What Happens in a DUI Trial?
Written by Attorney Darren T. KavinokyOpening Statement
Once the jury has been selected, the parties to
the DUI case have an opportunity to make their
opening statements. Since the prosecutor has the
burden of proof, he gets to go first (he is the only
one in the "proving" business; the defendant has no
obligation to prove anything). After the prosecutor
gives an opening statement, the defense lawyer has
the choice of giving his or her opening statement at
that time, or of reserving the defense opening
statement until after the prosecutor has concluded
his case. Generally, the defense lawyer will give
their opening statement right away, so the jury can
have the defense views in mind when they are
listening to the prosecution's case.
For
all of these reasons, and many more, experienced DUI defense attorneys usually
have a few vague, non-committal openings in
their arsenals. The "non-opening" opening is
a very attractive and safe one to make,
reminding jurors of the prosecutor's
obligation to prove each and every element of
the DUI case beyond a reasonable doubt, and
that the evidence will not allow them to
satisfy that obligation.
The judge typically indicates to the jury that what the lawyers say is not evidence, that they are simply forecasting what they expect the evidence to be, and that counsel is not permitted to argue the case at that time. The experienced DUI defense lawyer will seize the opportunity, and argue the hell out of their case.
Experienced DUI defense lawyers are righteously cautious about this very important phase of trial. Often, it is not known exactly how certain aspects of the case will play out; any promises that are made in the opening statement and not delivered upon later in the case will certainly be brought up by the prosecutor. It may not yet be clear whether the defendant will testify. Often, the most compelling evidence will arise only from cross-examination of the arresting officer or prosecution expert, and the details won't be known when the opening is made.