How to Prepare for an OUI Trial

By Russell J. Matson, Esq.

http://madrunkdrivingdefense.com

Why is Preparation Important?

Client Control Credibility (ADA, police officer, judge) Memorize the facts of the case

Use of client questionareSite visit Trial analysis letter

Organization is Key: The Trial Notebook

Sectionalize Running Sheet Police Report Breath Test Documents Medical Records Discovery Motions Evidentiary Motions Motions in Limine Opening Statement Cross-Examination Closing Argument Sentencing Post Trial Motions

Running Sheet

First page of the trial file Client contact informationCourt informationNext court dateExplanation of what was done on last dateJudge(s) present at next court date

Breath Test Documents Police report will be the main source of information on the

arrest and will be reviewed by arresting officer before trial Look for breath test information in the police report:

BAC level and paperwork from the machine Refusal

Chemical Test Refusal Hearing – 15 days from date of refusal at the Registry of Motor Vehicles Limited to 3 issues:

1) reasonable grounds to arrest; 2) there was no arrest; 3) there was no breath test refusal (most common)

Medical RecordsIf applicable, medical records can be very

helpful to a caseGet HIPPA release signed ASAP so you can

evaluate the recordsRecords can help challenge reliability of field

sobriety tests

Motions Discovery MotionsEvidentiary Motions

Motions to Suppress StatementsMotions to Suppress Stop

Motions in Limine

Cross-ExaminationCross-Examination

Start with standard cross-examination issues/methods

Before trial, cut out the parts that do not applyHelps you go over how to question each witness

Opening and Closing Statements

Prior to trial, make bullet point outlines of openings and closingsHelps familiarize with facts/theme of the caseGives you a reference guide during trialEven if you don’t use them at trial, they will help

you stay organized before and during the trialWriting out outlines can encourage you to use

canned openings/closings/metaphors that you normally would not use

Sentencing and Prior Offenses

Prior offenses: Run the clients RMV record to check for prior offenses

Client information needed: SS #, DOB, License # $6.00 to run a record

In pretrial conference, request copy of the prior(s) Ways to challenge prior offenses

Non-compliance with pretrial conference report/discovery Biological information: “It’s not my client” Certified copies

Motion To Reinstate License

The Site Visit When?

ASAP to make clients happyCloser in time= more reliable

Why? Doesn’t take a long time More productive talk with the client while conducting site

visit Record and TranscribeTake photographs of the scene

Site Visit PhotographsTake Photos while on the visit

Photos can challenge FST conditionsMake you appear to know the case inside and out

Use the photos at trial Give 4’ X 6’ photo to ADA as part of reciprocal

discoverySubmit 8’ X 10’ into evidence at trial Use Shutterfly.com

Small photos very cheap - $0.25 Larger are $4.00

Field Sobriety TestsTesting Manual

Can request at: Massachusetts State Police Training, 31 Macarthur Ave,

Devens MA, 01434-4443 Motion required for state police Motion not required for municipal police

Conditions of roadwayReliabilityNo valid comparison point Driver disqualifying conditions

Booking Video Find out ASAP if there is a booking video

Can request it from ADA at arraignment or pretrial conference Watch and discuss it with the client

Formulate your own opinion regarding the client’s behavior Have someone else in the office watch and evaluate the client’s

behavior Allow opportunity for the client to watch the video

Transcribe it Helps you analyze the strength of the case Familiarizes you with everything that was said/done during booking

Seek to admit certain portions of the video

How Much Time Does it Take to Prepare?

Once you have the process down, the preparation doesn’t take a ton of time (if you do it right)

Bar Advocates…

Trial Analysis Letter Why write a trial analysis letter?

Client confidenceFacts of the caseGeneral trial procedureSend to client 2 weeks before trial

Reaffirms theory of the caseOrganizes the factsHelps commit facts to memory Analysis of sentencing issues/ license loss issues

Witness Preparation Meet with potential witnesses prior to trial

Mock direct examination Mock cross-examination Use other attorneys in the office to play the mean prosecutor

(this can lead to fun office battles and the opportunity to beat on people!)

Helps you determine if they will be a good witness at trial Helps ease the anxiety of the witness before taking the stand

Answer their questions Go over the trial procedure and the trial strategy

Shows the client you are working on/preparing for their case

Trial versus Plea You should have an idea about which way you may go by

knowing your clients record Running the RMV record before the pretrial date is good policy Avoids rush of having to do so at the courthouse, or being

unsure when discussing the case with the ADA Discuss both options with the client well before the trial date Deciding factor tends to be the license loss consequences

Consider differences between 1st, 2nd, 3rd, etc. offenses and the corresponding license loss consequences

Avoid guilty verdicts on ancillary charges Ex: Negligent Operation, Leaving the Scene Convictions on these carry mandatory license losses

The Trial

Organization and preparation are keyBe pleasant – to witnesses, ADA, judgeDon’t be afraid to work outside your prepared

opening, closing, cross-examinationOpening/closing strategies won’t be used unless

you write them out/practice themGood to have opening and closing notes at the

trial even if you don’t use them

Creating and Maintaining Positive Rapport

Continuous client contact If responsive to client calls, there ends up being

less contact in the long run and the conversations you have are more productive

Modern-Day contactPhoneEmail Text

Taking calls, discussing the case and other life hardships, makes happy clients!