The Opening Statement in a DUI Case

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1 Chapter IX The Opening Statement in a DUI Case by Frank M. Horowitz, Former Director of CDAA s Driving Under the Influence Project CDAA would like to extend thanks to Sacramento County Deputy District Attorney Eric Kindall and Los Angeles Assistant City Attorney Ellen Sarmiento for their assistance in peer review and editing of this chapter. (Updated 2010 by Stephen F. Wagner, TSRP, Coastal Region) An anxious parent, wanting her daughter to succeed in dance class, asked the teacher how long a ballet dancer s legs should be. The teacher responded, Long enough to reach the floor. New prosecutors preparing for their first trial, understandably anxious and eager to do well, often ask senior members in their office what is permitted in an opening statement, what is effective, and, How long is long enough? This chapter answers these questions specifically within the context of a driving-under-the-influence (DUI) trial. I. What Is it Good For? You remember from your law school trial-advocacy course; the opening statement comes between the picking of the jury and the calling of your first witness. Penal Code section 1093(b) permits the prosecutor to make an opening statement in support of the charge. This does not mean this is an opportunity for argument. Rather, an opening statement merely assists the jury by providing an overview of what evidence is forthcoming. (People v. Stoll (1904) 143 Cal. 689, 693.) To satisfy this end, you may use items that will be later introduced into evidence, or audio or visual aids that will prepare the minds of the jury to follow the evidence and more readily to discern its materiality, force and effect. (People v. Green (1956) 47 Cal.2d 209, 215, overruled on other grounds by People v. Morse (1964) 60 Cal.2d 631, ; People v. Wash (1993) 6 Cal.4th 215, 257.) The defense is also entitled to an opening statement. The defense may present its opening statement after yours, or the defense can reserve opening for the start of its case. In some counties, it is common for the defense to reserve, and ultimately choose to waive, the opening statement. II. Legal Considerations: When in Doubt, Have a Hearing At some point in their careers, all prosecutors experience the pangs of frustration and anxiety when, after their opening statement, a mentioned witness or piece of evidence either fails to materialize or is deemed inadmissible. This can occur in any criminal prosecution, although more likely in misdemeanor cases given the shorter opportunity for case preparation. The effect is that your opening statement has become an opening overstatement. IX-1

2 Even though the law is clear that statements made in opening statement are not to be considered as evidence, jurors will likely hold the prosecutor accountable for all claims made in the opening statement. Another obvious hazard of making overstatements is illustrated below (see defense closing argument quote). An experienced defense attorney will usually take extensive notes of what the prosecutor says in opening statement. The defense s intent is to use in final argument every possible discrepancy between what the prosecutor promised and what was actually presented. The thrust of the defense argument is, If the State had presented everything it mentioned in opening statement, then possibly there would be sufficient evidence to convict. But given the prosecution s failure to deliver, there is clearly a reasonable doubt as to the defendant s guilt. Although this offering by the defense in closing argument may not result in the jurors having reasonable doubt, these overstatements can often undermine the credibility of the prosecutor. The moral here is to not overstate your case. If there are important items of evidence that may raise issues of admissibility, it is wise to have a pretrial hearing to resolve the issue. Then you can feel confident that the jury will see, hear, and touch the items you said would be forthcoming. If the rules of engagement are clearly defined before you address the jury, this will enable you to deliver with more confidence. Assume the jury convicts and, in spite of your best efforts, the evidence that is adduced at trial is less than what your opening statement envisioned. Is there a defense remedy on appeal? Even appellate courts understand that trials are living events that, at times, veer in unexpected directions. Consequently, prosecutorial overstatement is not usually a successful ground for reversal of a conviction. (People v. Wrest (1992) 3 Cal.4th 1088, 1109.) If a prosecutor s opening statement includes reference to known inadmissible evidence, however, there is greater likelihood that an appellate court will find the conduct so egregious as to require a reversal of the conviction. (People v. Harris (1989) 47 Cal.3d 1047, 1080.) An example of this would be where a prosecutor in opening statement told the jury of the defendant s failure to pass a liedetector test, knowing full well that the results would be inadmissible at trial. Furthermore, there is case law that makes it clear that the contents of a prosecutor s opening statement, just as in final argument, may create reversible error even in the absence of prosecutorial bad faith. (People v. Barajas (1983) 145 Cal.App.3d 804, 809; People v. Hill (1998) 17 Cal.4th 800, ) Again, the best way to avoid such issues is to request an evidentiary hearing, before opening statement, on any item for which admissibility is in question. III. Misdemeanor Opening Statement: Keep it General Keep it Simple Opening statements, like your wardrobe, need different styles for different occasions. The opening statement you would prepare for a multi-count murder case obviously would be markedly different from the one prepared for a one-witness petty-theft case. If the opening statement in the homicide case reflected no greater organization, preparation, or presentation than the petty-theft case, the jury would be ill prepared to take on the task of absorbing and understanding the People s case. Conversely, if the opening statement in the theft case were as long as in the homicide, the jury would surely conclude, Overkill! Therefore, just as one considers the audience when he or she dresses to IX-2

3 impress, the savvy prosecutor evaluates the complexity and significance of the charged offense when preparing the opening statement. Much is said about the importance of establishing themes when presenting a case to a jury. Establishing themes in murder for hire cases or kidnapping for ransom cases is easy, right? But in a simple DUI, the creative thematic options are usually more limited. Therefore, the best approach in adopting a theme in a simple DUI is to choose one that is both simple and universally palatable. Consider themes like choices, decisions, and themes that center on safety. These are safe selections because they are sure to resonate with a broad cross-section of jurors. In misdemeanor trial practice, preparation is usually accomplished on the fly. Sometimes your witness interview is a telephone conversation at 10:00 p.m. the night before testimony. Sometimes it is not possible to interview your witnesses until after voir dire, or worse, during a brief time out between opening statement and when that witness takes the stand. While such events will develop character and do make for great stories, they put inordinate pressure on the creation of a well-founded, cogent opening statement. Given the additional likelihood that your adversary is writing down each point you make in the hopes that you fail to deliver on a couple of them, you can see how a misdemeanor opening statement comes with both benefits and risks. One of the ways to deal with this dilemma is to find a way to provide your jurors with just enough information. Give them enough specificity so they will know, in a general way, what is going to happen next. But avoid being so detailed that your case will topple when the inevitable surprise or two occurs. After all, you do not want the defense attorney to pounce and growl in argument, There s reasonable doubt here because the case turned out differently than the prosecutor said. In the world of misdemeanors, there is value in thinking of your opening statement as the foundation supporting a 20-story building on top of an earthquake fault. You want the foundation to be strong enough to support all the stories on top, yet with enough give and play to withstand the inevitable temblor. IV. How NOT to Begin By the time you stand up for your opening statement, you have already been introduced by the court, and the jurors may have even formed some notion of who you are as a person. After all, they had an extended period to observe you during voir dire. Therefore, reintroducing yourself is unnecessary and a weak beginning to your presentation. Nor is there any need to reiterate the charges against the defendant. If your jurors cannot recite the charges after your voir dire, either they have stopped breathing or you have entrusted your case to a dozen toadstools. There is zero value in starting your opening statement with, This is the opening statement, and what I am about to say here is not evidence. Although this is legally accurate, the jurors will hear it as, Don t pay attention to anything I m about to tell you because it is not evidence. Can you think of any benefit for an advocate to tell his or her audience, Please disregard until further notice? It is also common for prosecutors to begin by likening the opening statement to: (1) a roadmap, (2) the picture on a puzzle box, or (3) a preview of coming attractions. Although each of these is somewhat apt, it is all hackneyed stuff that will cause your judge, clerk, court reporter, and bailiff to groan in unison. IX-3

4 If not any of these, then what? The jurors have been sitting through the voir dire anticipating what the case is about. The judge told them the charge, and the efforts of each counsel to educate have provided the jurors with some inkling of what is involved. But the picture is not clear, and their curiosity has been piqued. They are ready to be told what the story is about. Taking advantage of this inquisitive moment, you might begin with something as simple as, I m sure during the process of picking a jury you were all wondering what this case is about. This is my chance to tell you a little about what happened here. Your beginning need not be profound, merely engaging. V. All the World s a Stage Most jurors ideas about trials come from dramatically edited court TV programs, movies, books, or plays. Right or wrong, jurors anticipate that your trial, if not entertaining, will at least minimally mirror the process they have come to know. They expect a show. Think about the last time you watched a play. I will bet it did not begin with an actor coming forward and proclaiming, This is act one. In this act you will note the appearance of three characters. The first will tell you what happened on the fateful day The play is the thing. In lieu of some quasi-academic analysis of what is about to happen, the players immediately sweep you up in the commencement of the tale to be told. While it must be conceded there is less drama in a typical DUI trial than a Broadway play, the more your opening statement reveals a human saga rather than a dry recitation of evidence that supports a corpus, the more the jury will become invested in your case. Some experienced prosecutors advocate that you develop a theme for each trial. For instance, if one were prosecuting a DUI with injury, the theme might be, This is a case about irresponsibility and thoughtlessness causing tragedy. If this method works for you, go for it. In any event, it is probable that your jurors, once they get caught up in facts of your case, will capably define their own sense of theme. Although trials are slower and less dramatic than movie renditions, each is its own morality play involving right and wrong. Your task as the first actor on stage is to begin to tell the tale. You can best do this by providing a narration that relates what occurred from the perspective of your key witnesses rather than providing a detached chronology. Envision yourself as the storyteller at the children s section of the library rather than a lecturer at the engineer s conference explaining the latest in road-construction materials. It is a fruitful practice in opening statement to lightly introduce (or reference) the cast of witnesses that you anticipate calling, but be careful not to invade the potential testimony. Use your voice tone, pauses, and volume to move the story along. Talk to your jurors, not at them. Make eye contact. Engage in measured movement. Do not stay behind the podium and lecture. Addressing your jurors without clutching the podium tells them that you have nothing to hide and that your case, just like you, can stand without supports. The same can be said of clutching your notes: Release that Kung Fu grip on your notes and communicate the ultimate message to the jury I know my case! IX-4

5 If there are items of evidence that will help the jurors understand what happened, do not be afraid to use them. For instance, if your victim was struck by a hammer that was recovered, use it to give substance to the description of fear felt by the victim as the defendant approached. If the judge permits, you may want to use charts, diagrams, or slides to help your jurors visualize what you are talking about or give definition to your words. If you do, practice their use. Speaking to a jury while handling props requires coordination; learn to do it seamlessly. Remember that if you have clipped or tacked several pieces of chart paper to a chart holder and plan to turn each in sequence, it is easier to pull the respective pages toward you rather than to attempt to flip the finished pages back over the board. For instance, if you plan to use four consecutive pages of chart paper, before you attach the pages to the chart holder, put page one at the bottom and page four at the top. In this way, you can more easily pull over the pages in sequence. Do not talk while changing charts or changing slides. A listener s attention is dissipated during transitions. VI. Components of a DUI Opening Statement If the DUI case you are about to begin includes a crash, then you might choose to relate the events from the perspective of the victim. A short, artful description of what occurred when the defendant s car collided with the victim will get your jurors attention. In most DUIs, the observer of the defendant s actions is a law enforcement officer. DUI evidence generally divides into four parts: the observed driving; the officer s observation of the defendant s objective physical signs or symptoms of impairment; the defendant s impaired performance on the field sobriety tests (FST); and the chemical test results or test refusal. The explanation of how these four components were uncovered through the officer s observations, investigation, and expertise teaches your jury how an officer identifies an impaired driver as well as what evidence is forthcoming. These cases give the jurors a real chance to play Sherlock Holmes. A successful opening statement will show the jurors how to personally piece together the four components to the officer s observations and investigation that, in totality, permit only one truthful conclusion the defendant was impaired when driving. A DUI arrest report commonly includes a great deal of specific information. The report may relate how many times and by how many inches the defendant s vehicle crossed the Botts dots. The report may specifically relate how many times the defendant searched his or her wallet before finding the license. The report may indicate where each finger-to-nose attempt landed during the FST. Is it a good idea to tell the jury of each specific fact included in your evidence? While you want your jurors to understand what your case is about, do not be overly specific. Remember, you do not want to overstate your case, and even if you know what your witness is about to say on the witness stand, there is great likelihood that some discrepancies will occur it is often advantageous to intentionally leave out detailed references to certain items of incriminating evidence in your opening statement. Consider giving the jurors just enough to whet their appetites. This strategy creates much greater impact and anticipation when the supporting witness describes the event(s). IX-5

6 The defense will use the sum of those discrepancies to indict your officer s investigation and conclusions. Therefore, while you will want to tell your jurors, It was the defendant s weaving between lanes that initially attracted the officer s attention, and, The defendant s performance on the finger-to-nose test was consistent with someone who was under the influence, you do not want your opening statement to so pin down the facts that any surprise changes in anticipated evidence will permit a defense contention that the overstatement establishes a reasonable doubt. VII. The Dismount: Hey, How Do I Get Off This Thing? Anyone who has ever observed a gymnastic competition has marveled at the grace and dexterity with which the athlete dismounted the various apparatuses. It sure looked easy! What these athletes, after considerable practice, have accomplished is the achievement of dynamic closure. They figured out how to leave the audience with a sense of completion that was the logical extension of what came before. You also will benefit by developing a dismount for your opening statement. Work out something that is appropriate, effective, and will leave the jurors with a sense of what you want from them within the context of what you have already told them. It may be as simple as, We re confident that after you hear all the witnesses in this case, you will be satisfied, beyond a reasonable doubt, that on January 1, Mr. Dowrong was too impaired to safely drive his car. Thinking about your dismount before trial will help your performance in two ways. First, by choosing a comfortable and effective ending to your opening statement, you can feel confident that you are concluding with a bang, not a whimper. We have all personally observed or experienced a presentation that started strong, only to meander to a conclusion. Not only did it appear weak and ineffective, but the distance back to the chair felt like a marathon. Choose a good ending in advance and practice it until it is yours. This will positively impact the jury and demonstrate your professionalism. Second, the world of misdemeanors is jet-propelled. Judges in these courts often act more like cattle herders, pushing their cases like critters to market, than sagacious seekers of justice. By pre-thinking and standardizing common parts of your trials, you provide yourself more time to dedicate to the specifics of your case. So give some advanced thought to a concluding sentence or two that will both sum up what you want from the jury and provide an easy segue to what follows. VIII. Conclusion The opening statement is your first real opportunity to let your jurors know what your trial is all about and why they should care. While it is unlikely that your cause will be won or lost at this stage, a good opening statement will set the tone for your case, encourage your jurors to trust you as their guide, and be long enough to reach the floor. IX-6

7 ABOUT THE AUTHOR (2003) Frank Horowitz, the Director of CDAA s Driving Under the Influence Prosecution Project from , has practiced criminal law for nearly 30 years. His experience includes an initial five years as a Los Angeles County Public Defender, followed by 19 years as a prosecutor in the Los Angeles City Attorney s Office. Mr. Horowitz then joined the Butte County District Attorney s Office, ultimately serving as the deputy-in-charge of the Chico Branch. Mr. Horowitz s involvement in prosecutor training began in 1980 with two years as the supervisingattorney-in-charge of the Los Angeles City Attorney s nationally acclaimed training program. This training format served as an early model for the current CDAA Trial Advocacy Workshop. He has been a CDAA instructor since 1985 and was selected Outstanding Instructor from Mr. Horowitz received both his Juris Doctor and Bachelor of Arts degrees from UCLA. He has twice served on the faculty of the National Advocacy Center in Columbia, South Carolina and has taught law-related courses at numerous colleges and universities. In 2001, he received a Pro Bono Service Award from the State Bar of California for his volunteer work at the Chico office of Legal Services of Northern California. Chapter Updated in 2010 by Stephen F. Wagner, TSRP: Stephen Wagner served as a deputy district attorney in San Benito County for six years before joining the CalTSRP in November He has prosecuted a broad range of criminal offenses from simple assaults to various forms of homicide/murder. He has been a consistent editor and author for CDAA publications, including Behind the Wheel and the former Case Digest. Teaching Criminal Law & Procedure at Monterey College of Law, Mr. Wagner is a graduate of NDAA s Faculty Development Course and has served as an instructor at the National Advocacy Center and at CDAA s New Prosecutors Seminar. As CalTSRP for the Coastal Region, he is based in Monterey County. IX-7

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