In Books on Trial practice, it is typically recommended to label things during the trial. To use names that fit your theory of the case.
Refocus how the Jury Looks At the Key Evidence in the case
In a recent trial I had, my client made many statements to the officer prior to the field sobriety tests which were not helpful to the defense. What I did to change the focus of the inquiry from my client not giving straight answers, being evasive and appearing not to know what was going on, was to count the questions. I would ask the officer a series of questions and ask if that was the sixth question he asked. Eventually the officer agreed to having asked 12 questions.
My point was that the trooper was unsure, badgering the client until he got the response he was looking for. While I never asked if he was just harassing him or interrogating because I knew the officer’s response, I was able to argue in closing that if he really thought he was drunk, he would not have needed the 12 questions. The argument was that if it took 12 questions, the officer was really not sure whether my client was drunk.
Putting a number on it, I think, made it easier for the jury to remember my point on the issue. It helped let them see the evidence in a different way. The challenge for us at trial is to show how intimidating, unfair and dominating a police officer is at the scene compared to their calm and friendly courtroom demeanor.
Even an officer who is less aggressive on the roadside than others, still will intimidate and make a client nervous due to their authority to make an arrest. Officers have a natural tendency to try to take control to avoid confrontation and this can make our clients speak slowly, trip over their words and hesitate when speaking, all which the officer will attempt to say is a sign of being under the influence of alcohol.
Be as Specific on the Details as you can
In a second offense OUI trial I had recently in the Marlborough District Court, I believe a key factors was pictures of the area. The officer testified my client almost struck a building and was on the wrong side of the road. That sounds like damaging evidence when you read the report. When you go to the scene, you see that the road ends abruptly and if you were not sure which direction you were going, you might cross and go back into your lane.
Since there is a clear line of sight and it is not a busy area, my clients mistake in driving was likely common when you see a picture of the road. The officer’s direct exemption did not layout these details, which made the driving seem more egregious. While it probably was an unintentional oversight, it shows the judge or jury that the Commonwealth is presenting a one sided version of events and the officer testimony is impacted by his perception that the defendant was drunk. Instead of viewing the case objectively, the officer takes in the evidence to support the decision to arrest.
When preparing your trial, consider the facts that hurt your case and what specific detail could use to diminish those facts. Also, consider how you can use a concept or label to make the jury think of the evidence in a different way. For a helpful article on delivering an Opening Statement, take a look at this Article form the American Bar Association.
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