How the best lawyers consistently win DUI cases – Lesson 6

From Defending Drinking Drivers by Patrick T. Barone

Defending Drinking Drivers

No final argument will be successful if the jurors are not interested in it. A technically brilliant final argument will be wasted if it falls upon uninterested ears. The jury’s attention must be captured or the closing argument will fail. The closing argument must be strong, aggressive and nondefensive. Nondefensive final arguments are not for the faint hearted. Emotion can capture the jury’s atten­tion: if the jury concludes that defense counsel believes in the case the jury are more likely to return a not guilty verdict. While counsel may not express a personal belief in final argument, see J. Tarantino, Trial Evidence Foundations, §203 (1986 & 1990 Supp.) (attorney may not express his personal beliefs in the justness of his client’s cause during final argument), counsel can indirectly and usually quite clearly let the jury know that he thinks that anything less than a not guilty verdict would be a travesty, a mockery of the constitutional protections of proof beyond a reasonable doubt, the pre­sumption of innocence and the right to a fair trial.

Believe in Some Element of the Case

Emotion is the key; but the emotion must be real. If it is feigned the jurors will recognize it as such immediately and in most cases your client will be convicted. The jurors must know that you believe in the case. The jurors must believe that you believe the client is not guilty. This does not mean that defense counsel must believe that the client is innocent. In fact, few are. But in many cases the state will not be able to prove the client’s guilt beyond a reasonable doubt. Therefore the client is not guilty and is entitled to a verdict in his favor. Defense counsel should focus on some element of the case that he can believe in—whether it is the unfairness of the chemical test device, the bias of the arresting officer, the lack of probable cause for the arrest, the unconstitutionality of the roadblock used, the unreliability of the field sobriety tests or some failure on the part of the state to prove the corpus delicti.

If counsel believes in that element of the case, he can make the jurors believe also; and if they believe they can be convinced—even compelled—to return a not guilty verdict: the ultimate success in a drunk driving trial.

Suggestions for Non-Defensive Closings

In most drunk driving cases there will be something to believe in. If nothing else, defense attorneys can believe in the presumption of innocence and the requirement that any defendant (even one accused of drunk driving) must be proved guilty of the charges brought by the state beyond a reasonable doubt.

Additionally, the fact that drunk driving is an extremely unpopular crime and that those accused of drunk driving now wear the scarlet letter can be used to the client’s advantage in closing argu­ment. Following are some suggested ways to use the unpopularity of drunk driving, the requirement that proof of guilt be established beyond a reasonable doubt and the presumption of innocence to make a nondefensive final argument. They are adapted from Tarantino, “Non-Defensive Final Argu­ment,” 5DWI Journal: Law & Science 8 (August 1990) and are reprinted with permission of the author and the publisher, Intercom Group.

Send a Message

How many times have criminal defense lawyers heard the prosecutor in closing argument ask the jurors to “send a message”: that criminal conduct will not be tolerated; that the community will not stand by and allow the dangers of drunk driving to go unpunished; that these jurors must let everyone know that drunk drivers will be convicted and will be made to face the consequences of conviction.

Defense attorneys should anticipate the argument and turn it against the state. The “send a message” theme can be used to the client’s advantage. Consider the following example:

Ladies and gentlemen, I have only one opportunity to address you. After I finish, Mr. Jones, the prosecutor, will have his chance and he’ll probably tell you to send a mes­sage in this case. He’ll ask you to tell the community that drunk drivers will not be tolerated. And he’ll ask you to return a guilty verdict, to convict my client, Margaret Baxter.

A message should be sent in this case. And it is your solemn duty to send it. But it is not the message that the prosecutor wants sent. No, that message is much too simple, too easy, too contrived. It does not require thought, analysis and a careful weighing of the facts of this case. Rather, it requires only passive acceptance of the prosecutors invita­tion to send a message that drunk driving is bad. Who could possibly argue with that premise? Of course drunk driving is bad. Of course everyone wants it to stop. Of course we all want safety and security on our highways.

Does that message have to be sent? Is that what this case is all about? You are the finders of fact. You are the conscience of the community. You are the only ones who can decide what happened in this case—not some other case—THIS CASE. Margaret Baxter has an absolute right to be judged by you. She is not a nameless, faceless, accused drunk driver who can be sent some anonymous message. She is someone who stands before you, individually and specifically accused of committing a specific crime at a particular day and time and in a specific manner.

No, ladies and gentlemen of the jury. This case will not be so easy. You took an oath to judge the case fairly and without bias. Without the bias of sending a message to some­one else—whether it be some as yet unidentified and unaccused drunk driver or to the community at large. You must judge this case on its own merits. You must decide whether the state has proved that my client, Margaret Baxter, is guilty of driving under the influence of alcohol on May 11, 1989. Not someone else. Not some other time. Not some other place. Margaret Baxter is on trial; and she must be judged as a human being.

Yes, ladies and gentlemen, a message must be sent. A message must be sent that you will not surrender to pressure. You will not succumb to the easy way out. You will not abandon your duties. You will be true to the oaths you took at the beginning of this case. You will judge fairly—unswayed by what you or I or the judge or the prosecutor or the public may think about drunk drivers, or the crime of drunk driving generally. You must send a message. But the message is that our constitution is bigger and stronger and more important than the crime of drunk driving. You must send a message that the public outcry and opprobrium will not supplant our values, our requirements, our obli­gations, our oaths to do justice. That is the message that must be sent. It is the only message that your consciences and your oaths will allow to be sent. And in sending that message you can only return a not guilty verdict.

Send your message. And send Margaret Baxter home.

Understanding Reasonable Doubt

Consider the following sample closing argument, which helps the jury understand the concept of reasonable doubt.

Ladies and gentlemen, in just a few minutes Judge Nocera will instruct you on the law that you will apply to the facts as you find them to be in this case. And after you have been instructed on the law you will return to the jury room for your deliberations and then you will be asked to return a verdict of either guilty or not guilty. Please pay particular attention to the charge given. One thing you will realize is that the phrase “reasonable doubt” will continually be used and referred to in the charge.

Reasonable doubt is so important in our criminal justice system. That’s why you will hear about it so often and so frequently in the judge’s charge. In fact, ladies and gentlemen, reasonable doubt—or more properly stated whether or not reasonable doubt exists—is what you are here to decide. If you find that reasonable doubt exists then my client, Dan Harris, will be acquitted and he will return to his life, to his family, to his friends and to his job. If, however, you are convinced that the prosecutor has proved each and every—­not most or some or a few—but each and every element of the offense of driving under the influence of alcohol, beyond a reasonable doubt, then, and only then can you find Dan Harris guilty.

Judge Nocera will define reasonable doubt for you in the instructions. He will tell you that you must be convinced of doubt to a moral certainty. What this means ladies and gentlemen is that unless the evidence you have heard, seen and felt in this case con­vinces you to a moral certainty that Dan Harris is guilty, then your oath and the consti­tution require that you return a not guilty verdict. How do you know whether there is reasonable doubt? No one can tell you that—not me, not the prosecutor, not the judge and not even your fellow jurors. Each of you must search his or her heart, must examine individually his or her conscience and must review all the facts and the evidence to determine whether reasonable doubt exists.

Now as I said I can’t tell you my own beliefs in this case. That would be improper. But I can offer you the following advice. The concept, the requirement, of reasonable doubt exists because we want to make sure, we want to be absolutely certain, that no innocent person is ever convicted unjustly. An unjust conviction is intolerable and inexcusable under our system of government and our system or fairness and justice.

You’ve heard the evidence, you’ve had an opportunity to judge the witnesses. You’ve seen pictures, videotapes, documents and clothing. You’ve heard from police officers, a bartender, the passenger in Dan Harris’ car, Bob Smith, and an expert witness, Dr. Roger Barnett, and most importantly, you’ve heard from the two main witnesses in this case: the BAC Datamaster II and the defendant, Dan Harris. Please be assured that the BAC Datamaster II is a witness—a nonliving, nonbreathing, nonhuman witness, but a witness nonetheless.

It told you that Dan Harris had a blood alcohol content 1-1/2 hours after his arrest on a charge of reckless driving—not driving under the influence—of .11. Judge Nocera will tell you that in this state it is against the law to drive with a blood alcohol content of .10 or more. So if you believe the machine and believe that Dan’s blood alcohol content at the time of driving was .10 or more, can you convict? Yes you can.If that’s what you decide to believe. But if you believe the live witnesses, the result should be different.

The police officer, Officer Duggan, told you that the results of the preliminary breath test administered at the scene of the traffic stop were “inconclusive,” that the field sobriety tests administered to Dan Harris were also inconclusive. Remember the officer’s testimony: “Mr. Harris passed two sobriety tests and failed one.” That sounds like reasonable doubt.

The bartender, Jack O’Brien, who served Dan Harris that evening told you that Dan had four Michelob Lite beers over a five hour period and that while at the bar Dan did not appear intoxicated at all. You will also remember that Dan left the bar only five minutes before he was stopped by Officer Duggan. That sounds like reasonable doubt.

Dr. Barnett told you that it was his opinion, based upon a reasonable degree of scientific certainty, that Dan Harris’ blood alcohol content at the time of driving was below .10, and that based upon the testimony of the bartender about what he served Dan Harris, Dan’s blood alcohol content could not have been .11 as indicated by the BAC Datamaster 11. That sounds like reasonable doubt.

Finally, you heard from Dan Harris. And as Judge Nocera told you at the very beginning of this case, Dan Harris did not have to testify. He had a right not to take the stand and if he chose not to take the stand, Judge Nocera told you that you could draw no adverse inference from that choice. But he did take the stand. He told his story. He faced his accuser, the BAC Datamaster II and he told you he wasnot under the influence of alcohol. Sure, he was frightened when he was stopped. Obviously, he was nervous when asked to answer questions and performed those roadside coordination tests. Is that so hard to believe? Use your common sense and picture yourself in the same situation. Anyone would be frightened and nervous.

And Dan was probably frightened and nervous once again when he confronted his accuser, the BAC Datamaster II. He is a human being—and human beings have emotions. He knew his honor and his credibility were on the line. You could accept his word under oath or the “word” of a machine. Forget for the moment all the other evidence you heard pro and con on the guilt or innocence of Dan Harris. You could take the easy way out and convict because the machine told you to do so. But you can’t do that. The law requires proof beyond a reasonable doubt. Our constitution requires proof beyond a reasonable doubt. Judge Nocera will tell you that Dan Harris’ testimony if believed and standing alone can amount to reasonable doubt.

Here, ladies and gentlemen you have more. Not only do you have Dan’s testimony, but you have the corroborating testimony of other live, human witnesses. That is reasonable doubt.

But whether you decide it is reasonable doubt is up to you. Man against a machine. Dan Harris and the other witnesses against the accuser, the BAC Datamaster 11. Is there reasonable doubt? Consider the evidence. Review the facts. Listen to the judge’s instructions. Use your common sense. Trust your hearts and consciences. Be true to your oaths and then and only then decide Dan’s fate. You’ll find that there is reasonable doubt and will return a not guilty verdict. Thank you.

§681      Sample Closing Arguments Using Anecdotes, Analogies and Metaphors

When the analogy or anecdote is presented effectively by a good defense attorney with strong storytelling skills, the light will often go on in many jurors’ minds, and the switch is also turned off on the prosecution’s case. But, not everyone is a great storyteller. Most defense lawyers, however, have the necessary communication skills to present effective analogies and anecdotes to jurors. The ones that I have used have depended, at least to some extent, of course, on the precise issues presented in the case. But they have also, for the most part, focused on many traditional and principled defense themes, such as flaws in the breath testing machine, the unfairness of field sobriety tests, the credibility (or lack thereof) of witnesses, and, above all, the concept of reasonable doubt.

Some points can be made quickly and effectively through a relatively simple analogy, including what follows:

The prosecutor places his faith in this machine, what he would like you to think is a conviction box. On the other hand, we – our society – and the founders of our Constitution have placed our faith in another kind of box, the jury box, where you sit and decide this case, and this man’s future, based on the principles of our Constitution. It is the box where we hope that you will sit and listen to all of the evidence presented, not just what is spit out of that machine.

Here, the point and the contrast are simple. There is a difference between the prosecution and the defense case. The breathalyzer is a machine. The prosecutor wants to substitute proof, careful thought and analysis for a test result that comes out of a box. The defense, on the other hand, places its faith in the jury system and in real, everyday people, with God-given common sense, fairness and decency.

Following are sample closing arguments the author has made in defending driving under the influence of alcohol cases, where analogies and anecdotes were used.

Problems With the Curveball

Consider the following argument to impeach an officer’s testimony concerning defendant’s intoxication:

Ladies and gentlemen of the jury, you heard Officer Smith testify during direct examination that my client, Bill Johnson, was intoxicated and was under the influence of alcohol when he was stopped at the corner of Ridge Street and Maple Avenue. Officer Smith told you under examination by the prosecutor that Bill Johnson could not perform the field sobriety tests properly and that in the opinion of Officer Smith, Bill Johnson failed those tests. You also remember that I then cross-examined Officer Smith. Ladies and gentlemen, that cross-examination of Bill Smith brought back some memories. It reminded me of the major reason why I am not playing professional baseball today. I couldn’t hit the curveball.

When I was in high school, I was considered to be a very good baseball player. In fact, I was an excellent fastball hitter. The harder the pitcher threw the ball, the better I hit it. My ability to hit the fastball convinced me that I had real talent and would one day play professional ball.

After high school, I went to college. A funny thing happened there. In college, most pitchers not only had an excellent fastball, but also threw something called a curve. The curveball is an offspeed pitch which breaks in, away or down from the hitter. It does not come in on a straight line like a fastball.

When I got to college, and the pitchers began to realize that I could hit a fastball, I began receiving a steady diet of curveballs. My once lofty batting average fell dramatically. Where I once had no doubts about my ability to hit, I now had a multitude of uncertainties. To put it simply, ladies and gentlemen, the curveball was my undoing.

In this case, the prosecutor served fastballs to Officer Smith. The questions came right out of the facts as stated in Officer Smith’s report and he answered very confidently and assuredly. In other words, Officer Smith hit the fastball pretty good during the prosecutor’s questioning.

When I got up to cross-examine him, however, the curveball was his undoing as well. You’ll recall that when I asked him about the conditions under which the field sobriety tests were administered, he admitted that they were administered on a poorly lit road that was sloping in nature and where there was a combination of sand, gravel and concrete making for unsure footing. Remember that none of this information came out during the direct examination. The prosecutor only served up fast balls and Officer Smith swung away and hit them. When the curveballs were thrown, however, Officer Smith swung and missed. Let me give you some other examples of where Officer Smith swung and missed horribly on the curve….

After further examples are given to the jury showing where and how the police officer’s testimony was shaken on cross-examination, the defense attorney can use the fastball/curveball-direct/cross-examination analogy to demonstrate reasonable doubt.

To illustrate this point, the attorney can use a chart or blackboard. Each time a curveball was thrown (when the officer’s testimony was shaken), a check is placed in the reasonable doubt column. If three checks are registered, the attorney can make a further analogy that the prosecutor has struck out and the jury should bring back a defense verdict.

The One-Eyed Frog

Another anecdote which can be effective in closing argument is the story of the one-eyed frog. This story can be used to illustrate the defense argument that when the prosecution witnesses were forced to testify about all the evidence, and not just what the prosecution wanted to offer, reasonable doubt exists about the defendant’s guilt. Here is how the anecdote can be used:

Ladies and gentlemen, the prosecution witnesses you heard testify about my client John Davis’ intoxication remind me of the story of the one-eyed frog. The one-eyed frog was a real nasty creature who lived in a swamp with a number of other animals. All of the other animals who lived in or around the swamp didn’t really like the one-eyed frog, but they tolerated him because they felt badly for him because he had to wear a patch over his right eye.

One day when all the animals were at the swamp, the one-eyed frog was being particularly nasty, insulting and closed-minded. He would never listen to or tolerate the other animals’ views. As he was making some particularly offensive comments to some of the animals, he tripped and fell, and when he did, the patch over his right eye came off. To the astonishment of the other animals, the one-eyed frog had two eyes and both seemed to be working just fine.

The animals who for so long had put up with the one-eyed frog asked him why for so many years he had covered his right eye with a patch. The one-eyed frog answered that he had covered his right eye because without the patch he would have to keep both eyes open, see the world and the facts as they really are as opposed to how he would like to see them, and that if he saw all the facts, he’d have to see the truth, and the truth wasn’t always in his best interest.

Well, ladies and gentlemen, the prosecution witnesses are like that one-eyed frog. In their direct testimony, they kept that patch over their right eye, they saw only what they wanted to see, and they gave you only one side of the story. On cross-examination we took away that patch and forced them to open up their eyes, to fill in the missing pieces of their direct testimony and to tell you the whole truth. It wasn’t pleasant for them, just like it wasn’t pleasant for the one-eyed frog, because the whole truth, and all the facts, aren’t in the state’s interest. Let’s recount what the complete picture, and all the facts show in this case….

The attorney can then remind the jurors of points made during cross-examination which were helpful to the defense case and which can establish reasonable doubt.

The Bottle of Aspirin

One of the most effective analogies to create reasonable doubt as to the chemical test result is a simple bottle of aspirin. Here’s how that analogy can work:

Ladies and gentlemen, you heard the state chemist tell you that as a result of the blood test administered to my client, Jim Phillips, on the night of his arrest, he concluded that Jim’s blood alcohol content was .11g percent. The prosecutor told you in opening statement that all the state needed to prove was that Jim Phillips was driving with a blood alcohol content in excess of .10. The prosecutor told you that if he proves that fact beyond a reasonable doubt, then the verdict should be for the state and against Jim Phillips. But if there is reasonable doubt about Jim’s blood alcohol content, then you should return a “not guilty” verdict. Is there reasonable doubt that Jim Phillips’ blood alcohol content was in excess of .10g percent? I submit there is. And I submit that the proof of that reasonable doubt comes from the state chemist’s own testimony.

As you will recall, on cross-examination I asked the state chemist about the margin of error in his testing. He admitted that no test was foolproof and that he could never say with 100 percent certainty that he was right. He did say, however, that based upon the testing procedures used, his own knowledge, and his own experience, he would estimate that he was 99 percent sure that the defendant’s blood alcohol content at the time of the test and at the time of driving was in excess of .10.

That 99 percent sounds pretty convincing. And in a lot of cases, 99 percent certainty would surely suffice. Ladies and gentlemen, this is a criminal case, however, and the stakes are great. Jim Phillip’s liberty is at issue, his reputation is at issue, and whether Jim Phillips will forevermore wear the brand of a drunken driver is an issue that you must resolve. What about 99 percent certainty? In a case where the stakes are high, is that enough?

Consider the following: I’ve got here a bottle of aspirin. You members of the jury have a headache and ask me for an aspirin. I hand you the bottle of aspirin, but before you take out your aspirin I tell you that out of that bottle of 100 aspirin there are actually 99 aspirin capsules and one cyanide capsule. Now if you have a headache, and you take one capsule, you have a 99 percent chance of getting an aspirin and only a one percent chance of getting a cyanide capsule. But if you get the cyanide capsule, you know there are going to be dire consequences. The stakes are very high if you choose wrong. I submit that a reasonable person would conclude under those circumstances that the stakes are high if a mistake is made, and that a one percent chance that you could guess wrong is sufficient doubt to avoid taking any aspirin. Ninety-nine percent is just not good enough.

I submit to you, ladies and gentlemen, that in this case as well, 99 percent certainty is not good enough. We had a machine tell us that Jim Phillips had a .10 or greater blood alcohol content. We had the chemist tell us that he was 99 percent certain that that machine result was correct, but we had a human being, Jim Phillips, tell us that he only had one drink that night. And the state chemist told us that one drink could not produce a .10 or greater blood alcohol content. There is doubt. The 99 percent is not enough. That one percent, that one cyanide capsule, creates the reasonable doubt.

The Burnt Toast

In a case that tried in the early 1980s, the prosecutor had used his preemptory challenges to exclude all males from the jury. The jury consisted of six female jurors as well as two alternates who also were women.

In this case, the State had recently purchased infrared analyzers, which were at that time relatively new breath testing devices, and they had been touted to the jurors as accurate and trouble-free devices. In this particular case, the infrared analyzer, an Intoxilyzer Model 4011AS, gave a breath test result of 0.17g%, well in excess of the legal limit required for a conviction.

In closing argument, the following anecdote was used to help obtain an acquittal:

Good afternoon, ladies of the jury. We have come to that point in the trial where I am given an opportunity to review the evidence with you and to argue from the facts and evidence presented why the State has failed to prove beyond a reasonable doubt that my client, Bill Harris, is guilty of driving under the influence of alcohol.

What this case boils down to is whether you will accept the testimony of Bill Harris and the other defense witnesses, Gene Clark and Tom Bolton, which testimony shows that Bill could not have consumed enough alcohol over the course of the evening of October 10, 1983, to result in a blood alcohol content of 0.17 as the State alleges, or whether you will believe the results of that shiny, new piece of equipment, called an infrared analyzer—a machine, that indicates that Bill Harris had a blood alcohol content of 0.17.

If you believe Bill Harris, Gene Clark and Tom Bolton, then your verdict should be for the defense; but if you believe the machine, then your verdict should be for the State.

How can you go about making that determination as to whether you should accept the defense testimony or that of the Intoxilyzer 4011AS? The choice you face reminds me of a problem my mother faced many years ago when I was a young boy.

It was back in the early 1960s and my father had just purchased for my mother a new ‘state of the art’ toaster. It was going to replace the old toaster we had had for many years. It looked very shiny and new and my mother was anxious to begin using it.

Unfortunately, as soon as we began using it, regardless of how we set the toaster, the bread would come out black and burnt. My mother immediately called the appliance store where we had purchased the toaster and they sent out a repair person the next day.

He examined the toaster for awhile, took off the back cover and proclaimed the toaster to be ‘working fine.’ He said there was nothing wrong with it at all. My mother explained to him what had happened to the bread each time we had tried to use the toaster, that is, the bread burned, but he insisted there was nothing wrong with the toaster.

Rather, he said to my mother, ‘Maybe you should buy a different brand of bread.’ My mother, in turn, said, ‘There is nothing wrong with the bread that I buy for my family. I have bought that same bread for many years, my family likes it and it’s good for them. Given a choice between my bread and your toaster, I will choose my bread. Take your toaster back, I don’t want it.’

Just as my mother held to her beliefs about what was the right thing to do, so, too, should you hold to your beliefs. Is it right and proper to automatically ‘accept’ this new machine’s results, and to reject the testimony of human beings? Both cannot be right.

Either the defense testimony is correct or the results of the machine are correct. Either there is something wrong with the bread or something wrong with the toaster. My mother made her choice many years ago; I ask you to make your choice now. I ask that you return a not guilty verdict.

Spoiled Meat

Ladies and gentlemen of the jury, as the court will instruct you, in order for you to return a guilty verdict you must be convinced beyond a reasonable doubt that the State has proven each and every element of the offense against my client, Dan Bridges. The prosecutor will argue that the State has built a strong case. The prosecutor will also argue that you should have no reasonable doubt as to the defendant’s guilt.

He wants you to ignore certain evidence and wants you to rationalize problems that have been shown to exist with the evidence that you have heard. That’s because there is a very real problem with his case and it is a problem that should cause you to reject the entire State’s case. That problem is Officer Williams’ testimony.

Remember, on cross-examination, he conceded that he made a mistake in the administration of the breath test. He failed the “checklist test.” He did not follow the checklist that was established by the State and by the manufacturer of the machine when he tested Dan Bridges. That’s a bad piece of evidence for the State, it’s something they can’t escape, and it’s something which requires you to reject the entire State’s case. Officer Williams’ mistake and failure remind me of a story that I would like to share with you.

About ten years ago, my grandfather passed away. My mother and father, as well as my family, would always make sure that on Sundays we would stop by to visit my grandmother and have dinner with her. On one Sunday, we decided that even though my grandmother loved to cook for us all, we would take her out to dinner. She at first protested, but after some gentle prodding on our part, she agreed. We took her to one of the nicest restaurants in the state. Everything appeared to be perfect. The restaurant was beautifully decorated, there was gentle and relaxing music in the background, and the menu looked wonderful. The prices on the menu were high, but it was a special place and a special time for my grandmother so we had no difficulty in accepting those prices and we were ready to pay them. My grandmother ordered one of the specials on the menu, Irish Stew. It had chunks of meat, carrots, onions, and potatoes. It had always been one of her favorites.

When our food came, it looked wonderful. As my grandmother took a bite of her meat, however, her face contorted and she had to spit it out. The piece of meat was spoiled and rancid. The waiter came up to us, apologized for the bad piece of meat, stating that he would remove it and bring back the rest of the stew for my grandmother to eat. Obviously, that was not acceptable. That one bad piece of meat spoiled the entire stew. Its mere removal could not cure the foulness of the entire meal. My grandmother looked at the waiter and said, “Even though I only found one bad piece of meat, the entire stew is bad. I will have none of it. Take it away.”

The same is true here, ladies and gentlemen. Like my grandmother, we may have only found one bad piece of meat, that one bad piece of evidence. But the whole stew, the whole of the State’s case, is bad. As the waiter could not reasonably expect my grandmother to pick out that bad piece of meat and eat the rest of the stew, neither should you accept the prosecutor’s invitation to pick out that bad piece of evidence offered by Officer Williams, but accept the rest of Officer Williams’ testimony and the rest of the State’s case. Just as my grandmother said, when the one piece of meat is spoiled, the entire stew is bad. Just as my grandmother rejected the stew, you should reject the State’s case and bring back a not guilty verdict.

The Termites

Ladies and gentlemen of the jury, we have heard Sergeant Thompson admit that there were three “minor” problems with the administration of the field sobriety tests: The lighting conditions were not proper, the three-test battery endorsed by the National Highway Traffic Safety Administration wasn’t followed, and the Sergeant failed to keep a record of the test as it was administered, but rather, from memory, wrote down the results of the test several hours later. Now, the prosecutor will argue that these three errors should not cause you to have reasonable doubt about the defendant’s guilt. The prosecutor will point to all of the other alleged evidence that he has to show that my client was driving under the influence of alcohol. What about these three mistakes? Are they enough to cause you reasonable doubt regarding the defendant’s guilt?

I would like to share with you a story to illustrate why these errors should cause you to find reasonable doubt regarding the defendant’s guilt.

When I was growing up, we always rented an apartment. We never owned our own home. Neither my mother nor father was well educated and each had an hourly wage job. But over the course of a number of years, they saved their money and when I was about 12 years old, they were finally ready to purchase their first home. They looked at many homes before they found one that they thought would be suitable for our family. It was an older home, but it looked well built, had plenty of room and a nice yard. My parents were ready to sign a purchase and sale agreement and to put down a deposit on the house. As we were going through a final walk-through, my father noticed three termites in a corner in the basement. He called them to the attention of the realtor who looked at the termites and with his shoe squashed each of them. The realtor then turned to my father and said, “The termite problem is solved.”

My father shook his head and said, “Those three little termites are but three examples of a much larger problem with the structural integrity of this house. They may seem small to you, but they signify a large problem to me. This is not the house for us.”

Just as those three termites signified a much bigger problem with the structural integrity of that house to my father, so, too, should the three “little mistakes” that Sergeant Thompson admitted making should signify a much bigger problem with the structural integrity of the State’s case. That house wasn’t right for my father, and the State’s case shouldn’t be right for you.

Lost Money in the Vending Machine

In most drunk driving cases, there will be a chemical test—with results almost always above the legal limit—and in many cases, the chemical test is a breath test, with results usually obtained on some brand spanking-new computerized, digitized, bells and whistles contraption that the prosecution would like to refer to as a refined instrument, but which the defense should always call a “machine.” There is a big difference between an instrument and a machine. Sophisticated instruments, for example, can help to save lives through such advancements as medical imaging. They can also wage and win wars, and even send men to the moon. Machines, on the other hand, break down, burn our toast, and, as the following anecdote demonstrates, sometimes take our money and our faith.

Ladies and Gentlemen, when I was a young boy, my grandfather and I went to a sporting event—a hockey game—at the old Rhode Island auditorium on North Main Streethere in Providence. At the end of the first period, I was thirsty and spotted a newly installed vending machine which very colorfully and effectively advertised ice-cold sodas. Back in those days, sodas were only 25¢, and my grandfather handed me a quarter so that I could make my selection. I pondered long and hard among the various choices offered and finally made my selection: an RC Cola. I put the quarter in, pressed the button and anxiously awaited my ice-cold soda. Well, I waited. Then I waited a little more. Then I pressed the button again and nothing. Finally, I looked at my grandfather with an expression that he could only have interpreted as “Hey, what’s the matter?” When I received no response from him, I pressed the button again and again and again, harder and harder and harder. Still no soda. I then pressed the coin return and my disappointment was even further heightened when my quarter didn’t come back. Now I was thirsty and penniless—or more appropriately, quarterless.

When my grandfather saw that I had moved from disappointment to anger, he came up to me, put his hand on my shoulder and said: “All right, calm down. Now what did you learn here?” I told him that I had learned that the dumb soda machine didn’t work.

“No,” my grandfather said. “The lesson that you’ve learned is a broader, more important one.”

“What’s that, Grandpa?” I asked.

“What you should learn from this experience is that you can place your money in a machine, but not your faith.”

“So, come on,” he said. “Let’s go get you a soda from a real live human being at the concession stand.”

Ladies and gentlemen, I learned a lesson on that day and it’s one that I have never forgotten and I hope will never forget. My grandfather was right: We can place our money in machines, but we should never place our faith in them. But that’s exactly what the State wants you to do right now.

Here, the State has put a lot of money into machines, purchasing these fancy, newfangled breathalyzer machines. Yes, the State put a lot of taxpayer money into those machines. But you know what? They’re still machines. That’s all they are. High-priced machines. They still foul-up. They still make mistakes. They can still take our money and give us nothing for them—nothing of any real value anyway.

Like my grandfather said, don’t put your faith in a machine. Many years ago, I learned my lesson. My grandfather and I went and put our faith in a real live person, the concessionaire. And you know what? He didn’t disappoint us. We both got a soda from him. Nothing fancy. Nothing like what was pictured on the vending machine. But it was real and it was good. We made our choice then and it was the correct one. We put our faith in a man and not in a machine.

You’re being asked to do the same thing today. You have to make the same choice. The State wants you to put your faith in a machine, a breathalyzer. But you’ve also heard from a real live breathing, thinking, feeling man. And that man is on trial today, charged with the criminal offense of driving under the influence of alcohol. You can take his word that he had three 10-ounce beers over a three-hour period—something which the State’s expert, Dr. Connors, concedes would not be a sufficient amount of alcohol for my client, Bob Wilcox, to be under the influence of alcohol. Or, you can choose to disbelieve him and put your faith in a machine, a breathalyzer. We know what the State’s done. It has placed its money in a machine. But you can and should do something different. You can take your faith and put it where it belongs, in a man. Take my grandfather’s advice.

The Three Monkeys

Ladies and Gentlemen, you remember the three famous monkeys, Hear-No-Evil, Speak-No-Evil, See-No-Evil. At some time in each of our lives, we’ve probably seen, and perhaps chuckled a bit at the sight of these monkeys. But I wonder whether we have ever really thought about what they might signify. Although I suppose that there are various interpretations about what those monkeys do, or should signify, perhaps what the monkeys are really doing is shutting out—or more appropriately, attempting to shut out—the real world. Because what is or may seem “evil” to them is not necessarily “evil” in the real world sense. Rather, what is “evil” is something that the monkey, for whatever reason, simply does not want to see, hear or speak.

The problem is that they don’t realize that by attempting to shield one’s eyes from evil, one can also shield one’s eyes from the truth. Eyes have to be open to see both the good and the bad in people and in things. Additionally, it may initially seem laudable to cover-up one’s mouth and not speak “evil” of anyone else. But by covering our mouths we also cannot say a kind word, or pass along a compliment. And, finally, although it might seem beneficial to block-out and cover our ears against foul and evil sounds, by covering our ears we also cannot hear someone call out our name in recognition or in friendship.

What this all means is that we have to be careful before we decide that we want to act like those three monkeys. Unfortunately, and without meaning any disrespect for Officer Williams in this case, he fell into the trap of acting like each of those three monkeys. Now why is that?

Well, we learned during the cross-examination of Officer Williams that he shielded his eyes and failed to see anything that Doug Phillips did that was inconsistent with Officer Williams’ opinion that Doug was under the influence of alcohol. Do you remember during Officer Williams’ direct examination where he told you all of the things he saw, Doug’s difficulty in getting out of his vehicle, the problems that Doug had in walking a line by the side of the road heel-to-toe, and Doug’s difficulty in standing on one leg? Officer Williams had no trouble in seeking those things because they were consistent with his opinion.

But do you also remember that on cross-examination, Officer Williams had difficulty seeing—and had to be reminded and indeed shown—many things that were inconsistent with intoxication. For example, he refused to see that Doug was wearing high-heeled cowboy boots which made it difficult for Doug to walk. Officer Williams refused to see that the pavement in the road was uneven, making Doug’s footing unsure and uncertain. He refused to see that the lights in his own police cruiser were shining directly into Doug’s eyes, making it difficult for Doug to see and concentrate.

Officer Williams also refused to hear a number of things. He claimed on direct examination that he heard Doug’s speech as being slurred and almost incoherent. But he refused to hear Doug when he gave clear and cogent information about his social security number, his occupation, his date of birth, his address and telephone number, and the like. These are all things, though totally inconsistent with intoxication, that Officer Williams simply refused to hear.

Finally, Officer Williams also refused to speak. In what way? He refused to say the words the law required to be said. He refused, or at least neglected, to give Doug Williams the statutory warnings to which he was entitled. He refused to explain to Doug that he had a right to be examined by a physician and that he had a right to have his own chemical test to determine independently whether the results of Officer Williams’ tests could be corroborated.

Simply stated, Officer Williams refused to see, or hear, or speak of anything other than that which he believed would bolster his opinion of intoxication. And while what he refused to see, hear and speak may not be evil, it certainly is wrong and unfair because it’s not consistent with our system of justice.

Ladies and gentlemen, you are the final arbiters, you are the judges of the facts. I ask you to keep your eyes and ears open so you can listen to and observe the evidence in this case consistent with the instructions that the judge will give to you, consistent with the presumption of innocence, and, finally, consistent with the requirement that the State meet its heavy burden of proof beyond a reasonable doubt. Then it will be time for you to speak. And I ask you to speak with one clear, strong voice and return a verdict of not guilty.

The Broken Record

Ladies and gentlemen, back when I was growing up, before we had CDs, or even before cassette players, I can remember listening to my parents’ records. Some were old 78’s and some were the 45’s. The sound was nowhere near as good as what we hear from today’s technologically advanced CDs. Still, listening to records was a lot of fun, even way back when. What wasn’t fun, however, was trying to listen to a record that was damaged, or scratched. It was really easy to damage a record, particularly if you weren’t paying too much attention with the phonograph needle. When you got careless, the record got scratched and skipped and your favorite songs were ruined.

I can remember the first time that I was careless in playing one of my parents’ records and managed to scratch one of their favorites. At first I didn’t tell my parents what I had done, but when my mother put the record on, it didn’t take very long for her to hear that the record was damaged. I tried to make light of it, saying it was only a small scratch on a very large record. What was the big deal? She didn’t think it was funny. Not at all. My mother told me that the small scratch ruined the entire record, and in fact, the record was, for all intents and purposes, broken. She was right. That small scratch, that small defect, ruined the entire record.

That’s pretty much the same thing that happened in this case. No, a record may not have been scratched or ruined, but there is still a defect, a bad piece of evidence in the State’s case. A scratch that ruins the record here.

I made a mistake when I scratched my mother’s record because I handled it carelessly. So, too, did Officer Johnson make a mistake in the administration of the breath test. He was careless in how he followed the checklist established by the State and by the manufacturer of the machine when he tested my client, Bill Roberts. It might have seemed like a small mistake to him, just as a scratch on the record seemed like a small mistake to me, until I listened to the record. And the same holds true here. That scratch, that careless mistake, ruined the administration of the breath test. And just like I couldn’t fix that scratch on my mother’s record, neither can the officer’s mistake be wiped clean or buffed out here.

My mother couldn’t stand listening to that scratched record, so even though it was her favorite, she threw it away. Nothing could be done. The record was broken. So, too, would it be unreasonable to ask you, the judges of the evidence in this case, to accept a scratched-up, broken record, the record presented by the prosecution. That’s not right. So, just as my mother had to throw out that record long ago, so, too, should you throw out the State’s case today.

The Wayward Signs

Ladies and Gentlemen of the Jury, we have heard Sergeant Willis say that all of the signs of intoxication were present when he administered the field sobriety tests to my client, Frank Harris. Do you remember how he reviewed those signs of intoxication with you? He gave you a description of why each of those signs in his opinion was consistent with intoxication. They were things like slurred speech, unsteady gait, nervousness, and red and watery eyes. These were the signs that the police officer said pointed directly to intoxication. And he asked you, and indeed encouraged you, to follow those signs to reach a guilty verdict.

He’s wrong. You should not do that, because those signs are false, wayward signs and they will lead you astray. Those wayward signs remind me of a story that I would like to share with you.

Many years ago, I was walking along the streets of downtown Providence. A car pulled up with out-of-state plates and the driver asked me for directions. It seemed that the driver was having a hard time finding his way on to Route 95 south to head back to his home state, New York. He asked if I could help, and I told him that I certainly could, that I knew the way to the interstate highway. I gave him simple directions, telling him to travel two blocks to the north, then take a left heading west onto Route 195, which would then merge to the left with Route 95 south heading to New York. Off he went. But several minutes later, the car approached again. This time the driver rather sheepishly rolled down his window and asked if I could repeat the directions that I had given him earlier. “What happened?” I asked. “Didn’t you understand the directions?”

“Yes,” he said. “I did. But as I traveled north as you directed, I saw a sign for Route 95. I assumed you were wrong when you said go left, so I went right like the sign indicated toward 95, but somehow I ended up right back here again. Even though the sign pointed to 95, I couldn’t find the highway.”

Of course, I knew exactly what sign he was talking about. And, in fact, the locals at that time called it the “you can’t get there from here” sign. It was truly a misleading, misdirecting, wayward sign. Anyone who followed the sign would never get on the highway. The sign was taken down several months later, much to the delight of many out-of-state visitors, I’m sure.

You folks are sort of like out-of-state visitors here. You’re traveling on foreign roads. Most of you have not been involved in legal matters, the terminology is different, you’re not used to reviewing evidence and making decisions about a person’s guilt or innocence. So you need directions: clear, cogent, honest directions. Those directions will come from the judge when he gives you your instructions. Those directions will include ones on the presumption of innocence, the requirement that the State prove its case beyond a reasonable doubt, and the direction that you need not accept the State’s expert testimony, and, in fact, you can reject it entirely, that you are the sole judges of credibility. Those are the clear, cogent directions that will lead you on the true road to a just verdict.

Don’t follow the wayward signs, the alleged signs of intoxication offered by the officer, because if you do, and if you truly want a just verdict, like the out-of-state visitor in my story, you will be led astray. Follow the true directions, the judge’s instructions. Listen to the instructions and directions on presumption of innocence, proof beyond a reasonable doubt on each and every element of the State’s case. If you follow those directions, you will get where you need to go: a not guilty verdict.

Leprechauns

Assume that the defendant has been charged with driving under the influence of alcohol and the prosecution relies upon the result of a breath test, which indicates a borderline illegal blood alcohol content. In cross-examination of the State’s expert—as well as the testimony of the defense expert, the defense has been able to establish that the breath test device had a borderline reading, and taking into account a margin of error, as well as other physiological factors, such as temperature, hematocrit, gender, breathing pace, etc., can implicate the good with the bad, or more simply stated, can make it appear that those who are actually under the legal limit are over the legal limit. Because the machine is designed as it is, it will not always differentiate those who are above the legal limit from those who are below the legal limit, making them all appear to be the same. If this point is successfully made, it can be used in closing argument to convince a jury that there is reasonable doubt about the defendant’s guilt. The defendant has the right to be treated as an individual, and not as an average person. In fact, some courts will give an instruction along those lines. The criminal law is supposed to be designed to make sure that an individual is not convicted because he is mistaken as being guilty or because he looks guilty or because it is difficult to tell the guilty from the innocent. In fact, the criminal law is designed in such a way—through its high burden of proof beyond a reasonable doubt—to make sure that an innocent person is not convicted even if it might mean that some guilty persons might be set free.

Therefore, it is extremely important in drunk driving cases, that the prosecution’s evidence must be able to differentiate between those over the legal limit and those under the legal limit. For if they all look the same, or are made to look the same, then a jury’s decision will be arbitrary and not grounded in fact; and a decision of guilty will certainly not meet the high burden of proof beyond a reasonable doubt. When things are made to look the same by the prosecution’s flawed machines, then the innocent will be lumped together with the guilty and our system will fall apart.

Here’s an anecdote to help convince the jurors that they should return a not guilty verdict.

Ladies and gentlemen, we’ve heard a lot of evidence in this case about what happened on the night of December 3, 1997. And we know from the evidence much of what happened that night is in conflict. There are two very different versions of the events. The testimony of the witnesses conflict, the documentary evidence is in conflict, and what can be gleaned from the chemical test result—the breath test—is also in conflict. The State’s witnesses have been, in large part, contradicted by the defense witnesses, many of whom are disinterested lay persons who have testified that Tom Johnson did not appear to be intoxicated on that night of December 3rd. The State, however, points to the breath test result, a .11 result, as its alleged disinterested proof that Tom was, in fact, over the legal limit and, therefore, under the influence of alcohol.

You will remember the cross-examination of the State’s toxicologist who admitted that there are certain variables, including the blood/breath ratio, hematocrit, body temperature, gender, and even breathing pattern that can affect the breath test result. Certainly, these points were expanded upon and were explained in much more detail by the defense expert, Dr. Curtis. You will remember that he told you about the problems with the State’s breath testing machine. Under these circumstances, where the breath test reading appears to be just over the legal limit, the machine will not be able to differentiate at all times the guilty from the innocent, those under the influence of alcohol and those not, those above the legal limit and those under the legal limit. If you have any reasonable doubt about that breath test result here—and about the machine’s ability to differentiate at all times between those under the legal limit and those over the legal limit, then you must return a verdict of not guilty. That’s because the law requires that the prosecution prove its case—indeed each and every element of its case—beyond a reasonable doubt.

The problems in the prosecution’s breath test machine remind me of the story of the captured leprechaun. I’m sure you all know and have heard stories about leprechauns, those mischievous little characters of Irish folklore. We know that they are very hard to capture, but they can bring good luck and indeed if one is captured, he will be required to hand over his treasure, his pot of gold, to his captor. Consequently, Irish folklore is filled with stories of attempts to catch a leprechaun. Almost all are unsuccessful.

However, one man was successful. His name was O’Brien. O’Brien had heard that a particular leprechaun was living in a forest not far from O’Brien’s home. O’Brien waited day after day for some sign of the leprechaun so that he could capture the leprechaun and, ultimately, force the leprechaun to reveal to O’Brien the leprechaun’s treasure, the pot of gold. After many days, O’Brien caught sight of the leprechaun who, of course, was oblivious to O’Brien’s presence. O’Brien was very careful and kept hidden as the leprechaun approached; and then, just as the leprechaun was walking past, O’Brien sprang from his hiding place, and grabbed hold of the leprechaun, capturing him.

“Let me go!” screamed the leprechaun.

“No, I won’t,” said O’Brien. “Not until I have your pot of gold.”

“I don’t have it with me. It’s buried under one of these trees in the forest.”

“Then what are we to do?” asked O’Brien. “I’m not letting you go until I have your treasure.”

“Here’s what we’ll do. You’ve captured me. That I admit. You have my word that if you let me go, I will tie a white ribbon on the branch of the tree below which my treasure is buried.”

Now, O’Brien knew that a leprechaun would not go back on his word. Therefore, he let the leprechaun go free with the promise that on the next morning, O’Brien would return to the forest and that the leprechaun would place a white ribbon on the branch of the tree below which his treasure was buried.

O’Brien went home contented that night and began to think about how he would spend his treasure the next day.

O’Brien arose early the next day and went back into the forest full of excitement. But to his amazement and chagrin, he saw every tree in the forest with a white ribbon on its branch. Now, the leprechaun had not lied. Hehad placed a ribbon on the branch of the tree below which his treasure was buried. What he had done, however, was to outsmart O’Brien. For the leprechaun had made all the trees look the same so that it was impossible to tell the important tree from the unimportant ones. They all looked the same.

That is what happened here as well with the prosecution’s evidence. This machine has made all appear to be the same who are at or near the legal limit. It simply cannot differentiate between the two and, therefore, just as all O’Brien could do was guess at which tree of the hundreds upon hundreds in the forest was the one under which the treasure was buried, so, too, are you left to guess and speculate as to whether the defendant here, Tom Johnson, was at or below the legal limit. O’Brien, as I’m sure you can imagine, ultimately was frustrated and gave up in his search.

Ladies and gentlemen, you have a job to do and it is your job to hold the prosecution to its high burden of proof. It has failed to differentiate between the good and the bad, the legal and the illegal. It has left you simply to speculate and guess, like O’Brien. But it is not your job to guess or speculate. Your job is much more important. Your job is to give every benefit of the doubt to the defendant, Tom Johnson. Your job is to hold the prosecution to proof beyond a reasonable doubt. Your job is to reject the prosecution’s case where it has failed to do so. It is not your job to try to look under every tree in search of a treasure. The prosecution has one chance to show you that it can prove its case beyond a reasonable doubt, and it has failed to do so. The good have not been separated from the bad. Rather, they are all made to look alike by this breath testing machine and like O’Brien, the prosecution’s luck has run out. Return a verdict of not guilty.

The Shoeshine Boy

When I was growing up, everyone in my family had to work. Work wasn’t an option. It was a way of life—a necessity. And we started work young. My first job was shining shoes on a street corner a couple of blocks from my grandfather’s fruit stand. I was 9 or 10 years old, I really don’t remember my exact age. Now, that might seem very strange today. Today, almost no one would expect a 10-year old to work; and, certainly, no one would let a 10-year old work on a street corner, shining shoes. But times were different 40 years ago. That much is certain. As I think back to how my life has changed over those 40 years, I realize that shining shoes taught me a lot of important lessons that have carried over in many ways, both expected and unexpected. One of the lessons that I have learned in my early days of shining shoes has application to this trial. In fact, as I was preparing for this opportunity to address you in closing argument, I thought about those days many years ago when I stood on that corner and asked men who passed by if they wanted their shoes shined. I would like to recount a short story that helps to explain why you should not put your faith in Officer Daniels’ breath test administration.

Here’s what happened. I had just started out on my career as a shoeshine boy and I had high hopes of getting many good paying customers. Even more importantly, I wanted to keep my customers; I wanted to have regulars who would come to my stand and pay me to shine their shoes. Now, anyone who shines shoes for a living knows that if you want a good shine that will last and be protective of a quality pair of shoes, you have to first use a soft brush to clean any dirt or debris from the leather. Then, once the shoe is clean, you can apply the polish. Next, after the polish is applied, you use a cloth to buff the shoe and, finally, another brush to finish off the shine. When it’s done right, the shoe takes on a nice – and sometimes even glorious – shine. But if the right process and procedures aren’t followed, then while you might still get a shine, it won’t be a really good one. Nor will it be a shine that will last.

Now, when I started out, I would sometimes get really nervous and excited, particularly if there was more than one customer to service. I didn’t want my customers to have to wait and get impatient. And heaven forbid, that I might take too long, causing a customer to leave. Sometimes, I would get preoccupied; and I would forget to follow all the right steps. I would rush through the job and sometimes I would neglect a step, make a mistake. Of course, I would never forget to put the polish on. But sometimes I would forget to first clean the shoe properly. Sometimes I would go right to the polish. When I would do so, in a sense, I would be locking in the dirt, rather than protecting the shoe. And that’s not a good thing.

Well, most of the time, the customer would gently remind me that I had forgotten to clean first; and when that happened, I would have to take the cloth and try to remove whatever polish I had put on. (Not an easy thing!) Then I would have to clean the shoe properly and start all over again. That mistake, my failure to follow the correct process and procedure, cost me time and money (and it usually affected my tip). It was also embarrassing. But after awhile I learned. I got older, more experienced, less nervous and more careful. Certainly, I knew it all by the time I was 11.

That’s a lot like what happened here with Officer Daniels, when you think about it, isn’t it? Of course, he wasn’t shining shoes. But what he was doing was starting out with breath test administration. We know that from his testimony. And we know that just as I would get a little anxious and nervous, he got a little bit anxious when he gave his test to the defendant, Jack Collins. Officer Daniels wasn’t used to administering breath tests. And just as I forgot to clean the shoes first before applying the polish, Officer Daniels forgot to run the machine through a pre-test clearance.

Now, he testified that he made a mistake, but that the mistake he made really didn’t amount to anything, it didn’t make a difference. His testimony is that the result is still good. And he’s testified that you should believe the result from the machine, despite the mistake. But do you know what? Think back to the customer who told me that I had made a mistake. Well, did I argue with him and say no, that not following the correct process makes no difference? Of course not. I went back and I corrected my mistake because otherwise the job wouldn’t be done right. That’s why there are specific steps to be followed. Those steps are there to make sure that the job is done right. I was shining a man’s shoes and that was important to me as a 10-year-old. But do you know what’s even more important? Officer Daniels is presenting evidence here that will affect a man’s reputation and his liberty. If doing things right was important for a 10-year-old boy – important enough to make sure that the shoes he shined were properly shined – don’t you think that doing things right is absolutely necessary in a criminal trial? Don’t you think that just as my customers would be reasonable in having doubt about the quality of a shoe shine that wasn’t done the right way, you would be reasonable in having doubt about the breath test result in this case, especially where we know that the test wasn’t administered the right way?

Ladies and gentlemen, as I said when I first addressed you, today we would not allow a 10-year-old boy to stand on a city street corner and shine shoes. Society, unfortunately, has changed too much – and certainly has changed for the worst. That much is clear. But I hope that it’s equally clear, absolutely clear, that today we won’t allow a man’s liberty to be placed in jeopardy because someone in authority didn’t follow the right process and procedure. Someone in authority didn’t follow the rules. Didn’t do the job right. Ladies and gentlemen, the rules applied to a young boy 40 years ago as he shined a man’s shoes. They also should apply today to the evidence that you have heard and as you judge a man’s fate.

The Stone in the Shoe

Ladies and gentlemen of the jury: Have you ever had a small stone, a pebble, get into your shoe? Well, if you have, you know that even a small pebble, even a tiny one, can cause some major irritation and discomfort, right? Maybe you might be able to take a few steps or so, but you would know immediately that something’s wrong. You would feel it, the pebble, and you would stop walking, take off your shoe and remove the irritating object. It’s something that’s probably happened to all of us.

But supposed for some reason, you didn’t remove the pebble. You just kept on walking. It’s not impossible to do. You could continue to walk. But it certainly would be uncomfortable, and depending on how long you would have to walk, that tiny pebble would develop eventually into a big problem. And that, ladies and gentlemen, reminds me of the story of the foolish boy.

A young boy’s mother had just bought him a brand new pair of shoes. The boy was walking to school, as he did each morning. Now, on his way to school, he felt particularly proud of his new shoes. As he walked, however, a tiny pebble got into his right shoe. He felt something was wrong almost immediately, but he looked down and he saw the outside of his shoe and it looked good: shiny and new and perfect. And he looked under his shoe. Again, he saw nothing. There was no problem visible to the eye. So, the boy walked on. Every few steps he would stop and check out the way his shoe looked. It always looked fine. In fact, it looked just like his new left shoe, which wasn’t bothering him at all.

The boy foolishly thought that perhaps there was something wrong with his foot rather than with his shoe. He didn’t remove the shoe to check inside, for if he had done so, he certainly would have seen the pebble and would have realized what was wrong. But, being a foolish boy, he didn’t do that. Instead, he looked only at the outside of the shoe and saw nothing wrong. And he accepted and trusted that visual review. It was enough for him.

Now, by the time he got to school, he was really hobbling and in pain. But, still, nothing looked wrong with his shoe. He hobbled around the entire day, and again all the way home. Finally, he told his mother that there was something wrong with his foot. He wasn’t sure what it was. When the mother took off his shoe, she immediately saw the pebble and removed it. But do you know what? Well, by now, the foolish boy was actually right. There was something wrong with his foot. It was sore and swollen and irritated, and it needed medical treatment. His mother showed him the pebble and asked her son why he hadn’t removed the shoe to check on what was wrong. He answered, “I didn’t want to think that there was something wrong with my brand-new pair of shoes. They looked so nice.”

This was foolish, of course. But, in many ways, it’s what happened here. What do I mean? Well, remember Officer Williams’ testimony. He had a warning that something was wrong – just as the foolish boy did. He had a warning that something was wrong with the breath testing machine. Why? Because when he ran the simulator test, it didn’t come out right. Now, perhaps to him it was just a minor irritation at first, just like the pebble in the boy’s shoe was a minor irritation for the first few steps. But then, Officer Williams ran a second test. Now, in the first test, the shiny machine looked good, brand new, just liked the boy’s shiny new shoes. But, again in the second test, the simulator also didn’t come out right. An irritation? Something to be ignored? Well, that’s what he concluded. Just ignore the problem. The machine looks good, just like the little boy’s shoes looked good. So, Officer Williams ran the test anyway, just as the boy continued to walk to school. And what happened? Well, Officer Williams did get two breath results, .11 and .18. As you heard, those are big differences, extreme differences. Dr. Knowles testified, in fact, that it’s much too big a difference to accept. That small irritation, the problem with the simulator solution, just like the problem in the shoe, went undiagnosed and uncorrected. And each ended up as a big problem. A problem not only for the boy, but here for the prosecution’s case as well.

What might have started out as a small irritation, a minor problem for both the boy and Officer Williams, ended up as a major difficulty. And, here, ladies and gentlemen, that problem, that major difficulty, is the reason why the prosecution’s breath test result can’t be accepted by you. Is that a harsh result for the prosecutor? No. It’s a result that makes sense. Just as the boy had to live with a sore and swollen foot because he didn’t take the time to correct what was first a minor problem, so, too, must Officer Williams accept the consequences of not correcting what he perceived to be only a minor flaw in the testing process.

And just as something small created a big problem for the boy, something perceived to be of little consequence here, something deemed to be a small problem, if at all, by Officer Williams, has created a significant problem, a real problem, a reasonable doubt creating problem about the breath test result. And that’s why, members of the jury, you should return a not guilty verdict here.

§682      Closing Arguments: Attacking the Prosecution’s Machine

Regardless of which machine’s result is ultimately offered at trial, and no matter how technologically advanced the machine is touted to be, the facts are the same that (1) the science underlying the machine is flawed, and (2) the machine is just that: a machine. The prosecutor can call it an instrument, but it still, and always will be, a machine. Machines malfunction; and malfunctions lead to reasonable doubt.

We always have to develop new ways to bring the point home to jurors that their investment of confidence in the prosecutor’s technology is not warranted. What follows is a suggestion of how to remind jurors that there is danger in placing complete trust and investment dollars in technology.

Here is an example of a closing argument that attacks the technology of a State’s machines and suggests that an investment of trust in them actually runs counter to core beliefs.

Ladies and Gentlemen, let’s be clear here. Let’s make no mistake. The prosecutor’s machine, the State’s technological black box, says that my client, Don Gibson, is guilty. It says that because, based on its technology, the machine says Don had a blood alcohol content of .13. That’s pretty interesting technology, isn’t it? The machine took a sample of Don’s breath, and changed that breath test into a blood test result. That’s a pretty amazing transformation, isn’t it? In fact, if it were true, it would rank right up there with some other amazing transformations you may have heard of, like changing a sow’s ear into a silk purse, lead into gold, or water into wine. That’s what the prosecutor is saying that this technology can do. It can change a breath test result into a blood test result. And the prosecutor asks you to accept it, and to invest your confidence in that technology. Because without that investment and without that acceptance, and without that belief, then, of course, there is reasonable doubt about Don Gibson’s guilt, and reasonable doubt requires that you come back, as you should, with a not guilty verdict.

So, what are you supposed to do? Should you invest your belief into the prosecution’s technology? It may seem like a difficult choice—and perhaps it is. No one is doubting you have a difficult job. But I would like you to think about what you are really being asked to do here. And I would like you to reflect on, and use your common sense about whether it makes sense to invest that kind of belief in this kind of technology.

Just think about the kinds of promises that have been made in the past about technology and what it can do for all of us. And think about how we’ve been disappointed time and again. Certainly, technology does have a place in our lives and certainly it can help in certain respects. But technology often disappoints us. For every computer plus, there is a computer minus. For every new program, there is a new virus. For every success, there is a failure. We have all come to know, and accept that. And these facts have caused almost all of us, quite correctly, to look at technology with a critical eye. That’s how it should be looked at, just like any other piece of evidence that is offered by the prosecution. You are the critics. You are the skeptics. That is your job. And to abide by your oaths you should all, each and every one of you, look at the prosecution’s evidence critically and skeptically to determine whether it can really pass muster on a beyond a reasonable doubt standard.

I would also like to remind you how dangerous it is to put all of your eggs in the prosecutor’s technology basket. Think about what a poor investment it was for so many folks who put all of their investment dollars in the technology basket over the last several years. Certainly, while technology was being touted, and trumpeted, and heralded, and praised, and technology stocks went up and up and up, there was no reason not to jump on that technology bandwagon, right? But we also know what eventually happened, don’t we? The technology bubble burst, many technology stocks fell dramatically, if not failed entirely, and many good people suffered the consequences. And with that suffering they also began to realize once again that basic core concepts of investment—trusting in good, sound, conservative investments—is preferable to taking the roller coaster ride of technology stocks.

That’s what is happening here as well. You may not be investing dollars into technology stocks, but you are being asked to invest something even more important than money—your belief, your trust, and your faith—in the prosecution’s technology. The prosecutor’s asking a lot. That’s for sure. And you should be skeptical. You are being asked to invest your beliefs in that technology and to discount—and indeed reject—more traditional, conservative, core evidence, the testimony from human beings, the opinions from recognized experts—in short, the evidence presented by the defense. That traditional evidence may not be shiny, new and technologically advanced. But you know what? That traditional evidence is at the very core of our criminal justice system. It is the kind of evidence, the basic, conservative, recognized evidence that has been accepted by jurors for generations. And when you weigh that core, conservative, standard and accepted evidence against the prosecution’s technology, at the absolute minimum, there should be a reasonable doubt in your minds about the defendant’s guilt.

Let’s talk plainly. Technology is not and can never be a substitute for common sense. Technology is not a substitute for life experience. And, I suggest, technology should never, ever be deemed a substitute or replacement for traditional evidence, the testimony of witnesses, the opinions of experts. So, what do we have here for you folks to judge. Let’s review what each side brings to the table. Here, the defense has presented testimony from several defense witnesses, including Don Gibson, that if accepted by you, must create reasonable doubt about the State’s technology evidence. Because each of these witnesses testified that Don Gibson only had two glasses of wine over a three and a half-hour period. And based upon Don’s weight, drinking pattern and the amount of food he ingested over that time period, Dr. Hancock, an expert witness who has testified more than 50 times on blood alcohol content, gave his opinion to a reasonable degree of scientific certainty that Don Gibson’s actual blood alcohol content could not have been .13—and, in fact, could not have been even .10, the legal limit for intoxication in the state, as the judge will so instruct you.

The prosecution brings forth a machine’s test result. One that says “Trust in me. Find Don Gibson guilty.”

So, what are we to take from all of this? Ladies and Gentlemen, that is something for you ultimately to decide, but I suggest that what we should all take from all of this is a very healthy dose of skepticism with respect to the prosecution’s technology evidence. Don’t invest all of your beliefs and trust in that evidence. Don’t make the same kinds of mistakes that others have made when they put all of their faith in technology. Rather, stay true to the course. Hold to your established values. Use your common sense. Trust in your core beliefs. And listen to, and review again in your minds and hearts, the testimony of the defense witnesses, which all call into serious question, and cast serious doubt upon the technology evidence presented by the prosecution.

Your job is to determine whether there is reasonable doubt about Don Gibson’s guilt. When you weigh the prosecution’s technology evidence against the defendant’s traditional evidence, and you think hard about what technology is, what it does, and what it can’t do, I suggest that you will come to but one conclusion and that is reasonable doubt not only exists, but abounds in this case. And that again can only mean one thing. The State’s technology evidence should be sent packing and Don Gibson should be sent home.

This closing argument can be modified and adapted for use in a variety of cases. The basic point brought home is always the same, however; it is always better to put faith in human beings than in machines. If jurors accept that fact, acquittals will follow.


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Winning DUI arguments and techniques

Keep your local prosecutors off balance with new and unfamiliar approaches

A fresh flow of novel arguments is the best way to keep the government from adjusting to your drunk driving case presentations. Patrick Barone’s Defending Drinking Drivers is loaded with them:

The offense

Ways to attack per se statutes. §132.1

Defenses based on elements of the offense. §141

Dealing with dual charges of drunk driving and reckless driving.  §154.3

Combating 6 common types of prosecutorial misconduct. §155

Remedies for breaches of plea agreements. §155.3

Challenging charges of felony child neglect. §156

Using the ADAto keep out field sobriety tests. §156

Defending ecstasy cases. §164.3

Chemical evidence

Attacking prosecution’s extrapolation evidence. §203.3

Rising blood alcohol defense. §204

Checklist for attacking the fixed partition ratio. §223.6.7

Studies of the accuracy of breath testing. §223.7

Sources of error in breath testing. §223.8

Slope detection and mouth alcohol. §227.5

Cross-examining the arresting officer on observation period.  §227.6

The UCC defense in drunk driving trials. §235

Margin-of-error evidence. §236

The “miles apart” defense. §237

Source of error in enzymatic analysis. §242.2

Defenses to the whole blood gas chromatography result. §243.2

Defending SCRAM bracelet violations. §264

Trial practice

The trial notebook. §602

Juror questionnaires. §603

Developing themes. §604

Persuading juries with metaphors and analogies. §605

Guarding against judicial misconduct during trials. §606

Jury selection in bad cases. §616 

How to make an effective opening statement. §620

How to deal with bad facts.  §624

10 non-defensive opening statements. §629.2

Checklist on evidentiary concerns of videotape evidence. §641.2

Using Powerpoint. §642

Should you call the defendant as a witness? §660

Improper attacks on defense witnesses. §670

13 sample closing arguments using anecdotes, analogies, and metaphors.  §681

212-page chapter on trial practice

Trial notebook, themes, voir dire, openings, cross examination, audio-visual evidence, calling defendant, closings, jury instructions, and more are covered in this valuable chapter. Here are 7 quotes:

  1. Using metaphors and analogies. “Your cross examination questions should be formulated in such way that the witness will be willing, if not actually forced, to agree with the specific analogy you select. The best place to look when starting to develop these analogies is the jury instructions. The terms and phrases in the instructions should become standard parts of your trial lexicon, and when addressing the jury you should think of more favorable ways to express these legal concepts.  For example….”   §605.1

  2. A better opening.  Most attorneys, when they make opening statements, make the mistake of simply narrating what the evidence will be or show. This adds nothing to the trial. Great trial attorneys do something different, however; they tell a story and engage and involve the jurors immediately, convincing them that this a case they will want to pay attention to. Here is an example….” §629.4

  3. Attacking description of appearance. “The best way to attack this parade of horribles is to break the officer’s testimony down into its component parts. Focus on each of the alleged symptoms of intoxication. Ask one or two pointed questions aimed at the validity of the observation, and then move on to the next topic. For example….”  §631

  4. Dealing with pattern report responses. “The physical symptoms observed by the arresting officer often follow specific and set patterns, and each one of those patterns is designed for one purpose: to point to guilt. One interesting way to deal with these symptoms is to seek discovery of other reports prepared by the arresting officer, for example within a two-week period for or after the arrest, to establish an individual officer’s pattern. Be ready to meet the prosecutor’s objection….”  §631.6

  5. Attacking experts.  “Get the prosecution experts to explain to the jury how smart they by having them explain their testimony, then follow-up with more explanatory – but targeted – questions. Soon, by and through their explanations, they will lose the jurors.  With any luck, they will also lose the judge. After they’ve done a lot of explaining, consider making the following points in your closing argument….” §631.12

  6. Cross examining the machine operator. “The first area for you to investigate is the background and training of the operator. The points to be made here are (1) the operator lacks any real knowledge about how the machine works, and (2) any training given was of a rudimentary nature. The following is a sample cross examination on these points.” §632.1

  7. Pre-trial sentencing effort.  “Sentencing considerations should be a part of the case from the very beginning.  The efforts made to convince a prosecutor not to charge the client with DWI, but rather a lesser offense, or not to press for maximum penalties should be made pre-trial with an appropriate memorandum similar to that used in the pre-sentence phase. The memorandum should be organized like a brief with subtitles, such as….”  §710

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