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XD's avatar

Legal folk: what do I say in this affidavit?

Asked by XD (1519 points ) November 23rd, 2011 from iPhone

I filed an appeal for a traffic case for which I was judged guilty of speeding. The basis for my appeal is that I was denied my right to cross examine the witness (the cop who wrote the ticket). Further, I was dissuaded from pursuing cross examination by the judge’s threats of holding me in contempt.

This was a pro se hearing and no court reporter was present and no transcript was made. So what the appellate court has received is only a copy of the ticket and a copy of the judgement.

I made a personal recording of the proceeding and created my own transcript from that, so I can submit in my affidavit as much or as little detail relative to that segment of the proceeding as necessary.

So what language should I use in my affidavit andshould just be a regular affidavit or does it have some kind of special heading? It was recommended to me to file a “supporting affidavit stating the facts of what happened, but I’m not sure exactly what is or isn’t a fact and what to include in general. Please advise and thanks.

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17 Answers

john65pennington's avatar

First, I am confused as to why the traffic court judge would not allow you to ask questions of the police officer. This is not protocol in the courts in my jurisdiction.

Second, kindly explain the circustances of your speeding citation, It’s difficult to give advice, if the whole story is not known. jp

XD's avatar

@john65pennington, The judge was kind of fed up with me by that point (or was making a show). It’s a one-judge “village,” and I believe I was being moved along for the sake of expediency. As I stated, there’s no court transcript, so the judge can pretty much do what she can sell, I’m guessing.

When cross examination began, I asked the cop if he filed a valid cause of action. He replied (under oath) “yes.” I then asked him how many elements are in a valid cause of action. At that point he remained silent because he didn’t know the answer. After a long awkward pause, the judge ruled the question irrelevant, and when I sought to clarify that cause of action was irrelevant and asked for an answer to my question, she said I wasn’t going to treat her courtroom this way, and forced me to move on to defense testimony.

john65pennington's avatar

Now that I know a few facts, maybe you should have had an attorney with you in court. Most people do not go to the expense of an attorney, but maybe you should have one.

What is your previous driving record? This could have had a bearing on the results of your traffic court hearing.

Brian1946's avatar

@XD

“When cross examination began, I asked the cop if he filed a valid cause of action. He replied (under oath) ‘yes’.”

Why didn’t you ask him if he had proof that he filed? Perhaps the judge would have allowed you to ask that.

XD's avatar

I was very nervous, and barely got that far. Likely, the judge would have cut me off, or claimed that the ticket was the cause of action.

I appreciate your point, but I was cutting my teeth on this one.

Brian1946's avatar

Yeah, I can see that it was a learning experience for you. I don’t know how well I would have done in your situation.

Anyway, if you really were speeding and since the officer appeared, no reasonable amount of preparation and relaxation would have won your case.

wundayatta's avatar

You probably want to hire an actual lawyer who knows the law in your area. If you get free legal advice, it’s generally worth what you paid for it.

XD's avatar

@Brian1946, that may have been the case, but it’s also true that the officer either perjured himself or was headed down a path to be declared an incompetent witness, assuming the judge wasn’t going to play favorites.

If someone has an answer, I’m still all ears.

lillycoyote's avatar

How did the officer perjure himself? That’s a pretty serious accusation. To accuse a police officer of perjury. That’s not going to win you any points. Do you even know what a “valid cause of action” is? Isn’t that at civil court term, not something an officer needs to do in regards to a traffic violation? He issued you a citation for speeding, isn’t that all the officer needs to do? If you weren’t speeding and you want to fight this and you truly believe that the officer may have committed perjury you should get an attorney to represent you. I don’t think the attorneys on Fluther can ethically or under professional standards offer you legal advice here. And if you actually were speeding, you should just suck it up, IMHO, and pay the fine, otherwise you’re wasting the court’s time and the taxpayers money.

XD's avatar

@lilycoyote, interesting choice to admonish me and demonstrate your ignorance rather than answering the question.

Do you know what a valid cause of action is and why it is relevant in any case?

Do you know the factual difference between a civil and a traffic case?

If I was speeding and I should just pay the fine, then why was I offered the opportunity to have my case heard in court and offered the automatic right of appeal? Why wasn’t I just made to pay the cop on the spot?

How about you answer those questions before offering up more ignorance?

lillycoyote's avatar

@XD I’m not sure which one of us is actually demonstrating ignorance here. That’s debatable. I can question authority with the best of them but you accused a cop of perjury in the process of you fighting a speeding ticket. That kind of set me off. And I believe you were offered an opportunity to have your case heard in court, at least that is how you described it, and you were found guilty. You applied for an appeal and that request for appeal was denied. I suggested that if you believe you are not guilty, you should get an attorney and fight it and that if you are guilty you should just suck it up. I have been driving a long time and I have gotten two speeding tickets, both of which I have deserved, and there were a thousand times or more when I should have been issued speeding tickets and didn’t get them, I didn’t get caught. It has been my experience that I have never been issued a ticket I didn’t deserve. Again, get an attorney and fight this if you want to.

XD's avatar

Yeah, reading is hard. Where do I accuse a cop of perjury? Where do you see that perjury has anything to do with my question? Where do I say my request for appeal was denied? My appeal hearing is on Jan 20.

I am asking only how to state the truth of what happened in my case. I believe I did not get due process for the reasons stated above.

Your advice is to get a lawyer. Fine. How about just saying that and saving your judgement for something you actually understand.

YARNLADY's avatar

To paraphrase a saying “A person who tries to act as his own lawyer has a fool for a lawyer”.

XD's avatar

@YARNLADY, yeah, I’ve never heard that before. It’s funny how there’s this aspect of law called pro se which means you do it without a lawyer. In fact, my case was part of a pro se session where a dozen or more cases are heard every week without use of a lawyer. In fact, the state bar even has a pro se committee to provide legal resources to people who wish to use the legal system without a lawyer.

And it’s interesting that at one point in my trial, the judge threatened to reschedule my case to a session for which a lawyer is required (and if I didn’t show up with one I’d have to pay a $500 fine). It’s interesting that when I called her bluff at that point and asked if I was free to go (assuming that I would now have to get a lawyer), she decided to go ahead and continue with the current proceedings. Ain’t that something?

Thank you for your contribution to this discussion.

XD's avatar

@john65pennington, sorry I didn’t see your last question. I’ve had speeding tickets in the past, but had a clean record for three years prior. At this point, though, the only thing that is relevant is whether there was judicial error in my case. Since there’s no transcript, there’s nothing at the moment for the appellate court to review. That’s why I have to file an affidavit.

bkcunningham's avatar

If you think your request for a valid cause of action from the police officer in traffic court was justified, @XD, your appeal would include a request for a bill of particulars, which is a written demand for the specifics of why an action at law was brought against you from the prosecutor. A posted speed limit would be part of the bill of particulars in most state for a speeding violation. Keep in mind, you have to present evidence on your behalf that you didn’t break the posted speed limit and that the officer is not telling the truth. The character of the police officer will most likely trump someone who has prior speeding violations. Pick your battles my friend. Your fine is going to be more now than a battle you thought you could win because of something you read on the Internet about how to beat a speeding ticket.

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