The opening statement is one of the most important parts of the DUI case. In fact, jurors may make up their minds after the opening statement. The evidence which is presented later often merely bolsters the jury’s perception and conclusions reached after the opening statement. In drunk driving cases, both prosecutors and DUI defense attorneys can sometimes ignore and misuse the potential power of opening statements. They also may neglect to take advantage of the opportunity to establish a winning theme during the opening statement.
What do convincing DUI lawyers say during their opening statements? Do they give it all away, or do they exercise some restraint in what they present. Like most things, the answer depends much on the facts and circumstances of the case, but if a DUI lawyer elects to give an opening statement, then it is clearly necessary to describe for the jury the most important scenes in his or her client’s story and, where there is a DUI chemical test, to explain to the jury why the number is not all that it may appear to be.
The opening statement sets the tone for the entire DUI defense theory of the case; hence, there must be a theme to the opening. The opening statement is also the time for a good DUI attorney to begin telling his or her client’s story. These are not merely a collection of related facts; these facts tell an important story about the client’s life. A skilled DUI lawyer will discover his or her client’s story by learning all the details of the DUI arrest. For example, the DUI attorney may:
It is only by discovering the DUI defendant’s story in this way that a DUI attorney will be able to tell his or her client’s story to the jury.
Experienced DUI attorneys try to not merely ramble on about the facts or try to address each of the assertions made in the prosecutor’s opening statement. Rather, they try to limit the opening statement to a single theme and try the case as if it were based on that theme. In cases where there is little or no defense, however, a DUI lawyer must attack each point of the State’s case whenever he or she is given an opportunity to do so. A DUI lawyer should still, however, have one central theme to the opening, even though he or she must employ a shotgun approach to the actual defense of the case.
Another essential to a good opening statement is creativity on the part of the DUI lawyer. They never fall into a rut. And they don’t let an opponent capture his or her “play book,” by giving the same opening statement for each new case as they did for the last.
The following is an example of an opening statement in which an experienced DUI attorney tries to tell his client’s story while also focusing on the theme of the presumption of innocence:
DUI ATTORNEY: Ladies and gentlemen, I represent Dan Johnson who has been accused by the State of driving under the influence of alcohol. Dan will not testify in this trial nor will he present any witnesses. Dan’s lifestyle, his drinking history, his likes, dislikes and views are irrelevant and are not proper subject matters for you to judge. The only issue before you today is did Dan Johnson on July 21, 2010 commit the crime of driving under the influence of alcohol.
The prosecutor will not present a single witness who will testify that he or she ever saw Dan Johnson drive the car. All we know is that a police officer arrived at the scene of a single vehicle accident, an accident where Dan Johnson was found at the scene and that as a result of his observations of Dan Johnson the police officer concluded that Dan must have been driving under the influence of alcohol.
No one will tell you what actually took place; no one will place Dan Johnson behind the wheel of that vehicle and no one will tell you whether Dan Johnson even had a drink of alcohol that night.
Rather, the State will rely upon a machine, a nonliving, non-breathing, nonhuman witness. The State will ask you to place your trust in that machine and the State will ask you to convict a man, a human being, someone who stands before you presumed to be innocent, based upon what a machine says.
Under our system of justice, which is the best system in the world, it is the prosecution’s job to present evidence that will persuade you beyond a reasonable doubt that you, as jurors, and not the police, the prosecutor or the machine, know with certainty that Dan Johnson was driving under the influence of alcohol. It is only if you conclude with such certainty that Dan Johnson was driving under the influence of alcohol that you will be able to return a guilty verdict.
This example and the opening statement below are examples of how a skilled DUI lawyer can use the opening statement to begin telling his or her client’s story. An opening statement should always be modified to best fit the story the DUI attorney is telling.
Unless it is known ahead of time that the DUI test results will not be admitted into evidence, it is always a good idea for a DUI defense attorney to tell the jury about them during the opening statement. The DUI attorney will use this opportunity to educate the jury about problems that may have occurred during the testing procedures and help them understand that a positive DUI test result does not require a conviction.
DUI defense counsel may also suggest to the jury during opening statement that their constitutional role is to protect one of their fellow citizens from police misconduct. Skillful DUI lawyers explain that jurors are the final check and balance on the inappropriate use of the executive power. And they explain further that because a particular violation occurred they may either acquit the DUI defendant on this basis alone or, alternatively, may disregard the DUI chemical evidence altogether.
Here is a portion of a sample opening statement:
DUI ATTORNEY: Officer Jones will testify that he was trained to watch John for 15 minutes before asking him to blow into the breath machine. Despite this training, you will hear him admit that during this 15-minute period, he was also filing out paperwork, and that to do so, he had to take his eyes off John for about 3 minutes total. So, as you will learn, we don’t have a 15-minute observation in this case, we have a 12-minute observation. This same officer will also tell you that the 15-minute rule is a critical safeguard that must be followed to help ensure the reliability of the test.
Now, there was a time when Judge Smith here would have thrown this test out, he would have deemed it unfit for trial because John’s right to reliable evidence was violated. However, recently our appeals courts have said that Judge Smith no longer has this power. Instead, the appeals courts have said it’s up to you as jurors to throw the test out. There’s no one else who can do that for John. And if you don’t do it, then John will be convicted of a crime he didn’t commit.
Almost all drunk driving cases involve bad facts. For this reason, drunk driving cases are not easy winners. There are ways to deal with bad facts in the opening statement. Assume for example, that a DUI defendant has three prior drunk driving arrests and convictions which the DUI attorney believes will undoubtedly influence the jury in concluding that on the particular day and time on which the client now stands charged, he was actually driving under the influence.
A skilled DUI attorney can create a positive image from these negative facts. The following is an example:
DUI ATTORNEY: The State has not charged, nor could it charge, Dan Johnson with being a drunk. Thank goodness for that because Dan Johnson has on three previous occasions admitted that he was driving under the influence of alcohol. As a result he was convicted, based upon his admission of guilt. He has admitted the crime of driving under the influence in the past and if that kind of history were a crime in and of itself, then he would be guilty again, no question about it. But that’s not the way our system works. The prosecutor has charged Dan Johnson with driving under the influence of alcohol on a particular occasion and that is the issue which you must resolve as the triers of fact today. In our society we will not convict people of being bad people because of prior bad acts. As a society, we have concluded that this is not fair. That conclusion will be tested today and the fairness of our system will be tested today based upon this very case.
As I said before, Dan Johnson has been convicted three times of driving under the influence of alcohol. He didn’t have a trial in those cases; he admitted what he had done. He was charged and he took his punishment. However, to this charge, to the one you must decide today, he said for the first time, “No, I am not guilty!” He not only said it when he pleaded just prior to this trial, but he will tell you again himself, in the flesh, when he takes the witness stand to testify in his own defense. He will tell you that he was not drunk. He will tell you that he was not driving erratically. He will tell you a variety of things about that night from which we hope you will conclude that he was not driving under the influence. And finally, he will tell you, as I have just said, that he has been convicted of drunk driving in the past.
Ladies and gentlemen, that is a fact you would never have known but for Dan Johnson’s testimony today. But it is also a fact which should have no influence in your determination of whether Dan Johnson is guilty of the crime for which he is charged.
Savvy DUI defense attorneys avoid “promising” something that cannot be delivered. To win a drunk driving case, a DUI attorney must be perceived as credible by the jury. If a DUI lawyer makes a promise during the opening statement and then fails to fulfill that promise, his or her credibility will be severely weakened, if not totally shattered. If the jurors believe that the DUI attorney intentionally sought to deceive them, he or she will have ensured that the jury will return a guilty verdict.
“Promises” often arise because DUI defense counsel assumes that certain facts will be developed during cross-examination. Many times a fact that a DUI attorney thinks will come out on cross-examination or an admission he or she thinks will be made, never occurs. Experienced DUI attorneys never assume that something will happen at trial. They never base a promise on an assumption. It is important for a DUI lawyer to explain to the jurors the facts upon which he or she will rely so that the jury will focus on them when those facts develop during the trial; but it is equally important for a DUI lawyer to be conservative in his or her evaluation of what kind of evidence will be available either on the DUI attorney’s direct examination or through the cross-examination of the State’s witnesses. Knowledgeable DUI defense lawyers always err on the side of caution.