4 DUI Jury
Instructions You Need to Argue
The instructions
that help hang juries.
by Donald J. Bartell
Excerpted from
Attacking &
Defending Drunk Driving Tests
In almost every case you need to argue
the following four instructions:
-
The instruction describing the charge or charges.
-
The instruction that tells the jury how to apply circumstantial evidence.
-
The instruction dealing with individual opinion.
-
The reasonable doubt instruction.
The circumstantial evidence
instruction is a good one for the defense. Much of the evidence in a
drunk driving case is circumstantial. For example, the results of field
sobriety tests are circumstantial evidence of impairment. The
circumstantial evidence instruction informs jurors that if one view of
the circumstantial evidence points to innocence, and one to guilt, they
are to adopt the one that points to innocence. The jurors are also told
to reject an interpretation that is unreasonable. This is a terrific
instruction, but some jurors have difficulty grasping its full meaning.
The following chart makes the
instruction easy to understand:
Jury Chart for
Circumstantial Evidence Instruction
|
Prosecution Interpretation |
Defense
Interpretation |
Verdict |
|
Reasonable |
Reasonable |
Not
Guilty |
|
Unreasonable |
Unreasonable |
Not
Guilty |
|
Unreasonable |
Reasonable |
Not
Guilty |
|
Reasonable |
Unreasonable |
Guilty |
§20:169
One Jury Instruction Problem You Need to Know—the Rebuttal
Presumption
Criminal jury instructions cannot
contain mandatory presumptions against a defendant. [People
v. Roder, 33 Cal.3d 491,497-505 (1983).]
Such instructions unconstitutionally
diminish the prosecution’s burden of proof. The constitution requires
the prosecution to prove each element of a charge beyond a reasonable
doubt. [In re Winship, 397
Some statutes and related jury
instructions, though, have rebuttal presumptions. In the DUI context,
some of these instructions allow a jury to presume the alcohol level in
a chemical test equates to the alcohol level at the time of driving, if
the test is taken within a certain time period after driving. [See
California Vehicle Code §23152(b) (rebuttal presumption that a person is
.08% or higher if a test is taken within 3 hours of driving, and test is
.08% or greater).]
In practice such jury instructions
should be easy to defeat. All the defense needs to do is produce some
evidence that the presumption is not true. This rebuts the presumption,
and the instruction containing the presumption should not be given to
the jury. The defense lawyer can accomplish this by asking the state’s
expert if a test happens to be taken within three hours of driving, that
does not tell you what the alcohol level is at the time of driving? The
follow up question is: “Does the mere fact that a person tested over the
limit within three hours of driving tell you that the person was over
the limit at the time of driving?” The answer to both of these questions
is no. In addition, the defense expert may be able to testify that the
defendant was not over the limit at the time of driving.
The prosecutor may try to retain the
instruction by characterizing the jury instruction as merely a
permissive inference. However, because these statutes and jury
instructions are devoid of any scientific validity, the instruction
should not be given as a permissive inference. A permissive inference
jury instruction violates due process “if the suggested conclusion is
not one that reason and common sense justify in light of proven facts
before the jury.” [Francis v.
Franklin, 471
§20:170
Things That Help Hang Juries
The instructions that help hang juries
the most are individual opinion and reasonable doubt.
One way to explain the individual
opinion instruction to jurors is to analogize it to voting in a general
election. When an election is coming, you talk to your neighbors, read
articles about the candidates and discuss the issues with your family.
After considering everything, though, you cast your vote as you see fit.
The same is true with jury deliberations.
Ask the judge to give multiple sets of
instructions to the jurors. Having more than one set of instructions
empowers more jurors, and this potentially leads to more hung juries.
Do not always refer to the jury as
“the jury.” Instead, use the word “juror” as much as possible. This
reminds the jurors that their duty is their own. The verdict is not a
collective decision.
§20:171
Do Not Argue Reasonable Doubt Until the End
If you start off discussing reasonable
doubt you are essentially saying that your client is probably guilty,
but there are these technical rules of law that say you should let him
go.
It is much better to argue that your
client is innocent. You want jurors to be comfortable with their
decision. It easier to acquit an innocent person, than a person for whom
there is just reasonable doubt about their guilt.
Explain the concept of reasonable
doubt to the jury at the conclusion of your closing argument.
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
