Find a villain, presenting bad facts, opening advice, and more.
By Donald J. Bartell
Excerpted from Attacking & Defending Drunk Driving Tests
§20:60 The Pretrial Conference
Many judges will quiz the defense attorney during the pretrial conference about what the defense is going to be. Resist giving away your case. The prosecutor is also present at the conference. Tell one, and you have told both.
It can be an awkward moment for the defense attorney. The defense attorney must answer the question as deftly as possible, without offending the court, and at the same time, without revealing the defense.
There is almost always one reply the defense attorney can give the court. Assuming this to be true (and it almost always is) inform the court that the defense involves confidential client communication that you cannot reveal. Most judges will respect the lawyer-client relationship, and not probe further.
§20:61 Be Likeable
A trial is not a mathematical equation where if you prove x the jury will return verdict x. The lack of mathematical precision is due to the fact that there are human beings involved in the trial. Favorable verdicts are more readily secured if the proof is there and the jury feels good about the decision, rather than if just the proof is there.
One way to help the jury feel good about the decision is for both counsel and the client to be likeable.
A judge who had served a long time on the bench once remarked that the number one factor leading to acquittals in his courtroom was the likeability of the defendant. He just might be right.
Being polite, courteous and professional goes a long way toward making counsel likeable. The client can also be appealing to the jury even if the client does not testify. Follow these guidelines:
- No grimacing or whining during negative testimony about the client.
- Be on time and dress appropriate.
- If something funny arises in the trial, everyone should feel free to lightly chuckle.
- The attorney can occasionally be humorous as long as it is limited and not contrived.
§20:62 Dress the Client Appropriately
The client’s attire should be business professional; nothing flashy. Lose the pager, cell phone, sun glasses and jewelry. The client should look like the boy or girl next door, not some societal menace.
The client should not “out-dress” the lawyer. Generally our office does not have male clients wear suit jackets, just a shirt and tie with slacks. The exception is if the client has substantial girth around the mid section. This look suggests to some that the client drinks prodigious amounts of beer. Cover up this with a suit or sports jacket.
§20:63 Emphasize the Client’s Cooperation
If the client’s contact with the police officer was cordial, be sure to have the officer tell the jury that the client was cooperative. Cooperative people are likeable.
A good time to ask the arresting officer if the defendant was cooperative is early on in your cross-examination. Often in the early stages of cross-examination, before any blood has been spilled, police officers will be more helpful with small bits of positive testimony for the defense. The officers’ thinking seems to be that by conceding some ostensibly inconsequential positive points they give the appearance of being a neutral witness. Whatever the reason for the phenomena, it is best to grab free points while the peace treaty is in effect. As the trial wears on, neutrality is the first casualty.
§20:64 Keep it Simple
Like most people, jurors are more comfortable with decisions that they can explain. If you want jurors to be comfortable about their decisions, simpler defenses are more effective than elaborate ones.
Jurors need to be able to articulate the reason they acquitted an accused drunk driver to their family and friends. Consider this when formulating your defense. Avoid concocting some complicated defense theory.
§20:65 Find a Villain
Every good story needs a villain.
Make the villain the breath machine, the state’s expert, the police officer, the poorly designed road, government malaise or even happenstance. Anyone or anything, other than the defendant, makes for a good candidate for villainhood.
Direct the fire elsewhere, but keep in mind that you can only have so much disdain. Also, you usually cannot make more than one prosecution witness the villain. Question and challenge everyone, but attack only one.
§20:66 Lay a Foundation and Present the Bad Fact Last
One of the best ways to deal with a bad fact is to put the fact in context. Do this by first laying a foundation for why the bad fact arose. In essence, give a justification for the harmful fact’s existence.
Use this technique in any phase of the case. It works in opening statement, cross examination of witnesses, direct examination, closing argument, and motions before the court.
Suppose your client’s blood sample tested .16 percent blood alcohol content. If you were to begin your opening statement by informing the jury that your client tested at .16 percent (twice the legal limit), you would probably lose most of your audience. During the rest of the trial you would have to overcome the first impression you created—that your client was highly intoxicated.
A much better approach is to give the jurors a chance to accept your argument by putting the bad fact last. Precede the bad fact with an explanation as to why the tests results may have been faulty. Then present the bad fact with confidence. Lay the foundation for the jurors to discount the bad fact.
Tell the jurors that a blood sample is a biological specimen. Explain that the device that measures the blood for alcohol content is a gas chromatograph, and that the device measures only a microscopic portion of the blood sample. Because the blood is a biological sample, and because only a miniscule portion of the sample is measured, extraordinary care must be used in preserving and analyzing the sample. If that care is not done, you get wildly inaccurate results. Then say to the jury that the government did not take the required precautions. Based on what the defendant had to drink the defendant’s blood alcohol level should be .05 percent. Finally, after this foundation (explanation) has been presented, reveal the bad fact to the jurors. Impart to the jury that because of the government’s failures the government’s lab produced an erroneous result of .16 percent.
The jurors have been waiting for you to tell them the alcohol test results. Presenting a foundation for the bad fact gives the jurors a chance to place the bad fact in context. This lessens the shock value created by the bad fact.
§20:67 Surround the Bad Fact With Good Facts
Another way to minimize the impact of a bad fact is to surround the fact with good facts. Doing this informs the jury that not all is bad.
Explain to the jury in your closing argument that you wanted to give them the whole story. The prosecutor only gave the jury a snap shot, but you the defense attorney, played the whole video.
Suppose that your client stepped off the line while performing the walking the line field sobriety test. Phrase these questions to the officer:
- My client counted the correct number of steps?
- Kept his hands down at his sides?
- Touched his heel to his toe?
- He just stepped off the line a few times?
- Point out to the jury the many good things the defendant did that are not consistent with being under the influence of alcohol. This is not the same as giving an explanation for the bad fact. Rather this technique, surrounding the bad fact with good facts, tells the jury there is more to the story.
In closing argument when dealing with a walk the line test, one way to explain to jurors that the test does not have any bearing on showing the defendant’s ability to drive, is to say this: When you go to the Department of Motor Vehicles to get your license, you may have to stand in line, but you do not have to walk the line.
§20:68 Juxtapose the Bad Fact With Worse Facts
You can lessen the impact of a bad fact by juxtaposing it with even worse facts that never occurred. The idea is to lessen the impact of a bad fact by comparing it to something worse that could have happened.
Juxtaposing a fact is easy and effective. Mt. McKinley, the tallest mountain in the United States, does not look so tall against a slide of K2. Cirrus clouds do not appear so ominous compared to cumulus nimbus clouds.
Suppose that your client who was observed weaving his or her car down the highway. Phrase these questions to the officer:
- The client did not brake erratically?
- Cross over the fog line?
- Cut across three lanes of traffic?
- And did not crash the car?
- He just went a few feet out of his lane?
In comparison to crashing a car, a little weaving does not seem so bad.
§20:69 Divert Attention From Bad Facts by Attacking
If you cannot obscure it, surround it, or juxtapose it, consider attacking a bad fact by attacking something related to the bad fact done by the other side. For example, if your client weaved, you may challenge the officer for following too closely:
Q: You were behind my client?
Q: You approached him from behind?
A: That’s how we usually do it.
Q: You were close enough to see his driving movements?
Q: You had your headlights on?
A: That’s why I could see him.
Q: Shining headlights in a rear view mirror can be pretty distracting? [You do not care what the answer is you are simply providing an alternative explanation for the bad fact of weaving. Note: shining is a good verb here.]
A: Not from where I was.
Q: Some people even consider it rude driving—to shine their headlights on someone?
Prosecutor: Objection, argumentative. The Court: Sustained.
Q: If you approached him from behind, you would be accelerating from the vantage point of the rear view mirror in his car?
Q: And while you were accelerating your headlights were shining forward? [Again you do not care what the answer is. Your goal is to shift the focus away from the bad fact as much as possible by attacking, in this instance, the officer’s driving actions.]
§20:70 An Opening Statement Is a Necessity
Because overcoming the presumption of guilt associated with a DUI charge is a major hurdle in successfully defending a DUI case, presenting an opening statement at the beginning of the case (rather than after the prosecution has rested) is a necessity.
An opening statement given at the outset of the case immediately strikes against the presumption of guilt. It renews the efforts made by the defense during voir dire. Jury curiosity is the antidote to the presumption of guilt. Pique the jury’s curiosity through your opening statement.
You want the jurors to sense that the defense really plans to defend the case. Most people, jurors included, want to see some drama rather than a predictable affair.
As a general rule, do not attack the police officer in your opening statement. You cannot attack a witness who is initially perceived to be a good person until the evidence first shows that the witness deserves such treatment. Once the witness has become a disfavored witness, you can attack if you want. Be especially cautious in your opening statement about attacking an officer who really is a good or likeable police officer. Since the officer is usually the first witness in the case, there will be an immediate disconnect with your opening statement claims of impropriety and that first witness’ demeanor. The defense lawyer’s credibility will be the casualty.
§20:71 Get the Defendant’s Story Out
The purpose of the opening statement is to present the defendant’s side of the story. No better opportunity exists. This is the time to tell the defense’s version of the facts, when the jury’s interest is at its zenith.
Without divulging the theory of the defense of the case, reveal any facts that the other side cannot alter. For example, if the police officer’s report indicates that the defendant’s walking was normal, tell the jury that your client’s gait was fine. You can even go one more, and tell them that even the police officer will tell them that your client’s walking was perfectly normal.
Never fear divulging facts that your opponent is locked into when you make an opening statement. You are not divulging anything that the other side does not already know, and you are not divulging anything that they can change. If a witness has previously testified to a fact, or written a report with respect to that fact, they are stuck with it.
§20:72 Discuss the Driving Pattern and the Field Sobriety Tests
Whatever the field sobriety tests are, and whatever the driving pattern is, discuss these specifics in your opening statement.
You are going to have to talk about them anyhow, so you might as well talk about them while you are not constrained to the question and answer format of direct and cross-examination. The opening statement gives the attorney a bigger canvas to paint the story on than does cross or direct examination.
Draw a diagram of the defendant’s driving pattern. For some reason many attorneys believe that the only time a diagram should be drawn is in closing argument. However, by then it may be too late. Pictures with words convey more than just words alone. Furthermore, somehow the attorney becomes more connected with the jury when the attorney draws a diagram in the opening statement (jurors enjoy critiquing your handiwork). When an attorney draws a diagram, giving the jurors some physical evidence, the jury starts to get the feeling that there really is going to be a contested trial in this case. Shaking the presumption of guilt from jurors is your constant concern. Bring your magic markers to court.
§20:73 Explain How the Breath or Blood Test Was Performed
Discuss the intricacies of the chemical test in detail.
By discussing how the chemical testing process works the attorney informs everyone in the courtroom that the attorney has a command of the science in this case. This accomplishes several things:
- It almost inevitably leads to the court giving you more leeway when cross-examining the other party’s expert.
- The opposing counsel tends to refrain from interposing relevancy objections during direct and cross examination of the experts.
- The jury gives you more credibility in final argument because it has been made clear from the outset that you have a command of the field.
Tell the jury how little the amount of alcohol is actually being measured in a chemical test. This is especially important with high blood alcohol cases. The jury should know that the amount of alcohol that is measured is on the molecular level—invisible to the naked eye. Thus, contamination or seemingly small mistakes can result in huge errors. One way to demonstrate this is to hold up one of your hands to the jury and tell them that this is what the amount of alcohol would look like in my hand if it was a 0.00% (i.e., invisible) nothing would appear in my hand. Then hold up your other hand and say this is what the amount of alcohol would look like if I had a .17% in my hand—it too would be invisible. A level of .17% suddenly does not look so far removed from a 0.00% level. The jurors are starting to get comfortable with the concept of an acquittal.
§20:74 Tell the Jury the Result of the Blood Alcohol Test
If the prosecutor does not mention the blood alcohol test results make sure you do. Even if the prosecutor mentions the results make sure you do as well. Let the jury know you are not afraid of the test results.
If the results are quite high, mention the results several times in your opening statement to numb the jury from the shock of hearing the results during the testimony to come. Let the jury know you are confident that the results do not reflect your client’s true alcohol level.
Running away from results that are going to appear anyway is valueless and may even harm your case.
§20:75 Make the Opening Statement a Defense Rebuttal
One of the worst times in trial for the defense is when the prosecutor gives the rebuttal in closing argument. Many defense attorneys have wished they could give a rebuttal. However, you can make your opening statement a type of rebuttal.
In your opening statement, point out facts that the prosecution overlooked. This leaves the jury with the impression that the prosecutor was trying to hide something. It also unnerves many prosecutors.
If you present rebuttal in your opening statement then at least for a while, the defense has the last word. The prosecution has to wait days until the closing argument to respond.
§20:76 Tell the Jury What You Want
Be sure to tell jurors what you want. If you have worked this hard, you do not want the jurors to mistake what you want in the end.
The jurors may think that you will be happy with a split verdict: not guilty on the under the influence charge, and guilty of driving over the per se limit. This is a disaster for the defense. Always tell the jurors you want them to acquit the client of all charges.
Donald Bartell is on the Board of Directors of the California DUI Lawyers Association, and is a frequent lecturer around the state on DUI trial tactics. He has been asked to participate in the California DUI Lawyers Association and National College for DUI Defense’s jury research project investigating what arguments resonate with jurors in drunk driving cases. He is the author of Attacking and Defending Drunk Driving Tests, from which this article is excerpted.