Results 1 to 7 of 7

Hybrid View

  1. #1
    Join Date
    Apr 2009
    Location
    SF Bay Area
    Posts
    625

    Default Is the Judge's Statement Against Trials De Novo Grounds for Appeal

    My question involves traffic court in the State of: County of Kings, California.

    Hi,

    I was convicted of speeding last Friday (April 3, 2009), and I am reviewing what happened at trial to decide if I should go ahead with the appeal.

    Background: I did a trial by declaration and lost. I had requested a trial de novo, which was granted. It took place last Friday. I was found guilty.

    One thing that immediately caught my attention was the fact that the judge said something about three-and-a-half minutes prior to calling my case. One of the clerks mentioned that the case that was about to me called before mine was a trial de novo, and the judge said something to the tune of 'to be frank, they need to change the rules so that if have trial by declaration, there is no trial de novo. If you have trial de novo, it's just... it's a waste of time.'

    In my opinion, that's a sign that the judge is biased against defendants who exercise their right to trial de novo. I also called the court and found out that different judges heard the TBD and the trial de novo, as required by law (a defendant can move to disqualify the judge if the same judge is scheduled to hear both TBD and de novo). Are those comments by the judge legitimate grounds to support judicial bias and prejudice in an appeal? If so, will it hurt my appeal if I did not object to the entire proceedings at the beginning of the trial or move to disqualify the judge based on this reason?

    Before anyone asks, yes I have the judge on tape saying this along with the rest of my trial? The recording runs starting about an hour prior to my case and all the way until after I was done.

    Trouble is, I never submitted a formal motion to allow the use of the recorder for personal notes as stipulated by Rule 1.150 (d) (2009 cali rules of court), and I got a little too nervous to ask the judge for permission to use the recorder when my case was called (I know, I know... it was the first time my ticket got all the way to the trial with the officer showing up )

    I had asked the clerk, and the clerk said there was no official record kept (whether it's actually true is another question mark).

    Would this hold up in the appeals court to dismiss the case or to at least kick it back for retrial?

  2. #2
    Join Date
    Mar 2009
    Location
    LA LA Land
    Posts
    9,170

    Default Re: Is the Judge's Statement Against Trials De Novo Grounds for Appeal

    You can try but I would guess it'll be a tough hill to climb.

    So you never asked the judge if you could record the trial.
    You didn't make a motion to disqualify the judge from hearing your case based on judicial bias and based on what you heard.
    I'm not sure how you could present statements made by the judge off the record, when those were not part of your trial.
    Who do you think will review and must approve your statement of appeal? (the same judge).

    By the way, there is no recorded or transcribed version of the trial that is kept by the court as far as the proceedings go. The clerk was right.

    Point is, a judge may think the its a waste of time to hold a trial de novo for a losing TBD and yet when it comes down to it, that judge may hold a fair and impartial trial even though it is a "trial de novo". As for an appeal and unless you can point to a specific reason that shows any indication that the judge was biased against you during your trial, your appeal won't fly. Just my opinion.

  3. #3
    Join Date
    Feb 2008
    Posts
    1,622

    Default Re: Is the Judge's Statement Against Trials De Novo Grounds for Appeal

    It seems to me that a statement such as that made in open court is clear bias and raises grounds for appeal. Now, how you get that information to the appellate court may be tough. So, the clerk said there is no official records kept... she could have interpreted that as a transcript. Not every court does, by my local court will record the procedings. If necessary, the recording will be transcribed. This could be the case. Or, you could simply introduce your recording. I doubt you would get in any real trouble for it... and the court ruling that it is inadmissable would offer the appearance of impropriety so the court would likely shy away from that decision.

    very interesting....

  4. #4
    Join Date
    Dec 2004
    Location
    Seattle
    Posts
    3,577

    Default Re: Is the Judge's Statement Against Trials De Novo Grounds for Appeal

    Actually, I doubt that the appellate court would permit the recording -- even if you had made a motion for it. The rule states: "The recordings must not be used for any purpose other than as personal notes." That's because such recordings can be altered -- all too easily in this day and age. That allows the court to rule that it's inadmissible, without the appearance of impropriety -- IMHO.

    You might try calling the Clerk and ask, "How much does it cost to get a copy of the recording of the court session from such-and-such date?" See what they have to say.

    Barry

  5. #5
    Join Date
    Feb 2008
    Posts
    1,622

    Default Re: Is the Judge's Statement Against Trials De Novo Grounds for Appeal

    You are right... so the way to get it introduced would be to include it in the proposed statement. Also, you would have to use "judicial bias" as a grounds for appeal. The court can change your statement in the settled statement, but they cannot change your grounds for appeal.

  6. #6
    Join Date
    Apr 2009
    Location
    SF Bay Area
    Posts
    625

    Default Re: Is the Judge's Statement Against Trials De Novo Grounds for Appeal

    For what it's worth, most of my legal knowledge comes from the how to fight your ticket and win book.

    EWYLTJ: Including the tidbit about the judge's comments in the proposed statement is the easy part. The hard part is making sure it's still there in the settled statement. The main problem is that some judges' idea of 'settling the proposed statement' is to whitewash any evidence that supports the stated grounds for appeal. If there is no recording or an official report, it's a he-said/she-said against the judge, which the appelant loses unless there's some evidence. I've read that an appelant can use personal notes in order to help the judge refresh his memory - even if the recording couldn't be entered as an official record of the proceedings. The book does spend some time on ways to deal with recalcitrant judges who want to fudge the settled statement, but none of them are easy, fast, or pretty.

    blewis: Thanks for the tip, I'll have my GF call the court and ask that question.

  7. #7
    Join Date
    Apr 2009
    Posts
    7

    Default Re: Is the Judge's Statement Against Trials De Novo Grounds for Appeal

    It seems that you were not the only ones that lost the case that day. I wonder if you could contact the other people to get them to be witness of the judge's statement and general attitude that day for your appeal.

    I have no legal background though, preparing for a trial de novo myself.

    1. Sponsored Links
       

Similar Threads

  1. Premises Liability: Judgment After Trial De Novo on Appeal from Small Claims - Where is the End
    By Madam in forum Accidents and Injuries
    Replies: 4
    Last Post: 03-17-2011, 03:33 AM
  2. Appeals: Judgment After Trial De Novo on Appeal from Small Claims Court
    By Madam in forum Civil Procedure
    Replies: 6
    Last Post: 03-16-2011, 08:26 PM
  3. Appeals: Trial De Novo on Small Claims Appeal
    By rbishot in forum Civil Procedure
    Replies: 2
    Last Post: 02-22-2011, 04:32 PM
  4. Appeals: Small Claims Appeal / Trial De Novo
    By Plaintiff in California in forum Civil Procedure
    Replies: 2
    Last Post: 06-27-2010, 01:50 PM
  5. Appeals: Adulterated Video Evidence - Is It Grounds for an Appeal
    By IanCar in forum Civil Procedure
    Replies: 1
    Last Post: 02-10-2009, 07:46 AM
 
 
Sponsored Links

Legal Help, Information and Resources