5.5 Trial Strategy and Tactics

• Library: Defense of Serious Traffic Cases in Virginia (Virginia CLE) (2022 Ed.)

5.5 TRIAL STRATEGY AND TACTICS

5.501 Case Evaluation.

After gathering all information and facts available in the case, counsel must evaluate what is likely to transpire if the case goes to trial. The analysis of the case is an extremely important step in achieving the best possible outcome for the client. Counsel must decide whether a trial will be successful and worth the risks associated with undertaking it. The meaning of success may be relative and must always be viewed in light of what the client most wants or needs to accomplish. For example, if a client is content with accepting a reckless driving conviction instead of risking a conviction for DUI, and this plea has been offered by the Commonwealth, the risk of a trial may be best avoided. The client should always be fully informed of what counsel views as the risks involved if the case goes to trial.

5.502 Admissibility of Evidence or Statements.

To evaluate the strengths and weaknesses of a case, counsel must be familiar with the rules of evidence. If a particular piece of evidence is not admissible, counsel must recognize that fact and gauge how important its omission will be to the case. It may be that there is a technical deficiency that will keep out the certificate of analysis, or perhaps a lay witness whose testimony is the only link that establishes the time of the vehicle's operation is not present in court. The attorney will often have to make a quick judgment about the potential admissibility of a piece of evidence and how valuable it might be to the defense. With the less formal practice of the general district courts, the decision is often made on the day of trial or even after trial begins. Counsel must be alert and prepared to take advantage of an opportunity that presents itself.

5.503 Scientific Evidence.

Defense of DWI and the serious traffic cases involving excessive speed requires an understanding of the scientific methods used to measure and record the evidence. The scientific principles on speed are discussed in Chapter 6 of this book, and the scientific principles in DUI cases are discussed below and in Chapter 7. Counsel should also be well-versed in the underlying scientific legitimacy of field sobriety tests. ¹¹⁰⁹

The attorney should review the following National Highway Traffic and Safety Administration (NHTSA) studies that standardized the proper administration of the field sobriety test battery:

1. "Psychophysical Tests for DWI Arrest," DOT HS-802-424 (1977), accessible at: rosap.ntl.bts.gov?/?view?/?dot/?1186;

2. "Development and Field Tests of Psychophysical Tests for DWI Arrest," DOT HS-805-864 (1981), accessible at: rosap.ntl.bts.gov/view/dot/1325; and

3. "Field Evaluation of a Behavioral Test Battery for DWI," DOT HS-806-475 (1983), accessible at: rosap.ntl.bts.gov/?view/?dot/?1428.

These studies fix the accuracy of the standardized test battery at around 82 percent overall, which is similar to the reliability of the polygraph, a test that is not admissible as evidence in Virginia. Some of the tests reflect no more than a 65 percent...