The Importance of Jury Selection In a drunk driving or operating while intoxicated (OWI) Trial

The selection of the jurors who will consider the evidence and vote on the defendant’s guilt in a Michigan drunk driving or drugged driving case is a critical component of an effective DUI trial strategy.

An OUIL jury will be told more than once by the judge that they are to base a verdict only on the evidence presented in court during the trial. For example, jurors are typically instructed not to research any issue in the trial on the web, and not to visit the scene of the offense. Yet many Michigan citizens who are summoned for jury duty walk into the courtroom with a clear bias against a defendant who is charged with driving while intoxicated or impaired by alcohol or drugs.

Potential jurors are repeatedly exposed to messages that not only warn of the dangers of driving drunk, but also demonize drinking any amount of alcohol and then getting behind the wheel, such as: “you drink, you drive, you lose”; “stay alive, don’t drink and drive”; “drink and drive in Michigan and our officers will show you some new bars”.

These and other similar slogans have become generally accepted as basic truths, and they typically have broad support among the people who will ultimately decide whether a defendant goes to jail or loses their driving license.

In recognition of this fact, jury selection in a DWI trial may be viewed more realistically as an opportunity to dismiss the people who are obviously biased and to discover which remaining potential jurors would be least open to give the accused a fair trial. Experienced defense attorneys remind the potential jurors that criminal defendants, even in alcohol and drug cases, are entitled to begin their court trial with the presumption of innocence. Both the Michigan and the Federal Constitution require that presumption of innocence (for whatever value that may, or may not, have to potential jurors.)

Before the individual potential jurors are questioned in the jury box by the court and the defense lawyers, they are administered an oath by the court swearing or affirming they will answer the questions posed to them in the selection process truthfully.

Jurors can be challenged for cause, which is generally interpreted as bias (I think all drunk drivers should go to jail) or conflict of interest (one of the lawyers is related, or a close friend, to one of the jurors). If cause is established it is grounds for the juror to be dismissed. There is no limit to the number of jurors who can be dismissed on this basis, because a defendant has a right to a fair trial, and one of the basic parts of a fair trial is an impartial jury.

Both parties are provided a certain number of jurors they are allowed to dismiss for no reason whatsoever, which are called peremptory challenges.

The general rationale regarding juror selection is that the parties in a case are best able to determine what jurors may be subject to a challenge for cause, based on their detailed knowledge of the case. While judges typically ask potential jurors a series of basic questions, not surprisingly the responses will focus on giving judges the “right” answer.

Many judges, however, will allow the attorneys to ask additional questions, which can at times delve into personal, intimate and/or embarrassing issues that people naturally avoid whenever possible. A skillful OUIL defense attorney must have the ability to elicit information in such a manner as to establish a rapport and trust which will increase the likelihood of candid answers from people who have already demonstrated an ability to underemphasize their personal viewpoints.

Attorney-conducted questioning enables an experienced drunk driving attorney to frame questions based on responses to prior questions and allows observation of the jurors’ reactions to these questions. Through these carefully crafted questions, answers, and observations, defense counsel can more accurately determine whether actual bias exists in the minds of the prospective jurors and exercise both challenges for cause and peremptory challenges in a rational and informed fashion, in consultation with the client.

Because determining whether a juror is biased is difficult, the questions asked of prospective jurors must be probing enough to allow the parties’ attorneys to make meaningful decisions regarding challenges for cause and peremptory challenges.

In an OWI case, few people are ambivalent about drunk driving but many people are reluctant to publicly reveal their true positions. Juror self-assessment of bias is inherently untrustworthy, and the questions from the attorneys are often necessary to reveal bias that is not initially apparent.

Questions may be phrased in terms that encompass others besides the jurors themselves- for example, “have you, a family member or a close friend ever….” This can be important because people are often influenced by family or friends who have experienced difficulties they have not.

Inquiry should be made as to whether or not jurors personally know the judge, court personnel, police officers or other witnesses involved, as well as the attorneys trying the case and even other attorneys in the office of the Prosecuting Attorney.

People who are or know police or corrections officers will often be conservative and law-abiding and have disdain for others who break the rules (laws). Also, many in law enforcement have a “them versus us” point of view, which can cause them to view events with rigidity and in black-and-white terms. If the potential issue is the adequacy of an investigation by a police officer, such a juror can be extremely close-minded and unwilling to consider the defense perspective. It is not uncommon for criminal defense attorneys in Michigan to see a “holier than thou” attitude from police officers.

Additionally, many jurors view law enforcement, state troopers, police officers and deputy sheriffs as inherently more believable than a “civilian” witness, and they find the cross-examination of defense counsel, especially if conducted in an aggressive manner, to be offensive. This bias remains even after the jury is instructed by the judge to look at the testimony from police officers exactly as they look at testimony from all other witnesses.

Nearly everyone has an operator’s license and drives a vehicle, while the majority of persons drink alcohol of some type at least occasionally. It is a good idea to know who doesn’t drive, and if so, why not, and it is essential to make a determination as to who does not drink alcohol so that follow-up questions can be asked. Some families have members who are substance abusers that have caused themselves or a relative great pain and hardship, and such people are quite set against any alcohol consumption.

Many people know someone who has been a victim of a crime, even if they have not personally. In these circumstances, the Michigan criminal justice system can be seen as either friend or foe- that is, as being helpful in obtaining redress and seeing justice done, or as letting the guilty go free on a perceived “technicality.”

Many people have been involved in vehicular accidents, some involving intoxicated drivers. It is not unusual for a number of potential jurors to either have family members or a close friend who was seriously injured, or even killed, in an accident involving a drunk driver. It would be completely understandable for such a person to be bitter or angry about such misfortune, and to want to see “justice” done by punishing the defendant, who is alleged to be a drunk driver.

While most jurors would prefer to hear a defendant’s version of events, many of them are, surprisingly, willing to acknowledge the Constitutional right to remain silent. These jurors will accept the fact that this information will not become part of the evidence at trial, in part due to notions of fairness, as between a government with seemingly infinite resources and a defendant with limited resources. Despite all of the talk about a fair trial, experienced criminal defense lawyers know that the playing field is almost never level.

Jurors should be questioned as to their feelings and beliefs about all important issues in the defense that is being presented, such as the conduct of “sobriety” tasks routinely administered on the roadside and the reliability and protocol of breath or blood chemical tests the prosecutor will seek to introduce. Will guilt be established to a juror’s satisfaction if a chemical test result over the legal limit is introduced, without more? Can a particular juror be made to understand the many possible errors that can exist with the chemical or breath testing of a defendant? Or is the juror too close minded to even take a meaningful look at the flaws in the testing?

Most importantly, is the potential juror willing and able to keep an open mind throughout the presentation of all the evidence? The prosecutor, who has only the burden of proof, in every criminal trial in Michigan, presents evidence first. The initial information provided to the jury is about the defendant on the date of arrest and will include his or her alleged improper driving, speech difficulty, poor balance and inability to follow simple instructions from the arresting officer,. Testimony will also usually include chemical test results said to be above the legal limit of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.

Will each juror listen to any evidence of improper driving, for example, without concluding such operation is necessarily due to alcohol consumption? Has that juror ever driven poorly themselves (most likely) and, if so, was it due to intoxication or poor judgment (often the latter) or simply being distracted? Poor performance of “sobriety” tasks will be argued as reliable evidence of impairment, until the jury sees the officer have difficulty performing the tame tasks in the courtroom or they attempt to perform the same task in the jury room.

Similarly, is a juror willing to consider deficiencies in any chemical test results that were offered as evidence of intoxication that are derived from a laboratory that may not be properly certified or that are conducted by poorly-trained lab personnel using equipment that may be defective or improperly calibrated?

In summary, jury selection in a Michigan OWI case is an important tool for a competent and experienced OWI defense attorney to use to “level the playing field,” discover and minimize biased potential jurors and increase the likelihood of a not guilty verdict at trial.

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