How the best lawyers consistently win DUI cases – Lesson 5

From Innovative DUI Trial Tools by Bruce Kapsack

 

The story, the rules, and this piece of junk

You have begun your closing argument. The jury understands why you are here, what you will do, and you have read them a caution regarding the last word aspect discussed above, now it is time to get to work.

To consistently win DUI cases, you need to capture both the hearts and the minds of the jurors. Although jurors make their decisions based on both, the mind is actually the simpler to persuade. You capture the jurors’ minds through your cross-examination, if the defense is one of prosecutorial problems (e.g., bad machine, bad procedures), or through your witnesses if the defense is something else (e.g., GERD, necessity).

The heart is more difficult. To persuade the heart, you need to give the juror a simple answer to the question posed by family and friends “How come you let the drunk go?” You need to make the jurors want to let the client go.

§7:05      Handling the Defense Stigma

We all know that we are not well-liked. Attorneys in general are not respected, criminal defense lawyers even less (unless people find they need one) and DUI defense least of all. We are seen as using tricks and traps to mislead to get drunks off. Okay, so we need to deal with that. Remind the jurors of the oath they took. Explain that you are under a similar oath, as is the Judge and prosecutor. Simply put, all of you are there to do your job to the best of your ability, based on what was given to you. Explain to them that the prosecution did their job as best they could but lacked the evidence. All you did was to point that out to the jury. The Judge did his or her job by letting the jurors see what was or was not found in the case. Now it is their job, no matter how they feel about it, to acquit your client.

Provide the jurors with some relief by describing the functioning of the system as more important than any one decision. They need to know that as long as the verdict is based on the evidence, or lack thereof, then justice was served in that a true verdict had been returned. It is critical to be sure the jurors feel comfort with this.

Types of Closing Arguments

§7:10      Basic Categories of Closings

Over the years, I have distilled closing arguments into three basic categories: The Story, The Rules, and the I Cannot Believe This Piece of Junk Made it This Far. It is rare that a particular case will fit completely into one of these categories, and in fact the best closings have some element of each. These general names help to guide us to where we want to be.

A.    The Story Closing

§7:20      Effective Storytelling

There is nothing like weaving the facts brought out in trial into a campfire story. Stories, when used appropriately, teach morals, explain the cosmos, and illustrate how we live our lives. They grab the heart.

One of the greatest benefits to a “story” close is that it constrains the prosecution’s ability to interrupt. Sure, the DA can object, but no one likes to have a story interrupted. Who cares if the teller is getting some fact wrong or is enlarging some parts and omitting other facts? Our human nature wants to hear the entire story uninterrupted. If the DA does object, chances are the judge will comment that defense counsel’s interpretation of the evidence is reasonable or that it is up to the jury to decide if that was the testimony or the judge will simply make some other non-intrusive ruling.

Should the DA object repeatedly, a gentle reminder of how much commercials interrupt our favorite shows may be in order.

Ladies and Gentleman the prosecutor is within his rights to make objections. It is his/her job. Just like commercials during television. And just like those commercials, I ask that you listen to what I am saying and not what he is trying to hawk.

§7:21      Example: Bloodshot Eyes

When summing up a DUI case, tell a story. Tell the jurors all about your client. Tell them where your client came from, where your client was going, and why your client needed to do what he or she did. Explain to the jury why the allegedly “bad” facts are nothing more than everyday occurrences, which, when viewed in the light of the pre-judgment the arresting officer had, appeared to be bad.

For example, here’s a suggestion for dealing with bloodshot eyes. The officer will have testified that your client had red, watery bloodshot eyes and that such a symptom is consistent with impairment. The DA will list this in his or her closing argument as further proof of your client’s guilt. During your close you should speak on this.

Don’t simply reiterate what you obtained from the officer or experts during cross or direct exam that “bloodshot eyes can be caused by…” Tell the story. Remind the jury that your client told the officer he or she woke up at around 5:00 that morning and worked all day, had dinner, and was on the way home for a few hours of shut eye before doing it all again. Try something like this:

We all know Bob is a hard worker. Bob told the officer (even though he didn’t have to, but that’s just the kind of cooperative guy Bob is) as the officer noted in his report, that he had worked since 5:00 am that day. We all heard that Bob, like too many of us, spends too many hours in front of that curse of modern life, the computer, staring at the ever more blurry screen as he tries to do the work of two people in this time of economic trouble. He barely had time to take a lunch, and not nearly enough time to stretch his cramping legs or expand his vision beyond the 12 inches from desk to desktop. When he finally did get a chance to open his eyes, it was well past a normal knock-off of 5 or 6. He did not leave work until almost 7 that night. Driving the short distance to Cheers in twilight further impacted already tired eyes. Is it any wonder that when he met the officer four hours later his eyes showed signs of fatigue, overuse and stress?

What have we accomplished here? Not only did we diffuse the “objective eye symptom,” we also brought Bob to the jury. We made him sympathetic. After that kind of day, who wouldn’t want to join Norm and Cliff for a tall one?

You will be able to judge the success of your story by the DA’s response. If the DA gets up and starts to answer your story, then he or she is giving it credibility. The DA is saying, “yeah, I agree with all that, but….” You have the jurors hearts. Hopefully during the trial you gave them something for their heads.

§7:22      Chronological Order Is Best

When telling the story, it is best to tell it in the chronological order of the events of the day. Start by simply writing out the story, or if your memory is good enough, just tell it aloud, and see if you covered all the basics. Then, go back and fill in the nuggets, good or bad, that were brought out during the trial testimony.

An easy way to do this is to list all the good and all the bad facts, evidence, testimony and opinions from the trial. See where they best fit into the general framework of the chronological story, which may not be where they came out in the trial. The example above of the eyes is illustrative. Chances are the jurors heard about Bob’s eyes halfway through the officer’s direct testimony. You could address Bob’s eyes when commenting on the officer’s testimony, but it seems a bit defensive. Instead, talk about them in the very beginning.

REMEMBER: this is your arena. You set the rules; you set the framework. Do not answer the DA; make the DA answer you. And trust me, the DA will and the jury will notice it.

§7:23      Tell Story in “Here and Now’

When you tell a story, do it in the “here and now.” Make yourself the players. Obviously you need to set the stage, but once you get the jury back to the time of the event, stay there. Capture the jury right out of the gate. Compare the following two examples:

On May 5th 2001 Bob was driving home. At about 8:00 he stopped for a couple of beers at the Hideaway. You heard from the bartender he was there for half an hour. She told you he then left. Officer Smith watched as he pulled out.

Bob decided to stop at the Hideaway for a couple of minutes on his way home. It was early May, the 5th to be exact, a weekday, so Bob was only there a short time. Cheryl remembered serving Bob a couple of beers in the half hour he was there. As Bob was leaving he noticed Officer Smith behind him.

§7:24      Emphasize Theme

If you have a catch phrase or single word theme of the case, use it. In the example I gave to start the oral presentation, my theme was “responsibility.” It was the first word out of my mouth and the last word on my lips. Find that word, phrase, or theme for your case and hit it hard.

If you have no such easily pronounced theme, then try for an emotional grab or the “you’re already in the middle of the cliffhanger” approach. “Bob was pissed. Another 12 hour day without recognition or thanks. He just wanted to get home to see his kids, who were already asleep, and go to bed.” That grabs the jury. It sets the stage. You do not need to fill in dates or times. The jury is with you.

§7:25      The Moral

When you have finished telling your story, be sure to tell the jury the moral, which should be that Bob is not guilty. Don’t worry about reminding them of reasonable doubt or any other legal jargon. They have heard it, they know it, and they will follow or ignore any or all of it to reach the verdict they want.

B.     The Rules Closing

§7:30      What Is a “Rules” Closing?

The “Rules” closing, also called the list closing, is a point-by-point evaluation of virtually every action by the prosecution witnesses in the case. It should be done in a strict format that leaves little room for rebuttal. It is simpler, more direct and in many ways easier to deliver. It is just as effective, in the right case, as “The Story,” and is generally more effective for technical cases—that is, cases in which the defense is concentrated more on machine or officer error, calibration problems or other specific mistakes.

§7:31      Rules Closing Must Be Accurate

One of the biggest pitfalls to the Rules closing is inaccuracy. When telling a story, people will grant the storyteller literary license, even in court. However, when you are acting as the “inspector,” your information better be precisely accurate or you will lose the jury. If you can deliver a Rules closing without any wiggle room, then any response by the DA will be perceived by the jury as an attempt to change the facts.

§7:32      Use Outline, Rather Than Chronological Organization

A Rules closing should be presented (and written) in outline form. This allows you to be sure to cover every point, and it allows the jury to follow along. Use charts if at all possible. [See §7:35.] Nothing more effectively assists the triers of fact in following you, evaluating your point, and agreeing with you, than seeing it laid out in writing before their eyes.

In a Rules closing, the need to be chronological is diminished. Since the point is to show all the mistakes, the timing of the mistakes is relatively unimportant. Instead, use the concepts of primacy and recency. We tend to remember the first thing we hear and the last thing we hear and forget the stuff in the middle. Put your best bits up front and at the end.

§7:33      Repeat “Reasonable Doubt”

When using the Rules approach, it is best to repeatedly use the phrase reasonable doubt. The point you are usually making in listing the mistakes by the officer is that individually, and most certainly in combination, these omissions lead to reasonable doubt. Every so often remind the jury of that point.

It may be that the best time to do this is between each subsection of the list. In other words, after listing the three or four mistakes in any one Standardized Field Sobriety Test (SFST) or listing the three or four mistakes in the SFST in total, then explain that this created reasonable doubt. This allows you a natural break to move to the next topic.

§7:34      Tailor Trial Examination to Closing

As we all know, or should know, the closing argument is where you start the case. In other words, write your closing argument first, then tailor your trial examination to fit the closing. It is much like any other project in life: You figure out what you want, and then how to get it. If you are planning on a Rules closing, tailor your examination for it.

This means not just the questions, but the entire procedure. Use charts, graphs, and other physical tools to help. It is impossible to argue with a closing argument based on writings that were either created or admitted to during the trial and then re-published in the closing.

§7:35      Use Charts

Let’s take field sobriety tests as an example. You have discerned from the police report that the officer did not administer the tests correctly. You could just go through the incorrect procedures that the officer used during cross and then repeat his testimony to the jury in closing. Boring! Instead, create a chart based on the officer’s report, testimony, and the standards. Here is an easy example:

OFFICER’S INSTRUCTION

CORRECT PROCEDURE

PROBLEMS CREATED

FOLLOWED

10 steps out 8 steps back

9 steps each direction

Wrong footed turn

 

Pen 8 inches on HGN

12 to 15 inches

Bad angle, bad focus

 

Count to 30

30 seconds

Too long

 

You can create the headers and even fill in the “Correct Procedures” column ahead of time. Then, during your closing, you mark off a big NO in the “FOLLOWED” column. Leave the chart up for the prosecutor’s close. The prosecution will not be able to argue against the truth of what is contained in the chart. Instead, you will force the prosecution to explain it away. Be sure the jury understands that when a prosecutor does this, he or she is admitting to reasonable doubt.

This same approach can be used, and will become more prevalent, in cases involving chemical testing. More and more states are allowing chemical tests in evidence even when they are not performed in compliance with local rules or general scientific principles, holding that it is up to the jury to decide how much those violations matter. Charts can effectively point out these mistakes.

§7:36      Use Demonstrations

Another way to bring home a Rules closing is by a demonstration. My partner, Hudson Bair, represented a client where the main issue was lack of a 15-minute observation period. Records established the wait was 13 minutes long. To demonstrate (1) that the wait had occurred, and (2) that two minutes would not mean anything to the officer but meant everything to the case, Hudson stood in front of the jury for 120 seconds without saying a thing. He then pointed out that that simple rule meant the difference between a trustworthy test and an unreliable one.

§7:37      Combine With Story Close

It is often effective to have a “List Hook” in a Story close. This is the one aspect that the jurors use to let your client go when explaining their decision to the crestfallen DA. In other words, find some technical aspect for acquitting your client, as outlined above, and combine it with the heart wrenching story. The combination of the two provides both the rationale and the reason for letting your client go. Examples are partition ratio, absorption periods, elimination curves, body temperature, medical or dental issues, etc. Providing this “hook” to the jury, coupled with an engaging story, gets both the heart and the head of your juror.

Ladies and Gentlemen, you heard about how Tommy was not feeling well when he left work. He told you he came down with a terrible flu over the next few days. He stopped at the bar for a glass of wine to clear his head so he could go to sleep. Well we all know how hot we run when we have a flu. Now you also learned how a slight elevation in body temperature will lead to a falsely high breath alcohol reading. Is it any wonder why the BrAC was so high in this case? Not really considering all that we know now.

C.    The “I Cannot Believe This Piece of Junk Made It This Far” Closing

§7:50      When to Use

This is both the last-ditch closing and the “it is so obvious” closing. It should only be used when you have no other defense or when it is so obvious that the prosecution is missing key evidence that anyone would acquit.

An appropriate case for this closing is a case where facts are missing, such as the non-observed driving case. Whether this is the accident, the parked car with the guy sleeping in it, or the hit-and-run found later, the attorney can look at the jury and point out that the most basic factor—when/who drove—is missing.

§7:51      How It Works

Keying in on this one factor, as if the whole world recognizes the futility of having gone forward without the evidence, can be a very effective tool. One can do this in a variety of methods. Bob Chestney of Georgia starts this closing with the simple statement: “That’s it? Didn’t you think they would have more?” He then goes on to show that none of the testimony of the prosecution’s witnesses matters or that it all is just speculation. In other words, it is the cop’s opinion.

Here are a few other approaches:

  • “I cannot believe the DA brought this to you knowing he did not have ANY evidence to establish my client as the driver. I guess the DA was just hoping something new would spring up to make up for the missing information.

  • “I understand how tough it is for the DA to dismiss a DUI when he is facing re-election and how much easier it is to put it off on you.”

  • “That is why we have juries in these cases to protect each and every one of us from a DA who is (1) overzealous, (2) hopeful, or (3) political.” Remind jurors that they stand between common citizens and the government.

§7:52      Two Cautions

Avoid Unrelated Aspects of Case. If you are using this closing in a case where you focus in on one completely missing element, do not engage against unrelated aspects of the case. If you say that your client was not the driver, do not talk about SFSTs, chemical tests, etc. Only someone who is conceding the issue would talk about that. In fact, highlight how the prosecutor, who knew the problem with the case, spent so much time on how drunk your client was, a point you are not contesting, and no time placing him behind the wheel of the car. The same would be true in a time-of-driving defense.

Keep It Short. If you are using this closing because you have nothing else, don’t belabor the point. Get in and get out fast. Let the jury know, by your attitude, that if they spend any time at all on this case, they are thinking too much.

Perhaps the best example is in the rare case of the obviously lying officer—the officer who testifies to events that are not physically possible or that are clearly not documented, such as on a videotape. Once you establish that the officer is not to be believed, then leave everything else alone and fall back on how the DA, sworn to uphold the law and elected by us to do so, could allow this cop to testify.

§7:53      Sample Closing Argument

SO WHAT? That is my main point here ladies and gentlemen: SO WHAT? The District Attorney has just asked you to condemn my client and given you a list of reasons why. But for each of these reasons I say “SO WHAT?”

Because unless the DA has some rational relationship to the fact they present causing you to find my client guilty BEYOND A REASONABLE DOUBT, that fact earns a big SO WHAT.

Here is an example of what I mean. In the 30s and 40s beards were not that common and, in fact, having one caused eyebrows to be raised. Why? Because Lenin had a beard. Nothing more, nothing less; it was a sign of the times. There was no relationship between being bearded and being communist. But people were made to believe there was.

The DA is trying to do the same thing. He told you my client had bloodshot eyes. So what? Do bloodshot eyes mean you are over the legal limit? Nope, no such evidence was presented.

My client’s voice appeared “thick” or “slurred.” Again, so what? No evidence linked that to a particular blood alcohol level.

And trust me ladies and gentlemen, if such studies existed the prosecution would have brought them forward. None were mentioned because they just do not relate.

Of course no one is foolish enough to say that bloodshot eyes means you cannot drive. If they did so every cold or allergy sufferer in the world would be guilty.

So what? Unless and until those facts can be made to relate to the charges, then they deserve a big “so what.” They do not add to the concept of proof beyond a reasonable doubt.

What of these specialized “tests,” the SFSTs? Did anyone tell you they measure a person’s ability to drive a vehicle? No; in fact, our expert told you the creator of the darn things specifically said they do not. So what?

Finally we have the breath test. A test obtained 1.5 hours later. So what? What does this number mean as far as my client’s condition at the time of driving? Because unless someone tells you what it means, I say “so what?”

 


The above advice came from…

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How the best lawyers consistently win
DUI cases

To win regularly, you need to capture both the hearts and the minds of jurors.

   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’sInnovative DUI Trial Toolsprovides 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

You can’t convince them if they aren’t listening to you.  Here is how to grab jurors in the first sentence and get them thinking that a fellow citizen has been falsely charged:

  • Providing a strong argument, not a trial road map. §3:04

  • How to make it detailed and personal.  §3:04

  • Filling in the blanks with positive information. §3:07

  • Pointing out the problems with the prosecution’s case.  §3:08

  • Boosting the officer and prosecution expert so you can knock them down on cross.  §3:10

  • How to use surprise to your advantage.  §3:11

9 pattern openings

  • Deliberate refusal.  §3:21

  • Refusal due to confusion.  §3:21

  • Who was driving?  §3:20

  • Incorrect administration of field sobriety tests. §3:22

  • So what?  §3:22

  • Rising blood alcohol.  §3:23

  • Keeping an open mind.  §3:24

  • It wasn’t my client.  §3:25

  • The missing element.  §3:26

  • And quick ideas for the crime, burdens, facts, law, and client testimony.  §3:28

Intellectually-persuasive cross-examinations

Each discussion begins with an explanation of the why and how of the strategy, then lists the points to be made with that adverse witness, and finishes with the cross-examination questions to ask:

  • Slipping in drinking receipts as past recollection refreshed.  §5:14

  • Unfair administration of field sobriety tests. §5:25

  • Showing improper administration of one-leg stand, heel-to-toe, and horizontal gaze nystagmus.  §5:26

  • The 16 common attacks on breath tests.  §5:41

  • Using partition evidence to refute a charge of driving while impaired.  §5:43

  • Failure of the machine to measure breath temperature.  §5:45

  • Using a steepling example to criticize the lack of two tests.  §5:47

  • Failure of the machine to rule out interfering substances.  §5:50

  • Faulty slope detection test for mouth alcohol. §5:53

  • False read in diabetes, hypoglycemia, and diet cases.  §5:54

  • Exaggerated score due to GERD.  §5:55

  • Presenting a rising alcohol defense.  §5:60

  • Destroying presumptions in a rising alcohol defense. §5:63

Closings which grab heart and mind

Of the two goals of DUI closings, the first — anticipating and countering prosecution arguments — is not difficult because DUI prosecutors are usually new and take a by-the-numbers approach.  The second goal — convincing jurors your client is not guilty — is harder.  Mr. Kapsack has found the following strategies and language helpful for both goals.

  • Neutralizing the prosecutor’s closing.  §7:02

  • Directly addressing the DUI defense stigma.  §7:05

  • How to use the story close.  §7:20

  • Using the here and now.  §7:23

  • Making an emotional appeal.  §7:24

  • The point-by-point rules closing.  §7:30

  • Picking apart with the field sobriety tests. §7:35

  • Putting a list hook in your story close.  §7:37

  • The “piece of junk” closing.  §7:50

Quick but memorable closing language for:

  • Bloodshot eyes.  §7:21

  • Machine reliability.  §7:64

  • Rising alcohol.  §7:65

  • Circumstantial evidence.  §7:66

  • Reasonable doubt.  §7:67

  • Missing element.  §7:68

  • Disagreement in deliberations.  §7:70

  • No testimony from State’s expert.  §7:71

  • Burden of proof.  §7:80

4 complete closings

  • Refusal.  §7:100

  • Breath test.  §7:101

  • High BAC.  §7:102

  • No test or other guy drove.  §7:103

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