PART 3 YOUR DEFENCE

So far you have made pre-trial motions, attempted to stay the proceedings, and argued improper disclosure. You've tried cross-examining the witness to discredit them. If all that hasn't done the job, then this part will. It's time to mount your defence

The justice will now ask you if you have anything to say in your defence. She may even motion for you to take the witness stand. Before you get to this point, you should have a clear strategy in place: what you will say, when you will say it, and how you will say it.

To Testify or Not

There is a difference between testifying and arguing a point. Notice how the prosecutor doesn't testify? What she is doing is presenting arguments that you are guilty. The police officer doesn't make these types of arguments. Instead, he takes the stand and becomes a witness recounting the events of what happened: what he saw and what he did at that time you supposedly committed the offence.

You must understand this difference to be effective in court. When you testify, you are recounting your version of the event. You are your own witness. You can be cross-examined by the prosecutor.

When you make an argument as to whether you are guilty or innocent or make an persuasive point creating reasonable doubt, you are not testifying and are not subject to cross-examination.

For example, to fight a speeding ticket, you can get on the stand and testify that you were not speeding. The prosecutor can ask you questions about that. Instead of testifying, or in addition to testifying, you can make arguments that the police officer was not properly trained. You can cite case law, show examples of proper training procedures, etc. None of this is subject to cross-examination. You are making an argument, not recounting what happened that day.

You must decide which you want to do, testify or argue. You can do both. The only risk is that the prosecutor might trip you up and get you to convict yourself if you testify. If you have a reasonable version of the event that is more plausible than the police officer's, then testifying is the appropriate approach. However if you have nothing to add to the story, then you would be wise to concentrate on discrediting the evidence presented so far.

For example, if they said it was foggy and raining and you should have been driving much slower than the speed limit, you can present weather reports showing that the storm had passed, visibility was good and the road was dry. You can establish this without testifying about road conditions.

Your Notes

Before the officer testified, the prosecutor asked the court's permission for the officer to use his notes on the stand. If you decide to testify, you will face the same scrutiny. If you are relying on notes when you testify, the prosecutor will ask you a series of questions: Did you prepare your notes? Do they help you remember what happened? If the answer is "yes" then you can use them. If it is "no" you cannot.

The best approach is to cover the points above before you testify. Say "your worship, I have prepared notes of what happened that day. They are to assist me but I have independent recollection of the events of that day."

For example, you cannot read any part of this website on the stand. That is because you did not prepare the information and it is not in your own words. Testifying is about giving an eye witness account or an expert opinion that is your own. You can certainly use this website's information in court, just not on the stand.