IX. THE TRIAL DE NOVO/IN PERSON TRIALS
READ THE WARNINGS IN SECTION VI BEFORE CONTINUING ON.As
far as in-person trials, I do not recommend them given the reasons as
outlined in Section VI. However, the trial de novo is recommended.
Although it is an in-person trial, read on as to what you can do to
increase your odds of tipping the scales in your favor. In addition to
reading this very
generalized overview, consult
Fight Your Ticket in California by Atty. Brown for more information on how to handle yourself at a trial de novo.
So you just lost your Trial By Declaration. If you want to continue the fight? Fear not...
If you wanted to go to court in person, this would be the time to do
it. After all, you just lost your case in your Trial by Declaration.
What should you do before you get to court? Here are some of the things
I have done in preparation for my day in court.
IMPORTANT NOTE: Your case will more than likely be heard by a
commissioner instead of a real judge (substitute "commissioner"
wherever you see "judge" anywhere in this article). A commissioner is
someone appointed to hear "Agency Law" cases, but mostly traffic. It's
in the name: the commissioner may be working on a commission. If the
commissioner is being paid on a per conviction basis (part of the
conviction fine), he certainly has a vested interest in the verdict and
you stand no chance of winning, not even with a good solid defense.
These courts are known as "Kangaroo courts." Fortunately, you can
appeal (outside of my scope).
If you're reading this, either you have a ticket in hand or want to arm
yourself with information for the inevitable moment when you see the
twin cherries in your rearview. When you step into that courtroom and
the bailiff warns you about Your Honor boasting a 99% conviction rate,
you will remember what I just said in the paragraph above and it will
all make sense. That 1%? Either the officers didn't show up or the case
was tossed out on a technicality. If the officer shows? You're in for a
ride. But fear not. Make those asshats work for your money. Here are
some helpful tips. I won't delve into the meat of the matter; you're
better off reading my recommendations (links and books).
My recommendation is to go down to the traffic court you are summoned
to and sit in as an observer. You will learn how the trials will
proceed, what kind of commissioners you will be dealing with, etc.
Generally, the typical traffic court trial consists of 8 parts:
1. The bailiff leads the defendants into the courtroom, gives a
speech about the commissioner presiding, discusses the traffic school
option, and maybe a sprinkling of how this whole thing is being done
for your $afety.
2. The commissioner enters the court room and asks the defendants if they want traffic school.
3. Once the flakes leave, the trials begin.
4. Both you and the officer are sworn in. "Tell the truth?"
R..i..g..h..t. You'll probably find out for yourself when the officer
testifies against you at your trial.
5. The officer goes first and testifies. There is no prosecutor in
California; the officer acts as both prosecutor and witness. If the
commissioner, however, begins to ask leading questions, you can object
on the grounds that he is acting as a prosecutor.
6. You will have the opportunity to cross-examine the witness (officer). More information below.
7. Your turn to testify. It's a good idea to after having cross-examined the officer.
8. Your case is ruled on.
I didn't include specific scenarios that could arise during this 8-step
process; consult Brown ch. 10 ff and the Tipmra for the juicy bits.
A. Continuance
If you need more time to work on your case, you can ask the court to
grant a continuance. This is a motion to have your trial postponed to a
new date. It is also a tactic to increase the odds that the officer
will not show up. Courts know this and will often deny your request.
Never expect to be granted a continuance if you ask for it.
B. Rights
Your rights to witnesses and cross-examination of the officer (and the evidence) will be in effect. Use it to your advantage.
C. Questions to Ask During the Cross-Examination
Refer back to section VII. This depends on whether you received a
pacing ticket or a radar/lidar ticket. You may want to ask questions
related to the calibration of the devices used to measure your speed,
the officer's (lack of) training, and error.
Do NOT ask open-ended questions.
Remember, in traffic court you have to PROVE BEYOND DOUBT that you are
innocent. Don't come to court thinking you're going to get off. Traffic
courts have little incentive to find you not guilty. Remember,
presentation is still everything. Walk in prepared, well-dressed, with
a well-crafted case. Although the officer and the judge are on the same
side, you can impress the judge (just like an employer).
D. Traffic School if You LoseSome courts will scare you
into giving up and taking traffic school by telling you that if you
proceed to trial and lose, you will not be granted it (this actually
happened to me). Bullshit. It's just another way to intimidate you from
seeking justice. Respectfully decline the offer and proceed to trial.
As long as you have a complete and cogent presentation of your case to
the judge - even if you lose - the judge could still assign you to
traffic school (you still have to cough up another $29). Don't be
fooled into thinking otherwise. Costs for traffic school vary widely.
Shop around.
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