Themes work. Juries understand immediately what you are trying to say and why you believe that you should win. Themes simplify complex issues, narrow the jury’s focus on pro-defense points, and expand the possibilities for arguing reasonable doubt. Establish the theme and plant the seed for reasonable doubt in the opening statement. Here, from Patrick Barone’s Defending Drinking Drivers, are four persuasive DUI trial themes that you can adapt for use in your DUI trials:
Time for Justice
One simple theme that can be presented to the jury is that they must ensure that justice is done. The opening statement could start out as follows:
“Ladies and gentlemen, it’s time for justice…and you are the timekeepers. You can never let the clock run out on justice because justice must be timeless or our rights expire. Here’s what the evidence in this case will show and here’s why it’s time for justice….”
One anecdote that can be successful in closing arguments is the “bowl of stew,” where defense counsel analogizes problems in the State’s case to “pieces of bad meat” in an otherwise attractive-looking bowl of stew. Obviously, one would never expect a waiter or waitress simply to pick out the bad pieces of meat and offer back the stew to the customer. Certainly not! Rather, the entire bowl of stew is rejected.
If you are going to contemplate using this anecdote in closing, consider the following way to introduce it during the opening:
“Ladies and gentlemen, the State’s case is like a bowl of stew with some pieces of bad and rancid meat: It may look good, but it tastes foul. You just can’t pluck out those bad pieces of meat; you’ve got to send back the whole bowl.
You will hear the State’s evidence. As you do, pick out those bad pieces. But don’t accept what’s left. Send back the whole stew.
Now, let’s begin looking for those bad pieces of meat. Here’s what the evidence will show….”
Consider the following opening to analogize the evidence to the popular television show:
“Ladies and gentlemen of the jury, this case is about jeopardy—not the T.V. game show—but real life jeopardy.
You will have to decide as you hear the evidence whether the State can answer our questions, yours and mine. The State’s answers are wrong ones. Here’s why….”
Fear, Frustration and Futility
Set a theme that the jurors must set right what has been made wrong by the police. Consider the following:
“Ladies and gentlemen, this is a case about fear, frustration and futility:
Fear, because my client, Jim Brown, was afraid when he was stopped unexpectedly late at night by the police.
Frustration, because of Jim’s inability, based on his nervousness, anxiety and prior injury, to perform the coordination exercises the police call field sobriety tests.
Futility, because Jim was not able to get the police to even listen to him, to understand and hear his side of the story.
As you hear the evidence, we are going to ask you to replace that fear, frustration and futility with fairness. Here’s how….”
Patrick T. Barone has been handling DUI cases since 1992. His Birmingham Michigan practice is devoted exclusively to drunk driving defense. Mr. Barone’s articles on trial practice and drunk driving defense have been published locally and nationally. He is a frequent lecturer and has appeared on television and radio as a drunk driving defense expert.