“I want to get on the stand and tell the jury my side of the story.”
Most of us have had clients who have said that (or something very similar) while sitting across the desk from us. The decision to testify is a choice that can only be made by the client. While I try to discourage it when my client is charged with driving while intoxicated, I have some clients who think they want to testify. If they do, I have an obligation to prepare them for what they will face in the courtroom.
This method of preparation will either discourage your client from taking the stand in a DWI trial or it will make him a more effective witness.
The most effective way to prepare your client to testify is to bring in another attorney. I prefer to have the other attorney handle the direct examination of my client. I will discuss the particulars of the case with the attorney and have him draw those details out from my client. This serves two purposes. First, since my client is not used to talking to anyone else about the case, it creates a sense of nervousness. Second, I find it beneficial to get a second opinion about the case.
I then take the role of the prosecutor. Since I know the case inside and out I know the weak points and how to exploit them. It also helps to keep my client off his guard. When I cross examine my client I use three trap questions prosecutors love to ask a defendant at trial. I call them trap questions because your client is in trouble regardless of his answer.
Trap Question No.1: “Have you ever consumed alcohol to the point you were intoxicated?”
There is no “correct” answer. If the defendant says “no,” then the prosecutor will ask how he knew he wasn’t intoxicated at the time of the traffic stop. If the defendant answers “yes,” then the prosecutor will ask how often he drinks to the point of intoxication. No matter how he answers, the prosecutor will portray him as either a liar or a chronic drunk.
Trap Question No. 2: “How many drinks does it take you to become intoxicated?”
The only “correct” answer is “it depends.” I explain to my client that the number of drinks depends on how long he spent drinking, whether he was eating and his mood. For instance, six beers might sound like a lot, but not if they were consumed over a four-to-six hour period at a backyard barbeque. Of course, those same six beers in a bar over a two hour span is a different story.
This question is a trap because of the follow up question. Once the defendant gives a number, the next question is:
Trap Question No. 3:
“Would you drive your child to school if you had consumed __ beers?”
The prosecutor will fill in the blank with the previous answer minus one drink. Any rational person would answer “no.” However, the damage is done by the question alone. If the defendant says he would drive his kid to school after drinking five beers, he will not have many friends left in the jury box. If he says he would not drive his kid after drinking five beers, he’s all but saying he would be too impaired to drive safely after five drinks.
After undergoing this cross examination, most of my clients decide they would rather not take the stand at trial. The clients who continue to insist on testifying, even after my advice, are better prepared to deal with the prosecutor.