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Coordinated Attack in DUI Trials Experienced trial lawyers often do things based on instinct, and their instinct is honed through experience. This combination of instinct and experience gives them inside information on how to maximize their chances of success in trial. That kind of experience is distilled and catalogued in this 37-page chapter from Donald Bartell’s Attacking and Defending Drunk Driving Tests, which provides inside information on:
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Coordinated Attack in DUI
Trials Formulas, timeline, bad facts, rebuttal,
jury instructions, techniques for hanging a case, and much more by Donald Bartell Excerpted from
Attacking and Defending Drunk Driving Tests
I. General Points §20:01 The Challenge of Drunk Driving
Cases §20:02 The Inside Information §20:03 The Basic Problem §20:04 The Basic Strategy §20:05 Checklist for Coordinating the
Attack II. Steps Before Trial A. General Points §20:10 It’s a Deuce §20:11 Prepare the Jury Instructions
Before Trial B. Create a Time Line §20:20 Know the Facts §20:21 Discover Problems With the
Officer’s Investigation §20:22 Engage the Jury C. Visit the Scene §20:30 Firsthand Knowledge Is Essential §20:31 Check the Distances and Times §20:32 Get the Client Involved §20:33 Photograph the Scene §20:34 Keep Opposing Witnesses Honest D. Witness and Discovery Problems §20:40 Exchanging Witness Lists §20:41 Subpoenaing Witnesses §20:42 Keep Your Expert Available III. The Science of Making Objections in DUI Cases A. General Points §20:45 Basic Considerations §20:46 Rule Number One—Do You Want to
Object? §20:47 When to Make an Objection §20:48 Federalize Your Objections B. Recurring Objections §20:50 Voir Dire §20:51 Opening Statement §20:52 Examination of the Police Officer §20:53 Examination of the State’s
Percipient Witnesses §20:54 Examination of the Phlebotomist §20:55 Examination of the State’s
Criminalist §20:56 Cross-Examination of Defense
Percipient Witnesses §20:57 Cross-Examination of the Defense
Toxicologist §20:58 The Defendant §20:59 Closing Argument IV. The Trial A. General Points §20:60 The Pretrial Conference §20:61 Be Likeable §20:62 Dress the Client Appropriately §20:63 Emphasize the Client’s Cooperation §20:64 Keep it Simple §20:65 Find a Villain §20:66 Lay a Foundation and Present the
Bad Fact Last §20:67 Surround the Bad Fact With Good
Facts §20:68 Juxtapose the Bad Fact With Worse
Facts §20:69 Divert Attention From Bad Facts by
Attacking B. Opening Statements §20:70 An Opening Statement Is a Necessity §20:71 Get the Defendant’s Story Out §20:72 Discuss the Driving Pattern and the
Field Sobriety Tests §20:73 Explain How the Breath or Blood
Test Was Performed §20:74 Tell the Jury the Result of the
Blood Alcohol Test §20:75 Make the Opening Statement a
Defense Rebuttal §20:76 Tell the Jury What You Want C. Cross-Examining the State’s Witnesses 1. The Police Officer a. General Points §20:80 Begin With Good Points §20:81 Sometimes Begin With the Hot Topic §20:82 Sample Beginning Examination on the
Hot Topic §20:83 General Rules to Follow and to
Avoid b. Questions to Ask Arresting Officers §20:90 Academy Training §20:91 Video Tape §20:92 The Written ABC Test §20:93 Time the Field Sobriety Test
Instructions §20:94 The Arresting Officer Needs Only
Probable Cause §20:95 Things Not in the Police Report §20:96 Are You Sure? §20:97 Examine the Arresting Officer’s
Eyes §20:98 Dealing With Claims of Weaving §20:99 Cross-Examining Two Police Officers §20:100 The Defendant Never Asked to Go to the
Bathroom 2. The State’s Expert (Seven Step Method) §20:110 General Points §20:111 Step 1: The Expert’s Bias §20:112 Step 2: The Expert’s Lack of Personal
Knowledge §20:113 Step 3: The Expert’s Lack of True Expertise §20:114 Step 4: Ask Questions Beyond Legitimate
Dispute §20:115 Step 5: Show That Microscopic Measurements
Were Made §20:116 Step 6: Dismantle the Big Hypothetical §20:117 Step 7: Attack the Widmark Calculations 3. The Screening Device Coordinator §20:120 General Points §20:121 Move to Suppress §20:122 Object to References to the Calibration
Solution §20:123 Watch the Claim of the Calibration Solution
Percentage §20:124 Watch the Observation Period §20:125 Note the Lack of a Slope Detector §20:126 Ask for a Jury Instruction D. Defense Witnesses 1. The Defense Expert §20:130 Call the Expert First §20:131 Ask if the Defendant Was Under the Influence §20:132 Find Areas of Agreement With the State’s
Expert §20:133 Have the Expert Teach About the Tests 2. General Defense Witnesses §20:140 Find All Potential Witnesses §20:141 Tell the Truth §20:142 Establish the Defendant’s Drinking Pattern §20:143 Describe the Defendant’s Physical
Characteristics §20:144 Describe the Defendant’s Driving 3. The Defendant §20:150 Should the Defendant Testify? §20:151 Have the Defendant Testify Last §20:152 Have the Defendant Take Notes E. Closing Argument §20:160 Respond Early to Points Made by the Prosecutor §20:161 Add Something Beyond a Recitation of the Facts §20:162 Have the Jury’s Emotion Lead the Argument §20:163 Exploit Anecdotes the Prosecution Used in Voir
Dire §20:164 Tell the Jury Not to §20:165 Consumption of Alcohol Is Not the Same as
Being Under the Influence §20:166 Ask Rhetorical Questions and Look for Note
Taking §20:167 Can You Tell Jurors to Try the Field Sobriety
Tests Themselves? §20:168 Four Jury Instructions You Need to Argue §20:169 One Jury Instruction Problem You Need to
Know—The Rebuttal Presumption §20:170 Things That Help Hang Juries §20:171 Do Not Argue Reasonable Doubt Until the End I. General Points §20:01 The Challenge of Drunk Driving
Cases The defense of drunk driving cases is a substantially more intricate endeavor than prosecuting the charge. The main reasons for this are: • An enormous bias exists against people accused of drunk driving. • The government’s case is usually presented through the testimony of professional witnesses—witnesses who often know how to dress up the weakest case. This makes the defense generally more of a challenge. §20:02 The Inside Information Experienced trial lawyers often do things based on instinct, and their instinct is honed through experience. This combination of instinct and experience gives them inside information on how to maximize their chances of success in trial. That kind of experience is distilled and catalogued here, providing inside information on:
§20:03 The Basic Problem Drunk driving seminars can be invaluable. However, the presentations often address several different aspects of what occurs in a drunk driving trial (e.g., opening, direct, cross-examination), and leave people with the impression that the different parts of the trial are not related to each other. Watch an inexperienced attorney try a drunk driving
case and you can almost predict the questions the attorney will ask. The
attorney will exclaim, “Now we are going to talk about field sobriety
tests.” Like so many drunk driving seminar presentations, the attorney is
segmenting the case into little parts. Similar to dining at a The more experienced practitioner has learned that a unified field theory works best. When counsel implements this approach, the opposing counsel often will fail to grasp the true reason why the case had become unexpectedly difficult. A losing attorney often blames the defeat on ineffectual witnesses or a confused jury. However, the real confusion often lies in the presentation of the case. The failure to implement a coordinated attack or defense is often the cause. To be compelling, the case needs cohesion. Cohesion differs from having a theory of the case. The theory of the case gives the jurors an emotional attachment to your case. It is a one or two sentence statement that jurors can give to their family and friends as to why they voted a certain way (e.g., “The government lab was run in a slapdash manner” or “The officer ignored the required breath testing procedures”). A coordinated attack is the strategy used to give the case substance. If the theory of the case is the why jurors voted in a certain way, the coordinated attack is the how they managed to get there. §20:04 The Basic Strategy The basic strategy to coordinating the attack in a drunk driving case is twofold:
Establish that the case is not routine Understanding that guilt is not a foregone conclusion is the glue that holds the coordinated attack together. It overlies every aspect of the case, including convincing yourself that the attack will succeed. If you cannot convince yourself, how convincing will you be before the jury? The key to winning drunk driving trials is to convince the jury that the case is anything but a finished product. Let the jurors know that there is going to be a fight in the courtroom, and they are going to have front row seats. Only this atmosphere gives the defendant a chance.
PRACTICE TIP Bring energy to case. Demonstrate to the jury your
commitment by being prepared, knowledgeable and ready for the fight. Let the
jury see you during a court recess working in the hallway preparing an
exhibit, or going over your notes. Let them see the other attorney lounging
around during these recesses. If the case breaks for the weekend, let it be
known by one of your questions that you went back out to the scene again
over the weekend (e.g., “Officer, when I went back out to the scene again
this weekend I noticed ... ”). If you give the case your attention,
most jurors will give it theirs. The jurors will think: “If this attorney is
fighting so hard for this client, there must be something there.” Make it a
goal that due to your obvious exhaustive efforts, when the case is
completed, the jurors will want to ask you for your card. Link the parts Constantly look for ways to link one part of the case to another. Like trusses tied together, linking the different parts of the case strengthens the overall case. Look for as many ways as possible to coordinate the attack—cross reference the evidence. Seek to have at least two pieces of evidence to support any argument you are making. Three pieces of evidence are better than two, and four trump three. Keep in mind that you should prefer one good piece of evidence to three or four weak pieces of evidence. When initially outlining your case, consider making a list under each point you wish to make of the evidence you believe supports that point. Thus, the performance on the field sobriety tests may help attack the breath tests because the performance on the field sobriety tests are inconsistent with the measured breath test results. The field sobriety tests in turn are consistent with what the defendant told the officer he had to drink.
PRACTICE TIP If you find yourself with only one piece of evidence to
support a point you wish to make, exercise caution about making this point
the focal point of your case. If the jurors reject that piece of evidence,
your case will likely be rejected as well. However, when you think you have
only one piece of evidence supporting an issue, there is almost always some
additional circumstantial evidence that helps prove the point. The reason
for this is that very few facts materialize by themselves. The curious will
usually find footprints leading up to the evidence. Cases Are About What Cases Are About You can focus your time during trial showing that your client’s speech was not really slurred. You may even have witnesses who can testify that the defendant spoke in a normal voice. Cross-examination of the arresting officer will probably show that the officer did not know how the defendant normally sounds because the officer had never spoken with the defendant before the night of the arrest. At every juncture you can note that the police officer understood the defendant. Finally, you can then rail about this evidence in closing argument. And if you do all this, at the end of the day, through all your efforts, your trial will end up with a discussion of how slurred or unslurred your client’s speech was. Is this really where you want to be when the jurors retire for deliberations? Compare this focus to pointing out that the police officer gave the field sobriety exercises in a poor location. Then noting that the officer did not properly conduct the field sobriety exercises, and went on to improperly conduct the 15 minute observation period before the breath tests were given. Cases are about what cases are about. Not surprisingly, jurors usually attach importance to what the players in the drama attach importance. If you have evidence that your client spoke normally, by all means present it. However, do not make this the focus of your case. If there is a general rule of strategy in drunk driving cases it is this: Do not make the focus of your case on defensive points. Yes, defend against bad evidence. But try to make the focus of your case on offensive points. (For example, the police officer did not properly administer the field sobriety tests, or the breath machine was out of calibration, or the blood was not properly stored.) One way to help you retain this focus is to fill in the following blank before you start trial: I want this case to be mostly about _________________ (fill in the blank). In 2007 the California DUI Lawyers Association in
conjunction with the Some of key findings from the jury research project revealed the following:
Jury Selection The most important part of a drunk driving trial is jury selection. [See Chapter 19.] Keep extremely focused during jury selection. Get your
client immersed. Have a friend sit in anonymously to assist you. Remember:
Jury Selection, Jury Selection, Jury Selection! §20:05 Checklist for Coordinating the
Attack
[§§20:06-20:09 Reserved] II. Steps Before Trial A. General Points §20:10 It’s a Deuce In The number “2” or the word “deuce” is a good way to remember this: Perhaps the most important tip in preparing a drunk driving case for trial is to have a second attorney help you with the case. This does not mean that you will have two attorneys in the courtroom during trial. Having two defense attorneys seated at counsel table against a young inexperienced prosecutor will appear overbearing to jurors. The jurors’ sympathies may go to the prosecutor who astoundingly has suddenly become the underdog in the case. What having two lawyers on the case means is that, like any good fighter, you have a second in your corner. The second is someone you can bounce ideas off during trial; someone who can help you solve the many unexpected problems that inevitably occur during the trial of any case. The “deuce” attorney not only provides you with ideas, but also provides you with moral support during the trial. Defending someone charged with drunk driving tends to be a lone wolf experience. Many forces will be opposed to you during the trial. It is comforting and helpful to have that deuce attorney, at your disposal during trial. Experience has shown time and again this may be the most significant help you can give yourself in trial. Step one in getting ready for trial is to secure a colleague to be your second: the deuce attorney. §20:11 Prepare the Jury Instructions
Before Trial Preparing jury instructions before trial is not to prepare you about the law. The reality is that while there are some intricacies with respect to jury instructions in DUI cases, generally there is not that much law to know. During your closing argument you customarily will only discuss four jury instructions. However, prepare the jury instructions before trial as a favor to yourself. During trial the judge’s workload is mostly confined to making rulings. The one affirmative task the judge has is to finalize the jury instructions in whatever format the court uses. One morning, in the middle of the case, and when your mind is on other matters, the court may suddenly ask you to have your jury instructions ready for the court to review that afternoon. It is a relief to have the instructions already completed. [§§20:12-20:19 Reserved] B. Create a Time Line §20:20 Know the Facts One of the first things that should be done in preparing a DUI case for trial is to create a time line. List all of the times in chronological order that are set forth in the police report. Add to this list the times that your client started and stopped drinking and any other significant times. One of the benefits to creating a time line is that it compels you to know the facts. You may not be the most experienced lawyer in the court, or the most eloquent. However, you can be the most knowledgeable about the facts of the case. Thoroughly knowing the facts is a great advantage. When you know the facts you know how the play is going to end. You can recognize how a mistake made in Act II is going to affect the final scene. You can then capitalize on the mistake. It gives you a feeling almost of clairvoyance. You are constantly ahead of the other side because you understand the later significance of what has just occurred. It is similar to being a superior chess player. You know the impact a move has on the rest of the game. A mistake made in opening may not manifest itself in the opening game, or even in the middle game. It will, though, doom your opponent in the end game. You can see farther if you know the facts. §20:21 Discover Problems With the
Officer’s Investigation A time line instantly reveals problems in the investigation of the case. EXAMPLE If the officer indicates that the defendant was stopped at 12:30 a.m., and arrested at 12:40 a.m., the time line reveals that the investigation was done in a very hasty fashion. Only ten minutes lapsed between the time of the stop and the time of the arrest. During this time period the officer had to do all of the following:
PRACTICE TIP When a quick investigation occurs, a nice point can be made to the jury in closing argument. Remind the jury... (continued in pamphlet)
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