Experienced DUI defense lawyers know that every trial demands a strong, persuasive opening statement. The best opening statements focus on a single theme that sets the tone for the entire defense case. An opening statement that takes a strident, defensive or apologetic tone, or that mirrors or nitpicks at the opening statement just presented by the prosecution will not be effective. On the contrary, a strong opening statement should sound to the jury like the opening to an entirely different DUI case than the one that was just presented by the prosecution.
As an example, assume the defense of your drunk driving case is based on the theme of “presumption of innocence.” Below is an example of an opening statement built on this theme that your DUI attorney might make to the jury:
Ladies and Gentlemen,
Bill Doe stands accused by the State of driving under the influence of alcohol. Bill Doe is not going to testify today. Why not? Because the only issue you are asked to and must decide is whether Bill Doe committed the crime of driving under the influence of alcohol. It’s the State’s burden to prove these criminal DUI charges beyond a reasonable doubt. Bill Doe won’t testify because he doesn’t have to; he is presumed to be innocent. That’s what the Constitution says.
Bill Doe won’t testify, but the State won’t present a single witness who will testify that he or she saw Bill Doe drive a vehicle. Not one. All we know is that a police officer arrived at the scene of a single vehicle accident; we also know that Bill Doe was present at the scene. That’s all you will hear from the police.
What did the police do? The evidence will show that they assumed Bill Doe must have been driving under the influence of alcohol, but no one will tell you what happened. No one will place Bill Doe behind the wheel of a vehicle. No one will tell you whether Bill Doe consumed even one alcoholic beverage that night. No one will point the finger of guilt toward him. No one will do so because no one can do so.
Then what will the State’s evidence be? Why are we here? What you will hear as evidence is the testimony of a Breathalyzer machine: a non-living, non-breathing, non-human witness. You will have to decide whether you are going to place your trust in that machine to convict this man of drinking and driving, this human being, this person who stands before you presumed innocent by our Constitution. You will have to make that decision. You will have to decide whether the presumption of innocence is overcome by what a machine says. You will decide, because that power is something that the Constitution gives to you, as human beings. Listen to the evidence and decide.
Themes work because they simplify complex issues of DUI law for the jury, narrow the jury’s focus on pro-defense points, and expand the possibilities for arguing reasonable doubt in a drunk driving case. Other common themes that can be used as the foundation for a persuasive opening statement in a drunk driving case include:
Fear, frustration and futility
This theme encourages jurors to undo a wrong done by the police:
Ladies and Gentlemen,
This is a case about fear, frustration and futility: fear, because my client, Bill Doe, was afraid when he was stopped unexpectedly, late at night, by the police; frustration, because of Bill’s inability, based on his nervousness, anxiety and prior injury, to perform the coordination exercises the police call “field sobriety tests”; and futility, because Bill was not able to get the police to even listen to him, to understand and hear his side of the story. As you hear the evidence, we are going to ask you to replace that fear, frustration and futility with fairness. Here’s how…
Doing the right thing
Some DUI jurors might feel uncomfortable about returning a defense verdict. This theme gives jurors permission to say “not guilty”:
This is a drunk driving case, and drunk drivers are unpopular. We all know that. However, your job is not to vote on the popularity of drunk driving. That’s an easy vote – no one favors drunk driving. Your job is not to take the easy way out. Your job is to do something very different; it is to do justice in this particular case, for this particular man. It is your job to do right by him. There is no need to be defensive or ashamed or apologetic about doing what’s right. The evidence will show that it is right to return a “not guilty” verdict in this drunk driving case. Here’s why…
A powerful combination
As an alternative to the “presumption of innocence” theme previously mentioned, your DUI lawyer might begin his or her opening statement like this:
Bill Doe is presumed innocent today. As the judge has told you, that’s the law. So, you know that the law – presumed innocent – supports Bill Doe, but what you don’t know is that the evidence in this drunk driving case also supports Bill Doe. Now that is a powerful and compelling combination, a powerful and compelling basis for reasonable doubt. You know the law — the presumption of innocence. Now, let me tell you what the evidence will show…