LD 1005 “An Act to Modify the Standard of Proof for Traffic Infractions”

A person recently asked me for my thoughts on LD 1005, “An Act to Modify the Standard of Proof for Traffic Infractions”.  The proposed legislation is to require the State to prove traffic infractions by “clear and convincing evidence”.  The current standard of proof is by a “preponderance of the evidence.”  In theory this is a good idea because it affords greater protection to citizens.  In practice it will not make much of any difference.

The analysis of this question requires the definition of three terms: (1) “traffic infraction”; (2) “clear and convincing evidence”; and (3) “preponderance the evidence”. Under Maine law a traffic infraction means “any violation of any provision of this Title (29-A), or of any rules established under this Title, not expressly defined as a crime and otherwise not punishable by incarceration.”See 29-A M.R.S.A. § 1-101(85) The Maine Jury Instruction Manual written by the Honorable Justice Donald G Alexander defines clear and convincing evidence that as the trier of fact “you must have an abiding conviction that it is highly probable that facts sought to be proven are the correct view of the events at issue.” The Maine Jury Instruction Manual defines preponderance of the evidence as follows: “to ‘established by preponderance of the evidence’ means to prove that something is more likely than not. In other words, a preponderance of the evidence means evidence which, after evaluating all the evidence presented to you, makes you believe what is sought to be proved is more likely true then not true.”

The clear and convincing evidence standard is a higher standard of proof than the preponderance of the evidence standard but less than beyond a reasonable doubt.  Beyond a reasonable doubt is required in criminal cases. Since the proposed legislation places a higher standard of proof on the State then why in practice will this make no difference?

You have to think about the process and how a trial works in a traffic infraction case.  A traffic infraction case is not heard by a jury but instead is heard by single judge. The judge is to weigh the evidence presented at trial and determine if the State has met its burden. The evidence at traffic infraction cases typically consists solely of witness testimony. And in most traffic infraction cases there are two types of witnesses – (1) the law enforcement officer and (2) the defendant and his loved ones or friends.  Rarely is there a “detached neutral witness”.  In assessing the credibility of witnesses the judge can look into the motivation for the witness’s testimony.   In fact, at jury trials the jury is instructed as follows: “You are the judges of whether to believe the witnesses and of how important their testimony is. Carefully examine all the testimony, the circumstances under which each witness testified, and everything in evidence which tends to show whether a witness should be believed or not. Consider each witness’s intelligence, motive, and state of mind, and how they appeared while on the stand. Consider the witness’s ability to observe the matters they testified about, and whether they appear to have an accurate recollection of these matters. Consider any interest a witness may have in the case, and the extent to which, if at all, each witness is either supported or contradicted by other evidence in the case.” Maine Jury Instruction Manual, Donald G Alexander, 4th Edition 2005. Although a traffic infraction trial is a judge or bench trial the judge as the trier of fact is doing the same analysis of a witness a jury would do in a jury trial.

A law enforcement officer is testifying as to what they observed and has nothing to gain by lying.  A law enforcement officer who loses their credibility with the court is a useless officer in my opinion.  If a court cannot believe a law enforcement officer because of the way they testified in the past then it is unlikely they will be believed in the future.  I have seen this in practice where a court will grant a motion to suppress because the court is unable to believe the officer based on past interactions with the court.  The judges in Maine are very good at remembering officers who are not truthful on the stand and holding that against them.  The same is true for most prosecutors.  I have had cases substantially plea-bargained down because of a prosecutor’s past experience with an officer who they believe lied in the past.

The other type of witness typically is the defendant or a friend/love one of the defendant. What motivation do they have for testifying in the manner in which they are testifying?  To get out of the ticket or to help their friend/loved one get out of the ticket.  So when the only testimony is between a law enforcement officer and a defendant the law enforcement officer is typically more likely to be believed.  There are exceptions to every case and that is fact dependent.  However, in the typical traffic infraction case a law enforcement officer is more likely to be believed.

The proposed higher standard will help in those rare cases where what the officer testifies about is susceptible to misinterpretation due to the officer’s inability to truly see the events, the weather conditions, the road conditions, or the like.  However, it is my experience that in close cases like those the officer typically gives a warning instead of writing a ticket.

One area where this higher standard might make a difference is in the motorcycle muffler law or loud and unreasonable noise cases.  Since in most of these cases the officer’s belief that the loud noise or muffler noise was excessive is subjective and the courts may require additional objective proof in order for the proposed standard to be met.  The higher standard will strength the defendant’s argument that the noise was not loud.  But most traffic infraction cases are speeding, no seatbelt, failure to yield the right of way, failure to stop and similar non-subjective cases.

Therefore, it is my belief that in practice the proposed standard will make little difference.  Thank you for asking the question and in considering my analysis. I look forward to receiving your feedback, if any. Again, thank you.


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