You have the right to present witnesses who were present and observed the situation that caused you to be ticketed. This will usually be someone who was in the car with you, but it could be a pedestrian or the driver of another vehicle. But before you ask a potential witness to testify for you, you'll obviously want to be sure that person agrees with your version of what happened.
Organizing Witness Testimony
If you have more than one witness, write down all their names. Then write a description of what each will say and how their testimony will help your case. Decide in what order they should testify to present a logical sequence of events.
Don't let a witness bend the truth. Occasionally a friendly witness will volunteer to stretch the truth on your behalf. Lying in court (perjury) is a felony and can result in jail time. In addition, a skilled prosecutor can expose even one small lie, and it will usually destroy the credibility of everything else your witness says, even if much of it is true.
Witnesses who are organized and prepared are far more convincing than those who are neither. Start by acquainting your witness with the various legal elements of the case and the strategy of your defense. The witness's testimony should support one or more key aspects of it. Just as you did when you prepared your own testimony, have someone pretend to be the judge, and have your witness practice his or her testimony several times. Helping your witness prepare in this way is completely legal and routine. Every lawyer rehearses witnesses. In case the prosecutor asks your witness whether he or she has discussed his or her testimony with you, the witness should simply be prepared to say something like this: "Yes, I was a little nervous and wanted to do a good job of telling the truth."
It is also wise to put yourself in the role of the prosecutor and ask the witness some tough cross-examining questions. We discuss how to cope with cross-examination below. Have your witness read that section.
Explain to your witness that there's a possibility that he or she will be asked to step outside the courtroom when you testify, in order to prevent the witness from adjusting his or her testimony to be consistent with yours. This is not a punishment, just a routine court procedure. (You also have the right to insist that the state's witnesses be similarly excluded, should two or more prosecution witnesses testify against you.)
A "subpoena" is a document that requires a witness to appear at the time and place of your trial. Failure to appear can result in arrest and jail or fine for contempt of court. If the witness was a friend or family member riding in your car, he or she will often agree to appear without a subpoena. But if the witness was unknown to you—like a pedestrian or another driver—you'll want to serve that person with a subpoena to show up at your trial. There are three common situations where you will want to subpoena an essential witness:
- A witness wants to testify on your behalf but needs to be excused from work or school.
- A witness whose testimony is essential to your case doesn't want to appear in court for some reason, but you are pretty sure he or she will testify in your favor if required to appear.
- A witness has volunteered to testify but is unreliable, and you believe he or she may forget to show up if not subpoenaed.
At your request, the court clerk must issue a subpoena in a traffic case. Rules and procedures as to how this is done and who may serve the subpoena vary from place to place. Be sure to ask the court clerk how a subpoena is to be prepared and served.
It's usually a mistake to subpoena a hostile witness. As a general rule, it's a mistake to subpoena a person who is totally opposed to the idea of appearing in court. A person who is dragged to court against his or her will might be mad enough to mold his or her testimony in such a way as to hurt your case. There is a big exception to this rule: Where you can't win without the person's testimony and you believe there is some chance the person will tell the truth under oath, it makes sense to risk serving a subpoena on a hostile witness who won't show up voluntarily.
Be aware of distance rules. A witness can't be required to attend court if he or she lives out of state. In some areas, even a witness who lives in the state can't be compelled to travel over a certain distance to the courthouse, usually 50 to 100 miles.