Can You Provide A Brief Timeline Of A DWI Trial?
I do so many of them, I take a lot of the stuff for granted but for person who’s never been through it before, the way trial works is this. The burden of proof is always on the state. They have to prove every element of the offense beyond the reasonable doubt. They have to establish the admissibility of a breath test result by standard of proof we call “Clear and Convincing evidence”, which cases have defined as evidence so clear, direct as to cause the finder of fact to come to a conclusion about the matter in issue without hesitation. That’s pretty good language and that’s a pretty high standard. When it comes to proving the elements of the offense, the standard of proof is even higher than that for clear and convincing evidence.
In order to establish these elements, the mechanics of a trial are pretty straightforward. Now, when you start a trial, the prosecutor can give an opening statement and then the defense attorney can give an opening statement. While we see opening statements a lot on TV, in reality on a typical DUI case, they are very truncated. For one thing, you’re not trying your case to a jury, we have to persuade a lot of individuals who are unfamiliar with the issues. You’re pitching your case to a municipal court judge who’s probably heard hundreds, if not thousands, of these cases over the years. So opening statements tend to be very technical and pointed, or more often than not, dispensed with completely. So the state calls its first witness, usually the issuing officer.
That officer gives testimonial, what we call Direct Examination. That’s when the prosecutor as the proponent of the witness is asking questions. Because the police officer is the prosecutor’s witness, our court rules generally require, then if they ask open-ended question to what, where, when, why, how type questions. After that direct examination is done, then I can stand up on behalf of my client and ask cross-examination questions. Cross-examination is a wonderful thing, it’s a lot of fun because you can use leading questions. Leading questions are basically statements. Short statements you want the witness you’re cross-examining to answer by either saying “Yes”, “No”, “I don’t know”, “I don’t remember”, or, “I don’t understand your question”, which unfortunately happens sometimes.
Usually cops will be adhered to those rules most of the times because when they deviate, that’s where it gets fun. A lot of times, the witness may tend to embellish or argue their position. Depending on what comes out of their mouth, those words can be taken and shove right back down their throats. A very common way to cross-examine a cop is by referring him to his report. For my clients, this is a life-altering event, usually a once in a lifetime event. It’s usually something my client will remember for the rest of their lives. But for the arresting officer, this is just another day at work. Maybe they do a dozen, maybe they do a hundred of these in a year. By referring an officer to his report, we can define what that officer considered to be important.
What’s more important isn’t so much what an officer writes in his report but what he doesn’t write in his report because that gives me the canvas on which I can paint a very nice picture for my client and very often neutralize what may look at first flush in a police report as damning observational evidence, some common observations like bloodshot watery eyes, odor of alcoholic beverage on the breath, slurred speech, unsteadiness, those can all be dealt with and neutralized on cross-examination in most cases. The other way the state tries to prove guilt at least in terms of intoxication is with that breath test result. Those things get a little technical. Prosecutors are required to put in certain documents, documents that have certain identifying numbers like serial numbers, dates that sort of thing.
That’s where I have to pay very close attention because if a prosecutor puts in an incorrect document, I have to object in such a way that puts the court on notice that there is a deficiency with regard to what we call Foundation, the pre-requisites for admission without giving the prosecutor a roadmap to convincing my client. Now, people now know me well enough that I object to everything. So if I object, it doesn’t usually raise any red flags. Where it gets interesting is when judges who sometimes act as if they’re prosecutors try to tell the prosecutor what’s wrong and missing in. You have to parry those questions and be very direct and forceful in advocating your client’s position when that comes up. That’s the barebones of what happens at a trial.
Obviously the state rests at a certain point, the defense has an opportunity to put on a case but more often than not, client has a right to remain silent and I’ll generally recommend that my client exercise that right unless there are some unusual fact that I can’t deal with through cross-examination or maybe by hiring what we call an expert witness such as a medical doctor or breath testing technician or a computer evaluator to talk about deficiencies in the case. Unfortunately in New Jersey, there is a political undercurrent that undermines our faith in the way courts are supposed to work where the trier of fact, the judge gives the defendant the benefit of the doubt. Now, that structural problem arises from the fact that the judges get a 3-year term, incidentally prosecutors get a 1-year term.
But they don’t get 10-years. It means that they can be appointed or not re-appointed at the realm of whoever’s running the town at the time of re-appointment. One of the quickest ways for a judge or prosecutor for that matter to not get re-appointed is if people complain. Sometimes the biggest complainers are police officers because they expect to get convictions, the judge is supposed to check that desire and to cast it in the more objective light but unfortunately, this political overlay sometimes undermines on confidence in the system working properly. Nonetheless, he gets paid extra to do a trial. So if you can be pain in the ass without annoying people that can go long way towards getting a better result at the end of the case.
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