Time to Get Your Standardized Field Sobriety Test Training

I’ve made no secret about how important I think it is for any criminal defense attorney who handles DUI cases to learn all they can about SFSTs. I’m a practitioner and instructor of SFSTs, and the knowledge I use everyday to question police officers is extremely valuable. I can use the information to not only develop issues for suppression, but I also use the training against officers at trial to disprove their opinion that my client is driving impaired. I always find it disheartening when attorneys are so quick to encourage their clients to plead guilty in a DUI case without even exploring the possibility that the SFSTs administered can be used to their benefit. My firm is known for taking cases to trial, and we always question officers about the administration and results of SFSTs at all stages of the case, from preliminary hearing to suppression to trial. If you’re an attorney practicing DUI, I highly suggest you receive the National Highway Traffic Safety Administration (NHTSA) training in SFSTs.

Lucky for you, Billy Reynolds over at Brighton Lewis and Anthony Palacios at IDS Consulting will be presenting the updated NHTSA DWI Detection/SFST Practitioner course May 16-18, 2014 in St. Louis, MO. This course is great not only for people who have no training in SFSTs, but also for those attorneys that have already been through the training, as the 2013 manual has enough updates to teach a 6-8 hour course.

There are many benefits of taking this course with Billy and Anthony. There will be not 1, but 2 national DWI consultants teaching the course. You’ll receive hands-on training, as the course involves a live alcohol workshop on both Friday and Saturday. You’ll also get the benefit of hearing guest speakers, networking, and receiving the 2013 NHTSA DWI/SFST manual along with other training materials. If that wasn’t enough, the course is being held in a fantastic location – the Ameristar Resort and Casino in St. Charles, MO.

The course fee is $750 and includes all the above training, continental breakfast all three days, lunch Friday and Saturday, and so much more. You’ll receive plenty of CLE credits to make it worth your while. For more information, click here. And remember, this training could make the difference between winning and losing a case!

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Women Lawyers: Working in a Man’s World?

When I started law school in 2007, I knew that the legal field was still one dominated by men. According to the American Bar Association, at that time women only accounted for 30.1% of the over 1,000,000 lawyers in the country. Only 17.9% of partners at private law firms were women, and only 16.6% were general counsel at a Fortune 500 company. The numbers were just as low for female judges at the federal level. Now, 7 years later, women still only account for 33.3% of all lawyers, 19.9% of partners, and 21.6% of general counsel at a Fortune 500 company. What I’ve learned in my time as a practicing attorney is that many of the men in the field, especially the older men, and even some of the women, believe the field is a man’s world and do not treat the women as equals. Here are just a few of my experiences.

There’s one county that I absolutely hated going to when I first started litigating because nobody believed that I was an attorney. They have a very old school way of thinking, and even the tipstaff who check people in and run the courtroom are of an older generation. So, when I first started going, I would attempt to check in and would have to stand there and convince people I was an attorney despite the fact that I was in a suit, carrying files, and pulling a rolling suitcase behind me. When I would give the staff my name, the most common response was “oh, are you a court reporter?” No, I’m an attorney, I’d reply, and once they got over their shock they’d change their attitude and be much more professional with me. Despite the same staff working the court every time I went down there, it still took at least a dozen trips to that court before they stopped asking me that question and actually recognized me as an attorney. Another time, in that same county, I went into the courtroom, suit on and files in hand, and tried to walk to the front and speak with my incarcerated client. The sheriff stopped me and said I wasn’t allowed up there, although I saw a gaggle of male attorneys talking to their clients. I asked him if he was denying my client his right to speak with his attorney, and the male sheriff shook his head and said “oh sorry, I thought you were his girlfriend” and let me through. Apparently I’d been demoted from court reporter to defendant’s girlfriend.

In another county, I’ve built a very professional and friendly working relationship with the district attorneys there. So, during a day of status hearings for pending cases, the DA called my case near the top of the list and ahead of many of the older male attorneys. When I returned to my seat I overheard two male attorneys complaining about how quickly I’d been called when I was clearly younger than them. As I gathered my things I jokingly said it must be that I’m there too much. One of them said “actually, no, I think it’s just because you’re blonde.” If I’d been a young man called before this guy, do you think he’d say something like that?

My first time in another county (which, by the way, is very small and backwoods), I wasn’t sure how they ran their hearings so I stopped and asked one of the men who had just been having a friendly conversation with another gentleman. He refused to help me and said “what do I look like, a Public Defender?” and walked away. I assumed he didn’t think I was an attorney and thought I was a pro se defendant trying to get free legal advice.

These are just some of my favorite interactions with male attorneys. But these types of experiences don’t stop with attorneys. I’m definitely treated differently by clients than the male attorneys in my office. I can’t tell you how many times I’ve covered hearings for one of the male attorneys in my office and been treated incredibly rudely and disrespectfully by the client, only to be told by the attorney I was covering for that they’d never had that problem with that client. I’ll do consults with potential clients who will then tell me they’d like to speak to one of the male attorneys before hiring our firm, or that they want one of the other attorneys to represent them just because I’m a woman. On the other hand, I have one client who hired me just because I’m a female because he said I’m a very good looking young woman. In his mind, we’ll get at least one male on the jury who will side with me just because of my looks, which means he’ll get a not guilty verdict despite the horrible facts of his case.

Thankfully, the PA Bar Association has a very active Commission on Women in the Profession on which I serve. Its purpose is to advance and empower women in the legal profession. Through that committee I was assigned a female attorney mentor, Lisa Benzie, who is just as dedicated to empowering women, especially women lawyers, as I am. She’s encouraged me to attend things like the PBA Women in the Profession retreat, the Dauphin County Bar Association DIVA award presentation, and become more active in the committee. This has certainly given me a new outlook on being a female working in a man’s world. I no longer take it personally and almost laugh when things like this happen because it is so ridiculous.

Once men see me in action and watch what I’m able to do as an attorney, I always get more respect and a completely different attitude than before. Obviously, I’m still treated differently and probably will be for quite some time. I have a strong support system that I can vent to, but more importantly, I have teammates who are helping change the legal profession from a man’s world to one of equals.

Making Jury Selection Personal

Recently, I represented a client in a jury trial. I’ve done a lot of jury trials before, but this was my first time in front of this particular judge. Every county handles their jury trials differently, and every judge within every county handles jury selection differently. When selecting a jury, we conduct what’s called “voir dire,” which is essentially questioning the panel of possible jurors. I’ve selected juries in several different counties in front of different judges, and one thing I always do with my panel is tell a story to humanize myself and illustrate to them what we mean when we ask them “can you be a fair and impartial juror?” This time, though, I was hit with a peculiar admonition by the judge that I never expected.

Everybody in our country has the right not only to a trial by a jury of their peers, but to have a jury that is fair and impartial. When I conduct the voir dire, one of the things I’m looking to see is if there is anybody on the panel of potential jurors who would not be able to remain fair and impartial for any reason. Everybody has biases based on their own life experiences, so I always try to explore those and strike for cause anybody who would not be able to put aside their biases and render a fair and just verdict.

It’s important to humanize yourself when conducting voir dire. Jurors need to know that you’re not just some big bad defense attorney (or plaintiff’s attorney). They need to like you. They need to trust you. The way I do that is to always start or end voir dire with a story about myself and the type of jury I couldn’t sit on. I do this because it not only makes me more endearing to the jury, but it puts into simple terms what I mean when I ask them, could you be fair and impartial? The story I tell is as follows…

The point of voir dire is not to find the jury we think is most likely to rule in our favor or help us win a case; rather, the point is to find people for whom this is the RIGHT jury. Let me give you an example of what I mean by that. I’m extremely active in animal rescue. I volunteer a lot and am passionate about saving homeless and abused animals. In fact, I have two rescue cats that I love, and if anything happened to them, I’d be devastated. So, if I was called into jury duty and the defendant was charged with animal cruelty, I couldn’t sit on that jury. Because of my experiences with animal rescue, I would want that person to be guilty and be punished for what he or she did. I couldn’t put my bias aside, so it wouldn’t be the right jury for me. With that in mind, does anybody feel this wouldn’t be the right jury for them?

By the time I’ve told this story (which, by the way, is 100% true), the judge and the DA have asked numerous questions, including specifically asking if the jurors can be fair and impartial. But this story inevitably leads to at least one or two people, sometimes more, who raise their hands and say it’s not the right jury for them. They almost always volunteer why, and I can usually strike them for cause. I’ve now been able to connect with the jury, plus I’ve identified jurors who shouldn’t be on my jury but otherwise may have been picked had I not illustrated what we mean by fair and impartial.

At my recent trial, as I have in all my other jury trials, I told this story. I’ve never been stopped by a judge before or told that it’s not something I should be saying. As always, I had another person raise their hand and tell me they didn’t think they could be on this jury. Afterwards, the DA and I were called up to the bench for what I thought was our final challenges to people we thought should be excluded from the jury. However, as soon as the DA and I got to the bench, the judge immediately asked the DA if she wanted a new panel of jurors. We were both completely confused as to why she would need a new panel to choose from, until the judge began reprimanding me.

The judge informed me that he’d better never again hear me tell a jury that I could not be fair and impartial. According to him, as an attorney, I’m an officer of the court and it’s therefore my job to remain fair and impartial. Telling potential jurors that I couldn’t sit on a jury for a case is completely inappropriate, because it makes them think it’s okay to admit that they have biases and shouldn’t be picked. Mind you, all of this was done in front of the jury. When he was done, he just stared at me. I think he was waiting for me to apologize or say he was right or something. I just stared back, mainly because I wasn’t sorry, and I didn’t think he was right.

I had two problems with what he was saying. First of all, just because I’m an officer of the court doesn’t mean I’m not human. Developing biases through life experiences is natural. It’s why the Disciplinary Board gives attorneys an out when confronted with a client they can’t adequately represent because of these personal beliefs. It’s why the Code of Judicial Conduct requires judges to recuse themselves in cases where they have personal biases they can’t put aside. For this judge to tell me I’m required to be fair and impartial at all times in every case, simply because of my chosen profession, astounded me.

Second, when he said it would make jurors think it’s okay to admit their biases, I almost said to him, well, it is okay. That’s the point of voir dire. We question jurors about their life experiences and preconceived notions for the sole purpose of figuring out who is able to sit on a jury and fairly assess the evidence presented to them. If they’re told a story that helps them see they can’t do that, why is that a bad thing? They should be encouraged to admit this. Otherwise, we could just do away with the voir dire process, draw names out of a hat, and hope for the best.

Although this will not stop me from using this strategy when selecting a jury, I’ve learned this is something I can’t do in front of this judge. I’ll continue to tell my story in front of every judge that allows me to. It’s a great way to personalize myself to the jury and discover who I definitely don’t want determining the guilt or innocence of my client.

You Have the Right to Remain Silent…

So why does everyone keep talking? The 5th Amendment right against self-incrimination is quite possibly the most well-known of all the Miranda warnings. In every crime drama on TV (and in real life, for the most part), the very first right that is read to people being arrested is “You have the right to remain silent. Anything you say can and will be used against you…” Despite knowing this, I’d be willing to venture a guess that 90% of the people who call me volunteered information to the police that ultimately affected their case negatively. What should you do if you come into contact with the police?

First, and most importantly, BE QUIET!!! There is absolutely no reason for you to give any more information than the basics. No matter how many questions the police ask you, you’re never required to answer them. The police may try to scare you into talking, but don’t take the bait. Now, I’m not saying you should act like a jerk or be completely uncooperative with the police; admittedly, cooperating with police can work in your favor when it comes to things like ARD applications, plea deals, and trying to get charges dropped altogether. But cooperation and admission are two very different things.

Consider the following example: We’ve all been pulled over when driving. And I do a lot of driving. On average, I drive about 3,000 miles every month. Statistically, I have a better chance of getting pulled over for a traffic infraction than the average person, and yes, I’ve been stopped on my way to court or some other location more times than I’d like to admit. The first thing a cop always asks is “do you know how fast you were driving?” I’ll tell you what, when I see that cop car with his radar gun, the first thing I do is look at my speedometer, so yes, yes I do know how fast I was going. Have I ever admitted that to the officer? Absolutely not! My response is a simple, no, sorry. I have all my information in a spot in my car where I can quickly find it and hand it over to the officer so that any communication time is limited. I’m polite and cooperative, but I never volunteer any information that could possibly be used against me in the future. Why hand the officer what he needs to give me a citation?

The scenario I see most often is people volunteering their drinking habits when pulled over for a possible DUI. This drives me crazy! At least once or twice a week I have a client call and tell me that when the officer asked if they’d been drinking, they actually admitted it. Their reasoning is that they wanted to be honest with the officer and thought their honesty would help in avoiding charges. I’m going to let you in on a little secret – this honesty will probably NEVER help you avoid charges. What it will do is give the officer probable cause to arrest you. A simple admission may not be enough by itself, but the standard observations we then see are the subjective ones that are hard to disprove, like odor of alcohol, slurred speech, and bloodshot, watery eyes. They will also use any (even minimal) bad driving to come up with probable cause. They will also make you do Standardized Field Sobriety Tests (SFSTs), which a lot of people can’t satisfactorily complete even sober.

Essentially, when you start making admissions, you start giving the officer what they need to prove their case against you. This is true in all kinds of cases, from summary disorderly conduct all the way up to assault and even more serious charges. DON’T DO IT!! Exercise your right to remain silent! Without your admissions, it makes it more likely for me, as your attorney, to be successful in winning your case. I can’t tell you how many cases could have been won at suppression or even trial had the client just stopped talking.

What’s the lesson here? To become a belligerent jerk with the officer? Absolutely not. The lesson is to provide minimal, basic, required information only. Limit any communication with the officer. You shouldn’t lie, either. If a police officer asks you questions that could help them prove a case against you or that would be an admission of something potentially illegal, don’t answer it. You’re not required to. Be polite, be cooperative, but be quiet. Make the officer prove his case, don’t prove it for him. When you don’t have criminal charges against you, or they can’t prove their case, you’ll thank me.