easy to follow guide for pro se defendants
The law allows it, but do you have what it takes to represent yourself?
Please be aware that before you choose to represent yourself, you may qualify for a public defender. To find out if you qualify for a public defender, you have to fill out a public defender application, otherwise known as a 5A Form. The form requests financial information such as income and expenses. Once you complete the form, the Municipal judge will determine if you qualify.
If your income falls below a certain level, you may be approved for a court appointed lawyer. In my experience, most attorneys who serve as public defenders fall into two categories. These attorneys are either newly admitted attorneys who bring tremendous enthusiasm to the job, OR, they are veteran attorneys who have tremendous experience but often lack the enthusiasm they once had. Regardless of these differences, both of these attorneys will know more than defendants representing themselves Pro Se (on their own).
Next, before you choose to represent yourself in a New Jersey Municipal court, please familiarize yourself with other options aside from being appointed a public defender. If you are denied the appointment of a public defender because you are above the income level, you may seek representation from your local Legal Aid, Legal Services, or County Bar association.
Many private attorneys offer their services a few times a year on a pro bono (free) basis to their local Legal Aid and county bar association. Before you defend yourself Pro Se (on your own) in a New Jersey Municipal court, reach out to some of these organizations. Who knows? You may find an excellent attorney who will take on your case for free.
Lastly, before we discuss how to represent yourself Pro Se in court in a New Jersey Municipal court, try to make an appointment with a defense attorney before you have your trial. Most attorneys offer a free thirty-minute consultation. Take this opportunity to discuss the strengths and weaknesses of your case with the attorney. You may be surprised to learn that the fees the attorney will charge are reasonable. The attorney may also help you get a clearer understanding as to what is at stake in your case. You may not fully understand the consequences of being found guilty at the end of your trial.
Criminal convictions in New Jersey Municipal courts carry penalties of up to six months in jail and a one-thousand dollar fine. Life has now changed for you because you have a criminal conviction on your record. This conviction may follow you for many years and complicate many areas of your life. When you take advantage of your free consultation with an attorney, try to learn about the consequences of being convicted in your case.
Will a conviction interfere or limit your career and education options?
If you have exhausted ALL efforts in obtaining legal representation; AND you have learned about ALL of the direct and collateral consequences regarding a criminal conviction on your record; AND you still want to represent yourself in a New Jersey Municipal Court, then here are extremely valuable suggestions on how to improve your chances of being acquitted (winning). Above all, understand this: you will not receive any special treatment for choosing to appear Pro Se.
Now let’s begin.
Number One: Identify the elements of the crime for which you are accused.
The very first thing every law school student learns is this:
Crimes (laws) are composed (made up) of elements. In a New Jersey Municipal court trial, the Prosecutor (representing the State of New Jersey) must prove every element of the crime for which the defendant is alleged to have committed.
To continue with our discussion of the “elements of an offense”, let’s use a fake crime, enacted in a Fake State, to better understand the concept of “elements”.
In Fake State, there exists a crime against yelling in restaurants. It is entitled “The Fine Dine” law. The Fine Dine law makes it a criminal offense to yell the word “fire”, after midnight, in any restaurant located within the jurisdiction of Fake State. The legislative intent behind this law is to ensure that people who eat in restaurants can enjoy their meal peacefully.
Assuming the restaurant is located in Fake State, how many elements do you see?
Let’s agree that the Fine Dine Law is composed of FOUR elements. To be found guilty the defendant must:
For a judge to find the defendant in Fake State guilty of the Fine Dine Law, the prosecutor must prove ALL four elements Beyond a Reasonable Doubt. At the end of the trial, the judge must be convinced (Beyond a Reasonable Doubt) that the defendant committed ALL four elements of the Fine Dine Law. If the Prosecutor proves only one, two, or three elements of the Fine Dine Law, then the judge must acquit (declare innocent) the defendant.
To wrap it up, let’s assume the defendant did yell the word “Fire” in a Fake State restaurant but the evidence reveals that he yelled it at 11:30pm. Look at element number three above. The Fake State Fine Dine Law specifically states the hours of 11am to 11pm. What should the judge decide?
Let’s change the facts slightly. What if the defendant whispered the word fire? What if the defendant casually uttered the word fire while discussing a recent news article? How would you use this information in relation to element number one?
Lastly, what if the defendant yelled the word “Tire” or “Liar” or any other similar-sounding word? What if he yelled a word that rhymes with “fire”? How would this relate to element number two?
This is the first step in learning how to prepare yourself as a Pro Se defendant for a New Jersey Municipal court trial.
Number Two: Prepare a Strategy
Once you have familiarized yourself with the elements of the crime you are alleged to have committed, prepare a plan of action. Identify the element or elements which you strongly believe best support your defense. In the example from Fake State, if you did in fact yell fire in a restaurant but it was outside of the time-frame set forth in the law, then you should hammer away at this point. Gather all evidence to show the court (judge) that you yelled after 11 pm.
If there is time-stamped, video evidence, showing that you yelled fire beyond 11 pm, you will want to introduce this evidence. If you were dining with friends who can serve as witnesses to support your claim that you yelled “fire” after
11 pm, make certain to bring them to court to offer their testimony. If there are restaurant employees who can offer the same evidence, it is in your best interest to have them testify at your trial.
The point is: Identify the weak element in the State’s case and hammer away at that weakness.
Number Three: Be Prepared with all of your Evidence.
Make copies of all documents and/or evidence that you intend to introduce at trial. If you want the judge, the person who will ultimately decide your guilt or innocence, to consider a photo you have on your smart phone, then make copies. Make at least four copies of all documents you intend to introduce at trial. One for the judge, prosecutor, witness, and your own.
Prior to trial, the rules state that you must provide reciprocal evidence (evidence that is helpful to your defense) to the prosecutor. If, before trial, you show the Prosecutor a picture which strongly supports your innocence, he/she has the authority to either offer a great plea bargain or choose not to prosecute the case. These evidence issues are usually resolved long before your case is set for trial.
Number Four: Learn how to elicit (get) information from the Prosecutor’s witnesses, and your own witnesses, through the proper asking of questions.
Most Pro Se defendants representing themselves in New Jersey Municipal court do not understand the mechanism outlined in the rules of evidence for introducing evidence into trial. Most Pro se defendants can’t wait for their opportunity to tell their side of the story. When it is their turn, most Pro Se defendants just start rambling about irrelevant trivialities. You must stick to your strategy and learn how to introduce evidence through witness testimony.
For example, instead of making categorical statements about your version of the events, you must learn to get the State’s witness to provide exculpatory evidence through your questioning. Instead of making a statement to a witness such as, “There’s no way you could have heard me say anything because you were in the bathroom when I yelled the word “Tire”. You must get that witness to provide those facts through your questions (cross-examination).
Here’s an illustration:
Defendant: Mr. Witness, on the evening in questions, you were in the bathroom at 10:45pm correct?
Witness: Yes. As I recall, I was washing my hands at that time in the bathroom.
Defendant: The bathroom is located in the basement of the restaurant correct?
Witness: Yes. The bathroom is four levels beneath the restaurant.
Defendant: There is a discotheque that occupies the first, second and third floor of the building correct?
Witness: Yes. Beneath the restaurant, which is located on the top (fourth) floor, there is a huge discotheque that occupies the first three floors of the building.
Defendant: The music was playing loudly from the discotheque while you were in the bathroom at 10:45pm?
Witness: Yes. I couldn’t even hear myself think because the music was blasting.
Defendant: The truth is that you could not hear what I, or anyone else on the top floor, said at 10:45pm?
Witness: This is true. It was physically impossible for me to hear beyond the loud music blaring from the discotheque.
Do you see how you were able to get information from the witness by asking five simple questions? This is a skill that takes years to craft. However, if you intend to represent yourself Pro Se in a New Jersey Municipal court criminal matter, you will need to cross-examine witnesses in this manner.
Number Five: Write your questions out on paper in advance of trial.
Do not attempt to rely on memory when you get your day in court. There are so many distractions that you will probably forget everything you intended to ask the second that trial starts. Be prepared with your questions by having them on paper. In the heat of trial, your previously prepared questions will anchor you and help you focus. If you ever draw a blank, just look down at your line of questioning and it will help redirect your focus.
Number Six: Save your version of the events for summation.
Summation is the last part of a trial. It is the last opportunity for both sides, Prosecutor and Defendant, to speak directly to the court. It’s the only opportunity where each side can paint the picture of their version of the events with the intention of persuading the court to decide a certain way.
It is during this summation phase of trial when you can speak directly to the court and state all of the reasons why the State did not meet their burden of proof. You can make clear and direct statements. No questioning is involved. But remember, you must tie your concluding statements to the evidence revealed at trial.
Here’s a sample summation:
“Your Honor, the law clearly states that a person is guilty of the Fine Dine Law if they “yell” the word “fire” in a restaurant between the hours of 11am to 11pm. The Prosecutor failed to provide the court with any evidence that I “yelled”. The Prosecutor’s only witness stated that he was in a basement bathroom at the time (10:45pm) when I was alleged to have yelled. He stated that he could not hear a single word spoken in the restaurant due to the extremely loud noise produced from the three-story discotheque separating the basement bathroom and the restaurant. In addition, I introduced witnesses who stated, under oath, that they never heard my yell. For these reasons you Honor, I ask that the court find me not guilty of the Fine Dine Law.”
Number Seven: SERIOUSLY CONSIDER NOT REPRESENTING YOURSELF in your own criminal trial.
Bergen County Criminal Lawyer
The practice of law is a never-ending learning process. As experienced defense attorneys we are forever spending countless hours keeping up with the changes in the law. We must familiarize ourselves with all new laws, rules and higher court decisions. When a new case is decided, the rules of the game change. Law that is good on a Monday may be bad law the following Tuesday.
Another point to consider are the New Jersey rules of Evidence. These rules are extremely complicated. Successful defense attorneys spend years learning to master this highly specialized area of the law. You must know when and how to object to your adversary’s questions and understand the basis for each objection. This is no easy task.
When you represent yourself, it is virtually impossible to think clearly. You are playing dual roles and the potential for committing mistakes is greatly increased. Most defendants cannot detach themselves from their situation and their emotions inevitably cloud their judgment.
In the legal community we have a saying:
“Even as an attorney, if you represent yourself in any legal proceeding, you have a fool for a client.”
We only practice Criminal Defense and we only practice in New Jersey. Helping clients is our passion. Helping people accused of committing criminal offenses is why we became defense attorneys. We pride ourselves in outworking other lawyers through our exhaustive preparation and absolute determination to get the best possible results for all of our clients.
We maintain constant contact with our clients, patiently explain every step involved, but above all, we are completely honest in setting our client's expectations. We welcome your email and would love the opportunity to help you.
About the Author
Mr. Peyrouton is a Criminal Defense Attorney in Bergen County, NJ.