Yeah, what you have right here is your classic kangaroo court.
December 13, 2007 7:37 PM   Subscribe

Multiple requests for dismissal in a trial I just took part in were denied, even though they seemed to be extremely basic and logical. Do I have any recourse?

I received a speeding ticket in November for traveling 36 miles per hour in a 20 mile per hour speed zone. The area this ticket was given in has extremely exorbitant fines and I don't believe I am guilty of this crime.

I examined case laws and how court proceedings should go in these instances, and I thought I was extremely well-prepared for this case. I went in for my trial this evening and I felt that the "impartial" judge had a blatant disregard for the law and legal precedent.

The first sign of trouble came when I pointed out to the judge that there was no prosecutor present and asked him if he would be serving as prosecutor. Of course, based on the US Constitution, a judge cannot act as both a prosecutor and a trier of facts in the same trial. He said that no, he was not acting as prosecutor, but that the police officer who issued my citation was. I immediately asked for dismissal based on the fact that the officer could not be prosecutor and witness in the same trial because she would be questioning herself. From everything I read before the trial, this is a very obvious and standard legal precedent that any judge should agree with. He denied my request for dismissal without any reason, and because I had chosen not to testify, he said I could not speak other than to cross-examine the officer.

I was puzzled, but I moved on, hopeful, because I had prepared a layered defense. After the officer gave her testimony, it was clear that she did not recall me personally from any sort of independent recollection, as she had to refer to her notes for details, and she completely overlooked a rather memorable incident that occurred at the same time of the citation. I pointed this out and asked for dismissal based on lack of independent recollection. Again, I was denied without reason.

I should also say that this officer seemed completely clueless about radar, and she had no idea that they had to be calibrated at all. She did not even know what audio Doppler was. After I grilled her, she claimed in her testimony that the self-test when the radar was turned on was enough to calibrate it. Even knowing that the self-test only checks circuitry and not accuracy, I could not make any statement to this effect because I was not giving testimony.

Again I trudged on. All the case law I had read claimed that it was an widely-recognized precedent that radar units must be tested with external means (tuning fork, frequency beat oscillator, etc.) before and immediately following a reading in order to be considered accurate to a legal degree of certainty. The officer had already stated that evening that the radar units were only tested internally, and only at the beginning of the day. I asked her this again and she again confirmed this fact. She also could not produce evidence after questioning that the radar units were calibrated at all. Again I asked for dismissal, this time based on a complete lack of evidence. Once again, denied by the judge.

After this I was starting to get the idea that this judge really didn't want to hear what I had to say and instead was going to say whatever it took for me to pay this fine. I gave a rather well-thought-out (I thought so, anyway) closing argument, hoping that this would finally sway him. Without much in the way of explanation, he found me guilty. He asked if I wanted to take traffic school and I told him no, that I would be appealing his ruling.

I'm in Tennessee. This ruling was made in a very, very small town, in what I can now see was a classic kangaroo court. I feel that I accurately presented my case, and I feel that the legal precedents and even the Constitution was ignored in my case. Heck, after I left the courtroom, two police officers advised me to appeal because they said I had an "excellent cross-examination."

So, short of taking this thing to an appeal trial, which will likely cost more than just paying the fine, do I have any routes of legal action to take considering this judge outright ignored the law? I mean, when I had two police officers, one of which who said he was in charge of radar for this town, tell me my case was good, what can you say? I know most of you aren't lawyers, but is there something else I should know here about what my recourse is? If I do appeal this and post the bond on my warrant, do I get that back after the trial? What can I do here?
posted by joshrholloway to Law & Government (38 answers total) 5 users marked this as a favorite
 
Look, traffic court isn't an episode of Law and Order. The more humble and contrite you can be, the better off you will be fighting a ticket. You were apparently clocked going almost twice the speed limit, so even if you could prove faulty radar, it probably isn't that much off. You might be able to go to traffic school to keep the points off your license, but you will still have to pay the fine and your insurance company can still see it when they renew your policy.
posted by 45moore45 at 7:43 PM on December 13, 2007 [1 favorite]


Traffic court is usually a sham. Tickets get rubber-stamped unless there is a flagrant violation of the law. Sometimes that isn't enough, and you have to pay anyway.

You probably have great grounds for an appeal. Do you think it is worth it?

IANAL, but I have represented myself in traffic court.

Judges don't want to end up in traffic court. That should tell you all you need to know.
posted by bh at 7:57 PM on December 13, 2007


FWIW, I was in traffic court in VA once and the judge asked the officer in every speeding case if the radar gun was calibrated after each ticket, which sounded weird to me, but there you have it.
posted by 4ster at 7:59 PM on December 13, 2007


Without meaning to snark, at all, a lot of attorneys lose their first case.

That's the main reason for hiring attorneys with more trial experience than you have, to represent you. If you're even thinking about an appeal, take the lesson you've learned, and hire an experienced, licensed attorney to advise and represent you. And then proceed exactly as you're advised.

Going to appellate court on Internet advice, and no procedural experience, is worse than a mug's game.
posted by paulsc at 8:11 PM on December 13, 2007


You broke the law, it sounds to me like justice has been done, no matter how incompetent (and frustrating) the judge may have acted. Be a good citizen and don't waste the tax payers money fighting to get out of something you deserve.
posted by parallax7d at 8:21 PM on December 13, 2007 [1 favorite]


I received a speeding ticket in November for traveling 36 miles per hour in a 20 mile per hour speed zone. The area this ticket was given in has extremely exorbitant fines and I don't believe I am guilty of this crime.

Are you nuts? You are certainly guilty. "Calibrated" or not, radar guns can't be that inaccurate or they woulda been thrown out of court last century.

After this I was starting to get the idea that this judge really didn't want to hear what I had to say

I think there's probably nothing more annoying to a judge than someone who's not a lawyer trying to sound like one ... I don't think you played this well, sorry. The one time I've been to court, I lawyered up, and my atty spent most of his prep time with me telling me to act meek and polite and shut up unless directly questioned. You should suck it up and slow the hell down. You should especially never speed in an area zoned so slow ... you're begging to get busted. Sorry.
posted by Camofrog at 8:33 PM on December 13, 2007 [1 favorite]


Pay the fine, keep the rest of your dignity. It's a traffic ticket, not A Few Good Men.
posted by lockestockbarrel at 8:39 PM on December 13, 2007 [1 favorite]


All the case law I had read claimed that it was an widely-recognized precedent that radar units must be tested with external means (tuning fork, frequency beat oscillator, etc.) before and immediately following a reading in order to be considered accurate to a legal degree of certainty.

Sorry, that's also crazy. You mean if a cop reads you at twice the speed limit she's supposed to pull you over and whip out a tuning fork, oscillator, flux capacitor, and whatever before writing you a ticket? Where the hell did you read this stuff? Also, cops pull over a couple of dozen people a day, and you expect her to remember everything that went down with you two months ago? To you it's a big deal, to her another schmoe bewteen her and her next donut.

Life lesson: cops and courts are not your friends and will brook no foolishness.
posted by Camofrog at 8:43 PM on December 13, 2007


It sounds to me that you're just mistaken in your legal conclusions. As a matter of law, radar units really don't have to be tested in the way you're saying, and as a matter of law, you're not entitled to a non-witness prosecutor in a traffic case. Neither of these points surprise me in the slightest.

If you want to show me what you were relying on, I'd be happy to tell you where you went wrong.
posted by "Tex" Connor and the Wily Roundup Boys at 8:51 PM on December 13, 2007


Camofrog, you are completely incorrect on that count. In every single instance I've been stopped for speeding, the radar gun has been off by at least 5 mph (as measured by my GPS, which I happen to have been using in every instance when I have been written a ticket), even when they've been calibrated that day. Temperature and atmospheric conditions can cause surprisingly large variations in their readings. Combined with parallax issues, radar is not to be trusted in the hands of uncertified officers.

If that wasn't bad enough, there's literally no way to tell what exactly the radar decided to clock. It could be the fan in the officer's cruiser. It could be a truck a quarter mile away. It could be the door opener at the supermarket down the street, which happens to use the same band as many radar units, which can cause spurious readings, even when there are no vehicles present at all.

Laser isn't so bad, sadly. Luckily, nobody is really interested in prosecuting a speeding ticket, so it's pretty easy to plea bargain to something that won't show up on your driving record in most jurisdictions. I've always done that, because I've never run into an instance where they won't be happy with $100 to $150.

To the OP: I don't know about Tennessee, but in Arkansas, if you are found guilty in municipal (district court now, I guess) where there is no jury, you have the right to a trial de novo in circuit court, either with a jury or not, your pleasure. It's not an appeal, it's a new trial. The good thing about that is that you didn't shoot yourself in the foot by representing yourself, since the original trial has no bearing on anything in the new trial.

Many of my clients are attorneys who deal with traffic tickets on a regular basis. (among other things, of course!) It's usually DUI, but they'll deal with anything. They all charge a flat fee on tickets, and for anything that's not reckless driving or DUI, their fee is almost always cheaper than the normal fine, although it's always possible you could end up paying both.

Anyone advising you to just pay a traffic ticket is an idiot, even if you are actually guilty. Personally, I couldn't care less about the fine, I care about the insurance. I've had a clean record all of my driving life and I intend to keep it that way.
posted by wierdo at 8:59 PM on December 13, 2007


I realize now that this probably wasn't the best place to post this... but I feel this probably irrational need to defend myself against the naysayers:

1. A charge of speeding is like a charge of stealing or a charge of murder. If I'm charged with stealing a DVD player, if a prosecutor proves that I stole a leather jacket, it's irrelevant. Yes, I was stealing, but they didn't prove that I stole what they said I stole. If I'm charged with killing Joe and they can prove that I killed Fred, in that particular case it's irrelevant. Same if I'm charged with going 36 miles per hour... it's a specific charge of going specifically 36 miles per hour and if they can't prove that beyond the shadow of a doubt that I was indeed going 36 miles per hour then they have no case.

2. Legal precedent in many cases have shown that radar units need to be calibrated with some sort of external device at a reasonable time before a citation and after. What you think is common sense may not be supported by law. Refer to Minnesota v. Gerdes, Wisconsin v. Hanson, and Connecticut v. Tomanelli for case law on this issue.

Geez, I feel like I'm still on trial here.
posted by joshrholloway at 9:01 PM on December 13, 2007


Wow, do I get to be the first to tell you to get a lawyer?
Seriously, though, if I were you, I'd find myself a lawyer admitted to practice in Tennessee who has expertise in traffic tickets. You're not committing yourself to anything, just ask for a free consultation. An ethical lawyer (no jokes about that, please) will let you know what your options are, even if they don't involve hiring him/her. They will also know if the practice wierdo refers to, about getting a de novo trial, applies in Tennessee.
I agree that you shouldn't just pay, especially if you don't think you did what they accused you of. The government has a responsibility to meet its burden of proof, and you have every right to make them show their case.
posted by katemonster at 9:27 PM on December 13, 2007


Same if I'm charged with going 36 miles per hour... it's a specific charge of going specifically 36 miles per hour and if they can't prove that beyond the shadow of a doubt that I was indeed going 36 miles per hour then they have no case.

Suck it up. You were speeding, yeah? You're trying to get off on a technicality, which while according to the letter of the law may be fine, it absolutely violates the spirit. Pay your fine, learn your lesson, lighten up on the gas pedal.
posted by dirtynumbangelboy at 9:28 PM on December 13, 2007


Refer to Minnesota v. Gerdes, Wisconsin v. Hanson, and Connecticut v. Tomanelli for case law on this issue.

Yes, but what do Tennessee courts say about the admissibility of radar evidence? That's what you should be concerned about; these cases from other jurisdictions are persuasive at best. The first two are not on-point from my skim, and the third talks about the calibration of radar equipment with tuning forks from 1965. Surely, a court would not apply this to current technology.

If you'd like to appeal, I'd suggest contacting an attorney or even a law student on break to help you with further research within your jurisdiction.
posted by non sum qualis eram at 9:42 PM on December 13, 2007


Geez, I feel like I'm still on trial here.

And something tells me you don't mind a bit.

Shutting you down probably made their day. It didn't hurt that you were guilty.

For future reference, the way to get out of a traffic ticket in court is to act incredibly humble, to say you don't know how this happened, you're normally very careful, and to apologize for taking up everyone's time. It helps if you can cry a little.

It's theatre, you have a role to play, and if you get all your lines right, they'll often go to surprising lengths to help you out. If you call "line" or miss your cue, the audience gets restless. If you wade onstage midshow and begin directing, you get booed out of town. That's showbiz.
posted by hermitosis at 9:55 PM on December 13, 2007 [2 favorites]


Tennessee municipal court judges are just local lawyers who ran for office. They're not always experienced jurists. As weirdo suggests, in Tennessee as in Arkansas you can demand a new trial in circuit court.

You might enjoy Oak Ridge v. Brown, in which the Tennessee Court of Appeals remanded a case back for retrial to a muncipal court in a speed-trap town whose judge had forbidden a driver's argument that the posted speed limit she had exceeded was lower than federal guidelines allow, and wrote "It is axiomatic that a defendant has a right to attempt to prove a properly-asserted, legally recognized defense to an action asserted against the defendant."
posted by nicwolff at 9:55 PM on December 13, 2007


In almost every state, driving at any rate of speed above the speed limit but lower than you were charged with is a lesser included offense. That is to say, if you were charged with 36 in a 20, you can be convicted of that, or of 35-20, 34-20, etc. all the way down to 21-20. Yes, 21 in a 20. It is speeding.

Even if you were able to get the radar reading ruled inadmissible, you would still likely be found guilty of speeding. There is probably even an "exceeding the speed limit" charge in your state that would mean the judge would only have to believe beyond a reasonable doubt that you were speeding at all.

Now, of course, an officer does not even have to have a radar result to charge you with speeding. She can pace you. She can look at your car and estimate the speed. She is trained to do so.

When you make an argument in a lower court that can be made in nearly every single case (as you did in this case), you will never win. Why? Because if you are not guilty, then everyone is not guilty. The judge certainly does not want to set such a precedent.

That being my explanation for what happened, I shall now offer you advice: get a lawyer.

I happen to be a lawyer who handles lots and lots of speeding tickets. Call a lawyer and ask the lawyer what she can specifically do for you. It's not like asking the lawyer what she can do with a bank robbery -- she will know exactly what the outcome of your 36 in a 20 will be before she even looks at your ticket.

If you do continue to appeal to the point you have a jury trial as an option and you request a jury trial, your case will be dismissed. There is no prosecutor alive who is going to waste that much taxpayer money on a speeding ticket. You may have to hang in there for a while. Your case may be continued many times over. But there is no way the prosecutor will try a speeding ticket in front of a jury. If you have that much time to devote to it and that kind of obsession, then go for it. Otherwise, call a lawyer.
posted by flarbuse at 9:59 PM on December 13, 2007 [2 favorites]


A charge of speeding is like a charge of stealing or a charge of murder.

Except for the minor point that a conviction for stealing or murder can result in prison time (or even execution, in the case of murder). "Due process" doesn't identify a fixed set of procedural protections that are available every time the government seeks to deprive a person of life, liberty, or property. Instead, due process is satisfied if the proceeding is fundamentally fair, and fundamental fairness will rest on both the government's interest in the proceeding and the adverse party's. A person who risks being deprived of liberty for several years is understandably entitled to far more process than a person who risks being deprived merely of a few hundred dollars.

If I'm charged with stealing a DVD player, if a prosecutor proves that I stole a leather jacket, it's irrelevant. Yes, I was stealing, but they didn't prove that I stole what they said I stole. If I'm charged with killing Joe and they can prove that I killed Fred, in that particular case it's irrelevant. Same if I'm charged with going 36 miles per hour... it's a specific charge of going specifically 36 miles per hour and if they can't prove that beyond the shadow of a doubt that I was indeed going 36 miles per hour then they have no case.

As you discovered in court, this is incorrect. It doesn't even make any sense. If this were the actual standard, no speeding ticket would ever stick, since present technology can't distinguish between 36 and 37 miles per hour "beyond the shadow of a doubt." Anyway, the standard isn't "beyond the shadow of a doubt." It's quite possibly only "preponderance of the evidence."

Legal precedent in many cases have shown that radar units need to be calibrated with some sort of external device at a reasonable time before a citation and after. What you think is common sense may not be supported by law. Refer to Minnesota v. Gerdes, Wisconsin v. Hanson, and Connecticut v. Tomanelli for case law on this issue.

Those cases don't appear to be readily available online. Where did you find them? In any event, they aren't from Tennessee, and Tennessee law might vary.
posted by "Tex" Connor and the Wily Roundup Boys at 10:01 PM on December 13, 2007


Okay, so I may have made some legal assumptions that aren't true and been led in the wrong direction by some advice... but can someone at the very least answer me this definitively and with evidence to back it up:

I was told that in a civil or criminal trial, the prosecutor is not allowed to serve as a witness in that trial. Is this true? If it is true, then shouldn't this whole thing be thrown out due to the judge ignoring that fact? I have searched on Google and in some code and statue databases and can't seem to find it.
posted by joshrholloway at 10:18 PM on December 13, 2007


when I had two police officers, one of which who said he was in charge of radar for this town, tell me my case was good, what can you say?

I can say that they were laughing at you behind their hands. You probably are the best entertainment they'll get all month. They'd get an even bigger kick out of seeing you spend $1000 on an appeal and get shafted again.

You can't beat the Man. Pay your ticket and put it behind you.
posted by ikkyu2 at 10:28 PM on December 13, 2007


I think that at the level you had your trial, they can do virtually anything they want to do. Your liberty is not in jeopardy, and you have an automatic right to appeal. The court that you went to is basically just a sorting mechanism. It makes most people plead guilty and disposes of an enormous percentage of the cases without wasting real court time. It would not surprise me if the judge is very loose with the law in such a court. I have seen similar situations where there are basically no rules of evidence. If you want to get it in, it gets in.

This is justified because your liberty in part because your liberty is not really in jeopardy, but mostly because you have an automatic right to appeal to a different court. There is no harm to you, so there can be no foul.
posted by flarbuse at 10:29 PM on December 13, 2007


I was told that in a civil or criminal trial, the prosecutor is not allowed to serve as a witness in that trial. Is this true? If it is true, then shouldn't this whole thing be thrown out due to the judge ignoring that fact? I have searched on Google and in some code and statue databases and can't seem to find it.

The closest thing I can think of is that under common law, the prosecutor cannot testify to facts of which he or she has no first-hand knowledge. This is generally for cases when the police officer doesn't show up at the trial; the court will not allow the prosecutor to testify on behalf of the officer, even if he or she knows exactly what the testimony will be.

Also note that this is a procedural rule for civil and criminal trials, and doesn't necessarily apply to traffic hearings, where I don't think there is generally a prosecutor in attendance.
posted by non sum qualis eram at 10:37 PM on December 13, 2007


Oh, right, and IAN(Y)AL/TINLA.

Good luck!
posted by non sum qualis eram at 10:37 PM on December 13, 2007


Again, this all hinges on what TN law is, but:

-Prosecutors aren't involved in civil matters, only criminal matters, so there's no prosecutor to prohibit from doing anything.
-As a general rule no, the prosecutor in a *criminal* case cannot testify as a witness (there may be some limited exceptions.) Your case, however, is most likely not considered a criminal case for procedural purposes.

Most states have three classes of things-one-is-forbidden to do: violations, misdemeanors, felonies. (See the Model Penal Code for more detail.) Odds are, you've got a violation, which is the lowest level of punishment, which is going to require a similarly lower level of due process, constitutionally speaking. The hearing you had was, as flarbuse said, essentially a sorting mechanism.

Odds are the judge misspoke, or was not speaking in a technical sense, when you were told the police officer was going to be your "prosecutor." (Adverse party or something like that is probably more apt.) Also, you're in no immediate danger of imprisonment, etc, if the procedure is deficient in some way at that level, so the government probably has every right to conduct business in that way. Your traffic court hearing is probably something akin to an administrative hearing (given that it sounds like you've got a right to an appeal with a judge.)

Anyway, take all this with a grain of salt -- you're asking the damn internet about legal questions (I'm not a lawyer.) Some advice will be good, some will be bad, much will be uninformed -- but your legal process demands good information and counsel. Nthing the advice above, if you're serious about continuing the fight, at least talk to a local lawyer.
posted by theoddball at 10:42 PM on December 13, 2007


I'm disappointed in many of the replies here along the lines of "it doesn't matter whether what the judge did was fair, you deserve punishment." This line of thinking is repulsive. It is the exact arguments we see everyone in our justice system from cops up to the president use when they break the law because they "know" someone is doing something wrong.

When the system has rules that are tossed to the wayside anytime we "know" someone is guilty, there might as well be no system. I encourage wholeheartedly, joshrholloway, much luck.
posted by christonabike at 11:18 PM on December 13, 2007


>So, short of taking this thing to an appeal trial, which will likely cost more than just paying the fine, do I have any routes of legal action to take considering this judge outright ignored the law?

No. That is what appeals are for.

The judge may have ignored some aspects of the law for the very reason that he knew that an appeal would not be likely.
posted by yclipse at 4:03 AM on December 14, 2007


All they want is the money.
Plead to a lesser, non-moving violation ("public nuisance" is a good catch-all judges use) Pay that fine and go home.
posted by Thorzdad at 4:29 AM on December 14, 2007


If you got a 36 in a 20, chances are that you got bumped up to the next tier of ticket above, say, a 35 in a 20, yea? Normally there are fines for like 5-10 miles over, 10-15 miles over, etc, each getting bigger and bigger. Should you have decided to plea, you probably could have gotten than to the lower bracket. That higher bracket is going to own your insurance costs.

Also, consider yourself lucky. In my state, if you get caught going half-again the speed limit or more, the officer can take your license on the scene and have your car impounded. 36 in a 20 is well over that limit.
posted by TomMelee at 5:04 AM on December 14, 2007


Your certainty about your case is misplaced for several reasons. I'm not going to address them all, but I will point one out to you: your understanding of prior case law. First, you need to understand that a Tennesse state court won't care what a court in any other state (or a U.S. federal court) says -- the court is not bound by those decisions. Second, even when you get a Tennessee case, you have to understand what has happened since that decision. The common law tends to be fluid; a decision in 1951 may not have much relevance now, and there might have been 20 cases decided since that change the original opinion. Finally, you can't pick and choose sentences in isolation out of a case. Many decisions turn on specific facts, and the context of the decision is often as important as the holding itself.
posted by pardonyou? at 6:59 AM on December 14, 2007


Your question re: prosecutorial/witness stuff is actually less rigid than you think. Tex describes some issues with "due process" which is what you are really curious about (ie getting a fair trial), and gives a much longer than necessary explanation when all you really need to know is this: you aren't entitled to certain things when the stakes just aren't that high.

Additionally, working in judge's chambers has taught me something very valuable: NEVER try to outsmart a judge. Your best bet is to be helpful and humble. That will take you far. Trying to outfox a fox? Now that's just dumb.
posted by greekphilosophy at 7:10 AM on December 14, 2007


Camofrog, you are completely incorrect on that count. In every single instance I've been stopped for speeding, the radar gun has been off by at least 5 mph

Perhaps, but even if the gun was off by 15mph he was still speeding. I'm not goody two-shoes but going that fast in a 20mph zone seems way excessive.

When the system has rules that are tossed to the wayside anytime we "know" someone is guilty, there might as well be no system.

I totally agree, but this is a speeding ticket, for crissakes, and he's pretty obviously guilty. Why waste everyone's time for something so trivial?
posted by Camofrog at 7:29 AM on December 14, 2007


I say 'Go get 'em Tex'

Sometimes a fight is just that.
posted by DrtyBlvd at 9:31 AM on December 14, 2007


You mentioned that the judge offered traffic school. I'm not sure about your jurisdiction but where I am (California), if you go to traffic school and pass not only is your fine eliminated (you have to pay for the traffic school) but the insurance company is not notified.

Not only that, but you can take traffic school online. It's a piece of cake and I'm sure a lot less effort than fighting this thing on appeal (and cheaper too). The only downside is that if you get another ticket within a year you don't have the traffic school option.

This seems like a more practical solution. But if you're doing this on principle, go for it. Good luck to you.
posted by monarch75 at 11:06 AM on December 14, 2007


I was told that in a civil or criminal trial, the prosecutor is not allowed to serve as a witness in that trial. Is this true? If it is true, then shouldn't this whole thing be thrown out due to the judge ignoring that fact? I have searched on Google and in some code and statue databases and can't seem to find it.


Who told you this? Let's look at your questions from an academic perspective. Keep in mind that a lot of things that make sense and seem like they must be true often aren't, and when they are, it's sometimes exceptionally hard to figure out why, even if you've got a fine legal education.

For starters, you should read the Tennessee Rules of Evidence. That's going to answer a lot of your questions. For instance, it's perfectly proper for a witness to refresh their recollection - rule 612.

Can a prosecutor testify? The rules do not explicitly prohibit it. It's possible that there are court rules or some statute that deals directly with the matter, but a quick read of the Rules doesn't reveal any reason why they couldn't. 601, and particularly the advisory comments, are pretty compelling on that point. Rules 605 and 606 prohibit testimony from presiding judges and sitting jurors. Given those specific prohibitions, the absence of any bar on prosecutor's giving testimony adds greatly to the likelihood that they are competent to testify, so long as it's in accordance with the other rules.

But you can question the credibility of such testimony. See Rule 616 - impeachment by bias or prejudice. But note that the credibility of any evidence is the province of the finder of fact. In jury trials, this is the juror; here, the judge acted in that capacity.

Let's say, though, that the judge made several gaffes in admitting evidence against you. How might that affect an appeal? See Rule 103(a) - Error (this is used as a term of art, so don't confuse it with "any old mistake") can't be based on the admission/exclusion of evidence "unless a substantial right of the party is affected." Was a substantial right affected? Again, substantial is a term of art, so you have to figure out what that means in Tennessee, and who is going to decide whether you had a substantial right that was affected. Also, who's going to decide whether the rulings were erroneous - find that out, too.

That answers everything, right? Not so fast. Administrative hearings are not covered by the Rules. The advisory comments to Rule 101 declare that straightaway and refer you to the Tennessee Code - T.C.A. ยง 4-5-313(1). Was this a trial or an administrative hearing? That's the next question for you to dive into.

And that's a big question, too. The Constitution prohibits judges from acting as prosecutors? Where are you getting that from? The Sixth Amendment, right? Parse the text out clause by clause - it only applies in criminal prosecutions (was this a criminal prosecution?), and preserves your right to trial by an impartial jury. Is a judge a jury, when they sit as a finder of fact? If they're not, can they be considered an impartial jury if they act as prosecutors? Let's say, for argument's sake, that judge's are juries when they sit as finders of fact, and they are not impartial if they act as prosecutors. Let's also say that this was a criminal proceeding, and that the judge wasn't an impartial jury. Parse the Sixth Amendment again - what does it actually say that would relate to your assertion that the Constitution was ignored? You enjoy the right to a public (check) trial (check) by an impartial (buzz) jury (check), and all that other jazz. Clearly, this example trial didn't accord with your Sixth Amendment rights. Did you assert this right? No? Well, is failure to assert a the right to a jury trial implicitly a waiver of those rights?

Ok, that's a million questions, which is why I told you up front that the simple things are sometimes very hard to answer.

Ultimately, some of your expectations were unreasonable. Take the judge issuing the decision without explanation. The law's pretty clear on the offense, right? If speeding, then fining. So what you were really looking for was the judge's explanation of why he believed the officer's testimony. Such an explanation doesn't make a lot of sense - what would be the purpose of making juries (or any finders of fact) explain or justify which evidence they found persuasive and why?

Also, asking for dismissal anytime you didn't agree with the evidence is a bit presumptuous. Adjudications are about making a determination with all the facts (that are admissible and brought forth by the parties, etc.). At the conclusion of the case against you probably would've been the appropriate time to ask for dismissal based on failings of their case.

I can't tell you whether to appeal. Frankly, your Constitutional arguments are flimsy at best and, I'm very sorry to tell you, ridiculous at...well, not even at worst. That's not an insult - I applaud you for trying that tack. And hey, it sounds like the other cops think your indictment of the radar evidence was compelling, so you could always focus on that, I guess. But I wouldn't expect much if you fly solo - the arguments and analysis is only going to get muddier on that front.

This is especially true given this: "If I do appeal this and post the bond on my warrant, do I get that back after the trial?" I don't even know what that means. How'd you get an arrest warrant on a speeding ticket? Bonds are there to ensure appearance at trial, and I'm not sure why you'd have to pay one for a speeding ticket. Point being, you're in over your head. If you want to pursue this, (all together now) get an attorney.

As for other recourse - you can write a nasty letter to the judicial oversight folks, but that's usually about all you can do to a real, deal judge. Judicial immunity is typically damn near complete. But is this a real judge or an administrative judge? Ah, again, back to the questions. I'm sure you hate me by now, but just so you know...add in a thick, leather-bound book, a bunch of people staring at you and make sure you spell judgment with only one "e," and this is pretty much what law school is like.
posted by averyoldworld at 11:27 AM on December 14, 2007 [3 favorites]


It's very clear now that I went into this based way too much on hearsay. I still believe that I could have a case and that this defense would work in specific instances, but I think that I fell into a pit and followed advice given about criminal trials when I'm in a decidely civil situation here. I doubt that I will pursue in my appeal at this point due to the cost and time it will take. I appreciate the insight you have all given, especially averyoldworld.

Guess this is what happens when you blindly follow advice without much research and you get cocky. I have certainly learned a lesson. Thanks again, AskMeFi.

P.S. @monarch75: In Tennessee, or at least in all the jurisdictions in Tennessee that I've gotten tickets, Traffic School means you have to pay the fine and an additional cost for traffic school.
posted by joshrholloway at 12:06 PM on December 14, 2007


In Tennessee, or at least in all the jurisdictions in Tennessee that I've gotten tickets, Traffic School means you have to pay the fine and an additional cost for traffic school.

Maybe so, but the more important question is whether going to traffic school will remove the violation from your record and prevent your insurance rates from going up. You may find traffic school to be a bargain in the long run, even if you have to pay for it.
posted by JackFlash at 3:11 PM on December 14, 2007


I love this; people breaching the law, and then spend disproportionate amounts of effort to find a loophole.

I killed him, sure, but the judge was drunk at my trial, so I'm free to go right?

Quit being dramatic; your not in a Grisham novel.
posted by oxford blue at 9:56 PM on December 14, 2007


I agree with christonabike.

monarch75, that's true sometimes. Sometimes it just lessens the offense on your record.
posted by small_ruminant at 3:38 PM on January 16, 2008


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