BASIC TRIAL TECHNIQUES for PROSECUTORS in IMPAIRED DRIVING CASES National District Attorneys Association 1400 Crystal Drive Suite 330 Arlington, VA 22202 www.ndaajustice.org Nelson O. Bunn, Jr., Executive Director National Traffic Law Center A Program of the National District Attorneys Association www.ndaa.org/ntlc_home.html Joanne Thomka, Director Particular points of view, opinions or legal interpretations expressed in the primer are those of the authors and do not necessarily represent the official position, polices or opinions of the National District Attorneys Association. BASIC TRIAL TECHNIQUES for PROSECUTORS in IMPAIRED DRIVING CASES ba Updated By RICHARD ALPERT, JD The second edition of Basic Trial Techniques was funded by the Foundation for Advanc - ing Alcohol Responsibility ( Responsibility.org ). Responsibility.org is a national not-for- profit organization and a leader in the fight to eliminate drunk driving and underage drinking. Funded by leading distilled spirits companies including Bacardi U.S.A., Inc.; Beam Suntory; Brown-Forman; Constellation Brands, Inc.; DIAGEO; Edrington; Mast- Jägermeister US, Inc.; and Pernod Ricard USA, Responsibility.org has transformed count - less lives through programs that bring individuals, families, and communities together to guide a lifetime of conversation around alcohol responsibility and by offering proven strate - gies to stop impaired driving. The original version of this document was produced thanks to a charitable contribution from the Anheuser-Busch Foundation in St. Louis, Missouri, and was written in 2005 by David I. Gilbert and Michael E. Gilfarb, both then-Assistant State Attorneys of the Miami- Dade County State Attorney’s Office, and Stephen K. Talpins, then-Director of the Na - tional Traffic Law Center. This edition is updated by Richard Alpert, JD. Mr. Alpert received his JD from the University of Texas School of Law in 1986. For 30 years, he was an Assistant Criminal District Attorney with the Tarrant County District Attorney’s Of - fice in Fort Worth, Texas where he specialized in the prosecution of DWI and Intoxica - tion Manslaughter cases. Mr. Alpert currently works as a law enforcement lecturer and is an adjunct professor at Baylor Law School. For more information on Mr. Alpert, please visit www.richardalpertlaw.com . ba CONTENTS 7 / INTRODUCTION 8 / PRE-TRIAL PREPARATION 12 / GENERAL TRIAL TIPS 13 / VOIR DIRE (JURY SELECTION) 24 / THE OPENING STATEMENT 26 / PREPARING AND PRESENTING THE CASE 32 / CROSS EXAMINATION 42 / CLOSING ARGUMENT INTRODUCTION irst, let me welcome you to the profession! learned the importance of deconstructing each case A career as a prosecutor can be a rewarding at the end of a trial to find ways to avoid the pitfalls F experience and unlike your civil practice encountered in future trials. I later became the su - brethren, you are actually going to have pervisor of the misdemeanor section of my office, a the opportunity to try cases in front of a judge and a position I held for twenty years. In that time, I always jury on a regular basis. Furthermore, while their cases communicated the following advice to new attorneys. focus on dollars and cents, your cases will focus on You will make mistakes and you will lose trials. That blood, sweat and tears. is expected and while you won’t enjoy losing cases In a perfect world, once you have been hired by a that doesn’t mean that you are not suited for trial prosecutor’s office, you would be eased into this ex - work. It means that the road to becoming a trial at - perience so that over time you could gain confidence torney is not straight or smooth and takes time. and develop a talent for trial work. Your reality, if it You will be facing defense attorneys that have more is anything like mine, is that your training consists of experience and there is nothing you can do about being handed an office directory, the necessary code - that. Over time you will learn that more experience books, and an overwhelming stack of case files. does not always mean better prepared and that the I was in my first jury trial the same week I started passion you have for your job, for your cases, is some - work. I had a partner that had all of six months expe - thing your more experienced opponent lost many rience and though I got to sit second chair for the years ago. Passion, and a sincere, deep-seated belief first trial, that still involved me preparing a witness, that you are advocating for justice, can compensate making an opening statement, cross examining a wit - for the skills you are still developing. ness, and delivering a closing argument. The next In the pages that follow I will share the lessons I week I was lead, and I picked my first jury and went have learned as a trial attorney and as a trial “ob - through the whole process again. I made many mis - server” that, over time, gave me an edge over my op - takes in those first two trials and felt totally unpre - ponents. This monograph is designed to expose you pared and yet we got a guilty verdict on both cases. to different strategies with examples and tips that I That experience taught me two important lessons: have used in my jurisdiction in cases that involve im - First, trial advocacy may be an “art” but you don’t paired driving. By “impaired driving” I mean cases have to be a great “artist” to be rewarded with suc - where the driver’s mental or physical faculties are im - cess. That lesson eased my stress about feeling like I paired due to the introduction of alcohol, drugs, a did not have time to prepare, and that was good be - controlled substance or any combination of those cause over the next thirty years I rarely tried a case substances. For the purpose of this monograph “in - without some sense that there was more I needed to toxication” and “impaired” describe the same crimi - do. The second lesson was that success isn’t about not nal conduct. Be mindful that your jurisdiction may making mistakes but rather about learning to adjust have rules, statutes or case law that prohibit you from and overcome those mistakes. employing some of these techniques. As I continued to try cases, win cases, lose cases, I BASIC TRIAL TECHNIQUES FOR PROSECUTORS IN IMPAIRED DRIVING CASES | 7 PRE-TRIAL PREPARATION successful trial starts long before the venire that motivates the jury to convict. is brought into the courtroom. Prosecutors A prosecutor should try to create a catch phrase A define success as seeking justice in every that captures the theme and try to weave that theme case. If a prosecutor determines a trial is throughout the trial. Advertisements, quotation dic - necessary to seek justice, the prosecutor has deter - tionaries, slogans and proverbs can be helpful. The mined that justice will be served by a conviction in prosecutor should be able to present his theme in a the case. Most cases are resolved without a trial. In few short words or phrases. An easy way to start de - the event there is a trial, preparation is the key to vic - veloping a theme is to say, “This is a case about…” tory. The prosecutor must thoroughly familiarize and finish that phrase with as few words as possible. himself 1 with the evidence, case strengths and weak - nesses, and the law before selecting a jury. Structure The presentation should tell the story in a clear, Theme concise fashion. It may be easiest to present the wit - One of the most important strategy decisions the nesses and evidence in chronological order. A prose - prosecutor makes is selecting a proper theme. The cutor should not be wed to that chronology and theme is the general storyline of the case. A prosecu - should instead be prepared for the possibility that tor should choose a theme that resonates with the av - conflicts in witness scheduling may make that impos - erage person. Whenever possible, choose a theme sible. If the chronology of the story is not going to be smooth, the prosecutor should prepare the jury for that eventuality in the opening statement. Remem - Practice Tip ber, it does not matter to the jury what order the pieces are added to the puzzle so long as they have a Typical impaired driving themes revolve around clear understanding of the final picture. responsibility and consequences like the If some witnesses are not as strong as others, a following examples: prosecutor may want to consider organizing the wit - nesses in such a way that the weak witness is sand - n “On (date) the defendant made some choices. wiched between two stronger witnesses. Whenever Now he must be held accountable for those possible, the prosecutor wants to ensure that he be - choices.” gins and ends strong. n “You drink. You drive. You lose.” n “The defendant didn’t control his drinking, so Evidence he couldn’t control his driving.” A prosecutor should pre-plan the strategy for 1 The use of the term “he,” “him,” or “his,” is used throughout this document for economy and includes all genders. 8 | BASIC TRIAL TECHNIQUES FOR PROSECUTORS IN IMPAIRED DRIVING CASES proving the case and not introduce evidence simply should not call him. because it exists. For example, a prosecutor should The prosecutor should determine how to intro - consider not calling witnesses who do not advance the duce the evidence he wants to present. He should re - theme or argument or whose testimony would dupli - view applicable statutes, available predicate manuals, cate that of other witnesses. The more witnesses a and seek guidance from more senior prosecutors.