Part II. What is Evidence and How Can it Help Your Case?

It makes sense to have a basic understanding of evidence so that you can prepare your case.

There are a few kinds of evidence:

1. There is direct evidence – this is actual evidence in the form of statements, objects, diagrams, models, etc., that prove or help to prove a violation of a statute.
2. There is circumstantial evidence – this is evidence that is admitted that does not prove a violation of the law on its face, but a judge or jury could infer from the evidence that you committed a violation.
3. There is cross-examination testimony – this is a statement, or statements, that you elicit from an adverse (hostile) witness that helps to destroy the other side’s case or help to make or prove your case.

What evidence do you have?:

Evidence is important because it is what you present in court to prove your case or disprove the other party’s case. Understanding evidence is critical to the preparation of your case. If you do not understand evidence, you may think you have evidence in your case that helps you when your evidence may not be allowed in court. Let’s see how this works in traffic court.

In a criminal (traffic) court case, the person who brought the charges (the State) is represented by a prosecutor. In a civil case, the person filing the lawsuit is called the Plaintiff. In both cases, the party being charged or sued is the defendant. The Prosecutor always goes first. It is his/her job to bring witnesses and evidence to court that prove the case against the defendant.

It is the defendant’s job to prepare their case to refute all or some of the evidence that will be brought by the prosecutor, so that the prosecutor is not able to prove his/her case.

Prosecutor’s Possible Evidence – Our Hypothetical Case:

1. Police officer’s testimony
2. Police officer’s notes
3. Police officer’s experience
4. Speed gun evidence
5. Speed gun history and calibration
6. Speed gun history and calibration technician testimony
7. Proof of vehicle identification

Your Possible Evidence:

1. Witness testimony regarding speed
2. A map or diagram of the scene (that helps to prove there was not a straight line between the speed gun and your car)
3. Evidence that shows the police officer could not have caught the speed of your car with the speed gun
4. Traffic condition evidence (especially if traffic heavy/crowded, if the road was curved, or if it was raining or foggy)
5. Evidence of large trucks on the road near you
6. Evidence of a different speed zone, i.e., 75 mph or 80 mph, if relevant
7. Facts that will establish the gun was not working, not calibrated or the police officer did not know how to use it (not an expert, if stated)
8. Evidence that there may have been two of the same color cars (one was yours) near each other at the time of the speed reading
9. Other statements or facts from witnesses that establish facts helpful to your case

Before we discuss the evidence of the police officer, it is wise to create a detailed map of the scene. Sometimes parties in court have maps developed for them that depict the scene with as much detail as they can remember. Sometimes details cannot be remembered. You should strive for accuracy, but if the map is accurate and does not help you, you may not end up using it. for example, if the road is a straight line. The police car is parked on the left shoulder. You are in the left lane and there are no other cars on the road, the map is not going to be particularly helpful to you. It will, however, be of great use to the police officer. You do not have to bring evidence to court that helps to convict you. The United States Constitution expressly provides that no defendant has to do any act that will incriminate them.

On the other hand, if the map was a curvy road with three lanes, the police officer was in the right lane, you were in the left lane and there were three trucks between you and the officer, such that the gun could not likely have pointed directly at your car, that map would be very helpful to your case.

If it helps, you should safely visit the scene and take pictures that can be admitted to court. Usually these are date stamped to show they are authentic.

If you can, have another credible witness (credible means makes a good appearance in court, dresses respectfully, doesn’t have many tattoos if the judge is averse to them, etc.) take the picture and come to court later to testify about taking the pictures.

There may be a few pieces of evidence that you might request from the prosecutor. Since you do not have an attorney, they may try to ignore you. You should be insistent. They have an absolute duty to turn over their evidence to you. You should make your request in writing to the prosecutor in the court once the charges are filed. Several items should be requested:

1. The calibration and maintenance history of the speed gun
2. The name and credentials of the expert who will testify about the calibration and functioning of the speed gun
3. The disciplinary history of the police officer and any other personnel files (you may not get these, but if you do not you can re-new the request with the judge if you show proof you asked for them and they were denied)
4. The make and model of the speed gun
5. The “read-out” of the speed gun that tells the officer you were speeding
6. The notes of the police officer or a report of the ticket

In addition to asking for the above evidence, you should google the police officer and see what you find online. Again, if there are things that make the officer sound problematic, have your credible witness review the online items, make copies of them, and keep notes about dates and times the copies were made.

If there are derogatory remarks, pictures or other online evidence, you can use it to help your case. We will discuss that shortly. Even if they are not derogatory, they might help. For example, if he was at a desk job for 10 years, and only that day he issued your ticket when he went into the field, you can use that against him. If he has serious expertise, say as a sniper, SWAT team member or as a murder detective, you can use that to try to show he has no idea how to use the gun or do traffic stops.

Sorting Through the Evidence You Have Prepared:

Let’s examine any issues with using the evidence you prepare in court. Just because you have it, does not mean you will use it. It might harm you case, not help it. So, we have to consider each piece of evidence from two angles:

• Is it helpful to your case?
• What harm could the prosecutor do to your case using your evidence?

The Map or Diagram of the Scene:

As you draw this think about what you can argue for your case. Are there many cars? Where were they? Draw them in exactly where they were if you remember, including color and make/model. Especially draw any cars that were the same color or look as yours. Were there trucks around you – possibly obstructing the police officer’s vision? Did someone swerve or cut so you have to take evasive action? Was traffic heavy or light? Was it raining or foggy? Was the officer actually aiming the gun? When you went by, was he eating or drinking coffee? Was he or his car too hidden (some states require the car to be visible to avoid an entrapment charge)?. Try to get the map as accurate as you can. You may not use it, but you should get it as accurate as you can.

Witnesses:

Talk to any potential witnesses. What will they say about whether they thought you were speeding? Remember, that “Oh, that’s easy, you were not speeding” may not be as definitive for your case in trial as it sounds. Your witness is subject to cross-examination from the prosecutor. What if she asks your witness these questions?

P: “Were you paying attention to the defendant’s driving?”

W: Answers – “Yes.”

P: “Why, was he driving erratically?”

W: Answers – “No.”

P: “What made you pay attention then?”

W: Answers – “I don’t know.”

P: “Do you usually do nothing in the car but watch the road?” Your witness decides to try to help you.

W: Answers – “Yes – I watch everyone who drives me carefully.”

P: “Really, then tell me when the driver changed lanes in the car that day last?” “Was it two minutes ago?” “Three minutes?” Four minutes?”

W: Answers – “I am not sure.”

P: “I thought you said you watched the driver’s every move.”

W: Answers “Well not every move.”

P: “Well, which moves can you tell us about?”

W: Answers – “I don’t know, he started the car and put it in drive and got onto the freeway and was driving.”

P: “That’s all you can remember?” “You just said you watched the driver’s every move and that’s all you can tell us?” “No further questions your honor.”

See what happened? In trying to be helpful to you, the cross-examination tripped them up, such that their helpful testimony (which seemed really helpful) was destroyed by a skillful prosecutor. You have to first decide who can help, and then decide how helpful their testimony will be. Always gather every piece of evidence first, and then do the evaluation.

Police Officer Related Evidence:

Review all or any potential issues you found regarding the police officer. Again, they might not help, but collect them all first. Remember, you might need a witness to testify when and where they found the articles and that they are true and correct copies of what they originally copied. What if there is an article online that shows a group of police officers were disciplined for destroying evidence and your particular police officer was in that group? Let’s say it happened last year in four different cases and he was suspended for a week. This information is helpful as it shows he could not be telling the truth with evidence in this case.

Remember what he did in another 4 cases a year ago is not part of this case – it does not prove anything about this case. But it can be admitted into evidence if the judge allows it to show the police officer’s record of truthfulness. You either have to prove he is lying in your case, or have the judge believe he could be lying in your case. Weak evidence on the police officer’s part could help prove the latter.

Legal Jargon Rules Timeout #1: What is the Burden of Proof in Your Case and How Does It Affect the Evidence on Both Sides?

What is the burden of proof? In civil cases, the burden of proof means the plaintiff must prove his/her case by a “preponderance of the evidence.” This means the plaintiff’s evidence must tip the scales to better than 50% that the plaintiff’s case or evidence should prevail. If it does not tip the scales, the defendant prevails.

How does the burden of proof affect the evidence in our case? It means that the prosecutor must prove that the defendant was speeding “beyond a reasonable doubt.” The prosecutor must introduce evidence into court that proves the case in this manner – otherwise the defendant goes free.

It is thus the job of the defendant to review all the evidence in the case on both sides and to try to find evidence on their side that proves they did not do it or disproves the prosecutor’s claim.

Legal Jargon Rules Timeout #2: What Does It Mean That You Have a Right Not to Incriminate Yourself if You Are a Defendant?

The U.S. Constitution guarantees in the Bill of Rights any defendant’s absolute right not to incriminate themselves.  You’ve heard it before – “You have the right to remain silent.” This means that no matter what you have the right not to testify against yourself. We have all seen so many criminal trials where the defendant does not testify. The jury is instructed not to hold that against the defendant in any way.

Why? Why should a defendant not be able to come to court and tell their story? The reason is the right to cross-examination. For our purposes here, most defendants elect not to testify for fear they may incriminate themselves in the way of cross-examination of skillful prosecutors.

In our case, this is important for the defendant to decide. Will he testify? If he testifies, the evidence, such as the map, diagram, pictures, and the denial of speeding all need no other witness. The defendant can testify about all those items. The problem is that all the testimony that helps to establish the defendant’s case that likely helps to prove his case could be wiped out by cross-examination, leaving him actually convicting himself.

Here is an example of how this could work to incriminate the defendant -

Let’s assume the defendant testifies that he was not speeding, that the diagram depicts busy and truck-filled traffic, that there was another red car on the scene like his, and that it was foggy and rainy.

Now the prosecutor gets to ask the defendant questions now that the defendant has testified. Here might be the damaging exchange:

              P: “Were you working at the time you were driving?”

  D: Answers – “Yes.”

              P: “Were you going to a meeting?”  

  D: Answers – “Yes.”

              P:  “Was it an important meeting?”

  D: Answers – “Kind of yes.”

              P: “Kind of? Wasn’t it the biggest potential sale you have ever made?”

  D: Answers – “It was.”

              P: “Was traffic busy?”

  D: Answers – “Yes, very."

  P: “When you were pulled over, how much time did you have to make the most important sales of your life?”

  D: Answers – “I did not have much time at all. We were late.”

  P: “No further questions, your honor.”

You see what happened? Once the prosecution got to cross-examine the defendant, she demonstrated to the court that because of the impending biggest sales meeting in his life, he hit traffic and was likely speeding to make up time. She got to show that the police officer’s testimony and the speed gun evidence was true arguably “beyond a reasonable doubt.”

This is why the U.S. Constitution provides this protection, and why virtually no defendant should ever testify.

We will see shortly how Cross-examination – what is called in the U.S. Constitution the right to confront witnesses – will work in the Defendant’s favor.

Cross-examination By the Defendant – the Not So Secret Weapon:

Let’s see how this same cross-examination tool works in the defendant’s favor. Analyzing how this will go with each piece of evidence before you get to trial is one of the most valuable tools for the defendant. Let’s examine each piece of evidence for the prosecution and see how the defendant can use cross-examination to destroy the evidence against them.

Police officers are trained to say as little as possible in any case to avoid contradiction and cross-examination. In our example, the police officer will testify to:

• A little background – history of being a police officer, number of traffic stops, experience on gun, accuracy of gun, authenticity of gun
• The speed trap location
• How he could clearly see oncoming traffic
• How he held the gun and pointed it at cars
• The conditions and road configuration, i.e., rain, clear, heavy or light traffic
• Visibility of the defendant
• The speed gun registering at 78 mph
• The process of pulling over the defendant and interaction with the defendant

Tool Tip #1: Recognize the police officer was say as little as possible. You want to make him/her talk. The more they say, the more they can not remember something or contradict themselves. Contradiction equals doubt.

Tool Tip #2: Police officers have 40-200 cases at any one time. They cannot remember the details of every case, especially if the defendant was not memorable. The result is that without their notes, they cannot remember anything about this case, usually. Keeping them talking is your job by continuing to ask them questions.

You may want to cast doubt on the police officer’s ability to remember:

1. Your car
2. Yourself
3. The road shape – curvy vs. straight (straight is better for the accuracy of the gun)
4. Whether traffic was heavy or not
5. Whether there were trucks or not
6. Whether the defendant’s car was obscured
7. Any weather conditions
8. Anything else that interfered with officer’s ability to visually see your vehicle

Your cross-examination of the Police Officer might look like this:

               D: “Good morning, Officer.”  

               PO: Answers – “Good morning.”

               D: “What kind of car was I driving when you gave me a ticket?”

               PO: Does Not Answer – Looks down at notes.

               D: (interrupts quickly) “Without looking at your notes, officer” “Don’t you remember my car?”

  PO: Answers – “not without looking at my notes.”

               D: “You mean you don’t remember?”

The prosecutor will object here and ask the court to allow the officer to use his notes. The court will allow this.

               D: “Were you looking at my car” or “did you just look down and wait for the sound of the gun?”

               PO: Answers – “waited for the sound of the gun.”

               D: “So you didn’t see my car speeding.”

               PO: Answers – “I looked up and saw you go by after the gun alarm went off.”

               D: “But, you did not see my car until then.”

               PO: Answers – “yes”

               D: “so you didn’t actually ever see me speed?”

               PO: Answers – “not really no.”

               D: “So without the gun – you could not tell the court I was speeding?”

               PO: Answers “correct.”

See, now you have him trapped. If there is a problem with the gun, you have isolated the testimony that he never saw you. You win now if you can prove a gun calibration, maintenance or user problem.

Now, since you got the police officer to say in the earlier cross-examination that he was not looking up at your car, he just read the numbers on the speed gun when it beeped your next cross-examination of the police officer might look like this:

     D: “Officer you said you have used the speed gun a lot” 

     PO: Answers – “yes over 100 times.”

                  D: “Was that only with this make and model gun”

     PO: Answers – “No many different models.”

                  D: “So you don’t know much about this speed gun?”

                  PO: Answers – “Not true.”

                  D: “Well, you never said how exactly how many times you used this gun in the past.”

                  PO: Answers – “I think about 20 times.”

                  D: “Well, was it 20, exactly?”

                  PO: Answers – “I am not sure.”

                  D: “Well, was it 10 times, exactly?”

                  PO:  Answers – “I don’t know.”

                  D:  “Well, was it 5 times exactly?”

                  PO: Answers – “Not exactly sure.” “Probably more than 5.”

                  D: “But you don’t know exactly?” 

                  PO: Answers – “No.”

                  D: “What was the make and model of the last gun you used to issue a ticket?”

                  PO: Answers – “I don’t remember.”

                  D: “Did you read the instruction book before you shot the defendant and issued the ticket?”

                  PO: Answers – “Yes.”

                  D: “How long before?”

                  PO: Answers – “I don’t remember.”

                  D: “A month?”

                  PO: Answers – “I don’t remember.”

                  D: “Three months?”

                  PO: Answers – “I don’t remember.”

                  D: “Six Months?” A

                  PO: Answers – “I don’t remember.”

                  D: “A year?”

                  PO: Answers – “I don’t remember.”

                  D: “Fair to say it was not recently?”

                  PO: Answers – “I don’t remember.”

                  D: “So, you might not have used this gun but a handful of times without reading the directions.”

                  PO: “Correct.”

You have now cast doubt on the officer actually seeing the defendant speeding and his experience and use of the gun. Now you could potentially cast doubt on the police officer’s testimony regarding the calibration/maintenance of the speed gun:

a. Was the gun was properly maintained

b. Was the gun calibrated

c. Was the gun working properly at the time of the defendant’s ticket

d. When was the gun last calibrated

e. Who calibrated the gun

                         f. The proper level of maintenance for the gun

                         g. Was the gun antiquated

Remember, you are building on the two points of doubt you created already above.

Your next piece of prosecution evidence is the calibration/maintenance of the speed gun. It has to be accurate, or it cannot be used.

Tool Tip #3 -The prosecution has to bring in someone to testify about the calibration/maintenance of the speed gun. In a big criminal case, it would likely be an expert who would be able to testify to all aspects of the speed gun’s capabilities, accuracy, maintenance and calibration history. All to prove the gun was accurate on the day it was used against you.  Here, in a traffic ticket case, the prosecutor may not have these resources available. Instead, she may try to get away with having the police officer testify about the speed gun and try to make him look like an expert to the judge. Your job is to cross-examine him to cast doubt on any testimony regarding the speed gun’s capabilities, accuracy, maintenance and calibration history.

Your cross-examination of the police officer on the subject of the speed gun might look like this:

           D: “Officer you said you knew the gun was calibrated” 

           PO: Answers – “Yes.”

                        D: “Was the gun calibrated in the last 2 weeks?”

                        PO: Answers – “I don’t think so.”

                        D: “You said you knew the gun was calibrated recently?”

                        PO: Answers – “Yes.”

                        D: “But not in the last two weeks?”

                        PO: Answers – “Not sure.”

                        D: “But not in the last twenty weeks?”

                        PO: Answers – “Not sure.”

                        D: “So recently to you means more than a half a year ago?”

                        PO: Answers – “Could be.”

                        D: “Is that really what recent means?”

                        PO: Answers – “Could be.”

                        D: “How many times was the gun used in the past 6 months?”

                        PO: Answers “No idea.”

                        D:  “Would it be more than 20 times?”

                        PO: Answers “I don’t know but probably.”

                        D: “Would it be more than 200 times?”

                        PO: Answers “I don’t know but probably.”

                        D: “Do you know how quickly the gun can go out of calibration?”

                        PO: Answers – “No.”

You have now proven through cross-examination that he has no idea when the gun was calibrated or if it was in fact calibrated at all.

Let’s assess – your job is to create as much doubt as you can for the trier of fact [here the judge] about each piece of the prosecutor’s evidence.

So far, you have created real doubt in your ross-examination on these three points:

                1. The police officer did not see the defendant’s car speeding.

                2. The police officer did not have experience with the speed gun used in the stop.

                3. The police officer has no idea when the gun was calibrated or how many times it was used since calibration.

At this point, you can ask more questions about the gun’s maintenance history and accuracy, but you may have enough here.

Tool Tip #4 -

Notes cannot be cross-examined. The police officer’s recollection is the best evidence of what happened to write your ticket. The notes are not admissible unless the police officer uses an evidence rules exception that he needs the notes to refresh his recollection. He can do this only after he testifies if he has no recollection. If he does not testify and he has no recollection, he cannot use the notes. You should object if you see him referring to his notes and make the prosecutor lay the foundation of refreshing his recollection.

Tool Tip #5: If a witness is on your side but seems less than emphatic than would be ideal about their testimony, be careful using them. They will potentially be nervous in court and under experienced cross-examination, they may wither. Unless, you know they are emphatic, proceed as if you will not call them. When you are done evaluating all your evidence, you may still need them, but you will have to use them carefully.

Tool Tip #6: It is not uncommon at trial for a party’s diagram to be drawn favorable to their case. But know that the witness testifying about your diagram can be cross-examined if it is too distorted, and also know the prosecutor can call the police officer again to clarify. This does not mean you should couch the diagram in your favor, but those are the risks.

Tool Tip #7: If you argue with the police officer that the gun is +-3 mph, you might be able to be “freed” within a 75-mph speed zone.

We have now evaluated permissible evidence in part II above. We have also looked at how that evidence comes into place at trial (i.e., how the evidence is heard by the judge or jury). Now we turn our attention to the best part, actually getting into court and hopefully experiencing the thrill of victory.

Part III - The Trial