Though opening statements are often skipped during a ticket-related trial before a judge, it is unwise to waive your opening statement when a jury is present. That's because it is very important to get the jurors on your side right from the start. Remember, as discussed in What Happens in Traffic Ticket Trial by Judge?, you have a choice to either give your opening statement after the prosecutor gives (or waives) one, or you can reserve your opening statement until after you cross-examine the officer and just before you put on your testimony. But I advise making it as soon as possible in front of a jury. That's because jurors often make up their minds as to guilt or innocence very early in the trial, often right after opening statements. If you reserve your opening statement until later, jurors who hear only from the prosecution may have already decided you are guilty before you open your mouth.
Stand up behind your counsel table and make your opening statement facing the jury. Don't try to walk around the courtroom. Just stand straight, look right at the jury members and tell them briefly what evidence you will produce to show you are innocent. It's fine to quickly glance at notes, but since you should have already practiced your statement at home with friends, you should never need to read your statement. (See What Happens in Traffic Ticket Trial by Judge? on making your opening statement.)
Be straightforward. The important thing to remember is that your bearing and how you make your presentation will probably have a much greater effect on a jury than it would have on a judge. Never be sarcastic or insulting, even if the arresting officer treated you poorly. Instead assume the officer, acting in good faith, simply made an honest mistake that you now wish—with the help of the jury—to correct.
The Prosecution's Testimony
In jury trials, the officer will always take the witness stand and testify in response to the prosecutor's questions. You have the right to object to improper questions, but in a jury trial you should save your objections for issues that really are critical. That's because jurors typically resent anyone they think is trying to hide information from them and may rule against the side that objects the most. In addition, trying to keep evidence from a jury may backfire. Even if the judge agrees with your objection, jurors are likely to guess at what was excluded and give it more importance than if you just let it pass without objection. But despite this caution, if the prosecutor treads too far over the fairness line, you'll probably wish to object. (See Making Objections in Traffic Court for tips and guidelines on objecting to testimony.)
When you cross-examine the prosecution's witnesses, be courteous but firm. If the officer tries to say more than you want, promptly but politely interrupt and direct the officer to "Please answer the question; you've already had a chance to tell your story. I'd appreciate it if you wouldn't try to influence the jury any further." Otherwise, the cross-examination should follow the approach discussed in What Happens in Traffic Ticket Trial by Judge? with questions gleaned from Making Objections in Traffic Court.
I recommend that you make your opening statement at the beginning of the trial. But if for some reason you have not, you should definitely make it before you start your testimony. Then, with several important exceptions, your testimony in a jury trial should proceed in the same way as before a judge (see What Happens in Traffic Ticket Trial by Judge?).
Be sure to look directly at the jury from time to time while you explain key points. You want the jurors to see you as an honest, law-abiding citizen who has been mistakenly accused. But don't overact. People who suck up to the jury usually get what they deserve.
Judges often train themselves to remain totally expressionless even while listening to the most blatant nonsense. But most jurors are neither trained to do this nor particularly interested in appearing impartial. So, be alert for nonverbal signs that might suggest that one or more jurors is confused or skeptical about your testimony, and adjust your conduct accordingly. For example, when questioning a not particularly believable witness, if you see jurors frowning or snickering, you probably won't want to rely heavily on what that witness said in making your closing statement.
When your testimony is completed, and after the prosecutor has cross-examined you, it's time to present any witnesses who will testify on your behalf. Depending on the preferences of the judge, your witnesses will either testify in narrative fashion as you probably did, or in response to your questions. If the judge indicates that you should question the witness, you may want to explain that because you're unfamiliar with the way such questions should be asked, you would prefer just to let your witness explain what they saw. But if the judge doesn't agree, be prepared to ask questions.
You Don't Have to Ask Yourself Questions
In a typical trial, lawyers ask the questions and witnesses answer them. But if you are acting as your own lawyer, most judges will allow you to dispense with this format and simply tell your story. If you come across a judge who insists on the question-and-answer format, you should object as follows: "Your Honor, I just want to tell the jury what happened in my own words. I'm not a lawyer and I don't know how to ask myself questions. I assume that if I say something inappropriate, you will advise the jury to disregard it." If after that, the judge still refuses to allow you to tell your story, you'll probably have to do your best to ask yourself pertinent questions before giving sensible answers. (Just in case this might happen, see Making Objections in Traffic Court for tips on how to frame proper questions.) At the very least, you'll have obtained the jury's sympathy.
Cross-Examination by the Prosecution
When you have finished testifying, it's your time to be cross-examined by the prosecutor. Listen carefully to each question. If you don't fully understand a question, don't guess at the answer; instead, ask the prosecutor to repeat and clarify it. If you understand the question but just don't know the answer, say so, keeping in mind that you have a right to explain your answer, even when your answer is "I don't know" or "I'm not sure." On the other hand, do not purposely avoid answering reasonably clear questions. Otherwise, the jury will think you are being evasive.
Again, be polite. Sorry to belabor this point, but if you are obnoxious or impolite to the prosecutor, it may cause jurors to decide a close case against you. Your response to cross-examination should be the same as in nonjury trials, except that during your responses you should occasionally look at the jury, as you might when explaining something to a group of friends.
After all the evidence is presented, both you and the prosecutor will have the opportunity to present a closing argument. Making a closing argument to a jury is much more important than making one to a judge in a nonjury trial. Judges pride themselves on deciding cases based on evidence—which they have already heard—not on the arguments from the opposing sides. Jurors, on the other hand, are usually far less sure of their legal judgments and will listen more carefully to your argument as to why there is reasonable doubt as to your guilt.
The Prosecutor's Closing Argument
During the prosecutor's closing argument, remain calm—poker-faced if you can. Never express outrage, indignation, derision, or any other emotion, no matter how much the prosecutor tortures the truth. Just listen carefully and take appropriate notes so that you can make any necessary modifications to the closing argument, which you should have already planned.
Your Closing Argument
Your closing argument should be designed to serve two purposes. First, you want to clearly explain how the evidence that has been presented at trial isn't sufficient to establish your guilt beyond a reasonable doubt, or actually disproves it. Second, you should rebut damaging statements made by the prosecutor in his or her arguments. For example, if the prosecutor says you entered an intersection when the light was already red, you'll want to discuss the fact that the officer had a lousy viewing angle and was doing something else at the time. Please refer to "Closing Statements" in What Happens in Traffic Ticket Trial by Judge? Much of the information set out there applies equally when making a closing argument before a jury.
It is essential to point out to the jurors, at both the beginning and end of your brief talk, that each element of the offense must be proven "beyond a reasonable doubt." Although legally this is something between a "great" doubt and an "insignificant" doubt, it is proper to state that a "reasonable" juror who has any doubt at all about any element of the offense must find you not guilty. Since everyone considers himself or herself reasonable, you hope that any juror who has any doubt about your guilt will vote not guilty. In states that allow jury trials for traffic offenses, most still require unanimous agreement for a verdict. In those states, if only one doubting juror sides with you, the result is a "hung" jury and no conviction.
Here is an example of how your argument might begin to a jury:
Ladies and Gentlemen, because I know that I'm innocent of the offense(s) charged, I'm contesting it/them here. Attorneys are very expensive, and so I'm defending myself. Although I have no legal training, I've presented my case as best I know how to show you why I am not guilty. But there is one thing I do know about the American legal system—and it's something you know, too—the prosecution must prove every defendant, including me, guilty of each and every element of an offense beyond a reasonable doubt. Now I want to explain exactly why the prosecutor has failed to do that in my case.
Now, describe the elements of the offense and how, in light of the evidence presented, and based on your testimony, evidence, and any witnesses, doubt as to your guilt remains. This is the most important part of your argument. See other examples in What Happens in Traffic Ticket Trial by Judge? under "Closing Statements."
You have heard my evidence (and the statements of my witnesses). You have also heard from the police officer. These are conflicting versions of what happened. Please do not believe the officer's powers of observation are infallible just because she's a police officer. And please do not accept uncritically what the prosecutor just said when she repeated the officer's versions of events. The point is: Neither the prosecutor nor the police officer disproved any of the evidence my witnesses and I presented. Remember, if the law required you to believe law enforcement personnel are perfect, we wouldn't need trials at all! So again, please consider my side of the story—I've presented it as honestly as I can.
When I am done speaking, the prosecutor is allowed another chance to undermine my argument. She may tell you that I have a lot to gain by being declared not guilty, and that therefore the officer's story is more believable than mine. I have no hard feelings toward the officer, and I know that part of the reason she's on the roads is to protect us from hazardous drivers, but she's not infallible, and in this particular case, she was mistaken.
Finally, you will recall that in the beginning of this case, you each indicated you would honor my constitutional guarantee that I am not guilty until and unless the prosecution proves each element of the offense I'm charged with beyond a reasonable doubt. Indeed, in this case, the prosecution has come up far short in doing this. In retiring to the jury room, I ask you to do your duty in this regard and to enter a verdict of not guilty. Thank you.
This may seem a bit long-winded, but it goes pretty fast when you're talking. Feel free to change it to suit your particular case. It's wise to practice this sort of statement a number of times before you go to court.
The Prosecution's Rebuttal Argument
Because the prosecution has the burden of proof, it gets two shots to argue its case to the jury. The second one is intended to allow it to rebut any points you raised in your argument. Sometimes the prosecutor won't exercise this opportunity. Other times the prosecutor will make a brief final statement.
Preparing Jury Instructions
After you have presented your evidence, you have an opportunity to submit proposed "jury instructions" to the judge to be read to the jury. Because most judges are required to—and do—a fairly decent job of doing this for routine cases, we normally recommend that you leave it to the judge. But if the judge is particularly hostile, you may want to take a shot at doing this.
Whole books have been written on how to prepare jury instruction. It's a very specialized skill, not something we can teach you in a couple of pages. But if you're determined, start by going to a law library and, with the help of the librarian, finding the jury instruction books judges most often use in your state. Then page through the instructions that relate to traffic offenses. A judge is required to give a jury instruction at your request, if there is evidence to support it. For example, if you testified you had to speed to the hospital with your wife, who was actually giving birth, the judge is probably required to read the jury instruction on the "necessity defense."
The standard instructions, which the judge can usually be trusted to give, include explaining to jurors how they are to understand the duties of the judge and jury, and how they are expected to consider different types of evidence and how to determine the credibility of witnesses. Finally, and most important, the judge will explain the presumption of innocence. Often the judge will say something like this:
A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt as to whether his guilt is proven, he is entitled to a verdict of not guilty. This presumption places on the State the burden of proving him guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: It is not 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 the state of the case that, after the entire comparison and consideration of the evidence, leaves the minds of the jurors in that condition, such that they cannot say they feel an abiding conviction, to a certainty, of the truth of the charge.
The Judge Instructs the Jury
Finally, the judge will instruct the jury from the standard instructions, plus any the judge accepted from you or the prosecutor. Then the bailiff will take the jury into the jury room to deliberate. When they come back, they will announce a verdict. If you are found guilty, the judge will set a later date for you to appear for sentencing.
Appealing a Jury Verdict
If you are convicted at a jury trial, your chances of successfully appealing are very small. That's because in the vast majority of states, you do not have the right to a new ("de novo") trial. Instead, an appellate court will simply look to make sure that the trial court judge followed the law (called an appeal "on the record" or "on the law"). Even then, the judge has to make a pretty big error to catch the attention of an appeals court and reverse your conviction. Given the fact that, even for those who know how to do it, the appeals process is complicated and expensive, appeals rarely make sense for traffic cases.