The following is a chapter from the ebook Defending Your Dog.

Three Classic Defenses

There are three classic defenses in dog court. They are the procedural defense, the denial, and the affirmative defense. There's also the sentence bargain or plea bargain, which I will get to in another chapter. We're going to look at each one of the three classic defenses individually.

The Procedural Defense - "Maybe It Happened, But My Rights Have Been Violated!"

A procedural defense is one that is based on the prosecutor failing to do something he was required to do under the procedural law for the dog court. It also can be based on the citation not having sufficient information. The latter is often called a due process defense, because you are saying that you did not get information to be able to defend yourself.

In the prior chapters, I showed you how to find the law and read it. By now you have found, among other things, the procedural law applicable to your dog court hearing. You have made a copy of it, and this is the time to take another look at it. As you read through it and focus on the elements required by law to cite you into court, ask yourself whether there are one or more things the prosecutor was supposed to do, but failed to do; or ask yourself whether there is some blank on the citation that should have been filled in, according to the procedural law. For example, the date of your violation might not have been written on the citation. Another example would be notice of hearing; you might not have been given enough days between the date of the citation and the date that you are required to appear at the dog court hearing. Look very closely at the citation and the calendar and figure out if there are any procedural defenses available to you.

You might be wondering whether a procedural defense is as powerful as a substantive defense, meaning a defense based on the facts. The answer is yes! For some reason, all courts and hearing officers focus very sharply on procedural irregularities. Any deviation from the proper procedure can cause the prosecutor to lose his case against you, even if he has plenty of witnesses and other evidence that otherwise would have condemned you. Remember that the United States Constitution, and the constitutions of all the states, have due process clauses which state that a person cannot be deprived of liberty or property without due process of law. The procedural law that governs the dog court hearing sets forth due process, so a failure to comply with the law, or satisfy its requirements, is a due process violation.

The way you argue a due process violation is to point out that you are not being treated fairly. The term "due process" is a legal term that many lay people are quite comfortable using, because it is so common. But if you don't want to use it, you don't have to. Frankly, the author of this book, Attorney Kenneth Phillips, uses the word unfair in court because it is a very powerful word, even though it cannot be found anywhere in the Constitution.

Be sure to show the judge or hearing officer just what it means to be deprived of whatever information was missing in the citation. For example, if you see that it has the wrong date, you can say that you have had no way of preparing for the hearing in an efficient and fair manner because you don't know what was being alleged for the date that the real event happened. So you can say that or something similar and impress upon the judge or hearing officer that you indeed are being deprived of proper notice or of your other rights under the law.

The Denial - "It Didn't Happen That Way At All!"

The second type of defense is the substantive defense. This is the one that you see on television and in the movies. In the substantive defense you do one of two things. The first option is to prove that something different happened then what the officer believed. For example, and alibi defense is a substantive defense because it requires you to prove your alibi. In this kind of a defense, you have to prove something. For that reason, this kind of a defense is often referred to as an "affirmative defense." An affirmative defense can be difficult to pull off because it requires you to come to court and prove something. Naturally the judge or hearing officer is quite used to the prosecutor proving his case, so you not only have to come up with proof but also deal with some bias on the part of the judge or hearing officer.

Another substantive defense is the one where you point out that one of the elements required to convict you under the statute or ordinance has not been proved. In this kind of a defense, you are focusing a weakness in the prosecutor's case. For example, if you are accused of violating a leash law, and the law in question refers to a 6-foot leash, you could defend yourself by saying that the prosecutor failed to produce the leash so that it could be measured in court. If the leash length is an element of the offense, then the leash has to be produced in court so that the judge or hearing officer can see how long it was.

Sometimes the other party has both the facts and the law on his side, but he cannot prove his case because you can knock out some of his evidence. For example, consider the hearsay rule. One of the things that trips up prosecutors and anybody else who has to present a case in court is the hearsay rule. You probably use the word hearsay yourself without knowing what it means. Essentially, hearsay is something stated in a court proceeding which should have been directly produced through a witness or through a physical object. For example, if the prosecutor says that there was no leash, that's hearsay because it's coming from the prosecutor and not from a witness who saw what happened. If the witness testifies that the leash was than 6 feet long, that's hearsay because the leash would speak for itself; in other words, it is a physical object that can and should be produced in court so that the hearing officer or judge and see exactly how long it is.

There are many forms of hearsay, and many exceptions to the hearsay rule. In a later chapter of this book, we will be looking at the rule in detail. One of the most important exceptions is that which was created for documents relied upon in the course of business, and maintained properly prior to being produced in court or at your hearing. If it's normal to maintain a record of something then that record is admissible because it is a normal document that is relied upon in the usual course of business. A veterinary record or file would be a good example of this. Another important exception is the exception for official documents. For example, the animal control records pertaining to a quarantine are admissible because they are kept a certain way in the usual course of business. If you are accused of violating a quarantine order, a clerk from the animal control department could simply produce the quarantine order and it would be admissible, because it is an official document. One of the ways you can attack an official document, however, is to point out that they often contain a good deal of hearsay. For example, if your dog is accused of biting some people on two or more occasions, the prosecutor should produce the victims of those prior incidents, not simply rely on records from the animal control department that state that there was a bite. Those records certainly are official documents, but the statements about there being other incidents are actually hearsay, and should not be relied upon by the prosecutor or by the court.

One of the biggest hearsay exceptions is the procedural law that says that hearsay in dog court is admissible. Not all dog courts have this kind of a law, but many do. You need to carefully read the procedural law in order to determine whether you are in a court which will admit hearsay evidence. If that is the case, you still can argue that despite the fact that hearsay is admissible, a certain piece of evidence is so critical to the prosecutor's case that the court should not allow that element to be proved only by hearsay. This happens to be a good argument even though the prosecutor might be taken by surprise if you present it.

The Affirmative Defense

An affirmative defense is a defense based on something new that you are introducing to the case. A good example is the so-called alibi defense. In a dog court hearing, the alibi defense would be based on either an error in the citation which set forth the wrong date or time of the alleged violation, or a straight out denial that you and your dog were in the place alleged by the animal control officer at the time of the alleged violation. So an affirmative defense is something new that you are bringing into the case which is of such importance that, if you could prove it, you would win and the prosecutor would lose.

Affirmative defenses are one of the least favorites of those who defend cases like these. The reason is that the burden of proof is on you. By that I mean that you have to convince the hearing officer or judge that what you are saying is true and happened. The sum of the evidence must add up in your favor. Sometimes we say that the weight of the evidence has to be on your side, or that the preponderance of the evidence must prove your case. No matter how you express it, the bottom line is that the truth of your story has to outweigh the allegation made by the animal control officer or prosecutor.

One of the reasons why we don't like affirmative defenses is that the prosecutor or animal control officer has built in credibility with the hearing officer. You come in as an outsider, while the hearing officer is there all the time and the judge or hearing officer already trusts that person. So you have a tough burden when you come in with an affirmative defense. It's not impossible, but it's tough.

You also have to remember that there is a tendency of any hearing officer or judge to count the witnesses for and against one side or the other, and then to rule based on the number of people that support a certain version of the facts. This can work for you or against you, because on the one hand you might have a whole lot of people who can support your defense but on the other hand it might just be you saying that you were at home asleep at the time that the animal control officer thought you were in a park with your dog off leash. So when you are evaluating what kind of a defense makes sense in your case, remember this as you put your case together and make your decisions. You might decide to use some other kind of a defense, or at least to rely more heavily on one of your other defenses.

I don't want to sound overly negative. If you have a good affirmative defense, and you feel that you can prove it, by all means rely on it. An affirmative defense based on the truth is very powerful. It often will completely confuse the prosecutor, who usually has no idea you are going to show up with witnesses establishing a completely different set of facts than those which the prosecutor thought existed. It is for that reason that you have to make a tactical decision as to whether you want to mention the affirmative defense to the prosecutor prior to the hearing. In many cases, a good defense attorney will not even hint about the existence of an affirmative defense such as an alibi until the actual hearing is taking place. This gives you the advantage of surprise, like a surprise attack. It can really help you to have the prosecuting attorney or animal control officer completely confused at the time of the hearing, as well as unprepared.

If you have trouble figuring out whether your case is going to be based on an affirmative defense, simply ask yourself whether your defense essentially is a denial. If you are denying something then it's probably not an affirmative defense. For example, if you are saying that it wasn't your dog or that it didn't take place in the way that the animal control officer alleged, those are denials and not affirmative defenses. Even if you have witnesses who prove that it took place in a different manner or at a different time or location, it is still simply a defense based on denial, as opposed to a defense based on something entirely new, which is what the affirmative defense is.