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Innovative DUI Trial Tools by Bruce Kapsack |
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 How the Best Lawyers Consistently Win DUI Cases To
win regularly, you need to capture both 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.
Bruce Kapsack’s
Innovative DUI
Trial Tools provides strategies and language for
persuading both hearts and minds.
These methods and arguments have succeeded in trial after trial, and
can work for you. Attention-getting
openings
Nine
pattern openings
Intellectually-persuasive cross-examinations
Closings which
grab heart and mind
Quick but memorable closing language for
Four complete closings
12 Practice Tips
From the Book 1. Arresting
officer database.
“When I was a public defender in the
2. Voir dire
slides. “The following
power point slides were developed to deal with limited time for voir dire.
Simply put one up on a screen or poster board and ask each juror to
give his or her numerical position.
After every three or four jurors, re-read the question out loud to
stop an avalanche of following the answer given by the preceding person.
Either you, or even better your client, can input the score for each
juror. The higher the score,
the better the juror. This can
be done so quickly that the prosecutor is not able to keep up.
They then will not necessarily know that the low score are the jurors
they want. The beauty of this
system is by creating a simple score card to record the number of the answer
chosen by each juror, you can tell who you do and who you do not like.”
§2:80
3. Opening
statements.
“Play the emotion card first.
Let’s face it, DUI trials are emotional.
DUI is the only political crime in the country.
Name another criminal offense that can be prosecuted with no harm to
property or person. There is
none. The
emotion/bias/prejudice card will be played; if you have a chance to lay it
down first do so. For
example….”
§3:05
4. Pattern cross
examination questions.
“Cross examination is testimony by the attorney for as long as
necessary, broken in to individual points that are consistently affirmed by
the witness. Each sentence,
(and I do mean sentence, as cross should almost never be an actual question)
should contain as few words as necessary to make the point.
Only one point should be made in each sentence.
The point should be phrased in the affirmative.
After several points have been established, the thrust should be
reiterated. Here is a group of
questions that should provide 80% of what you need….”
§4:01
5. How to start your
cross. “The
stage is set. All eyes are upon
you and what you do. Nothing.
Play it cool. Become the
officer’s friend and supporter.
Set the trap and wait. Start by
offering the most disarming array of questions you can: officer safety.
The witness is totally unprepared for this.
It is not only obviously true, it is solicitous.
You are the enemy, yet you care, you know, you help.
In one simple question you have disarmed the officer.
How can he or she respond with “deadly force” when you have not shown
any weapon?”
§4:02
6.
A radical approach to SFST’s.
“Let’s look at this approach with
the Standardized Field Sobriety Tests.
There are as many ways to approach these as there are attorneys, but
I suggest a rather radical approach: have the officer perform them. I know
we are taught never to ask a question, or conduct an experiment, in court to
which we do not know the answer or outcome.
But I submit, you cannot lose by having the officer perform the
SFST’s. …
I always start with this test as it is the easiest to explain so it
leaves the officer with little time to prepare.
It is the hardest to do when you are tired, and the officer “cheat”
is easy to spot. By ‘cheat’ I
mean that officers know if….”
§4:03
7. SFST expert’s
direct examination advice.
“By not asking me each little detail on how the officer administered
the standardized field sobriety tests it will make us look good.
By not belaboring the tests (other than we flat cannot trust them) we
will not look like we are flailing away.
Let the prosecutor ask about the details.
My experience is that the prosecutor will ask me for those details
and it’s a double edge sword for her. By asking for the specifics of what
was done wrong she is admitting there may be mistakes and that they matter.
When she asks, I’ll drive it home.”
§5:25
8. Airblank fallacy.
“Breath machines perform an air
blank between tests. This is
where the machine purges the sample chamber by bringing in air from the room
through the breath hose, and pushing it through the sample chamber to
“clean” it out. In order to
prove this worked, the machine then allegedly measures the sample chamber
and prints a result of “0.00” to show no alcohol.
Sounds great. We learned
that it was all a lie. The
machine was not in fact cleaning out the chamber and ensuring no alcohol
remained. Instead, it was
measuring what alcohol was left, and resetting itself to consider that
residual a zero. Supposedly the
software then deducted this number from the next result.
Of course, since the manufacturers hid this from everyone, no one
ever had the chance to test to see if the math was actually being carried
out.”
§5:52
9. Rising alcohol
defense.
“This last step is greatly aided by the
disconnect theory. The disconnect theory is the concept that any outward
manifestations showing a lack of impairment, such as good field sobriety
test performance, do not agree with subsequent alcohol levels.
In other words, if the guy looks sober, how can he
be so drunk? The
disconnect theory requires either good performance on SFST’s, refusal to
submit to SFST’s, or explainable failure on SFST’s, and relatively few or
explainable “objective symptoms.”
For more on these concepts see the subdivision below.”
§5:61 10. Springing the
medical condition trap.
“Now the DA will comeback with questions pertaining to that night.
The DA will attempt to show that the doctor has no knowledge of
whether or not the condition was “active” at the time in question to
compromise the test. This is a
gold mine waiting to be tapped.
Prepare your expert to answer as follows….”
§5:82
11. Huser’s
totality chart.
“Troy Huser from 12. Demonstrating
witness unresponsiveness.
“So your client can not afford much more than your fee.
You are new and have no access to print shops, power point pros or
major exhibits. There is still
a lot of good demonstrative evidence you can use to drive home critical
points in your trials. Let’s
start with the simple concept of the prosecution witnesses not answering you
as well as they did the DA.
Merely pointing this out to the jury is good, but a visual aid is better.
Take a look at the following
chart based on an idea from Gary Trichter of
Updated annually. ISBN 1-58012-129-2. Book Price: $99 G8
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