Any trial, and particularly a DUI trial, is a complicated affair. Unlike a murder trial, where the proof consists largely of witness testimony as to how the killing occurred, the proof in a DUI trial will cover multiple and divergent areas such as operation, field sobriety tests, chemical testing as well as the standard for intoxication and reasonable doubt.
Further, the prolix nature of a DUI is further compounded by the fact that even the best jury will never, under any set of circumstances, maintain complete focus during the trial. Additionally, — and again unlike a murder trial — each juror, teetotaler or drinker will have his or her own set of experiences and beliefs about alcohol. In view of these factors, defense counsel must have a solid and convincing summation.
What is a “good summation?” From the standpoint of the defense, it is a thorough review of exculpatory facts delivered in a convincing fashion that emphasizes the existence of reasonable doubt.
Utilizing the Frailty of Human Memory
An effective defense mandates that counsel have a firm control of both the facts of the case and this stark reality: most human beings are only able to recall, with any degree of precision, 25 percent of what they heard earlier in the day.1 Scientifically, this is believed to be a result of how the human ability to remember was formed. Psychologists Thomas Suddendorf and Michael Corballis theorized that the only reason people retain some image of the past is to give themselves an understanding of a dimension outside of the present.2 The capability of imaging an imaginary world that is divorced from the present gave human beings the means to anticipate and plan for the future. This materialized in their ability to make tools for hunting, plant crops, and predict their needs as the seasons and climates changed.3 Interestingly, as noted by the authors, Neanderthals left little behind in the form of drawings or tools, indicating a very limited ability to imagine and plan for the future. Unlike our prehistoric Cro-Magnon ancestors, who were prolific in both, their survival was limited to roughly 100,000 years.4
While largely anecdotal, another quirk of human memory is the uncanny ability of people to subconsciously process what they perceive in terms of percentages. As experience tells us, the years do get shorter.5 Why? Because they continuously represent a smaller and smaller percentage of a person’s total lifetime.
The “25 percent” conundrum, coupled with the human affinity for percentages, creates enormous advantages for the trial lawyer who knows how to use them. As discussed below, the way a defense lawyer verbalizes her questions can assure that the 25 percent the jurors retain is composed of the facts that defense counsel wants them to recall. Using the power created by leading questions, the defense lawyer can force the witness to continuously agree. Notwithstanding that jurors cannot recall every question asked, they will subconsciously be aware of the percentage of agreement. As they recall the examination during their deliberations, they will conclude that the defense lawyer was correct.
Force and Symmetry
Every successful argument defense lawyers have ever made in their personal and professional lives has been rooted in the twin concepts of “force” and “symmetry. “Force,” in this context, means that defense lawyers use powerful and memorable words and phrases for those essential points that they want the jury to retain. “Symmetry,” for this purpose, means that defense lawyers reuse precisely the same words and phrases in summation to force the necessary recall of the essential points of their cases. It has long been abundantly documented that human beings are more likely to recall that which is familiar, known, or regular.6
When properly used, force and symmetry will foster the recall of points which, because of the failings of the human mind, would otherwise be forgotten.
Forcing Recall — ‘Devil Words’
The real question, therefore, is how does counsel get jurors to recall his essential points, short of the hope that they will ask for a read-back? The answer, once again, lies in the manner in which human beings recall information to which they have been exposed.
‘If it doesn’t fit, you must acquit.’
Without question, “if it doesn’t fit, you must acquit” is the most memorable phrase ever spoken in an American courtroom.7 It was remarkable on several planes. First, it was a rhyme. A rhyme plays into a person’s sense of symmetry. The human mind retains a rhyme. This is the reason advertising jingles are so successful. Second, at the critical moment of an extremely long trial, it fully and completely restored the jury’s memory of a dramatic event: the failure of the glove purportedly worn by the assailant to fit O.J. Simpson’s hand. Third, the line was memorable due to the manner in which Johnnie Cochran delivered it. At a key moment in his summation, he mandated the use of the State’s demonstration in the jury’s deliberations: “Folks, remember this, if it doesn’t fit, you must acquit.”
In modern parlance, this line underscores the use of what can be classified as “Devil Words.”8
“Devil Words” are appropriately named inasmuch as they have the power to curse the State’s case. Through repetition in summation, they force the recall of some important line, question or demonstration. The key to properly implementing Devil Words is not just to use them on cross-examination or summation, but to use them in both. To accomplish their aim, Devil Words must not only raise a negative aspect of the State’s case, but they also must be reused in summation to force the recall of that negative aspect.
Contaminated
In practice, Devil Words are easy to implement and only require a bit of retraining and modification of the language defense lawyers normally use. Consider the word “contaminated.” It has horrible connotations, particularly when used to describe the necessities of life. In a DUI trial, “contaminated” has the same devastating effect.
Q: Officer, a contaminated sample would not be accurate, correct?
Q: Officer, if the motorist burped,9 the sample could be contaminated, could it not?
Q: Officer, not all burps are audible, are they?
Q: Officer, you never told the motorist that if she burped, it could contaminate the sample, did you?
On summation, defense counsel says this:
He told us a contaminated sample would not be accurate. He told us that a burp could contaminate the sample. He did not warn the motorist that a burp, silent or otherwise, could contaminate the sample. They cannot ensure that the sample was not contaminated.
What has defense counsel done? He has caused the jury to recall the essential point upon which he has built his breath test case just as surely as Cochran built his case on the glove.
Failed
“Failed” is another unbelievably powerful Devil Word. Use this in place of didn’t or did not. Defense counsel should use the word “failed” at any point where he feels the officer could have done more or something else. For example:
Q: So, you failed to ascertain whether the motorist suffered from hip or leg problems prior to asking her to attempt the “one leg stand” or the nine-step “walk and turn,” correct?
On summation, defense counsel says this:
He failed to ascertain whether the motorist suffered from hip or leg problems prior to asking her to attempt the “one leg stand” or the nine-step “walk and turn.”
Another example:
Q: So, you failed to check the temperature of the motorist’s breath even though you did not fail to check the temperature of the mechanical simulator, correct?
On summation, defense counsel says this:
He failed to check the temperature of the motorist’s breath even though he did not fail to check the temperature of the mechanical simulator.
Again, the essential point is that the officer skipped a crucial step that could have guaranteed the accuracy of the breath test.
Ignored
“Ignored” has innumerable uses. Ignoring stands out. No one likes it when someone ignores them or ignores something. This is the way it sounds in a DUI trial:
Q: You ignored him when he said he had not been drinking, correct?
Q: You ignored the initial invalid sample, correct?
Q: You ignored him when he said he wanted to talk to a lawyer, correct?
Again, during summation defense counsel would say:
He ignored him when . . .
In the same fashion, “attempted” and “assumed” are two words that can easily sway a jury. The catalog of Devil Words is limited solely by defense counsel’s imagination.10
Primacy and Recency
Primacy and recency are the most powerful psychological tools in a defense attorney’s possession when delivering a summation.
Primacy refers to the first concept that is offered for acceptance. In all but the most unusual situations, it will be remembered. Why? Because humans remember the first few things that they are told in an encounter since the speaker has all their attention. Toward the middle of the proposition attention is lost. This is an unavoidable problem created by delivery and content. The listener will become less attentive as he or she tries to understand and contemplate what the speaker is saying. The defense lawyer loses jurors in her own words because they simply cannot hear and process everything she is putting forth.
Recency is the uncanny ability of humans to remember the last concept they are told because there simply is nothing left to distract them.
Primacy and recency have long been recognized as quite possibly the most valuable tools a speaker can have.11 Both concepts are apparent in two of the country’s most memorable speeches. First, primacy:
Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.
In 30 words, Lincoln laid out his entire proposition and compelled the listener to prematurely reach the desired conclusion.
Another example:
Yesterday, December 7th, 1941 — a date which will live in infamy — the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan.
Coincidentally, this too constitutes but 30 words. Again, it delivers the message in an unbelievably powerful fashion that compels the listener to the desired outcome.
Let’s examine how the same speakers utilized recency.
[T]hat this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.
In closing, Lincoln has both repeated and demanded his original preposition, freedom for all, with the compelling admonition that the nation may be the savior of this concept for all humanity.
The other example:
I ask that the Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, December 7, 1941, a state of war has existed between the United States and the Japanese Empire.
In closing, Roosevelt repeated his initial admonition while simultaneously alluding to the difficult nature of the desired outcome.12
It is imperative that the defense attorney take the fullest advantage of these powerful psychological tools. She should factually support her conclusion in the opening line and save the body for discussion of the facts upon which the conclusion is based. As she finishes, she should briefly incorporate her most powerful argument while restating her conclusion in a strong and uncompromising manner.
Recall and Structuring Factual Argument in Summation
As defense lawyers move to the body of their summations, they must force the recall of the various points they made throughout the case. For this, counsel should return to the Devil Words. Counsel should utilize the Devil Words as they would a physical object during the summation. They should wave the Devil Words in front of the jury in a clear and distinct fashion by actually emphasizing the particular word and strengthening their points by using the word “admitted”:
Remember, she admitted that she assumed . . .
He admitted that he asked him to merely attempt the nine-step “walk and turn.”
She admitted that she could not use a contaminated breath sample.
As they say each Devil Word, defense lawyers should draw it out to demonstrate that it is clearly the most important word in that sentence.
Reasonable Doubt
One of the more ironic twists of criminal trial procedure is that it is the defense that has the first opportunity to raise “reasonable doubt.” Long after the prosecution has had its say, the phrase defense counsel introduced, “reasonable doubt,” will be “adopted” by the judge in his or her charge. Defense counsel should address his remarks in a fashion that capitalizes on this “adoption.”
Judge Wiseperson will utter these same words. Judge Wiseperson will tell you just how important this concept is. Judge Wiseperson will inform you that you cannot return a verdict of guilty if you have a reasonable doubt.13
As the defense lawyer moves to the factual allegations that he developed in his cross-examination, he will demonstrate how each of the Devil Words created a reasonable doubt:
There was no proof that the sample was not contaminated; this is reasonable doubt.
She failed to assure that the motorist’s breath temperature was 34 degrees centigrade; this is reasonable doubt.
He assumed that the motorist was not on Zoloft or some other central nervous system depressant when he concluded that the eye test14 showed he was drunk; this is reasonable doubt.
One point here. When defense counsel utters the term “reasonable doubt,” he should stress the word “doubt” and not the word “reasonable.” The reason for this is that the prosecutor will certainly hammer away at the term “reasonable,” claiming “this isn’t reasonable and that isn’t reasonable.” Defense counsel must not play into that trap. Additionally, although most jurisdictions prohibit detailed discussion of what constitutes a “reasonable doubt,” one line that has been successfully used on numerous occasions is as follows:
Your verdict must be not guilty if you are not 100 percent free of all reasonable doubt.
At this point, the best thing the prosecution can do for the defense is to object. In rebuttal to the objection, defense counsel can ask:
Your honor, are the people insisting that a jury can return a verdict of guilty if a member has a reasonable doubt?
No judge will agree with the State’s position as defense counsel described it in that question. Either the objection will be overruled — thus strengthening the defense position — or defense counsel will merely be instructed to move on, his point having been made.
Demeanor
First, the manner in which defense counsel presents himself can spell the difference between success and failure. He should be himself. Trying to act like some attorney he admires or aspires to be will not work. People go through life with their own style. Why should a lawyer attempt to adopt a totally different persona at the point when he aspires to be most convincing? It just doesn’t make any sense!
Second, at some point in life everyone suffers from so-called “stage fright” or performance anxiety. Do not let it defeat you. If a defense lawyer truly feels that he suffers from anxiety or a lack of self-esteem when addressing a jury, he should take the bull by the horns and meet the problem head on. Behavior modification in public speaking15 can be easily achieved when defense counsel places himself in alternative speaking situations. Options include volunteering to speak before community groups or offering to speak at schools. Attending public meetings and speaking on behalf of a position is another excellent option. Before long, counsel will wake up and suddenly find that the stress is gone. Psychologically, defense counsel has undergone the well-documented process of desensitization.16 From that point on, not only does it become easy, it becomes fun.
Third, avoid these three obvious pitfalls:
Never become pompous. People despise pompous people. The defense attorney must not use this as an opportunity to advance herself. Indeed, self-deprecation is often the best strategy.
Never denigrate the prosecutor. It is not a good idea for defense lawyers to belittle the prosecutor no matter how much they dislike him or her. Jurors initially will see the prosecutor as the “good” person. Let’s be honest, drunk driving is an unpopular and dangerous action. A prosecutor, by trying to punish the client for what is decidedly an anti-social activity, will initially have the high ground. Do not further elevate the prosecutor by ridiculous snipes or snide remarks.
Never denigrate the law enforcement officer personally. The defense attorney can and must attack how the officer did his or her job on the evening in question. For the same reasons the prosecutor should not be denigrated, counsel should not let it “get personal” with the officer.
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Conclusion
Criminal defense lawyers are “trial lawyers” at a time when most lawyers in the profession are harbored in some stuffy 25th floor cubicle doing research, writing briefs, placating clients, or scratching for billable hours. Recognizing just how fortunate it is to be a trial lawyer — a real lawyer — will make lawyers happier individuals, and they will find themselves winning again and again.
© 2018, Edward L. Fiandach. All rights reserved.
Notes
- Ralph Nichols & Leonard Stevens, Listening to People, Harv. Bus. Rev. (September 1957).
- Thomas Suddendorf & Michael C. Corballis, The Evolution of Foresight: What Is Mental Time Travel, and Is It Unique to Humans?, 3 Behav. Brain Sci. 299-313 (June 30, 2007); Thomas Suddendorf, Michael C. Corballis & Donna Rose Addis, Mental Time Travel and the Shaping of the Human Mind, Philos. Trans. R. Soc. Lond. B. Biol. Sci. (May 12, 2009); 364 (1521): 1317–1324; D.L. Schacter & D.R. Addis, Constructive Memory: The Ghosts of Past and Future, Nature (Jan. 4, 2007) 4;445(7123):27.
- Suddendorf & Corballis, supra note 2, at § 6.
- Tom Higham et al., The Timing and Spatiotemporal Patterning of Neanderthal Disappearance, Nature (August 21, 2014) 512 (7514): 306–309.
- If there is any doubt, people can compare the sense of time between their seventh and eighth birthdays and their last two.
- Fred Attneave, Symmetry, Information, and Memory for Patterns, 62 Am. J. Psychol. 209-222 (1955).
- The line originated with team member Gerald Uelmen. Michelle Waters, Professor Uelmen Credited for Iconic Simpson Trial Quote, Santa Clara Law School Faculty News (Jan. 27, 2015).
- The author created the “Devil Words” classification in 1999.
- Use “burp” not “belch.” The word “belch” carries too much of an audible connotation.
- This article contains a list of “Devil Words” and their uses.
- N. Miller & D.T. Campbell, Recency and Primacy in Persuasion as a Function of the Timing of Speeches and Measurements, 59(1) J. Abnormal and Soc. Psychol. 1-9 (1959); C.A. Insko, Primacy Versus Recency in Persuasion as a Function of the Timing of Arguments and Measures, 69(4) J. Abnormal and Soc. Psychol. 381-391 (1964).
- Note that he “ask[s]” Congress for the declaration. He does not demand it. Note also how in the first sentence Roosevelt speaks merely of “Japan,” yet when he concludes he addresses the same nation as the “Japanese Empire.” In doing so he has subtly underscored how difficult the endeavor will be. Likewise, note the importance of the seemingly extraneous word “Sunday.” No further discussion is needed to justify the reason for its inclusion.
- It is no accident that the judge’s name was repeated three times. Both Beethoven (in his monumental Fifth Symphony) and Homer Simpson (when lighting his Christmas lights) recognized the power of three. Even so, each reference is different. The first adopts the phrase, the second stresses its importance, and the third expresses its mandatory nature.
- At this stage of the trial, consider using the term “eye test.” It sounds far less scientific than Horizontal Gaze Nystagmus Examination.
- Sunil K. Jangir & Reddy B. Govinda, Reducing Public Speaking Anxiety with Behavior Modification Techniques Among School Students: A Study, Internat’l J. Indian Psychology 5-1 (2017).
- Indeed, this is the well-established technique utilized by NASA when training astronaut pilots. See also Rynae Butler, Rebecca J. Sargisson & Douglas Elliffe, The Efficacy of Systematic Desensitization for Treating the Separation-Related Problem Behavior of Domestic Dogs, 129 Applied Animal Behav. Sci. 136-145 (2011).
About the Author
Edward Fiandach is a regent and founding member of the National College for DUI Defense. He is the author of Handling Drunk Driving Cases 2d.
Edward L. Fiandach (NACDL Member)
Fiandach & Fiandach
Rochester, New York
585-244-8910
sue@fiandach.com
