How have defense counsel in a sexual assault case argued that a defendant was not under the influence when he was arrested?

California, United States of America


The following excerpt is from People v. WILLMING, E049611, No. RIF145826 (Cal. App. 2011):

defendant said he was not under the influence when he was arrested. He argued, "Would it have hurt him to say, 'I was under the influence?' . . . [I]t would have hurt him because he can't lie to you. That's why he told you that." (Italics added.) Defense counsel later told the jury, "Here's the problem. Now, [defendant] had been honest with you the whole time. Every time he took the stand, he was honest with you." (Italics added.) In denying the charge of annoying a child, defense counsel said, "[Defendant] doesn't have that interest in kids. He told you he doesn't have that interest in kids." Toward the end of the closing argument, defense counsel stated, "[Defendant] is going to admit what he did wrong and fight what he didn't. That's what this is about." By admitting the first two counts, defendant attempted to bolster his credibility in his denial of the other two counts. "As we have said before, candor may be the most effective tool available to counsel." (People v. Mayfield (1993) 5 Cal.4th 142, 177.) This tactic was apparently successful, in that the jury acquitted defendant of count 4 (annoying a child). We cannot say that "'"the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission."' [Citation.]" (Lucas, supra, 12 Cal.4th at p. 437.)

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