Michigan Drunk Driving Defense Book
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CHAPTER NINE
JURY SELECTION AND OPENING STATEMENT/CLOSING ARGUMENT
9.0 Purpose of voir dire - ostensibly at least, the purpose of voir dire is to discover grounds for challenges for cause and of gaining knowledge to facilitate an intelligent exercise of peremptory challenges pursuant to MCR 6.412. There is of course a secondary purpose, and this is to communicate your theory of the case to the jury. This secondary goal is crucial to the success of the drunk driving trial. Consequently, the practitioner should craft voir dire questions that will both uncover juror bias, but also communicate to the jury the defense attorney’s role, the prosecutor’s role, and the prosecutor’s burden of proof. What the law does and perhaps more importantly, does not say, should also be communicate to the jury during voir dire, and the defense attorney should endeavor to communicate the perceived limitations in the evidence to be presented to them by the prosecutor. Voir dire questions should almost never capable of being answered with single work. Instead, the goal should be to get jurors to talk, to open up and express themselves.
9.1 Obtaining a pro-defense jury - The jury selection process is really a process of de-selection. In the single defendant misdemeanor case the defendant will have only three peremptory challenges, and with the single defendant felony case, only five. Thus, squandering them is the surest way to lose the case. Voir dire requires a type of preparation and skill that is different from those exercised at any other time in the case. However, doing it well is as critical as anything else the lawyer will do for his or her client. While it may be said that a case has never been won during jury voir dire, it is probably true that many cases have been lost during voir dire.
9.1.1 Crafting questions to reveal inherent attitudes and biases of prospective jurors - jurors come to court with any number of biases, and this is particularly true of the drunk driving case. Lawyers can probably do nothing to change these attitudes, so it is important to try to learn of them during the voir dire process. For example, it is always surprising to learn how many perspective jurors seem to believe that the simple act of drinking alcohol and driving is unlawful. Thus, the practitioner should endeavor to craft voir dire questions that will bring out the prospective jurors attitudes toward alcohol, and perhaps more specifically, to the act of drinking and driving. It is also useful to craft questions that address the prospective juror’s opinions about the right to counsel and the right to present a defense. Thus, a juror might be asked if they have ever been wrongly accused of something, or more specifically, what they would do if they were. Jurors should also be questioned about their attitudes toward a criminal defendant who does not take the stand in his or her behalf.
9.1.2 Looking at demographics and physical characteristics, including life experiences - perhaps the juror is a non-drinker, an alcoholic, or comes from an abusive family where alcohol was the culprit. Perhaps the juror has been affected adversely in some other way by alcohol. Unless the defense attorney learns of these life experiences, he or she can never excuse them, either peremptorily or for cause. While you can’t come right out and ask how a juror will vote (this would be an impermissible commitment question), well crafted voir dire questions ought to revel how a juror is likely to vote. Perhaps the most important goal of voir dire is toe gather information about what life experiences the jurors have had, and then to determine how these experiences might effect their view of the specific facts of the case.
Demographics and physical characteristics are also important to learn, but are probably less reliable than specific life experiences in determining how a juror might vote. Still, they are useful, and might otherwise serve as a starting point for further questioning. For example, learning someone’s occupation will help you to understand a great deal about someone without knowing anything more. But the process of voir dire is precisely to do just that, learn more. If a juror is a social worker, it be helpful to know what specialized training he or she has had, and whether or not they have any specialized knowledge relative to drugs and alcohol. Simply assuming that a social worker is liberal, and therefore will make a good defense juror, is insufficient.
9.1.3 Identifying leaders - again, the first step here is to look at the juror’s occupation. Certain occupations are either leadership positions or require leadership skills. Such occupations might include business owners, or business executives. If a juror is suspected of being a leader, it may be helpful to learn more about their day to day activities, and how many persons they supervise. Even if the person is not a leader in the strictest sense, they still might become a leader if they have specialized knowledge of the offense, as with the social worker who conducts group therapy for alcoholics, or the several time drunk driving defendant. People with a great deal of charisma, or who are particularly well spoken might also end up leading jury deliberations. The same is true of celebrities, or persons hoping to become celebrities. Thus, it might be helpful to know what a persons spare time activities are. It is also helpful to come right out and ask the simple question, i.e., whether or not the juror views him or herself as a leader. Identification of leaders is important because these jurors will exert an inordinate amount of influence over the deliberations and eventual verdict.
9.1.4 Getting assurances from the jurors - certain types of commitment questions are not allowed, and even when they are, such questions should be asked with great deftness. Jurors are likely to be offended if you ask them to commit to a verdict before they have heard the evidence. While it may seem innocent enough to ask “Mr. Jones, if the prosecutor fails to prove to you that my client was intoxicated, will you agree to find him not guilty”, the question can later alienate this juror when they find out how strong the prosecutor’s evidence seems to be. In this case, the defense attorney will have lost significant credibility.
9.1.5 How to conduct yourself during the voir dire process - the guiding principle here must be to sufficiently ingratiate yourself with the jury that the no longer associate you with the crime your client is alleged to have committed, maybe even to the point where your professionalism and affably reflect positively on your client. Self effacement or deprecation often works to immediately break the tension, and show you in a more personal light. It is helpful to sincerely welcome them to the court room, and to express how important you believe they are. Take charge of the court room. Don’t swagger, but do convey a presence of mind that shows you are in command. Introduce yourself and your client to the jury, and anyone else in the court room who has not been introduced. Make the jurors feel as if you are their host. Because the act of being publicly asked personal questions is inherently an uncomfortable process, the practitioner must seek ways to make the jurors feel relaxed and more at ease. It is critical that you convey to the jury how important they are to you, and how much you and your client appreciate their being part of the process.
9.2 Opening statement - to influence what you want the jurors to do. This is the second opportunity to persuade the jury, and this opportunity should be used to first educate the jury as to the burden or proof and how it applies to your client’s case. The opening statement should be based on what you believe the evidence will show, and should not include any form of argument. All of this should be presented in the form of a story, and include a beginning, a middle, and an end.. You should think in terms of using the opening statement to tell your client’s story. To do so, you first decide what your client’s case (his or her story) is about, and what you want the jurors to think and do about it. Obviously, this should be part of a bigger picture, which is what your defense is, and then cultivating the story so that it tacitly expresses this defense.. To the extent possible, the opening statement should be used to attempt to seize the moral high ground.
9.3 Closing argument - now is the time to explain to the jury, in form of an argument, why they should, or even must, return a verdict of not guilty. This is also the time to reiterate what a reasonable doubt is. Whenever possible, closing arguments should be made in the language of the jury instructions. This helps to establish credibility with the jury because it helps put you on par with the person who has the most creditably with every jury, that is of course the Judge.
How the argument is formulated will depend on what your defense is, and how well this defense was expressed by the testimony. The best closing arguments are the “see I told you so” variety. While these words ought never be uttered, the essential meaning should be expressed, because what you’re essentially doing is conveying to the jury that you were honest with them during the opening statements, and therefore, that you are credible. These arguments should be catered as much as possible to the individual juror. For example, for the undecided juror the goal should be to make them understand why they should return a not guilty verdict based on the evidence or lack of evidence. For the adverse juror the goal is to make them at least keep an open mind, and to understand the plausibility of your arguments, and with the favorable juror the goal of closing argument is to ensure that they won’t back down during deliberations, even if the going gets tough.
During closing arguments, the central theme of the case should be continually underlined without being repetitive. The defense attorney should endeavor to reduce this theme to as few words as possible. Consider the brilliant “if it doesn’t fit, you must acquit”. It is important to express emotions during closing, but don’t yell at the jurors. Don’t fight every battle, and wherever possible turn the prosecutor’s position or arguments to your own use. On the other hand, never engage in battles that can only hurt you. Don’t draw conclusions for the jury as if they are irrefutable, because this only serves to belittle the jury. Always use plain language and avoid legalese.
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