Transcript WELCOME [www.ncwm.net]

TRAINING FOR THE
WEIGHTS AND MEASURES OFFICIAL
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
TRAINING FOR THE
WEIGHTS AND MEASURES OFFICIAL
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
TRAINING FOR THE
WEIGHTS AND MEASURES OFFICIAL
Module Four
“LEGAL ACTION”
Fourth in a series of 14
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
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
Weights & Measures Officials –
Authority and Responsibilities
Must have a working knowledge of:
Investigations
Report Writing
The Constitution
The California Legal System
Constitutional Issues
Innocent until proven guilty
United States Constitutional
The right against self-incrimination
Amendments
5th Amendment
The right to:
- A trial
- Questioning of witnesses
- Access to evidence
- Legal representation
- Free from unreasonable searches
and seizures
- Due process
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.
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.
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
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
Due Process
– Exceptions
Due Process
– The
Field Official
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.
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
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?
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
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
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…”
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
Search Warrant -Exceptions
The following situations do not require search
warrants:
Eavesdropping
Public Places
Plain View
Optical Aids
Open Fields
What Is Evidence
International
Standards
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
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
Types of Evidence
There are several types of evidence and
some may overlap:
Direct
Circumstantial
Testimonial
Documentary
Demonstrative (Real)
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
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
The Case Report
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
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
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?
Field Notes
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
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)
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
Enforcement
Business and Professions Code Section 12015 requires the
prosecution of violators of weights and measures law
Enforcement actions generally start at the lowest level and
work up to higher levels
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)
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
Civil Administrative Process v. Criminal v.
Civil Action
Civil Actions
Deceptive practices and unfair competition allegations, under Business and
Professions Code Sections 17200 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
Presenting
Case to
the Prosecutor
Weights
andYour
Measures
Regulations
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
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
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
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
On the Witness Stand
APPEARANCE
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
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
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
On the Witness Stand
Ten Commandments for Witnesses
1.
Tell The Truth
2.
Do Not Guess
3.
Be Sure That You Understand The Question
4.
Take Your Time And Answer Only The Questions Asked
5.
Give A Loud, Audible Answer
6.
Do Not Look For Assistance When You Are On The Stand
7.
Be Careful Answering Questions Involving Distances And Times
8.
Be Courteous
9.
Admit Speaking To Investigators Or Lawyers
10. Avoid Joking And Wise Cracks
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
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
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
Summary
Basic Legal Procedures and Concepts
Evidence
Effective Case Report
Presentation of Case to the Prosecutor
The Court Room
The Witness
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.
TRAINING FOR THE
WEIGHTS AND MEASURES OFFICIAL
This Concludes Module 4
“LEGAL ACTION”