Jury Selection

Jury selection is a really process of de-selection or excluding the worst jurors. Six jurors will ultimately decide your fate, and you hope that they are truly fair and impartial. In Georgia, six jurors are used in misdemeanor cases while 12 jurors are used in felony cases. In your DUI trial, you will have three strikes meaning that you could strike three jurors for any reason you want so long as that reason is not based on race, gender or ethnicity.

Before you exercise your peremptory strikes, every juror is subject to a strike for cause if they demonstrate they cannot be fair and impartial. There is no limit on how many jurors can be struck for cause. In high profile cases where the jurors have already been exposed to the case, they may have already made up their mind and that is why there might be a need to question hundreds of jurors for one trial. Luckily, that is not common in a DUI case. Typically, in a DUI case, the strike for cause is used because someone says it is against their religion to drink alcohol so it would be difficult to apply a law that is inconsistent with their beliefs. Another example would be someone who was the victim of a DUI driver when they were younger. They would likely be unable to set aside their emotions and experiences to fairly judge the facts of your case.

The hope is to get rid of the least favorable jurors. For example, those opposed categorically to drinking and those that have been affected by DUI drivers in the past. We want jurors who understand alcohol and drugs affect everyone differently. The prosecution also has three strikes, and they will get rid of their worst jurors which also happen to be your favorite jurors. Still, your best hope would be to find someone that understands that you might be sober after having one or more drinks over a period of time depending on what the drinks are, what you are eating, your tolerance and all other factors that weigh into whether you are affected by the alcohol. You want those jurors who can think critically.

Opening Statements

Opening statements are your first opportunity to tell the jury what the case is really about. You may have planted some seeds about your defense during jury selection, but your opening statement is your chance to really give the jury your theory of the case. You cannot argue over conflicts in the evidence in your opening statement, but you can tell the jury anything that will be stated by a witness. You want to be descriptive. The state will go first and will likely just recite the incident report. You go second and want to provide the rest of the story and use emotions and all five senses to convey your defense. You need to catch the jury’s attention and give them a roadmap, so they know what to look for when the evidence is being presented. After opening statements, the evidence presentation will begin. The state will go first, then the defense will have the opportunity to present their witnesses.

The State Case

The state’s witnesses in a DUI trial usually consist of police officers and GBI toxicologists if there was a blood draw. Sometimes, there will also be civilian witnesses, especially if there was an accident. When the state calls their first witness, the prosecutor will ask a series of questions during what is called direct examination. Once the prosecutor has asked their questions, the defense has an opportunity to cross-examine the witness. Cross-examination is much more pointed than the open-ended questions asked on direct examination. You never want to ask a question if you do not already know the answer. After cross-examination, the state has an opportunity for re-direct to essentially try and clean up any issues raised by the defense during cross-examination. The defense then has an opportunity for re-cross. This process could continue in this pattern but typically is settled after each side has presented their initial questions and asked any follow-up questions.

In preparation for your cross-examination of each witness, you want to have a list of specific points laid out that lead back to your central theory of the case. If a witness does not present any damaging information during direct examination, and there are no points to be made on cross-examination that can advance your theory of the case, then do not ask any questions. Do not fall into a trap of thinking you have to ask questions just for the sake of asking questions. Also, do not dive into long lines of questioning over points that do nothing to advance your overall theory of the case. Cross-examination is purposeful and you want the jury to know that if you are talking, something important is being discussed.

Also, you must know when your point has been made and you need to stop asking questions. It is common to ask, “one question too many.” That means you had made your point, but you got greedy or careless and asked another question that opened the door for the witness to explain away the point you had just made. Keep in mind, you are not going to get the officer to say “I lied” unless you have irrefutable proof on video. Your goal is going to be pointing out inconsistencies, mistakes and exaggerations. You are creating reasonable doubt that you will then hammer home in your closing argument.

The state might have highly trained, educated and experienced witnesses that are qualified as experts in their particular field of expertise. An expert is anyone who has advanced knowledge of a particular issue that a layperson or an average person without any experience or training would not know. So, you could have experts in toxicology, field sobriety, breath testing, accident reconstruction and more in a DUI case. You could also have no experts at all. You will know which category you fall in based on the witness list provided by the state. If you know you have an expert witness to cross-examine, you need to at least understand their field of expertise. Depending on your knowledge in that area of expertise, you can either go toe-to-toe with the expert or just seek to make a point or two which you can then use as reasonable doubt in closing. You could also engage your own expert in that field of expertise and use them to either help you craft better questions for your cross-examination or testify during the defense case to present an alternative opinion to the state’s expert.

The Defense Case

The defense case could be robust or non-existent. Sometimes, it is not necessary to call a bunch of witnesses and sometimes they just do not exist. A defense witness could be an eyewitness, expert or character witness. You also have a constitutional right to testify or to remain silent. The law says that your silence cannot be used against you which means the prosecutor cannot argue any negative inferences from your silence. The jury, however, is still human and may wonder why you did not tell your side of the story. Depending on your defense, you may have gotten your story out through other witnesses, or you may have other issues that you do not want the state to bring up during cross-examination. So, weighing whether to testify is a decision that oftentimes depends on how the case has progressed up until that point. If you made significant progress through your cross-examination of the state’s witnesses, then you may not need to take the risk of testifying. Even better, if you can present a theory of innocence through other witnesses, then that also avoids the risk of you personally testifying.

When preparing for trial, you need to think of any witnesses or documentation you can present that may support your theory of the case. If you intend on testifying, then the state will argue that your testimony is highly biased and self-serving. If we can corroborate your testimony, then we can take the teeth out of that argument before they get the chance to make it. Some helpful examples of defense witnesses may be a witness to say how much you drank and how you appeared when you left. Receipts showing how much you drank are also helpful.

There are also character witnesses just to say that you are a good person. Obviously, they do not know about the facts of the case, because they were not there. Still, they can testify as to how they know you and that you are not known to overindulge and certainly would not get behind the wheel if you were impaired. Character witnesses typically have limited value since they cannot testify as to the events that led up to your arrest, but they can provide some insight into you as person which may factor into the jury’s verdict.

Closing Arguments

After the close of the defense case, both sides get an opportunity for a closing argument. The state gets the opportunity to go first and last resulting in the defense closing being sandwiched between the state’s two closing arguments. The justification for this alignment is that the state bears the burden of proof, so they get the last opportunity to speak to the jury. You must prepare for the state’s final closing argument and try to take the sting out of it by addressing the arguments you expect them to make. You also want to be sure that you are spending most of your time bringing home your theory of the case and highlighting the reasonable doubt. You need to keep an open mind throughout the trial and not become so locked in on your closing argument that you cannot adapt as the evidence is presented. If a witness gives you a golden nugget of information that you were not expecting, then write down the exact quote from the witness and incorporate that into your closing. Always end with a proclamation of innocence and ask the jury to find you not guilty.

Jury Charges

At some point during the case, perhaps after a lunch break or after closing arguments, the judge will have a discussion with the state and the defense regarding the jury charges that will be read to the jury. This is the law that the jury will be applying to the facts presented in your trial. Most of the charges are so common that there is no need to even try to modify them. For example, the judge reads the same exact reasonable doubt charge in every case. It does not change. However, there may be some unique issues in your case that require jury charges, and you will want to propose the most favorable language for that charge as possible. Preparing defense jury charges is important so you have a good understanding of exactly how the judge will instruct the jury. Then, you can loop in that specific language during your closing argument to build credibility with the jury.

Jury Deliberations

Once the evidence is closed and the jury charges have been read, the jury will head to the jury deliberation room to decide your fate. These deliberations are private, confidential discussions so you will remain in the courtroom or walk outside for some fresh air while awaiting any questions from the jury or a verdict. This is honestly the most nerve-racking part of the case. You cannot do anything but wait, and you could be waiting for anywhere from five minutes to five days or longer. Typically, a DUI deliberation will come back within a few hours though. Also, there is plenty of speculation about what it may mean if the jury is taking a long time, but you never know what is holding up the jury. They could be split on any issue, even an issue that ultimately does not matter. So, it is best to try and find something to distract you during this wait instead of driving yourself crazy.

For more information on DUI Law in Georgia, an initial consultation is your next best step. Get the information and legal answers you seek by calling (470) 728-1725 today.

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Carl Chapman
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