In the Chatham County courthouse in Savannah, Georgia for a DUI trial I looked at my potential jurors and then to Kat and back to the jurors and began.

In a minute I am going to ask you if you think Kat is probably guilty of DUI.

Some of you are afraid that you will give the wrong answer. Some of you think that he represents Kat. He does not want to hear that many of us think Kat is guilty. I know people are supposed to be innocent unless proven guilty. Even though I think it is likely that Kat is guilty, I probably better not raise my hand. Is there anyone here who is not having those kind of thoughts?

It’s OK to tell me if you think Kat is guilty. It’s normal. When we see a girl led away in handcuffs on the news, our first thought is not “I bet that girl is innocent.”

The only wrong answer you can give is an answer that is not true. Even white lies are not allowed in court. Now something you say may mean that you are not the right person to be on this jury. That does not mean you gave a bad answer. It probably means you gave a good, truthful answer.

When you hear about some celebrity being arrested for drunk driving, is there anyone here whose first thought is, “I bet that person is innocent.”

So…how many of you think Kat is probably guilty?

How many of you think Kat should get a fair trial?

You see the problem? Just because a police officer has arrested Kat, we think she is guilty. How can Kat get a fair trial if the jury starts out thinking she is guilty?

In America, our founding fathers were pretty smart people. Here is the answer they came up with to fix this problem.

• Juries must start out biased in favor of the accused citizen. they have to treat the citizen accused as innocent unless she is proven guilty.
• Juries cannot assume guilt in any way. The government has the burden to prove its case.
• The proof must be so strong that a reasonable person cannot doubt it.
• The citizen accused does not have to testify.

Some of you may think this sounds too technical. You may think, I am just going to use my common sense rather than follow these legal technicalities. Think about what that means. Common sense tells us that Kat is guilty from the start. Think of the celebrity being taken off in handcuffs. If you just go with common sense and do not require proof you are really saying that I am going to assume Kat is guilty rather than follow the law. We all agreed that this is not fair.

Presumption of Innocence

Earlier you told the District Attorney that you would be fair to both sides. Did you mean that you would treat both sides equal and not prefer one side to the other?

When we someone on the news being led away in handcuffs, or hear of the celebrity arrested for drunk driving, we don’t think: There goes an  innocent person. Common sense tells us that person is probably guilty. We think that most people arrested for drunk driving are probably guilty. Does anyone disagree?

Matching Kat against the State of Georgia is not a fair fight from the start.

• The government can afford to pay lawyers to fight as long as it takes. They can make sure their lawyers are well trained for prosecuting DUI’s.
• If they need an investigator to help prepare the DUI case or testify, they can afford it.
• If they need to talk to a DUI expert, they have the money.
• They can afford DUI tests and machines that Kat doesn’t have access to.
• They can double-team Kat with DUI police officers if they want to. They can put two police officers on the case so that it is two against one for prosecution testimony versus the defense.
• They can double team the lawyer with lawyers if they want.
• They can afford to go to the legislature to lobby and have the DUI laws changed in their favor.

Who is stronger here? Kat? Or Georgia? Is it even a close contest? Does anyone think it is a fair fight?

From the minute someone is charged with DUI, common sense tells us that the person has a motive to lie. If the person says something that makes them sound not guilty, we are suspicious that she is making it up to get off. Does anybody disagree?

So we all agree that someone who has been charged with DUI has a motive to lie. On the other hand, the DUI police officer that arrested her normally does not have a motive to lie. Anybody disagree?

So, if Kat denies her guilt or tries to explain, we are going to be suspicious of her but not of the DUI cop who testifies against her. Anyone disagree?

So we start out thinking Kat is guilty and we do not believe her when she says she is not. How can anyone get a fair trial when we start out like that? Do you have any ideas?

Now in our everyday lives we think that if we were accused of something we did not do, we would just explain and people would believe us because we are honest people. Right?

What if you had to explain this to strangers in Savannah who do not know you and do not know you are honest?

Do you think the strangers would be suspicious of you because you would have a motive to lie?

Even if you brought in your friends to tell the jury that you are an honest person, they will be suspicious of your friends because they will think that they may be shading their testimony to help a friend. Even if you are honest, do you think a group of strangers will believe it?

So the government double-teams you with police. They double-team you with lawyers. They place you in a position where people are suspicious of anything you say or do and anything your friends say or do. They shove you in a position where most people think you are guilty from the beginning. They have almost unlimited funds and resources to prosecute you, but you have limited funds. Then you are expected to show you are innocent. Even Jesus did not do well when he was put on trial. My client is not rich. She is not Jesus. What hope is there for Kat to get a fair trial? Do any of you see a way?

Now, Kat does the best she can. But she is not in the same league as the State of Georgia. Matching her against the State of Georgia is truly David vs. Goliath. But, without the slingshot. It is a heavyweight in a boxing match against a twelve year old. That is not a fair fight. The government starts off with overwhelming advantages. Treating both sides the same is no more fair than treating the heavyweight and the twelve year old the same. Do you disagree?

If you go back and just ask yourselves which side is correct, that is not a fair question. The deck is stacked against Kat from the start. To get your vote, you are asking the twelve year old to beat the heavyweight. So what are you going to do?

Smarter people than I realized that treating the State of Georgia the same as Kat did not equal a fair fight. Experience has taught us over the years that if you do not build some protections into the system, you are going to end up convicting innocent people. To protect against this, some safeguards have been built into the law.

The government has given David a slingshot. It still may not be a fair fight, but it is better than before.

You Know the law’s fix. Kat is innocent unless proven guilty. It’s only fair to make it harder for the District Attorney to prove its case. Treating both sides equally in a mismatched contest isn’t fair. The law says you must start out biased in favor of Kat and you cannot change unless you are given the strongest proof known to the law.

Will you take back your answer to the District Attorney?

Will you tell him that you will not treat both sides equally? Will you tell him that you will start out on Kat’s side and that you will not change your mind UNLESS you are given the strongest proof known to the law?

The presumption of innocence is needed if there is to be a fair trial.

 

Secretariat won beyond a reasonable doubt.

In America, before the government can ruin your life, they have the burden of proof.  A girl’s life is on the line in Savannah, Georgia.  The State of Georgia must rule out all reasonable doubts that she is guilty of DUI. You all have heard this before.  The government must disprove all reasonable doubts.

Wouldn’t you agree that a reasonable doubt exists if the DUI breath test is broken? So then, the Chatham County District Attorney must disprove this doubt and prove that their breath test machine was functioning properly.

Isn’t there a reasonable doubt if the District Attorney doesn’t prove to you that Rachael is a good candidate for the DUI field sobriety tests?

Proof beyond a reasonable doubt is the highest level of certainty in the American Justice system.  Has the District Attorney presented proof beyond a reasonable doubt that rules out everything but alcohol as a cause of Rachael’s failure to maintain lane and speeding?

Presumption of Innocence

Rachael is a citizen accused in Savannah, Georgia.  She is fully cloaked with the presumption of innocence. The law says you have to start out biased in favor of the accused. You must start out on Rachael’s side and you cannot change unless you are given the strongest proof known to the law. Rachael starts presumed to win, and she can only lose if the State of Georgia completely disproves all other explanations, using science, no matter what Rachael does.

Imagine this is a football game.  The prosecution in a DUI trial (dressed in orange and blue) starts on its own goal line.  Unless the District Attorney moves the ball all the way up the field, proving each and every thing beyond a reasonable doubt, you must find her not guilty.  You must root for Rachael (dressed in red and black) to be found not guilty.

Proof beyond a reasonable doubt puts the prosecution on the goal line, but the presumption of innocence puts twice the normal number of  red and black defenders on the field.  The Constitution of the United States of America gives every accused these defenders to battle against the State.  Rachael, simply by being accused is given these defenders without her ever having to say a word, present a witness, or doing anything.  These defenders are you.

Levels of Proof

We start with a hunch. It is a guess. In DUI trials a hunch is good for nothing. It can be used for nothing.

Reasonable Suspicion

Would you agree to vote guilty if at the close of the prosecution’s case you were reasonably sure that Rachael was guilty of DUI?

Reasonable suspicion is the amount of evidence a cop needs merely to stop you.

It is reasonable and trustworthy information that a person committed a crime.

For example, a sergeant of over 25 years experience in the same neighborhood sees some people who do not belong there. They are black. But, this isn’t important; they could be white in a black area, or Chinese in a Mexican part of town, whatever. So, the cop watches them. He notices two of them walk up and down the same block and look into the store window. Are they looking for a friend? Waiting on a shopping spouse? He doesn’t know. Instead, he walks up to them and demands they stop.

That’s it. Reasonable suspicion is not even close to the ultimate standard of beyond a reasonable doubt that the prosecutor must produce.

Probable Cause

Would you agree to vote guilty if at the close of the prosecution’s case you were convinced that Rachael probably is guilty of DUI?

This is the amount of evidence a cop needs to arrest you, or to strip-search your wife.

It means that it is more likely than not that a crime has been or is being committed. Not a suspicion, nor a hunch, or even reasonable cause. We need more. We need to know something is up. This is all the cop had the night he arrested Rachael. The law allows him to arrest you if the cop has probable cause. No where near the amount of proof you need today to find Rachael guilty of DUI.

Preponderance

Would you agree to vote guilty if at the close of the prosecution’s case you were convinced it was more likely than not that Rachael is DUI?

Commonly referred to as the tipping of the scales, this is the burden used for someone to take your money in civil law suits.

If you are not prepared to bankrupt your own mother over the facts in this case, then you are not even close to a finding of guilt.

Clear and Convincing

Would you agree to vote guilty if at the close of the prosecution’s case you had clear and convincing evidence that Rachael was a drunk driver?

The government needs this much evidence to take away children from parents or to allow children to decide their parents’ fate late in life.

This level does not have a number attached to it, but it lies between preponderance and beyond a reasonable doubt. No doubt is 100%. Preponderance of evidence is 51%. Reasonable doubt and clear and convincing must fit between these two levels.

Would you want a judge to take your child away from you if he was 75% convinced you were unfit? Would you want your family to be able to commit you to a mental hospital if they convinced a judge 80% of the way? No. You would want the person deciding your fate to be surer than that. You would want them to be clear and convinced, not “pretty sure,” or “reasonably certain.”

Beyond a Reasonable Doubt

Would you agree to vote guilty if at the close of the prosecution’s case you only had a slight doubt that Rachael was guilty of DUI?

If there is any doubt in a criminal case, the verdict is not guilty.

This decision is one you must live with for the rest of your lives. When you put your head on your pillow tonight, you should be able to relax and think back to this moment and smile, because you know you did the right thing.

You’ll never have a peaceful nights rest again if on the evidence presented by the District Attorney you find Rachael guilty of DUI.

Look at the picture of Secretariat again and ask yourself: “Has the government won their case beyond a reasonable doubt?”

The idea  for this blog post came from the best DUI lawyers in the world.  They are part of an organization called the National College for DUI Defense.  Bruce Kapsack, the DUI Lawyer from California and his book Innovative DUI Trial Tools gave me some awesome inspiration for this post. Justin McShane is the DUI lawyer and Scientific guru from Pennsylvania who shared with me the idea to use the photograph of Secretariat.  When he told me about that…well it brought it home for me.  For some more reading about this see Lawrence Taylor’s DUI blog posts: Proof Beyond a Reasonable Doubt, and Breathalyzers: Accurate Beyond a Reasonable Doubt?

 

 

1. Don’t drink and drive if you are impaired.  Don’t drive anything, even golf carts.
2. NEVER admit that you drank any alcohol.
3. Never perform field sobriety tests.
4. Never blow into a portable breath test device.
5. Be quiet.  Don’t blurt out anything to the cop to try and explain yourself because it will be used against you in court.
6. Have your license and other documents in hand and offer these to the cop.
7. Never sit behind the wheel if you are drunk.  Don’t even sit in the front seat of a car if you are intoxicated.
8. Blend in with traffic because this makes it harder for the police to detect you than if you are the lone driver.
9. Don’t be a good Samaritan on the way home because random acts of kindness bring the police around a lot.
10. Stay in your car unless told to get out by the cop.
11. Sleep in the back seat if you must.  Turn off the ignition and put the keys in your pocket.  Make sure the car is off the highway.
12. Breath tests can be wrong when you have recently been around volatile fumes, like lacquer, paint, gasoline, or dry cleaning fluids. Always get a second independent test.
13. Use the driver’s rights cards because it speaks for you to the Savannah Police.
14. Eat well.
15. Don’t argue with the officer. Give him your documents and say nothing except to respond to his questions.
16. If you are in an accident, after having drank, don’t talk to anyone at the scene about anything. Never take any field sobriety tests. If anyone was hurt or killed, refuse all tests.
17. Try to record the conversations between you and the cops because the officer’s missing or defective warnings can cause test results to be excluded from evidence.
18. Find a skilled DUI attorney who knows the ropes. You want a DUI trial specialist because he can beat the DUI or he can probably work you a better plea deal.