The State vs Me

I always feel a little stage fright when my name is called in Court. But I don't stress because I know I'm prepared and even if things go wrong… it’s a speeding ticket – not the end of the world.

Usual Trial Flow:

Opening Statements (I usually decline)

State calls Witness - Police Officer's Testimony - I make Objections

State admits Evidence - Citation, Certificates, etc. - I make Objections

Cross Examination (I question the Officer)

Re-Direct by the Prosecution (Follow-up questions)

Prosecution Rests and I make a Motion to Dismiss for lack of evidence

If Judge denies, I admit Evidence

Closing Arguments

Verdict and Sentencing (If Guilty)

The Prosecution's Case

The State will attempt to prove the Officer made a visual estimate of my speed, and then verified that speed with radar, laser, or vehicle pacing. The Prosecutor's burden of proof is: 1) Show I was the driver of the vehicle 2) Prove what the Speed Limit was 3) Prove I drove faster than the Speed Limit. If all three of these elements are not proven, then I make a Motion to Dismiss for Lack of Evidence as soon as the State rests. I always scrutinize everything the State does and try to show reasonable doubt by Objecting to Officer testimony and evidence when I can.

Cross-Examination

This is when I ask the Officer questions to challenge evidence and testimony. I look for inconsistencies, whether with previous testimony, an oral/written statement, or what’s declared on the ticket/patrol log. I’m also trying to create reasonable doubt about the Officer’s equipment, memory, training, and/or actions. There are free online videos of law professors discussing how to Cross-Examine, I personally like Irving Younger and Charles Rose.

RULE 1: I PREPARE by thoroughly examining the evidence (especially from Discovery) and writing down my cross-examination questions for the Officer. I already know the facts and can anticipate most of the answers. For example, the Patrol Car was parked underneath power lines, the Officer didn’t sign his Patrol Log, the Speed Limit sign was obstructed, etc.

RULE 2: I’m courteous to the Cop and expect the Cop to be the same, giving me direct answers without additional comment. If my question is, “Did you calibrate the radar unit?” and the Cop’s answer is, “No, I don’t have to.” I Object, sometimes even interrupting the Officer, and ask the Judge to instruct the witness to limit their answers to my questions only.

RULE 3: I ask simple leading questions that can only be answered with one word, usually a yes or no. I never ask “why” and I don’t let the Officer explain anything more than what I ask.

RULE 4: I ask sections of questions, one fact per question, and make each section lead to a logical point.

Q. The VASCAR system times vehicles over a fixed distance? A. Yes

Q. And that’s how VASCAR determines a vehicle’s speed? A. Yes

Q. A fixed distance is entered into the VASCAR machine, right? A. Yes

Q. The accuracy of the VASCAR machine depends on that fixed distance, right? A. Yes

Q. Did you enter a fixed distance into the VASCAR machine on the day in question? A. Yes

Q. What was the fixed distance? A. 100 feet

Q. Did you measure the fixed distance? A. No, but my supervisor said it was 100 feet. “Objection Your Honor – Hearsay. I move to strike the officer's testimony as to the speed of my vehicle, since it was based on a fixed distance that was not within the officer's personal knowledge.”

RULE 5: I try to avoid questions that will hurt my case.

RULE 6: I never argue with the witness (I can explain my position later during Closing Argument). AFTER THE STATE RESTS, I make one or more Motions to Dismiss

Motion to Dismiss due to Insufficient Evidence

This motion only applies if the prosecution failed to prove all of the required elements of the Speeding Statute. I keep a checklist of the points the prosecution needs to prove during the trial. The list comes in handy when I explain to the judge that the prosecution never identified me as the driver, never established what road I was on, etc.

Motion to Dismiss due to Witness Credibility

How many times did the officer say "I don't know" when asked questions about the traffic stop? If the officer’s memory and perception of events fall short and the Judge agrees, the case will be dismissed.

Motion to Dismiss due to Procedural Error

Did the officer use his radar near power lines? Did he forget to calibrate the radar unit correctly or when he was supposed to? Case law, the radar manual, and DOT specifications can be used to prove inadequate procedures.

DEFENSE CASE (Introducing Evidence)

I can introduce evidence like a radar manual, a photograph, or diagram of the scene. The clerk may mark the document as “Exhibit A” and the Prosecution gets the opportunity to inspect it. Then I identify the document as a “picture of the scene” or a “diagram of the intersection”. Then I explain why the document is relevant and finally make a motion that the exhibit be introduced as EVIDENCE.

Option to Testify or Call Witnesses

I am not under any obligation to testify and I don’t want to be cross-examined under oath by the Prosecutor. Also, in my experience Judges always take the word of an Officer over the word of a Defendant or Defense Witness, so (in my personal opinion) there’s generally little advantage to testifying. However, it may be necessary in order to submit evidence like photographs and manuals. It's important to have a basic understanding of the Rules of Evidence including entering exhibits. But the Judge will usually instruct about the preferred way of submitting evidence (to save time).

If a Defendant has to Testify to Submit Evidence

Scope of Direct Examination: The prosecution's cross-examination is generally restricted to the "scope" of the defendant's direct testimony. This means if the defendant only spoke about a certain event on direct, the prosecution can't ask about completely unrelated events during cross-examination. One can OBJECT - if the question is BEYOND SCOPE.

Credibility and Impeachment: Beyond the subject matter, the prosecution can also ask questions intended to assess the defendant's truthfulness and reliability as a witness. This could include questions about prior inconsistent statements, bias, criminal convictions, or other evidence to impeach the defendant's credibility. The defendant can plead the 5th if answering a Prosecutor's question might incriminate themselves.

Opening the Door: If the defense, during cross-examination, brings up a new topic or issue, it can be argued that the defense has "opened the door" for the prosecution to explore that topic in more detail. So it is wise for a defendant to be careful about what they testify to and limit their testimony to submitting evidence.

CLOSING ARGUMENTS

I keep it as brief as possible and stick to the facts discussed during the trial. I like to make 3 main points and focus on any mistakes the Prosecutor/Officer made, showing how the State failed to prove their case beyond a reasonable doubt.

For example: Your Honor, the main defense in this case is that the tuning fork calibration certificate does not meet the US DOT NHTSA minimum requirements. Secondly, the officer's radar certification was not signed by the instructor. And finally, as outlined in State v Morgan 2007, I objected to the officer’s opinion of the speed limit at the scene and the State did not prove authority of speed limit otherwise.

NOT GUILTY or DISMISSAL

Even though this feeling is nothing short of AMAZING, I make sure to show some class and don’t make a scene as I leave the building. I can shout all I want and make a celebration video when I get in my car.

GUILTY

APPEAL: “You can’t win them all... but you can sure as hell appeal.” I keep notes along the way so that I have a pretty good idea if the Judge/Prosecutor has made a mistake and I think I can win on appeal. This is usually MUCH MUCH more expensive than the ticket itself but since I love learning about the law, I appeal when I feel it's appropriate.

I CAN ALSO SAY: “Your Honor, may I have community service in lieu of a fine?”

MEANWHILE I consider taking a Defensive Driving Course. (Cheap Online Courses are listed MVC website) It's an easy way to reduce points.

UNUSUALLY HARSH SENTENCE: IF the Judge seems inordinately vindictive with a sentence, I respectfully ask her to consider CURRY v. N.J. STATE PAROLE BD., 309 N.J.Super. 66 , 72, 706 A.2d 769 (1998) - Defendant may not be penalized for exercising his rights.

6. Trial Flow