San Francisco DUI Lawyer - Trial Strategy For DUI Defense & how it reflects on the Barry Bonds Trial

 Posted on April 07, 2011 in DUI

Continuing on from my last post , let’s talk about the Barry Bonds trial and how it reflects on general criminal defense strategy. As a San Francisco DUI attorney, I can tell you the same strategies apply if you have been charged with and are being defended for a DUI and I address this directly later in my post.

You may ask, “Why did the defense not put on any evidence in the Barry Bonds trial?"

They did. “Wait," you say, “I just read where the defense rested without calling a single witness!" That’s true, but the defense evidence came in the form of cross-examination of prosecutorial witnesses. Cross-examination has been referred to as the greatest engine ever invented for the discovery of truth. That may or may not be true, but it is undoubtedly one of the most powerful weapons in a trial lawyer’s arsenal.

With cross-examination, a skilled lawyer can control a witness and extract from him or her answers needed to make a persuasive closing argument. Ambiguous responses like “I don’t recall" or “I’m not certain" can be helpful, and testimony that is inconsistent prior statements can be explosive. In the Bonds trial, there were significant contradictions brought out by the defense between different prosecution witnesses discussing the same subject (e.g., former friend Hoskins saying he had conversations with Dr. Ting about Bonds use of steroids, and Dr. Ting saying no such conversations took place).

It did not surprise me in the least to see the defense rest in the Bonds trial immediately after the prosecution rested. Not calling Bonds to the stand was a no-brainer - he would have exposed himself to a withering cross-examination by the prosecution team and risked further charges for perjury (a defendant has the constitutional right to testify in a trial or to remain silent, but he does not have the right to lie under oath). As for other witnesses the defense might have called, there was probably nothing material for them to add other than to slam one or more prosecution witnesses with inconsistent statements or ulterior motives. But the defense team successfully did this on cross-examination.

When the defense starts calling their own witnesses it subconsciously tells a jury that the prosecution has presented sufficient evidence to convict and the defense is now responding with their own version. Psychologically, there is an unconscious shifting of the burden of proof in the minds of the jurors. They now have an expectation that the defense will prove the defendant innocent. If this expectation is not met - and it rarely is - the jury is more likely to convict even if the prosecutor’s case-in-chief did not prove the defendant guilty beyond a reasonable doubt.

You’ve heard the saying, “ I am not even going to dignify that accusation with a response." If you respond, you have to explain your own story. When the defense lawyer stands up after the close of the prosecution’s case and states that the defense is going to rest, jurors get the message that the defense is not presenting anything because they don’t think the prosecution has proven its case. The burden of proof remains with the prosecution - not just legally, but mentally as well.

It is no different in a drunk driving case. A defendant can rarely get up on the witness stand and convince a jury that he was sober at the time of driving, but his lawyer can point out through cross examination all of the correct things he did while driving and the absence of proof beyond a reasonable doubt that he is guilty. He can argue that a breath or blood-alcohol test result is uncertain, or that it fails to establish the alcohol level present at the time of driving, but it’s rare that a defendant can convince a jury of these things by testifying.

Whether it’s a DUI trial or a perjury trial for Barry Bonds, trials are chess matches. If I were to bet on the outcome of the Barry Bonds trial I would wager that it will be a deadlocked jury or an acquittal. I’m not betting though. I have had more than 80 jury trials in my career and I know from experience that you cannot reliably predict what a jury is going to do. I will say this though - the defense made the right call in resting after the prosecution’s case - no matter how the chips fall!