Are you fully prepared for each DWI case you take to trial?
In today’s Episode we strategize about preparing for your DWI trial. Trial readiness starts before your potential client ever calls you on the phone. Get the comprehensive overview of a DWI defense battle plan.
Episode 2 Transcript
#1 Be a Student of DWI Laws and Investigation
Number one happens well before you ever get the client whose case you are looking to win. Number one, learn. Spend time learning DWI law, master DWI concepts. Do this by attending CLEs, doing research online, attending a SFST course.
There are so many ways to educate yourself, but if you don’t know DWI law better than the prosecutor, if you don’t know how an investigation is supposed to go better than the officer knows how to conduct the investigation, you’re already starting off on the wrong foot when you’re doing a cross examination on standardized field sobriety tests, that cannot be done effectively unless you know what the officer has been trained to look for.
It cannot be done effectively unless you know how the officer is supposed to do the investigation. In what steps, what instructions that he’s supposed to give. This student course on standardized field sobriety testing is the overview of an effective cross examination. The student manual that is given to officers during that course becomes your handbook for effective cross-examination. This is how the investigation is supposed to be done. Every deviation should be pointed out. Every indicator of sobriety or every lack of impairment indicator that is not present in your client’s case should be pointed out. And you can only do that if you have spent the time studying this stuff, learning this stuff. And this is not something that can be done in a weekend or in a week. This is ongoing. This is a professionally lifelong endeavor of being a student, but it has to start somewhere and it should start well before you have that first case set for trial. So number one, learn. Number one, be a student.
#2 Practice Before Trial
Number two practice. We always think of the Allen Iverson famous, we’re talking about practice, man. That quote, that always comes to mind when we start talking about practice, but we are talking about practice. You have to practice in order to deliver in the courtroom, you have to practice. There has to be time spent in thinking through your arguments, in thinking through how you’re going to ask cross-examination questions. This is only done through practice. So practice begins with point number one, learning. Practice begins by watching other people in the courtroom, watching other attorneys that are experienced. Take a DWI case to trial. Learn this stuff through experience, so watch other experienced DWI attorneys trying cases. Also do it by yourself. Practice in your office, deliver your closing argument, deliver your argument on your motion to suppress based on what you think the facts that are going to come out in the courtroom will likely be.
Don’t let your argument in the courtroom be the first time that it comes out of your mouth. Spend time practicing, spend time determining how this argument is going to sound and how the argument should be laid out. Spend time writing down your cross examination questions and asking them out loud. Ask them out loud. Do they sound silly? Can you understand them, when you read them out loud? Preparing them on paper is essential, but saying them out loud once you prepare them on paper is important in terms of how the conversation flows. Making sure that you are directing the witness to a particular end and making sure that there is a flow to the cadence and timing of the question. Practice. Do it with other people. I was on the moot court team in law school, went to the Jessup criminal procedure moot court competition, and we spent a ton of time as a moot court team practicing our arguments in a mock court setting. Practicing these things, having mock judges come in and question us.
This was in law school. This was before I fully had committed to doing a criminal defense practice or wanting to concentrate in that particular area of law. This was for a fake client. This was to make people believe the fantasy person I was defending. Why would we not put the same effort into a real client? You’ve got to spend time practicing your argument that you’re going to deliver in the courtroom. And it can only be done live in real time. That’s when you can start to see the mistakes that are going to come up. The way that a judge might think about a particular legal issue.
At our office, we are blessed with having a number of really knowledgeable attorneys that can role play being the judge, being the prosecutor, being a officer on the stand, and so we get to bounce our cases off of one another. We have regular mock trial days where we set aside four hours and review cases that are getting ready to come up for trial in one of our offices, where we get to practice these things.
If you don’t have a kind of mock trial setting, and most of us don’t, I certainly didn’t for a long time in my practice. Ask for a fellow bar member to sit down with you for a few minutes and go over your argument with you. Ask them to go over your cross examination questions. Ask him if he can pretend to be the officer. Ask him if he can pretend to be the judge listening in on your case and really get into that mindset. People are not going to be put off by this by you’re asking them for help. The criminal defense bar is in my experience in North Carolina, extremely willing to help other attorneys, extremely willing to help one another to provide better services to our clients. It’s a really collegial bar. Ask for help. Ask for somebody to sit on your case. So number two, practice.
#3 Review the Discovery
Number three, review the discovery. Review the discovery. Do not let the courtroom be the first time that you get to see a video. Don’t let that be the first time that you watch the dash cam. Don’t let the day that you’re going to trial be the first time that you have the opportunity to look at notes. If you’re a given that in the courtroom on the day of trial, if it is something that needs to be dissected, ask for a continuance. Get the time necessary to use that discovery. Our cases for the most part are won and lost on discovery. Video is either the most helpful thing in my case or the most damning, but it’s black and white. It’s there for everybody to see. It’s not fabricated. It’s not a witness that can be biased. It’s not a witnessed that doesn’t remember things correctly. It tells what happened on a particular day.
It’s an unbiased witness. When you have the video, spend the time reviewing that, look at the video, go through it, watch it with somebody else, read the notes with somebody else. If you do not have video on your case, the officer’s driving while impaired report and the investigative notes are oftentimes the entire case. If it’s in the notes, it’s important and it’s going to come up. And if it’s not in there then it didn’t happen. For all intents and purposes, if it’s not in the notes then it did not happen and that’s how it’s going to come out in terms of evidence in the courtroom. You’re going to ask questions, “You’re trained officer weren’t you to take detailed notes to put everything that was important in this case into a written format and you’re trained how to take those notes and you’re trained what to look for and you didn’t note any of these other things did you?”. If they didn’t note them, it didn’t happen, for all intents and purposes.
So study the notes because that is your case. If you have video, same thing, study that video because that is your case. Get an expert witness to review that with you. A lot of expert witnesses will review the discovery with you for fractional cost, for very cheap. Get an expert witness to review notes with you. Get a colleague to look over the notes with you and say, “Here’s the officer’s report. Do you mind to just take a look at this and tell me what you think about it?”. Don’t be afraid to ask for help. We want to help you, criminal defense attorneys want to help one another. Ask for help. Ask for somebody to review your case with you. Don’t feel like you’re putting somebody else out. So number three, review the discovery.
#4 Conduct an Arrest Site Investigation
Number four, onsite investigation. This may not have to happen in every single case. It depends on circumstances, but certainly for your first few trials and then depending on your particular case, it just may really be eye opening to go to the scene. Doing an onsite investigation can be extremely helpful in preparing your case for trial. You want to know the law better than anybody else in the courtroom. You want to know the facts better than the investigating officer. You want to know the location that the arrest occurred better than anybody else knows it. You want to know what the intox room looks like, what the jail looks like. It’s important to visually take in these items.
Your client may tell you that there is a slope that was at the location of the arrest, but if you haven’t seen it with your own eyes, it’s going to be difficult to effectively cross examine on that. If there’s an indication of weaving and you haven’t driven the road. If you go down that road, you might find that this is a highly curvy country road, narrow lanes. It’s important to know that when you start asking questions in your cross examination that show that you have visited the scene, it gives you more credibility with the judge or jury. That just is a fact. If you talk to the officer and say, “Now from the intersection of Market Street and College to the intersection of Broadway and Joan Street, it’s about 1.3 miles. Is that fair to say?”. That shows that you’ve done research.
If you start to identify some of the landmarks along that path and get the officer’s saying, “Yeah, you’re going to pass by McDonald’s on your left”. That shows that you know exactly where this happened. The more detailed you get with those type of locational questions, it shows the judge, I know this space. I know what this looks like, and having that high level of knowledge really gets the officer off kilter as well. It gets the officer off kilter because it starts to show that you are the master of the law. You’re the master of the facts. You are the master of the investigation in terms of how it played out in the courtroom.
So doing that onsite investigation again for your first few cases is important. And depending on the issues that you see coming out in your case also can be very helpful, especially if you have no idea what the location of the stop looks like. If the individual is telling you about a parking lot that you are passing by every day and familiar with, maybe it’s not as important to go out and look at that. But if this is on a road that you’ve never driven on, having a visual of what it looked like at the time is ideal. Visiting the location, at the equivalent time of the arrest is important. If it was dark outside at the time of the arrest, try to go there when it’s dark outside. If it was raining outside and you can go on a day when the weather’s poor, do that. Try to recreate that scene so you can see what was happening on that day through the eyes of your client. So number four, onsite investigation.
#5 Have a Trial Bag
Number five, have a trial bag. Have a trial bag. And what do I mean when I say trial bag? Well, for me, my trial bag is my list of legal memos and relevant cases to a specific legal issue. So I have all kinds of these for driving while impaired cases, I have one on each element of driving while impaired, one on each affirmative defense, on particular legal issues, reasonable suspicion, probable cause, refusals, chemical analysis, all of the relevant statutes, all of the relevant cases. Any memos that you would pass to the court, any prepared argument formats that you’ve made, putting them all into a folder. So I have a folder, a physical folder for each one of these legal issues at the office.
And I have a corresponding folder in my Dropbox account. So they are identical. The physical file that I have in my office that I carry with me into the courtroom is identical to the electronic corresponding folder and Dropbox. That way when I pass cases off to the judge and to the DA in the courtroom, I come back to the office, look in the Dropbox account, and then I print out two more copies or how many copies I passed out in the courtroom. Print those out and put them into the trial folder for the next time. So have one of these on each legal issue.
This is so important in terms of trial preparation because you don’t have to constantly duplicate your research. As new cases come up, you can add them to your trial bag. Add them to your electronic folder, in to your physical folder, but you don’t want to reinvent the wheel every time. You don’t want to forget about a helpful case and be spending 45 minutes finding a case that you found three separate times before, but you’ve just never systematize that. We prepare for trial systematically, not haphazardly. Haphazard preparation leads to failure. Systematize your defense, systematize your trial preparation.
At the end of the day, if you’re not presenting cases to the judge, then you are not giving the judge something to hang their hat on, something to reference. You’re leaving them naked when they’re making a legal decision, cloth them with case law. Don’t make them have to think about this on the spot with no ammunition for deciding in your client’s favor. Where do judges see case law in the courtroom? Well they have a benchbook, so they have their benchbook from the school of government with snippets of law, snippets of cases that are in there, explanation of those case materials but that doesn’t include the entire case with the full facts, with the full legal analysis that went on in that case. They also get case law from the DA’s yellow trial notebook, DWI trial notebook that is sitting on the prosecutor’s desk that the prosecutor flips through, has their tabs in. Flips through to probable cause reads these three cases that are identified in that section with the snippet of the facts and the snippet of the law and that’s it.
No passing up of the cases, many times, to the judge by the state. Just using that trial notebook. Pass case law to the judges and do it every time. If you argue probable cause in front of the same judge, 15 times, hand the case up every single argument to the judge unless the judge tells you to stop. Unless the judge says, “I’ve seen that case, I know what you’re referencing”. Don’t assume that the judge remembers the case. Think about a case that you argued five months ago. Do you remember every single fact of every legal decision that you read in preparing for that? No. Judges are doing all types of different cases. They’re hearing all types of different arguments, decisions.
Unless a judge has a photographic memory, they are not going to remember a case that you presented a week ago. They’re just not going to remember it. Make sure that you are presenting the judge with the ammunition that they need to decide in your client’s favor. Use cases to educate and teach your judge. Use the cases. Do it every time. Make it a habit every time to pass that up to show the court what their decision can be based on.
So number five, having a trial bag. So hope these tips in preparing your DWI case for trial were helpful. And I look forward to talking to you again next time.