A strong positive argument, not a trial road map.

By Bruce Kapsack

Excerpted from Innovative DUI Trial Tools

“An opening statement is like a road map for the trial.”  Boring!  Yet this is what virtually every jury hears from virtually every judge in virtually every trial.  And more often than not, we defense attorneys fall into this trap.  We give exactly that to the jury.  Is it any wonder they pay little or no attention?  Or worse yet, they pre-decide the case.

An opening statement should be a strong positive argument in your client’s favor. I know, you say, but the judge won’t let me make an argument.  Well if you really think the judge is in charge, then find another line of work.  A judge is no more in charge than a hockey referee.  The judge will call the obvious fouls, but a smart player can get away with board checks when the ref is not looking, or more importantly, when the checks are subtly delivered.

Examine the following openings:

Bad Example: Bland, vague, and generic

Bob was seen running a light and was stopped by the officer.  When he was asked to perform SFST’s, he did so in accordance with guidelines, but not up to the officer’s expectation.  The officer then arrested him and he agreed to a breath test.  The results are over the legal limit but we intend to show that the officer did not wait the appropriate 15 minutes prior to the test.

Fairly standard by defense attorneys.  Now try this.

Good Example: Detailed, positive, and personal

The evidence will show that it must have been hard at that time of night for Bob to see the light had just changed from yellow to red.  No one claims he was speeding; it was just a poor visibility situation.  Something that can happen to any of us.  We all do our best to follow the rules of the road when we drive, there will be no evidence that Bob did not.  But despite our best efforts and well meaning intentions, we can be suddenly confronted by an obstacle with no time to react.  As soon as he realized what he had done, Bob slowed down and seconds later the police cruiser pulled him over.  Bob knew right away he had made a mistake.

When he was first approached by the officer, he was cooperative and admitted to what he had done.  With no problems or issues, he presented his ID, registration etc.  When asked to voluntarily step out of the car, he did so.  Bobby did slip slightly due to the dew that we all know condenses on the pavement at night.  When asked to perform SFST’s, he did so as best he could.  But the evidence will show, the officer has practiced these for years.  In fact, you will hear, the officer has performed theses tests over a thousand times.

Well this was Bob’s first time.  And we all know how hard it is to be perfect on a first attempt at anything.  So he did not do them perfectly.  But who would.

This opening displays a positive attitude, an attitude that will stick in the jurors’ minds throughout the trial.

Strategies

§3:05 Grab Jurors’ Attention

As is mentioned throughout this book, start strong.  No “my name is” or “we are here about” openings.  We start with an active sentence, grabbing the jurors’ attention and erasing the barely scratched in image the DA has just portrayed.

Example:

Three more minutes.  If the officer had waited three more minutes we would not be here.  That is because a valid breath test requires a full fifteen minute waiting period.  These are not my rules; they are the government’s rules on how to provide a breath test upon which you can rely.  It is YOU who must be outraged at this behavior.  It is not fair for the government to take shortcuts with one law in order to enforce another law.  Because when you take a shortcut, you may not be getting the correct results.  And in this case, bad results will amount to a terrible outcome.

That’s another point about opening statements, play the emotion card first.  Let’s face it, DUI trials are emotional.  DUI is the only political crime in the country.  Name another criminal offense that can be prosecuted with no harm to property or person.  There is none.  The emotion/bias/prejudice card will be played; if you have a chance to lay it down first do so.

§3:06 Establish Rapport and Humanize Your Client

Another major point of opening is to establish a rapport with the jury.  As more and more judges limit our voir dire to less and less time, we are losing that contact.  Get it back in opening.  Take your time and give a mental/verbal handshake to each juror. This process is taught by communication specialists.  Basically, it involves direct eye contact with a juror that you maintain until the juror recognizes you and signals the recognition.  It is, just as it is described, like a handshake.  The more time you take, the more interest in your client the jurors have.

Involve your client.  Walk to him, touch her, make the jury see a person, not the ‘defendant’ the DA just discussed.

Try to have the jury relate to your client.  Not only is your client an ordinary citizen just like them, they could be the one sitting in the defense seat.  They, like your client, have busy lives and lots of things affect their days, moods, time management, and so forth.  The prosecution will do the opposite.  It is their hope to distance the jury from the defendant.  He is a drunk; they of course would never break the law or drive drunk.  This misguided assumption is what often causes the prosecution to lose.  If you do your job correctly, the jurors will see themselves in your client.

Example:

This is Robert Smith ladies and gentlemen, not ‘the defendant’.  He is a hard working man with family, friends and a busy life.  But when the officer saw him, he expected to see a drunk and that is what he saw.  When the prosecutor looks at him, all he sees is a defendant.  But Robert and I want you to see him.  A person, not a statistic.  And when you do, you will see an innocent person.

§3:07 Fill in the Blanks With Positive Information

Your opening needs to paint a detailed positive picture of the defendant because, if it does not, the jury will form their impression of the defendant solely from the bad information presented by the prosecutor.  This conclusion is based on simple human characteristics.  We hate blanks.  We do not like to leave gaps in our minds eye.  Ask a friend to picture a person.  Do not give any more detail.  Then ask the friend to describe the person. The friend will be able to give you a full description of the imagined “person.”  This is the fill in the blank theorem.  Our minds can not allow the gaps to exist so we fill them in.  Jurors do this all the time.

Jurors will fill in, from their own experiences or their imaginations based on what the have heard so far, any detail that you do not fill in for them.  Given that all they have heard from the prosecution is negative towards your client, the picture their minds will draw is not a positive one.  You need to change all of that.

§3:08 Point Out Problems With the Prosecution’s Case

Unless there is some extremely good strategy for doing so, let the jury know where you are going in this case.  Explain exactly what your theory of the case will be and point out those facts which the prosecutions theory of the case either support your theory or undermine the prosecutions.  Closing argument is too late to let them in on what was missing from the prosecutions case.  The one exception to this is if the missing fact or evidence is something big that you do not want the prosecutor to catch.  Even then, be absolutely sure in your mind that the prosecutor does not know what is missing and will not anticipate the argument.

In fact, sometimes the opening can be used to bait the prosecution into answering you, which can then be turned on them.  For example, assume that there is no documentation of a necessary fact in the reports provided during discovery..  Assume this is the main defense in the case.  You can either mention it in opening or not.  If you do not and the prosecution suddenly produces this evidence in the middle of the trial, then you are limited to cross examination on the evidence’s late arrival, or  to cry “foul” to the judge in some attempt at a mistrial.

BUT, if you throw it out to the jury in opening, and then the prosecutor covers that ground by producing the evidence you argued had been missing, , you can argue “foul” and “I told you so.”  It will give you an opportunity to argue to the jury that the prosecution is just making it up as they go. By putting the missing evidence before the jury in opening, and having the prosecution ‘miraculously’ find it during the trial, you have a stronger CLOSING argument that the government is either making it up as they go, or that they are being less than straight with the facts and jury.

Example:

In one case the time of the events was critical.  One witness placed the defendant on the scene at a specific time, but a second witness placed the defendant at the scene 10 minutes later.  The prosecution was told about the discrepancy before trial and was ready.  Here is what was said, in part, during the defense opening;

One factor the DA will not be able to change is recorded on the breath card in this case.  The technician who administered the test put her time of observation as 2:00.  The machine recorded its time of first test at 2:13.  Anyone of us can see that is NOT a fifteen minute observation as required by law.  I can point this out before we even start the case because (1) these are set-in-stone facts that can not be changed, and, (2) the prosecution cannot just make up facts to cover this glaring problem.

In his opening, the DA talked about how his grandmother always had him set his watch ten minutes fast so he would never be late. Sure enough, the witness who had the defendant on scene ten minutes later than the other witness testified that HER grandmother taught HER the same thing.  The jury never bought it.

Had the defense attorney not called the jurors attention to the discrepancy in the witnesses’ stories in opening, many jurors would probably not have been skeptical about the witness’s testimony about setting her watch ahead.  But the jury, having been forewarned of the problem, heard the excuses as a made up story.

The moral: don’t hold back.

§3:09 Tell Jurors About Your Defense

I am assuming your have some defense to your case.  Let the jurors know what it is.  If your client has a medical condition that affected his or her performance on the SFST’s, tell them about it.  Create the image of a person on death’s door.  This will then color the jury’s interpretation of the evidence.  How can the officer expect your client to stand on one leg when he had that terrible leg sprain?

§3:10 Boost the Officer and Prosecution Expert so You Can Knock Them Downon Cross

If you are attacking how tests were performed, emphasize and relate in detail all the training the officer or expert was given and how he or she ignored that training in administering or evaluating the results of the SFST’s.  The more you boost the officer’s or expert’s credentials, the higher the juror expectation of that testimony.  Then the easier it is to destroy that image during cross examination.

Think back to the Bush versus Gore debates in 2000.  Everyone knew Al would kick George’s butt in a debate.  This was so well known that the Bush camp at first refused to debate Gore at all.  Finally, after too much public pressure was levied, a debate was set.

For weeks prior to the debate, the Bush press corps bemoaned how bad it would be.  They created an image of Gore as an unassailable Socrates reincarnate.  Bush, on the other hand, they described as a simple frat boy with no such skill.  By the time the debate rolled around, most people felt if George got his name right, it would be a miracle.

We all know what happened at that debate.  Bush did not look all that bad, given the lowered expectations, and Gore looked positively mortal given the heightened expectations for him.

Do this in your opening for your witnesses, and for theirs.  If you do not open, you will not be able to set the stage.

Example:

Thousands of stops, hundreds of arrests, reams of police reports and who knows how many times in court.  The officer will tell you that’s what he has under his belt.  At the academy he was trained in how to perform SFST’s, how to document a case and how to testify.  He will tell you that this is a major portion of his job.  During his examination he will be polished, sure, and all knowing.  This is his case and he knows he made no mistakes and he knows he is not wrong.  This will be evident in the way he just presents every detail of this case.  Nothing went unnoticed by him, no fact was left out of his reports and no errors exist.  And since he is a trained police officer you should expect nothing less.  None of us would want an officer to come in here less than fully prepared or less than perfect.  (You can adapt this for the states expert(s) as well.)

Bob on the other hand has never been to court before.  He is nervous as hell and will probably have a hard time talking from the stand.  (This is good for a witness or the defendant).  Unlike the professional witnesses for the prosecution, he may have to have questions repeated, or give answers that seem unsure.  We don’t expect him to know what to say as we would the officer who has been through this dozens of times.  In fact, if Bob makes it through this at all, I would be surprised.  Think of how nervous you all were doing the brief questioning we did in voir dire.

§3:11 Use Element of Surprise to Your Advantage

The beautiful thing about an opening statement is only you know the theory of your case. Until you address the jury everyone is in the dark.  This creates a natural anticipation from the jurors that you can use to your advantage.  It also will be a surprise to the prosecution who should have little, if any, idea of what you will be doing in the case.

Unlike the prosecution, whose case is an open book if discovery was handled correctly, you need not show your hand.  The prosecution must prep witnesses based on information contained in the police report, witness statements, and other information that you should have received prior to trial.  (This is covered elsewhere in this book – make the prosecution do their work before trial.  Not only are you legally entitled to discovery, the information in the reports and statements ties the prosecution’s hands at trial.)

A prosecutor has no idea what the defendant’s theory of the case is.  Prosecutors can guess and surmise it, but typically do not even think about it because, after all, it is just a simple DUI case.  There can be no defense; the cops and the machine do not lie.  Let them think this way.  Use it.  Take their ignorance and show the jury, right out of the box, how wrong the prosecution is.

Another fear that all prosecutors have is uncertainty about whether the defendant testify.  I have addressed the issue of having your client testify in other chapters of this book, and while I rarely recommend it, don’t let the prosecution know that the defendant will testify.  Also, while you may be convinced the client will take the stand, if something arises and he or she does not, then you look like you are hiding something.  Prosecutors fear the unknown.  If the DA thinks that your client will testify, he or she may prepare the case anticipating this testimony.  Then, if the testimony does not occur, it looks like the prosecution has misled the jury and the jurors are confused and feel as if the prosecution really did not know the facts very well.  Conversely, when your client does testify, prosecutors are often unprepared for the testimony.  Their routine DUI is no longer routine and there is no information in their DUI prosecution manual to rebut what your client has said.  They are forced to think on their feet; their nice simple DUI case is no longer so simple.  No one likes to be surprised, especially when they have a preconceived notion of how things are going to go. So, as much as possible, limit any promise of defendant testimony in your opening statement

§3:12 Go Out of Order

The people’s case is often one of just setting out the facts, a simple straight forward series of questions of what happened next.  This lulls the jurors to sleep.  Wake them up.  Depending on the type of jury you have picked, go out of order.  Don’t start with the first event in chronological order, “Bob ran the stop light”.  Maybe start with the last event. “After all his cooperation and explanation to the officer, Bob still ended up in jail for running the red light.  Keep it interesting, make eye contact – besides voir dire, which is increasingly limited, this is your time to get the jurors to like you.  Before the case even starts, you will have set the pattern.  The jurors will know that they can rest while the prosecution presents their case, and perk up when you stand up.

§3:13 Wake Up the Jurors

Think out of the box!  Remember, people want to be engaged, and feel as if they are involved.  Use of eye contact, body language, voice levels, and “props” wakes them up and makes them feel as if they are important in the decision at hand.  Defense counsel has worked hard and knows his/her case and wants all the facts to be conveyed so that the jurors can make an informed and intelligent decision.  One prop I especially like is the missing element chart discussed in Ch ## Closing Argument.  Put a hand written chart of the elements in front of the jury, but leave out what you expect to be the missing fact.  This could be who was actually driving, when the driving occurred, the time of the chemical test, the result of the test– whatever you will be focusing on.

[§§3:14-3:19Reserved]

Sample Openings

§3:20 Who Was Driving

Mike [the defendant] did a terrible thing.  He lied to an officer.  Now if you think about it, lying to a cop, and then coming here to admit it is way worse than a drunk driving.  So why would Mike do this.  Why would he come in here to court and admit he lied to the officer.  More importantly, why would his wife and best friend do so as well, unless there was something more at stake.  Something like the truth.

You see, Mike wants all of you to know the truth.  So he, and his wife and his friend will all testify that they did not tell the truth to the officer when the accident occurred.  But more importantly they will tell you why they did so.

You see, they were scared.  Not just afraid of a little DUI, but afraid of what might happen to David if the truth came out.  Afraid it could result in terrible consequences to David.

David is from Africa.  He is an amazing person who happens to be here on a Fulbright scholarship.  You may have heard of that term before, Fulbright scholar, it is like hearing Rhodes Scholar.  But how many of you know what it means?  A Fulbright scholar is a foreign national whom the United States’ State Department thinks is so special, and will be of such potential help to our interests, that the State Department picks up the scholar’s expenses for schooling, usually at a Masters or higher level.  It is obviously quite an honor.

This is not something you lightly put in jeopardy.  And since the recipient is usually from another country, like David, he may not understand all that is involved.  But he does understand, as you would agree, it is not something you want to jeopardize.  It is an opportunity that you treasure and protect.  Sometimes wrongly.

David is such a scholar.  He is from the Ivory Coastand was here studying for his Masters degree in international trade and economics.  He hopes to go back to the Ivory Coast to help his people in boosting their trade with the United States.  He was doing well with this concept until the events of October 25th got in the way.

You see, earlier that day he had joined Mike and his family at a barbeque.  He had ridden there in Mike’s wife’s car and was having fun.  As is his belief, he was not drinking but enjoying the company.

Mike, on the other hand was drinking.  Mike, you will hear, owns a couple of companies.  He used to be a vice president at Citibank ** Should probably change the employer to made up names. **and is now a vice president at Sun.  This was a group of friends from Sun getting together for a family Saturday.  As you would expect it was supposed to be fun only, but, as is typical, work crept in.  Now Mike and his wife had an agreement, like many of us do.  They had earlier decided who would drive home so that one of them could feel free to have a beer or two.  Mike’s wife was going to drive.  That is why they took her smaller car rather than his bigger one.

So there it was, a beautiful Saturday afternoon– Mike discussing work over a beer or two, David meeting new friends in this beautiful country, and the rest of the family having fun.  The day wore on and it was time to go.  But a problem arose.  Mike’s wife had developed a splitting headache.  She did not want to drive.

They talked about it and decided Mike could not drive, but David could.  He had a license, did not drink, and while he had only driven this car once before, he knew the way home with no problems.

A little side not here, you will find out that while Mike and David were not close friends prior to David coming here, they had become so.  Picture yourself in a foreign country where you do not speak the language too well, customs are very different, and your family is not with you.  Now suddenly, you meet a Californian; but not just any Californian, one who is in your line of work.  Well that was the story of Mike and David.  While they are both from the Ivory Coast, they did not know each other, but work brought them together and they had become friends.  In fact, David rented a room from Mike.

So it was no big deal to let David drive the car.  They got into the car and home they went.  David driving, Mike in the passenger seat and the kids and “Ms. Mike” in the back.  About the kids.  They were, as many youngsters are after a long day at a barbeque, tired.  But the kind of tired that leads to crying and crankiness.  That is what they were doing and it was all Mike’s wife could do to keep them somewhat still.  But the miracle of driving soon took over and they fell asleep.  So did Mike’s wife.

This is why she will tell you that when the accident did happen, she had no idea who was driving.  She did not see who.  She did see who was driving when they left.  She saw who came out of what part of the car afterwards; but she cannot say who was driving since she was asleep.

Not that you will need to hear who was driving from her.  The rest of the evidence will make it clear, the evidence from the prosecution.

You will hear from the prosecution witnesses that they never saw a driver.  Think on that, the prosecution will put its best case forward and not place Mike behind the wheel of the car.  Instead they will allege that Mike admitted driving and THAT is their proof.  And that is where Mike and David made a terrible mistake.

David was scared.  He was afraid that this accident may cause him to lose his scholarship.  He thought all his hard work would be down the drain and he would be sent back to the Ivory Coast.  Mike thought so too.  So, in a decidedly unsmart move, they decided to have Mike say he was driving.

That’s it.  That is all the prosecution can bring to the table.  Mike saying he drove.  Now, all the witnesses will say that is not true.  They will say that they (1) saw Mike exiting from the passenger side, (2) that David had been driving when they left the barbeque, and that (3) Mike and David made the story up.

But now, when truth is on the line and people are sworn, David and Mike will come in and tell the truth.  The truth of who was driving.

§3:21 Refusals

Generally speaking refusals fall in to two categories; confusion, or deliberate act.  Each has a different focus and each should have a different opening.

Confusion

According to the officer, based on his training, the purpose of asking for a person’s driver’s license and then asking some other question is to try to confuse the driver.  The training manual talks about creating this confusion.  During Jane’s contact with the officer, she was asked more than 50 questions, had to perform numerous calisthenics, and was bombarded with information.

The officer will go into much detail about how he explained why she was pulled over, what he needed for her to do, her rights and responsibilities, but some of these conflict with each other.  For example, he will state that he told Jane that she did not have to supply a roadside breath test, that she did not have to talk to him per Miranda, and, if she did provide evidence, it may be used against her.  Somewhere in the middle of all this, he told Jane she had to give a breath sample.  But wait, didn’t he also tell her she did not?  When her confusion became clear, Jane asked for a lawyer, but was told she could not have one.  But hadn’t the officer told her that under Miranda she was entitled to one.

It seemed to Jane that every thing she was told she had to do, she was also told she did not have to do.  Is it any wonder that, given the lights, sirens, exercises and conflicting rules, she did not know what was or was not required?

Deliberate Refusal

Jimmy is a proud American.  He thinks, as do many of us, that he understands his rights.  Like many of you probably believe, he thinks that officers cannot just break down his door to his house unless they have a warrant.  Well, suffice it to say that is incorrect.  You may think that your house or phone can not be bugged, but it can.  In fact, many of the rights you believe you have, you do not.

Well, Jimmy thought it was his right to not incriminate himself.  He believed that it was the function of the government to obtain evidence to prosecute him.  He thought that these were his rights as an American citizen.  He was wrong.

Being wrong does not make you a drunk.  It does not make you a menace to society.  It is not proof of anything more than a common misconception of our rights as American citizens.

§3:22 FSTs

I believe in two approaches to FSTs: the officer administered them incorrectly and so the results don’t matter, or the results are there, but so what.

Incorrect Administration

Take out a pad and paper and write your 3 times table.  Remember that or something like it in school?  What if I asked you to do that right now and then told you every one failed because I had meant the 4 times table.  NOT FAIR, you would say, and be right.  Well, FSTs are just like that.

The Federal Government, under the Department of Transportation, created an agency known as the National Highway Safety Administration, NHTSA for short.  That organization spent millions of dollars in order to develop a tool for officers to use in helping to determine if a person was under the influence of alcohol.  Years of research went into this project, the data was collected, computer algorithms were assigned, and the three-test battery was developed.

Then, in order to ensure reliability, more time, money and energy was expended in order to test the SFSTs in the field.  After years of study, the results were in.  IF the officer uses the prescribed battery, and IF the officer does it the required way, and IF the officer scores the tests correctly, then they have some measure of reliability.

Well you will hear that Officer Jones failed this administration.  You will hear that in instructing Bob on the SFSTs the officer misdirected Bob and miscounted so called clues.  You will hear that the officer did not perform his tasks correctly.  This violates not only common sense and good science, but the SPECIFIC LANGUAGE OF THE SFST MANUAL.

It is just like asking to name the capital of the U.S.when you really meant the capital of France, and then scoring the person wrong for saying Washington D.C.

So What

SO WHAT?  That is what you need to say to virtually every piece of evidence in this case.  If a piece of evidence does not aid in your decision on the question of guilt or innocence, then it is irrelevant.  This is the “so what” test.  The sky was blue.  So what?  Unless that piece of knowledge is relevant, it adds nothing.  That is the big missing piece when it comes to SFSTs.

See, the officer will come in here and make a big production out of the SFSTs in this case.  He will go in to great detail about how he was trained in them, how he gave them to Joan, and how she did.  My guess is that the testimony on this subject will take most of the officer’s total time on the witness stand.  But SO WHAT?

Unless someone can tell you a study that relates the performance on these tasks to the ability to drive a car, so what.  ANDI AM LAYING THIS OUT THERE NOW SO THE PROSECUTION IS ON NOTICE THAT YOU WILL DEMAND THIS.  But they will not answer.  Because they can not.

Dr. Marcelline Burns is the woman who basically created these tasks.  She has been asked time and again if the performance on these tasks can be related to either of the issues before you today; was Joan driving impaired, or was Joan over .08 at the time of her driving.  EVERY TIME SHE HASBEEN ASKED THIS QUESTION, THE ANSWER HASBEEN THE SAME.

NO.

SFST’s do not measure the ability to drive a car, and they do not predict a specific BAC.  Rather, what they do and what they were intended to do, is aid an officer in his or her decision on whether to conduct a further investigation using some type of SCIENTIFIC measuring device.

So when you hear about these SFSTs, say “So what?”

 

 


Bruce Kapsack originated many of the DUI defense strategies used throughout the country.  He has worked or lectured with virtually every nationally-known expert in the DUI arena, and his DUI lectures for the California State Bar and the California Public Defenders are among the best attended in the state.  Mr. Kapsack is an Instructor of NHTSA’s Standardized Field Sobriety Tests.  He has been trained as a user and maintenance technician for the Alco-Sensor IV hand-held roadside BAC breath machine, and owns and operates the Draeger 7410 and 7110 Breathalyzers and the Intoxilyzer 5000.   He is the author of Innovative DUI Trial Tools, from which this article is excerpted.