Archive for October 24th, 2007

How to Lose a DUI Jury Trial Before You Begin

Wednesday, October 24th, 2007

Simple: Have two prosecutors….one wearing black robes.

The public perception of judges is that they are largely fair and impartial. Unfortunately, this is becoming ever less true — particularly, in the politically sensitive area of DUI litigation.

To begin with, the reality is that an increasingly high percentage of judges are former prosecutors; very few are public defenders or defense attorneys. In fact, a growing number of attorneys become prosecutors to obtain the “qualifications” for later election or political appointment to the bench. Not surprisingly, the rulings of these judges reflect a law enforcement rather than judicial orientation.

Backgrounds aside, is the judiciary objective in DUI cases? Well, again there is the political reality: the failure to “get tough” on DUI defendants tends to result in negative comments from MADD, prosecutors and police agencies come re-election time — maybe even in an endorsement of the latest prosecutor who wants the judge’s position.

However, a more concrete sign of the judiciary’s increasing bias in favor of the prosecution can be found by visiting a website entitled DUI: A National Online Resource Library for the Judiciary on Impaired Driving. The site is sponsored and maintained by the National Association of State Judicial Educators, under a contract from the National Highway Traffic Safety Administration. The organization conducts training seminars for judges nationwide, distributes written materials and provides resources on the website.

Let’s take a look at some of these online “resources” for training judges how to handle DUI cases and trials…..

For starters, there’s an article from the American Prosecutors Research Institute, entitled Overcoming Impaired Driving Defenses. The article “identifies the most common defenses used in DUI cases and provides specific strategies for overcoming these claims.”

Hmm….Why are judges being taught how to “overcome” an accused citizen’s defense in a DUI trial?

Another online article is Handling Impaired Driving Cases. According to the prefatory comments, this material covers “common aspects of impaired driving cases”, including “anticipating defense issues”. The introduction to the article describes various blood-alcohol problems in DUI cases and then observes that “Prosecutors can easily skewer defenses like those…” The article then presents specific “claims” often raised by the defense — and the supposed “reality” refuting those obviously false claims.

Why do judges need to “anticipate” legal issues which may be raised by a defendant? What about legal issues raised by the prosecution? And what is meant by “anticipating defense issues”? Clearly, judges are being taught (by prosecutors) what decisions to make — before ever hearing the evidence.

Another article on the judicial website, Admissibility of Horizontal Gaze Nystagmus, explains to judges “why it is the most reliable field sobriety test for detecting alcohol impairment” — again, before any testimony from the police or evidence from the defense. Yet another, Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent, teaches judges that “field testing found the SFST battery to be extremely accurate in discriminating between BACs above and below 0.10 percent”, apparently making defense cross-examination irrelevant. Then there’s the Annual Traffic Seminar: “In this two-day seminar, judges learn about the use of the Intoxilyzer 5000 and laying a foundation for police officer testimony…”

All of this, of course, makes due process and criminal justice much more….expedient. With judges already pre-instructed by the prosecution, there is no real need for things like testimony or evidence in a DUI trial.

Or for a trial.

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