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 Is The
Charge?
At the outset, we will assess what crime or crimes you are accused
of committing. This will be determined by the prosecutor when they
file the complaint against you.
A complaint
is the name given to the paper setting out the alleged violations
of law. The complaint is the legal document that brings you to court
and starts the legal process against you.
Usually in a
DUI case, you will be charged with two separate criminal offenses:
(a) of the Maryland Vehicle Code,
driving under the influence; and,
(b) of the Maryland Vehicle Code,
driving with a blood alcohol level of .08% or higher.
You will also
most likely have a license suspension matter before the DMV. This
is not a criminal offense. It is a civil proceeding before an administrative
agency, the Maryland DMV.
The matter before
the DMV will be brought under the Administrative per se suspension
law. This is almost identical to the per se criminal charge, 23152
(b) driving with a blood alcohol level of .08% or higher, which
you will also be facing in the criminal case.
The
Arrest
In a DUI case, an arrest can be made in one of two ways: 1) an on-view
arrest; or 2) after an accident where the police did not actually
see the driving.
A court can
also issue an arrest warrant. This is generally the case if you
fail to appear in court after receiving proper notice to do so,
or if you were previously on probation and failed to perform any
conditions of that probation order.
Certain legal
rules govern the arrest process and our office will analyze the
controlling law to determine if a valid legal arrest has taken place
and what remedies exist if you were not legally arrested.
The details
of the arrest are important for many different legal reasons. We
will be looking to legal defenses that either substantially or procedurally
block the prosecution, which may flow from the arrest process itself.
The
Judge
The power that the judge has over your case is considerable. In
the federal court that power is almost absolute.
The judge's
role in the case is to decide questions of law and to apply the
law as fairly as possible to your case.
For most defendants,
the first contact with the judge is at arraignment, which generally
marks the first time one comes to court. Arraignment is nothing
more than the judge advising the defendant of the charges that have
been filed by the prosecution. Our office almost always waives your
personal appearance at the arraignment so that you do not need to
attend this court appearance. We then set the case down for further
proceeding, usually a pre-trial conference date.
The only thing
that the judge can do at the arraignment is to accept your plea,
set bail and continue the case for further proceedings. The judge
will not entertain any discussions as to the merits of your defense
to the charges; those issues will be taken up at a later date in
the litigation.
Later in the
course of the case the judge will also hear all pretrial motions
that will be filed by our office. We will conduct legal research
and determine what are the appropriate motions to file to best serve
your defense. These may include motions to limit or exclude certain
evidence and to discover the evidence that the prosecutor intends
to offer against you at trial. If there are such motions, and usually
there are, then these will be later argued by counsel and ruled
upon by the judge.
The success
or failure of these various motions will, in large part, determine
the legal strength or weakness of your case. The judge will then
be in a position, later at the pretrial conference, to attempt to
settle the case by discussion with both the prosecutor and our office.
If your case is not settled or dismissed, then you will probably
be going to jury trial. The judge presides over the trial ruling
on legal questions, while leaving questions of fact to be determined
by the jury.
If your case
is in federal court, there is not a jury and so the judge becomes
the final arbiter of both legal and factual issues. This is perhaps
the area where the judge has the most power over your case. By the
time the trial begins, the judge has determined how the trial will
be conducted and what evidence will be received through pretrial
rulings.
Pretrial
Procedure
Almost 60 to 70% of our cases will be settled without having to
go to a jury trial. Therefore, the pretrial proceedings are very
important in trying to get your case either dismissed or settled
with a non-DUI disposition.
Pretrial procedures
most often relate to the filing of motions that can dispose of the
case without the necessity of a trial. However, there are other
pretrial motions used for purposes of preparing the defense that
do not go directly to a dismissal of the case. An example of this
is the motion for pretrial discovery. Here, we seek to ensure we
are in the possession of all of the evidence that exists in the
case which the prosecution has in its possession. If a discovery
order is violated, some sanction may be imposed by the court but,
in all probability, it would not result in a dismissal of the case.
Misdemeanor
DUI
Your first appearance before the court will be the arraignment.
The arraignment is simply the judge informing you of what offenses
you are specifically charged with, and you informing the judge how
you are going to plead. The court will not hear any defenses to
the case at this time. If you already have a lawyer by the time
of the arraignment then you can ask the judge for a continuance
to obtain the services of an attorney. The judge will generally
not ask you to enter a plea at this time without counsel and will
generally give you reasonable time to secure the services of an
attorney.
Once our office
appears and the plea of not guilty is entered, the court will then
set the case down for a pretrial conference. The aforesaid procedure
at the arraignment can vary from county to county. For example,
in some counties, the court will set the matter for a pretrial conference
as well as a jury trial date right at the arraignment. Other courts
may set a date for a pretrial conference to explore the possibility
of disposition and settlement before setting a jury trial date.
After the arraignment
we will be pursuing discovery. The discovery process is available
for you to determine what evidence the prosecutor has to prove the
charges. We will want to see if the prosecutor can prove all of
the elements of the crimes you are charged with committing. If so,
then you have to explore any and all legal claims, which may prevent
the evidence from being used at the trial.
Once the pretrial
motions are heard and ruled upon by the judge, the case should be
ready to proceed to trial. Sometimes the court, or our office, will
want to set a further date for the purpose of one last pretrial
conference. This period of time between the hearing on the motions
and the settling date can give the parties one last chance to reevaluate
their positions and decide whether or not to run the risk of trial.
Felony DUI
*If you have been arrested for a DUI with
injury, then you may be charged with a felony offense.
A
crime under Maryland law, which carries a minimum sentence of
at least one year in the state prison, is defined as a felony. Some
crimes are defined in the Penal Code as "wobblers." This means the
prosecutor could charge them as misdemeanors or felonies. In a DUI
with injury, 23153 (a) and or (b), the prosecutor can still charge
the offense as a misdemeanor if little or no serious injury was
involved.
All felony offenses
are first brought before the court for arraignment, pre-preliminary
examination motions and preliminary hearing. All felony charges
have two levels of proceedings in Maryland. They start in Superior
Court where the judge sits as a magistrate to determine whether
or not probable cause exists for you to be tried. If the judge finds
that there does exist probable cause, then you are "held to answer"
and arraigned again for trial.
Federal Charges
If you have been charged with a federal DUI, and it is a misdemeanor,
then you will be notified by the United States Attorney's Office
that a complaint will be filed against you. It may also happen that
you may be taken right away following your arrest before a United
States Magistrate. A Magistrate functions in a misdemeanor case
like a judge. You have the right to have your case tried before
a United States District Court Judge, but this is rarely done in
most misdemeanor cases. Usually your case will remain in the Magistrate's
Court for all proceeding.
The procedure
for a federal misdemeanor is rather straightforward. You will be
arraigned, at which time you will be informed of the rights you
have before the court as well as the charges which you are accused
of committing. The court will ask for a plea, if counsel represents
you, or the court will continue the case for a short period of time
in order for you to obtain counsel for your defense.
Once a not guilty
plea is entered, the case is continued for a pretrial conference
or for a future setting date. At this time the court will be informed
by the parties whether or not there is a settlement or disposition
in the case. If this happens, then the case is resolved otherwise
it is set for further litigation. Usually, pretrial motions will
be set along the lines of what has been discussed in the preceding
misdemeanor section regarding pretrial motions. It is not unusual
for some pretrial motions to be brought and heard before substantial
settlement talks can take place. If the case still is not resolved
then it will be set for trial.
In a federal
misdemeanor, you have the right to a jury trial if your punishment
could exceed six months in jail. Otherwise, you only have the right
to a court trial, that is, a trial presided over by the federal
magistrate who will decide if you are guilty or not guilty from
the evidence. In the four federal district courts located in Maryland,
you will probably not be entitled to a jury trial, only a trial
before the U.S. Magistrate.
The
DMV And Your Driving Privilege
One of the most important issues to address in your case will be
your attempt to keep your driving privilege. For most people, this
is looked upon as an absolute necessity and often may very well
directly relate to your ability to make a living.
You
only have 10 days from the date of arrest to request a hearing before
the DMV. If you do make the request then a stay of the
driving license suspension will be issued. You will maintain full
and complete driving privileges while the stay is in effect.
The information
set out below supplies the Department of Motor Vehicles with the
information legally necessary to obtain a hearing. You do not have
to supply any other information at the time you make the request
in order to receive a hearing date or the stay of your license suspension.
Your hearing request however must be made within ten days of the
Notice of Suspension. The ten days are calculated by counting the
first day as the first day after your arrest
