I Wish I Had An Opening Statement


Connecticut does not generally permit opening statements in criminal cases. Indeed, they are so rare I am aware of a case in which a brand new prosecutor once spent several days picking a jury. Once the group was emplaneled, the young woman stood up, looked at the jury, and gave an opening about the state's case. A motion for a mistrial was granted before she finished the first paragraph.

I am used to that rule. I think it justifiable as it gives me a free hand. I needn't make commitments to the jury early on. Reasonable doubt may be all the defense my client needs. It is the state's burden after all.

But I am wondering just now. Today is day two in a trial in which my client is alleged to have driven an automobile while under the influence of alcohol. A head-on collision resulted in the death of two of her young children, and injuries to to her surviving child. Both the client the the adult passengers of the other car were seriously injured.

The press has a copy of the warrant. It repeats the state's allegation that her bllod alcohol was .12 at the time of the accident. This is not a per se DUI case, so the blood numbers aren't conclusive proof. The state still needs to prove impairment. But the number is well over the .08 limit on the DUI side.

Of course, the warrant does not report all the reasons to doubt the test. The test was conducted two hours after the crash. It is in an enzyme test relying on an enzyme produced in the liver. Yet the client's liver was lacerated during the accident. What's more, the test does not discriminate between ethyl alcohol and other forms of alcohol. And trauma can yield abnormally high readings on the test. These are all reasons forensic labs don't rely on the test. We'll have to go over all that in painstaking detail on cross examination.

Public reaction to the case seems keyed to the press headlines, however. One paper, The Connecticut Post, ran a story that attracted more than 100 comments, many of them exuding hostility toward my client based simply on what they read. I worry now that jurors on this case will hear the number and shut down, just as many readers of the paper have.

Would opening statements matter in this case? I'll never know. For the next couple of weeks I will simply trust that jurors will obey their oaths and agree to listen to all of the evidence. Then I'll hope to walk my client out the door a free woman: The simple truth is that the dozen or so people she was with in the hours before the accident did not see her drinking and saw no evidence of impairment.

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© Norm Pattis is represented by Elite Lawyer Management, managing agents for Exceptional American Lawyers
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