By Stephen Hayne
Looking back on 23 years in the trenches of DUI warfare, I wonder
How could I have worked so hard, struggled so much, and learned so little?
As I hunker down for another trial, I envision the misery of standing before the skeptical frowns of the jury, their wary eyes studying me as they would some repugnant creature pulled from the floor of the sea. “We know what you’re up to, you can’t fool us like those sneaky O.J. lawyers did,” they seem to say.
As the smoke from the prosecutor’s broadside lingers in the air, they await me. I know I must begin. I must respond with my own salvo, with equal sound and fury, lest the trial be lost before it’s begun. But what can I say? Where are my big guns, my own evidence to counter the weaving, slurring, stumbling, fumbling just described by the prosecutor? Where is my answering science to the bullet-proof breath test? Where are the reasons for doubt? I sigh and turn to the file on my desk. I don’t know where my opening statement is yet, but I know I must find it, somewhere in this file. The good news is; it can come from a hundred different places. The bad news is the process of finding it often seems painful and laborious.
Let’s start with the police report. What’s in it that actually helps our case? Even with poor driving, did the client respond immediately and appropriately to the emergency lights? Did he use his turn signal? When the officer approached, did he have his license out? Did he readily find his registration and proof of insurance? Did he respond to the officer’s questions and requests appropriately? This process of r=ferreting out everything your client did right, i.e.; in a sober manner, is the building of defense, brick by brick.
Eventually, you must distill it to a simple “theme,” a short explanation of why your client is not guilty of DUI:
My client is a responsible person who drank in a responsible way. He did not have near enough alcohol to be impaired or for the breath test to be accurate. The real evidence, what the witnesses saw of his drinking, manner and appearance, tends to prove he was sober, not drunk.
Once you have the case down to manageable facts, you’re ready to prepare your opening. One way to begin is with a dramatic, forceful statement that your client is not guilty, followed by a description of your theme, followed by an example.
Steve Hayne and it is my honor to represent Bob Jones today. Bob is charged with the crime of drunk driving and he is saying to you today that he is not guilty. We are about to embark on a journey together, a journey of grave importance to Doug and to you as jurors. Why are we here? Because Bob Jones is not guilty of DUI, period. Despite Trooper Farrell’s opinion, he simply was under the influence of alcohol. You are being asked to judge Bob Jones’ judgment on the date in question. To do that, you need to know something about him. Should I have him testify—and that will be my decision, not his—you will learn that he was born and raised in Washington. That he is a loving father, active to his children’s lives and a responsible member of this community.
Plain and simple, the evidence in this case will establish that Bob Jones had very little to drink on the night in question, the people with him through out the evening will testify that he was not impaired. In fact, the evidence will show that Bob didn’t have near enough to drink for the breath test to be accurate. When he was stopped and interrogated by Trooper Farrell, he was plain scared out of his wits and, despite that, performed amazingly well on the field sobriety tests.
In fact, that evidence, of Bob’s performance on field sobriety tests, is of critical importance to the State’s case, I ask you to carefully consider the entire circumstances, not just the trooper’s claim of the few things Bob did wrong, but also of what hr did right. The evidence will reveal what it was really like for Bob, and will further show that he performed the rests in a sober fashion.
Let me offer you an example. It is undisputed that Bob was asked to recite the Alphabet. Trooper Farrell will testify that is part of the investigation of a suspect in a drunk driving case. He’ll tell you that he has been trained to note several things: Can he recall the whole Alphabet; A to Z? can he state the letters in the correct order? Does he leave any letter out? Does he repeat any letters? Does he stop and start over? Finally, does the suspect slur any of the letters together? Any one of these mistakes are considered to be evidence of impairment.
Trooper Farrell will tell you that Bob Jones performed this test flawlessly—in a manner perfectly consistent with sobriety. And that is but one example of what I expect the evidence of Bob Jones’ sobriety in this case to be…
The opening would proceed in this fashion according to the facts and the individual attorney’s style and preference.
I have included the Opening Statement chapter of our book* in these materials for an overview from a slightly different perspective. It includes examples of basic opening statements to a jury and judge and follows below.
*Defending DUI’s in Washington, Michie Legal Publications.
OPENING STATEMENTS IN DUI TRIALS
8.2 Elements of the Defense Opening
8.5 Sample Opening to a Jury
8.6 Sample Opening to a Judge
In this day and age, a successful defense in a DUI requires careful attention to every stage of the trial, perhaps none more than to the opening statement. Seldom will the facts of a drunk driving case call for waiving or reserving the defense opening. The prosecutor’s opening salvo against your client must be responded to immediately, strongly, and logically.
The opening should be used by defense counsel to humanize the client, to reveal the defense theme (i.e., why you are trying the case), to steal the prosecution’s thunder, i.e.; acknowledge weakness) and to offer legitimate alternative conclusions, based on the facts, to the police officer’s opinion that the client was impaired This chapter discusses the fundamental requirements of a good defense opening and provides basic examples for both bench and jury trails.
8.2 ELEMENTS OF THE DEFENSE OPENING
To begin with, the facts of most DUI trials involve disputes as to the degree of intoxication. That is, the issue is whether the state can prove beyond a reasonable doubt that the defendant was in a particular state of impairment or over the legal limit at a particular time. It is the only crime that requires proof of a condition rather than an event. It is helpful to stress this concept—that the trial does not involve a simple question like “Did or did not the defendant rob the bank,” but rather whether the defendant was in a particular condition at a particular time, a condition affected by numerous and changing variables. The defense opening presents an opportunity to tell the jury the rest of the story; the real facts which support the client’s plea of not guilty.
In all DUI’s a substantial amount of negative evidence will be introduced against the client: erratic driving, bad physical appearance, poor performance on field sobriety tests, confusion, harmful admissions, and, in most cases, a breath test result exceeding the legal limit. Since all of this is usually described in excruciating detail during the state’s opening, the defense must immediately respond with an opening which brings the jury back to at least a neutral position. In the author’s experience, it is most effective to present the defense as consistently with the state’s case as possible, rather than asking the jury to find the officer is flat-out lying. The emphasis should be on the officer’s capacity to make mistakes just like any human being.
One way of structuring the defense opening is to cover the following elements:
(1) An introduction of yourself and your client
(2) A description of your defense “theme”; why you’re trying this case, why your client is not guilty;
(3) An acknowledgement of the harmful evidence you now will be coming;
(4) An explanation of your side of the case, of who your clients is, what he was doing before his arrest, what he was thinking and feeling throughout his contact with the police, what special circumstances contributes to the officers erroneous conclusions, and what favorable evidence your witness will provide;
(5) A restatement of the defense theme and the vital importance of the presumption of innocence and requirement of proof beyond a reasonable doubt; and
(6) A smooth conclusion.
In preparing for trial, keep your audience in mind, whether a judge or jury. Evaluate the case from the State’s point of view and be prepared to acknowledge the negative aspects of your case from the beginning. It is important to convey a sincere belief in the integrity of your defense and the reasonableness of your position despite the negative evidence. Taking “a credit” for the bad as well as the good, defuses its power and reminds the jury that it is only part of the story. Then tell them the rest of it, with imagery and detail, so they can get a mental picture of your client’s activities prior to his contact with the police. Even if you’re experienced, practice your opening before a mirror, friends, or associates. Practice will polish your technique, give you confidence, and, most importantly, will allow you to give your opening as a story –vital to opening the juror’s minds to your client’s version of the case. Use of charts, diagrams, and other demonstrative evidence can be helpful in painting a favorable mental image of the events, but their use must be practiced beforehand to insure a smooth presentation. It is also wise to ask the judge for permission to use exhibits in your opening in order to avoid any objection.
Stand when addressing the court and remain formal with the prosecutor and police office throughout the trial. Be respectful of the court and convey confidence that justice will be done. Never lose your temper, and show irritation only when appropriate to make a point; take the good and bad equally in stride, fully confident that everything is under control and going according to plan (even when it isn’t). Never begin your opening until you have set the stage; have your props (charts, diagrams, easel, etc.) within easy reach. Don’t rush into your opening; wait until you have the jury’s full attention. Use your imagination in explaining your case. Avoid the once-popular method used by defense lawyers of looking, acting, and sounding just like the prosecutor:
Ladies and gentlemen of the jury. This is the point of the trial known as the opening statement. It is my opportunity to tell you what I expect the evidence to show. However, keep in mind that what I say is not evidence. The evidence will show…etc., etc.
Instead, paint a mental picture for the jury of the various scenes that your client moved through on the night of his arrest. Help the jury see and feel your client’s experience:
Ladies and gentlemen, you might be surprised to learn that I agree with most of what the prosecutor just said. I fully expect the Trooper to say all those things. However, what this trial is about is the rest of the story. You see, you will have a huge advantage over the Trooper Ross in evaluating. Tom Burdell’s condition: You will be able to consider all of the evidence before coming to a decision, you won’t have to decide based on a 10 or 15 minute contact by the side of a busy freeway. So…let me tell you the rest of Tom Burdell’s story.
Give life to your opening as you would in telling a good story to friends; with imagery and drama. Humanize your client by telling the jury something about him. Keep your opening simple. For example, few lawyers can keep a jury’s interest when describing the theory of infrared breath testing. Instead, focus on events to which the jury can relate; the dinner party or football game your client attended; who he talked with and what about; his emotional reaction to being pulled over and how well he did under such stressful circumstances. Never promise more than you can deliver. An acquittal for whatever reason is an acquittal, even if it’s based on the thinnest of reasonable doubts. Remember, the burden of proof is on the state.
The only part of the opening that should be committed to memory is a “pat”ending. Don’t damage a good opening with a halting, uncomfortable, disorganized conclusion. Prepare and memorize a smooth conclusion that allows you a graceful ending. (see example below). The following sample openings to a jury and judge are provided as general examples of ways to approach an opening. The authors urge the reader to add or subtract generously to fit the facts of the case and the style of the lawyer. Above all. Be yourself and do it the way that allows you to tell your client’s side of the story in simple, human terms.
8.5 SAMPLE OPENING TO A JURY
Remember to set your props up beforehand and to begin only when you are ready. Be patient, respectful, and professional. Stand about six to eight feet from the jury box and don’t move around except to add emphasis and interest to your story. If you absolutely must use notes, keep them on one page and leave them on the podium or counsel table, referring to them only as necessary.
Thank you counsel, Your Honor. Ladies and gentlemen of the jury, Bob Brown has been charged with driving drunk and it my honor to represent him in this case. Bob has told you he is not guilty of this a serious crime and judge Smith has told you several things: That his pleas of not guilty brings into question every element of the crime charged. That you are to presume Bob innocent and that you are to require the state to prove its case beyond a reasonable doubt. And that Bob doesn’t have to prove anything. There is obviously much more to this case than the incomplete part described by the State’s attorney. You will be given an advantage the trooper did not have at the time he arrested Bob for drunk driving: you will know the whole story of what happened that night. Let me tell you the rest of the story.
Bob Brown is a 45-year-old computer engineer who lives with his wife and three children. He is a fine man who is proud of his family and active in the community. Bob is particularly close to his children and spends most weekends in activities involving them. He is very health conscious and drinks very moderately.
Ladies and gentlemen, June 4, 1996 was a very special day for Bob Brown and his family. Not only was it a beautiful, sunny day, it was also the high school graduation for Bob’s oldest daughter, Susan. Bon and his wife were proud and happy, for Susan was graduating near the top of her class. In honor of the occasion, their closest friends, Joe and Sarah Wilson, planned a small gathering at their home in Newport Hills.
Following the ceremony, which ended around 7:00 p.m., Bob and his wife, Mary, drove over to the Wilsons. Neither Bob or Mary had had anything to drink up to that point and, just after 7:30, they each had a glass of champagne on the Wilsons’ back- yard patio. Several other friends arrived around that time, and they talked and snacked on hors d’oeuvres throughout the evening. Most of the guests, including Bob, were drinking very responsibly; slipping champagne in those little fluted glasses.
Several of those guests will testify today. All are in agreement that Bob drank very moderately, that he never betrayed the slightest appearance of intoxication. In fact, Bob appeared perfectly fine to all those present throughout the evening. Three witnesses will all testify that Bob did not appear at all intoxicated when left the Wilson’s at approximately 12:45 a.m. And well he shouldn’t have, since he only had three or four small glasses of champagne through out the whole evening. None of the people at the Wilson’s had any reason to be concerned over Bob’s driving. In fact, he had no problem at all driving the 10 plus miles from the Wilson’s to the curving overpass leading from I-405 eastbound onto I-90.
Bob will explain that he’d recently been noticing problems with his steering, especially on curves. Apparently Trooper Ross notices it as well and assumed Bob’s weaving was because he’d had too much to drink. When the trooper’s lights came on behind Bob, his heart jumped into his throat—he knew he been drinking and was worried about what the trooper might think. When Trooper Ross asked for his registration and he couldn’t find it, his anxiety level started climbing. When Trooper Ross asked for him if he’d been drinking, Bob found his mouth going dry and his heart racing with anxiety.
Bob did everything the trooper asked. I anticipate Trooper Ross will testify that Bob cooperated fully, but did not do very well on at least some of the tests. On the other hand, Trooper Ross will agree that Bob did several others quite well. I expect he’ll admit these tests were critical to his opinion that Bob was impaired. Both sides will spend quite a bit of time discussing these tests, because they’re obviously critical to the State’s case. I ask you to consider them carefully as you’d want a jury to do id you were in Bob’s position. I ask to pay particular attention to the conditions under which the tests were performed. Despite a bad back and under the trooper’s stern eye, with cars whizzing only a few feet away and with the trooper’s emergency light flashing, Bob performed these feats of balance. The testimony will be that he didn’t perform perfectly. But it is undisputed that he did many if the tasks exactly as the trooper asked, and in a manner showing he was sober, not drunk.
Once he arrived at the station, Bob was confronted with a series of questions designed to establish whether or not a driver is impaired. The answers Bob gave under the pressure of the situation are also critical in considering his state of sobriety. In fact, those answers will reveal that he was not impaired. It is undisputed that he showed excellent orientation to time and place; knew the date and day, the highway he was on, and the direction he was traveling.
Following these questions, Bob declined to call an attorney, feeling he had done nothing wrong and had no need of one. He readily agreed to take a breath test, expecting it to confirm his innocence and that he had bee allowed to go on home. The results of that test will be a subject of debate in this trial. You will hear the State’s experts acknowledge that no machine is perfect; including this one. When you consider the evidence as a whole; the test’s accuracy will clearly be called into question. The evidence will establish that Bob Brown did not have near enough to drink for the breath test to be accurate, period.
Ladies and gentlemen, it is not at all unusual for well-meaning and sincere people to make mistakes. Likewise, we have all had experience with the fallibility of machines. Despite the advancement of our species and our science, we still make mistakes, and probably always will. The evidence will show that Trooper Ross doesn’t know Bob Brown, but was called upon to judge him in less than 15 minutes by the side of the road. You will have a tremendous advantage over Trooper Ross, who is nothing more nor less than human and, despite his good intention, was simply in error that night.
In evaluating the evidence, you are charged with the awesome responsibility of sitting in judgment of your fellow citizen, Bob Brown. Your duty is crucial in our system of justice, and in the discharge of that duty you are all sworn to apply the principles of law which separate our system of justice from most others on this earth. You must presume Bob Brown innocent of these charges and must hold the State to its burden of proving its case beyond a reasonable doubt. Only then can justice be done.
Ladies and gentlemen, after you have had an opportunity to hear the evidence of this case as a whole, I will stand before you one last time. When I do, I will be asking you to return the only just verdict in this case, one of “not guilty.” Thank you.
8.6 SAMPLE OPENING TO A JUDGE
In the authors’ experience, few cases warrant waiving jury, but in those exceptions, one should not waive the right to an opening statement for one simple reason: it is the perfect opportunity to tell the court why you’re taking up its valuable time to try your case. The goals are essentially the same as in a jury case, although the opening should me much shorter. It should give the court an outline of the case, good and bad, while highlighting the favorable or unusual facts that separate this case from the dozens preceding it.
Again, keep it simple and don’t get greedy, remember you’re not asking the judge to find tour client innocent, just to recognize a reasonable doubt about his guilt. Your recitation of the facts and issues should be short and to the point—telling the judge in plain English why you’re trying the case.
Good morning, Your Honor. This is the case of the State of Washington versus Robert Brown. Bob Brown is charged with driving under the influence, and the case is before the court for trial. Your Honor, this case involves a stop by Trooper Ross in the early morning hours of June 4, 1996. The evidence will reveal that Bob Brown is law abiding, community conscious family man, who drinks very moderately, including on the night of his arrest. Bob was on his way home from a friend’s house following his daughter’s high school graduation, when Trooper Ross noticed him weaving within his lane. Trooper Ross noticed him weaving within his lane. Trooper Ross did not know at that time that Bob’s steering was defective.
I expect Trooper Ross will testify that Bob responded normally to his emergency and pulled off to the side of the road. Trooper Ross approached Bob’s car and noticed a moderate odor of alcohol. Bob had no difficulties producing his license, but due to his nervousness, fumbled for his registration. Bob had problems, but he managed to touch his nose with both index fingers. In addition, he did quite well on the balance test and had no problems at all with the Alphabet.
Trooper Ross arrested Bob and took him to the State patrol Office at Eastgate. On the Alcohol Influence Report form, Bob was well-oriented as to time and place and, if anything, the answers serve to prove Bob was not impaired. Bob’s breath test results were .107 and .110. In fact, as three witnesses will testify, Bob didn’t have nearly enough to drink for those test result to be accurate, period.
Your Honor, in the final analysis, the evidence in this case consists of inconsistencies, discrepancies, and, ultimately, unresolved doubt as to Bo’s condition that evening. The facts of this case cal for one conclusion: that the state has not proven beyond a reasonable doubt that Bob Brown is guilty of driving under the influence. Thank you.
The Defense opening in a DUI case should be told in story form, humanizing the client, stealing the state’s thunder by taking credit for the bad as well as the good, harmonizing the defense and State’s case as much as possible, and emphasizing the essential issue in almost all DUI’s: The inconsistency of the evidence on the whole. The issue if the breath test’s accuracy should be noted, but a technical discussion avoided. The opening should conclude gracefully with a simple (and well-rehearsed) statement that the evidence call for a finding of not guilty.