Your Time in Court

The first time you hear the Bailiff announce “the people versus you”, it sends a small chill down your spine. You’re entering a weird world which you really do not have any knowledge about, and you’re wondering to yourself why you didn’t just pay the fine and forget about the whole tribulation. Relax, breathe deeply and believe in the fact that you have more time preparing for this case than the prosecution has. His only advantage is that he knows how the procedure works. We’ll try and balance that out for you in this section.

LOOK GOOD IN COURT

If you have had the chance to visit a courtroom before the trial, observe how people are dressed, so that you may dress accordingly. Normal attire will be a suit for men, and a conservative business suit for woman. Don’t wear anything loud, flashy, or attention seeking. The judge’s first impressions of you are of paramount importance and you want it to be long lasting and favorable. Don’t let him forge a negative opinion of you before you even get started simply because of your choice of dress.

THE PLAYERS

People that you will contend with in your trial are listed below:

• Defendant - that’s you!

• The Prosecutor/ADA - the guy in charge of the opposing team.

• The Judge - the referee, the one who is the final authority on anything from the final objections, the verdicts or the fines.

• The Police Officer - the star witness for the prosecution.

• The Bailiff - think of him as the Master of Ceremonies, and he’s also Sergeant of Arms for the court.

• The Court Clerk - that is the Administrative Assistant to the Judge.

The only other person in the situation may be another police officer who was at the scene, during the time that your citation was written. If it turns out that one officer worked the radar unit and another one wrote the citation, then both of them need to be present for your case, in order for the prosecutor to make his case. If you don’t see those officers that were involved in you case, at the time your case is called for trial, you’ve got a good chance for dismissal even before you get started.

Just remember that the Judge, who is the final ruling authority, can postpone you case until the end of the day to see if the officer shows up for the trial. Be prepared to wait that amount of time.

PROCEDURES AT THE TRIAL

Below you’ll see a listing of typical events in the order that they will happen during your trial:

• The Bailiff calls the case.

• The defense, that’s you, and the Prosecution both reply with “Ready your Honor.”

• The Prosecution will give their opening statement.

• The Defense will give their opening statement.

• The Prosecution will present their case; they will have the police officers testimony.

• There will be cross examination by the Defense.

• There will be a re-direct by the Prosecution.

• Any physical evidence available will be revealed at this time.

• Any diagrams, citations, that sort of thing, then the Prosecution will rest.

• If you have the grounds, you will make your motion to dismiss, on non-applicable grounds at this point in time.

• The defense case will include your witness, either you or your passengers.

• Cross Examination by the prosecution.

• Re-direct by the defense, and you as the defense, will rest.

Next will follow the rebuttal of the witness by the prosecution. The closing arguments of the prosecution, by the defense, and then the Prosecution gets another chance to comment and respond to the defense closing. The verdict will be issued shortly thereafter, and then you will get sentenced if guilty.

THE CASE FOR THE PROSECUTION

The job of the prosecution is to prove beyond a reasonable doubt, through the use of testimony and evidence, that all the vehicle code sections that you’re accused of violating, had in fact been violated. Typically, the Prosecutor will attempt to prove that the ticketing officer made a visual estimate of your speed and then verified that speed with his laser detector, or by following you with his vehicle. Make a note of the fact that the Prosecution has a case law which supports their side of the story and that would be the State of Kentucky versus Honeycutt which ruled that an officer does not need to be an expert in radar operation, he only has to be competent in the use of radar.

The purpose of your objections during the trial procedure and the prosecutions presentation do have two purposes. First of all, you want to break up the pace that the Prosecutor and the arresting officer or the ticketing officer are accustomed to. Primarily you can do that through objections. Anything that appears to be subject should be objected to. Take a look at what follows, for some of the typical objections that are available to you. Even if you are overruled, the police and the Prosecution have to break up their rhythm in order to wait for the Judge to make a ruling.

While the Prosecution is presenting their case you should be making notes as to what was said. Make comments concerning your upcoming cross examination so that you are prepared before you get up to speak. Keep a record of the various points of the vehicle code in question. As the Prosecution proves that point of your case, check it off. This will be able to give you a record as to whether or not he has covered all of the points in the case law. If all of the code issues are not checked off and you know that they have not been covered by the Prosecuting attorney, you have reason to make a motion for dismissal. Keep in mind that the Prosecutor must prove all the points in the code beyond a reasonable doubt.

Now follows some of the typical objections that are used in a traffic ticket trial.

TYPICAL OBJECTIONS

The purpose of the objections is to keep the evidence limited to specific testimony which is specifically relevant and admissible to the case. The only one who has authority over this is the Judge. He can say nothing about evidence that is produced in the case unless it is objected to. There is a balance between how many times you can object and not be reprimanded by the Judge and also how few times you can successfully defend your case without being run over by the Prosecuting attorney.

Here are some of the objections that you may come across in a typical trial.

OBJECTION, INDEPENDENT RECOLLECTION

When the officer begins his testimony, it is more than likely that he is going to read from the copy of his citation. You should immediately object to this since the officer is required to testify from independent recollection. You should also ask to see what the officer is referring to even though you have received a copy of the citation through subpoena. It is likely the Judge will allow the officer to use his notes to refresh his memory, if the officer indicates to the court that he requires the notes to testify properly. This starts everything for dismissal because the sixth amendment to the Constitution guarantees you the right to be confronted with the witnesses against you. In this case, the officer and his testimony, not the citation, are the witnesses against you. If the officer cannot recollect the circumstances of your ticket, he may be considered to be incompetent to testify. You need to prove that the officer is unable to testify without his notes to make him an incompetent witness. If the back of the citation and the officer’s notes signifies SB 124, then all he can testify to is SB 124, not Southbound on highway 124. As you’ll soon see the notes on the back on the officers citation can hurt the officers’ testimony and help you significantly.

OBJECTION, FOUNDATION

A situation arises when any witness testifies to something that has not been previously established as evidence. For example, the officer states that the speedometer on his police vehicle read 70 miles per hour. This is inadmissible in court unless the calibration for the speedometer had been entered prior to that point in time.

OBJECTION, SPECULATION

This type of objection occurs when a question is asked of a witness and they produce evidence that they could not possibly know. For example, they introduce the fact that you could clearly see a street sign or a speed limit sign and there’s no way that they could know that. Only you may have been aware of that fact.

OBJECTION, CONCLUSION

In this case the Prosecution would ask the officer to make a conclusion based on an insufficient amount of facts. For example, the officer may say that you saw a stop sign and chose to ignore it. He cannot make that decision because he does not have the facts.

OBJECTION, NARRATIVE

The officer is allowed to testify in the form of a story rather than a question and answer procedure. He has given a narrative. You have a right to decide if a particular question could have an objectionable response. If he tells the events without being questioned, you have no opportunity to object.

OBJECTION, NOT QUALIFIED

It’s similar to the previous objection, but in this case the witness testifies to something that they have no expertise in. If the officer were to testify that your muffler, for example, was defective, he may not have the expertise to make that objection since he’s not a muffler mechanic.

OBJECTION, HEARSAY

Essentially this refers to anything that is said outside the courtroom by someone who is not a witness. The officer may not state that a witness had told him something at the scene. The actual witness would need to appear in order for that testimony to be included in the courts record. If one officer wrote a speeding ticket for a radar violation for another officer, both officers must testify, only to the extent of how much they were involved in that particular incident.

OBJECTION, IRRELEVANT
These are events that may or may not have happened but bear no relation to the particular law that you are accused of violating. The officer may state that you had a hostile attitude towards him, which had no bearing on the ticket. Your attitude has no relevance on the law.

OBJECTION, IMMATERIAL

It’s almost the same as the previous objection. It may be related to the previous facts at hand, but it’s not close enough to remain admissible. The officer might bring up your driving record. Your prior traffic convictions have no influence and should have no relevance to the ticket that you were fighting. You cannot be judged on your past performances. If that were the case and you’ve had 12 speeding violations in the past three years, they would be assuming that you would be guilty of this violation.

THE PREEMPTIVE OBJECTION

This is when you realize before the fact that the officer is going to drop some bit of information that could be damaging to your case. In this case, you would object prior to the officer even mentioning it, just to disrupt their rhythm enough so that it would throw them off. Be advised that you are only permitted to be able to use this once or twice during the course of the trial because you are going to aggravate the Judge. If you abuse this type of objection, when you have a real objection the Judge will just overrule automatically without hearing your case.

CROSS EXAMINATION

During the cross examination phase you’re acting as your own defense lawyer and your main purpose is to discredit the testimony of any witness. In order to create a reasonable doubt in the eyes of the court, remember your opponent, the prosecution has to prove that you are guilty of the crime you are accused of. In order to succeed in this type of examination it is essential to find the details that the police officer can’t remember adequately and focus in on them. You should always be prepared for this type of questioning by knowing the answers to the questions that you are going to ask. You should be prepared for any answer that the officer gives. His best answer will be the facts that he already knows. For example, let’s say you ask the officer the color of your car. On the back of your citation he may have it indicated that your car is blue. Then ask what shade of blue. If he tells you the correct shade of blue, move on to another subject. If he tells you he doesn’t know, this indicates he can’t remember the facts of his case. If he tells you it’s white, he obviously has no idea and can’t remember what he wrote on the citation. This would be a great advantage for you. Don’t ever argue the case with the officer. Simply ask questions. You will get your chance in your case later in your motion to dismiss. The next criteria for cross examining questions is whether or not the questions will help your case. Don’t ever open up areas or details of an investigation that could damage your defense. For example you don’t want to ask a police officer why he didn’t write you a ticket for a broken tail light and only one for speeding. It would be in your best interest to ask specific questions such as, did you see the oil tanker truck in lane two? You don’t want to ask him whether there was any other traffic around because it would be very easy for him to get around that question. If you ask him specifics he has got to remember specifics. It’s also a good idea to start all of your questions with statements such as: “Isn’t it a fact?”. This is because the officer is under oath and must tell the truth. If he can’t remember, he must state, “I can’t recall”. The more responses like that you get, the stronger your case will be. If the officer can’t recall the details then he certainly does not rule out reasonable doubt. Covering the Prosecution’s examination of the officer’s testimony, note the strong points and the weak points of the officer’s testimony. If he states that he has the required 24/16 hour training in radar, leave that alone. If he does not have the necessary training and was trained by another officer then attack that very hard. There are a number of general questions that may be advantageous to ask during the cross examination. Some of them should include the location of the defendant when the officer first spotted his vehicle. Did the officer always have the defendant’s car in site with an unobstructed view from the first contact, until the defendant stopped? What was the distance between the officer’s vehicle and the defendant’s vehicle at first contact? What was the weather like during the time of pursuit. What kind of traffic was encountered during the entire pursuit? In what lane was the defendant’s car during the first contact? What was the exact time of day when the offense took place? How many passengers were there in the defendant’s vehicle? What is the exact color of the defendants vehicle? Did the defendants vehicle have any noticeable structural differences? For example custom wheels instead of factory hubcaps. The aim of these questions is to discredit the officers testimony as much as possible. If he continues to say I don’t remember and I can’t recall, you are building up a reasonable doubt in the witness’ testimony. The next smart move would be to move for a dismissal.

You may request a motion for dismissal for several reasons. We are going to try to cover the different motions for dismissal you might want to use during your trial. If you’re lucky, this is as far as your trial will proceed.

MOTION TO DISMISS

Due to the denial of a right to a speedy trial. This should be used at the beginning of your trial if your actual trial date was more than 45 days from the time of your original indictment. Your date of arraignment is determined by the date you stood up in court and pleaded not guilty. This happens rarely and would cause great embarrassment on the part of the court and the prosecutor. If you get to invoke this motion consider yourself very lucky.

MOTION TO DISMISS DUE TO DENIED ACCESS TO EVIDENCE NECESSARY TO YOUR DEFENSE.

Again this would be used at the start of the trial if your subpoena was ignored by the prosecution. In most cases the judge will delay the trial and order the prosecution to provide you with the information you requested. You don’t want to waive your right to a speedy trial, but you may have to decide if it is worth getting your subpoena information. It is likely that the judge will not let the speedy trial clause slip by.

MOTION TO DISMISS DUE TO INSUFFICIENT EVIDENCE.

Employing this particular strategy immediately after the prosecution rests his case. If the prosecution did not prove all of the required elements of the vehicle code you are charged with violating, then you may invoke this motion. For this reason we strongly suggest that you keep a check list of all relevant points that the prosecution needs to prove during the trial. It will be a useful reference chart when you explain to the judge that you were never identified as the driver, what road you were on, or any other relevant factors to the vehicle code.

MOTION TO DISMISS DUE TO INCOMPETENT WITNESS.

An extensive cross examination is necessary in order to prove that the prosecution’s witness, mainly the police officer, is not able to recall the details of the event in question when you received your citation. If you can get him to state numerously that he does not recall, it is up to the judge in his infinite wisdom to decide whether or not the officer actually remembers what happened on the day in question.

MOTION TO DISMISS DUE TO INADEQUATE PROCEDURES.

This may be utilized if the officer does not follow proper procedures, such as calibrating the radar unit before and after his shift rather than before and after the issue of the citation. Use the case law to back up your claim of inadequate procedures.

MOTION TO DISMISS DUE TO INSUFFICIENT EVIDENCE, SPECIFICALLY A MISSING OFFICER.

This is used in a case where there are two police officers; one manning the radar and the other issuing the citation after the chase. Both officers must appear in court since one cannot testify for the other. This would also apply if the single officer not only monitored the radar, but was in pursuit at the same time. If he does not attend the trial or show up you may move to dismiss. You generally won’t have to make a motion if a primary officer is missing. The prosecution will usually drop the case because he knows he has no case without the officer being present.

THE LAYERED DEFENSE.

The strategies for beating a speeding ticket basically follows a layered defense. In a layered defense you will want one of the following to occur:

• The officer or officers do not appear.

• Your right to a speedy trial was denied, or you employed various motions to dismiss after the prosecution rested their case.

After these strategies have been exhausted, it is time to move to the defense presentation.

The following will serve as an example of how to introduce evidence. Let’s say that we are going to utilize the introduction of a diagram of the scene of the crime. The clerk of the court will mark the document with an indicator. Usually exhibit A, B, C etc. It will then be shown to the prosecution so that they have the opportunity to object to the presentation of the materials. You will have to identify the document as a diagram of the intersection of X & Y streets. At this point continue to explain how this diagram will relate to your case. After you have done this, you must state that Exhibit A is to be introduced as evidence, otherwise, that document or any other document does not automatically become evidence. Once you have introduced all of your evidence, you have a decision to make. Are you going to testify on your own behalf or not? You do not have to testify and you are under no obligation to do so. If you do not testify, you deny the prosecution their right to interrogate you under oath. You also have to consider what you’re going to testify to. If you know you were going 62 miles an hour in a 55 mph zone you certainly cannot testify that you were doing 55 mph in that zone as you would be committing perjury, and that’s another crime you don’t want to be involved with. By doing so, regardless of what the crime is, you’ve admitted your guilt and you’re now subject to another fine. Your only salvation when you take the stand in your own defense is that your testimony and your witness will outweigh the prosecutions case and cause them to lose. After you have testified and your evidence has been presented, if you elect to take the stand, you are ready to rest your case. Ensure that the exhibits that you want to be brought out into the trial as evidence, are taken into account by the court. Once all those items are introduced, you can rest your case.

Emphasize their mistakes because they have got to prove that their case is correct. Stay persuasive in your presentation because the prosecution will get one more final word after you are done. Try to be brief in your presentation. If you take too long, the judge and the jury will stop paying attention to you. State your case, sit down and wait for the verdict. If you find at the end of your trial, that you are found guilty anyway, then you can begin your appeal. To begin with, an appeal is a bit more complicated than a self represented client defending themselves in court. Hire an attorney. Bear in mind an attorney is going to want one thing out of you, and that’s money. You’re going to have to give him money up front, he’s going to represent you during your case and when the trial is over, win or lose you’re going to have to pay more money. Court transcript will be necessary for the lawyer to go over to review all the facts of the case. When you do go in for your appeal make sure that there is a court reporter present in order to take a transcript of your trial. If there isn’t one, request one from the judge. He will provide a court reporter for you. If he does not, you already have your grounds for an appeal.