A Tennessee vehicular homicide case is one of the most difficult cases to defend, with the exception of a death penalty case. The reason is two-fold:
1. An individual is alleged to have killed another human being without intending the result.
2. The decedent was living their life and it was taken from them due to no fault of their own.
Two families are in mourning: one dealing with the loss of a loved one, and the other facing the threat of losing a loved one to long-term incarceration. Vehicular homicide bears no intent, passion, nor malice, and in most cases, the defendant is a good person who simply had too much to drink, drove their car, and killed someone.
Years ago I had the opportunity to hear Nashville Trial Lawyer, Eddie Davidson, give a presentation in which he related these themes in trial preparation:
1. Trial is story.
2. Story is drama.
3. Drama is conflict.
In preparing the defense of a Tennessee Vehicular Homicide case, you should consider that the case is, in effect, a play with a cast of characters, a set, and a script, albeit ad-libbed. The principal conflict is easily seen between the driver and the victim's surviving loved ones.
In our society, death is usually structured and brings a commemoration of loss and mourning. When death comes by disease or old age, a family can begin to prepare for the eventual loss; they can take comfort in having the time to contemplate their loved one's life and be able to slowly come to terms of the upcoming loss. In a vehicular homicide case, the loss is immediate with no time to prepare.
Death by vehicular homicide has its own global structure. Vehicular Homicides have given birth to such groups as Mothers Against Drunk Driving (MADD) and Students Against Drunk Driving (SADD). Before the start of Mothers Against Drunk Driving (MADD), there were over forty-thousand Deaths (40,000) deaths that occurred as a result of drunk driving. Since the group has been active that number has come down to around eleven-thousand (11,000). Death by vehicular homicide is difficult to accept for the parents, families, and loved ones due to the pain of such a senseless loss. While death is always filled with grief and pain people find it much easier to accept a loved one's death by disease or age as they are simply a part of the human condition. However, when one loses a loved one in a vehicular homicide incident it leaves the survivors with the shock of a sudden death and gives them no legitimate means of acceptance. The family of the decedent is then left grief-stricken, confused, and most times very angry.
Cast of Characters
The family of the victim will be a major player in the trial, plea bargaining discussions, and the outcome of the case. In dealing with the family I have a few suggestions. First, the attorney should reach out to the family of the decedent to try to comfort the family, have a meaningful, realistic dialogue with them, and provide information such as insurance coverage. Second, the attorney should always be cognizant of the family in early pre-trial proceedings such as Motions for Bond Reduction, Preliminary Hearings, and Motion Hearings. Third, keep in mind the decedent's families reactions will be highly publicized. I would suggest monitoring the family's public activities in regard to the case. The internet is a useful tool when it comes to this. One suggestion is to set up a Google Alert with the name of the decedent or several other key terms to monitor the Internet activity of the decedent's families. Additionally, some newspapers have online forum discussions about cases. For example here, the Nashville Tennessean will post a story and allow public comments to be made. It is very informative to monitor those comments to gauge the family and the feelings of the general public. Also note, social media sites such as Facebook, MySpace, and Twitter are easy ways for families of decedents to keep the public eye on the case and should be monitored accordingly as allowed by current law.
A vehicular homicide case is always a media event; there will be press and television coverage of the event. Vehicular homicide cases draw the media to all aspects of the case and those involved. The survivors are interviewed, the defendants' families are analyzed, and the attorneys are closely scrutinized. The more media attention there is the less likely you are to achieve a good pre-trial disposition. While you cannot ignore the media, you can moderate the negative impact of coverage. The best thing the media can do for you is scrutinize the conduct of the case and publicize the issues. Be guarded about conducting interviews on the case. It is important for the public to see you in the courtroom rather than doing interviews in various settings. One key practice point is to obtain any television reports or videos of the accident, including all outtakes and footage not shown if possible.
The District Attorney in a vehicular homicide case is in a no-win situation, they are caught in the middle of the media and the survivors. The survivors and or the decedent's families have the greatest access to media and also have immediate contact with the prosecutor. In some cases, the media attention to the survivors or families will drive the case or plea bargaining discussions more than the facts of the case. Remember to focus on the weaknesses of the case in your discussion and under no circumstances bow to the pressures of the media and survivors or the decedent's family in your interactions with the Court.
T.C.A. Section 39-213 sets forth the elements, or script, that must be followed in depth. It provides as follows:
Vehicular Homicide is the reckless killing of another by the operation of an automobile, airplane, motorboat, or other motor vehicle as the proximate result of:
(1) conduct created a substantial risk of death or serious bodily injury to a person; (2) the driver's intoxication as set for in Section 55-10-401 for the purposes of this section intoxication includes alcohol by 55-10-408, drug intoxication, or both; or as the proximate result of conduct constituting the offense of drag racing as prohibited by title 55 chapter 10 part 5.
T.C.A 39-13-208 also provides for aggravated vehicular homicide. Aggravated Vehicular Homicide is vehicular homicide as defined in 39-13-213-A2; (where the defendant has two or more prior convictions for, a. driving under the influence, b. vehicular assault, or c. any combination of such offenses.) The key part of the script is in the first sentence, vehicular homicide is the reckless killing of another as the proximate result of either conduct or intoxication. The proximate result instruction is one that some attorney's overlook. The proximate result is defined by Black's Law Dictionary as a result which succeeds naturally in the ordinary course of things. A consequence which in addition to being the train of physical causation is not entirely outside the range of expectation of probability as viewed by ordinary men. The proximate result of intoxication should lead an attorney to look at all the factors that were involved in the accident. Was the decedent driving poorly himself? Was a pedestrian not using a crosswalk when struck by a motorist? But for the negligence of the decedent would the accident have happened? Is intoxication involved at all in the cause of the wreck? Do not ignore all of the facts of the case as to the cause of the accident.
Since the vehicular homicide case is one of the most complicated and difficult cases to try, it requires an extraordinary amount of preparation and time to consider what you have learned from that preparation. You should start preparing for trial the day that you are retained by the client. Once you are hired, consider the following characters to employ:
1. A private investigator
2. An accident reconstructionist
3. A human factors expert
4. A toxicologist
A seasoned investigator is worth their weight in gold, doing things such as taking witness statements, going to the impound lot to take photographs of the vehicles involved, and inspection of the scene. Early preparation gives the defense attorney time to level the playing field. Once you accept the case you should be gearing towards your first rehearsal which is the preliminary hearing. Rule 5.1 in the Tennessee Rules of Criminal Procedure gives the right to a preliminary examination. Once you accept the case your focus should be on preparation for the preliminary hearing. In vehicular homicide cases, you must also pay great attention to the survivors of the decedent who will be in Court. Those survivors will determine whether or not a favorable disposition can be entered by way of a plea bargain. The survivors watch every move you make and listen to every word you say, they will try to pigeon hole you in the mold of a sleazy criminal defense attorney. Therefore you should do your utmost to display a professional courtesy and demeanor. You should also try to make a point that will create doubt as to the ultimate outcome of the case.
There are several goals of a preliminary hearing:
1. It is the earliest form of discovery, you will get a chance to hear witnesses that will be called to establish evidence that an offense has been committed and that there is probable cause to believe the defendant committed it. Be mindful of the advisory commission comment of Rule 5.1 and the holding in Mckeldin v State 516 S.W. 82 Tenn.1984. The commission has opined that McKeldin does not convert the preliminary hearing into a fishing expedition with unlimited potential for discovery. The preliminary hearing is a probable cause hearing which can result in providing discovery to the defendant, which is an important byproduct of its probable cause function. Here are the reasons why you should always use a preliminary hearing;
1. It is the earliest form of discovery.
2. It is a forum to test your theory of defense.
3. It is your first time to assess the strengths and weaknesses of the State's case.
4. It is critical to lock down the witnesses' testimony especially in light of Rule 803-26 of the Tennessee Rules of Evidence, in which a prior inconsistent statement can now be treated as substantive evidence.
5. To show possible weaknesses in the State's case to drive a favorable plea bargain agreement.
**Here are five different reasons why it should be mandatory to have a preliminary hearing;
1. It is your first opportunity for discovery.
2. It is your first opportunity to test any legal defenses that you may have.
3. It is the first opportunity to test factual defenses.
4. It is the first opportunity to lock officers into their testimony.
5. It is the first opportunity for a pre-trial motion to develop.
The Blood Test
The blood test in a vehicular homicide case is a complicated proposition that requires a thorough knowledge of the law, governing who can draw blood, when they can draw blood, and what methodology they use. The key issues in a blood test are the chain of custody, preservation, anticoagulants, and analysis. Also, extrapolation of the blood test may be an issue. One key fact that you will have to deal with is that most Assistant District Attorney's and Judges see the blood test number as the gold standard in the case. They see only the numbers and are like a horse with blinders on, ignoring any and all other evidence. One fertile ground for use in rebutting the blood alcohol test is the failure of the Tennessee Bureau of Investigations crime labs to do duplicate testing. Tennessee is one of the few states that still only do single tests on blood alcohol amounts, which is why a defense toxicologist is so important in tarnishing the "gold" standard.
Accident reconstruction is another nuance to add to the play and your trial story. When it is within budget and if it is warranted, have an accident reconstructionist prepare a report as to the accident scene. At the very least purchase a copy of a crash scene investigation book. Northwestern University offers an excellent publication on accident reconstruction and crash scene investigation. It is a must for any attorney's bookshelf that handles vehicular homicide cases. It reminds me of a quote I recently heard, "A lawyer without a book is like a warrior without a weapon."
Managing Your Main Character
When you are dealing with a vehicular homicide case your client and his family or friends tend to be emotionally charged and sometimes illogical. You should spend a fair amount of time discussing the situation and immediately begin discussing the range of punishments if convicted. Most clients facing a vehicular homicide charge are overpowered with fear, guilt, and remorse. Sometimes your clients may be prescribed anti-depressants to help them cope with the situation. One area that you may want to explore pretrial is whether your client should participate in any alcohol counseling or inpatient treatment. This can work in your favor during sentencing.
In my opinion, the Judge's first duty is to uphold the United States and Tennessee Constitution as well as give the defendant a fair trial. However, once you get to sentencing those issues fade away. I would suggest you monitor or do research on the trial court in which the vehicular homicide case is pending to determine the past history of what the Judge has done on previous similar cases.
The Attorney's Role
Vehicular homicides sometimes look hopeless. Clients and their families seek an evaluation and assessment of the case. An attorney cannot provide that evaluation nor assess their chances when the attorney has not had the benefit of the discovery and a pretrial investigation. The old adage "law is an art, not a science" is not true in this type of case.
An attorney must decide early on what "winning" is the context of each case. Winning a vehicular homicide case is sometimes measured by a plea bargain with substantially less jail time than the district attorney or the Court originally contemplated. The attorney cannot control the outcome of the case, they can only control the quality of their reputation. Jury, judges, facts, and fate determine the outcome of the trial. To defend a vehicular homicide case requires the touch of Peyton Manning and the luck of a riverboat gambler. Follow some of these suggestions in defending a vehicular homicide case and you will know at the end of the day that you did your duty to the law, to your client, and the criminal justice system.