CHAPTER
5: TRIAL PREPARATION-STRATEGY AND TACTICS
5.1
FACTUAL INQUIRY
5.101
In General.
Prior to trial, counsel should obtain all relevant information
relating to the case, which is discoverable either through
normal discovery procedures
[1]
2
SEE Discovery Forms, Appendix ------ or http//.www.courts.state.va.us/
or
through witnesses and/or documents
5.102
From the Client.
At the initial consultation, counsel should obtain from
the client a copy of the warrant or summons for each charge.
Besides the warrants for the principal offenses, these
could also include summons for infractions or copies of
any other documents that the client received at the time
of arrest such as a certificate of refusal or certificate
of analysis for either of the breath test or blood test,
whichever is applicable. If the blood test was administered,
the client should discuss submitting a second blood sample
to an independent lab for analysis.
[2]
A copy of the client's traffic record from DMV is readily
obtainable by the client from the local DMV office or
through the internet.
[3]
A
thorough interview of the client should be conducted at
the first meeting and a list of possible witnesses and
their contact information obtained.
[4]
It is equally important to obtain copies of the prior
convictions to check under what code section the client
had been convicted. If within Virginia, one must look
to see if the conviction was under a valid county ordinance
or one that was improperly adopted. If in federal court
was it an assimilated conviction under Virginia Code Section
18.2-266 or under a CFR. Likewise, is it a conviction
from out of state where the law may not have been substantially
similar to the Virginia law at the time of conviction.
If an invalid county code section was the source of the
conviction, or if it were a CFR, or pursuant to another
state's law that was not substantially similar to Virginia
law at the same time; counsel should be prepared to argue
that the prior conviction cannot be used to enhance punishment
to the accused. See Shinault v. Commonwealth,
228 Va. 269, 321 S.E. 2d 652 (1984).
5.2
DISCOVERY
5.201
In General.
Typically, it is preferable for counsel to file for discovery
after the initial client interview has been conducted.
The benefit of filing discovery is two-fold: first,
if the client has a poor memory, discovery can allow counsel
to obtain facts which he has been unable to provide, and,
secondly, if the commonwealth does not answer the request,
a continuance would be granted. Additionally, the court
should disallow statements as evidence where the commonwealth
has disregarded or simply elected not to answer a motion
for discovery. At the very least, the request can initially
put the commonwealth in a defensive posture which can
aid in the negotiating process.
There
are, however, circumstances when filing for discovery
may not be advisable. For instance, one's client could
have been very recently been convicted of a DUI so that
the new conviction may not have appeared on the DMV record
obtained by the arresting officer. In this instance, the
client could be potentially disadvantaged by causing a
commonwealth's attorney to run a second DMV record check
a month later in order to answer the discovery request.
The commonwealth discovers the prior conviction, and you
have unwittingly caused your client to get an enhanced
charge. There are other situations where a discovery request
is likely to emphasize a problem with the case. <L.Ed:
Footnote to LEO 1731 with a brief comment? I dont
think that counsel or the client have a duty to advise
the court of the prior conviction unless a direct
question is asked about it.> This
type of factual determination must be made based on the
information the client provides.
Sometimes the best source of discovery is to return to
"the scene of the crime." It is amazing what a video or
photograph can demonstrate or a check into jurisdictional
lines can disclose. A tour of the driving area (perhaps
filming a video) may be persuasive on the stop issue or
the performance on the field sobriety tests (FSTs).
Counsel recently was able to negotiate a reduction on
a high breath alcohol case based on a photo of the sign
posted in a neighborhood that the roadway was private
and open only to property owners and guests. This information
was used to challenge the implied consent law's application.
5.202
General District Court.
The scope of discovery in misdemeanor cases is limited.
In general district court, formal discovery is restricted
to requests for the defendant's statements to law enforcement
personnel and to the defendant's criminal record.
[5]
Oftentimes, the commonwealth attorney will also provide
the defendant's traffic record pursuant to a discovery
request. Some commonwealths
attorneys
offices maintain an open file
policy without formal discovery, and counsel is allowed
to inspect the file. It is important to become familiar
with local practice. Alternative methods of obtaining
this information should be explored in those circumstances
where the request may highlight something unfavorable
about the case.
5.203
Circuit Court.
Prior to 2004, there was no provision for formal discovery
on the appeal of a misdemeanor to circuit court. An amendment
to Section 19.2-265.4 of the Virginia Code now provides
that Rule 7C:5 of the Supreme Court of Virginia also controls
in a trial de novo of a misdemeanor charge, allowing counsel
to obtain defendants
statements to law enforcement and also the defendants criminal record.
5.204
Certificate of Analysis.
Counsel should always send to the clerk's office of the
Court where the case is being tried, a request for a copy
of certificate of analysis. Once the request is made,
Section 19.2-187 of the Code of Virginia requires the
clerk or the commonwealth to provide the certificate of
analysis at least 7 days prior to trial if requested at
least 10 days prior to trial by the defendant or his attorney.
If the certificate is not provided within that timeframe,
the certificate will not be admissible at trial.
[6]
The certificate is also inadmissible if it is not filed
with the court by the commonwealth at least 7 days before
trial. Although clerk's offices generally comply with
the request, counsel is occasionally fortunate enough
to be the beneficiary of an oversight allowing the argument
to be made for inadmissibility. See Basfield v. Commonwealth,
11 Va. App. 122, 398 S.E. 2d 80 (1990); Bottoms v.
Commonwealth, 20 Va. App. 466, 457 S.E. 2d 796 (1996).
5.205
Certificate of Refusal.
Likewise, if the client has been charged with refusal
to submit to the breath test, counsel should obtain a
copy of the certificate of refusal from the court's file.
The statute requires that the executed certificate of
refusal be attached to the warrant or summons charging
this offense when this is submitted to the court.
[7]
5.206
Division of Forensic Science.
[8]
If there is a certificate of analysis involving a breath
or blood test, counsel should contact the Division of
Forensic Science and obtain specific information with
regard to the specifics of the testing and operation of
the Intoxylyzer.
[9]
Information obtained from the Division can be critical
in obtaining an acquittal or in negotiating a favorable
settlement.
5.207
Review of Documents.
After obtaining the documents cited above, counsel should
review each of them very carefully for errors or facial
inconsistencies.
A.
Warrants.
In reviewing warrants, search for incorrect dates, misspellings
of names and incorrect data or wording. Courts interpret
misnomer and the like differently, however, counsel may
obtain a dismissal because of an incorrect date. It is,
at a minimum, one more argument available in the client's
case.
B.
Certificate of Analysis.
In reviewing the certificate of analysis, counsel should
also look for mistakes. In the recent past, your author
has observed the following mistakes on the certificate
of analysis:
1.
In a DUI 3rd, the test operator had not signed or dated
the Certificate of Analysis;
2.
In another case, the officer's name was listed as
HQKIMB, needless to say this was not even close.
There
are many instances where mistakes are made on the face
of these documents. Even minor mistakes can help
in successfully negotiating a better outcome in borderline
cases. Major mistakes on the warrant or certificates
can lead to a dismissal. Caveat: there is no such
thing as "substantial compliance" with a mandatory provision.
See Wendel v. Commonwealth, 12 Va. App. 958, 407
S.E.2d 690 (1991), Cf. Va. Code Section 18.2-268.11.
C. Certificate
of Refusal. Like the certificate of analysis,
the certificate of refusal should also be reviewed for
typographical mistakes or the like.
[10]
In a refusal case, if the stop upheld, and the arrest
is made pursuant to probable cause, then oftentimes, mistakes
on the certificate or having the certificate found inadmissible
is a last line of defense. For the certificate to be admitted
it must be reviewed before a magistrate and signed by
the defendant or certified by the magistrate that the
defendant refused to sign the certificate of refusal.
Special rules govern its admissibility if the defendant
is at a medical facility. The form must be signed by a
witness other than a law enforcement officer at a medical
facility. See Va. Code section 18.2-268.3(A).
5.3
WITNESSES
5.301
Pretrial Interviews.
Pretrial interviews of all fact witnesses, including the
police officers involved in the case, should be conducted
well in advance of the trial date. The single most important
part of conducting an interview is to place the person
at ease. Gathering information conversationally and letting
the person tell their recollection of the events is also
recommended because asking a preestablished set of questions
without deviation may keep the witness from revealing
some important aspect of the events. Counsel cannot appear
to be uninformed enough during an interview. Valuable
information can be gathered just by listening, and it
is important at this stage to learn the facts as the witness
recalls them. Witness interviews are the building blocks
of a successful defense. Counsel should make careful notes
either during the interview or immediately thereafter.
5.302
Defendant/Client.
The client is generally the first person interviewed,
and he or she should be able to provide at least a brief
understanding of the facts. Counsel should find out why
the client initially came into contact with law enforcement,
the time of the stop, the conditions of the road, the
lighting, the questions asked by the officer and the answers
given, and the relative condition of the defendant. The
client should also relate whether or not a field alcosensor
was offered or taken and whether the client was asked
to perform any field sobriety tests along with the details
and order in which the tests were done. Important points
to investigate include the specificity of the instructions
given for each test and whether the instructions were
demonstrated by the officer. Ask the client about the
field conditions: distracting noises, lights or other
factors which may have prevented the client from understanding
or adequately performing the tests. If the client did
poorly on a particular field test, counsel should explore
whether there were any extenuating circumstances that
account for the failure to perform. These include a client
with a medical condition or taking medication, the type
of shoes the client was wearing, whether the client had
had enough sleep, or any other factor that may influence
performance.
The
interview should focus on every conceivable detail from
the time law enforcement first encounters your client
until your client has no further contact with law enforcement.
The details are extremely important because they will
later provide the information needed to recognize and
assert vital defenses. Facts that support the assertion
that there was a lack of reasonable suspicion for the
stop or probable cause for the arrest are critical issues
which can win and lose cases. At a minimum, these types
of facts can place your client in a stronger bargaining
position. By conducting a thorough interview, counsel
may also recognize circumstances specific to the client,
for example a speech impediment, that readily explain
an allegation of slurred speech. The possibilities are
endless, and the more complete the interview the better
the chances for success. This interview process also allows
counsel to begin to judge how the client is likely to
perform as a witness, a point which becomes extremely
important as counsel evaluates the case at a later time.
A comprehensive client interview sheet is helpful in recording
the details surrounding the event and ensuring that all
facts are elicited, but this tool should not prevent counsel
from making inquiries specific to the facts of each case.
[11]
In
gathering information it is important that counsel explore
all potentially relevant health issues e.g. acid reflux,
gerd disease, problems with any of the gastrointestinal
organs of the client. Any special diets (Atkins),
problems with the muscular or skeletal parts of the body,
medications being taken, injuries received in an accident,
air bag deployment, fever or other bodily ailments at
the time of the arrest, etc. The purpose of this
chapter is to provide insight for contesting a DUI and
not an exhaustive explanation on the multiple scientific
issue that may exist.
The
more problematic representation is the client who was
truly impaired. A gathering of facts is made much more
difficult by a client who has absolutely no recall of
the events. In that circumstance, counsel becomes dependent
upon the police officer's factual determination and that
of other passengers or observers at the scene or who saw
the client in close proximity to the time of the stop.
5.303
Other Lay Witnesses.
Counsel should attempt to interview all lay witnesses
as soon as practicable. It is best to gather information
as close to the event as possible when the facts are still
fresh in the minds of the witnesses, and counsel will
have the best opportunity to get a clear picture as what
to expect at trial. Additionally, the interview process
may help to gauge other issues concerning the witness
and his or her demeanor. For example, counsel may have
a witness who is angry at the defendant for some reason.
The contact counsel has with that witness in the interview
may be the only opportunity to ameliorate this and to
try to put a human face on the client. If nothing else,
by finding out in advance how hostile the witness is likely
to be, counsel may have the tactical ability to avoid
the witness
appearance by stipulating to the testimony.
As
an example, the author was once able to avoid adverse
testimony from an individual who had observed the accident
and then been urinated on by the defendant after the accident,
simply by agreeing to stipulate to her representation
as to the time that the accident occurred. This
was the only fact that the commonwealth required from
the witness, and the admission of the time of the accident
was immaterial to the defense. The appearance of
this witness at trial would have allowed the commonwealth
to present the peripheral facts that could potentially
have prejudiced the decision in that case. Neither
the prosecutor nor the police officer had ever bothered
interviewing this angry witness in any detail. The DUI
was eventually negotiated to a reckless driving.
Conversely,
an offer to stipulate to the hostile witness
testimony may help the client by reducing the antagonism
that the witness feels, even if the stipulation ultimately
cannot be arranged with the commonwealth. The witness
responds to counsels consideration of their time, and this may carry over
to the level of distress that their testimony will convey.
5.304
Police Witnesses.
Develop good relationships with the police officers
in all cases. Counsel should be mindful of the nature
of that job and treat the police witness with courtesy.
Police officers are screamed and cursed at by arrestees,
watched hawkishly by their sergeants, and yet are expected
to act professionally and courteously at all times. Most
officers truly believe that their job is to protect and
serve the public. Although the relationship is necessarily
adversarial in the courtroom, there is no reason to carry
this confrontational style to dealings outside of trial.
A
review of the Uniform Summons will help counsel to better
understand the commonwealths
side of any traffic case. Officers also tend to analyze
issues in a very rigid style, where every issue fits into
a box. Counsel should study all of the forms that an officer
must fill out when making a DUI arrest. In that way, counsel
can better understand what should be included in an officer's
testimony for a given charge. Many factors can play into
a traffic stop and arrest, and the arresting officer may
not complete all of the boxes. These empty boxes can become
crucial in building a defense. This author discovered that
an officer had neglected to write down the Field Alcosensor
test result in a DUI 3rd case. The defendant was able to
perform competently on the other field tests by the time
of his third arrest and, in this case, said his ABC's correctly
and managed the 9- steps-and- turn with no difficulty. Without
a note to confirm it, the officer was unable to testify
from memory that the field Alcosensor test result had been
above the legal limit, although he did state that the test
was offered. The court in that case ruled there was insufficient
probable cause for the arrest and dismissed the case. Empty
boxes matter.
Officers
will share their field notes and impressions, but only if
counsel can be trusted. Relationships are built over time
with courtesy to the police and a strict honorable disposition.
If counsel violates the relationship of trust even once,
then it is over not just with the officer who is directly
affected but with all of the police officers in that jurisdiction.
While it should go without saying, many fine and talented
attorneys have failed at this most important aspect of practice,
so it bears repeating: be honest and straightforward, do
not bend the rules or stretch the truth in any dealings
with law enforcement. Typically, if counsel is courteous,
deferential, respectful and friendly, then a good relationship
will develop in which officers are willing to provide all
the information that could ever be desired about the case.
Care should be taken not to divulge information about the
defense or the client that is not commonly available from
the officers own experience in the case.
Counsel
is also familiar with the other type of officer or jurisdiction
that dictates different tactics: i.e. no real discussion
take place, and trials are the norm rather than legitimate
discussions. Counsel must be prepared under both circumstances
and know the idiosyncracies of how to approach each case.
In
order to be prepared to cross-examine police officers on
the field sobriety tests it is recommended that one obtain
the DWI Detection and Standardized Field Sobriety Testing
Student Manual, published by the U.S. Department of
Transportation, National Highway Traffic Safety Administration
[12]
,
as well as the Department of Criminal Justice Services,
Division of Forensic Science, Breath Alcohol Section, Breath
Test Operator Instructional Manual.
[13]
In order to cross-examine the police officer on the field
sobriety tests that were performed it is needed for counsel
to be familiar with the rules and regulations established
by the National Highway Traffic Highway Safety Administration
(NHTSA). Most studies indicate that at least 85% of
the instructions given in the field by police officers are
incorrect so it is not hard to understand how a person who
is supposed to perform these agility tasks would do them
incorrectly with such rampant, poor instruction in the field.
Additionally, counsel should be very familiar with the breath
test operator instructional manual as the requirements set
out therein are mandatory in nature and will only be enforced
if counsel is knowledgeable.
There
are many different types of police officers and the way
one cross-examines the officer depends on his or her personality.
The theme towards your client's innocense must be established
before a trial begins and counsel should frame his cross-examination
of all witnesses, including the police officer, towards
that theme. The cross-examination of an officer that
is candid and straight forward must be done with kidd gloves,
giving him or her the opportunity to give answers that will
help the defendant. An officer that is obviously angry
and biased can be cross-examined more strongly and is more
likely to make emotional mistakes in their testimony during
a strong cross-examination. An officer that does not
document the information sufficiently can be attacked in
another way. It is important through the cross-examination
process that counsel bring out all the positive features
that your client demonstrated in the performance of his
or her sobriety test or driving behavior to fit within whatever
theme you have set for the finding of the not guilty verdict.
Sometimes it is necessary to keep distance with a police
officer in order to cross-examine them strongly; however,
with many officers it is easier to gain concessions in informal
conversation so that negative testimony will not come before
a trial judge in many instances. Knowing the officer
and engaging his or her personality is extremely important
in order to make an appropriate decision on how to cross-examine.
5.305
Expert Witness.
Expert witnesses are not needed in most cases, however,
there may be times where their participation and testimony
can be dispositive. Counsel should weigh the pro and cons
of obtaining an expert, and discuss these matters thoroughly
with the client. The costs versus the need for the testimony
and the increased likelihood of success defense should be
considered. Most importantly, the client should be thoroughly
briefed on all aspects of the use of an expert especially
with regard to the cost that can be expected in order to
allow a fully informed decision about whether to hire this
type of professional strengthen the defense.
If
the client agrees to the use of an expert, counsel should
arrange to consult with that expert well before trial. The
need of an expert is always fact-specific. Counsel may consider
the need of an expert in any number of situations, including
the following: there is a discrepancy in the certificate
of analysis; the regulations of the Intoxilyzer have not
been followed properly; there are discrepancies or issues
concerning the information obtained from the Division of
Forensic Science; there are medical issues or injuries;
or the client has previous medical issues.
Counsel
should carefully review the facts with the expert witness.
The expert may provide information relevant to their area
of expertise, which may be new to counsel. Counsel should
inquire of the expert how counsel can better become educated
in the subject matter. Counsel should also inquire as to
whether the expert has seen a particular type of defense
or has experience in the likelihood for success.
(Include
information on finding an expert? With a reference
See
Ch. ___ of this handbook for more on the technical
defenses.)
5.206
Trial Strategy and Tactics.
After counsel has gathered all of the information and facts
involved in the case, counsel must then evaluate how all
of this is likely to transpire should there be a trial.
A.
Evaluation of the Case.
The analysis of a case is extremely important, because a
proper evaluation leads to good results. Whether or not
a trial will be successful must be decided. What is successful
may be relative and needs to be evaluated in light of what
the client wants or needs to accomplish. For example, if
a client is content with accepting a reckless driving conviction
instead of risking a conviction for DUI, and this plea has
been offered by the commonwealth, the risk of a trial may
be avoided. The client should be fully informed of what
counsel views as the risks involved if the case goes to
trial.
B.
The Admissibility of Evidence or Statements. To evaluate the strengths and weaknesses of a case
counsel must be familiar with the Rules of Evidence.
If a particular piece of evidence is not admissible, then
counsel must recognize that fact and gauge how important
that will be in the case. It may be that there is a technical
deficiency that will keep out the certificate of analysis,
or perhaps the lay witness whose testimony is the only link
that establishes the time of the operation of the vehicle
is not present in court. There are hundreds of examples
where counsel must be prepared to make a value judgment
as to the potential admissibility of a particular piece
of evidence and then decide how relevant it is to the defense.
C.
Prosecutorial Discretion.
Perhaps the most underrated and least understood part of
evaluating a case is the recognition who can make the decision
in the case. If your case has apparent substantive or procedural
defects or if there is a reasonable way to accomplish your
clients aims without trial, an attempt to negotiate a plea may
be beneficial. Defense counsel is generally much more familiar
with the details of the clients
case than anyone else, and this is an advantage that can
be used is developing a proposal for settling the matter.
The
first possibility of resolving a case lies with the prosecutors
office. Counsel should be familiar with the attorney with
whom he is dealing or negotiating. That persons likes and dislikes, their pet peeves and their motivations
are extremely important in developing a negotiation strategy.
What level of experience does the prosecutor have? What
is the likelihood that he or she will entertain a resolution
of the matter? These types of questions are important because,
for instance, if the prosecutor is experienced, then he
or she may better understand how a particular type of crime
fits into the overall scheme of things, be able to better
analyze a particular set of facts, and may be more versed
in the way the rules of evidence could affect the trial
of the case. Although counsel may be able to bluff an inexperienced
prosecutor more easily, inexperience may also prevent that
person from fairly analyzing the facts or from having the
final authority to resolve a case. If the prosecutor believes
a defendant should plead guilty without a recommendation
or be tried by the court, then negotiation is both a waste
of time and an unnecessary opportunity to allow the opposition
to discover possible defenses or defects in the case. Save
these for trial and for argument before the bench.
D.
The Judge. Equally important to evaluating the strengths and
weaknesses of the case is the person who is deciding the
questions of law and the importance of facts, the judge.
The same analysis stated previously relating to the prosecutor
is equally applicable to the judge of the case. Each judge's
perception of probable cause or to technical defenses may
be somewhat different. Dismissals may be rare or common
depending on a variety of factors. Even the demeanor expected
of counsel can play into the equation. These questions may
seem obvious but they are important to the analysis whether
a trial on the specific facts has the likelihood of success.
If counsel is going to try a case in a court in a new jurisdiction,
speaking to attorneys who regularly practice before the
judge or judges there is prudent.
E. Should your client testify?
Pros and cons.
There
are many reasons why one would not want to call his or her
client; however, it may be the only way to establish the
drinking history for an expert to testify from. There is
also the notion that the trier of fact would want to hear
from the accused. Of course, there is a presumption of innocence
and the defendant has the right to remain silent; however,
there is a prejudice in a DUI case that haunts defense counsel.
If the client admits that he had 4-5 beers a lot of judges
stop listening even though that is not the final answer.
The toxicology of absorption and elimination of alcohol
dictates that there a number of relevant considerations:
age, sex, weight, drinking history (such as the # of minutes
or hours over which the alcohol was consumed), amount of
food consumed, special diets, diseases such as GERD, as
well as other matters. There is no right or wrong answer
that applies across the board in a DUI case. Each case stands
on its own merits as to what is the right decision.
1.
TYPE OF TRIAL: JURY VERSUS BENCH
Virginia is one of only two states in the country in which
a jury sentences. What may be customary or ordinary if one
loses a DUI trial if tried before a judge cannot be counted
on if tried before a jury. There is a down side risk to
trial by jury in Virginia if a person is found guilty. There
is a possibility that the person may be sentenced to jail
by a jury and the trial judge may not suspend that sentence.
Counsel has heard the admonition that "if you live by the
jury you die by the jury" from judges. This is a particular
risk that normally does not exist with a bench trial on
a first offense absent an aggravating factor such as extreme
speed or other bad driving behavior, accident in which someone
was hurt, or the defendant's obnoxious behavior after the
traffic stop. These things must be weighed on a case
by case basis.
Juries are usually the better choice where there is a factual
dispute between the defendant and a police officer or where
a judge believes (incorrectly) that if the BAC is .08 or
above that there is not a defense to a DUI in his or her
courtroom. Knowing the trier of fact is extremely important
so that the client can make an informed, educated decision.
The trial of a case will be quite different if tried in
front of a judge or jury. Counsel has found that being
succinct is a blessing before most trial judges and playing
to an emotional issue can be quite persuasive with a jury.
Certain theories of defense will be play better before a
jury although many counsel believe that the punishment factor
with a jury vetoes this option. Jurors are quite different
in different jurisdictions and a working familiarity with
jury trials in different jurisdictions is quite important
to making an intelligent decision whether or not to try
the case with a judge or a jury. To make a correct
analysis on this issue far exceeds the purpose of the general
guideline; however, the best source of information is to
talk with local attorneys that have a number of years' experience
in making this ultimate decision.
[1]
See Discovery Forms, Appendices ----,----, and
-----.
[3]
A
request for the drivers record can be made by the client
at the DMV office, online or by mail. The request form
is available at http://dmv.state.va.us/webdoc/forms/index.asp
by typing form number DL 56 into the search request.
[4]
See Chapter ___ for a more complete discussion
of the interview process.
[5]
Rule
7C:5 of the Supreme Court of Virginia; this rule also
controls misdemeanor discovery in the juvenile court
pursuant to Rule 8:15.
[6]
See
Appendix ____ for a sample Request for Certificate of
Analysis.
[7]
Va. Code § 18.2-268.3 (C).
[8]
See Chapter 6, herein.
[11]
See
Appendix ___ in Chapter 2 of this handbook for an example
of a client interview document.
[12]
This
can be purchased from the U.S. Department of Transportation.
[13]
This
can be downloaded from the internet at http:\\www.dcjs.org/forensic/sections/breathalcohol/publicationsandpresentations
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