Experienced DUI attorneys know that if they do not earn and hold the jurors’ attention, then they will not be able to persuade the jurors. One excellent way to earn and hold the jury’s attention is by using metaphors and analogies throughout the trial, beginning with jury selection and continuing through opening statements, cross-examination and closing argument.
Metaphors and analogies give jurors new ways to think about the evidence and the law in your drunk driving case. They also help to bring to life an alternative explanation for the events at issue in the trial and allow the jury to hear a different DUI story – one framed in your favor.
The best analogies and metaphors are those that are place- and time-specific. If your DUI lawyer can, through analogy and metaphor, tie the facts of your case to a current event or something presently relevant to the local community, this will have a great impact upon the jurors. The more often the analogy or metaphor is repeated, the more likely it will be remembered during the most important phase of the DUI trial – jury deliberations.
Below are several examples of how your DUI lawyer might make effective use of analogy and metaphor during cross-examination of the prosecution’s witnesses and in closing argument:
A typical DUI trial involves a police officer’s description of the driving that led to the stop, a description of some types of field sobriety tests, and the presentation of either a breath or blood test result. Analogies can be inserted into the cross-examination of the witnesses testifying on each of these topics. For example, let’s assume the police witness indicates that during the “walk and turn” field sobriety test you “used arms for balance.” Your DUI defense lawyer could ask the witness to agree that you walked “like a tight-rope walker.” This is good imagery because circus performers are thought to have extraordinary, rather than impaired, balance. It also helps the jury reach the conclusion that this particular field sobriety test unfairly deprives the driver of the use of his or her arms.
Analogies can also be used during cross-examination regarding the chemical test. In many states, a breath test operator must “check the mouth” prior to beginning the 15-minute observation period. On direct examination by the prosecutor, the operator may testify that he simply asked you if you had anything in your mouth. On cross-examination, your DUI lawyer could then establish that (1) the rule requires that th e officer actually check, meaning look into, the mouth, and (2) the officer never performed this essential task because he never actually looked inside your mouth. The following cross-examination question provides a memorable analogy that helps to make clear the point that asking and looking are not the same:
Q: When your dentist checks your mouth, does he simply ask you if you have any cavities or gum disease, or does he actually take look inside himself?
This officer’s answer to this question is irrelevant because the analogy has already done the work. The jury will remember that, like an incompetent dentist, the officer never actually looked into your mouth.
A smart DUI defense lawyer might use a “bathroom scale” analogy during cross-examination about breath test results. For example:
Q: When checking for accuracy on a breath machine you use a known sample such as 0.08, correct?
Q: Then you run the sample and see how the machine reports it, such as 0.078 or 0.088 or any other number?
Q: So, this is really like checking your bathroom scale, where you put a 1 pound weight on it, and then look to see what the scale reads; such as 1/2 pound or 1 pound or 5 pounds?
Q: And, if the machine is off by a certain amount, like when the bathroom scale is off, then you adjust the machine, like you might dial in the scale?
Q: Would you agree that just because you fix the bathroom scale on a particular day this doesn’t mean the scale was also accurate immediately before it was fixed?
Q: Nor does calibrating it on one particular day guarantee that it will remain accurate for any time in the future, including the next day, correct?
Like the metaphor of the dentist checking the mouth, the bathroom scale analogy helps the jury understand relatively complex scientific issues and apply this understanding to the specific facts and circumstances of your case.
Closing argument is your DUI defense attorney’s opportunity to summarize the evidence presented, emphasize any lack of evidence, and explain the significance of any conflicts in the evidence. The goal of closing argument is to persuade the jury to agree with your trial story and to return a “not guilty” verdict. One of the challenges inherent in meeting this goal is helping the jury understand how complex legal and scientific concepts support your theory of the case. Metaphors and analogies can be quite helpful in this regard, especially in closing argument.
When the jury begins deliberating your drunk driving case, all the jurors must understand and properly apply the three indispensable legal tenants that apply in all criminal cases: (1) burden of proof; (2) reasonable doubt; and (3) presumption of innocence. The “boat-building three protections” metaphor can be particularly helpful in explaining these concepts:
There are three essential constitutional protections that we all have as citizens of the United States, and these are: burden of proof, reasonable doubt and presumption of innocence. The most straightforward of these protections is burden of proof, and the judge has told you that the burden of proof in this case rests totally with the government. The defense has absolutely no burden of proving anything. The presumption of innocence is pretty straightforward as well.
This presumption requires you to view the state’s evidence in the light most favorable to Mr. Jones. So, as you’re thinking about the evidence in this drunk driving case, you must first view the evidence in a way that is consistent with Mr. Jones being innocent. Of course, in evaluating this evidence and considering the presumption of innocence, you must also be mindful of the concept of reasonable doubt.
One way to appreciate how these three constitutional protections apply in this DUI case is to think of them in another way. Imagine that instead of proving a criminal case against Mr. Jones, the government’s task is to construct a boat. Imagine that the government is constructing this boat using just the evidence in this case and that the government’s burden is to build a boat that is fit for a lengthy sea voyage. After completing construction of this boat, the government will be asking you to ride in it across a large expanse of the ocean. As jurors, the decision you are now called upon to make is whether or not the prosecutor’s boat is, in fact, seaworthy. To do this, you must examine the boat carefully to see if there are any holes or cracks in the boat that may cause you to hesitate to climb aboard. These holes or cracks may come from the evidence or the lack of evidence, and if you do see holes or cracks and these cause you question the sea worthiness of the boat, then I suggest to you that you have a reasonable doubt about the government’s case.
Now, let’s imagine also that the boat is moored on a large island, and let’s call this island the “island of the presumed innocent.” Let’s just imagine that this large island has about 300 million people. This island is inhabited by each of you, as well as Mr. Jones. We are all on this island together. In other words, you begin your voyage over here, with Mr. Jones, and you are called upon to decide if you should ride with him to another island that we will call “the island of the guilty.” You must now decide whether the boat in this case — the boat that has been constructed by the government — is seaworthy enough to make that voyage from the island of the presumed innocent to the island of the guilty.
This rich metaphor vividly illustrates the interplay between presumption of innocence, burden of proof and reasonable doubt. Your DUI attorney can use this metaphor as a framework to discuss the evidence (and lack of evidence) in your case and, specifically, to describe for the jury why there are holes or cracks in the boat the government has built and why, therefore, they should hesitate to climb aboard the vessel. A metaphor like this will give much more meaning to these bedrock concepts than will dry explanations like “a reasonable doubt is a fair honest doubt.” Consequently, a metaphor like this is much more likely to grab the attention of the jurors in your case and to persuade them that a “not guilty” verdict is appropriate.
Another important concept that your DUI attorney must help the jury understand involves “weighing” the evidence. All evidence – particularly the chemical test evidence – must be “weighed,” and it is the jurors’ job, not the judge’s, to weigh the evidence. The most obvious and easily understood metaphor to help jurors understand this concept is the “scales of justice.”
An experienced DUI attorney will take the time to explain to jurors that they must use the scales of justice to weigh the chemical evidence in your case. Jurors will be told that to “weigh” the evidence means to evaluate the “reliability” of the evidence. The judge’s rulings are not evidence; simply because the chemical evidence has been admitted does not mean that the judge has given that evidence any “weight.” In fact, when the chemical evidence is first admitted, the raw “number” has no weight, and it remains weightless throughout the trial unless the government proves otherwise. Your DUI attorney will explain why the defense believes the chemical evidence deserves little weight. Then, using the scales of justice metaphor, your DUI attorney can impress upon the jury how wrong and unfair it would be to find you guilty without actually making the effort to properly and appropriately weigh the evidence.
We all make assumptions. This is acceptable and useful outside the courtroom, but for justice to prevail in a drunk driving case, jurors must make no assumptions about the evidence whatsoever. It is likely, though, that just the opposite will be true. As any experienced DUI defense attorney knows, most jurors walk into court predisposed to assume that the breath or blood test results are accurate and reliable.
In many DUI cases, the jury’s verdict is based primarily, if not completely, on improper assumptions regarding the chemical test. For example, jurors often assume that the test was administered properly or that the equipment used to collect the sample was properly maintained and in proper working order. Moreover, it is not unusual for the prosecutor to take advantage of this circumstance by making “witness bolstering” arguments to the jury. These arguments often take the form of testimony from government witnesses who explain to the jury that the equipment is used “throughout the state by all law enforcement agencies” and that it is also “used by law enforcement all over the country.” The fact that the subject breath testing device is used throughout the state and country only supports the major assumption that the jurors came into court predisposed to make, which is that the devices are inherently reliable. In fact, a DUI conviction often depends on these assumptions because prosecutors generally present very little, if any, real evidence to “prove” that the machine was working properly. They do so with the hope that the jury will simply assume that the machine was properly maintained and that therefore, the result obtained was reliable.
The following metaphor can be helpful in clarifying for DUI jurors the danger of relying on assumptions in the courtroom:
Having tried many drunk driving cases, I have become concerned with something that I see happening over and over again, something that I believe results in wrongful convictions. I see verdicts based on assumptions that jurors have brought into the courtroom. This is an unfortunate problem for the person accused of drunk driving because the prosecutor has not actually proved these assumptions. Yet, it often turns out that these assumptions are necessary in order for the government to gain a conviction.
As the judge will tell you, assumptions have no place in the courtroom because they are not evidence. In a few minutes, the judge will tell you what is and is not evidence, and the judge will tell you that you may base your verdict only on the evidence produced in this case before you in this courtroom. A verdict may not, therefore, be based on an assumption that the breath testing device was properly working or properly maintained without actual evidence of those facts. A verdict also may not be based on an assumption that the result of a breath test must be reliable without actual proof that it is, in fact, reliable. Basing your verdict on such assumptions would be like allowing the prosecutor to place his thumb on the scale you must use to weigh the evidence in this DUI case – allowing him to place his thumb on the very scales of justice. When you are deliberating over your verdict, and thinking about and weighing the evidence in this case, ask yourself whether or not you are making assumptions. Ask yourself whether you are allowing the prosecutor to put his thumb on the scale. This is something you must carefully guard against – you must make sure this “thumb” plays no part in your deliberations or in your verdict.
Think of this thumb as the “thumb of injustice: injustice because it allows the prosecutor to gain a conviction for drunk driving without actually meeting the burden of proof. This thumb also represents all of those assumptions that the prosecutor is hoping you will make in this case about the accuracy and reliability of the breath test machine, but that the prosecution did not, in fact, prove. If, when you are thinking about the evidence, lack of evidence or conflicts in the evidence in this case, you believe that assumptions are playing a part in your deliberations and you allow it to continue and to affect your verdict, then the only thing that can happen is an unjust verdict. If you allow these assumptions to enter the deliberation room, then there is a very real possibility that the verdict you reach will not be based on the evidence, but will be based, instead, on nothing more than a series of inappropriate assumptions, and assumptions are not evidence.”