Representing yourself - the good, the bad and the ugly

jsherk
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Representing yourself - the good, the bad and the ugly

Unread post by jsherk »

First of all this is NOT legal advice. It's just my opinion of some things I have learned personally, and for educational purposes only!

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 Provincial Offences court on several different occaissions, and I have yet to see somebody win who is representing themselves. 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 (even if it is 0 demerit points). Let's use Speeding as an example case. In Ontario, you are either guilty of speeding or not. There is no acceptable reason (other than your life was in danger and you were fleeing that 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 the speeding charge they must prove (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 speeding. How do they prove these 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 HTA and that (iii) you were driving on a highway/road as defined by the HTA, and that (iv) you were speeding because radar said so.

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.

Do NOT 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! And never take the witness stand.

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 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 Highway Traffic Act (officer will usually testify that vehicle meets this definition. In cross examination, ask the officer if he knows the exact definition as it reads in the HTA?)
- you were driving on a highway as defined by the 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 as it reads in the HTA?)

Additional elements for speeding charge that need to be proven:
- you were actually speeding (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 their elements during cross examination.

And here are some a bonus suggestion:

Never talk to the Police in the first place, as 99% of the time you are giving them the evidence they need to convict you. They are not your friend (even if they are acting nice).
See this thread for more details on this rule: http://www.ontariohighwaytrafficact.com/post36269.html

ALWAYS plead Not Guilty within 15 days and request a TRIAL with the Officer present.
Once you get a trial date, ALWAYS request disclosure.
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.

If you lose at trial, ALWAYS file an appeal within 15 days.

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.

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 might want to start by fighting some parking tickets instead of a DUI but that is up to you.
+++ This is not legal advice, only my opinion +++


Sonic
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Re: Representing yourself - the good, the bad and the ugly

Unread post by Sonic »

Well, there's actually case law suggesting the Court should help an unrepresented defendant understand his legal rights - but generally the main concern with fighting HTA offences are - they are usually under a JP.

That's the biggest concern, a lot of the times the JP has (in my personal experience) less knowledge of the law than you and can dictate the courtroom based on it. For one of my tickets that I fought for a friend, the JP argued that the officer does not have to test the device and there's case law saying he never has to test it - I said well I have case law here saying it's a requirement and he dismissed it. Completely interfered with my cross examination when I tried to mention testing procedures, and dictated the entire trial.

I of course won it on appeal, but if you have the money - you could argue that justice is being violated due to the lack of knowledge of JP's and that your crime is still considered an offence, and should be seen by a Justice as well. That would be an interesting case, I can think of a lot of case law and charter challenges to support it - it's just no one has the time to do something like that for fun... Maybe one day I'll try it when I have more leniency at work. It's going to be a tough sell because having a Justice would cost significantly more and you know the city would be opposed to it due to that being their biggest cash cow. You also know the SC will consider the costs associated and the city will argue that it is unreasonable to have every 'minor' offence go through a Justice... but the law is the law, and should not be dictated by seriousness of the offence. It'd be an interesting case for sure, it's a you against the world kind of challenge.


jsherk
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Re: Representing yourself - the good, the bad and the ugly

Unread post by jsherk »

@sonic Yes you have some good points.

I am aware of the case law that says the court is supposed to help an unrepresented person understand their rights. However they are not required to explain the elements of the case the prosecution must prove and are not required to help you cross examine the witness. Its good to mention it at the beginning of trial though because it gives extra ammunition for your appeal.

I had a similar situation with a Justice of the Peace. The officer testified he used a Genesis II Select Directional radar unit and followed the testing procedure in the manual that was provided to me with the disclosure. During cross examination I asked if the Genesis II Select Directional and the Genesis II Select were two distinct and separate models. The officer agreed that yes they were different. I then asked him to read what model was listed on the cover of the manual that he provided me. It said "Genesis II Select". So the officer used the testing procedure for a different model than the one he had. However the officer commented that "the testing procedure is the same for both models" and the Justice of the Peace said "if the officer says they are the same then thats good enough for me". Of course the testing procedures may very well be the same but the Justice of the Peace should have immediately thrown out the radar evidence and dismissed the charge because of the use of the wrong manual. I also won on appeal.
+++ This is not legal advice, only my opinion +++


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Re: Representing yourself - the good, the bad and the ugly

Unread post by Radar Identified »

jsherk wrote:Do NOT 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! And never take the witness stand.
While you have the right not to incriminate yourself, in certain instances (defence of necessity, refuting the officer's evidence) you are guaranteeing a loss simply by not getting on the stand. I'm not going to post dozens of examples but one case is this one:

R. v Sandhu

Sandhu's testimony, which was unshaken on cross-examination, is primarily what got the charge dismissed. I don't tell people "always do" or "never do." There are plenty of exceptions.
jsherk wrote:Never talk to the Police in the first place, as 99% of the time you are giving them the evidence they need to convict you.
That's also a choice. The flip side of that is if the cop just stopped you to give you a warning, giving the silent treatment will almost always result in them giving a ticket instead of saying "don't do that again." Do as you wish.
* The above is NOT legal advice. By acting on anything I have said, you assume responsibility for any outcome and consequences. *
http://www.OntarioTicket.com OR http://www.OHTA.ca


jsherk
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Re: Representing yourself - the good, the bad and the ugly

Unread post by jsherk »

@Radar Identified - Again some good points!!

You are correct, that there might be times when you do want to testify and do want to give your side of the story (like defense of necessity), so me using strong language like "never" might be better worded as "mostly never". I did mention that with speeding, explaining your side of the story would probably only work if you were fleeing danger because you life was in danger, which would be a defense of necessity.

Again these are only my opinions and from my observations everybody I have seen in court representing themselves did not know the rules and incriminated themselves.

What I did for my first couple cases was found a paralegal that was willing to help me to prepare to represent myself. It was cheaper than hiring them to fully represent me, but was invaluable in knowing what tactic was best for the situation. Many lawyers and paralegals may not want to help you do this, but call around until you find one that will.

And of course you always have the option of hiring a lawyer or paralegal outright to represent you, because they at least know the rules of the game. However make sure you find one that has a record of actually winning!!!
+++ This is not legal advice, only my opinion +++


argyll
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Re: Representing yourself - the good, the bad and the ugly

Unread post by argyll »

I think your comments are valid for court but I would have to disagree with simply refusing to speak to a police officer as that will surely remove any chance of a break that might have been offered had you been civil. By all means don't incriminate yourself but politeness goes a long way.

For me, a heart-felt apology would go a long way to determine if someone got a ticket or a warning. If I felt that they wouldn't repeat whatever it was due to my having brought it to their attention then I didn't feel the need to write a ticket but if I was met with poor attitude or a denial of the activity then I would simply let the courts decide.
Former Ontario Police Officer. Advice will become less relevant as the time goes by !


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Radar Identified
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Re: Representing yourself - the good, the bad and the ugly

Unread post by Radar Identified »

jsherk wrote:Again these are only my opinions and from my observations everybody I have seen in court representing themselves did not know the rules and incriminated themselves.
This is also true, and it does happen because people do not understand how courts work. Example: I was in court and watched two separate people drive the nail into their own coffins. The first got on the witness stand and admitted he was speeding, but he said it was "bulls***" because he was going down a hill and should be let off. (Most people did a facepalm.) The second, who was ticketed as a result of a collision, got on the witness stand and basically made the Prosecutor's case out for them. At a T-junction, trying to make a left turn, she pulled out and blocked the eastbound lanes waiting for the westbound lanes to clear... and got broadsided. She tried to argue that the Prosecutor, cops and everyone else in the court had it all wrong, and that what she did was perfectly legal. So yes, there is some validity to your statement about not testifying, unless you know what you're doing.
jsherk wrote:And of course you always have the option of hiring a lawyer or paralegal outright to represent you, because they at least know the rules of the game. However make sure you find one that has a record of actually winning!!!
I have occasionally used paralegals. *GASP* Usually I just deal with it myself but sometimes getting a pro involved is a good idea. Anyway, as far as a record of winning goes, the best thing to do is spend some time talking to them. Do they take you seriously? Do they spend time explaining stuff and listening to you? Are they professional, or do they come across like used car salesmen? Do they just tell you stuff because they think you want to hear it, or are they genuine? I recommend people look for three things: Professionalism, honesty, and attention to detail. I'm not aware where you can get a win-loss record, but those are your best indicators.
* The above is NOT legal advice. By acting on anything I have said, you assume responsibility for any outcome and consequences. *
http://www.OntarioTicket.com OR http://www.OHTA.ca


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