DUI Trial Tips
Find a villain,
presenting bad facts, opening advice, and more.
by Donald J. Bartell
Excerpted from
Attacking &
Defending Drunk Driving Tests
§20:60
The Pretrial Conference
Many judges will quiz the defense
attorney during the pretrial conference about what the defense is going
to be. Resist giving away your case. The prosecutor is also present at
the conference. Tell one, and you have told both.
It can be an awkward moment for the
defense attorney. The defense attorney must answer the question as
deftly as possible, without offending the court, and at the same time,
without revealing the defense.
There is almost always one reply the
defense attorney can give the court. Assuming this to be true (and it
almost always is) inform the court that the defense involves
confidential client communication that you cannot reveal. Most judges
will respect the lawyer-client relationship, and not probe further.
§20:61
Be Likeable
A trial is not a mathematical equation
where if you prove x the jury
will return verdict x. The
lack of mathematical precision is due to the fact that there are human
beings involved in the trial. Favorable verdicts are more readily
secured if the proof is there and
the jury feels good about the decision, rather than if just the proof is
there.
One way to help the jury feel good
about the decision is for both counsel and the client to be likeable.
Comment:
A judge who had served a long time on
the bench once remarked that the number one factor leading to acquittals
in his courtroom was the likeability of the defendant. He just might be
right.
Being polite, courteous and
professional goes a long way toward making counsel likeable. The client
can also be appealing to the jury even if the client does not testify.
Follow these guidelines:
•
No grimacing or whining during negative testimony about the
client.
•
Be on time and dress appropriate.
•
If something funny arises in the trial, everyone should feel free
to lightly chuckle.
•
The attorney can occasionally be humorous as long as it is
limited and not contrived.
§20:62
Dress the Client Appropriately
The client’s attire should be business
professional; nothing flashy. Lose the pager, cell phone, sun glasses
and jewelry. The client should look like the boy or girl next door, not
some societal menace.
The client should not “out-dress” the
lawyer. Generally our office does not have male clients wear suit
jackets, just a shirt and tie with slacks. The exception is if the
client has substantial girth around the mid section. This look suggests
to some that the client drinks prodigious amounts of beer. Cover up this
with a suit or sports jacket.
§20:63
Emphasize the Client’s Cooperation
If the client’s contact with the
police officer was cordial, be sure to have the officer tell the jury
that the client was cooperative. Cooperative people are likeable.
§20:64
Keep it Simple
Like most people, jurors are more
comfortable with decisions that they can explain. If you want jurors to
be comfortable about their decisions, simpler defenses are more
effective than elaborate ones.
Jurors need to be able to articulate
the reason they acquitted an accused drunk driver to their family and
friends. Consider this when formulating your defense. Avoid concocting
some complicated defense theory.
§20:65
Find a Villain
Every good story needs a villain.
Make the villain the breath machine,
the state’s expert, the police officer, the poorly designed road,
government malaise or even happenstance. Anyone or anything, other than
the defendant, makes for a good candidate for villainhood.
Direct the fire elsewhere, but keep in
mind that you can only have so much disdain. Also, you usually cannot
make more than one prosecution witness the villain. Question and
challenge everyone, but attack only one.
§20:66
Lay a Foundation and Present the Bad Fact Last
One of the best ways to deal with a
bad fact is to put the fact in context. Do this by first laying a
foundation for why the bad fact arose. In essence, give a justification
for the harmful fact’s existence.
Use this technique in any phase of the
case. It works in opening statement, cross examination of witnesses,
direct examination, closing argument, and motions before the court.
Example
§20:67
Surround the Bad Fact With Good Facts
Another way to minimize the impact of
a bad fact is to surround the fact with good facts. Doing this informs
the jury that not all is bad.
Explain to the jury in your closing
argument that you wanted to give them the whole story. The prosecutor
only gave the jury a snap shot, but you the defense attorney, played the
whole video.
•
Kept his hands down at his sides?
• Touched his heel to his toe?
•
He just stepped off the line a few times?
•
Point out to the jury the many good things the defendant did that
are not consistent with being under the influence of alcohol. This is
not the same as giving an explanation for the bad fact. Rather this
technique, surrounding the bad fact with good facts, tells the jury
there is more to the story.
practice tip
In closing argument when dealing with
a walk the line test, one way to explain to jurors that the test does
not have any bearing on showing the defendant’s ability to drive, is to
say this: When you go to the Department of Motor Vehicles to get your
license, you may have to stand in line, but you do not have to walk the
line.
§20:68
Juxtapose the Bad Fact With Worse Facts
You can lessen the impact of a bad
fact by juxtaposing it with even worse facts that never occurred. The
idea is to lessen the impact of a bad fact by comparing it to something
worse that could have happened.
Juxtaposing a fact is easy and
effective.
example
Suppose that your client
who was observed weaving his or her car down the highway. Phrase these
questions to the officer:
•
The client did not brake erratically?
•
Cross over the fog line?
•
Cut across three lanes of traffic?
•
And did not crash the car?
•
He just went a few feet out of his lane?
In comparison to crashing
a car, a little weaving does not seem so bad.
§20:69 Divert
Attention From Bad Facts by Attacking
If you cannot obscure it, surround it, or juxtapose it, consider
attacking a bad fact by attacking something related to the bad fact done
by the other side. For example, if your client weaved, you may challenge
the officer for following too closely:
Q: You were behind my
client?
A: Yes.
Q: You approached him
from behind?
A: That’s how we
usually do it.
Q: You were close
enough to see his driving movements?
A: Sure.
Q: You had your
headlights on?
A: That’s why I could
see him.
Q: Shining headlights
in a rear view mirror can be pretty distracting? [You do not care what
the answer is you are simply providing an alternative explanation for
the bad fact of weaving. Note:
shining is a good verb here.]
A: Not from where I
was.
Q: Some people even
consider it rude driving—to shine their headlights on someone?
Prosecutor: Objection, argumentative. The Court: Sustained.
Q: If you approached
him from behind, you would be accelerating from the vantage point of the
rear view mirror in his car?
A: Yes.
Q: And while you were
accelerating your headlights were shining forward? [Again you do not
care what the answer is. Your goal is to shift the focus away from the
bad fact as much as possible by attacking, in this instance, the
officer’s driving actions.]
B.
Opening Statements
§20:70
An Opening Statement Is a Necessity
Because overcoming the presumption of
guilt associated with a DUI charge is a major hurdle in successfully
defending a DUI case, presenting an opening statement at the beginning
of the case (rather than after the prosecution has rested) is a
necessity.
An opening statement given at the
outset of the case immediately strikes against the presumption of guilt.
It renews the efforts made by the defense during voir dire. Jury
curiosity is the antidote to the presumption of guilt. Pique the jury’s
curiosity through your opening statement.
You want the jurors to sense that the
defense really plans to defend the case. Most people, jurors included,
want to see some drama rather than a predictable affair.
practice tip
As a general rule, do not attack the
police officer in your opening statement. You cannot attack a witness
who is initially perceived to be a good person until the evidence first
shows that the witness deserves such treatment. Once the witness has
become a disfavored witness, you can attack if you want. Be especially
cautious in your opening statement about attacking an officer who really
is a good or likeable police officer. Since the officer is usually the
first witness in the case, there will be an immediate disconnect with
your opening statement claims of impropriety and that first witness’
demeanor. The defense lawyer’s credibility will be the casualty.
§20:71
Get the Defendant’s Story Out
The purpose of the opening statement
is to present the defendant’s side of the story. No better opportunity
exists. This is the time to tell the defense’s version of the facts,
when the jury’s interest is at its zenith.
Without divulging the theory of the
defense of the case, reveal any facts that the other side cannot alter.
For example, if the police officer’s report indicates that the
defendant’s walking was normal, tell the jury that your client’s gait
was fine. You can even go one more, and tell them that even the police
officer will tell them that your client’s walking was perfectly normal.
Practice Tip
Never fear divulging
facts that your opponent is locked into when you make an opening
statement. You are not divulging anything that the other side does not
already know, and you are not divulging anything that they can change.
If a witness has previously testified to a fact, or written a report
with respect to that fact, they are stuck with it.
§20:72
Discuss the Driving Pattern and the Field Sobriety Tests
Whatever the field sobriety tests are,
and whatever the driving pattern is, discuss these specifics in your
opening statement.
You are going to have to talk about
them anyhow, so you might as well talk about them while you are not
constrained to the question and answer format of direct and
cross-examination. The opening statement gives the attorney a bigger
canvas to paint the story on than does cross or direct examination.
Practice Tip
Draw a diagram of
the defendant’s driving pattern. For some reason many attorneys believe
that the only time a diagram should be drawn is in closing argument.
However, by then it may be too late. Pictures with words convey more
than just words alone. Furthermore, somehow the attorney becomes more
connected with the jury when the attorney draws a diagram in the opening
statement (jurors enjoy critiquing your handiwork). When an attorney
draws a diagram, giving the jurors some physical evidence, the jury
starts to get the feeling that there really is going to be a contested
trial in this case. Shaking the presumption of guilt from jurors is your
constant concern. Bring your
magic markers to court.
§20:73
Explain How the Breath or Blood Test Was Performed
Discuss the intricacies of the
chemical test in detail.
By discussing how the chemical testing
process works the attorney informs everyone in the courtroom that the
attorney has a command of the science in this case. This accomplishes
several things:
•
It almost inevitably leads to the court giving you more leeway
when cross-examining the other party’s expert.
•
The opposing counsel tends to refrain from interposing relevancy
objections during direct and cross examination of the experts.
•
The jury gives you more credibility in final argument because it
has been made clear from the outset that you have a command of the
field.
PRACTICE TIP
Tell the jury how little
the amount of alcohol is actually being measured in a chemical test.
This is especially important with high blood alcohol cases. The jury
should know that the amount of alcohol that is measured is on the
molecular level—invisible to the naked eye. Thus, contamination or
seemingly small mistakes can result in huge errors. One way to
demonstrate this is to hold up one of your hands to the jury and tell
them that this is what the amount of alcohol would look like in my hand
if it was a 0.00% (i.e., invisible) nothing would appear in my hand.
Then hold up your other hand and say this is what the amount of alcohol
would look like if I had a .17% in my hand—it too would be invisible. A
level of .17% suddenly does not look so far removed from a 0.00% level.
The jurors are starting to get comfortable with the concept of an
acquittal.
§20:74
Tell the Jury the Result of the Blood Alcohol Test
If the prosecutor does not mention the
blood alcohol test results make sure you do. Even if the prosecutor
mentions the results make sure you do as well. Let the jury know you are
not afraid of the test results.
If the results are quite high, mention
the results several times in your opening statement to numb the jury
from the shock of hearing the results during the testimony to come. Let
the jury know you are confident that the results do not reflect your
client’s true alcohol level.
Running away from results that are
going to appear anyway is valueless and may even harm your case.
§20:75
Make the Opening Statement a Defense Rebuttal
One of the worst times in trial for
the defense is when the prosecutor gives the rebuttal in closing
argument. Many defense attorneys have wished they could give a rebuttal.
However, you can make your opening statement a type of rebuttal.
In your opening statement, point out
facts that the prosecution overlooked. This leaves the jury with the
impression that the prosecutor was trying to hide something. It also
unnerves many prosecutors.
If you present rebuttal in your
opening statement then at least for a while, the defense has the last
word. The prosecution has to wait days until the closing argument to
respond.
§20:76
Tell the Jury What You Want
Be sure to tell jurors what you want.
If you have worked this hard, you do not want the jurors to mistake what
you want in the end.
The jurors may think that you will be
happy with a split verdict: not guilty on the under the influence
charge, and guilty of driving over the per se limit. This is a disaster
for the defense. Always tell the jurors you want them to acquit the
client of all charges.
Donald Bartell
is on the Board of Directors of the California DUI Lawyers Association,
and is a frequent lecturer around the state on DUI trial tactics.
He has been asked to participate in the California DUI Lawyers
Association and National College for DUI Defense’s jury research project
investigating what arguments resonate with jurors in drunk driving
cases. He is the author of
Attacking and Defending Drunk Driving Tests, from which this
article is excerpted.
