The instructions that help hang juries.

by Donald J. Bartell

Excerpted from Attacking & Defending Drunk Driving Tests

In almost every case you need to argue the following four instructions:

  • The instruction describing the charge or charges.

  • The instruction that tells the jury how to apply circumstantial evidence.

  • The instruction dealing with individual opinion.

  • The reasonable doubt instruction.

The circumstantial evidence instruction is a good one for the defense. Much of the evidence in a drunk driving case is circumstantial. For example, the results of field sobriety tests are circumstantial evidence of impairment. The circumstantial evidence instruction informs jurors that if one view of the circumstantial evidence points to innocence, and one to guilt, they are to adopt the one that points to innocence. The jurors are also told to reject an interpretation that is unreasonable. This is a terrific instruction, but some jurors have difficulty grasping its full meaning.

The following chart makes the instruction easy to understand:

Jury Chart for Circumstantial Evidence Instruction

Prosecution Interpretation

Defense Interpretation




Not Guilty



Not Guilty



Not Guilty




§20:169One Jury Instruction Problem You Need to Know—the Rebuttal Presumption

Criminal jury instructions cannot contain mandatory presumptions against a defendant. [People v. Roder, 33 Cal.3d 491,497-505 (1983).]

Such instructions unconstitutionally diminish the prosecution’s burden of proof. The constitution requires the prosecution to prove each element of a charge beyond a reasonable doubt. [In re Winship, 397 U.S.358 (1973).]

Some statutes and related jury instructions, though, have rebuttal presumptions. In the DUI context, some of these instructions allow a jury to presume the alcohol level in a chemical test equates to the alcohol level at the time of driving, if the test is taken within a certain time period after driving. [See California Vehicle Code §23152(b) (rebuttal presumption that a person is .08% or higher if a test is taken within 3 hours of driving, and test is .08% or greater).]

In practice such jury instructions should be easy to defeat. All the defense needs to do is produce some evidence that the presumption is not true. This rebuts the presumption, and the instruction containing the presumption should not be given to the jury. The defense lawyer can accomplish this by asking the state’s expert if a test happens to be taken within three hours of driving, that does not tell you what the alcohol level is at the time of driving? The follow up question is: “Does the mere fact that a person tested over the limit within three hours of driving tell you that the person was over the limit at the time of driving?” The answer to both of these questions is no. In addition, the defense expert may be able to testify that the defendant was not over the limit at the time of driving.

The prosecutor may try to retain the instruction by characterizing the jury instruction as merely a permissive inference. However, because these statutes and jury instructions are devoid of any scientific validity, the instruction should not be given as a permissive inference. A permissive inference jury instruction violates due process “if the suggested conclusion is not one that reason and common sense justify in light of proven facts before the jury.” [Francis v. Franklin, 471 U.S.307, 314-315 (1984) (citing Ulster County Court v. Allen, 442 U.S. 140 (1979).] An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action. [California Evidence Code §600(b).] Since there in no scientific support for such an inference, the inference cannot logically and reasonably be drawn. Furthermore, the giving of such an arbitrary instruction—not founded in science or experience—would invade the defendant’s liberty interest, thereby violating the substantive due process provision of the Fourteenth Amendment to the United State Constitution.

§20:170Things That Help Hang Juries

The instructions that help hang juries the most are individual opinion and reasonable doubt.

One way to explain the individual opinion instruction to jurors is to analogize it to voting in a general election. When an election is coming, you talk to your neighbors, read articles about the candidates and discuss the issues with your family. After considering everything, though, you cast your vote as you see fit. The same is true with jury deliberations.

Ask the judge to give multiple sets of instructions to the jurors. Having more than one set of instructions empowers more jurors, and this potentially leads to more hung juries.

Do not always refer to the jury as “the jury.” Instead, use the word “juror” as much as possible. This reminds the jurors that their duty is their own. The verdict is not a collective decision.


Try to get into the jury room at some point before closing argument. If the table is a round table tell the jury that they will be sitting at a round table. There is no head of the table. This symbolizes that each juror’s vote is their own.

§20:171Do Not Argue Reasonable Doubt Until the End

If you start off discussing reasonable doubt you are essentially saying that your client is probably guilty, but there are these technical rules of law that say you should let him go.

It is much better to argue that your client is innocent. You want jurors to be comfortable with their decision. It easier to acquit an innocent person, than a person for whom there is just reasonable doubt about their guilt.

Explain the concept of reasonable doubt to the jury at the conclusion of your closing argument.

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 NationalCollege 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.