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Trial in the Traffic Court

A trial in traffic court varies little in basic procedure from trials for more serious offenses. The burden of proof is on the state to prove you committed the offense beyond a reasonable doubt. The ticket and the officer's testimony typically provide the necessary amount of proof. Although a defendant is never required to prove his innocence, in a traffic ticket case you are doing yourself a disservice if you do not put on some evidence. The judge wants to hear your side of the story.

SIDEBAR: Failure to appear at trial will result in a bench warrant being issued for your arrest and authorizing officers to take you into custody immediately. Additionally, if you were previously jailed and made bail, you will forfeit your bail and be placed in jail until you can obtain another bail or the trial begins.

How can I defend against the ticket?

Assuming there were no defects in the ticket, you want to try to find an "affirmative defense" to the violation for which you were ticketed. An affirmative defense means that although you violated the law, you cannot be found guilty.

EXAMPLE: If you were ticketed for driving without your license, an emergency may be an affirmative defense in some states. If you can explain or prove your emergency to the judge's satisfaction, he will dismiss the ticket.

TIP: Read the law you are accused of violating carefully. In some statutes, there may be a separate subpart or provision titled "Defenses" or "Affirmative Defenses" near the end of the provisions.

An affirmative defense must be "proved up." Your testimony and the testimony of other witnesses as to the existence of an emergency is evidence that an affirmative defense exists.

TIP: If you believe you have an affirmative defense, let the prosecutor know as soon as possible. The chances are good that the ticket will be dismissed if you can explain the affirmative defense to the prosecutor and give her a preview of your evidence before trial.

Am I allowed to present witnesses?

If there are witnesses who can testify to the circumstances surrounding the violation and help prove your innocence, you want those people at trial. Your witnesses must testify to relevant facts, such as their presence in the car and their observation that you were not speeding or did not run the stop sign, for example. You will not be allowed to put on witnesses to testify as to your good character and other nice things about you, indicating that you do not deserve a conviction.

TIP: Witnesses should be subpoenaed; that is, served with an official notice that they are compelled to appear at the trial. Without a subpoena, a witness is not required to appear and you could be left without the ability to put on crucial testimony. A subpoenaed witness that does not appear is subject to contempt of court and imposition of fine. Importantly, subpoenaed witnesses who do not appear give you the grounds for a continuance.

How do I get a subpoena issued?

The court clerk should have a subpoena form. You fill it out and the clerk then issues the official subpoena. Give the clerk at least a week to issue the subpoena. She is busy and will not type up a subpoena while you wait.

The subpoena must then be served or given personally to the witness. Once you have the subpoena, ask the clerk where the sheriff's deputies that serve subpoenas are located. Find the person in the sheriff's office responsible for distributing subpoenas and tell them what you need. There will be a fee of least $50 that you should expect to pay in cash. Subpoenas are typically served within 2 or 3 days if the deputy can locate the witness.

Give yourself no fewer than 14 business days to complete the subpoena process and have your witness served. To find out if it has been served, call the sheriff's office. You will also be mailed a "return of service" signed by the sheriff with the date and time the witness was given the subpoena. The return of service is the proof to the judge that you subpoenaed your witnesses.

Do the witnesses have to sit in the courtroom?

At trial, if you request, witnesses will not be permitted to sit in the courtroom before they give their testimony. Before the trial begins, ask the judge to invoke the rule to exclude or sequester witnesses. The rule prohibits the witnesses from staying in the courtroom and molding their testimony to what other witnesses say. By invoking the rule, the prosecution's witnesses will not be permitted in the courtroom until they have testified, and will not be able "to get their stories straight." Of course, the rule applies to your witnesses as well.

Is there a way to see the documents the prosecutor is using during my trial?

You are entitled to examine and copy the documents in the prosecution's possession relating to your case before the trial begins. This process is called discovery and every state has extensive discovery rules relating to criminal cases, which also apply to traffic ticket trials. These rules are located in your state's criminal rules of procedure. Make sure you have a copy of the applicable rules in case you need to assert your right to certain items of discovery before the court.

EXAMPLE: The discovery rules require that you receive a copy of the results from medical tests performed on you. If you know the prosecutor has results of a blood test but will not give you a copy, you can bring it the judge's attention who will force the prosecution to provide you with the results. You can also ask that the prosecutor be "sanctioned" or fined for making you go to the trouble of having the court rule on the issue.

The local law library has copies of the rules and the librarian will show you where they are located. Look in the index for "discovery" in criminal cases. These are the rules that pertain to your trial.

You may be automatically sent a copy of your file; however, if the prosecutor does not send one, make sure you request one. In traffic court, discovery is typically accomplished casually by placing a telephone call, letter or fax to the prosecutor's office requesting the documents in your file. Do not forget to specify a deadline for receipt of the documents.

TIP: Your request for documents should specifically ask for the following:

A telephone request, even if successful, should also be followed up with a written letter confirming the conversation with the prosecutor and listing the documents she agreed to provide. Do not forget to include the agreed-upon deadline.

Do I have to give the prosecutor copies of any of the documents I want to use to present my case?

The prosecution is entitled to discovery from you as well. In some states, the rules relating to discovery require you to give copies of certain documents to the prosecutor without her asking. Read the rules you obtained from the law library carefully to determine if you have to give the prosecution a copy of your file and the deadline for doing so.

TIP: Make sure you read the exceptions to the discovery rules. Some documents are considered privileged, and you do not have to give these to the prosecutor. For example, discovery documents do not include your notes concerning strategy, conversations with attorneys or other exempted materials.

I am fighting a traffic ticket. When do I send out a request for discovery to the prosecutor's office?

Send your discovery requests at least 30 days before the trial date. If the prosecutor does not reply, you can request a continuance.

The prosecutor will not provide me with information concerning the number of tickets issued by the officer in the last year and other statistics that relate to my case. Is there any other way to get the information?

Yes. You may be able to obtain the information with a Freedom of Information Act (FOIA) request made directly to the city and the police department. There should be a form available for your FOIA from the court clerk.

The officer is going to testify about the radar device he used to cite me for speeding. Is there any special discovery I should request?

Yes. You should ask for the manufacturer's manual and specifications, a log of the calibrations and a copy of the repair calibration.

TIP: If there have been frequent repairs on the radar device, you can argue to a jury that it is unreliable and inaccurate. On the other hand, if the unit has not been repaired or serviced, you can claim it has not been properly maintained and is inaccurate.

Can I have a jury trial in traffic court?

You must make a request to have a jury in writing. Send a letter to the court, copying the prosecutor, requesting a jury at least 30 days before the trial date. You will be required to pay a nominal jury fee.

If you are allowed a jury in traffic court, it will generally be comprised of six people. People that you know are automatically excluded. There may be up to 30 people to choose from and question.

What is "voir dire"?

Questioning jurors is called voir dire. Your goal is to pick six individuals who will be sympathetic to your side of the case. The best way to do this is to ask questions that tend to show a certain juror will have a difficult time finding you not guilty, such as:

I am uncomfortable with the way a potential juror is answering questions. Can I have that person dismissed?

Yes. You are questioning the jury for that very reason. You have the juror dismissed by "challenging" her. You have a limited number of challenges so you must use them carefully.

The judge told me I have three "preemptory" challenges. What does this mean?

It means you can have a juror dismissed without a reason. However, once these automatic challenges are used up, you can only have jurors dismissed "for cause."

A juror is a neighbor of the police officer who gave me the ticket, and I have run out of preemptory challenges. What do I do?

You ask that the juror be dismissed "for cause." The fact that he is a neighbor of the police officer may sway him to the prosecution's side before hearing the evidence.

SIDEBAR: Other reasons to dismiss a juror for cause include:

Can I ask the judge to dismiss my case at the trial?

During the prosecution's part of the trial, if she does not have the police officer that wrote the ticket available to testify, make a motion to dismiss. You can make the motion when the prosecution is finished calling witnesses and the police officer has not appeared. Without the officer, the state cannot prove up the validity of the ticket and you should request that the judge dismiss the case for "lack of sufficient evidence."

You can also make the motion if an officer, while outside her jurisdiction, ticketed you. A police officer employed by one city cannot issue citations within the city limits of another municipality. When the officer is on the stand, point out that she is not employed by the police department with the authority to write tickets where you were cited. Once she admits that she was outside her jurisdiction, turn to the judge and make a motion to dismiss for "lack of jurisdiction." Of course, this does not apply to state police, who have statewide jurisdiction.

What kind of evidence can I present during my traffic court trial?

Presenting evidence is the means by which you prove your case. Evidence can be in the form of witness testimony, records, photographs or exhibits.

Testimony is generally the most compelling evidence supporting your innocence in traffic court. Strangers, such as bystanders or onlookers who witnessed the alleged violation, are the best witnesses as they have no reason to lie on your behalf. Passengers, of course, can provide credible evidence as well since they are presumably familiar with the facts of the case.

TIP: Never call a witness and begin questioning him without having first gone over the testimony informally. The witness should be aware of the questions you will ask and you should be aware of the answers he will give.

You are not required to testify on your behalf or in your defense. The prosecution cannot call you as a witness because you have the right against self-incrimination. If you do decide to testify, practice your testimony, stick to the facts, do not embellish or become overly emotional. Once you are on the stand, you are subject to cross-examination by the prosecution. If you think you will be forced to say something that will hurt your case, do not testify.

TIP: In traffic court, the judge will want to hear your side of the story. Your failure to testify could leave her without understanding why you believe you are not guilty.

Can I object to evidence the prosecutor introduces?

Yes. The rules of evidence are complicated, but do make yourself aware of some basic objections you can make while the prosecution is putting on their case, including:

These same rules apply to the person fighting the ticket. Do not ask your witness leading questions or try to get him to make hearsay statements. The prosecution will object and you must find another way to get the witness to testify to the facts that support your case.

What is cross-examination?

The prosecutor calls her witnesses first and your cross-examination can create reasonable doubt in your favor. Ask the police officer questions such as:

With other witnesses, you want to establish doubt by showing they were far away from the scene, traffic was congested, the weather was bad, their view was blocked, they were on their cell phone, etc. You are looking for an admission that if any of those facts were present, the witness cannot possibly testify with certainty.

TIP: Do not ask a question during cross-examination of which you are not sure of the answer.

What are closing arguments?

At the conclusion of the case, the judge will ask you if you want to make a closing argument or summation. The closing argument is your final chance to persuade the judge or jury of your innocence and convince them that the prosecution has not proved guilt beyond a reasonable doubt

You should prepare an outline and take additional notes during the trial to remind you of testimony given. During your "close," remind the judge of the testimony in your favor, recite the elements of the law you are accused of violating and explain how one or more were not proved.

TIP: Only an attorney for the state (the prosecutor) may give a closing argument. Object if a nonlawyer, such as the police officer, attempts to give a summation.

Can I appeal a guilty decision?

All persons convicted of a crime have a right to appeal. In the case of appeals from traffic court, the court the next level up will decide if your conviction should be reversed. Although errors made during the trial by the judge determine the success of an appeal, your appeal will fail automatically if deadlines are not met. In traffic court, these appellate deadlines are typically short. Ask the court clerk if she has information on appeals from traffic court immediately after you are found guilty. There may be a simple form the traffic court uses to handle appeals to the next level where no jail time is involved. If not, research the appellate rules of your state for the deadline. Like the rules of discovery, you can find them at the law library. Failing to meet the filing deadlines means an automatic denial of your appeal.

There are several advantages to an appeal:

Disadvantages are present as well, including: