Evidence of Innocence Immaterial
There is a statute that prohibits a particular legal argument, but only when the argument would exculpate the defendant.
Take the example of a DUII defendant who is charged with Manslaughter in the 2nd Degree because of a fatal auto accident. His blood-alcohol content is .25.
Manslaughter II requires recklessness by the defendant. And recklessness requires proving that the defendant was aware of - but disregarded - a substantial risk of death.
The state will argue, for the defendant at .25, that he must have been aware of a substantial risk of death, because he knew just how darn intoxicated he was. This wasn't someone who was just above the legal limit. He was smashed. And that should have told him just how dangerous it was for him to get behind the wheel.
The defense attorney counters: actually, I don't know anyone who gets more aware of a risk when they're intoxicated. In fact, the reason people do dumb things while drunk - whether it's jumping off the roof into a swimming pool, riding a skateboard down the stairs, or getting behind the wheel - is exactly because they don't appreciate the dangers. They've lost that ability because of the alcohol. And the more drunk they are, the less they understand those dangers.
All sound good? An interesting debate? Actually, the defense attorney's closing argument - but not the prosecutor's - is prohibited by statute.
"161.125 Intoxication as defense; drug or controlled substance use or dependence as defense. (2) When recklessness establishes an element of the offense, if the defendant, due to the use of drugs or controlled substances, dependence on drugs or controlled substances or voluntary intoxication, is unaware of a risk of which the defendant would have been aware had the defendant been not intoxicated, not using drugs or controlled substances, or not dependent on drugs or controlled substances, such unawareness is immaterial."
The statute would appear to violate two principles of constitutional due process. The most important is that it would prohibit the consideration of evidence that would exonerate the defendant. In fact, the statute is very explicit that the goal of the statute is exactly that. "Recklessness" requires "awareness" of a risk. Evidence that the defendant was not "aware" of the risk is evidence that the defendant is innocent of the charge. Yet the statute specifically prohibits this application of the evidence if it would mean the defendant "is unaware of a risk of which the defendant would have been aware. . . "
But that same evidence, it can be argued, demonstrates that he was in fact aware of the risk of death. The argument is permissible because - and only because - it supposedly proves guilt.
Attached below is a motion that argues that that statute is unconstitutional, although the motion is not in the DUII context but instead for a case involving a barroom fight. Still, the principal is the same.
If you do not win this motion, I would follow-up with a motion to exclude the state from arguing that the degree of intoxication demonstrates an awareness of the risk of death. If the prosecutor can make that argument, but you can't argue against it on the basis I mentioned above, then the statute distorts the trial in the state's favor and violates due process.