“An opening statement is like a road map for the trial.” Boring! Yet this is what virtually every jury hears from virtually every judge in virtually every trial. And more often than not, defense attorneys fall into this trap.
In his book, Innovative DUI Trial Tools (275-page looseleaf with CD, $99), noted defense attorney Bruce Kapsack tells you how to avoid this trap. Learn to grab jurors with your first sentence and get them thinking from the start that a fellow citizen has been falsely accused.
Compare the following openings.
Bad Example: Bland, vague, and generic
“Bob was seen running a light and was stopped by the officer. When he was asked to perform SFSTs, he did so in accordance with guidelines, but not up to the officer’s expectation. The officer then arrested him and he agreed to a breath test. The results are over the legal limit but we intend to show that the officer did not wait the appropriate 15 minutes prior to the test.”
Fairly standard by defense attorneys. Now try this.
Good Example: Detailed, positive, and personal
“The evidence will show that it must have been hard at that time of night for Bob to see the light had just changed from yellow to red. No one claims he was speeding; it was just a poor visibility situation. Something that can happen to any of us. We all do our best to follow the rules of the road when we drive, there will be no evidence that Bob did not. But despite our best efforts and well meaning intentions, we can be suddenly confronted by an obstacle with no time to react. As soon as he realized what he had done, Bob slowed down and seconds later the police cruiser pulled him over. Bob knew right away he had made a mistake.
When he was first approached by the officer, he was cooperative and admitted to what he had done. With no problems or issues, he presented his ID, registration etc. When asked to voluntarily step out of the car, he did so. Bob did slip slightly due to the dew that we all know condenses on the pavement at night. When asked to perform SFSTs, he did so as best he could. But the evidence will show the officer has practiced these for years. In fact, you will hear, the officer has performed these tests over a thousand times.
Well, this was Bob’s first time. And we all know how hard it is to be perfect on a first attempt at anything. So he did not do them perfectly. But who would?”
This opening displays a positive attitude, an attitude that will stick in the jurors’ minds throughout the trial.
No “my name is” or “we are here about” openings. We start with an active sentence, grabbing the jurors’ attention and erasing the barely-scratched in image the DA has just portrayed.
“Three more minutes. If the officer had waited three more minutes we would not be here. That is because a valid breath test requires a full fifteen minute waiting period. These are not my rules; they are the government’s rules on how to provide a breath test upon which you can rely. It is YOU who must be outraged at this behavior. It is not fair for the government to take shortcuts with one law in order to enforce another law. Because when you take a shortcut, you may not be getting the correct results. And in this case, bad results will amount to a terrible outcome.”
That’s another point about opening statements-play the emotion card first. Let’s face it, DUI trials are emotional. DUI is the only political crime in the country. Name another criminal offense that can be prosecuted with no harm to property or person. There is none. The emotion/bias/prejudice card will be played; if you have a chance to lay it down first, do so.
About the Author
Bruce Steven Kapsack is the senior partner of Kapsack & Bair, LLP an AV rated firm practicing exclusively in DUI/DWI defense. He is the first attorney in California to take and pass the American Bar Association’s Board Certification exam for DUI Specialization.
Mr. Kapsack has written extensively about DUI/DWI defense. He contributes to California Drunk Driving Laws by Ed Kuwatch (James Publishing) and California Drunk Driving Defense by Lawrence Taylor (Thomson-West Publishing), the two seminal works in the field in California. He writes a regular update on California DUI for the Public Defenders and has written for DUI/DWI publications in other states including New York, Nebraska, Ohio and nationally for The Champion magazine.
To learn more about Innovative Trial Tools, click here. If you have questions about the book or would like to place an order, please contact us at 800-440-4780.