How the best lawyers consistently win DUI cases – Lesson 3

From Defending Drinking Drivers by Patrick T. Barone

Remember, the opening statement is an opportunity to talk directly to the jury. It is an opportunity to persuade and to begin to convince the jury that the defense should win. It is also an opportunity that should never, ever be wasted. Unfortunately, many defense attorneys make poor, unconvincing, unpersuasive, and defensive opening statements that simply mirror the one just presented by the prosecution, or perhaps simply nibble away at the prosecution’s case.

This is a mistake, because defense counsel thus ends up adopting the prosecution’s theory of the case. What the defendant needs is a strong, persuasive and non-defensive opening statement, one that may seem like the opening to an entirely different case than the one that presented by the prosecution. In fact, it might seem like the State’s case and the defense case are “two ships passing in the night.” There is nothing wrong with this—indeed it may be one of the most effective ways to make an opening statement.

There are no right and wrong ways to make an opening statement, but there are right and wrong attitudes you can take. For an opening statement to be right, it must be non-defensive, because if it isn’t, the case will almost always be lost.

The best way to make a non-defensive opening statement is to have a theme that sets the tone for the entire defense case. Avoid rambling on and on about facts that the State is going to try to prove, and never try to address point by point each of the assertions made in the prosecutor’s opening statement. Oftentimes you simply can’t do this anyway. Finally, never, ever adopt the prosecutor’s theory.

Try to limit the opening to a single theme, and where possible, try the case based on that same single theme.

Themes work. Juries understand immediately what you are trying to say and why you believe that you should win. Themes simplify complex issues, narrow the jury’s focus on pro-defense points, and expand the possibilities for arguing reasonable doubt. Establish the theme and plant the seed for reasonable doubt in the opening statement.

When you establish the theme, be strong, confident, and non-apologetic. Never tell the jury that what you are about to tell them is not evidence. While that literally may be true, you will start out by telling the jurors that what you are saying is worthless, and that’s no way to start the case. Select a theme, stick with it, and tell the jurors (as you relate what the evidence will be) why they should return a not guilty verdict.

Some Sample Themes

Following are ten sample themes that can be adapted for use, as appropriate, in drunk driving cases:

1.   Deep Blue

IBM’s Deep Blue recently defeated chess champion Gary Kasparov. Many people were upset that a machine defeated the world’s best chess player.

Here’s how that “Man versus Machine” theme can be used in a drunk driving case:

Ladies and gentlemen of the jury, you will remember that some time ago IBM’s machine, Deep Blue, defeated chess champion Gary Kasparov. That fact upset a lot of people, including my son. He asked me: “Dad, is a machine really better than a man?” I thought about it for a moment and then said, “Only if we let it be, son.”

Think about that, ladies and gentlemen of the jury. Is a machine really better than a man? Only if we let it be. Here, you will have to make the choice whether this machine, this breath testing machine, is better than the live human witnesses you will hear. Here’s why the evidence will show that the machine is not better…

2.   Time for Justice

One simple theme that can be presented to the jury is that they must ensure that justice is done. The opening statement could start out as follows:

Ladies and gentlemen, it’s time for justice…and you are the timekeepers. You can never let the clock run out on justice. Because justice must be timeless or our rights expire. Here’s what the evidence in this case will show and here’s why it’s time for justice…

3.   Bad Meat

One anecdote that can be successful in closing arguments is the “bowl of stew,” where defense counsel analogizes problems in the State’s case to “pieces of bad meat” in an otherwise attractive-looking bowl of stew. Obviously, one would never expect a waiter or waitress simply to pick out the bad pieces of meat and offer back the stew to the
customer. Certainly not! Rather, the entire bowl of stew is rejected.

If you are going to contemplate using this anecdote in closing, consider the following way to introduce it during the opening:

Ladies and gentlemen, the State’s case is like a bowl of stew with some pieces of bad and rancid meat: It may look good, but it tastes foul. You just can’t pluck out those bad pieces of meat, you’ve got to send back the whole bowl.

You will hear the State’s evidence. As you do, pick out those bad pieces. But don’t accept what’s left. Send back the whole stew.

Now, let’s begin looking for those bad pieces of meat. Here’s what the evidence will show…

4.   Jeopardy

Consider the following opening to analogize the evidence
to the popular television show:

Ladies and gentlemen of the jury, this case is about jeopardy—not the T.V. game show—but real life jeopardy.

You will have to decide as you hear the evidence whether the State can answer our questions, yours and mine. The State’s answers are wrong ones. Here’s why…

5.   Fear, Frustration and Futility

Set a theme that the jurors must set right what has been made wrong by the police. Consider the following:

Ladies and gentlemen, this is a case about fear, frustration and futility:

Fear, because my client, Jim Brown, was afraid when he was stopped unexpectedly late at night by the police.

Frustration, because of Jim’s inability, based on his nervousness, anxiety and prior injury, to perform the coordination exercises the police call field sobriety tests.

Futility, because Jim was not able to get the police to even listen to him, to understand and hear his side of the story.

As you hear the evidence, we are going to ask you to replace that fear, frustration and futility with fairness. Here’s how…

6.   Alive and Kicking

Get the jury to focus on their roles as preservers of the Constitution:

Ladies and gentlemen of the jury, is the Constitution of this state still alive? We’ll find out today. You’ll take its pulse—you’ll make the diagnosis. Here’s the evidence that will help you make that diagnosis…

7.   The Invitation

Ask the jury to focus on what they are “invited” to do by the law and by their consciences.

Ladies and gentlemen, this is a case about an invitation: not an invitation for a wedding, a graduation or a birthday party. No, this is a case about a different kind of invitation, an invitation to do justice. The evidence will show why that invitation must be accepted. Let me explain…

8.   A Powerful Combination

As an alternative to the presumption of innocence argument previously mentioned, consider the following:

Bill Roberts is presumed innocent today. As the judge has told you, that’s the law. But the evidence also supports Bill Roberts. Now that’s a powerful and compelling combination, a powerful and compelling basis for reasonable doubt. You know the law, the presumption of innocence: now here’s what the evidence will show…

9.   Doing Right

Never let the jurors believe they should be uncomfortable about returning a defense verdict. Consider the following.

This is a drunk driving case—and drunk drivers are unpopular. We all know that. We also know that Jim Walters is accused of drunk driving. Your job is not to vote on the unpopularity of drunk driving. That’s an easy vote—no one favors drunk driving. Your job isn’t to take the easy way out. No, it’s to do something very different—it’s to do justice in this case, for this man. It’s your job to do right by him. Don’t be defensive about doing what’s right. The evidence will show that it’s right to return a not guilty verdict. Here’s why…

10.  No Other Choice

The jurors take oaths to honor the Constitution. Make them believe that they have no choice but to return a not guilty verdict. Consider the following:

Ladies and gentlemen of the jury, why should you return a verdict for my client, Bob Bennett? Because the evidence and the Constitution demand that verdict. The evidence and the Constitution demand a not guilty verdict for Bob Bennett, pure and simple. Here’s why…

None of the example themes presented is difficult to present. Some may have better applicability to an individual attorney’s style, and certainly, each must be tailored to the facts of the case. The list of proposed themes is by no means exhausted. Be creative. Be thoughtful. Be non-defensive when you present your themes. Do so successfully and you will prepare outstanding openings; and more importantly, you will close the door on the State’s case.

The above advice came from…




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Patrick Barone’s Defending Drinking Drivers contains dozens of real-world cross examinations annotated with explanations, alternate approaches, and practice tips:

  • Retrograde extrapolation.  §203.3

  • Rising blood alcohol.  §204

  • Partition ratio.  §223.6.8

  • Breath test operator.  §235

  • Discrepancy between report and videotape.  §237

  • Using metaphors and analogies.  §605.1

  • Guarding against judicial misconduct. §606

  • Breath test technician.  §629.3

  • Arresting officer’s observations.  §631

  • Field sobriety tests.  §§631, 631.1

  • Horizontal gaze nystagmus test.  §631

  • Chemical tests.  §631.1

  • Report form.  §631.2

  • Defendant’s appearance and demeanor. §631.4

  • Controlling the officer.  §631.5

  • Dealing with pattern responses.  §631.6

  • The machine operator.  §632.1

  • Pre-test observation period.  §632.9

  • Controlling the prosecution expert.  §632.10

  • Blood test results.   §633.1

  • Prosecution lay witness.  §636

  • Percipient witness.  §636.2

  • Audio-visual evidence.  §640

  • Lack of videotape evidence.  §641.12

  • Dealing with the refusal.  §684

  • And many more

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Drinking Drivers
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