TRAINING FOR THE WEIGHTS AND MEASURES OFFICIAL

TRAINING FOR THETRAINING FOR THEWEIGHTS AND MEASURES WEIGHTS AND MEASURES

OFFICIALOFFICIAL


OFFICIALOFFICIAL

COURSE CURRICULUMCOURSE 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


OFFICIALOFFICIAL


OFFICIALOFFICIAL

COURSE CURRICULUMCOURSE 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 THETRAINING FOR THEWEIGHTS AND MEASURES OFFICIALWEIGHTS AND MEASURES OFFICIAL


Fourth in a series of 14

Module FourModule Four“LEGAL ACTION”“LEGAL ACTION”

Module FourModule Four“LEGAL ACTION”“LEGAL ACTION”

Module ObjectivesModule ObjectivesModule ObjectivesModule Objectives

Familiarize you with the basic legal procedures and Familiarize you with the basic legal procedures and concepts that direct weights and measures enforcement concepts that direct weights and measures enforcement processesprocesses

Explain what evidence is, why it is important, and how to Explain what evidence is, why it is important, and how to handle and preserve ithandle and preserve it

Explain what is contained in an understandable and Explain what is contained in an understandable and effective case reporteffective case report

Explain how to properly prepare and present your case to Explain how to properly prepare and present your case to the Prosecutorthe Prosecutor

A Weights and Measures Official: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 -Weights & Measures Officials -Authority and Responsibilities Authority and Responsibilities Weights & Measures Officials -Weights & Measures Officials -Authority and Responsibilities Authority and Responsibilities

Weights & Measures Officials – Weights & Measures Officials – Authority and Responsibilities Authority and Responsibilities Weights & Measures Officials – Weights & Measures Officials – Authority and Responsibilities Authority and Responsibilities

Must have a working knowledge of:Must have a working knowledge of:

Investigations

The California Legal System

Report Writing

The Constitution

Constitutional IssuesConstitutional IssuesConstitutional IssuesConstitutional Issues

The right against self-incrimination

The right to:The right to:

- A trial

- Questioning of witnesses

- Access to evidence

- Legal representation

- Free from unreasonable searches and seizures

- Due process

Innocent until proven guiltyUnited States Constitutional

Amendments5th 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.

United States Constitutional

Amendments5th 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.

Due ProcessDue ProcessDue ProcessDue Process

Due process of law is the right of every person Due process of law is the right of every person and is guaranteed by the U.S. Constitutionand is guaranteed by the U.S. Constitution

U.S. Constitution, Amendment V (1791)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)U.S. Constitution, Amendment XIV (1868)

Nor shall any State deprive any person of life liberty or property, without due process of law.

Rath 1978, Supreme Court: Rath 1978, Supreme Court: California’s off sale procedures met the test for due process, but only for products that are not highly perishable

Due ProcessDue Process - - Court DecisionsCourt DecisionsDue ProcessDue Process - - Court DecisionsCourt Decisions

For highly perishable products the Supreme Court held that the packer must be: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

Menafee and Son vs. The Menafee and Son vs. The California Dept. of Food and California Dept. of Food and

AgricultureAgriculture

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 - Court DecisionsDue Process - Court DecisionsDue Process - Court DecisionsDue Process - Court Decisions

Due Process – The Field Due Process – The Field OfficialOfficial

Due Process – The Field Due Process – The Field OfficialOfficial

Due Process – ExceptionsDue Process – ExceptionsDue Process – ExceptionsDue Process – Exceptions

In 1975, the California Appellate Court stated in the Travers case: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.

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

Due Process – Our ObligationsDue Process – Our ObligationsDue Process – Our ObligationsDue Process – Our Obligations

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 SeizureSearch and SeizureSearch and SeizureSearch and Seizure

You will encounter search and seizure issues in your You will encounter search and seizure issues in your work - Can you or do you: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?


Governed by rules derived from the 4Governed by rules derived from the 4thth Amendment 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


The 4The 4thth Amendment right relating to ‘unreasonable’ Amendment right relating to ‘unreasonable’ searches and seizures cannot be diminished by any law.searches and seizures cannot be diminished by any law.It applies to:It applies to:

All people, including illegal aliens and corporations

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

Any place there is a reasonable expectation of privacy


Exclusionary RuleExclusionary 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 TreeFruit 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 WarrantsSearch WarrantsSearch WarrantsSearch Warrants

Generally searches without a warrant are ‘unreasonable’, but there are exceptions

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

Search Warrant -ExceptionsSearch Warrant -ExceptionsSearch Warrant -ExceptionsSearch Warrant -Exceptions

The following situations do not require search The following situations do not require search warrants:warrants:

Plain View

Optical Aids Open Fields

Eavesdropping

Public Places

International StandardsInternational StandardsInternational StandardsInternational StandardsWhat Is EvidenceWhat Is EvidenceWhat Is EvidenceWhat Is Evidence

Testimony, objects, writings or other things presented to a jury to prove the existence or nonexistence of a fact

Its introduction is governed by the California Evidence Code that contains the Rules of Evidence

It enables the jury to decide whether a defendant is guilty or not guilty

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

Rules of EvidenceRules of EvidenceRules of EvidenceRules of Evidence

Types of EvidenceTypes of EvidenceTypes of EvidenceTypes of Evidence

There are several types of evidence and There are several types of evidence and some may overlap:some may overlap:

DirectDirectCircumstantialCircumstantial

DocumentaryDocumentaryTestimonialTestimonial

Demonstrative (Real) Demonstrative (Real)

Documentation of EvidenceDocumentation of EvidenceDocumentation of EvidenceDocumentation 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 PossessionEvidence – Chain of PossessionEvidence – Chain of PossessionEvidence – Chain of Possession

Carefully document what, where, when, and how the evidence was maintained or it may not be admissible

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

The Case ReportThe Case ReportThe Case ReportThe Case Report

The purpose of the case report is to answer the The purpose of the case report is to answer the following questions:following questions:

Who ?Who ?

What?What?

When?When?

Where?Where?

Why?Why?

How?How?

Reports are permanent written records that communicate important facts to be used in the ensuing investigation


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 NotesField NotesField NotesField Notes

DescriptionsDescriptions

Addresses and telephone numbers of suspects and Addresses and telephone numbers of suspects and witnesseswitnesses

Dates, times, and locations of occurrencesDates, times, and locations of occurrences

Evidence seizedEvidence seized

The who, what, when, where, why, and how? The who, what, when, where, why, and how?

Field notes are the basis for formal reports written later. Field notes are the basis for formal reports written later. Field notes should include:Field notes should include:

Field NotesField NotesField NotesField Notes

Field notes can be destroyed if: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


Your report is used Your report is used by: by: Your supervisorYour supervisor

The prosecutor and defense attorneyThe prosecutor and defense attorney

The court and judgeThe court and judge The mediaThe media

Other investigatorsOther investigators

The public (Freedom of Information Act requests)The public (Freedom of Information Act requests)


Your investigation is only as good as your reportYour 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

EnforcementEnforcementEnforcementEnforcement

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 Administrative Process v. Criminal v. Civil ActionCivil Action


Civil Administrative Penalty ActionsCivil 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)



Criminal ActionsCriminal 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 Actions 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

Weights and Measures Weights and Measures RegulationsRegulationsWeights and Measures Weights and Measures RegulationsRegulationsPresenting Your Case to the ProsecutorPresenting Your Case to the ProsecutorPresenting Your Case to the ProsecutorPresenting 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

Presenting Your Case to the ProsecutorPresenting Your Case to the ProsecutorPresenting Your Case to the ProsecutorPresenting 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 Presenting Your Case to the ProsecutorProsecutor

Presenting Your Case to the Presenting Your Case to the ProsecutorProsecutor

The District Attorney decides:The District Attorney decides:

Whether or not to file formal charges against a suspect

Exactly which offense to charge

DiscoveryDiscovery

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 StandOn the Witness Stand

APPEARANCE APPEARANCE

The jury’s impression of your personal appearance is important. Your attire should be conservative and professional

OATH 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 StandOn the Witness Stand On the Witness StandOn the Witness Stand

DEMEANOR 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 StandOn the Witness Stand On the Witness StandOn 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 StandOn the Witness Stand

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

Ten Commandments for WitnessesTen Commandments for Witnesses

In the Court Room – Court ProcedureIn the Court Room – Court Procedure

ArraignmentArraignment

The purpose of the arraignment is to: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


Plea BargainsPlea 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


Opening statements

The State’s case

The Defense’s case

Jury instructions

Deliberation

Verdict

Sentencing

Appeals

Jury SelectionTrialTrial

SummarySummarySummarySummary

Basic Legal Procedures and ConceptsBasic Legal Procedures and Concepts

The Court RoomThe Court Room The WitnessThe Witness

Presentation of Case to the ProsecutorPresentation of Case to the Prosecutor

EvidenceEvidence Effective Case ReportEffective Case Report

ConclusionConclusionConclusionConclusion

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 4This Concludes Module 4“LEGAL ACTION”“LEGAL ACTION”

This Concludes Module 4This Concludes Module 4“LEGAL ACTION”“LEGAL ACTION”

TRAINING FOR THE WEIGHTS AND MEASURES OFFICIAL

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