DWI CLOSING ARGUMENT VIGNETTES

1. Failing Field Sobriety Tests .

Soon we will be watching the Olympics again.  We will see the best of the best.  These young men and women train their entire lives for these events.  Imagine the gymnast competing for the gold medal after having practiced every day of her life for four years.  During the first year of practice the young gymnast gets better.  During the second year she gets even better.  And the same is true for the third year and fourth year.  Perfection is achieved.  Every practice session brings more confidence and more skill.  And then when we have the real competition,  the gymnast makes her run, hits the ramp and launches herself up to the horse and misses.  What has happened to make this one day different?  The answer is fear and nervousness!  It's important to remember that Billy Bob had never practiced FST's.  It is important to remember that fear and nervousness affected him more so then the fear and nervousness that affected the gymnasts (credit to Steven Jones of Boston).

2. Prosecutor Claims that Billy Bob's Good Performance on FST's was Because of a High Tolerance .

"Can you remember way back when you were young and some smart aleck would try to talk you out of your money by tricking you on a rigged coin toss.  Remember they would say 'heads I win and tails you lose.'  This trick was unfair and it is just as unfair as the prosecutor's argument that Billy Bob did well on the police motor skill coordination exercises because he has a high tolerance to alcohol.  That's not fair because the only evidence we have in this case is that Billy Bob performed the exercises just like a sober person would.  Think about it, carried to its logical extreme, no person could ever pass the exercises because of sobriety just a no person could ever win the coin flip."

3. Billy Bob's Objective Symptoms of Sobriety do not Match Breath Test Results .

"Edward X. Delany, the tough New York City Homicide Detective from Lawrence Sander's 'Deadly Sin' television series, always cautioned his Troops:  'If you can't explain all of the evidence, you haven't explained any of it'"(credit to Barry Simons of Laguna Beach, CA).

* * *

"If it looks like a duck, quacks like a duck, and walks like a duck, it is a duck.  Billy Bob looked like he was sober, talked and walked like he was sober.  Believe your eyes, he was sober"(credit to Barry Simons of Laguna Beach, CA).

4. Breath Test Machine Working When Tested But Maybe Not When Your Client Was Tested.

"Even a broken clock appears to work twice a day."

5. .08 Does Not Necessarily Mean Intoxication .

"Politics and science are like vinegar and oil in that they just don't mix.  The politics of this case is that the federal government blackmailed your state with highway funds to change the legal limit from .15 to .10 and now to .08.  Politicians can legislate that which is not true in science.  Science tells us truthfully that the earth is flat and that the sun revolves around the earth, but the truth of the matter is that the earth is round and it revolves around the sun.  Science has not said that everyone who has a .08 is intoxicated."

* * *

"There are only 2 kinds of laws:  The Laws of Nature and The Laws of Human Nature.  In this case, the laws of nature tell us that there are simply too many not guilty facts to accept the breath test.  It's telling us there are too many variables and sources of error to believe the breath test results beyond a reasonable doubt to label someone a criminal"(credit to Barry Simons of Laguna Beach, CA).

6. The Breath Test Machine Is Owned and Solely Possessed by the Government and that Neither the Defense nor the Non Government Scientific Community has Access to it.

    "Research by supporters and manufacturers of the breath test machine have shed much darkness on the accuracy and reliability of this test.  If this trend continues, the probability is that we will soon know nothing about it at all." [This quote is a twist off a Mark Twain quote which can be twisted further to address standardized field sobriety test in the same way].

7. The Breath Test Machine and its Margin of Error in a Flying Environment .

    "The government's machine expert says that it has an acceptable margin of error of .02, above or below, its practice test.  This is a 20% margin of error either way with a total swing of error of 40%.  Who is that acceptable to?  We know it is acceptable to the government and to the manufacturer who does not even warrant the machine fit for any particular purpose which would include breath testing.  That margin of error, however, doesn't have to be acceptable to you.  Imagine if you would, that the same manufacturer of the breath test machine has built an auto pilot for an airplane the same way it did the breath tester, and, that this machine is guiding your airplane down for a landing in mountainous terrain, through the clouds, in pouring rain and in turbulence.  Next, the pilot says over the public address system, 'don't worry folks, the autopilot is flying the plane in and we accept that we can be 20% off course to the left, or to the right, or too high, or too low.  It has been a pleasure flying with you and good luck.'  Is that acceptable to you?  Is should not be just as the breath test machine's margin of error should not be acceptable to you too."

8. Your Client Cannot do  Standardized Field Sobriety Tests as Directed .

    "The officer says that Billy Bob failed these police motor skill coordination tests.  These are the tests that are supposed to measure when a person is abnormal because of alcohol.  These are surprise and unpracticed tests where the officer has a stranger do unnatural and unnormal things and has to guess what is normal for that person."   

9. Your Client's Driving Was Good and the Officer Claims Intoxication .

"The ultimate driving while intoxicated test is the 'driving' and not the inability to do some unpracticed police motor skill coordination exercise where fear, nervousness and anxiety unfairly come into play."

10.   Liberty and the Government.

    "Liberty has never come from the government.  Liberty has always come from the subjects of it.  The history of liberty is a history of limitations of governmental power, not the increase of it." [From President Woodrow Wilson].

11.    Reasonable Doubt and Religion .

"To find Billy Bob guilty, just like every witness had to swear to tell the truth, you should have no hesitation to put your right hand on the Bible and swear to the All Mighty God that he is guilty."

12.   Is the Officer's Lying or Mistaken?

"There's been a lot of conflicts in this case.  A lot of conflicts between the officer and Billy Bob.  Simply because there is a disagreement doesn't mean someone is lying.  Rather, it simply means that there are two people looking at the same thing in two different ways.  It's Billy Bob that knows what is normal for him.  He doesn't have to guess about his normal where the officer has to because the officer is judging a total stranger.  Just like we give Billy Bob the benefit of the doubt when we talk about the presumption of innocence so should you give the officer the benefit of being able to make a mistake.  We don't say he was lying because we think he was mistaking.  He has a lot of cases and he simply has got some facts mixed up from one of those cases with Billy Bob's.  Moreover, he is simply mistaking about Billy Bob."

13.    Sherlock Holmes, Dr. Watson, Presumption of Innocence and Reasonable Doubt.

    "Sherlock Holmes was a great detective because he looked at every scrap of evidence and he was of the mindset not to jump to a conclusion just because something looked a certain way the first time he saw it.  Where Dr. Watson would look at only all the guilty evidence and point a finger at a suspect, Holmes would not.  Rather, Holmes would look at all the evidence, both the good and the bad.  He would then use the good to eliminate some of the bad, he deduced the real answer by looking at conflict in the evidence from the evidence and from a lack of evidence.  Holmes, like you jurors, was guided by the notion of proof beyond a reasonable doubt.  He, like you, always applied the presumption of innocence until it was removed by proof beyond a reasonable doubt.  Holmes always came to the correct conclusion because he neither jumped to it like Watson did and nor did he ignore the evidence of innocence.  Indeed, unless all of the evidence of innocence went away he would never accuse a person.  Under our law, you are to follow Holmes' example and not convict anyone until all the evidence of innocence is negated by proof beyond a reasonable doubt."

14.   Field Sobriety Test Scoring Is Not Fair .

  "The way the officer scored Billy Bob's performance on the police motor skill exercises did not seem fair to me.  He never gave Billy Bob credit for any of the good things he did.  Rather, he only gave him points or clues for things he did not perfectly do.  Seems to me that you have to do perfect on these exercises otherwise you fail.  Let's think about that a minute.  Imagine if you would that your child comes home from school and says 'Mom and Dad, I failed physical education with a 90% score.'  I know you would be shocked, just as you should be shocked that the officer uses an unfair grading system on these unpracticed surprise police exercises.  In school, you got an 'A' if you scored above a 90%, you got a 'B' if you scored above an 80%, you got a 'C' if you scored above a 70%, you got a 'D' if you scored above a 60%, but you only failed if you got lower then that.  An 'A' was excellent, a 'B' was good, a 'C' was average, a 'D' meant you needed to work harder, and, an 'F' meant you failed.  There is no way you would accept failing your child if he earned an 'excellent', 'good' or 'average' score just as there is no way you can accept as fair the way the officer graded Billy Bob in this case.

15. Prosecutor says to Look at Only the Guilty Evidence .

"The whole is never greater than the sum of its parts (Euclid, The Elements 320 B.C.)."

16.   Police Officer Credibility v. Citizen Credibility .

"It was not so long ago that a great American stood at the steps of the reflecting pond in front of the Lincoln Memorial in Washington, D.C., and made a speech whose words forever changed the way we think.  Dr. Martin Luther King shared his dream that someday we would all be judged not by the color of our skin, but by the content of our character.  I have a dream too!  I dream that someday, in an American court, that a witness will be judged not by the color of his uniform, but by the content of his character."  (from John Henry Hingson, III, Oregon City, OR)

16. Measuring Reasonable Doubt .

"Jurors are like carpenters with rulers and measuring tapes.  You must measure all the pieces of the evidence to see if they reach beyond a reasonable doubt.  Just like an 11-inch piece of wood will not fit a 1-foot space, so too does the evidence in this case fail to span the distance needed to get beyond reasonable doubt.  No evidence can be presumed to fill a space to bridge the gap to beyond a reasonable doubt.  Indeed, you may only presume that Billy Bob is innocent and you may not presume anything else."

* * *

"There is nothing so important in this life as there is in defending the right of a parent to keep their child in their family.  Our law says that to take a child from a parent that an incredible amount of evidence is necessary to show that the child is in danger and that the parent is unfit.  During the jury selection process, I want to remind you that many of you said that you would require the sureness of the evidence to be _____%.  Here, it is so important for you to remember that beyond a reasonable doubt requires more evidence than that to convict a person of a crime and to label them a criminal from that day forward to kingdom come (see attached jury demonstrative evidence exhibit on levels of proof) then it would to take a child away from a parent.

* * *

    Reasonable doubt can be likened to a temperature gauge on an oven that you are cooking dinner in.  If the temperature is not high enough, the meat will be under cooked and unfit to eat.  The same is true for reasonable doubt because if the evidence has not reached the required temperature then there can be no guilty finding.  Absent the temperature reaching a specific number of degrees getting beyond reasonable doubt, the only legal verdict that remains is not guilty.

18.   There is More to the Evidence Then you Thought .

    "There is a lot more to the evidence then the government wants you to see.  At first blush, you might think that the government proved guilt just as you might think that there are only 9 squares in this picture of squares behind me.  Careful examination, however, shows that there are many more squares.  So too, there is a lot more to the evidence then the government gives you credit to see.  This case is filled with reasonable doubt evidence and it is there if you will only look for it.  Indeed, just as you can know see that there are 14 squares, you can also see the evidence of reasonable doubt if you will only look for it (see attached jury demonstrative evidence exhibit)(from Tommy Kirk of Huntsville, AL)."

19.    Learning Reasonable Doubt From My Daughter .

    I thought I knew what reasonable doubt was until I was taught its real meaning by my young daughter.  Let me share this teaching story with you.  You see, my daughter has always had a habit of coming into the house through the kitchen back screened door and slamming it as she entered.  I can't tell you how many times I have asked that 10-year old to not slam that screened door.  Well, one Sunday afternoon I was reading in the living room and I heard her in the kitchen and then I heard that door slam again.  It was so loud I about jumped from my chair.  I called to her to stop slamming that door. 

    To my surprise I heard the door slam again.  Angry as a hornet that had its nest disturbed, I jumped up and headed for the kitchen.  Once there, I confronted my child and said "how many times have I told you not to slam that door?  Didn't you hear me yell at you a minute ago not to slam it and you did it anyhow?"   Seeing the fly swatter on the counter, I picked it up and was ready to spank her.  She claimed innocence, but I just did not believe her.  In fact, the more she protested, the more I got angry because I knew she was lying.  Indeed, I told her that lying was just going to make it that much harder on her which made her cry all the more.

    Finally the time had come that I going to apply the swatter to her bottom as she lied over my knee.  Incredibly, just as I raised my hand with the swatter in it, the door slammed again.  I could not believe it!  It was the wind!  Whether or not she had actually slammed the door was no longer the issue.  For me, I had a reasonable doubt and could not spank her for fear that I would be punishing her for something she did not do.  From a reasonable doubt analysis, everything in the beginning pointed to her slamming the door to such a degree that I simply would not listen to her words of "not guilty".  I was wrong for presuming her guilty and not presuming her innocent just because the preliminary evidence suggested she was.  In this case, you would be just as wrong as I was for you to presume Mr. _______ guilty of DWI just because the preliminary evidence suggested he was.  Under the facts as I described my daughter's situation to you, if you would have not spanked her then you cannot find Mr. __________ guilty of DWI either.  Just as you and I would have felt terrible if I had punished my daughter and thereafter heard the door slam because of the wind, you can avoid that feeling by remembering the presumption of innocence and presuming what Mr. _________ told you as true (credit to Flem Whited, Daytona Beach, FL).

20.    Reasonable Doubt:  just as sure as if you saw it .

Reasonable doubt is that feeling that you would have where you actually saw the event and that you were absolutely positive as to what happened.  Accordingly, where you were not a witness to the event, then a reasonable doubt would be having the same feeling that you would have having only heard the evidence, but felt as absolutely positive about it just as if you have actually saw it yourself.

21.    Reasonable Doubt:  so you what to be a millionaire?

    Reasonable doubt is that feeling of hesitation you would have if you were making an important monetary choice as a game contestant on the t.v. show "Who Wants to be a Millionaire".  For example, imagine you are the contestant and you have already won $500,000.00.  This money is yours and no one can take it from you.  There is another $500,000.00 for you if you get the next answer correct.  As for this question, you have narrowed the answer down to two choices.  Of course, one choice is correct and you win a million dollars and one choice is wrong and you walk away with nothing.  Beyond a reasonable doubt then is where you are beyond a feeling of risk with the money you've already won and you choose an answer because you are more than clearly convinced that you are right.   Said another way, not being beyond a reasonable date is where you decide not to risk the money you already won and you go home with it.

22.   The Presumption Of Innocence And Exculpatory Evidence Cannot Be Ignored ­.

    "When a community looks only for evidence of guilt and ignores or suppresses all contradictory evidence, the result is a witch hunt.  And a witch hunt was developing in Salem as the community felt itself so beset by evil that it was no longer capable of perceiving the good."  Witchcraft at Salem by Chadwick Hansen.

23.   You Can Be Wrong In Your Conclusion Even If You Are Right In Your Facts .

    Every person has a right to have an opinion.  Indeed, they even have a right to be wrong in their opinion.  However, no one has a right to be wrong in their facts.

* * *

    So it was the 6-year old son ran to his father, the farmer, in the field and said "Dad, come quick, Dale, our cook, and Roy, hired hand, are acting crazy in the hay loft in the barn.  They both have their pants pulled down and I think they are going to go potty on the hay."  The father leaned down to his son and told him to calm down and said "son, I think you are right in your facts, but wrong in your conclusion, Dale and Roy are not going to potty, but they are going to make hay"(credit to Charles Sifers, Oklahoma City, OK).

24.    Undermining The Government's Attempt To Make Symptoms of Intoxication Fit Your Client's Normal .

    I want to tell you a story that dates back to jolly old England to the time of King Richard, the Lion Heart.  It was at that time that a famous archer rode into a town square, and was amazed to see many targets set up, and at the dead center of each, an arrow in a perfect bull's eye.  There were targets everywhere.  Targets were in fields, high in trees, on the sides of buildings and barns and in each one was an arrow exactly in the center of the bull's eye.  The archer stood in the center of the town square, and he called out to ask who had done this.  People gathered around, and said it was not such a big deal.  On the contrary, he protested, he was the most famous archer in the land, and he could not do this.  Who had done this?!  The villagers laughed that it was the work of the village idiot.  The archer demanded to be presented to this "idiot".  When the village idiot was brought forth, the archer apologized for the villagers' lack or respect and bowing low, begged to know how the idiot had achieved such accurate aim.  "It is simple," the idiot shrugged.  "First I shoot the arrow.  And then I paint the target around it."  Ladies and gentlemen, when you look at the evidence which the police have provided in this case, the arrows came first . . . (credit to Joshua Karton of Santa Monica, CA).

25.   Cocky And Over Confident Prosecutor And Police Officers That The Jury Will Believe Them .

    The prosecutor and his police witnesses have presented themselves to you in the cynical confidence that you would not disbelieve them, confident that this jury would go along with them on the assumption - the evil assumption, that all persons arrested for DWI are basically immoral beings and cannot be trusted to tell the truth.   Moreover, they push that evil assumption as to also include that the family and friends of Mr. ________, will come here and lie to you.  The government lawyer had no moral right to try to personally attack the character of these people for they are just like you and I, they are just people who simply came to tell you what they knew and thought.

    Well jurors, we know that it is not right for police witnesses to take that kind of attitude.  Indeed, we know that the truth is that not everyone whose is accused of a crime lies.  The truth in this case is what Mr. __________ told you.  The truth in this case is that the officers are strangers to Mr. ________ and don't know what is normal for him.  The great truth in this case, God's truth in this case, is that Mr. _________ and the citizen friends and family members who testified before you were not strangers to Mr. _______, and that they did know what was normal for him (a take off from Atticus Finch closing argument in To Kill A Mockingbird ).