Free: How the best lawyers
consistently win DUI cases

To win regularly, you need to capture both the hearts and the minds of jurors.

The mind is simpler to persuade. You capture jurors’ minds through your cross examination, if the defense is one of prosecutorial problems … bad machine or bad procedures, or through your witnesses if the defense is something else … GERD, necessity, etc.

The heart is more difficult. To persuade the heart, you need to give jurors a simple answer to the question posed by family and friends, “How come you let the drunk go?” You need to make jurors want to let your client off.

These chapters from Bruce Kapsack’s Innovative DUI Trial Tools provide strategies and language for persuading both hearts and minds. These methods and arguments have succeeded in trial after trial, and can work for you.

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Chapter 1 Pre-Trial Discovery and Motion Practice

Chapter 2 Jury Selection

Chapter 3 Opening Statements

Chapter 4 Cross-Examination

Chapter 5 Preparation of Defense Witnesses and Direct Examination

Chapter 6 The Client’s Testimony

Chapter 7 Closing Arguments

Chapter 8 Demonstrative Evidence

Here are the first 5 pages of a 15-page chapter:

CHAPTER 2

Jury Selection

I. Purpose of Voir Dire

§2:01 Exposing Juror Bias

§2:02 Limits on Time and Scope

II. What Kind of Juror Do You Want?

A. Ideal Juror Depends on Theory of Case

§2:10 Importance of Theory of Case

§2:11 Improperly Conducted Breath Test

§2:12 Disconnect Cases

§2:13 Bad SFST Performance

§2:14 Rising Alcohol Cases

§2:15 Refusal Cases

§2:16 Drug Cases

B. Jurors Usually Best to Avoid

§2:30 Prospective Jurors With Strong Anti-Alcohol Positions

§2:31 Prospective Jurors With Prior DUI Charges

§2:32 Truckers and Other High Mileage Drivers

III. Sample Voir Dire Questions

§2:40 How to Use These Questions

§2:41 Questions Regarding Relationship to Defendant, Witnesses, Law Enforcement

§2:42 Questions Related to Police Officers

§2:43 Questions Related to Punishment

§2:44 Questions Related to Scientific Evidence

§2:45 Questions Related to Expert Opinion

§2:46 Questions Related to Blood Analysis

§2:47 Questions Regarding Constitutional Issues

§2:48 Questions Related to Motor Skills

§2:49 Questions Related to Physical Characteristics of Intoxicated Persons

§2:50 Questions Regarding Memory

§2:51 Questions Regarding Odor of Alcohol

§2:52 Questions Regarding Nervousness

§2:53 Questions Regarding Intoxication

§2:54 Questions Related to Bodily Functions

§2:55 Questions Related to Offense of DUI

§2:56 Questions Related to Alcohol

§2:57 Staircase Metaphor

IV. Jury Questionnaires

§2:70 How to Use

§2:71 Sample Jury Questionnaire

V. Slides and Scorecard to Use When Voir Dire Is Limited

§2:80 How to Use

§2:81 Sample Slides

I. Purpose of Voir Dire

§2:01 Exposing Juror Bias

One touchstone of a fair trial is an impartial trier of fact—”a jury capable and willing to decide the case solely on the evidence before it.” Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982). Voir dire examination protects that right by exposing possible biases, both known and unknown, on the part of potential jurors. Demonstrated bias in the responses to questions on voir dire may result in a juror being excused for cause; hints of bias not sufficient to warrant challenge for cause may assist parties in exercising their peremptory challenges. If this process is to serve its purpose, the necessity of truthful answers by prospective jurors is obvious. McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984).

Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored. Without an adequate voir dire, the trial judge’s responsibility to remove prospective jurors who will not be able to impartially to follow the court’s instructions and evaluate the evidence cannot be fulfilled. See Connors v. United States, 158 U.S. 408, 413, 15 S.Ct. 951, 953, 39 L.Ed. 1033 (1895). Similarly, lack of adequate voir dire impairs the defendant’s right to exercise peremptory challenges where provided by statute or rule, as they are in the federal courts. Rosales-Lopez v. U.S., 451 U.S. 182 (1981).

The questioning should be conducted by counsel in such a way as to not only elicit information regarding possible bias, but also to assist the defense in creating a jury it feels appropriate to the case. “Voir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges.” Mu’Min v. Virginia, 500 U.S. 415 (1991).

§2:02 Limits on Time and Scope

How often are we told that our voir dire is going to be limited in either time or scope? Is this right? Should we allow this to happen? I say no. Despite what many judges seem to think about voir dire, it is not only a critical aspect of jury trials, but also a part of the defendant’s fundamental due process to engage in full probing voir dire.

As for limits on how long or how much questioning is allowable, while it is discretionary with the judge, there is authority for quite a lengthy process. “The voir dire in American trials tends to be extensive and probing, operating as a predicate for the exercise of peremptories. . . .” Swain v. Alabama, 380 U.S. 202 (1965).

With regard to the scope of voir dire, judges often believe that any attempt of counsel to ingratiate themselves with the jury is inappropriate. These judges feel that the questioning must and should be limited to challenges for cause, or as outlined above, to possible peremptory challenges only. They see no reason to allow counsel to explain his or her case, or to “soften” up the jury to counsel’s position. However, there is authority to counter this position.

“Voir dire permits a party to establish a relation, if not a bond of trust, with the jurors. This relation continues throughout the entire trial and may in some cases extend to the sentencing as well.” Powers v. Ohio, 499 U.S. 400 (1991).

“If conducted properly, voir dire can inform litigants about potential jurors, making reliance upon stereotypical and pejorative notions about a particular gender or race both unnecessary and unwise. Voir dire provides a means of discovering actual or implied bias and a firmer basis upon which the parties may exercise their peremptory challenges intelligently. See, e.g., Nebraska Press Assn. v. Stuart, 427 U.S. 539, 602, 96 S.Ct. 2791, 2823, 49 L.Ed.2d 683 (1976) (Brennan, J., concurring in judgment) (voir dire “facilitate[s] intelligent exercise of peremptory challenges and [helps] uncover factors that would dictate disqualification for cause”); United States v. Whitt, 718 F.2d 1494, 1497 (10th 1983) (“Without an adequate foundation [laid by voir dire], counsel cannot exercise sensitive and intelligent peremptory challenges”).” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).

So it is clear that counsel be given plenty of leeway in both time and scope of questioning in order to decide on who to strike from the potential panel.

[§§2:03-2:09 Reserved]

II. What Kind of Juror Do You Want?

A. Ideal Juror Depends on Theory of Case

§2:10 Importance of Theory of Case

The ideal juror is one who does in fact consume alcohol, who drives, and who seems open to whatever the theme of your case may be.

In order to decide what kind of juror you want for your case, you need to first decide on the theory of defense. It is often a losing proposition to approach a DUI trial, or perhaps any trial, with a “shotgun” defense. This kind of “throw it all up and see what sticks” is usually perceived as the desperate act of a losing defense. Find those one or two points that you have most strongly on your side and use them as the cornerstone of the case.

This is not to say that you should not bring up other issues if they exist. Instead, tailor those issues to the main theme of the case.

It is very important to know exactly what your theory will be. Determine whether you have medical or contamination issues, some kind of “disconnect,” a refusal based on confusion or individual liberty issues, a bad test, or any of the dozens of defenses that exist. You can determine what kind of juror would be best for you only after you have decided what the main point of attack will be.

§2:11 Improperly Conducted Breath Test

Suppose your theme is that the breath test was improperly conducted due to no deprivation or observation period. This does not mean you do not bring up that the officer wrote the wrong make or color of the car in his report. What you do is show how the officer demonstrated sloppiness in his report, which is consistent with the sloppiness he showed in administering the breath test.

In this type of case, you would probably want a juror who believes in procedures. Former military or an accountant-type individual would be best. You want someone who would agree that procedures and safeguards need to be followed to the letter, not someone who believes that “close enough for government work” is correct.

§2:12 Disconnect Cases

If you are arguing disconnect, that is, when the chemical test results are inconsistent with the alleged drinking pattern and the performance on SFSTs, then you want skeptics. Look for people who agree that machines are imperfect and people who think that a parent knows when a child is sick despite what the doctor or thermometer may say.

§2:13 Bad SFST Performance

To put it bluntly, get physically unfit people for cases in which the defendant performed poorly on SFSTs. Overweight, the elderly, and those who have complained of back problems will not be able to perform the tests and will have sympathy with your client on that issue.

However, you do want to stay away from people with obvious afflictions as they may consider their choice as a juror as an obvious attempt by you to exploit their issues.

§2:14 Rising Alcohol Cases

For a rising alcohol case, I always like to get people who are either “feeling sick” or just getting over a cold. They have two aspects that you can exploit: first, if they say they might be getting sick, you can query them as to whether they were sick yesterday, or, if they are feeling better, does it mean they are sick today compared to yesterday? In other words, liken the coming and goings of a cold with the up and down of alcohol’s influence or effects.

§2:15 Refusal Cases

There are basically two kinds of refusal cases: confusion and libertarian. Medical refusals due to mental issues, physical disabilities or the like are in the first category. For the confusion case, you are looking for a juror heavy on emotion and sympathy; someone who could envision that at the scene of an accident, the driver may be overwhelmed by all the activity. A juror with less education and not a lot of life experience would also be good.

Stay away from someone who seems cold and mechanical. He or she will figure that if asked, the driver should have understood. Military people or law enforcement-oriented people should also be avoided.

As for someone who refused because of a correct or incorrect belief that he or she had that right, find jurors who believe in individual liberty, someone who has trouble with authority, or who believes that the government is too big and too much in our lives.

§2:16 Drug Cases

Drug cases present an interesting dilemma due to the nature of the charges. Currently, and for the foreseeable future, there is no per se limit for any drug above which a person is deemed to be under the influence because the research does not support such a finding. A DUI drug case is based more on perceptions and opinions of the officers and jurors than on the concentration of a drug in the defendant’s bloodstream.

The first issue in selecting DUI drug jurors is to find people who will not automatically accept what the officer says. You need jurors who will draw their own conclusion based on their independent evaluation of the events. DUI drug cases are usually circumstantial in nature; that is to say that there will obviously be proof of drugs, but only circumstantial proof of impairment. It is important to educate the jurors to the harm in jumping to conclusions.

In DUI drug cases, you may also have to confront the illegal use of the drugs. If the defendant has a prescription for the drug, this is not a problem, and the warning label may be the best or worse evidence in the case. But in a case of illegal drug use, the jurors must be made to realize that the question of the drug use is not before them.

Q: Mr. Juror, you understand that Bob is charged with driving under the influence of marijuana.

Q: Now, the fact that he used marijuana is not before you.

Q: If you found out that he did smoke marijuana, but found he drove fine, would you be okay with letting him go?

Q: So the fact that he used marijuana, which is illegal but not before you, will not color your decision in any way?

Follow up on the answer to truly understand this juror.

Q: You understand that it is the prosecution that decided to bring just the DUI charges and not the drug charges?

Q: You understand there may be a number of reasons for this and none of that is relevant here?

Q: How do you feel about that?

[§§2:17-2:29 Reserved]

B. Jurors Usually Best to Avoid

§2:30 Prospective Jurors With Strong Anti-Alcohol Positions

It is probably obvious, but you want to stay away from people with strong anti-alcohol positions. These can be personal, as in the case of someone who has had bad experience around alcohol, to religious. Many of these individuals can be excused for cause if the proper questioning is performed. Start out by establishing that they are strong people, not subject to being intimidated by anyone. Then convince them that, should someone try to get them to change their point of view, they would consider it harassment. Finally, have them agree that they are firm in their non-alcohol position.

Q: Ms. Juror, you told the court you do not believe in drinking and driving at all?

Q: Now this is your position, and if you were a politician you would follow it?

Q: It does not matter what your neighbor believes on this?

Q: To you, if someone drinks and drives, that is it?

Q: If I were to argue with you on this point, you would be upset, possibly even angry?

Q: No one should tell you to accept what you feel is wrong as right?

Q: In other words, no one can convince you that drinking and driving is acceptable?

Q: And any attempt to do so would be harassing and intimidating?

Under most state law any attempt to harass or intimidate a juror is misconduct. If this line of questioning has been followed, any attempt by the judge to sway the juror or to rehabilitate him or her is harassment and therefore misconduct. It will also alienate the judge and that juror since you will be objecting on his or her behalf.

This line of establishing that the juror has an unassailable position can be used for any aspect. It will also be critical if and when any notes regarding a deadlock are received. Should such a note come out of the deliberations, you will have fodder to argue that the judge cannot engage in any attempt to “force” a verdict.

§2:31 Prospective Jurors With Prior DUI Charges

Another juror who is generally not good for a DUI case is an individual who has had a prior DUI. These people tend to (1) believe everyone is guilty since they were, (2) may resent your client for going to trial if they pleaded to an offense, or (3) may have a hidden thought that since a first offense is not so bad, this must be more than that. But, keep them if your questioning reveals that they went to trial or wanted to go to trial or in other ways feel they were not treated fairly.

§2:32 Truckers and Other High Mileage Drivers

Recent experience has taught us that people who do a lot of driving for a living, truckers especially, are not good for a DUI jury. They see too much and make too many assumptions with regards to this offense.

[§§2:33-2:39 Reserved]

III. Sample Voir Dire Questions

§2:40 How to Use These Questions

While many of us deal with time or scope limitations on our voir dire, and how to handle that is dealt with elsewhere in this chapter [see §§2:80-2:81], sometimes a judge will give you more leeway. If you have the opportunity for extensive voir dire, then the following list of questions can be used. If time is limited, then look at this list for ideas and concentrate on those areas that fit in with your theory of defense.

Additionally, many of these questions can, and in some jurisdictions are, handled by the judge. Give the list to the judge as a suggestion of topics to be covered. Again, provide only those that fit your particular case. Judges are often receptive to work savings and time efficiencies; this list provides both.

To make it even more likely that the list will be used, provide the prosecution a copy in advance of the trial and ask for their input. If both sides find it acceptable, the judge is more likely to use the questions.

For the prosecution’s perspective on voir dire and sample prosecution voir dire questions, see Appendix A The District Attorney’s Manual.

§2:41 Questions Regarding Relationship to Defendant, Witnesses, Law Enforcement

Q: Does anyone know Mr._____________?

Q: Does anyone know any of the witnesses?

Q: Has anyone here ever been employed by, or have a spouse or close friend who has ever been employed by any of the following agencies:

a. The District Attorney’s Office.

b. The U.S. Attorney’s Office.

c. The court system.

d. Probation or parole.

e. Police.

f. Sheriff.

g. Constable.

h. Department of Public Safety.

i. FBI.

j. U.S. Customs.

k. DEA.

l. Military police.

m. The military.

n. A law office.

o. Fire Department arson squad.

p. Citizens’ crime groups.

Q: Has anyone here ever worked or served as, or had a spouse or close friend who has ever worked or served as:

a. A security guard.

b. A grand juror.

c. A juror (civil and/or criminal).

§2:42 Questions Related to Police Officers

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