From legal assistant Joe Mancini…
Today, I’d like to talk about misconceptions people have about litigation, the criminal process and trials (focusing primarily on trials).
TV and movies have given people the wrong impression on how this whole thing works. What you typically see on a TV show – the lawyer goes into the courtroom, gives a very good opening statement to the jury, one or two witnesses might be put on the witness stand. Once in a while, you’ll see a great cross-examination and the witness breaks down and confesses on the stand that he or she actually committed the crime.
If that doesn’t happen, you’ll see the lawyer giving what’s called “a closing argument” to the jury, and invariably, that’s brilliant and well-written. Then you break for commercials. The jury comes back and they find the defendant not guilty.
Now, what a lot of people take from this is that trials are won or lost in the courtroom. Candidly, that couldn’t be further from the truth.
Trials are won or lost long before the lawyer walks into the courtroom. They’re won, or lost, depending on the degree of work, effort and attention to detail that took place long before the trial started.
Knowing details, knowing the case inside out, looking for all the flaws in the other side’s case (and using them at trial) – those are the kinds of things that win or lose cases, whether you do that or don’t, whether your attorney does that or doesn’t do that.
I’ll give you some examples.
Take a typical DUI case. You will have things that are called Field Sobriety Exercises (the touching the nose with your finger, walking in a straight line heel to toe, one legged stand – things of that nature).
Now, we get a DUI case and those Field Sobriety Exercises have been done. The very first thing we would do is find out if, in fact, there was a video recording of those exercises. A lot of law enforcement agencies now have either a camera in the patrol car or the officer himself is wearing a camera.
Those are very important for several reasons.
We get the video, and copy that, and a copy of the report or arrest affidavit, any other documentation that the officer wrote up regarding the Field Sobriety Exercises. The reason we do that (and it can be boring at times, sitting there wading through a 35-45 minute video) is it’s important because you’ll have the written report where the officer says, “So-and-so performed this particular test badly and they staggered. They didn’t walk in a straight line. Etc., etc.”
But you watch the video, and you compare it to what the officer wrote in his or her report, and there are occasions where there is a difference between what’s written down and what’s actually on the video.
For example, we had a case a while back, relatively late at night, our client was exiting the interstate. On the off-ramp, they were doing some construction work and there were some barrels and a concrete wall. Unfortunately, our client clipped that concrete wall, triggering the airbag. Even though our client wasn’t going all that fast, they were in an unfamiliar area and it happens. It’s late at night and it’s not particularly well-lit and bingo!
The police arrive on the scene and fortunately there was video of this.
First, the officer wrote that the individual struggled or staggered getting out of the vehicle. Well, on paper, you’d say fine, okay, that happened.
But what the video shows is that the client is a very tall person. The client was driving a Fiat 500. For those who aren’t familiar with it, the Fiat 500 is a very small car, probably a smaller car than this very tall person should have been driving. Needless to say, they had some trouble exiting the vehicle. One, they had just had an airbag inflate, and people know that’s no picnic, it can be very disorienting to somebody, can really mess you up a little bit, at least momentarily.
So, anyway, the video does show this person having a few seconds of difficulty getting out of this small vehicle that had just hit a concrete barrier and had been hit in the face with an airbag. It’s perfectly natural and has absolutely nothing to do with whether or not they were “under the influence of alcohol”.
The report also states with regard to the Field Sobriety Exercises that this person wobbled initially in performing the one-legged stand. Now, what that is, basically, is the officer tells you to choose whichever leg you want to and lift it up at least six inches off the ground straight out in front of you and hold that, balancing on the other leg, as long as possible.
The only sign of wobbling in this case was when this individual was standing there, trying to figure out which leg to put up and initially started to raise their leg, and there was a slight wiggle. That individual then proceeded to keep their leg out straight for over thirty seconds. It got to the point where the officer had to say, “Okay, that’s enough, You can put it down.”
I’ve looked at a lof ot DUI videos and I’m here to tell you I have never seen anybody perform that well, and for that long, on one of these one-legged stand tests. That’s why it’s important to pay attention to detail. Details win or lose cases.
Here at the Kessler Law Firm, that’s something we take pride in, and it’s a priority. You don’t win a case with a fancy, very eloquent, very well-stated closing argument, appealing to their passion and going on and on, like some lawyer you see on TV. It just doesn’t happen. It’s details.
Another issue that comes up in DUI cases is the breathalyzer.
I think most are familiar with that machine. It’s “science” and science is not to be questioned. Well, candidly, it can be questioned. If someone knows what they’re doing.
Attorney Kessler has been to innumerable seminars regarding breathalyzers. How they work. The chemistry involved. The science involved. He could probably field-strip a breathalyzer with his eyes closed at this point.
In many cases, he knows more about the breathalyzer and how it works and where the flaws are, than the officer (no offense to law enforcement). He has spent countless hours studying and learning about breathalyzers.
Even though the results that they seek to introduce at trial may show that you were in fact under the influence, a good attorney who has that kind of training and experience can attack that result, even though a lot of attorneys would throw up their hands and say, “What are we gonna do? It’s a breathalyzer. There’s no way to beat it or get around it.” Details. It’s all in the details.
If you take nothing else away from this, just remember, the legal things you see on TV are just that. It’s all make-believe. It’s not reality.
So, if you want to win a case, if you’ve got a problem, make sure you get somebody who understands that concept and practices it daily.