Why Kerry Kennedy Should Not Be Convicted

Published On: Mar 02 2014 09:15:12 AM EST

By Attorney Steve Epstein
Special to THELAW.TV

The DUI trial of Kerry Kennedy presents a unique set of circumstances for the jury to consider. The crime Ms. Kennedy is charged with requires the prosecutor to prove only two things: (1) that Ms. Kennedy operated a car and (2) that while she had done so her ability to drive that car was impaired by a drug.

Ms. Kennedy and her defense team freely admit that she drove a vehicle while her ability to do so was impaired by a drug, namely Ambien. A literal reading of the law should cause the jury to see this as a simple case to decide. The law says you cannot drive a car while your ability to drive is impaired and Ms. Kennedy agrees that happened, so why does a jury have to decide this case? That is because this jury must not simply determine the facts, but they must apply the law to those facts before they reach a verdict.

In New York, the law requires that for anyone to be criminally liable for their actions, they must have engaged in conduct that includes a voluntary act. This is true unless they are charged with one of a limited number of crimes called strict liability offenses. DUI is not a strict liability offense and the prosecutor must therefore prove Ms. Kennedy’s actions were voluntary. This is the heart of Ms. Kennedy’s defense. There was no disputing Ms. Kennedy’s account that she accidentally took an Ambien the morning of her car accident. The circumstances of her account and her credibility as a witness leave little doubt that she accidentally took the Ambien. The only attack the prosecutor has advanced is the claim that Ms. Kennedy at some point became aware of the effect the drug was having and should have pulled over.

This “sleep driving” defense has been raised before in courtrooms throughout the country. What makes this one unique is its purity of the legal issues since the facts are not disputed. Legal issues are usually reserved for the courts, but here, this jury must apply the facts to the law that the judge will give them in the jury instructions and that may turn out to be the most important part of the case. If the jury is instructed properly and they pay attention to the judge’s instructions, their job should be done quickly with a verdict of not guilty. Not because Ms. Kennedy did not drive while her ability to do so was impaired, she did, but her actions were not criminal because they were not voluntarily made.

The author, Steve Epstein, practices criminal defense law in New York at Barket, Marion, Epstein and Kearon, LLP and is an Adjunct Professor at Pace University School of Law.

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