Prosecutors Often Commit Professional Misconduct in DUI Trials

The trial of an alleged drunk driving brings out all sorts of personal biases and strong opinions. In their zeal to gain convictions, prosecutors, often without realizing it, violate their professional ethics. The most common place this happens is during opening and closing arguments. But it often happens during the jury selection question and answer period called voir dire.

The reason certain statements are considered misconduct on the part of a prosecutor is such statements have a disproportionate influence on a jury, misstate the law, or introduce something irrelevant into the process for the juror’s consideration. When a jury finds a defendant guilty or not guilty based on something other than an application of the law as given by the judge, the result is “nullification.”

A great example of this is shown in the case of DiDomenicis v. State, 49 A.3d 1153 (Del. Supr., 2012). In this case, the prosecutor’s opening statement contained the following: (1) when you get a license, and you can operate a motor vehicle, you have a great responsibility, and that responsibility is to yourself, obviously, but also to every other driver on the road. (2) Every day … we see articles and videos about people who get arrested for DUI. Sometimes their first; sometimes their seventh or more; sometimes they’ve been pulled over thanks to a citizen who called 911 or an alert police officer; sometimes because they cause property damage, or they have injured themselves or others. (3) The DUI law was created to safeguard the lives of every citizen on the roads of the State of Delaware. (4) When the General Assembly wrote the DUI law, they wrote it to encompass not just the most minimal conduct possible, driving down the road, but the broadest spectrum to provide the maximum protection to the citizens of this state, and (5) [W]hy so broad? Why not just the people driving down the road? Because the goal is to stop people who are under the influence before they drive away and cause havoc on our roads.

Amazingly, the defense attorney did not object to these improper comments. On appeal, the court nevertheless did find that the statements were improper.

The court based its determination on a case that indicates that for a prosecutor to urge a jury to convict a defendant in order to prevent the local community from becoming as violent as another locale is objectionable for several reasons…. [T]o appeal to the jury’s fear that a failure to convict may increase violence in their community suggests a personal risk to the juror…. [T]o direct the jury’s attention to a societal goal of maintaining a safe community is to direct their view from the task at hand.

The court found that “there is no higher societal goal for a juror in a criminal case than the determination of guilt or innocence on an individualized basis.” The court also found that there was no question but that the prosecutor failed to adhere to the American Bar Association’s standards governing prosecution and defense functions.

Guarding against prosecutorial misconduct isn’t always easy. First, the DUI defense trial lawyer must know what is and is not prosecutorial misconduct. Then, the DUI defense lawyer must recognize it immediately when it happens, object, and depending on the circumstances, seek a mistrial. A failure to object can sometimes mean that mistakes that happen are “waived” by the DUI defense attorney, making objecting all the more important.

For more information about prosecutorial misconduct, see Patrick Barone’s article entitled: Prosecutorial Misconduct During Closing Argument in OWI Cases or call today to schedule a consultation.

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