What is the State's Burden of Proof?
In relationship to the burden of proof, the manner in which the lawyer communicates (and educates) just how high "beyond a reasonable doubt" is to a jury, often is the difference in a conviction versus being found not guilty of the drunk driving charge. It is not necessarily what the lawyer says; rather, it is the manner in which he says it. If the jury does not think the burden is very high, it will take less evidence (and less convincing from the prosecutor) to convict you. One reason why I am so successful in trial is my ability to have the jurors realize just how high a burden "beyond a reasonable doubt" is.
The following is, in a nutshell, how I go about explaining beyond a reasonable doubt to jurors, and as you can tell, it is a very high burden.
The State of Maryland must prove your guilt "beyond a reasonable doubt", which is the highest burden of proof in the justice system. It is not defined, but we do how other burdens of proof have been described.
The lowest burden of proof is called probable cause. Have you ever received a ticket that you disagreed with (as opposed to just not liking the fact you received the ticket)? This level of proof is less then a 50-50 chance that you violated the law, but is all the officer needs to write you a ticket, or to arrest you.
The next highest burden of proof is called a preponderance of the evidence. This amount of proof occurs in civil courtrooms where people are suing each other for money. A preponderance of the evidence is proof amounting to you being 51% correct.
The next highest burden of proof is called clear and convincing evidence. This burden applies to child custody cases. This amount of proof will cause a juror to have a "firm belief" in the matter to be proved. To let the jury understand just how high this burden is, I find two women on the jury panel. I then will ask "Ms. Jones, I want you to look over at Ms. Smith sitting next to you. She has children. How much evidence do you think the government would have to have before they could take Ms. Smiths' children away from her?" I ask several other jurors the same question. I then ask "Ms. Jones, how much evidence would the government have to have to take your kids away from you?" I record their answers and will use them in my final argument. Jurors have told me that the amount of evidence the government would need to take children away would have ranged from "a whole lot," "tons," "beyond a shadow of a doubt," to "I don't think the government could ever have enough to take my kids away!"
Beyond a Reasonable Doubt is the highest burden of proof. Although not defined, it is a much higher burden the clear and convincing evidence. Why? Your freedom is on the line! A jury must have more then "tons" of evidence that you were intoxicated before they could find you guilty. This is a very simple, yet extremely convincing manner of making a jury understand just how much evidence is required before they can convict a person, thus branding them a criminal for the rest of their life.
Simply put, if a juror has a single doubt, based on reason, as to a person being intoxicated, they must follow the law and find them not guilty.
What Are Field Sobriety Tests?
Field Sobriety Tests (FST's) are psychophysical tests used to assess a person's physical and/or mental impairment. They focus on the abilities needed for safe driving. Most of the more reliable psychophysical tests are known as "divided attention" tasks. They require a person to concentrate on more then one task at the same time.
To safely drive a car, a person needs to be able to simultaneously control steering, breaking, and acceleration; react to constantly changing driving environment; and perform many other tasks. Alcohol affects one's ability to adequately divide attention, thus causing drivers to concentrate on more difficult tasks while ignoring simpler ones (i.e. ignore a traffic signal while concentrating on one's speed). Even if impaired, most people can successfully concentrate on a single task fairly well, but when impaired, most drivers cannot successfully divide their attention between multiple tasks at once.
Divided attention tasks are designed to evaluate mental and physical capabilities a person needs to safely drive a car. They include information processing; short-term memory; judgment and decision making; balance; steady, sure reactions; clear vision; small muscle control; and coordination of limbs. A good FST will combine any two or more of these capabilities simultaneously. A test must also be reasonably simple for the average non-intoxicated person to perform.
The most common FST's used by the police include the three standardized tests consisting of the Horizontal Gaze Nystagmus tests, Walk & Turn test, and the One Leg Stand test. These three tests have been validated as reliable indicators of intoxication, although they are not 100% accurate. Other commonly used, but non-standardized, tests include counting backwards, saying the alphabet (or a portion of it), finger count, and the stationary balance (Rhomberg) tests.
In reference to the three standardized FST's, the government has admitted, and it is printed in the police officers DWI manual, that "IT IS NECESSARY TO EMPHASIZE THIS VALIDATION ONLY APPLIES WHEN: THE TESTS ARE ADMINISTERED IN THE PRESCRIBED STANDARED MANNER; THE STANDARDIZED CLUES ARE USED TO ASSESS THE SUSPECTS PERFORMANCE; THE STANDARDIZED CRITERIA ARE EMPLOYED TO INTERPRET THAT PERFORMANCE. IF ANY ONE OF THE STANDARDIZED FIELD SOBRITY TEST ELEMENTS IS CHANGED, THE VALIDITY IS COMPRAMISED."
Horizontal Gaze Nystagmus (HGN)
This test refers to the involuntary jerking of the eye as it gazes to the side. When this occurs, the person is unaware of the jerking, and cannot control it. This involuntary jerking becomes noticeable as persons' blood alcohol increases. This is the most reliable of the FST's. However, nystagmus is a natural, normal phenomenon. Alcohol and certain drugs do not cause this phenomenon.
When the HGN test is administered, the officer hold a stimulus (usually a pen) 12-15 inches in front of you eyes and asks you to follow the stimulus with your eyes, without moving your head. The officer will always start with the left eye and they are looking for 3 specific clues:
1. Lack of Smooth Pursuit:
As the eye moves from side to side, does it move smoothly or does it noticeably jerk (bounce)? The jerking is similar to how windshield wipers jerk across a dry windshield. There is a standardized pace the officer is to have the eyes move side to side. From the center of the face, they are to move the eye all the way out to the side in approximately 2 seconds, then 2 seconds back to center, approximately 2 seconds to the other side, and 2 seconds back to center. They are to repeat the procedure. If they have the eyes move too fast, not only are they performing the test improperly, the government has admitted tha
2. Distinct Nystagmus at Maximum Deviation: When the eye moves as far to the side as possible and is kept in that position for several seconds, is there distinct jerking (bouncing) of the eye. The eye is to be moved all the way to the side, and kept there a minimum of 4 seconds. Interestingly enough, some people exhibit slight jerking of the eye at maximum deviation even when unimpaired! Also, if the eye is moved to the side too quickly, this may cause the nystagmus.
3. Onset of Nystagmus Prior To 45 Degrees: As the eye moves towards the side, does it start to jerk (bounce) before it reaches a 45-degree angle? When moving the eye out to 45-degree's, the movement of the eye should take approximately 4 seconds to reach 45-degrees. It is important to take the full 4 seconds when checking for onset. If the stimulus is moved too fast, the officer could take your eye beyond 45 degrees, or if the eye is moved to 45-degrees too quickly, th
The maximum number of clues in each eye is 3, for a total of 6 clues. The original research has shown that if 4 or more clues are present, the person is intoxicated. This test has been shown to be accurate 77% of the time; therefore, it is inaccurate 23% of the time!