Getting off on the Right Foot:
Opening Statements in a DUI Trial
By Steve Hayne
December 12, 2003
The prosecutor has just finished her opening statement and the judge ask if you wish to respond, or reserve. You don't really want to give an opening, it's just not your strong suit. You might think:
I don't really feel very articulate right now, may I should reserve it. I don't know for sure what the cop's going to say. The jurors all promised to honor the presumption of innocence, and the judge has admonished them on burden of proof and reasonable doubt. I am not really comfortable with my opening, anyway. I have my hands full with cross as it is. I think I'll reserve and decide later.
If you do, you do you might as well spend the rest of the trial writing your client's pre-sentence report. If I've learned anything from trying hundreds of DUI cases, it is that a strong, persuasive, risky-to-the point-of scary opening is a must in a DUI trial. Put yourself in the juror's position:
You were told just enough during voir dire to pique your curiosity: This is a drunk driving case. So, how was the defendant's driving? What evidence of intoxication was there? What was the breath test result? Ho w did he on the field sobriety tests?
You just listened with keen interest as the nice prosecutor answered those questions. She described overwhelming evidence that the defendant was driving drunk; weaving back and forth, flushed face, strong odor or alcohol, slurred speech, awful FSTs, harmful admissions, the officer's 'professional' opinion and, most damning of all, a breath test over the legal limit.
At this point the trial, any reasonable juror would be thinking: What the heck are we doing here, this guy is obviously guilty! Now all eyes turn to you, each asking: So, what have you got you say about all that?
If you want to preserve any hope of winning, you must respond, right now. And your opinion has to be strong, compelling and persuasive, given with skill and courage. How? Well, let's start with some basic rules
Ten Commandments of opening statement:
1) Never waive, never reserve
2) Know your case
3) Never use notes
4) Demand the jury's attention
5) Put the judge on your team
6) Argue, argue, argue
7) Invite objections
8) Use the power of pauses, inflection and gestures
9) Challenge the cop and breath test
10) End with a bang, not a whimper
1) Never waive, never reserve.
The jury has just heard such damning evidence that it were a race, you'd barely be able to see the other car's taillights. You cannot afford to let that mountain of damning information stand unchallenged, or you'll spend the entire trial trying to overcome the prosecutor's massive momentum.
2) You must know your case better than anyone else.
I know it's obvious, but only when will you be capable of taking the necessary risks to present a dynamite opening. I've learned this lesson the hard way. When you don't know your case thoroughly, you will give a disjointed, half-hearted and utterly unconvincing opening. You simply must know the facts of your case so well that they flow confidently from your tongue. Then will you have the foundation of confidence needed to use the powerful tools of infection, pauses, imagery and metaphor in taking the air out of the state's case.
3) Never use notes.
Just don't. Practice until you don't need them. It is critical to the jury's acceptance of you as the authority on the case. Unlike the prosecutor and the cop you don't need notes to remember what happened, you are armed with the truth.
4) Command the jury's attention.
The most common mistake young lawyers make is jumping into their Opening too quickly. They start talking half way out of the chair. Of course it's anxious moment, but never begin speaking until you have the jury's complete and undivided attention. Pretend you're about to direct a symphony. Walk slowly to the jury box. Pause, and look each juror in the eye before saying a word. Then, begin with a compelling statement that comes from your heart.
Ladies and gentlemen, when Mark Fuhrman walked in to the majesty of this courtroom, when he took his seat, when he placed his trust in you, I'm sure he did it with some of the same fear he felt when he was so suddenly confronted by Trooper Jones on that dark cold, windy night last October. It is a helpless feeling to have your fate placed in someone else's hands, but all Mark can do today is what he did on that awful night; tell the truth, the whole truth, and nothing but the truth. And that is what he intends to do in this trial, to rely on the whole truth.
I emphasize that because what you just heard from the prosecutor was anything but the whole truth. And what you'll hear from the prosecutor and Trooper Jones during this trial will be anything but the whole truth. What I'm about to tell you is the whole of the story; the whole truth about the events of October 11, 2003.
Do not concern yourself with how "objectionable" your preliminary statement may be. We don't care about objections. In fact, we love objections. And, in my experience prosecutors rarely object in the earliest stage of your opening, anyway.
5) Put the judge on your team. I'm not real big on referring much to the presumption of innocence, burden of proof or reasonable doubt in opening. But, there's nothing wrong with doing so, as long as your main emphasis is on the reasons for doubt. If you do talk about POI/BOP/BRD, put the one authority figure that the jury really t rusts on your team: the judge.
"As Judge Wapner explained a few months ago", or "As Judge Wapner and I will discuss in your instructions at the end of the trial", or "As I'm I'm sure Judge Wapner will agree, you are required…"
6) Argue, argue, argue.
"But you can't argue in opening, it's against the rules" Bullshit.
In fact, this ought to be Commandment One. Forget everything you were taught by your law school professors, you clinical Instructor, your supervisor, your mentor, and any CLE speaker you've ever heard (including me). Stephan Illa, I a brilliant presentation for the Washington Association of Criminal Defense Lawyers*, convinced me that you cannot give a persuasive opening without arguing, and that the Washington Supreme Court agrees.
As he pointed out, in the State v. Campbell, 103 Wn 2nd 1, (1984) the court held:
…Opening statement should be confined to a brief statement of the issues of the case, an outline of the anticipated material evidence, and reasonable inferences to be drawn therefrom.
It is a fact that the only way to make an opening statement interesting, let alone persuasive, is by pointing out the "reasonable inferences to be drawn" from the evidence. And despite what the prosecutor or judge may believe, Campbell says you can do it.
For example, telling the jury "the field sobriety tests were designed to guarantee Mark's failure" is, arguably, argument. But, it is also a "reasonable inference drawn from the anticipated material evidence" of 1) the environmental conditions under which your client was required to perform the rests, 2) your client's physical condition, 3) your client's state of mind, 4) the illogical standards used for passing/ failing the tests, and 5) any other evidence bearing on the reliability of FSTs
Okay, it's pushing the limits, but that's exactly what is required to present a persuasive opening. However, to avoid too many interruptions from the prosecutor and problems with the judge, it is wise to occasionally throw in an "I expect the evidence to show". For some reason, this simple statement keeps most prosecutors and judge quite. As long as you say it often enough, you can pretty much say anything you want.
7) Invite objections.
When I was a young lawyer I had been thoroughly brainwashed by law school professors to consider an opponent's objection a personal failure. After all, if I really understood the rules, why should I do something so objectionable? But then I started trying cases, something none of those law school professors ever actually did. I soon went from fearing objections to not minding them to liking them to loving them to wanting begging, pleading for them. In front of a jury, a prosecutor's objection is just another example of his desire to hide the truth. What are they so afraid of, anyway?
Learn to at least ignore objections, but better yet, to use them. I love it when a prosecutor tries to keep me under control with objections. However, always remain thoroughly civil and polite (after all, the prosecutor is doing you a big favor). For example:
Ladies and gentlemen, one thing you'll notice during this trial is that the prosecutor and his witness will only tell you half the truth…
Very well, Your Honor. Let me make the point a different way. Listen carefully to the questions and answers during Trooper Jones' testimony. One thing that will be obvious is that they're just not presenting the whole truth…
Sustained. Mr. Hayne, stick to the evidence.
I beg Your Honor's pardon. I merely point out what I expect the evidence to clearly show. If Mr. Smith is offended, I apologize. Perhaps he'll prove me wrong. I'll move on.
Ladies and gentlemen, one thing is clear: Just as Mr. Smith told you only half the story of this case in his opening statement, I expect the evidence to show that he and Trooper Jones will present only half the story when Jones testifies. We'll see if they point out both the good and the bad of their case. If they don't, one of the issues you'll need to consider is why not? I believe the evidence will clearly show that they're not really interested in presenting the whole truth, because the whole truth hurts their case, because it raises doubts.
Objection to what? I was talking about the truth.
* If you are not a member, you should join today!
Now, before you say, "Ha! The judge would never let me get away with that," have you ever tried? I didn't think judges would either, until I found out they would, over and over again
8) Use pauses, inflection, gestures, props, exhibits.
Every time a trial lawyer stands up in court, he or she is on stage - and working utterly alone. No one is going to sympathize or help when you get in trouble. It always feels like the bottom of the ninth and you're one run down. And you better not strike out. It is very tough to make a living.
I say all this because giving a truly dynamic opening statement takes creativity and courage. The firs temptation we all face is resorting to the same old bullshit, we've all been taught: "The opening statement is like a road map" or "The purpose of the opening statement is to explain what we expert the evidence to be" or, heaven forbid by a thoroughly uninspiring description of the facts. It's the same as saying what I'm about to tell you isn't very interesting, but listen to it anyway. How many times would you start telling someone a story with that sort of preamble? Avoid the comfortable, seek the emotional, the difficult.
The prosecutor wants you to be just like them. Learn to disappoint them. Learn to provoke them. The jury wants you to be interesting, entertaining, and persuasive. Learn to accommodate them. Learn to enthrall them. You want to be daring, articulate, and spellbinding. Learn to make yourself proud. The way to salvation is in learning how to be a great storyteller.
All great trial lawyers are great story tellers. And just as the only way to learn how to become a great trial lawyer is by trying cases, the only way to learn how to become a great story teller is by telling stories. Tell your little kids stories. If you don't have any friends, become a prosecutor.
Watch how they react when you're deadpan: speaking in a lifeless monotone. Then watch them when you come alive; raising your voice, using gestures, pauses, drama, props and facial expressions. Jurors will not give such obvious feedback, but are moved by the same things. You then must throw off the straights-jacket law school, judges and prosecutors have dressed you in and give yourself permission to take chances.
9) Challenge the cop and the breath test.
The prosecutor has just finished burying your client under an avalanche of Evidence. To get back in the game, you must respond by calling bullshit on both the cop's testimony and the breath test. You will often hear law professors (and many actual trial lawyers) warn: Never promise something opening that you're not sure you can deliver!
Okay, but I 'd rather run that risk and stay in the hunt, than play it safe and leave the impression that I'm not going to deliver much of anything.
DUI trials are very, very difficult and the only way you're going to win is by taking some chances and pulling out the stops. Don't be afraid to tell the jury: "Trooper Jones is biased, just like we all are" or "When Trooper Jones had Mark do the field tests, the evidence will show that he was deliberately setting him up for a fall", or "Mark didn't have a chance from the minute Trooper Jones decided to pull him over". All are true, and your cross examination will prove it.
When it comes to the breath test, take it head -on, too. If you don't, it will land in the courtroom like a bunker-buster chasing Saddam Hussein, and the conclusion will reverberate the whole trial. Never act like you are afraid of it. Never let on that you're worried you won't be able to trash it. As Jon Fox always says, it's just a number - meaningless without consistent, unequivocal support from the real evidence: the rest of the case.
Ladies and gentlemen, now you've heard the prosecutor tell you that Mark took a breath test that night and that it was over the legal limit. Yes, he did take the test, he did so willingly and because he was sure he hadn't had enough to drink to be concerned. And the accuracy of that test is one of the issues in this case. I am here to tell you right now that it could not have been accurate. The evidence in this case will show that it cannot be correct, because Mark simply didn't have nearly enough drink. The evidence will show that both the state and defense experts essentially agree that, according to accepted scientific principles, for the test to be accurate Mark would have had to consume more than twice as much alcohol than he did. The truth is that the test was inaccurate and unreliable, because Mark simply did not have enough to drink. The evidence will show that the breath test result is just a number, a number from a machine that is nothing if the rest of the evidence doesn't support it. The real evidence in this case will show that Mark Fuhrman was not drunk, was drunk, not unfit to drive, and was not over the legal limit.
10) End with a bang, not a whimper
The surest way of ending your opening (or closing) strongly is with a 'pat' statement that you have practiced and memorized. You don't want to just peter-out, ending with a mumble. If you don't wrap-up you're comfortable with, steal one. You can steal from me if you wish (I'm sure stole it from someone else). When you've finished discussing the evidence, pause and firmly begin your ending:
Ladies and gentlemen, I am now ready to begin the trial. As you listen to the evidence I hope you will keep this in mind: You have the grave responsibility of deciding whether Mark Fuhrman is a criminal, it's as simple as that. In choosing you for this jury, this humble courtroom took on the status of the highest court in the land, and this moment forward becomes one of the most important in Mark's life. In asking you to assume this burden, he and I have entrusted you to do the just and right thing, to render the only just verdict this evidence allows: A verdict of not guilty.
Then sit down. A lot more work remains before you get a chance to really cut loose in your closing. Good luck.