Non-Defensive Statement in a Michigan OWI Trial

Question: What is a non-defensive statement in a Michigan OWI trial?

Answer: Well, the idea of a non-defensive statement is that you really, you leave it in the jury’s hands to let someone go. And the last thing a jury really wants to do is be told what to do. Prosecutors are infamous for explicitly coming out and saying, “It is your job to convict that guy,” and telling someone what to do. Nobody likes to be told what to do.

They like to be given information. And if the information fits and matches what they want to do, then they feel good about it. But at the same time, you don’t want to force anybody into it. You also don’t want to say things that are sort of ridiculous. Again, people want to have the information to be able to make their own decision. And a good example, sort of a metaphor that I always use is that John Madden, famous football coach and football commentator, used to say usually in the pre-season, if a team had two quarterbacks, two starting quarterbacks, they didn’t have any. And the reason is because if you really have a defense, that number one defense is going to stand out.

And if it’s not a defense that is going to be very good and you’re trying to use more than one, two, three types of defenses, then the problem you encounter is that no one’s really going to believe them. So, a lot of people want to fight out every element of a drunk driving. But, sometimes it’s pretty clear that our client was sitting in the car. Sometimes it’s clear that our client had been drinking. The question isn’t whether they’ve been drinking—it’s whether or not they were drunk. And so you use non-defensive statements and just simply admit things.

Things that everybody knows and things that actually fit with what actually went on as opposed to what the prosecutor believes happened. And so you say things like, “Well, we’re not going to contest that my client was driving, clearly that was him on the video and clearly he was drinking because he admitted it. And, in fact he was drinking.” Right, that’s not what we’re contesting. What we’re contesting is what the prosecution feels happened, because what they’re doing is simply guessing about a BAC.

In addition, sometimes there’s other defensive statements, or non-defensive statements where your client was absolutely intoxicated, absolutely drunk, but maybe he was not the one driving. You have to sometimes pick a specific type of defense—not in all cases, but again, in most cases. I use the John Madden rule, and that’s if you have more than one defense, you don’t really have any.

So, those are where non-defensive statements would come out, to try and enamor yourself to the jury, try to get them on your side by just simply being an open book, being honest about the things, even if they’re not necessarily positive. You want to be honest about them, because you don’t want to dissuade the jury from taking your side just simply because that you’re trying to hide stuff or tell them what to do.

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