HOW TO WIN IN COURT

Let’s talk about loosing first… Losing in court is easy. But most self-represented individuals find this out the hard way. We have a pre-conceived idea that the court system is somehow about truth and justice and is concerned with doing the right thing. Once we get to court though, we find out that our un-justice system really does work best for those with the cash to hire the best lawyers.

My first time going to court was a huge education in how the system works. The charge was “Driving While Using Hand Held Communication Device” or “talking on my cell phone”. Having never been to court before, I spent hundreds of hours studying and learning all I could about trials and coming up with a plan to beat the ticket. In my studies I discovered that I should not testify (as I would only end up incriminating myself), but should instead concentrate on cross-examining the officer and bringing reasonable doubt to his testimony.

With my plan in place, I attended my first trial and when it was time for me to cross-examine the officer, I actually succeeded in showing the officers observation skills where completely wrong on a few points. My closing arguments were very persuasive as well, so imagine my surprise when the Justice of the Peace came back with her decision of “guilty!” While giving her reasons though, the light bulb went on as to what I had missed. The officer testified that he saw me with a phone in my hand, and I had not brought any evidence to contradict that fact. I had shown the officer had poor observation skills in identifying the vehicle model, the vehicle color and the number of occupants in the vehicle but I had not shown that these poor observation skills extended to his testimony about an actual element of the charge. Vehicle model, vehicle color and number of occupants are all irrelevant to the charge. The charge was “driving while talking on cell phone” and the officer testified that I was “driving while talking on cell phone” and I did not bring any reasonable doubt or contradiction to that element of his testimony.

HOW TO WIN IN COURT

Although I lost my first trial in court, I still came out a winner with the experience and education that I gained. The key points that you need to understand in order to win are:
– What are the “elements of the charge” that the prosecution must prove, and
– How to bring doubt to those elements by cross-examining the witness, and
– Whether or not you should testify to bring additional doubt to those elements. Most of the time you should NOT testify as you will just end up incriminating yourself.

There is no quick and easy way to win in court. You need to spend a lot of hours understanding the process and laws and researching case law.

I will now go through three different cases that I won and explain what happened.

CASE 1 – IMPROPER MUFFLER Section 75(1) of Ontario Highway Traffic Act

Let me tell you how I won. I showed up for court and checked in and although the prosecutor usually calls everybody up to meet with them before the trial starts, they never called me up which I thought was a little strange. Anyways the Justice of the Peace comes in and they called a few names for people that were pleading guilty and then about the fifth or sixth name in, they called me. I was kind of surprised since they usually put you off to the end if you are going to trial. I went up, said my name and the prosecutor said they were not prepared to go forward and were withdrawing the charge! Yahoo, I win! One of the elements that the prosecution must prove for this charge is that the noise was “excessive or unusual” and another element is that the “muffler is improper”. My personal opinion is that the officers notes did not support the charge, meaning the officer never made any mention that the noise was “excessive or unusual” and never made any mention of the “muffler being improper”. I believe the prosecutor recognized this and dropped the charge. I suppose it could also be that the officer did not show up, but I do not remember what the officer looked like and there was a row of a dozen officers sitting there so he may or may not have shown up.

Here is a link to a PDF with the defense that I had been prepared to use if I had gone to trial:
Click here to download PDF file of Case 1

CASE 2 – SPEEDING Section 128 of Ontario Highway Traffic Act

My wife was charged with 133 in a 100 and I represented her at the original trial. This was only my second time going to court so I had a paralegal assist me in preparing to represent my wife, so I was pretty well prepared and thought I did a great job, but I still lost! Because I did not want to lose the appeal, I hired the paralegal to do it for us. Our paralegal had prepared the defense in writing ahead of time and sent it to the prosecutor about week before the appeal so he would have time to review it. Basically we showed up and the prosecutor asked to meet with our paralegal. His comment was that he did not necessarily agree with everything that our paralegal said in the document, but did agree with some of the issues and felt that the appeal would probably be successful even if he tried to fight it, so he would just concede. The Court starts, case is called, prosecutor tells Judge he is not going to argue against the appeal, Judge says “appeal allowed, not guilty”. Thank you very much! An important point is that I had done a good job during cross-examination setting us up for an easy win on appeal. One of the tricks I learned is to use a shot gun effect and try to hit as many different issues as you can because even if you lose at trial, you still have a chance of winning on the appeal.

An important point to take away from this case, is that you need to be preparing for an appeal, even at your initial trial. At an appeal, you can not enter any new evidence. An appeal is simply a review of what was said at the initial trial. So this means that you MUST present all your evidence and all your defense at the original trial in order to have it considered at the appeal.

CASE 3 – SPEEDING Section 128 of Ontario Highway Traffic Act

My wife was charged with 76 in a 50 charge and the officer knocked it down to 60 in a 50 and I represented her at the trial. I checked the original ticket but no fatal errors. I asked for a trial with the officer present and requested disclosure. Got the full radar manual and officers notes. His notes were pretty much bullet proof. He had included a tracking history, comments that the radar had been tested (and passed) both before and after enforcement, and all the other elements they needed to be proved were in his notes. I went to court and the officer was there and sat thru 2 hours of people mostly pleading guilty and setting trial dates. Then at 11am prosecution asked for short recess. There was only three of us left in the courtroom at this time. He spoke with the other two and sent one person off to go over notes with an officer, then called me over and said “Well your charge is only a 10 over and this other guy has a failing to stop which is more serious. If he wants to proceed to trial then we won’t have time for your trial because you filed a couple motions that we would have to deal with even before we start the trial. So if he wants a trial that will work in your favor and I will drop the charge. Any problems with that?” Of course I said “No, that sounds good to me.” When the other guy came back in from talking to officer, he told prosecutor he wanted to go to trial, so prosecutor told the officer (for my wife’s charge) that he could leave and told me he would withdraw charge when Justice of the Peace came back in. I will take a win anyway I can! One thing to note with this case is that I filed a couple of Notice of Motion ahead of time. By filing these motions, I essentially made this case the most complex one of the day for the prosecutor, so he moved it to the bottom of the pile. This ended up working in my favour as they ran out of time.

Here is a link to a PDF with the defense that I was prepared to use if I had gone to trial:
Click here to download PDF file of Case 3

RELATED POSTS

– Representing yourself in court
– What to do when pulled over by the police

Representing Yourself In Court

So you are thinking “I want to represent myself in court” … well good for you!
But most likely you are going to lose. Why do I say that? Because you don’t know the RULES.

Here is an example…

Let’s say two people sit down to play chess at a tournament. One person is very experienced and has played chess all their life and studied all the different strategies you can use to win chess (let’s call this person CP for Mr. Crown Prosecutor). The other person has only heard of chess and seen it on TV a couple times, but has never actually played it and does not know any of the rules at all (let’s call this person SR for Mr. Self Represented). There is also a third party present watching the game to make sure everybody follows the rules (let’s call this person the Judge).

They sit down to play a game of chess and CP goes first and makes a move. SR then tries to make a move but since SR does not know the rules, the move is not valid. CP complains to the Judge who tells SR that they can’t do that. So SR tries a few other moves which are all also invalid. This is a tournament so it is not CP’s job or the Judge’s job to tell SR how to play chess.
How does it end? Well CP only needs to make a few very calculated moves and checkmate… SR has lost the tournament. Is it possible that SR could ever win against CP? Of course it is possible, but it would be pure luck (this would be a good day for SR to also buy a lottery ticket). Without knowing the rules of the game, you can most likely never win.

So hopefully this little example gives you an idea what you are up against if you decide to represent yourself. If you don’t know how to play the game called “court”, then it will be over before you even start. I have been to Ontario Provincial Offences court on several different occasions, and 99% of those representing themselves have lost. Why? Because they clearly don’t know the rules.

If you think you can just try to explain to the Judge (or Justice of the Peace) what happened, then you are trying to play chess without knowing any of the rules. An explanation may help you get a reduced fine or a reduced sentence, but you will still be found GUILTY of the offence. And if it is a driving related offence it may affect your insurance rates (in Ontario, even a 0 demerit point charge can still cause an increase). Let’s use Speeding as an example case. In Ontario, speeding is an absolute liability offence and you are either guilty of speeding or not. There is no acceptable reason (other than defense of necessity because your life was in danger) for why you were speeding. The reason does not matter. If you start to say “Yes I was speeding but…” you just testified against yourself and made the prosecutions job even easier… you put yourself in checkmate.

In order for the Crown Prosecutor to win their case against you, they must PROVE certain elements of the charge “beyond a reasonable doubt”. For a speeding charge they must prove 5 elements: (i) that you were driving, and (ii) that you were driving a motor vehicle, and (iii) that you were driving on a highway, and (iv) that you were going XYZ km/h in a (v) a WXY km/h zone. How do they prove these 5 things? When they bring the police officer to the stand to testify, he goes thru his notes and the prosecutor asks him questions and he will testify that: (i) you were driving and he verified your identity from your drivers license, and that (ii) you were driving a motor vehicle as defined by the Ontario Highway Traffic Act, and that (iii) you were driving on a highway/road as defined by the Ontario Highway Traffic Act, and that (iv) you were going XYZ km/h (based on radar or laser or paced you) and (v) the posted speed limit was only WXY km/h.

In order for you to win the case, you need show that the Crown Prosecution did NOT prove these certain elements, or that there is reasonable doubt to the certainty of these elements. And the only way to do this is by CROSS EXAMINATION of the witness. So the key to winning the game of “court” is learning how to cross examine the witness. So more importantly, you do NOT want to give your side of the story (see next point below). Winning has NOTHING to do with your side of the story. Winning has everything to do with showing that the other side did not meet their burden of proof and did not prove all the elements of their case.

In most cases, you should NEVER give your side of the story. You have the right to NOT testify against yourself. If you take the witness stand, then you must truthfully answer any questions you are asked. But you have the right to NOT take the witness stand and therefore not have to answer any questions. Don’t fall for the prosecutions trick where they will say something like “But you were speeding right?” If you are not on the stand then do not answer any questions like this and just say “sorry I don’t have to answer that”. Never ever ever admit to what you did in court unless you are under oath! And (mostly) never take the witness stand in the first place.

In order to figure out the elements that they must prove, you need to carefully pick apart the section of the act that you are being charged with, and read it word by word. Let me give you some examples of the elements that must be proven by the crown prosecutor for certain types of Ontario Highway Traffic Act charges.

They will almost always have to prove these 3 things first:
– you were driving (officer will usually testify that he checked your drivers license and was satisfied it was you)
– you were driving a motor vehicle as defined by the Ontario Highway Traffic Act (officer will usually testify that vehicle meets this definition. In cross examination, ask the officer if he knows the exact definition)
– you were driving on a highway as defined by the Ontario Highway Traffic Act (officer will usually testify that the road you were on meets this definition. In cross examination, ask the officer if he knows the exact definition)

Additional elements for speeding charge that need to be proven:
– the posted speed limit where you were driving (check for local bylaws to make sure posted limit is legal)
– the speed you were actually going (officer will testify about what he saw and what radar said and how he tested radar, etc. Did officer test it properly? Has officer been re-certified to operate radar?)

Additional elements for Improper Muffler charge that need to be proven:
– the muffler was improper (did officer actually bend down and look under your car?)
– the noise coming from the car was excessive or unusual (did the officers notes say these exact words, or did his notes just say it was loud?)
– the excessive or unusual noise that was coming from the car was caused by the improper muffler (do officers notes state where the noise was coming from, or did he just assume?)

As you can see they must prove certain elements, and you must cast reasonable doubt on all these elements during cross examination without actually taking the stand and testifying yourself. Here are some excellent resources on learning about cross-examination. The first two links are excellent at helping you understand how to go about cross examination, but they are U.S.A. related, so some of the example questions may not be suitable for your situation:
http://www.nolo.com/legal-encyclopedia/free-books/beat-ticket-book/chapter11-2.html

http://www.howardnations.com/cross-examination

http://www.roadwarriors.ca/traffic_ticket_trial

http://fightyourtickets.ca/tickets/the-trial

http://ticketcombat.com/step5/crossexam.php

Cross examine the witness with as many questions as you can possibly think of, but NEVER ask a question that you do not already know the answer too. Good cross-examination questions give you a much better ability to win an appeal if you lose the trial.

A typical trial in court looks something like this:
– They ask you how you plead (guilty or not guilty).
– The prosecutor calls their first witness (usually the officer) for examination-in-chief and asks all the questions related to proving each of the elements of the charge.
– You then get to cross-examine the witness to try and bring reasonable doubt to what they said (this is NOT the time to give your side of the story). This is the only chance you have to enter evidence so make it count.
– The prosecutor then gets to ask the witness questions again, but only related to anything you specifically brought up in cross-examination.
– You get to cross-examine again with regards to anything the prosecutor brought up.
– You will then be asked if you want to call any witnesses. If you are not going to testify then you can just say “No witnesses”.
– Prosecutor makes closing statements and submissions as to why you should be found guilty.
– You make closing statements and submissions as to why you should be found not guilty and point out all the reasonable doubt in their witnesses testimony.
– The Judge or Justice of the Peace will make a decision.
– If you lose the trial, then file for an appeal!

In Ontario, you have nothing to lose by going to trial. I recommend that you ALWAYS plead Not Guilty within 15 days and request a TRIAL with the Officer present. Once you get a trial date, ALWAYS request disclosure (officers notes, witness statements, speed measuring device manual, etc). Once you get disclosure, always carefully check the officers notes to see if all the elements that need to be proven are included in his notes. In Ontario, you can represent friends and family in court as long as you do not charge them a fee.

The only way to get good at winning the game of “court” is to practice by actually going to court and fighting tickets. You will probably lose at first, but the experience is invaluable. You can also go to court and watch others. You can learn a lot about what NOT to do when you watch others represent themselves and lose.

Remember that the two key points you need in order to represent yourself and win are:
– to (almost) never take the witness stand, and
– to learn good cross-examination techniques.

RELATED POSTS

– How to win in court (because loosing is easy)
– What to do when pulled over by the police