I had a DWI trial last week in a New Jersey (Passaic County) Municipal Court. The verdict was not guilty. My client was relieved because a conviction would have created a lot of havoc on his career. I have tried hundreds of DWI cases from start to finish. Every case is different and requires specific and sudden judgment calls that have to be made as the case is ongoing.
In this case, we retained an outside “expert” witness who was available for the trial. After the State’s case was put in, I elected not to call the expert to the stand, and we (the defense) rested. I was able, through careful cross examination, to neutralize the State’s case and evidence. I determined that calling our witness would allow the defense to poke a few more holes in the State’s case. However, the prosecutor, who is very seasoned and respected adversary, would in all likelihood, have strengthened the State’s case through his cross examine of our witness; in effect turning our witness against us. I determined that the benefit of calling the expert was outweighed by the possibility of an already weak case for the State being bolstered.
On occasion, I will elect not to call a witness after the State has rested. In this case, the State called one witness and rested; we called no witnesses and rested. The State bears the burden of proof beyond a reasonable doubt. In this case, the judgment call was that the State’s case was not proven beyond a reasonable doubt. Sometimes, lawyers make the mistake of calling witnesses and eliciting testimony when the State has not proven their case. This common error simply allows the State to turn around a weak case. The decision to rest and not call our witness was the correct one. After closing arguments, the Judge found reasonable doubt and acquitted my client of DWI (N.J.S. 39:4-50).