DUI Jury Selection
This program is a comprehensive lecture by noted DUI expert and defense attorney, Robert S. “Bobby” Reiff, the author of "Drunk Driving and Related Vehicular Offenses (Lexis Law Publishing Company) and LexisNexis' "Florida DUI Practice Guide" series. In this program, Mr. Reiff provides both new and experienced DUI attorneys tips about strategies in picking a jury in “drunk driving” cases that will help you win your case. He will provide an overview of the theories of jury selection and how they apply to a DUI case. He also provides you with common sense concepts to make the case for your clients.
Hello and welcome. My name's Bobby Reiff and I am a criminal defense attorney for almost 40 years, practicing in south Florida with offices in Miami and Fort Lauderdale. If you find the need to contact me after this lecture, please feel free to do so. My contact information is included in the materials. Today's lecture topic is jury selection in drunk driving cases. I know we're all excited to be trying cases again and so let's talk a little bit about what it takes to successfully defend somebody at trial, at the beginning or in the beginning, if you want to call it that. It's important to immediately break the ice, introduce yourself and your client, but always call him or her by their name. Never, never, ever refer to them as your client. It's always Mr. Jones, Joe Smith, Joseph, whatever may be the case, but remember jurors take clues from the language that we use. And if they hear wording that is depersonalizing the individual that you are defending, if you are merely referring to them as a commodity and not as an individual, they'll pick up on that. So never refer to them as your client, always use their name. encourage the jurors to talk back to you. When I get up, I always point out to jurors. Listen, this is the only time that you're allowed to speak up, to talk back to us, to ask questions because the bottom line is once this trial starts, you're not allowed to say anything and you're really not allowed to ask any questions. So this is your time, this is your chance. This is may be your only chance, so please feel free to speak up. Ask the jurors about biases or prejudices that may affect or even prevent them from being fair to Mr or Mrs. whoever it is. You want them not only to volunteer if they would be prevented from being fair, but whether or not something in their personal life might affect them from being fair. Now, this is time when you really want to personalize your case and yourself to the potential jurors. For jurors to want to share with you, you need to share with them first. So whatever it may be, use something in your life and say to the jurors, for instance, "I've never liked strawberry ice cream. "I don't know what it is, "just something about it I just don't like." Now if this case was about the taste the strawberry ice cream, I might not be prevented from being fair, but I certainly would be affected by my preexisting prejudices. Now, certainly a jurors when I use a story like that tend to laugh and it puts them a little bit more at ease, but I'm not trying to be glib and I make that point out to them. I'm trying to show you how, based upon my circumstances, I have certain things about me that would affect, or even prevent me from being fair in that certain circumstances. So how about this set of circumstances? Do you have anything about your life that might affect or prevent you from being fair to Mr. Jones here. Start to develop your challenges for cause. Now this is my warning to you folks, never cross examine a juror. That's not your function. Leave that, the cross examination, for the police officers and other witnesses. You wanna be friendly, you want to be nice, you don't wanna be attacking and you wanna let them talk. And you have to develop any challenges for cause. And that's important. I've had situations, I'll give you one brief story. I had a case many years ago where I was trying a case and it was clear from the juror that he wasn't gonna be fair to my client. And he, you know, the prosecutor was astute enough to say, "Well, but Mr. Smith, "certainly you'll put aside your personal feelings "and be fair to the defendant in this case, won't you?" And he said, "Of course, of course," then he would say one terrible thing after another and then the prosecutor would say, "But you could be fair in this case, right? "This won't affect you in this case?" Then he would take the bait and of course he would say, "Yeah, of course I can be fair to this defendant." Now I had a very good judge and she knew me and so she gave me a whole lot of range. And so when I first got up there, after I did my introductions and my preliminary aspects, I asked my client to take a seat in the audience and I turned to the judge and I said, "Your honor, may I with your permission, "invite this individual down for a moment." And she kind of gave me a nod and she said, "Go to it Bobby." And I invited him down and I said, "Now Mr. Jones, please come here, "why don't you take a seat." And the seat that Mr. Smith, you know, when I didn't say my client, but just so you understand Mr. Smith had been sitting in. And I had him sit in there and then I walked into the jury box and I sat amongst the panel of potential jurors and I sat in that seat. And I said to him, "Now Mr. Smith, sometimes life is a matter of perspective. "I understand from your perspective, "when you were sitting here in this seat "and saying certain things "about your personal experiences and your life "that you were being certainly truthful and candid with us. "And from your perspective sitting in the box there, "you felt that you could be fair. "But now I've changed the perspective a bit, "I've put you at council table, "and now you're sitting in the seat of the accused. "If I were to make the statements that you just made "and you were sitting in that chair, "would you think that perhaps "you wouldn't want this individual, me, "making these statements to be the individual "who was sitting in judgment of you?" And he thought for a moment, and he looked at me and he said, "Yeah, I don't think I'd want him to be my juror. "That's for sure." And the panel laughed. And I said, "So, just so I can be clear here, "your perspective when you're sitting there is that, "no, you wouldn't want this individual "to be sitting on your jury panel. "Now, if we were to switch back, "and well, I'm gonna have you switch back in a moment, "and your perspective is the one you were originally in, "would it be fair for me to say that "maybe now that you've examined the other perspective, "that notwithstanding what you said earlier "to the prosecutor about trying to be fair "and in fact being fair "that maybe this isn't the case for you?" And he gave me a very thoughtful look and he said, "Yes, you're right. "I shouldn't be sitting on this case." However, you may do it, that's how you have to do it. You have to identify, you have to ask the right questions, and be fair with the individuals as they respond to you. It is very important for you to identify the bad jurors as well as the good jurors. You wanna look at both of them and you need to develop reasons why they are either good or bad, just don't take a feeling. You know, I like to say this to people all the time when I pick jury panels. I say, "Listen, folks, "i you think that I will understand you "after standing up here and talking to this panel "for 20, 30 minutes, "it's just not gonna work. "I've been married for 38 years now "and even now I can't figure out my wife half the time." To which I get a laugh from the jury. "So I'm certainly not going to expect 20 or 30 minutes "spent with you as a group that I'm gonna figure you out "or know which way you are, "but I just want the opportunity to speak with you. "And I want you to be candid with me." And that's an important concept. I also point out to jurors in the very beginning, "Folks, you're certainly sworn to be truthful here, "but I'm asking you to be a little bit more with us, "not just truthful, "but I want you to be candid. "For instance, the judge asked you a question, "has anybody in your family "ever been affected by a drunk driver?" And you may be sitting there and saying, "Well, nobody in my family was affected, "but my best friend, Joe, "who was like a brother to me was." But that's not what they asked. Well, I understand that. That's not the direct tech question that you were asked, but I want you to be candid with us and I want you to say, "Well, my family, no, "but my friend, who's like a brother, yes." And then tell us why. You need to, if you are going to exclude a juror, be prepared to challenge for cause with specific statements or actions by that juror. So make note of that. Group dynamics are key folks. Group dynamics are key, I'll repeat that. First of all, unmask the hater or the blamer, that person in the jury panel who blames everybody else for their problems, who just dislikes the individuals. And as you speak to the jury, you'll find that there is a strong leader amongst that group. They might be not be a strong leader in general, but this is group dynamics. And the person who is strongest in this group will emerge and they will dictate the direction of the deliberations in this case. It's your function to find out who they are because this strong leader is the person who will wanna take on the task of leading the group and the responsibility of completing that task correctly. And research has shown that non-leaders will have no or little impact on a verdict when a strong leader is present. Followers yield to emergent leaders. They tend to follow what they are told. So if group dynamics are keyed and emergent leaders, or the science of emergent leaders is important, then let's take a look at that science. Who are leaders? Well, they are the people in charge. Whether it be at work, at home, in life. Leaders are not afraid of a challenge. They're not afraid to ask questions, to express their opinions, to take control. They're the people who feel comfortable telling other people that they are wrong or telling them what to do. And while there are certain generalizations, they tend to have more money and more education than others. They're not afraid to express themselves and they tend in their lives, in their jobs to be supervisors. So pay attention to what type of career or education that you have to see if that dovetails with the facts of your case. Leaders tend to lead in volunteer organizations because they want to control a narrative. So it isn't just that they volunteer, it is whether or not they take a leadership role when they volunteer. So somebody might say to you, "Well, I'm a member of the Boys Club." "That's terrific, what do you do for the Boys Club?" Well one might say, "Well, I just mentor boys." Or not just but, "I mentor boys and I help with them." That's great. But somebody who might say, "Well, but I run the organization," or, "I run this facet of the organization, "and I set policy and I do this." Well that's the leader folks. That's the person you want. Teachers, firefighters, clergy, police officers, nurses are leaders even if they're not supervisors, why? Because they tend to take control of a situation. So look at somebody, not just if they're a leadership role in their job, but is it the type of job that requires them to take leadership upon themselves? People with professional degrees tend to be leaders. Now, one of the questions that you should always ask or at least one of the issues you need to determine in picking your jury, is does the potential juror on the panel believe that people should be personally responsible or do they tend to believe in the concept of socially or social responsibility? In other words, if a person believes that an individual needs to take personal responsibility for their actions, they're a bad leader for a defendant. So builders, police officers, the person who blames other people for their mistakes, those are bad leaders for a defendant. And when I say people who blame others for their mistake, I immediately think of Donald Trump or comedian Larry David. These are people who their personality is no matter what happens, somebody else's responsible, they never take blame themselves. Well, they're gonna be horrible for your client. Socially responsible people though, the people who are better for defendants are those who try to help others. Helpers, servers, volunteers, those are the people that are better. Real estate salespeople are an example of a leader because they are in a high performance, manipulative profession that tries to get people to sell or buy or spend more. So that's somebody you should look for. And here's a tell, listen to how the person speaks during voir di in front of the group. Is the person carrying the room? Do the other jurors listen to them with wrapped attention? who is dynamic in their speaking? Who is looking you in the eye? Or conversely, who is looking downward? That's important for you to notice, and that's important for you to take into consideration. Here's another question, how many times have you ever supervised other people at work? What was the job? And how many people did you supervise? That's the type of question you want to ask. How many times have you ever supervised people in a volunteer organization? Or you know, somebody says, "Well, I like to spend my time, "I play a lot of soccer." Well, that's terrific. Or, "Do you play on an organized team?" "Yes." "What is your position?" And they might say, "I'm a forward." As far as who runs the team, "Who runs the team?" "Oh, that's me." Well, that's telling you something folks, that's telling you they're a leader. They like to direct other people. They like to organize other people. They supervise them. So you want the person who's not just on the sideline yelling for their child to do well, you want the person who volunteers to be the coach of the team. That is the person who is the emergent leader. Now again, of course you want an emergent leader if that emergent leader is somebody who is going to be good for your client. Conversely, if they're an emergent leader and they, as I discussed a few moments ago, or somebody who blames everybody else for all the problems and is going to be a bad person for the defendant, well, that's the first person you want to get rid of 'cause they're gonna be terrible for you and they're going to lead this situation. And of course the question, have you ever been a fore person of a jury? If they've been a fore person of a jury, well then you know they're going to probably be the fore person on your jury. And so you have to focus in on them. And if you get a lawyer in your panel, let's say you get an individual who's a civil lawyer. I don't know much about criminal, but they're a lawyer. Well, they're probably going to be your foreperson. They're probably gonna dictate everything because they're the lawyer, they're the person with knowledge of the law. So the other jurors are going to automatically defer to them. So that's the person you have to pay special attention to. And what about social media? Well, social media is what I call the bumper sticker of this era. And what have they posted and why have they posted it? Now, I like to say that jury selection is a team sport. What do I mean by that? Well, when I pick a jury, I'm not the only one there helping with the jury selection. Certainly my client is helping and I want their observations, but I also have a team, whether they be in the courtroom or back in the office, who are paying attention. For instance, I'll have my assistant back in the office, I will send them a list of the jurors and they'll immediately Google the names. They will check to see what kind of social media background they have. Have they posted anything? Especially if they posted anything today, "Oh, I'm in jury selection, "I got this DUI case, I hate DUIs." That's the type of thing I wanna know. So what have they posted and why have they posted it? What are they reading? What are they watching? What are they liking? What are they reposting? And are the postings inclusive or exclusive? Do they blame others or do they show compassion to others? Again, that's important because the blamers are gonna be bad for your client. The compassionate people are gonna be good. So what do they say in their postings, in their social media? That will be a very good means of finding information. And ask, what I call attitudinal questions. How many people here believe that the criminal justice system does not work? And then you might follow up with somebody who says, "Yeah, I don't think it works." Well, "Why don't you think it does not work?" Because just because they don't think it works, don't be suckered into thinking, "Oh my God, that's a perfect juror for me." Cause next thought may be, "Yeah, it doesn't work because too many guilty people "walk free." So you have to ask them the why, "Why do you think it does not work?" And then you find out what they think. And I also like to say to jurors, "Listen, the law cannot tell you how to feel. "You have the right to have and to express your opinions "as a juror, during your deliberations, "will you promise to follow how you feel "in your deliberations?" Another thing to consider is, does the potential juror need to follow the rules in their life or in their job? Accountants, mathematicians, people who figure things out using numbers will look at the numbers of the issue. Are they bound to always follow the rules even if the rules are bad or stupid? While nurses, or fire rescue personnel, or leaders, their contact with police officers and their contact with individuals involved in unlawful activity may lead them to have the need for medical care and they may end up being bad for your case. But don't assume that folks, ask. Ask, don't naturally assume that what they're doing is going to be either good or bad. Ask the question. Now I mentioned this before about jury selection being a team sport, don't pick the jury by yourself, even if you're the one up there, even if you're the only one at council table with your client. You need people in the background helping the you to check the social media and backgrounds of the jury. Quite frankly, folks, when I'm not talking and the prosecutor is up there at the beginning, or the judge is droning on asking a lot of basic questions. I'll listen to the questions, but I'll also be checking social media and other things or some of the jurors myself. Information is key. Finding the information and then using it. And I hate to say it, but we've become a very balkanized society. So political affiliation, which you can glean from local voter records, can be very important. I mean, I don't wanna generalize here, but especially under the circumstances that we've seen for the last few years. If your potential juror is a Democrat, chances are they're gonna be far more likely to be better for your client than if they're Republican. Again, that's a general statement, and I'm not gonna take it just by that alone. That's not enough for me to say, "I'm gonna pick this particular person "to be the juror on my panel," but it's a factor you need to consider. And you also need to look at social media accounts and those statements to make the determination. Then the next thing I'd like to discuss with you is what I call the first six in the box question. And I learned this early on in the early 80s when I was a young prosecutor and I was assigned to a rather bombastic, but very bright judge, by the name of Arthur I. Snyder. And even though judge Snyder never handled a criminal case as a lawyer before he ascended to the bench, he asked a simple but very clever and wonderful question that you should be asking. And it really deals and drills down on the burden of proof in a criminal case, which can be a very sticky subject for jurors. Let's understand this folks, most individuals in the jury box only have a very generalized notion of such concepts as reasonable doubt and burden of proof. And simply stated, most potential jurors do not really understand these legal concepts. They don't understand these legal concepts at all. So one of the best methods that I have found to help teach potential jurors about the prosecution, the burden the proof, is what I call the first six in the box. And this is, you know, right after I introduce myself. I will walk up to the jury panel and I'll say, "Folks, let's say the judge decided suddenly "that it was not necessary for us to question you, "in fact, this is such a smart and astute panel "and you're so qualified that it's not even necessary "for you to hear the evidence "or listen to the facts of the case. "Let's just pick the first six in the box, "let's bring them back in the jury deliberation hall "and let you decide the case. "How would you vote?" Now most jurors, and I've been doing this for decades now, most jurors respond, "I don't know, I haven't heard the evidence yet." That of course is the incorrect answer. But rest the assured folks, you will have at least one juror correctly point out that under such circumstances, they are voting not guilty and then you'll turn to them and say, "Well, why is it you'd vote not guilty then?" And they'll say, "Well, because he's presumed innocent, "and without the presentation of any evidence, "that's what we're required to do." The defendant's presumption of innocence requires us to find them not guilty. And it is extremely important that everyone in the jury understands this. And I drive this point home further by asking if any of the jurors would feel uncomfortable with the fact that they cannot be fair and impartial in this case. And they're suddenly thinking, "Wait a second, what did he say? "I can't be fair and impartial?" And I'll say, "That's right." You know, the prosecutor earlier, when he got up to speak, he said, "Oh I just want you to be fair and impartial." Well what he said to you by saying that he's actually, he's trying to get you to violate the law because of the concept of the presumption of innocence and the requirement that the prosecution prove its case beyond and to the exclusion of every reasonable doubt. That means that at the start of this trial, you all must be partial. You must be partial for Mr. Smith. You must be thinking he's not guilty, and hey, Mr. Prosecutor prove it, and you better prove it beyond any reasonable doubt, because otherwise I'm with Mr. Smith. And I even had a case, with the same judge, by the way, as the jury selection where I ended up moving the juror or potential juror to the council table and sat him in the defendant's chair in another trial. I then I followed my that up and I said, "So folks, you can be partial, right? And they said, "Yes." And I said, "Come on folks, "you can be a little louder than that. "You are partial? And they yelled, "Yes." "And so as you sit here, "you believe that John Smith is not guilty." And they repeated, "John Smith is not guilty." And I said, "No folks, "this is a presumption of innocence. "You have to say it louder." And they literally, by the time I got done, were yelling that my client was not guilty. And this is important for you to understand and to make sure that they understand. They have to be on your side. I've even used the term, our team. You must remain on our team throughout this trial unless the prosecution proves each and every element of the offense beyond and to the exclusion of all reasonable doubt. And folks, I gotta tell you if you follow sports at all, you know that even if you're watching a game and you're not particularly, you know, partisan of either team, we have a tendency to suddenly root for one team or the other. It's just human in nature. So what you wanna do is get them to understand that not only are they required to root for your client, but that they are required to root for your client, they have to be on your team. Now grounds may exist if the juror refuses to accept such constitutional concepts as the presumption of innocence, or the right to remain silent, or to decline to present evidence. I mean, one of the questions I'll ask is "Folks, I can't give you an answer right now "because no decision has been made, "but ultimately Mr. Smith here "may choose not to testify in this case. "And if he makes that decision, "the judge will even instruct you, "that you cannot consider that. "Is that acceptable to you if he makes that decision?" And if they say, "No, no, no, I've gotta hear him, I've gotta hear him," then you have grounds to have them off. And I've listed in the materials several cases on that subject for you to consider. Now this next area of discussion is what I call stock raving madd, mad with two d's. One of the things you also should do is question prospective jurors about their ties to the insurance agency, excuse me insurance industry, insurance agencies, and such organizations as Mothers Against Drunk Driving, MADD, for short. Students Against Drunk Driving, SADD, or other agencies or organizations that advocate positions potentially prejudicial to your client. While a donation to MADD does not automatically disqualify a juror from serving on a DUI jury, a juror's statements about his potential service on the jury may lead to his exclusion for cause if it's more than just, "I gave some money." So these are the type of things you have to ask. And another thing that's important to ask is to find out how has alcohol or if alcohol has adversely affected their lives. You should ask them, "Has alcohol or drugs affected them or their lives, "or the lives of their family or friends." If a juror feels uncomfortable talking about this in front of the entire panel, you can even invite them to discuss it in private at a sidebar or an in camera review. But asking such a question may allow you to identify the DUI haters or the alcohol haters in your panel or those who during the pressures of deliberations will think back to how they were beaten by their intoxicated father, or embarrassed by their drunk mother at the high school party, and transfer their angle to your client. And you especially want to discover those who have had a drunk driver injure or kill a friend or a loved one. Another area you should inquire about, do they believe that the police are always right? There are a number of cases that say that if a prospective juror states that she would give more weight or credibility to a police officer's testimony, that statement may provide you with sufficient grounds to challenge that juror for cause. But you have to drill down on that a little bit more, you can't just ask and have them say that. "So is it fair for me to say that if you, in this case, "have the police officer testifying, "you will give them more weight "than you will to the testimony of somebody "who's not in law enforcement." And again, that may well be enough grounds to get them off and quite frankly, it also is enough for you to think, "Well, if I can't get them off for cause, "I don't want this person on as my jury." The person you want more on your jury is a person who's not gonna believe police officers blindly, and in fact, somebody who's gonna be skeptical of what a police officer may testify as to. The next area that you should address is how bad a driver are you. Inquiry should be made of a person's driving habits in a DUI case. The more one drives, the more they will likely be able to identify with the concept that somebody weaving as they're driving doesn't necessarily mean that the person is drunk or even had been driving. That sleep deprivation can affect one's driving ability, and the fact that there are just too many terrible drivers on the road. So ask them about that, "How many times have you been driving? "Have you ever found that maybe you were weaving?" Or I had a case where my client was stopped at a stoplight and then didn't immediately move. And I asked the question, "Well, have you ever had a situation where, "you know, you were stopped at a stop light "and because you weren't moving, "you decided, oh, I'm gonna look down on my phone "and check my emails or my text messages "and then suddenly you had somebody beep you. And everybody on the jury said, "Of course I've had that happen plenty of times." "Well, sir, were you drunk at the time?" "No, of course I wasn't drunk." So that wasn't an indicator that you were impaired in any way, shape or form. Absolutely not. You also wanna ask the potential juror if they've been pulled over by the police. What was their experience with the police like? What was it like for them to be pulled over by a police officer? Again, that's an important thing to drill down on. Because if they had good experiences, well, that doesn't tend to work for you. But if they've had bad experience, if they felt the officer was abusive, or just being very random in their comments and their statements, and even the reason why they pulled him over, well folks, that's what you want. That's leading you to a potential juror for your case. And of course, in a DUI case, you need to find out, do they drink alcohol? Once you as defense counsel have thoroughly explored the potential juror's backgrounds, the next area of critical inquiry should be their drinking habits. And you should elicit not only the frequency and amount of a juror's consumption, but also their attitude towards other people who drink. A general rule in DUI cases is to prevent any member of the panel who places any kind of restriction on his or her drinking, from sitting on the jury, sorry. For it is difficult to imagine that such a juror would have any sympathy for somebody with a more liberal lifestyle than their own. So if somebody says, "Oh, I don't drink at all." Or, "It's terrible." Or even, "I used to drink, but I don't drink anymore, "I abstain." "Why do you abstain?" "Because I couldn't control myself." Well, that may not be a good person for your jury. And when moving to challenge such a person for cause, it is usually not enough that that jury is a teetotaler without showing something more. So again, you have to establish something, showing that the juror is prejudiced against those who are not, and that's actually a United States Supreme court case. Green v Georgia at 519 US145. 519 US145, a 1996 case where the Supreme Court of the United States said that the defendant must show that the potential juror's views would prevent or substantially impair the performance of his duties as the juror and in accordance with his instructions in oath. So tamp down on the reasons why they don't drink. If they don't drink because they were beaten as a child, "Yeah, my dad was a drunk, "he couldn't control himself, "he used to beat us and that's why I don't drink." Well, that's not the type of person you want on your panel. Now, how do you come combat the situation where somebody says terrible things, makes them sound like they're gonna be a horrible juror for your client, but then they're rehabilitated by the judge or the prosecutor, and they say, "Oh, I could be fair and impartial." When you clearly know that they cannot be. Well, certainly that example I gave you is not gonna work in most situations. Most judges are not gonna let you invite them to sit in the defendant's chair and change their perspective. But, it's important for you to then get them to try to admit their bias. So you can commend them for your honesty, and you should commend them. "Mr. Jones, I appreciate you're being honest here "in saying that you don't like it "when other people drink and drive, "even if it's not against the law. "And I appreciate that, "but you do understand "that we do not have a zero tolerance in this state, "or any state for that matter. "In fact, in front of every restaurant and bar "that serves alcohol in town, "there are parking spots. "Why? Because you're not only allowed to, "but you're even expected to drive there "and then drive home afterwards." Commend them for being honest, commend them for being candid, but then follow it up with the question that I call the zinger. "Now, Mr. Jones, "it's not likely that your feelings in this regard "are going to change over the next few days "or hours of trial, is it? "So these feelings that you have, "even though you'll try to be fair, "they're not going to be different. "You're going to think this way "and that's going to affect how you think in this case." Even if the juror states that he or she can be fair and impartial in your case, sometimes such an answer is not sufficient to withstand a motion to exclude or excuse that juror for cause. And I've given you a number of cases that talk about this that you might find helpful in your case. And here's a tip, if a juror or potential juror who you feel should not be seated on the panel, must be struck by one of your pre-emptory challenges, recognize that in order to perfect the record on appeal in the unlikely event, of course, that your client is convicted. The law requires you to exhaust all of your peremptory challenges, and then for you to ask and then be denied permission to have additional challenges. And you also need to proffer that there would be other objectional jurors that you would seek to remove from the panel if you had additional challenges. That's required in most cases. So if you don't go those additional steps, exhausting your pre-emptory challenges, and then asking for and being denied the additional challenges, well then you may not be successful and it may have be considered to have been waived, and always be ready to make a proffer. "I was prepared to excuse this juror, "I believe he could not be fair because of X, Y, and Z "and this is why I need additional challenges." It's also important folks to incorporate your defense or your theory of defense, if, of course you have one, and you should by this time, into your jury selection. I'll give you an example of one that I used a long, long time ago when I was a young defense attorney. I had an individual who refused to submit to the breath test and prosecutors love to get up and say, "Oh, he refused, he knew he was guilty, "it's circumstantial evidence of a guilty mind. "Why would an innocent man?" Now mind you, you can limit what the prosecutor can say, because they're not allowed to say a lot of things that they say, because a defendant has no burden to prove their innocence, it's this prosecution's burden to prove guilt. But if they handle it correctly, they're going to say, "Well, they refused "and they knew that that would be used against them." Well, right around this time, the great Johnny Carson, Yes, I'm that old that I saw Johnny Carson on TV every night, late at night. And Johnny Carson had just been arrested for DUI, and here he is the icon of late night television on TV after he'd been arrested for DUI out in California, getting up there and saying, "You know, folks, I have to address this, "I was arrested for DUI the other night "and I took the breath test and it failed me. "Those things just don't work because I wasn't impaired, "I had very little to drink." And so I addressed that head on because that was important to the theory of defense I hadn't my particular case. And I asked him, "How many of you folks watched Johnny Carson "and almost all the hands were raised." And I said, "Any of you watched the show "after Johnny Carson had been arrested for DUI? "When he got up on national television and he said, "You know, folks, I was innocent, "I took the breath test, they don't work. "It failed me and it just doesn't work, "it's unreliable?" And a couple of people raised their hands and said, "Yeah, I remember that. "I remember hearing them say that." So Mr. Smith, after you heard an icon such as Johnny Carson make that statement, if you had been arrested shortly thereafter for DUI and then asked to submit to a breath test, would you have submitted to a breath test? If they say no, well then you've incorporated your theory of defense. If they say yes, and quite frankly, I did, I did have people when I asked that question say, "Yes, I'd take it anyway." You mean when somebody has gone on national television, somebody you watch and you respect, and they tell you that the tests are unreliable, you would take it anyway? "Yeah, I would still take it." Well then that's probably not the juror you want. And very often you'll have people who their lawyer friends will tell them, "Never take a breath test." And so I've asked that to people. "Hey, any of you have friends? "Have you ever maybe at a cocktail party "asked your lawyer friend what you should do "if you were ever stopped for DUI "and should you take a breath test? "What did they tell you?" "Oh, they told me never to take the breath test." "Well, what if you're not impaired "or you haven't been drinking a lot? "Do you trust your judgment on that "or do you listen to your lawyer friend?" Now, I don't even necessarily have to have testimony that showed that my client was told this, but I've predisposed the people on the panel to think, "Oh, that's why you didn't take it, "cause he was following a lawyer's advice." And that's important because if you have a theory of defense and you better well damn well have a theory of defense, use it there, and that's how you use it. And it is error for a judge to prevent you from asking questions that address your theory of defense. I know that sometimes prosecutors will object to it, they will say, "Oh he is getting into the theory of his defense," which I love because then the jury is thinking, "Oh, he's already got the facts, "that's already a fact." But at least in where I practice in the state of Florida, Florida Supreme Court, in the Lavado case, L-A-V-A-D-O, L-A-V-A-D-O at 492, Southern Second, 1322, that was a 1986 case. The Florida Supreme Court stated, "The issue presented in this case "is whether the trial court erred "in refusing defense counsel's request "to ask prospective jurors "about their willingness and ability "to accept the defense of voluntary intoxication. "We believe the trial court's restriction "of defense counsel's questioning on Vordia "denied Lavado his right to affair and impartial jury." And as one of the judges even point out that if he knew nothing else about the prospective jurors, the single thing that defense counsel needed to know was whether the prospective jurors could fairly and impartially consider the defense of voluntary intoxication. So what are the key takeaways from this lecture? Well, let's start with the first six in the box. Hit that presumption of evidence, excuse me, presumption of innocence, not presumption of evidence, presumption of evidence right up front and address the issue of the burden of proof at the very beginning. Make the jurors understand that the defendant has no burden. In fact, one of the things, and I forgot this one when I told my first six in the box story. One of the other things I always do is I'll say, "Listen folks, "if Mr. Smith and I wanted to sit at defense table "and read a newspaper, "we're permitted to do so. Now certainly that wouldn't be very nice, it wouldn't be professional, wouldn't be polite, and quite frankly we'd never do it because of that. But we're allowed to do that. The only requirement of an individual who is accused is to be present. That's it, we have to be here. We don't have to ask any questions, we don't have to present any evidence, we don't have to have anybody testify and Mr. Jones doesn't have to testify. So as you've already indicated, you understand that that's important. And I'll sometimes throw in, especially being in south Florida with our large Cuban population, I'll say, "You know, there's a country "about 90 miles offshore here, "they call it Cuba, "and they do it the other way around. "If the government says you're guilty, you're guilty. "Period, end of story." Trial, we don't need a trial. We the government say you're guilty so you're guilty, end of story. Would you rather do it that way? And of course the jurors immediately say, "No, no, don't want it that way." What else to take away? Group dynamics are key. Who's your leaders, who's your followers. Identify the leaders, identify the people who are going to direct the jury deliberations, who are going to direct how things go. What is the juror's personal belief system? Are they personally responsible? Or are they socially responsible? Do they make others take responsibility for their errors? Do they blame others? Are they a blamer? Or are they somebody who's more willing to accept that people aren't perfect. Jury selection is a team sport. Don't do it alone. Invite members of your team to help, you need to do that. You need to have people in the background helping you out, doing a deep dive on everyone in your panel. Next, a juror's driving and drinking history can be a clue. So you wanna ask a potential juror's information about it, how much they drive and how much they drink. Has alcohol adversely affected their lives? Find that out and incorporate your theory of defense into your questions. So there you have it folks, after almost 40 years of trying DUI cases, not to mention many other criminal cases, here are some of my thoughts. I hope they do you well, and I hope you're successful. In fact, if you're successful, drop me line, let me know. Let me know what worked for you, maybe what didn't work for you, maybe some of your thoughts. What could I do better myself next time? How can I add to this lecture? Thank you again for thinking of me. This is Bobby Reiff, it's been a pleasure speaking with you.