 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 | |||||||||
 |
April 1999 Fishing in Troubled Waters — Cross-Examination of an Arresting Officer in a DUI Case By James A.H. Bell James A. H. Bell, a former Director of NACDL, is Chair of the Bylaws Committee and Co-Chair of the DUI Advocacy Committee. He is a criminal defense practitioner in Knoxville and Past President of the Tennessee Criminal Defense Lawyers Association (TACDL) (1983-1984). He is a member of The Champion Advisory Board. Driving under the influence is one of the few crimes in America where a citizen may be stripped of his civil liberty solely upon the opinion of a police officer that the person charged committed the crime. In order to realistically contend with the ultimate opinions of the police, it is our duty to execute a cross-examination that creates doubt not only upon the opinions offered, but also upon the basis for the opinions offered. Without a properly executed cross-examination of the arresting officer, it will be a veritable impossibility to obtain even a hung jury. Wigmore stated in his treatise that cross-examination “is the greatest legal engine ever invented for the discovery of truth.”1 In Davis v. Alaska,2 the United States Supreme Court declared that “[C]ross-examination is the principle means by which the believability of a witness and the truth of his or her testimony are tested.” I believe that with a DUI case, cross-examination is the opportunity to create trouble in the prosecution’s case, to the level of raising reasonable doubt. It is also the most effective manner and means by which to obtain an acquittal or a hung jury.3 A typical direct examination of the police in a routine DUI case involves four main areas of discussion: a) education, training and experience of the officer; b) the facts and circumstances that led to the arrest of the accused; c) the opinion (and the basis thereof) of the officer as to the accused’s lack of sobriety or state of intoxication, and d) chemical tests and their results. In attacking the testimony of the arresting officer, the world of cross-examination is without limit. A wise choice of topics upon which to cross the arresting officer generally causes the lawyer the most problems. Cross-examination is usually viewed as more engaging, and certainly more meaningful, than the direct. If cross-examination is the linchpin of the defendant’s case, a meaningful cross-examination will create reasonable doubt, period. There is nothing closer to legal war than the trial of a criminal case, and particularly that of a DUI case. The officers are specially trained, experienced, biased and dangerous. They give testimony in uniform, with all the indicia of fairness and trustworthiness, under the guise of law and order for the common good. Accordingly, the arresting officer must be cross-examined much differently than any other witness in a civil or other criminal case. Preparation Checklist It has been said that the best cross-examination begins with the first drop of perspiration. I should know. As a trial lawyer laboring in the vineyards of justice, I’m the one (with my fellow brothers and sisters) who sweats the war. In order to begin to think seriously about a meaningful cross-examination of an officer in a DUI case, one must fully prepare for the expected testimony. A good checklist for preparation includes: 1. Fully Understand The Governing Constitution (Federal And State). “In all criminal prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”4 In many cases I remind the court that all that I’m doing is attempting to render effective assistance of counsel for the client by confronting the witness with difficult cross-examination questions. Because courts are fearful of being reversed on constitutional grounds, counsel is generally accorded “wide latitude” on cross. 2. Fully Understand the Governing Case Law as to the Scope and Manner of Cross-Examination. For example, see Delaware v. Van Arsdall,5 “. . .[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” While a judge may seek to interrupt our cross of the witness, we find it very helpful to advise the court of the Van Arsdall decision6 and relate that in good faith, we are not harassing the witness, threatening him/her, nor being unduly repetitive, prolix or confusing. Generally, the judge will back off and allow you to have your way with the witness. 3. Fully Understand the Applicable Rules of Procedure and Relevant State Statutes. For example, Fed. R. Evid. Rule 611, controls the mode and order of interrogation, presentation, and scope of cross-examination. Most studies pattern their rules on federal rules. The federal rule provides in part that the “court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.” Use of this rule allows us to fully inquire into certain matters that bear on the opinion and basis of opinion of the arresting officer. 4. Fully Understand all Relevant Jury Instructions. For example, in Tennessee, the pattern jury instructions provide in part that “a witness may be impeached by proving that he or she has made some material statements out of court which are at variance with his or her evidence on the witness stand. . . . Further, a witness may be impeached by a careful cross-examination involving the witness in contradictory, unreasonable and improbable statements. . . . When a witness is thus impeached, the jury has the right to disregard his or her evidence, and treat it as untrue.”7 Quoting this section to virtually any judge to explain the purpose of your cross-examination will result in a fair opportunity to effectively question the witness against your client. 5. Fully Understand the Interplay Between Substantive Law, Evidence Law, and Procedural Law. For example, there is a body of law dealing with the “physical facts rule” which relates that where the testimony of the witness is entirely irreconcilable with the physical evidence, the testimony can be disregarded. That is, where the testimony of a witness “cannot possibly be true, is inherently unbelievable, or is opposed to natural laws,” courts can declare that testimony incredible as a matter of law and decline to consider it.8 One can imagine in DUI cases the numerous unlimited factual vignettes presenting themselves for implementation of the physical facts rule.9 6. Fully Understand the Body of Law Relating to Demonstrative Evidence. The benefit of demonstrative evidence cannot be understated. As Groucho Marx says in the movie A Day at the Races, “Who are you going to believe, me or those two crooked x-rays?” That is the position you want to put your prosecutor into — believing the position of your demonstrative evidence. It is often said that a valuable piece of demonstrative evidence is worth more than a thousand words. Statistics show that people remember less what they hear, and more what they see. My view is that if it can be touched or felt, and heard,10 that is even better. 7. Fully Understand the Standardized Tests Relating to Intoxication. Since the United States Department of Transportation (DOT) and the National Highway Traffic Safety Administration’s (NHTSA) development of the three standardized tests [the Horizontal Gaze Nystagmus (HGN), the one leg stand (OLS), and walk and turn (W&T)], cross-examination is now fruitful and fun. These tests have become universal weapons used by law enforcement to detect an intoxicated driver. A skilled cross-examiner can demonstrate to a jury (and also to the judge) what these so called tests disclose and why they are not common-sense detection instruments for intoxicated drivers. A thorough and proper cross-examination of the arresting officer on these standardized tests can cause these tests to become suspect. It is really left up to the jury as to whether or not the performance demonstrated that the accused was or was not under the influence of alcohol to the required degree. 8. Know Stories From the Bible, Talmud And the Apocrypha. One of the great stories that I have used in trial is a story contained in the “Apocrypha,” which was originally included in the book of Daniel. There, Susanna, a beautiful married woman, was condemned to death by two elders on false accusations of adultery. Daniel intervened and separated the elders to obtain the first recorded sequestered testimony. The first elder testified that he observed the adultery occurring under a tree; the second elder testified that it occurred elsewhere. The two witnesses contradicted themselves and were proved to have lied. Under Daniel’s cross-examination, the accusers were put to death rather than the accused married woman. Often, you see the police talking in the hallway at recess, going to lunch together, and then later testifying using the same language. This is a good example, even when they protest, of how officers get together to concoct a story. 9. Have A Basic Understanding of the Interplay Between Medical Problems and Physical Results. There is substantial agreement among trial lawyers that much prosecution evidence must be refuted, reasonably explained, or otherwise neutralized in order to obtain an acquittal or other good result in a criminal case. Criminal defense lawyers need to find facts which they can develop to create a reasonable doubt on the usual issue of “under the influence.” We suggest that there may be a medical explanation for the client’s behavior that forms the basis of the officer’s opinion that the defendant was “under the influence.” The medical explanation will often “win” the case if it reasonably exists after a review of the client’s medical files.11 Thus, if you have a client that recently had, prior to arrest, a broken toe, obviously that person could not walk heel to toe under even the most ideal conditions. 10. Investigate Every Fact and Know Every Fact About the Case. The most important part of the DUI case in my book is the investigation phase.12 The investigation of a DUI defense builds the foundation for the final verdict. As I have often said, it is impossible to know too much about a DUI case before trial. One should always be looking to discover legal and/or medical reasons upon which to base a trial strategy. Only when counsel knows more about the case than the arresting officer (who generally forgets the details of the arrests over time) can the lawyer quiz him effectively. Thorough investigation is the mother of success and the springboard for a successful cross-examination. Interplay Between Voir Dire and Cross A grossly overlooked area of fertile cross-examination is the competition between the ideas which the jury as a whole believes from their common sense and core beliefs, and that to which the officer will testify. If one can create a debate between the officer’s testimony and these universal core beliefs, the road to acquittal is paved. For example, most people believe inherently that a trained officer can readily determine in a very brief period of time whether one is intoxicated or under the influence. We ask the jury in their experience how long it takes them to conclude someone is intoxicated. More often than not the response will be “rather quickly.” Often we will ask the officer at what point in time he formed his opinion that the accused was under the influence. More often than not, the officer will state he formed his opinion at the conclusion of all FSTs and interview of the accused, but before the breath test. These matters ordinarily consume about 20-25 minutes. A jury will doubt the testimony of the officer if he opines that it took him that long to conclude the accused was intoxicated. Another great method of creating competition of ideas between the jury and police is one created by J. Gary Trichter. He suggests we voir dire on matters of common sense, such as the many innocent reasons for bloodshot eyes; poor memory; odor of alcohol; nervousness; coordination; and bodily functions. If the lawyer can illustrate on voir dire what these facts really show, then acquittal is right around the bend. Interplay Between Opening and Cross In opening statements, I often attack the integrity of the FSTs. The arresting officer is generally in the courtroom at the time and is the first witness. Invariably, the prosecutor and the officer will attempt to defend the validity of the tests, opening the debate for fertile cross-examination. More importantly, the prosecution in its opening statement will seek to validate certain facts, and will often overstate that which you know to be contrary to the expected testimony. “The officer fairly and objectively undertook to administer certain scientific field sobriety tests to the defendant, ladies and gentlemen, and determined that the defendant not only failed one test, but all of them. These tests are the heart of the state’s case.” By skilled cross-examination, one can cut out the heart of the state’s case. Interplay Between Cross of One Witness and Cross of Others Often two officers will say entirely different things about the conduct of the accused in specific details about the case. One officer may say the defendant admitted to drinking beer, while the other may say “two drinks” or “wine.” This internal inconsistency between the officers can be used effectively in closing argument. Accordingly, sometimes we suggest that counsel ask exactly the same question of each officer and chart exactly each response. See Figure 1.13 The Manual “Exposing FSTs For What They Are — Cutting The Fig Leaf,” is the .10% Solution column in the November 1997 issue. It provides minimal suggestions that might assist the lawyer in confronting field sobriety tests during any stage in the criminal proceeding, including cross-examination. Those suggestions are in the form of several “Helpful Hints” that might prove valuable in assisting counsel to overcome those feelings of being overwhelmed by that testimony. The article also discusses how to obtain copies of the National Highway Traffic Safety Administration Manual and the studies attendant there to help gain a greater understanding of the three “standardized tests.” The manual contains a great deal of information that is not only useful for impeachment but also for eliciting facts favorable for the defense. For example, the manual says: Considered independently, the nystagmus test was the most accurate of the three, among subjects who exhibited four or more clues. 82 percent had BACs of 0.10 or higher. However, the other two tests were nearly as accurate (80 percent for Walk and Turn, 78 percent for One Leg Stand). When the nystagmus and walk and turn results were jointly interpreted using the decision table, 83 percent of the subjects were classified correctly. Difficult, But Fun Once you have executed an effective cross-examination of the arresting officer, if it is before a jury, you will probably obtain an acquittal if not an outright hung jury. Cross-examination of the arresting officer is one of the most difficult, but one of the most fun parts of a trial. Following the above discussion should enable you to be a more effective cross-examiner in a DUI case. Notes 1. 5 J. Wigmore, Evidence §1367 (J. Chadbourn rev. 1974). 2. 415 U.S. 308 (19__). 3. In my opinion, a hung jury is better than a conviction. 4. Tennessee Constitution, Amendment 6. 5. 475 U.S. 673 (1985). 6. We have found a proper cite to the Supreme Court will have a chilling effect on the court’s attempted chilling effect on the lawyer. “Chill them before they chill you” is the battle cry. 7. Tennessee Pattern Jury Instruction – Crim. 42.06. 8. See, State v Hornesby, 858 S.W. 2d 892 (Tenn. 1993); United States v. Narciso, 466 F. Supp. 252 (E.D. Mich. 1977). The leading federal case is Wood v. United States, 342 F. 2d 708 (8th Cir. 1965). 9. Note that the testimony must be inherently improbable and impossible of belief, should courts intervene to declare it incredible as a matter of law. If the testimony is capable of different interpretations, the matter should be left for the jury to decide as the sole arbiter of credibility. 10. I have a 6-inch high yellow box, with a smoke alarm in it. An officer is asked to raise his leg 6 inches from the floor and perform the one leg stand test; if while doing so his foot, goes below 6 inches, he sets off the smoke alarm. He can then be quizzed on his inability to properly perform such a task while sober. 11. See, The Champion, .10% Solution, June, 1996. 12. See, The Champion, .10% Solution, June, 1994. 13. Stolen by imprudent impropriety from Joseph Gary Trichter of Houston, Texas. .10% Solution is devoted to providing practical information on the defense of DUI/DWI cases. Authors and ideas are welcome. Please contact: .10% Solution Jim Bell or Steve Oberman 110 W Summitt Hill Dr Knoxville TN 37902 Phone (423) 637-2900 Fax (423) 971-4298 | |||||||||
 |
National Association of Criminal Defense Lawyers (NACDL) 1660 L St., NW, 12th Floor, Washington, DC 20036 (202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org | |||||||||
