Article: 19730101047


Part III:Your Day In Court
Cycle World
For two hours you have been sitting in a theater seat in the spectator section of the courtroom, watching a drama played before you as though you were the sole audience. The play is a slice of life, with no beginning and no end. Its characters are tragically real and human, and you can’t believe what is being said to them and by them and about them.
Richard Kalthoff


This Is It. The Showdown. You Have To Be Your Own Perry Mason. How Will You Prepare? What Are They Going To Do? What Will You Say? This Simple Trial Will Be More Excruciating, More Relevant, More Exciting Than Any TV Show You’ll Ever See.

Richard Kalthoff

Part III:Your Day In Court

For two hours you have been sitting in a theater seat in the spectator section of the courtroom, watching a drama played before you as though you were the sole audience. The play is a slice of life, with no beginning and no end. Its characters are tragically real and human, and you can’t believe what is being said to them and by them and about them.

One individual, an elderly man by the look of his thinning hair and pinkish skin, is standing a few rows in front, facing the judge. As the judge contemplates the shabby figure and pronounces admonition and judgment the old man nods as though in agreement.

Then you realize he has no control over his moving head. He is afflicted by a hidden ague that suffers him to seem in accord with his accuser. As he sits, you stare at the back of his neck, wishing to look at his face, and perhaps

through his countenance somehow perceive how a man of his years could now be playing on this miserable stage.

“The People versus Bill Biker. Bill Biker! Is Bill Biker in the courtroom?”

The sudden cue jerks you from philosophy to reality and you jump up, barking your knee on the seat in front. “Here! Here, Sir, Your Honor!” You step forward, as you have seen others do, through the little swinging gate where you stand behind a large, dark table, facing the judge.

The judge’s face is pleasant as he looks at you, then down at a sheaf of papers which he holds. “You are charged with violating Section 21950(a) of the Vehicle Code: failing to yield the right of way to a pedestrian in a crosswalk. How do you plead?”

You sensed before this moment that most of the quiet viewers in the spectator section were defendants, like you. Even the jury box had a double row of motley individuals led there by the bailiff when all other seats were filled. Now many of them are gone—fined, jailed, placed on probation, sent home or to the slammer to return another day for trial. The others seem to have no relationship to you....

“You are charged with being drunk in public....”

“You are charged with being under the influence of drugs....”

“You are charged with soliciting for the purpose of prostitution, how do you plead?”

“Not guilty.”

“Do you want a court trial or a jury trial?”

“Jury trial.”

“You do! That’s a dead-bang loser, as you’ll learn when you’ve been in the trade awhile....”

Everyone, even the bailiff and court clerk, is looking at you now.

“Well, young man, how do you plead?”

You realize that with one word and a few bills you can be free of this whole fascinating tableau—a scene that began suddenly one cool morning when you decided to ride your bike to work....

“I plead not guilty.”

The judge asks the next question methodically, automatically. You answer, “Court.” The judge states your trial date and courtroom, then the bailiff smiles and nods to you as though to say, “That’s all.”

For you the play, called “The Arraignment,” is ended.

When you signed the traffic citation giving your promise to appear at the time specified, you were promising to appear for arraignment. The arraignment is a formal court appearance for the purpose of informing you of your legal rights and of obtaining your plea to the charges on the citation. Appearing for arraignment is not necessary if you agree with the officer that you committed the violation and wish to “pay the ticket.”

In this instance, you appear at the courthouse and give the traffic clerk a number of bills for each alleged violation. The exact amount is set by a schedule made up by the court. This payment is called “posting bail,” because technically, you are still required to answer in court. However, once you have posted bail you may forget the incident, if you can.

If you have not appeared in court by the time of your arraignment, your bail is declared forfeited and becomes, in effect, your fine. You are now guilty of the charge and your driving record will show this as a conviction.

D. Merritt

If your citation shows more than one violation (each violation is listed separately by vehicle code section number), you may plead guilty or not guilty to each one, but you must inform the court of this at your arraignment. Forfeiting bail is an admission of guilt of all the charges on the citation. Once you have forfeited bail, you may have a specified time to appear in court to say you have changed your mind and wish to stand trial. The court, however, may deny your request and allow the forfeiture to remain a conviction.

The traffic arraignment may take place as above in a special courtroom interspersed between other various misdemeanor charges. Or the arraignment can be held immediately before the trial itself. In large cities like Los Angeles, arraignments are held in specified courtrooms, assembly-line fashion, with defendants queued up before the bench like children waiting for immunization shots. It always includes a statement of your rights—to counsel, to a public defender if you are indigent, to remain silent or to testify in your own behalf, to face witnesses against you and to cross-examine them, to subpoena witnesses and to submit physical evidence.

A subpoena is a court order to a person to appear as a witness at a trial. A subpoena duces tecum (love that Latin!) is an order to bring certain documents to trial with you. As a defendant you may tell the court at your arraignment whom you want subpoenaed. If the witness will not come willingly, a subpoena is necessary. But if he’s hostile to your cause, you probably won’t want to subpoena him. If he simply cannot get off work to appear in court, the subpoena orders him to do so, and his boss cannot punish him for obeying.

At the time of citing, the officer must give you at least 10 days to appear. You may show for arraignment at any time within those 10 days. However, if you cannot appear within the maximum time on the ticket, you must contact the court for a new arraignment date. Failure to appear is a separate misdemeanor charge. When he calls your name and hears silence, the judge issues a bench warrant for your arrest; and you become part of that electronic memory called Auto-Statis (see Part II).

Similarly, if you wish a continuance (a postponement of the trial date), you should appear in court before that date and make your request to the judge. He may respond favorably to an intelligent request based upon good reasons. If you wait until the day of the trial to make the request, it will probably be denied because of the inconvenience to witnesses who have appeared expecting the trial. The Constitution provides your right to a speedy trial. In California you must be tried within 45 days of arraignment if on bail, and within 30 days if in custody. A continuance beyond that number of days requires that you waive (give up) this right.

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Despite the perennial quiet of the courtroom and the solemnity of the proceedings, it is proper to ask questions in arraignment court before and after stating a plea. The amount of bail needed after a not guilty plea was a frequent question heard. Another was whether or not the fine could be deferred to a later date or paid in installments. This was sometimes permitted. Prompt answers sailed from the bench like punch lines, often with a bit of humor or irony designed, it seemed, to lessen the tedium. “I plead guilty, your honor, but I’d like to say something.”

“Go ahead,” says the judge, pleasantly. “I’d like to hear something.”

The defendant then recounts his tale of human fallibility, plot, fate, and circumstance that made him, indeed, a guilty misdemeanant, but repentant, sincere, better informed and now determined. He hopes for a lesser sentence as a result of his story. The judge is human. He listens. But he does not deliberate; he must get along with other cases. He sentences. But as a result of the defendant’s explanation, the judge may reduce his sentence or place him on probation.

In watching many pleas and a number of trials, I never got the impression that a defendant was jeopardizing his chances by saying all he wished to say. The opposite customarily prevailed. Judges frequently said, “Take your time.” “Do you wish to say anything else?” “Have you finished?” But dignity and respect are the vogue in the courtroom. The air is wet with decorum so that it touches everyone and makes emotion seem alienated, rather than merely prohibited. The calm, respectful voice is the one heard.

In addition to making a guilty plea and explaining the circumstances of the offense, three other pleas are possible: guilty, not guilty, and nolo contendere. (The latter three are the only formal pleas to a traffic charge. “Guilty with explanation” is legally a plea of guilty, commonly permitted for consideration of sentence.)

Immediately upon a plea of guilty, the defendant is sentenced. The judge has the defendant’s driving record (priors) before him, which he may use as a basis for his decision. In minor traffic matters this is usually a fine which the defendant immediately arranges with the court clerk to pay. Since bail has been posted, there is often an additional payment or refund.

The not guilty plea affirms your innocence and desire to use your right to a trial. A court trial means a trial before a judge only. He hears the evidence, conducts the trial, and almost always gives his decision immediately following the proceedings.

A jury trial may be held before 12 jurors or 6 only (in California), by stipulation (agreement) of both prosecution and defense (you). Whether to choose a jury trial can be a difficult decision. The jury trial is almost certain to take longer than one heard by a judge alone. Selection and instruction of the jury are necessary procedures. And, after the evidence is presented the jury must deliberate. In contrast, regardless of the complexities of a traffic trial, the judge seldoms takes the case under submission; that is, retires to consider the evidence and give his verdict later. He has heard countless other trials, and by the time the evidence is in he is ready to state his decision.

The additional time of a jury trial may necessitate another appearance in court, forcing another day off work. I witnessed a trial of four motorcyclists, tried together on the same charge, speeding, in which the six jurors deliberated for 48 min. without reaching a verdict. The judge said, “Well, I believe I’ll let you spend a few more hours on this.” He directed the defendants to return the following morning. The jury then deliberated an additional hour and a half before reaching its decision.

There are other disadvantages to a jury trial. You must present your defense to several persons rather than to just one, the judge. Technical questions of fact or of law are better understood by a judge. And you may wait longer between arraignment and trial if you choose a jury. Jury trials for traffic offenders on bail are placed last in order on the calendar after trials for those in custody and trials for more serious offenses.

However, a jury trial presents special problems to the prosecution, also. The prosecutor must convince all jurors of your guilt (for this reason it is to your advantage to have 12 jurors rather than 6). If after a reasonable time they cannot agree unanimously on a verdict, the judge will declare a mistrial. Then he can either order a new trial or dismiss the charges. Usually, he dismisses. Another consideration in your favor is that most jurors have received traffic citations, and though they try honestly to be impartial, they may be sympathetic to your problems.

I discussed jury trials for traffic offenders with Judge Charles S. Litwin, Judge of the Municipal Court of the Long Beach, California, Judicial District. Judge Litwin, a sharply dressed, white-haired gentleman of many years on the judicial bench, was firm in his opinion that “pro pers” (legally, in propria personna, one who represents himself in court) should not select juries for traffic cases. “It’s too complicated,” said the judge, “like asking the defendant to perform an operation on himself.”

The problems of selecting and examining jurors, of organizing and presenting evidence before a panel, of presenting a favorable appearance, and of summing up and arguing effectively involve techniques that are professional in nature. Attorneys who have had little court experience frequently do a bad job of pro pers before a jury, according to Judge Litwin. “In a court trial,” the judge continued, “I can frequently ask questions of prosecution witnesses, questions that the defendant does not consider. The question may or may not be helpful to his case, but if I believe it should be asked, I can do so. Before a jury I must remain silent for fear of appearing biased. The defendant is on his own.”

And if the defendant does not present his facts well, the jury may respond more to his appearance or personality than to his evidence. Yet, some pro pers, the judge reported, are very effective before a jury; thus, whether to opt for the jury or the court is a question relating to the circumstances of the individual case.

The plea, nolo contendere, is a great Latin phrase that means, simply, “No contest; I’m guilty, but I do not want anyone to use my guilty plea against me in a civil suit that may result from my actions.” As you know, if you crash into another dude, scratch his wheels, and break his leg, he’ll sue you for damages and vice versa. This legal action between two individuals for damages is a civil action called a “tort.” If your blowing a light caused the crash, a crime is also involved. A tort is a legal wrong committed against an individual. A crime is a legal wrong committed against the people of the state. Crimes may result in punishment (or instruction, as in traffic schools). Torts may result in damages (money paid). Torts are usually immensely more costly than minor crimes. Thus, if you believe that you were guilty of blowing the light, you may plead nolo contendere so that your admission of criminal guilt cannot be used against you in a civil trial. Both the prosecutor and the judge must agree to your plea of nolo contendere.

However, if your traffic violation did not result in injury to the person or property of another person, there is no purpose in a nolo contendere plea. And if you are involved in an accident for which you are cited or in which you may have committed a traffic violation, you need a barrister, not self-defense.

I observed many defendants lined up in Los Angeles Municipal Traffic Court plead “no contest,” believing this was the only way they might be allowed to state mitigating circumstances. This is incorrect. Those who plead guilty were allowed to warble their woe, as well. Most minor traffic charges result in one of these three pleas: (1) Guilty With Sad Story; (2) Just Plain Guilty, Your Honor; or (3) Hell No, I Didn’t Do It.


At your trial the evidence presented against you will come principally from one witness, the officer who wrote the citation. You have a constitutional right to face him (your accuser) in open court, and without his testimony under oath you cannot be found guilty.

If the officer fails to appear for the trial, you can request the court to dismiss the charges, since without the officer the prosecution will have no evidence against you (remember, the burden of proof is on the prosecution). The officer may have a valid reason for being absent; however, in such cases the court usually dismisses, feeling that the defendant and his witnesses should not be subjected to further inconvenience.

As stated in Part II, before the fuzz paints you red and curbs your bike, he has gathered his evidence against you. Technically, he has seen all the elements of the traffic offense in your actions. The elements of a crime (called the corpus delecti, or “body of the crime”) are those essential acts and conditions, all of which are necessary for the crime to have taken place. If one or more elements are absent, no crime has occurred.

You are charged with violating section 21950(a) C.V.C. (California Vehicle Code). What are the elements? For $1 the Department of Motor Vehicles has sold you a copy of the vehicle code. You read section 21950(a). This law reads, “The driver of a vehicle shall yield the right of way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection, except as otherwise provided in this chapter.” Sorted out, the elements look like this:

1. You must be a driver of a vehicle

2. and fail to yield the right of way

3. to a pedestrian

4. crossing the roadway

5. within a marked crosswalk

6. or within any unmarked crosswalk at an intersection.

Now, having read the section, you must define its terms. Through the index you find that “driver,” “vehicle,” “right of way,” “pedestrian,” “roadway,” “crosswalk,” and “intersection,” are all defined. You look up their meanings.

All seem clear to you except one. “Right of Way” is defined as, “the privilege of the immediate use of the highway.” You guess that this means if both you and the pedestrian want to use the highway at the same place at the same time, the pedestrian goes first. But, that’s the point! You weren’t close enough to him for both of you to be in the same place at the same time. Should you have stopped at the crosswalk and waited for him? This does not seem reasonable. But if it’s true, you’re dead.

When you cycle down to the county courthouse to post bail, you visit the law library maintained there for public use. You ask for a copy of an annotated vehicle code. The librarian gives you one of Deering’s or West’s codes that contains section 21950. The annotated code contains the law as written in the vehicle code, plus judgments handed down in specific cases by courts in both civil and criminal trials of varying circumstances. These decisions are called “case law” and are based upon the legal principle of stare decisis which states in effect that a decision of a competent court “is itself evidence of the law until changed by competent authority.” Thus, case law serves as a precedent for all subsequent, similar cases. The individual is thereby assured that interpretation of the law will not vary from court to court. Is there case law that bears upon your problem of right of way?

On page 158 of Deering’s California Vehicle Code, Annotated, you find the following decision: “Defendant is not negligent as a matter of law in driving vehicle into intersection at any time while plaintiff is in crosswalk, since questions of right of way arise between two users of the highway only when there is danger of collision if both proceed on their respective ways without delay ” (emphasis mine).

So you now have a legal decision on which to base your defense. You conclude that one of the essential elements of the violation was missing, namely the matter of right of way. It doesn’t matter that the pedestrian was in a marked crosswalk; that’s only a part of the crime. All the elements must be present.

Shouldn’t the judge know this case law? He may. He probably does. But decisions are handed down every day, mimeographed, and sent out to courthouses throughout the state. The judge can’t know them all. And if you quote him something new, he’ll doubtless be happy to hear it. Certainly he’ll be impressed with your homework. Harvey Ginns, a Deputy City Prosecutor who prosecutes traffic cases, told me that most do not read the law they are accused of violating. If you have studied the case law as well, you’re sure to be ahead.

I caught Municipal Court Judge Thomas Zeiger just after he instructed the jury on a trial for a possible left turn violation. He invited me into his chambers while the jury deliberated. Judge Zeiger, an extremely pleasant man, had been a prosecutor for 18 years before assuming the bench. He talked amiably and considerately of the problems of the pro per.

“All the defendant really needs to do,” said Judge Zeiger, “is come in and tell his story.” But his chances are immensely better when he is well prepared. “Preparation is everything,” said the judge. He went on to compare the police officer, who is usually the only prosecution witness, to the defendant. The police officer is a professional, with a professional’s expertise and courtroom experience. The prosecutor is a trained attorney and courtroom expert. But the defendant may never have been in court before.

“It is my moral as well as legal obligation to uphold the defendant’s rights,” said Judge Zeiger. “Therefore, when an officer is on the stand in my courtroom, I expect him to be sharp. If he’s not, if he shows the smallest factual error or doubt in his judgment, I find the defendant not guilty.”

Your problem, now, is to show such doubt or error of judgment by the officer over the matter of right of way. How can you do it? You need facts.


You return to the scene. You make notes, take measurements, remember where the pedestrian was when you first saw him, what direction he was walking, and in what lane you were riding. Where was the cop at the time? Was he in a position for a clear view of the entire area? Were there obstructionsbuildings, shrubbery, signs—that could have obscured his view? What were traffic conditions? Lighting? Weather? You may want to take photos or make diagrams, all of which can be used as evidence (subject to the consent of the prosecution). Every bit of information gathered should be focused on the one point on which you will base your defense: the question of right of way.

After this observation and a few simple calculations you find that at the moment you were first able to see the pedestrian he was far from your course of travel. To collide, he would have had to break into a run or you would have had to slow drastically. The fact is that both of you continued at your normal rate and did not conflict.

The officer made a mistake in interpreting your acts. Why? Now you try to look at the area from the point of view of the cop. Where was he? He had to be > within a certain radius of the scene to see anything. Where are the places where he could not see all the essential acts? You mark these in your notes. If you know where he could not have been and you have photos or diagrams to illustrate, you may be able to discredit his statement as to what he thought he saw. Discrediting the officer’s testimony on points of fact, so as to raise a reasonable doubt, is the name of the game.

As a basis for your defense you now have much objective material to use as evidence.


Court procedure in a criminal trial is the same, whether for a traffic pop tune or for a murder symphony. The fundamental principles are well founded in the law and are uniform throughout the United States. As stated above, the burden of proof is on the prosecution, who must prove the defendant guilty beyond a reasonable doubt.

I heard “reasonable doubt” defined to many jurors, read word for word by judges as follows: “Reasonable doubt does not mean a mere possible doubt, because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.” The accused need do nothing—not testify, not present witnesses, not make any defense if he so desires. The state must prove him guilty.

The prosecution presents its witnesses and exhibits (physical evidence), as ¿loes the defense if it wishes. The evidence must be factual, but may include opinion given in court by witnesses previously qualified at the trial as experts. This testimony given under oath is called evidence. The judge conducts the trial so that the evidence is lawfully presented. Then the judge (in a court trial) or the jury decides the truth of the evidence. Statements by the attorney and by the judge and all other statements not made under oath from the witness box are not evidence and cannot be used to determine guilt or innocence.

The people get the first and last word. To begin, opening statements are made by the prosecution and the defense. These are an informal summary of what each expects its evidence will prove to the court (or jury) through the course of the trial. Usually, opening statements in traffic trials are waived by both parties, and the prosecution is asked to present its case.

The officer who cited you is called to the stand, where he is sworn, sits, identifies himself, and states that he was on duty on the date and place in question and that he wrote the citation (now called the “complaint”). The prosecutor says, “Officer, will you kindly tell the court the circumstances of that citation?” This is called direct examination.

The cop tells what he believes you did and what he did, matter-of-factly. He uses that stilted legalese that policemen believe makes their testimony more formal, acceptable to the court, and accurate: “I was able to observe...” “I positioned my vehicle...” “The defendant related to me that he...” “I activated the red spot light....” While he testifies, you take notes, perhaps just by checking those items that you intend to ask him about during cross-examination.

During direct examination you can object to a question which you believe does not bear on your alleged violation. However, in watching many trials I heard few interruptions by defendants for that purpose. The judge usually assumes the task of excluding testimony that a defense attorney would deem inadmissible.

Defendants often interrupt, however, to argue with the officer about a statement he has just made: “You know you weren’t in the number two lane; I saw you in the number four!” The judge quietly and firmly cautions the defendant, telling him that he will get his chance to testify, and later to argue after the conclusion of all testimony.

When the prosecution’s direct examination is concluded, you have the opportunity to cross-examine the officer. Technically, you are permitted to ask only those questions which pertain to his direct testimony. But, again, the judge usually overlooks your technical errors, as does the prosecutor who feels that if he objects, the court or jury may feel that you, as a layman, are not getting a fair shake. You begin your cross-examination.

A wee voice in your skull says, “The important element is right of way: the purpose, to discredit the officer’s testimony on this. ” But first, you want to shake up the troops a little, if you can. Your first question on cross-examination is, “Officer, will you please tell us the elements of Section 21950(a) of the California Vehicle Code?”

There’s a good likelihood that the guy who cited you is Officer Smart. But there’s a chance you have drawn Officer Slovenly who is six months from a pension and hasn’t been asked this question since motorcycles had gearshift levers. If so, you will see a slight rumble in the witness box. And you can watch the judge’s eyebrows rise as he looks that way. If the fuzz can’t recite the elements clearly and flawlessly, you include the fact in your final argument.

Of course, the first question the prosecutor will ask you after your testimony will be the same: You tell us the elements. But then, you know the elements, don’t you?

Under direct examination the officer has said that he saw the pedestrian, and that the pedestrian had to slow or stop to permit you to pass. But you have a diagram, made at the scene. It shows the intersection in full, the traffic lanes, the crosswalk, the center divider. You have marked the pedestrian and his direction of travel. Your bike is drawn into position in the proper lane. You have measurements and directions clearly marked.

You ask the officer to draw a diagram on the chalkboard. Every courtroom has one, complete with little cars, lane markers, etc. Where was he? Where was the pedestrian? Where were you when he first saw you? How many feet from the near crosswalk line? How fast were you driving? How does he know—a guess? How fast was the pedestrian walking? Was the pedestrian old, young, a child? What was the width of the street? What were the physical conditions—shrubbery, trees, buildings, other traffic? What was the officer doing immediately before citing you? Had he been on duty at a traffic accident that morning? When had he last seen a pedestrian struck by a vehicle? Has he ever been struck himself, or had a relative injured by a vehicle?

As the officer answers and gives testimony contradictory to your information, you must resist the temptation to argue with him. Your purpose is to get facts that you need and to make him show hesitation, doubt, or contradiction as to the facts which he stated under direct examination. If he gives evidence opposing yours, OK. You will get your chance on the stand.

So far we have heard direct examination and cross-examination. Now comes re-direct (if any) and re-cross-examination. There will be re-direct examination if the prosecutor wishes to bring out additional facts.

After re-cross-examination, the prosecutor will say, “The people rest, Your Honor.” The judge asks you if you wish to testify. You do. You walk to the stand and are sworn.

The judge looks at you pleasantly and says, “Go ahead. Tell us what happened.” You have notes with you, but you are not permitted to read. Evidence must come from memory under oath, not read from a script prepared outside the courtroom. You can glance at your notes from time to time.

You state the facts as you know them—facts now, not opinion or argument. You state that you were southbound on Main St. in the number two lane at approximately 30 mph. When you were about a half a block away you saw a pedestrian in the number three northbound lane walking west from the east curb. You state that since the citation was issued you have returned to the location and taken measurements.

You found that at the time you saw the pedestrian in the crosswalk you were approximately 180 ft. north of the near crosswalk line. You show this location on the officer’s diagram on the chalkboard, and you show the prosecutor and the court your diagram made at the scene. You also show the court some photographs you have made.

You state that the pedestrian appeared to be a middle-aged man. He walked at a normal rate. You found that Main St. at that location was about 90 ft. wide with three traffic lanes and a parking lane in each direction. There was also a center divider planted with palm trees spaced about 40 ft. apart.

Your course was approximately 20 ft. from the west curb; and when you saw him, the pedestrian was about 20 ft. west of the east curb. You state that the pedestrian continued walking and you drove onward at your steady rate. When you entered the crosswalk the pedestrian appeared to have reached the center divider. You continued driving until stopped by the officer. You had seen no possibility of your hitting the pedestrian.

“Cross-examine,” the judge tells the prosecutor. The prosecutor leans back in his chair, casually, and stares at the yellow pad on the table in front of him. He has the pencil pointed at some item on the pad. He doesn’t look at you as he says, “Exactly how far away were you when you saw the pedestrian?”

Of course, you don’t know exactly, and you repeat that you believe you were about 180 ft. away. Then the prosecutor continues, professionally but not too professionally, to discredit your testimony. “Well, now, you must know...” “You’re familiar with that street, aren’t you—you go to work on it every day: How far...T’ “How do you know you were going 30 mph...?” “Has your speedometer been calibrated...?” The prosecutor is trying, subtly, he hopes, to rattle you. But you pause before each answer every time, so that he cannot build up momentum and zap you with the key question he has been waiting to ask all along. If the prosecutor is too aggressive, the judge will intervene, “Counsel, I suggest you get to the question....”

In the trials I observed, defendants often jumped into the prosecutor’s mind, as though they knew what he was driving at, and in response to his questions spewed out a gusher of testimony that did nothing but hurt their cases, according to the prosecutors I interviewed. On the stand, a witness should answer the question in as few words as possible and shut up. Facts, not argument, is the drill. Facts.

Defendants often believed, also, that they were taking too much time. You can have a year if you need it. There is no need to hurry through any part of the trial.

After the prosecutor’s cross-examination, you can give re-direct examination, presenting facts which tend to rebut statements brought out on prosecution’s cross-examination. After your re-direct, comes re-cross.

Then the judge says, “Do you have any other witnesses?” You answer no. “Any other evidence?” No, just the photos and diagram you have already shown them.


Your course is set. You’ve punched 4th, laid the bike over, cranked in enough throttle, and set up your drift. Things seem to be holding well on this final lap. But the race is not over. Entering the backstretch, the prosecutor has a wheel on you and he’s on the inside—he gets to argue first.

Arguments are solo performances made to the court (or the jury) and designed to convince the court of the truth of the evidence. In most traffic cases the prosecution’s final argument is brief, if he uses one. Often, he waives final argument. In your case, the prosecution will probably work at it a bit; he respects your presentation. When he has finished, you argue.

You tell the court that on the basis of your memory, your observations at the scene and your calculations, you could not have come into conflict with the pedestrian. Now, you mention your case law. You read the decision and state its source. You emphasize the need for a “possibility of collision.” You say that at the time you saw him he was 50 ft. from your course, walking at a normal rate, perhaps 3-4 mph. You were 180 ft. away driving about 30 mph.

Since 30 mph is approximately 45 ft. per second, you reached the crosswalk in 4 seconds. To collide with you, the pedestrian would have had to walk 50 ft. in 4 seconds. He could not have done so. Both you and the officer stated that he continued at a normal rate. In four seconds the pedestrian could have walked no more than 25 ft. This would have placed him at the center divider, exactly where you saw him as you entered the crosswalk.

(Continued on page 106)


Continued from page 65

You further argue that the officer testified that he had investigated a pedestrian accident only the day before, at another location, where the pedestrian was badly injured. You believe the officer could honestly have been moved by that incident so as to affect his judgment in this case in favor of the pedestrian. You repeat his testimony which you brought out under crossexamination that there was at least one palm tree between him and his view of the pedestrian during the time that this entire incident took place. You ask for a verdict of not guilty.

Now you have a wheel on the prosecution. But the people get the final word.

The people argue again and attempt to rebut your defense. They try to out-drag you to. the final wire. Then the people rest.

In a few moments, with or without comment, the judge waves the checkered flag.


Fifty-five in a 25 sounds bad, doesn’t it? Like about 50 clams. Add a school zone...while school children are walking along the sidewalk...through two specially marked school crosswalks...after complaints made to the police by school authorities of speeding in the area. It now sounds like 50 clams, a six month’s supply of toothpaste, and a license suspension for 99 years.

I watched as the defendant got off scot free. He never testified. He didn’t need to. The judge interjected a technicality and dismissed the case. He read section 40800 C.V.C. to the prosecution and defendant. This law states that every officer on duty “for the exclusive or main purpose of enforcing this code shall wear a distinctive uniform, and if the officer...uses a motor vehicle, it must be painted a distinctive color....”

The cop who cited the young defendant was a juvenile officer, wearing a business suit, and driving an unmarked police car. The judge ruled that since the officer was there in response to a traffic complaint, he was on duty for the “main purpose of enforcing” the vehicle code. If he had been there, the judge said, on a narcotic complaint, had happened to see the traffic violation and had written the citation, the ticket would have been good. A wavy spoke in the wheel of justice. And the defendant was elated that he had plead not guilty.

Other provisions of the law can also be used by a defendant in his search for fairness. To avoid having to stand trial > in the boondocks where he may receive what has been called “cow county justice,” a citizen may demand that the arresting officer cite him to the county seat (in California). Otherwise, he usually will be cited to the justice court having jurisdiction in the area of the bust. Or, at the time of his arraignment, the accused can notify the court that he wants his jury trial to be held at the county seat. The request must be granted.

Another option is selection of a judge. At the time of trial, when his case is called, the defendant can request a different judge without giving any reason for doing so (this is called a “peremptory challenge”). This request also must be granted. But if he does not like the second judge, he must challenge “for cause,” that is, give good reason. This peremptory challenge is known in legal circles as, “laying the paper on the judge.”

In his defense, the accused can take advantage of other technicalities. Every sign, signal, and marking; every traffic device; and all the other myriad bits and pieces that are strung out along a highway to aid traffic must be working properly or you need not obey them. If a stop sign is obscured by a tree limb, shot full of holes, or axed by Herbie’s hatchet, you can legally disregard it. But judges take “judicial notice” (acceptance without proof) of the fact that a traffic device has been legally installed. You must give evidence of its faulty condition.

In addition, officers occasionally make technical errors on their citations. Simple mistakes such as the year model or color of the vehicle are not cause for dismissal. But if he has written the wrong vehicle code section for the offense charged or has made a serious error of fact—such as entering the speed limit as 25 when it is, in fact, 35 —the case will almost always be dismissed. These errors can be corrected before trial by amending the complaint (in which case you will receive notice in the mail); but if the case gets to court before an amendment is made, the judge will dismiss. At the time of your opening remarks you can request the dismissal, stating your reasons.

After his careful preparation and trial, can a convicted traffic violator get an appeal to a higher court? Though legally possible, it is very seldom done in minor traffic cases. It is complicated and is best handled by an attorney. We’ve already discussed the appetite of the legal profession. Pass, on the appeal.


Effective and thorough citation defense requires far more information and technique than we’ve been able to cover here. The writers and administrators of the law are professionals trained and versed in the law’s theory and practice. The average traffic violator pumps gas, teaches English, works with hand tools, or delivers babies. And traffic law violations are crimes: public offenses against the people of the state.

(Continued on page 108)

Continued from page 107

In the great hall of legal philosophy running a stop sign has some kinship, however remote, to murder. Thus, the administration of the traffic law is an adversary proceeding from citation to verdict. For some time a current of thought has been running that regardless of its value in the adjudication of other human events, the adversary procedure is inappropriate to traffic law administration. Surely, the accused traffic violator who wishes to defend his acts finds himself embroiled in the same complex technicalities as does the indicted felon. So long as this legal practice exists, citation defense will be the task of the underdog despite the mitigating informality of the traffic courtroom.

In my research for this article I was immensely impressed with the philosophy and administration of the Juvenile Traffic Court system for the County of Los Angeles, California. Raymond Tauber, Assistant Supervising Referee of the Juvenile Traffic Court, took me step by step through their procedures. The constitutional rights of the accused juvenile are upheld in a legal but informal hearing with a referee, a parent, and the citing officer present.

They sit together and discuss the event with a minimum of formal language or procedures. Afterward, the hearing referee (commonly called hearing officer) gives a decision that the alleged offense was or was not committed. In affirmative, he takes action motivated by the juvenile’s personal welfare and the safety of the motoring public at large.

Tauber said, “It is the duty of the hearing referee to protect the juvenile.” The juvenile courts seem to be doing now what Municipal Judge Litwin hopes adult courts will do in the future. Judge Litwin told me, “The only purpose of adult traffic courts in administering minor offenses should be highway safety.”

The Day of the Dummy in law enforcement is past. Traffic officers are held to higher standards now than ever before. Well-meaning, clear-minded individuals throughout the administration of justice are taking a larger view of traffic problems suitable to the indispensable mobility of a burgeoning society. Traffic justice is improving. And the freedom loving motorcyclist is the logical one to help lead the way. [§]