Representing Yourself In Court – The Good, The Bad and The Ugly

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

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