Driving under the influence is one of the most common jury trials to cut your teeth on as a new prosecutor. I got my chance my second trial in. The case essentially revolved around the discovery of an abandoned vehicle in the roadway which was had major damage to the driver’s side of the vehicle, it was missing a tire, and had been driven quite a distance on three wheels. The defendant was located approximatley 30 feet away lying down behind a hill. Defendant admitted to drinking (he was a .20% BAC) but not to driving. Gouge marks in the road showed that the vehicle had crossed double yellow lines and hit a guard rail on the opposite side of traffic; the vehicle had been driven until it no longer functioned. Witnesses put the defendant, and his vehicle, at King’s Tavern hours prior to the collision. Oh and defendant was on probation for a DUI at the time of this offense with terms that included no drinking and no driving with any amount of alcohol in the system. Sound’s solid right?

Not so much.

Defendant took the stand and claimed “his friend” was the one driving the vehicle and that “his friend” had taken off after the vehicle was disabled. Names will not be used here, but the very experienced defense attorney I was up against provided a name, and conveniently, a death certificate, showing that the friend had died approximately 2 months after the collision. Additionally, while we had witnesses from the bar telling us defendant had arrived in the vehicle alone and had been drinking, no one actually saw the defendant leave.

It was a “no drive defense” and a good one. We ended up with a hung jury in this case, and not a good split. 11 jurors for not guilty and 1 for guilt. The issue being that we just could not show beyond a reasonable doubt that defendant’s story of a friend driver was not a reasonable explanation of the facts as they were. No one observed the collision. The vehicle was discovered by law enforcement during routine patrol. And while the vehicle was associated with the defendant, no one could tell the jury he was the one driving it away from the bar that night. And let’s not forget, the claimed was dead. Lastly, the height and weight of the friend and our defendant were such that we couldn’t use the positioning of the driver’s side seat to make any kind of factual argument as to who the driver was.

One of the most frustrating things about this particular case for me is that in criminal law we have a reciprocal rule of discovery. Both sides are required to give over evidence they intend to use at trial. Prosecutors have an additional burden to turn over all exculpatory evidence. I’m certain that had the defense attorney provided information about the “friend,” driver in advance this case would have been reevaluated prior to trial to determine whether or not we should proceed. Instead, we did it after the court declared a mistrial. We determined that a second jury trial would not acheive a different result, after recontacting the bar and the patron witnesses just to make sure they didn’t have any additionaly information about the “friend” and his whereabouts that night.

One of the things we do as prosecutors when a case ends in a mistrial or a not guilty is to attempt to reach out to the jurors to find out what evidence they were looking for, to see if there were credibility issues with our witnesses, and to see which elements of a particular crime was difficult for them with our presentation of the evidence. This part of my job has helped me learn what jurors are looking for in cases such as this, where the defendant claims he wasn’t driving and in others. I have modified my presentation in future cases, as well as my charging decisions based on these difficult conversations.

Justice is sometimes served by not proceeding on a case when the outcome isn’t going to change. A significant amount of public resources go into every single jury trial, no matter the charge. We ask the public to take time out of their lives to perform one of the most basic, and important civic duties we have. Prosecutors are always balancing this public interest in every decision they make and jury trial #2 taught me that this consideration never goes away, even if you have already completed a jury trial in the matter.