CriminalCriminalDriving While Intoxicated

Defending a Driving While Intoxicated Trial DWI Jury Trial

Voir Dire…to tell the truth in voir dire we need to talk about the law. Tell the jurors about the law, tells them about the presumption of innocence, that it is a right afforded everyone in the presumption of innocence alone is enough to equip. I’m sorry! I have a— I have never talked in front of my colleagues before and I’m terrified, I’m scared shitless and I’m scared that I’m going to embarrass my partner, I’m going to embarrass myself and I’m embarrassed I’m ashamed and scared that I’m going to look stupid in front of you all.

Let me ask you all this and I am sorry to use a gimmick and trying to act, I am not a very good actor but you know it isn’t a law but it is a question that I want you to ask yourselves is ‘’was there a difference in how you responded to me’’, you probably have zoned me out and said ‘’shit I’m wasting 30 minutes when I started talking, I was not looking at you all. I was telling you what you should do, was there any difference when I revealed to myself that I was vulnerable. I would hope that even if you didn’t have the urge to stand up and push me aside and say that ‘’I would help you out and I will finish the talk for you’’

I would hope that inside of us may not work because I don’t believe in trying to use a gimmick and fake it but I’m going to talk a little bit about vulnerability today in our presentation today and using that in our void dire.

Some of this is—I’m sorry! Some of this is going to be a little basic. We all know that jury selection is the only time we get to talk to our jury panel and the paper I wrote is titled ‘’DWI void dire’’ and it is all about DWI void dire and as we are presenting this or preparing this presentation, I saw that there is all kind of civil or various stuff in it so I tried to make the talk a little more applicable to all of our fields and I hope it succeeds. When the Jurors are coming in to that quorum that we all know, they are walking in with their own life experiences, their own feelings, their own opinions about everything that they have encountered, everything they believe in their life. They already have an opinion, however small or strong about you and your client before they walk in and they walk in into a criminal courtroom, they know they are walking into a felony courtroom or misdemeanor courtroom or federal courtroom or the coming to the civil case and we cannot change what it is that they have experienced and we cannot change what it is that they believe and feel as they walk in but the one thing that we do have power over is how well we know our case and facts that we need to show them as the trial is progressing and those facts and those issues as that we know, we are going to start to illicit to get out to educate during void dire and there is example of what I’m talking about—about what someone… how does this play though, sorry it’s smarter than I’m, of course it’s not going to work or there we go, the mouse… thank you!

That state or the plain of whose accusing our client of doing as we play guess, do you all think that is what really happened. When we know the facts, this is what we would like them—the juror to be open minded to understand to receive what exactly happened.

And I’ hope that wasn’t too…too out there. My partner originally wanted to video tape it using himself but I said, no!

So that’s what I was talking about, what is the goal of void dire? We need to build the relationship in.

How are we going to build the relationship? How do we connect with people in this case? I don’t know 40-35 people that we probably don’t know. Don’t have very much time to spend talking to them.

How are we going to know what they feel?, what their opinions are about the issues that are in your case and so what our goals is this is to know what they feel and what they believe, to create an included group, in that group in a perfect world our client is going to be the part of their group or our group and that we are going to be their guide and their captain.

So how do we actually do it? and how we build a relationship and this is why maybe I bombed when I started earlier off…we need to create credibility and again I’m going back to what I was talking about earlier, when I was sitting here and reading directly off of a notepad and not looking at you all and telling you all what the law says and talking about just some abstract theory. I would bet—I think it is safe to bet that I was very effective that probably were already zoning me out, were not listening to what I had to say or being willing to receive my message.

So to build credibility is what we do in any relationship, whether it is friendship or it is a professional relation, we need to find something that we share and we have in common.

One thing that we all have in common is we all are vulnerable. Our clients are vulnerable, you are vulnerable, I’m vulnerable. We have fears, whether the fear is a personal fear… I really am afraid of speaking or this is my first trial or I’m in a wide jurisdiction, I have a minority client or I have got a white client in minority jurisdiction or the charge itself or the facts. There is the going to be a danger issue or fear that even if people cannot relate to the exact facts, we can relate to the experience.

Again and I know we all lawyers and I am not asking for everyone to show—to answer by showing hands or standup but even as lawyers, how many of us—even before we speak and get up before jurors or before anyone else has that gnawing sensation in our stomach. If someone can—if someone can understand an issue that you are feeling and you are trying to present there, we will have a much better understanding of it. Again, what’s more effective?

To tell someone how to think, if you ever had an argument with somebody, your wife or your husband, girlfriend, business partner, is it easier to tell them that you’re wrong and I’m right. It is unreasonable for you to think the way you do or if we talk to them in a way and show them an example that they can relate to. Is it easier for us to understand a theory—you know like—I am not talking about presumption of innocence, I am going to talk about it in a second, or is it easier to understand it when we can relate to it.

So judge, at least in the trials that I have done reads the law

‘’All persons are presumed to be innocent and no person maybe convicted of an offense unless each element of offense is proved beyond the reasonable doubt. The fact that he has been arrested, confined or indicted for, or otherwise charged with the offense gives rise to no inference of guilt at his trial’’

That sounds good, what does that mean? I don’t know about you all but I can only speak from my personal experience, I can’t tell you that there is not a single trial that the judge does not read that or something to it, probably talks even a little bit more about it. It is a constitutional right, the presumed innocent and once we start talking with the jurors, we realize that it does not sync in, it does not make sense because it is not them that it is applying to.

What I have been using in the last few jury trials and things have been effective and I had a chance to talk to some off the jurors’, I tell them on the criminal cases, my greatest fear is that an innocent person ‘’my client’’ whoever he or she is, is going to be wrongly convicted on my watch, that’s my greatest fair. Later this afternoon someone was talking about Michael Moore, a gentlemen that did 25 years in the prison for a crime, he 100% denied that he didn’t do. How that make us feel, any of us if a client that we represented was convicted and we found out later that he was 100% innocent and we failed him. Has anyone in this room, whether it is a legal case or with family or friends, have any of us ever defended someone when we were not good enough and we failed them.

I used that and talk about and ask them, our innocent people wrongly convicted and when I very first time did it in void dire, I was really nervous because I was thinking ‘’Man! no one is going to think this stuff happens, no one wants to believe that innocent people get convicted’’ and I was gladly mistaken that surprisingly a good number of people were vocal and talking about the fact that people get it wrong and where they started from and what I realized is, the reason why they were able to understand it because they have gotten it wrong in their life, either someone got it wrong about them or they got it wrong about somebody else. I talk about obviously the news and I use Michael Moore and I really was interested in that CLE, I talk about the number of people that I have spent time in prison incarcerated, at least in my records and hopefully if someone has better numbers please tell me so that I can change it. The national registry of our exonerations as of May 1st 2015 when I just last checked, had over 2000 exonerations, 2000 people that had been put in prison and convicted that were 100% innocent and I’m very kind to jump in this.

The reason why that I keep asking about feelings versus opinions is this, is that I am a convert and I do believe that there are two sides to our psychic that we are trying to figure out when we are talking to people, especially in a short period of time. You probably know this from your own experience, when the judge during challenge’s for a cause and the judge says ‘’are your fair and unbiased?’’

How many people say ‘’Yes, I am fair’’. When the judge says ‘’Are you biased and can you be fair regarding this person?’’ and everyone says ‘’Oh yeah, yeah…I can be fair’’ because that is the logical side of their brain saying that ‘’I don’t want to admit this vulnerability, I don’t want to admit that I have this issue’’ but if we talk about feelings and leave those words, those hot points that we know to look for that are the red flags, we can try and to get at what they are really at. If we going to allow the jurors to do their job, we have to empower them, this is my opinion, we have to let them that we trust that they are going to come to the right verdict and we talk about it. In the criminal case what is the juror’s role? That they are the most important person in that court room, the more important than the offense attorneys and prosecutors, the judge sometimes gets mad, they are more important than the judge, their sole purpose at least in the in criminal case is to act as the legal bodyguard for the person sitting to your right for your client. They are the last safe guard before sending an innocent person to prison. We know for the fact that at least 2000 juries have gotten it wrong and those are the ones we know about.

I spent at least personally, probably a third of my talk focusing on the presumption of innocence because after we talk to them, I will ask them and I got this from my brother and from Neal. When you walked in to the court room and you saw us sitting here at defense table, what did you think and they will still say ‘’You know what he was accused off’’ well if you had a vote right now, guilty, not guilty or need more information, sadly even after we spend 10-15 minutes talking about it, talking about their feelings, they will come back and say ‘’I want to hear more’’ because it is that abstract theory, it is not something that they can tangibly grab and so when we empower them, when we take it out of theory at least in my opinion and we put it in their hands and we say ‘’Look, we are not talking about theory, we are talking about Mark LaHood is on trial for a crime and Mark’s life is not in your hands. Can you look in my client and say that ‘’you are not guilty unless the state proves otherwise’’ and can you look at my client and say you are not guilty unless the state proves otherwise’’ and by doing that we are furthering our credibility, furthering our group because know we have included them and more importantly included ourselves and made it real. I put a couple of slides that I actually use in my void dires and I hope you will bear with me and I hope you can take something from it.

So we talk about the presumption of innocence legally and talk about it in the court of public opinion, you know what we deal with in everyday life because that is what the people are walking in largely dealing with in everyday life. Anyone hear or remember the Olympic park bombarding back in 1996? Most of us do or at least heard of it in some shape or form and I include the graphic so we can talk about, Time and Life did an article on Richard Jewell and it said ‘’from courage to cowardice’’ there was a package—that was in a backpack that was laying in the Olympic park in Atlanta Georgia and the security guard did what we would hope a security guard would do when he sees a suspicious package, he clears people out. Unfortunately, it was a bomb and it went off but he saved everyone, he got it out of the way, no one died directly from the explosion. Richard Jewell was hailed as a hero. The news media, the public opinion, the word on the street was that this guy is a hero but the FBI started investigate and suspected, they went through his computers and they found some evidence, whatever that maybe to suspect that he was the one that did it. They even created a syndrome or a title, they called it a hero syndrome or they applied it to him that he is kind of a person that would create a dangerous situation so he can try and act as the hero and get all that praise and applause from it and as we saw on the Time Life magazine, he was 100% convicted and guilty in the court of public opinion, we had our minds made up. We just did a trial couple of weeks ago where we were talking to some of the jurors after a mistrial and one of them was very open and said ‘’you know, when I went home after we were talking. I was watching the news and I realized that when I hear about someone getting arrested, I was thinking they did it’’. That is the court of public opinion. Was Richard Jewell guilty?

He was not. Who was guilty? Eric Rudolph, he was an anti-abortionist, sent out a couple of bombs, that was the first of several. He was a 100% not guilty and here is a common sense question and we know the answer right now. But who has more power and resources? Cameron County, sheriff’s office or Brownsville Police department or any other Police department or the FBI?

It’s a no brainer, the FBI. We have seen the CSI and all those shows. They have federal funding, more people, more technology. They thought he did it. The FBI was wrong.

Again this is the burden of proof chart. I am down to just a couple of minutes so I am going to go through just a little bit. The same logic in my opinion that applies to any of the laws or theories applies to the burden of proof. It is the abstract theory. How do we make it apply to the people that we are talking to, the people that are going to be eventually be in our juries or our future jurors.

As most of us know and all of us know, the reason of suspicion in probable cause is what the state needs to proof to detain us, arrest us or search us and bringing it back to Richard Jewell, I like to ask. On the scale of scintilla which is barely anything to beyond the reasonable. Most people are familiar with the civil case, divorce or a car accident. We all know the standard for that is what? Balancing test right?

Is it more likely that something happened or did it not happened and I would like to ask them this, if we have a scale, if you are the scale or if the cop is the scale and we are coming in to a situation, do you think it is more likely or not, there is enough evidence to say that it is more than 50% likely for an officer to arrest us and people still think ‘’yeah, it is more likely, it is more on the upper end’’ and we tell them ‘’no, unfortunately it is not, it is on the lower end’’ for an officer to arrest us, there isn’t an exact number we can put on it but it is less than a 50/50 chance. It is called probable cause but it is not probable. If that is all that they meet, what must their verdict be, go through not guilty, probable cause. Reasonable and specific object of facts that would lead an officer to rationally infer that the specific person has committed a specific crime, not guilty, preponderance 50/50.

I will ask you all this, (show of hands) how many of us have kids? So about half…

Again one way that we used to take it from theory is to talk about our kids. Clear convincing is a firm belief that the allegations saw the truth that is what the government needs to take our children from us. How much evidence would the government need to take your kids from you? How sure would they have to be? How thorough of an investigation?

These are just some thoughts and ideas that we use when we are trying to talk to the juries about these issues in the case. I got 10 seconds; I got to do a gunk show on me. What I will say is this; the last thing I will talk about is the visuals. I never did a power point until about a year ago. We kept talking to jurors after jurors after jury pulls and the study shows that visual helps people to both remember, visuals for whatever reason help give you instant credibility, they think that it is more legitimate and just as on a personal side, when you are flustered or angry or whatever is going on or something comes up, it just kind of helps you keep you on point. I highly recommend doing a power point of some sort or always having a visual of some sort. Thank you for your attention!

Francisco Hernandez

Author Francisco Hernandez

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