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August 1998 Developing a Defense Theme in the DUI Case By James Farragher Campbell James Farragher Campbell, of San Francisco, is certified as a Criminal Defense Specialist by the California Board of Legal Specialization and is a Criminal Advocate certified by the National Board of Trial Advocacy (NBTA). His practice is exclusively DUI and homicide cases. He is the author of the three-volume treatise, Defense of Speeding, Reckless Driving and Vehicular Homicide (Matthew Bender 1984), and he is a founding member of the National College for DUI Defense. A jury has to comprehend your defense before it can accept your defense. This precept mandates that you formulate a theme that expresses your theory of defense. A DUI case presents special challenges for defense counsel because so often we are putting before the jury a technical and/or scientific defense, information which most jurors have never heard. A DUI defense theme differs vastly from defenses often associated with the common criminal case. But before a DUI defense lawyer can develop a theme, or defense theory, which will be used to hold together the entire case, the lawyer must understand what actually occurs in the courtroom. Historically, the courtroom is more than a place where disputes are settled. It provides great drama. Indeed, one only needs to look at the O.J. Simpson case to illustrate that this public forum for drama is alive in America. In fact, some of today’s most gripping stories come to us via Court TV and the nationally syndicated television news magazine shows. Courtroom As Theater For every play to work, there must be conflict and resolution. A criminal trial certainly provides, by its very definition, conflict and the search to resolve that conflict. The jury, by its very nature, seeks resolution. When an audience enters the theater, it expects to experience something different; to do that, it is willing to meet the actors halfway. The courtroom operates in much the same manner. When jurors enter the case, they know they are going to engage in a decision-making process, a process that is something different for them. They are more than willing to meet the attorneys halfway. Theaters are places for actors, not lawyers; and a DUI trial is a place for a DUI defense lawyer, not an actor. To succeed, however, both an actor and a DUI defense lawyer must always be themselves. Once you have found yourself as a DUI defense lawyer, then and only then can you hope to find your defense theme. This process is akin to an actor finding or defining a character. Any trial performance dynamics addressed in this article are meaningless unless you are true to yourself. The key to courtroom success is simply stated but difficult to do: “know thyself.” Shakespeare says it so well in Hamlet, where Polonius advises his son, Leartes, before Learteas leaves for Paris: “To thy own self be true, and it must follow as the day the night; that you will be false to no man.” What a brilliant admonition for DUI defense lawyers! If we are true to ourselves, we will not be perceived (by the jury) to be phony. You cannot perform as a DUI defense lawyer, nor develop a successful defense theme, unless you are true to yourself. If you take time for self-introspection, try to understand what makes you unique, then shape and develop that individuality in a consistent manner, you have the basis to reach excellence in the courtroom. Knowing yourself is both the beginning and ending point for courtroom success. That is the “art” of courtroom performance. That is what actors do, bringing themselves into character. When you look at a piece of art, you can identify it as a Picasso, a Rembrandt, or a Monet. When you hear music, you know the artist as Mozart, Beethoven, or Brubeck. They have defined themselves in their work. Image Expectation of image sometimes equals the power of reality. In the play Dracula, the title character enters with only four minutes remaining in Act I. He is on stage less than 21 minutes, yet his character dominates the entire play. What is our image as criminal defense lawyers? How do we use that image to our benefit? Does the jury look differently upon us when we defend a DUI case? What do jurors imagine makes us good lawyers? Building blocks, which define a good trial lawyer, can establish you as such in jurors’ minds. The building blocks include professionalism, fairness, trustworthiness, and command. You show the jury that you are professional by being prepared and organized. You show fairness by displaying courtesy to the prosecution, the judge, and the court personnel. You display trustworthiness by showing your true natural manner and sincerity. Once you demonstrate that you are trustworthy, people can trust you. They receive your message with an open heart because they trust you would not lead them astray. Be yourself, don’t be phony, don’t try to imitate someone else; you are not them, and it will show. Be sincere, don’t hide your faults or those of your case. Confidence and enthusiasm for the client and the defense show command. A well-prepared, enthusiastic case, coupled with competency and charisma, impresses the jury. Today, more than ever, the jury wants to hear a professional, not a slick “huckster” or “spin doctor.” Show the jury you are professional by using the building blocks and taking time to organize your case and courtroom presentation. Story Concept The story you tell influences whether the jury will ultimately accept your case. Jurors size-up your case by how the story’s elements affect them. Just as a Hollywood producer, they decide whether they like the story. This fact leads us to the most important aspect of the story: Don’t tell your story as a lawyer. Talk as a person to the jurors — the less you talk as a lawyer the greater they will receive you. Can you imagine the way many lawyers would have described the fact that the gloves didn’t seem to be the right size for O.J. Simpson? What more eloquence or impact could be added to the phrase: “If it doesn’t fit, you must acquit.” The less you sound as a lawyer, the greater your character will link to the jury. The irony, of course, is that the jury will believe you are a great lawyer. A good trial lawyer’s task is to present the trial as a fine-tuned slice of real life, with flesh-and-blood characters engaged in a battle for justice. In the DUI case, this is essential. The jury intuitively knows this is not the crime-of-the-century, but you have to hook them on something to get them to react. Don’t forget the trial is nothing more than real stories from the community. The jury is interested and wants to set things right. The trial lawyer's greatest art is the ability to identify the link between the client and the jury. Most people, and therefore most jurors, reason intuitively. They base decisions upon emotions and previously held beliefs. Jurors will constantly ask themselves, “How do I feel about this person, this crime, this evidence?” Jurors ultimately take the case to another jury — a jury they cannot get excused from — their families, friends, and co-workers. To those people, the jurors have to justify the result. You have to make sense to them so they can explain their decision to someone they care about. The advocate’s goal is to convince. But before you can convince, you must appear convincing; and to do this, you must display these hallmarks of a good lawyer. Courtroom Persuasion The speaker initiates all persuasion. Aristotle described the three elements of effective rhetoric which still hold true today for the criminal trial advocate. They are ethos, pathos, and logos. Ethos is the ethics or the integrity of the speaker. Pathos is the emotion or feelings which the listener acts upon. Logos is the logic or reason which is perceived in the speaker’s address. DUI defense lawyers must “appear” convincing before they can convince. Therefore, use the above-stated building blocks — professionalism, fairness, trustworthiness, and command — to show the jury that you are convincing. Using these fundamental building blocks will immensely improve your impact on the jury. However, just using them will not take you all the way home. Knowing how jurors will vote requires that you understand how they will receive your message on a purely communicative level. Verbal data, actual spoken words, compile approximately 10 percent of the received impact of your message to the jury. Vocal characteristics — volume of speech, speed, and intonation — makes up about 40 percent of the impact of your message. Visual assembly — how you look, act, and move — accounts for almost 50 percent of your total message. However, these three elements — verbal, vocal, and visual — must come together harmoniously for the jury to receive the full impact of your message. Again, we only have to look to William Shakespeare for guidance. Uncertain of whether his uncle has murdered his father to marry his mother, Hamlet devises a play to see if he can catch his uncle with an emotional response to the murder by actually portraying it within the play which Hamlet wants to stage. He calls some actors to portray this drama. However, to succeed Hamlet advises the actors how he wants them to speak to convey the message — to suck in the new king with the reality of it all. Speak the speech, I pray you, as I pronounced it to you, trippingly on the tongue; but if you mouth it as many of your players do, I had as left the town-crier spoke my lines. Nor do not saw the air too much with your hands, thus, but use all gently; for in the very torrent, tempest, and, as I may say, whirlwind of your passion, you may acquire and beget a temperance that may give it smoothness. Hamlet then adds: Be not too tame neither, but let your own discretion be your tutor. Suit the action to the word, the word to the action, with this special observation, that you overstep not the modesty of nature. Sense of Theater What makes the theater? The answer is simple. The theater consists of a cast, a set, costumes, props, and the audience. All of this is orchestrated by a producer, a director, a set designer, and a prop master. In the courtroom, the defense lawyer is a one man show. The client controls the production and (unfortunately) the budget as well. The cast consists of the judge, the defense attorney, the defendant, the bailiff, the clerk, the court reporter, and the prosecutor. They all have their role to play before the audience — the jury. The set is well-known anywhere in the country. The judge sits elevated above everyone as the “lawgiver.” The prosecutor sits next to the jury, and the defendant and his lawyer sit farthest away from the jury. Costumes consist of the judge dressed in black, the police in uniform, and the attorneys in all sorts of outfits. Have you ever thought of how you appear to the jury? What about props? The judge gets a gavel, but the attorneys get the real props, the demonstrative evidence. Use your props skillfully and with imagination. They best explain your message to the jury. Did prosecutor Darden use his props well when he asked O.J. Simpson to try on the bloody glove? Theme Link Once you decide upon the theme, link it to everything you do in the case. Develop the theme-link between the defendant and the jury, the defendant and your witness. Be consistent with that theme. Jurors hold attitudes and ultimately express opinions based on their entire psychological makeup. Each juror processes a complex interpretation of self-image, values, opinions, and attitudes. When new information is introduced to them, they process it through their existing belief system. Don’t fool yourself, you are not going to build a new belief system for them during the DUI trial. The more your evidence conflicts with their belief system, the more likely they will reject it as unacceptable, untrustworthy, false, or unsupported by the evidence. The contrary is equally true — the more your evidence conforms to or complements the juror’s beliefs, the more likely they will accept your case. Your DUI defense theme, therefore, should coincide with the way that jurors are most likely to process trial information. You must present your case from the outset by telling the story of your defense theme. Your evidence should support that theme. Therefore, understand the likely decision-making process of your jurors. Know and appreciate their background and community. Sense the attitudes that are present in your DUI case. Understand what parts of your case will conflict and what parts will correspond to the jurors’ likely decision-making processes. Focus and use as much corresponding rationale as possible. If a defense theme identifies all that works within the DUI case and if it is developed throughout the evidence, then your case can become a single picture for the jury. If the jury sees that picture, it can lead only to a verdict of “not guilty.”
.10% Solution Jim Bell or Steve Oberman 110 W Summitt Hill Dr Knoxville TN 37902 Phone (423) 637-2900 Fax (423) 971-4298 | |||||||||
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National Association of Criminal Defense Lawyers (NACDL) 1660 L St., NW, 12th Floor, Washington, DC 20036 (202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org | |||||||||
