In a DUI trial, as in every criminal trial, the prosecution goes first. The prosecutor makes the first opening statement, presents the first witnesses and evidence, and makes the first closing argument. Consequently, the prosecutor is able to advance the prosecution’s story and set the tone for the case before the defense attorney stands to make his or her opening statement. This does not mean, however, that your DUI lawyer has to wait until closing arguments at the end of the case to present your story to the jury. Because many jurors will begin to form opinions about a DUI case early on, a smart DUI defense attorney will develop a persuasive case theme well before the trial begins and take advantage of every opportunity to present that case theme throughout the trial, beginning with jury selection.
Some DUI defense attorneys do not even attempt to adopt a theme and choose, instead, to attack everything in sight, arguing every conceivable theory and hoping that some aspect of reasonable doubt will emerge. These attorneys contest every factual issue, irrespective of how overwhelming the proof is or how insignificant the fact may be to the case. They vigorously cross-examine every witness, even the most minor ones. They challenge every piece of evidence, even if it is not necessarily harmful to the defense. Finally, they present a la carte arguments in closing, asking the jurors to select what they deem sufficient to create reasonable doubt.
Experienced DUI attorneys know that this scattershot approach is seldom very effective. What is effective, however, is a targeted attack on the specific issues that are important to your DUI case, presented in the context of a persuasive and memorable case theme. A knowledgeable DUI defense attorney will avoid a theme that is just a general referendum on drunk driving and, instead, craft a theme focused on the specific facts of your drunk driving case and what happened on the specific day you were charged.
Once your DUI lawyer has developed the theme of your case, the next step is to convince the jury that (1) your key theme issues are the only real issues that matter in the case, and (2) on those key issues, you win. To convince the jurors that your key issues are the heart of the case, your DUI lawyer must introduce your defense theme at the very outset of the case — during jury selection — and repeat this theme at every opportunity.
By way of example, imagine your case theme is based on a “faulty machine” argument. How might your DUI lawyer develop this theme during the course of the trial?
The jury selection process is your DUI defense attorney’s first chance to persuade the individuals who will be deciding your fate that your theory of the case is sound, and that your theme is a compelling one. To accomplish this, your DUI attorney will ask prospective jurors questions that hint at your “faulty machine” theme. For example:
Q: Have you thought about what kind of information you would want to know before deciding to take a breath test on this particular machine?
Q: What kind of information would you want before deciding whether to take a breath test on this particular machine?
Q: If you were chosen as a juror in this case, would you want to hear evidence about problems, malfunctions and flaws in the breath testing machine? Why or why not?
Q: Do you think this type of information should to be taken into account by a reasonable person in determining whether the defendant is guilty or not guilty of the crime charged? Why or why not?
Questions like these allow jurors to talk; when they talk, your DUI lawyer will be able to judge how receptive (or non-receptive) they likely will be to your theme. This information can then be used to weed out biased jurors and to refine your theme.
An experienced DUI defense attorney will question witnesses – the witnesses called in your favor and the prosecution’s witnesses — using the same key phrases that he or she used in jury selection and in his or her opening statement. With respect to the “faulty machine” theme, your DUI attorney’s questions to witnesses would include words like “flaws,” “faults,” “problems,” “errors,” “break down,” “inaccurate,” and the like, so that your theme is impressed upon the jury, directly or indirectly, with every witness.
In closing argument, your DUI defense attorney will relate your case theme not only to the evidence the jurors have heard, but also to the jurors’ common experiences. This will give jurors a structure for their decision-making process. Other ways your DUI defense attorney can create a structure for the jurors include:
Here is an example of the first couple of sentences of a theme-based closing argument that a DUI defense attorney might use in a “faulty machine” case:
Ladies and Gentlemen of the Jury:
The evidence has shown that this Breathalyzer machine, like all other machines, breaks down. What cannot break down — what absolutely can never break down — is our system of justice, but that is exactly what would happen if you were to rely beyond a reasonable doubt on this faulty machine’s inaccurate test reading.