Part III. The Trial

Preliminary Considerations:

Once the day of trial is approaching, you should use the following checklist to ensure that you are ready to go to trial. You must have certain pieces of evidence and you must have made most of your decisions about witnesses and the evidence you will use at trial.

Here is a checklist you can use:

1. Have you received all the evidence from the prosecution that you requested?
2. Have you obtained all the evidence you will need from the city or the police department?
3. Have you made a decision about whether or not you will testify?
4. Do you know all the witnesses you will call and are they available for the trial date?
5. Do you have you notes anticipating what the police officer will say and what questions you are going to focus on to contradict them?
6. Do you have all the evidence lined up (admitted as evidence and approved) to bring your case or to contradict the prosecutor’s witnesses?

A Few Basic Preliminary Trial Rules

Rule 1: Not all evidence comes into trial. That seems odd, especially if it could really help you be cleared in the case. Why is this?:

Without too much explanation, the reason is because some evidence is trustworthy, and some evidence is not. The American legal system and its founders decided that one of the best ways to get to the truth is to respect the right of each party to cross-examine every witness who comes into court. In this manner by subjecting witnesses to tricky, careful questioning, the truth can be found.

Thus, the question of whether any piece of evidence can come into trial is based on this idea of being able to subject any piece of evidence to cross-examination.

An example would be if a police officer was involved in an arrest and made statements on which charges were brought against the defendant. The police officer is the best evidence of the charges since he can come into court and testify about why he pressed the charges and cited the defendant. As part of the system, he can then be confronted by you or your lawyer and cross-examined to see if his version is truthful, accurate and not biased.

That is why in most cases the police report that the police officer wrote regarding the event that led to your ticket is NOT the best evidence of what actually happened. If all the trier of fact (judge or jury) had were the statements in the police report, no one could be cross-examined to test the truth of the statements. Far too much weight could be placed on the written report than is fair to the person being arrested. Allowing just the police report as evidence completely abridges your right to confront the police officer to see if he is telling the truth on all the details of the report.

Additionally, certain evidence is unreliable, untrustworthy, less than the best evidence, and may not have an authentic foundation.

Perhaps, one of the most basic examples is that the police officer writes on a piece of paper “The defendant is guilty.” The prosecutor tries to have this admitted into court instead of having the police officer testify. Everyone can see that the sheet of paper establishes nothing more than a conclusion that is very damaging. Bringing the police officer into court will enable all the parties to elicit the testimony and cross-examination they need to see how the police officer arrived at this conclusion, and if he based his conclusion on any false or untrustworthy evidence.

Rule 2: All evidence must be admitted into evidence in a trial. What does this mean?:

All evidence must pass a test that proves to the court that the evidence was derived from a trustworthy source  that it is authentic. We all know that computers and pictures can distort the real truth by using different technologies. How many times have you seen pictures or graphics that have juxtaposed items to make certain things appear one way when they are another? We know documents can be doctored to make them contain different words or contexts.

Thus, with each piece of evidence, a case must be made to the court that the piece of evidence is trustworthy and depicts the truth of what it is showing. If one is using pictures, the picture taker must usually come into court and testify about the timing of the picture, the date of the picture and the circumstances present when the picture was taken. The picture taker must be present in court and be subject to any cross-examination desired by the other party in an attempt to try to prove the picture has been doctored, altered or is distorted.

Rule 3: Evidence must have come from a trustworthy source:

One of the best examples is a gun in a murder case. If the Police find the gun and just put it in the file and then seek to bring it into trial, they would have a problem, even if that is their major piece of evidence.

The problem is they did not document where they found it with pictures and notes, then place it in an evidence bag to preserve the fingerprints, and then lock it up where no one has access except a custodian who documents any contact with the gun in the locker. The custodian can come into court and testify about the preservation of the evidence and the “chain of custody” that makes it unlikely there was anything added or taken away (such as a fingerprint added to the gun).

Rule 4: Authenticity:

We have seen this in the above examples. Basically, if the case can be made by the party seeking to admit the evidence that the piece of evidence is authentic, it will come into evidence if there are no other objections. The burden is on the party offering the evidence to prove the evidence is authentic.

Rule 5: Hearsay: 

How many times have we heard a on a lawyer show one of the attorneys jump up and yell “Objection, Your Honor, hearsay.” Hearsay is basically a safeguard to ensure the person or thing that is offered into evidence can be cross-examined by the other party. Hearsay is an evidence that was not uttered by the original person who made the statement. 

Without this rule, a person could say someone said all kinds of things that cannot be searched in court for truthfulness, and much evidence would not be determined to be truthful in court. All kinds of statements can be hearsay – spoken words by someone else or written words in a report or other statement.

Rule 6: Relevance:

 All evidence must be relevant to be able to be admitted into evidence. Relevant evidence is limited to evidence that pertains in some way to the facts of the current case and events of the current case. Evidence that is related to other actions or events is almost always not allowed because the law considers that evidence to be irrelevant.

As an example, a defendant had committed three prior offenses and gone to jail twice. This evidence is not relevant to whether he committed the specific facts in the current case. While many would argue there is a propensity to commit a crime, courts will generally not convict defendants based on evidence of prior actions. As usual with the law, there are a number of exceptions to this rule and in fact, in many criminal cases, a defendant’s prior cases can come into evidence, but only with certain safeguards.

In a traffic ticket case, we could not ask the police officer how many tickets for DUI they had written. Those are irrelevant to the speeding charges in this case and would not be permitted.

This above list is not exhaustive. There are a number of other evidence rules that can keep evidence out or let evidence in. This complexity is why it is always recommended to hire a lawyer to defend yourself, if that is at all a possibility.

Getting ready for the Actual Trial:

There are few more preliminary issues that will arise as you make your last court appearance before trial. There will be:

1. Likely a final prosecution offer to settle the case
2. Likely a few motions based on evidence that is expected to be offered
3. Likely any objections to the evidence of the prosecution because a defendant did not receive the evidence in time or at all

Usually, these three things are discussed with the judge, although the original offer may be discussed between the parties until it is accepted.

1. Final Prosecutor Offer:

Expect as you get ready to start trying your case for the prosecutor to make a final offer to settle the case and have you plead guilty or no contest. Court resources are valuable. The prosecutor has to practice in front of the judge every day, and he/she does not want to waste the court’s time with a trial, where a reasonable offer has never been offered. The judge will often pressure the prosecution to make a reasonable offer.

Most judges will not pressure you to accept an offer, however, you may feel some pressure, nonetheless. It is entirely up to you. If your case is strong and you have a well-developed defense that can poke holes in the prosecutor’s case, then you are good to go.

2. Motions based on Evidence:

These are usually motions made by either party to exclude certain pieces of evidence or testimony by a witness for some reason. Often it is that a piece of evidence may be too prejudicial or is excluded by an evidence objection.

You should make any motions you have to exclude the prosecutor’s evidence at this time.

3. Objections to Evidence for Failure to Produce:

In civil cases there is an equal burden on each side to produce evidence they will use at trial. Many courts, however, conclude that defendants may not have to show the prosecutor all of their evidence.

You should at least object in advance to any evidence the prosecutor intends to introduce that you have not had a chance to review, inspect or otherwise prepare for, even if it means postponing the case. This is critical. You have to have the evidence the prosecutor will use so you can be prepared to refute it, if you can. There are inspections of live evidence required so the defendant can inspect the evidence.

You should not allow any evidence to come into court in the prosecution’s case that you have not seen before or heard of prior to the trial. Surprises are frowned on by the court.

The Judge’s Clerk Announces Your Case:

Your trial begins when the clerk calls your case, usually by saying, "State (or "People") vs. (your name)." You will move to the long table in front of the judge. The prosecutor will likely already be where he/she is sitting. You should take the other side of the table, along with anyone who is assisting you. You should stand there until the judge takes the bench. When they look at you, you should state your full name inform the court you are representing yourself and announce to the court you are “ready for trial.” Many courtrooms have a witness stand (looks like a box with a microphone sticking up) next to the judge's bench. This is where you and any witnesses including the officer will sit, be sworn in and be asked to testify. Some traffic court judges are a bit less formal and simply allow you and your witnesses tell your story from behind your table, while the officer does the same from the adjacent table. No matter what, whoever testifies will be sworn in. Address all of your statements to the judge and do not spend much time looking at the prosecutor.

To start the proceeding, the clerk (or the judge) may then recite the bare facts of the case. The clerk may say something like, "Mr. Smith, you are charged with a violation of Section 1180 of the Vehicle and Traffic Law of the State of New York, by driving 48 mph in a 35-mph zone on the 400 block of Main Street in Sun City."

Motions Before the Court – Again:

Even though you potentially made a few motions already, this is the time, before the prosecution begins its case, to make additional motions. These, depending on the facts of your case, might include:

• Requesting a continuance if you need more time
• Requesting dismissal of the charges for failure of the prosecution to disclose the officer's notes as per your written request
• Requesting the judge to order the prosecution to provide you a copy of the officer's notes so you can better prepare for trial
• Requesting dismissal if the prosecution has taken too long to bring the case to trial

To make a motion, stand up as soon as the judge stops speaking and say, "Your honor, I would like to make the following motion." Then, depending on the motion, you continue along these lines "I move to dismiss this case based on the fact that the prosecution has ignored my written request to discover the officer's notes (or other evidence they have failed to provide to you in a timely manner). Show the judge the copy of your request, and state “Your Honor, I made this request of the prosecution on x date and I have received no response."

There are a few situations that may now allow you to make more motions, such as these below:

If the officer fails to show up (lack of prosecution):

• As we have seen, it is critical be able to confront your accusers and cross-examine them when you are charged with a criminal offense, even if it is minor. If the officer fails to show, you should point out to the judge that this right has been denied and your case should be dismissed. Make sure the judge knows how inconvenienced you have been by the officer's failure to show up.

How you make a motion to the judge varies by lawyer. Here is an example: “Your honor, the defense moves for a dismissal of this case for failure to prosecute. The defense is ready to go, I have gone to the expense of having my witnesses in court and preparing this case for trial. I am here as I am ordered to be. While I understand the police officer is busy, this is no reason for the officer not to show up. This case should be dismissed.

It is up to the court whether to grant your motion. Sometimes the officer has a good reason, and the prosecution has submitted this to the court. You can continue to argue the fairness of allowing a continuance (postponement), but it will be up to the judge.

• If the prosecution has more than one witness, it is not fair that witnesses get to hear the testimony of other witnesses. While there are exceptions to this, you can make a motion, in the form of the above, and ask the court to exclude all but one witness at a time. This will almost always be granted for fairness reasons. Having the witnesses remain outside the presence of each other allows you to hear inconsistencies in their testimony and ask them damaging questions to expose these inconsistencies when you get to cross-examine them.

• At times you could feel that a delay (continuance) might help you. While you should be careful given the same reasons that you did not want a prosecutor to be able to delay the proceedings above, you can still ask the judge if it might help you. One reason might be that your key witness is sick or out of town.

Strategy Tip # 1:  Make sure you see the police officer in court before you ask for a continuance. Your case could get dismissed if the police officer is not present and then you would not want a delay.

Opening Statements – Getting Started:

Before testimony is presented, both the prosecution and the defense have the right to make an opening statement. The prosecution always goes first because they have the burden of proof. They will usually make an argument that briefly outlines the violation and tell the court how they intend to prove each element of their case. It is critical to realize that the opening statement is not a time to argue or prove anything. You must just give the court a direction on where you are going in your case.

The Prosecution's Statement:

Some prosecutors will make an opening statement, but many are sensitive to the judge's desire for a quick trial and waive the opening statement, because their case facts will come out during the testimony of the ticketing officer. Be ready for the police officer to show up with no prosecutor. That can and does happen.  The officer simply testifies without any argument in that case.

What does an opening statement sound like? Here is one example:

“Your honor, the People (or State) will show, through the testimony of Officer Jones of the X police department, that the defendant was driving a red 2017 Camry on the I-10 Freeway, where posted speed limit signs indicate the speed limit to be 65 miles per hour. It will also show that Officer Jones, relying on his radar speed detection device, determined the defendant drove in excess of 65 miles per hour, and he visually confirmed for over half a mile that the defendant was weaving in and out of traffic.” 

Remember that you will likely disagree with the prosecutor and all of their witnesses. You are not allowed to argue with the prosecutor or the witnesses. Instead you make your opening statement, stating your facts, if you intend to prove certain facts.

You can also waive your opening statement or defer it until the prosecutor is finished with their case. If you want to defer the opening statement, you have to tell the court that you want to “reserve” your opening statement until your case. Why would you do this? Because you can wait until you hear all of the prosecutor’s witnesses and see their weaknesses. Then you can adjust your opening statement to make it more convincing, based on the evidence the judge just heard.

The Prosecution's Testimony:

After opening statements, the officer who cited you will explain why you are guilty of the violation you were ticketed for. In many traffic trials, the officer will testify by standing behind the counsel table. But in courts that prefer a more formal approach, the officer will testify from the witness stand.

If no prosecutor is present, the officer will recite what occurred and why the officer believes these facts justified issuing you a ticket.                      

You have the right to interrupt the officer's presentation, but only if you identify a legitimate legal reason to "object" to a particular aspect of the officer's testimony. We talked above about these objections. You can use them, but you have to be polite and explain your objection. You should never interrupt to say, "He's lying! That's not true!" or something similar.

Remember that you may take a “hit or two” with evidence that is unfavorable to you. You do not have to refute every piece of evidence, You just have to refute enough evidence that will enable the judge to rule that the prosecution has not met their burden of proof.

Specific evidence to which you might consider objecting from the police officer:

1. Evidence where there is not enough testimony to establish the personal knowledge of the police officer

This is called failing to provide a "foundation" or "legal basis" for the testimony. For example, if a police officer refers to a diagram, the officer must first say how he or she knows the diagram is an accurate reflection of the place you were stopped and ticketed. Usually this is done when the officer testifies that he or she drew the diagram after writing the ticket while still looking at the scene.

If the officer fails to do this, you could say, "Objection, your honor. The officer has not provided a proper foundation for using the diagram. He apparently has no independent recollection of the incident and should not be allowed to refresh his memory with the diagram which may not even be of the proper area."

Why is this important? Because the police officer will likely not remember everything around your case, since he has many other cases and the facts likely run together. He cannot obtain his recollection from a document that is not correct or that he did not rely on at the time the ticket was written.

2. Object to the officer's use of notes

The police officer will likely want to use his notes  to refresh his recollection.  You can object that the officer is using notes that do not have a proper foundation. That means the police officer did not tell the court that he took notes, wrote them on the ticket and that they were made at the time of the incident. What you are really hoping by objecting is that the officer will become confused and make mistakes in his testimony that contradict what happened. Ideally, you are also hoping the police officer cannot remember anything with his notes and that leads to a lack of evidence that might be used to convict you, i.e., the prosecution has not met its burden of proof.

3. The officer presents evidence you requested well before trial but never received

As we discussed above you can say: "Objection, your honor. The officer is referring to his notes, a copy of which I requested by way of discovery several weeks ago. My written request for those notes—which I'd like to show the court is right here—was never responded to. I ask that this evidence be excluded, and the officer's testimony be disallowed."

Then, you hand a copy of your written discovery request to the clerk for the judge to see. If your objection is approved—or "sustained"—by the judge, you should ask for time, or a continuance, to study the notes. If the judge says yes, this means the officer must come back to court a second day (something that may be difficult to do). Even if no continuance is ordered, the judge will give you the opportunity to study the notes right then, which may still be very helpful when you cross-examine the officer. For example, if they are cursory or sloppy (but the officer has already claimed to need to refer to them to refresh his or her recollection), you may be able to get the officer to admit he or she can't recall other details not mentioned in the notes.

4. The officer says something that is clearly outside his or her knowledge

If the officer testifies to what someone else saw or heard, called "hearsay," you'll definitely want to object. This includes anything the officer testifies to that did not come from direct observation. You can say, "Objection, Your Honor. The officer's testimony as to how fast the officer in the aircraft said my vehicle was going is hearsay."

The point here is to begin to discredit any information the officer doesn't know firsthand so that later you can argue that there is reasonable doubt as to your guilt. For example, if the officer says that another driver (perhaps after an accident) said you were going 78 mph, you'll want to object. Later you can tell the court that this "hearsay" evidence does not prove that you were speeding.

5. The testimony of an officer assumes facts not in evidence

A bit more difficult to understand is when an officer testifies that "the defendant's vehicle" exceeded the speed limit but hasn't testified how he or she knew it was your vehicle.  That's assuming a fact—that you drove that vehicle—which hasn't been established yet. The officer has to connect you to the vehicle he saw speeding, and you can cross-examine him on what he saw, particularly if he hesitated in testifying that he saw you driving the car. This objection looks something like this: "Objection, your honor. The officer has so far testified only that she observed a vehicle, not that she identified me as having driven it, and her reference to ‘the defendant's vehicle therefore assumes facts not in evidence."

If your objection is approved ("sustained"), the officer will have to go back to square one and explain exactly how he or she determined that you were the driver of the vehicle. The officer will have to describe the vehicle, pulling it over, and identifying you through your driver's license.

Especially if the officer might have had trouble doing this (your car was out of sight briefly), this objection may throw the officer off balance. If the judge denies ("overrules") your objection, just let the officer continue testifying.

Your Cross-Examination: .

After the officer is finished, you get to cross-examine him or her. Remember to be polite and non-argumentative. Ask simple questions that require short and direct answers. If the officer gives an unexpected answer don't argue. If you think the officer is not being completely truthful or covering up important facts, ask a more detailed question. Otherwise, just go on.

Again, it's best not to ask vague questions that give the officer a chance to tell more of his or her story. If, despite your pointed questions, the officer tries to do that anyway, politely interrupt with "Thank you" or "I think you've answered my question." If all else fails, say to the judge, "Objection, your honor. The latter part of the officer's answer is nonresponsive, and I ask that it be stricken."

Redirect Examination:

A prosecuting attorney handling the case has the chance to ask the officer more questions after you finish your cross-examination. This is called "redirect examination," and the questions asked are supposed to relate only to issues you brought up during your cross-examination.

If the prosecutor asks more questions, you too get another chance to ask more questions of the officer called "re-cross-examination." You must limit your questions to issues brought out by the prosecutor on redirect examination. If you start asking questions you have asked earlier, or ask about new issues, the prosecutor will almost surely object, and the judge will probably ask you to sit down.

Reserved Opening Statements:

If you reserved your opening statement at the beginning of the trial, you'll want to make it now, just before you give your testimony. Why make an opening statement and then immediately set about testifying to the same facts? Because it allows you to get the judge's attention focused on what you intend to prove.

What if the judge asks you to waive your opening statement? Many judges will attempt to hurry you along by suggesting that you start your testimony by explaining what happened from your point of view and go on from there. Assuming you have prepared carefully, agreeing to do this may be a good idea. Not only does it keep the judge happy, but artfully done, you can make all the same points anyway.

If you do decide to make an opening statement, it should be short and to the point. Here the idea is to outline what you intend to prove, not to testify to the detailed facts that you claim back up these points (you do this next when you testify). Your opening statement should go more or less like this:

“Your honor, I will show facts that I believe will demonstrate that I am not guilty. Specifically, I will rely on my own testimony, and that of my passenger, that we both ascertained my speed to be approximately 35 miles per hour on Main Street at the time I was ticketed. I did this by occasionally glancing at my speedometer as I was driving, and my witness did it by checking my speed when she saw the reflection of the officer's colored lights on the windshield. I will also show my speedometer was accurate at that speed reading. Finally, I will testify to the fact that just before officer Jones pulled up quickly behind me and used a radar gun, I saw a large truck pass in the "fast" lane to my left.”

Your Testimony:

In most traffic court trials, you will simply stand up at the counsel table, look at the judge, and present your view of what happened. But in a few courts, you'll be asked to take the witness stand. Either way, you'll want to have practiced your presentation ahead of time. It's okay to glance briefly at notes, but don't read directly from them. Here is an abbreviated version of an example defendant’s testimony. Let’s call this defendant Sam Safespeed.

“I was driving down Main Street at 35 mph in the right-hand lane of two lanes in my direction. When I passed the speed limit sign just past Elm Street, I looked at my speedometer and it read between 32 and 35 mph. Because I was so surprised that I was ticketed, I took my car to Spartan Speedo Shop and had my speedometer checked later that same day. I have proof of that certification, which says my speedometer was accurate, in this document which I'd like to have marked and introduced as defendant's exhibit #1.

When I was driving, I also glanced in my rearview mirror from time to time. Just before the officer pulled me over, I looked and saw a vehicle, about a quarter mile behind, rapidly gaining on me, just as a large truck went by pretty fast in the left lane. I didn't recognize the car gaining rapidly on me from behind as a police vehicle until the officer activated his lights, which he did when he was fairly close to my rear bumper. At that point, I said to my passenger ‘Gee, Pam, there's an officer flashing his lights, maybe he's after that trucker, so I better pull over to let him pass.’ I pulled over, but he stayed behind me.”

At this point in the trial, you would want to refer to any diagrams, photos, or other evidence supporting your case. Once you have told your story and submitted all the evidence you have, the prosecutor (if present) may cross-examine you. The prosecutor may ask a few questions or simply waive the right to cross-examine. The judge may also ask you some questions. But if the testifying police officer tries to question you, you should politely but promptly object on the ground that the officer is only a witness and not licensed to practice law. Say something like this: "Objection, your honor. Officer Smith is not a lawyer, and therefore I do not believe it's proper for him to cross-examine me." If your objection is overruled, you must answer the officer's questions.

All of your responses should be given courteously, truthfully, and as briefly as possible. You are not limited to only a "yes" or "no" answer. After all, what if the prosecutor asks you whether you knew you were speeding, in which case both "yes" and "no" are terrible answers. Far better as is your right to say "I know I wasn't speeding because I had just looked at my speedometer."

Witness Testimony:

Next will be your chance to present the testimony of any eyewitnesses. Depending on local court rules and customs, your witnesses will be expected to either testify in the same narrative fashion in which you testified, or you'll be expected to ask questions designed to allow the witness to explain what happened.

Here is an abbreviated version of an example witnesser’s testimony. Let’s call this witness Pam Passenger.

Here is what Pam Passenger a passenger in Sam Safespeed's car might say:

“Well, your honor, on March 15th at about 4:30 p.m., I was seated in the front passenger seat of Sam Safespeed's car. I recall just before Sam was pulled over by the officer that we were in the right or ‘slow’ traffic lane. Other cars were passing us on the left, including a large truck. Suddenly, I saw colored lights reflected on Sam's windshield and immediately glanced at the speedometer and saw that we were going 35 mph. I am quite sure I did this before Sam had a chance to slow down.”

It is wise to practice with your witness. It is both legal and sensible to ask your witness to practice giving testimony. If you don't know whether your court uses the narrative or question-and-answer style, practice both. This will allow you to discuss and clear up any discrepancies on how you each remember events.

The prosecutor will also have a chance to cross-examine your witnesses when each one is finished testifying.

How to Ask Questions of Your Own Witness:

It's difficult for an inexperienced person to ask just the right questions. If you feel intimidated by this process, tell the judge "Your honor, I haven't attended law school, and I'm unfamiliar with technical rules. May I just ask Ms. Passenger to simply tell you what she saw?"

If you choose or are required to have your witnesses respond to questions, particularly if a prosecuting attorney is opposing you, here are some tips that should make things a little easier for you:

Be sure to ask nonleading questions which normally begin with "what," "who," "where," "when," or "how." You may not use leading questions when questioning your own witness, but you may use them when conducting cross-examination. Leading Questions are questions that suggest or provide the answer you are seeking. For example, it is fine to ask, "What color was the car?" It is not acceptable to ask, "Was the car red?" or "The car was red, wasn't it?"

You should also avoid irrelevant details. For example, if you are accused of running a red light, the judge will not care that you were on your way to help your mom take your dog, Bonzo, to the vet.

Don't ask questions that assume facts that the witness hasn't testified to yet or at all. This is another way of saying that your questions should help the witness explain what happened in chronological order. For example, don't ask "Did you see a truck pass my car?" before the witness says anything about a truck being present. Instead, you could first ask "Did you see any other vehicles traveling in my direction?" If the witness says, "Yes, I saw a big truck," then it is time to ask what the truck was doing.

Don't ask your witness to recount something said by someone else. That is hearsay and cannot be used at a trial. But there is one big exception: A witness can testify to what the ticketing officer said to you and what you said to the officer, if the officer testified earlier about your conversation together.

Make a list of the few key facts to which your witness will testify. Design a question calculated to get at each fact. Arrange them in chronological order. By asking your questions in chronological order, your goal is to build a logical foundation for later ones, using the expected answers from earlier questions. For example, you might start with "Where were you on March 15th at 2:30 p.m.?" Assuming the witness says, " in your car," it makes sense to follow up with " Do you recall Officer Smith pulling me over?" Only then is it time to ask, "What did you observe before the officer pulled me over?"

Closing Statements:

The final stage of your traffic court case is the closing arguments or statements. Each side has a chance to present its argument after both have presented their testimony and evidence and have been allowed to cross-examine any witnesses. This is the time when you must sum up the best arguments you have to be found not guilty. In most states, your goal is to make it clear that there is a reasonable doubt as to whether you committed the actual offense. In a few states, you must prove your innocence. If you have admitted the violation, you must explain that you had a very good legal reason for technically violating the law.

The Prosecution's Statement:

If there is no prosecutor present, the case normally concludes after the officer's testimony and your cross-examination, unless you ask to make a final statement. In trials with a prosecuting attorney, he or she is allowed to summarize his or her case first. The prosecutor will explain how the officer's testimony (and maybe some cross-examination testimony given by you or your witnesses) proves “beyond a reasonable doubt" each element of the offense and disproves any defenses you've raised. During the prosecutor's closing argument remain calm and poker faced. It is a mistake to express outrage, indignation, derision, or any other emotion. Remember, this is just another day in the office for the judge, who won't appreciate histrionics. But do listen carefully to the prosecution's arguments so that you can respond to them in your own closing argument, which comes next.

Here is an abbreviated version of an example prosecutor’s closing statement. We will call her Priscilla Prosecutor.

Priscilla Prosecutor sums up the evidence, saying "Your honor, Officer Smith, an officer with 20 years of traffic enforcement experience, testified as follows. He calibrated his radar unit with a tuning fork at the beginning of his shift. While parked northbound on Main Street, he observed a blue Plymouth Voyager van traveling about 45 mph in a 35-mph zone. Easy-to-read speed limit signs are posted every quarter of a mile in that area. He also testified that he aimed his radar gun within seconds after the vehicle had passed him, that he heard a strong Doppler tone, and that his radar unit read a speed of 49 mph. The officer testified he never lost sight of the vehicle, pulled it over, and ticketed Sam Safespeed. The evidence shows beyond a reasonable doubt that the defendant exceeded the posted speed limit by 10 mph."

If a police officer tries to give a closing statement, you can object on the ground that this involves the practice of law. Do this by saying something like "Objection, your honor. The officer is a witness, not a lawyer or advocate. He's here to present evidence only, not to practice law by arguing which evidence is more believable, or how this court should apply the law to the facts."

Do not refer to new evidence or testimony in a closing statement. If the prosecutor or officer refers to any key fact not already brought out in court testimony, promptly object by saying "Objection, your honor. No evidence was presented on that point."

Your Closing Statement:

When you represent yourself in court, you have two roles—witness and advocate. In your role as witness, you have already testified to what you claim happened. Now, as your own attorney, you have a chance to review and summarize the main points you made during the trial and explain to the judge why you should be found not guilty. Making a closing argument is different than testifying. Your best approach is to act as if you were a third party and summarize and comment on the evidence. The point, of course, is to convince the judge that there is at least a reasonable doubt as to your guilt.

Some judges especially where no prosecutor represents the other side will try to wrap up the case with no closing argument. Unless you are sure your case is hopeless, or the judge has all but said you have won, you'll want to politely request your right to make a final argument. With some judges, you'll need to insist by saying something like this: "Your honor, I believe it's my right to make a brief final statement. I'll be well organized and quick, but I do want to briefly explain why the evidence shows I'm not guilty."

To make an influential impression in final argument, you need to explain your position convincingly and politely and  usually in fewer than 15 sentences. Do not read a statement. Do outline your speech ahead of time and practice giving it several times in the days before your court date. If you have already obtained the officer's notes, study them carefully, looking for deficiencies in the officer's evidence or inconsistencies in the officer's conclusions. You'll probably need to modify it a bit at the last minute to take into account what the officer says at trial, but this should be easy enough as long as you have a clear plan as to how to make your major points. Conclude with something like "And for these reasons, your honor, there is a reasonable doubt as to whether I committed the offense, and I therefore ask that you find me not guilty."

Three Closing Argument Tips:

1. Don't bring up new facts you or other witnesses haven't already testified to previously. You are not allowed to refer to anything that was not brought up during the trial.

2. Don't make it personal. Never insult the ticketing officer by suggesting the officer is lying or personally biased against you. But you may point out weaknesses in the officer's testimony, especially his or her failure to give convincing or thorough answers to your cross-examination questions.

3. Don't challenge the authority of the judicial system to charge you with a traffic offense or say you will ignore the court's ruling if you are found guilty.

Your closing statement given after the prosecution makes its closing statement should emphasize that at least one of the elements of the offense hasn't been proven beyond a reasonable doubt. Or you can argue that you have presented some other legally sufficient defense.

To begin your closing argument, say to the judge: "Your honor, I would like to summarize how the evidence shows I'm not guilty." Then explain how:

The officer's testimony failed to prove one or more of the necessary elements of the violation you are charged with and/or -

Your own testimony (and that of any other witness) has shown that you did not violate one or more elements, despite the officer's contrary testimony, and/or -

Your testimony establishes a legally sufficient reason why you violated the statute, such as your legitimate mistake of fact or reaction to a dire emergency.

Sam Safespeed's Closing Argument:

“Your honor, let me quickly summarize the evidence as part of telling you why I'm not guilty. First, Officer Smith never really established that I violated (the code section you are charged with violating) when he relied heavily on his notes and didn't really remember what happened. When I cross-examined him, he honestly admitted that he had not calibrated the radar unit with a tuning fork at the beginning and end of his shift, as is recommended in the radar unit's operating manual.

Also, the officer admitted he  was over 180 feet away from my vehicle when he activated his radar unit.

By contrast, both Pam Passenger, my witness, and I testified that I was in the right lane, the ‘slow' lane, and that there was plenty of other traffic, in both directions, including a large truck quickly pulling ahead of me in the lane to my left. In addition, the officer testified that he took at least three seconds to aim the radar unit at my vehicle, meaning that my car was about 180 feet in front of his, and receding, when he activated it. He also conceded that at that distance the radar beam was at least 30 feet wide, which is the same width as two lanes. Finally, he also reluctantly conceded that his radar unit is more sensitive to a larger target, such as a large truck, and that it's quite possible to get a false reading in a situation like this.

Finally, Ms. Passenger and I testified that I was going about 35 mph based on looking at my speedometer, which I proved was accurate. So, to sum up, I think that in this situation there really is a reasonable doubt as to whether Officer Smith correctly determined my vehicle's speed, and I therefore respectfully ask that you find me not guilty.

Prosecution's Rebuttal Statement:

Because the prosecution has the burden of proving you're guilty, it gets two shots to argue its case. The second one is intended to allow a rebuttal to the things you covered in your argument. Often, the prosecutor will choose not to make a rebuttal statement. If only an officer is present, he or she almost never will.

The Verdict:

After all the evidence and closing statements have been presented, the judge must either announce a verdict or take the case "under advisement" or "under submission." This means the judge wants to think about it first before making a verdict.

If the judge takes the case under advisement, it means you will be notified of the decision by mail. But if you are considering appealing if you lose, it's wise to call or visit the court about once a week to find out if the verdict has been filed. That's because in most places your appeal to a higher court must be made between five and 30 days from the time the judge files the verdict with the court clerk, and some court clerks don't get their paperwork in the mail on time. This can leave you with very little or no time in which to appeal.

If the judge finds you not guilty, you don't have to pay any fine and are entitled to a refund of any bail you may have posted.

The Sentence:

In most places, for routine violations, judges state the amount of your fine immediately after announcing a guilty verdict. If you mounted a decent defense but have not convinced the judge of your innocence, the judge may reduce, or even suspend, the fine. In a few states, if you are found guilty and fined, the judge may listen to a plea (or read a letter) from you requesting that your fine be suspended or reduced based on your good driving record (or for some other convincing reason). Or the judge may agree to your request for a payment schedule if you cannot afford to pay the amount all at once. (talk to the court clerk in this situation).

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Summary:

Remember, once again, it is always recommended and preferred that you hire a qualified attorney to represent you. If, for whatever reason this is not possible, hopefully these tips and tricks will help you win your traffic ticket case should you decided to represent yourself.

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