HOW TO LOSE IN COURT
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