nothing you say is true or accurate

31 Enforcement Business and Professions Code Section requires the prosecution of violators of weights and measures law Enforcement actions generally start at the lowest level and work up to higher levels

32 Civil Administrative Process v. Criminal v. Civil Action
Civil Administrative Penalty Actions Infraction and/or misdemeanor charges only, generally technical violations A preponderance of evidence burden of proof Penalties in the $50 - $1,000 range per violation as specified in regulation Relatively minor resources needed for investigation and prosecution (most cases are settled with a stipulated plea)

33 Civil Administrative Process v. Criminal v. Civil Action
Criminal Actions Beyond a reasonable doubt burden of proof Fines in the $25 - $1,000 range per violation and possible incarceration Probation, usually summary probation, with a maximum term of three years Relatively modest resources needed for investigation and prosecution Agency costs may be recovered

34 Civil Administrative Process v. Criminal v. Civil Action
Civil Actions Deceptive practices and unfair competition allegations, under Business and Professions Code Sections and 17500 Preponderance of evidence burden of proof A limited term or a permanent injunction prohibiting the unlawful practices Potential civil penalties of $2,500 - $ millions Agency costs may be recovered and restitution for injured consumers or businesses Substantial investment of resources; most cases are settled through negotiations, but litigated cases require extensive discovery and trial preparation

35 Weights and Measures Regulations
Presenting Your Case to the Prosecutor Make an appointment with the District Attorney’s Office Your personal appearance is important. Always wear a conservative coat and tie or dress as appropriate

36 Presenting Your Case to the Prosecutor
Study your report before the meeting Thoroughly discuss the case with the prosecutor Discuss not only the strengths but also the weaknesses in the case, such as discrepancies in reports Never withhold information from the prosecutor, even if it may hurt the case

37 Presenting Your Case to the Prosecutor
The District Attorney decides: Whether or not to file formal charges against a suspect Exactly which offense to charge

38 Discovery The right of both sides in a legal proceeding to have access to the evidence and witnesses involved in the proceeding Reciprocal in criminal proceedings and applies to both the prosecution and the defense Entitles the parties to receive relevant evidentiary information from the opposing counsel that helps them prepare their court case

39 On the Witness Stand APPEARANCE OATH
The jury’s impression of your personal appearance is important. Your attire should be conservative and professional OATH While taking the oath, stand at attention. The only thing the jurors have to do during this time is watch you

40 On the Witness Stand DEMEANOR
Your demeanor in court is as important as your appearance and testimony Don’t be cocky nor timid Be confident - remember that you are a professional. If you act like a professional, the jurors will perceive you as a professional

41 On the Witness Stand You can help the prosecutor best by not trying to help him/her Be professional and impartial Answer questions specifically and directly Do not elaborate unless asked to do so Never get angry or argue with the Defense Attorney

42 Ten Commandments for Witnesses
On the Witness Stand Ten Commandments for Witnesses Tell The Truth Do Not Guess Be Sure That You Understand The Question Take Your Time And Answer Only The Questions Asked Give A Loud, Audible Answer Do Not Look For Assistance When You Are On The Stand Be Careful Answering Questions Involving Distances And Times Be Courteous Admit Speaking To Investigators Or Lawyers Avoid Joking And Wise Cracks

43 In the Court Room – Court Procedure
Arraignment The purpose of the arraignment is to: Advise the defendant of the charges (complaint) filed against him Advise the defendant of his right to an attorney Determine the defendant's plea Set bond or release the defendant on his own recognizance

44 In the Court Room – Court Procedure
Plea Bargains A plea bargain is an agreement between the defendant and prosecutor in which the defendant agrees to plead guilty or nolo contendere (no contest) to: A lesser included offense Some of the charges A charge on the condition that not more than a specified sentence be imposed

45 In the Court Room – Court Procedure
Trial Jury Selection Opening statements The State’s case The Defense’s case Jury instructions Deliberation Verdict Sentencing Appeals

46 Summary Basic Legal Procedures and Concepts Evidence
Effective Case Report Presentation of Case to the Prosecutor The Witness The Court Room

47 Conclusion This training module has provided you with a better understanding of the basic Legal Procedures and the concepts involved in weights and measures enforcement work.

This Concludes Module 4 “LEGAL ACTION”


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