DUI Defender

“Officer, isn’t it true that everything you have just testified to on direct examination is a complete lie?” How many of us style our cross examination on this model? It is the old tried and true method made famous in books and movies; but is it necessarily the best?

Sure, jurors expect us to cross examine a witness, especially a police officer aggressively. They may even look forward to some fireworks, but how often does this play to our ultimate benefit? How many times could we obtain the same answers without the possible backlash of juror sentiment? Benjamin Franklin was considered a master at the art of polite questioning which inevitably led to the conclusion he was after. Lets see if we can do the same.

When a defense counsel first rises to ask the witness a question, all is hushed. The officer is poised to respond as if a weapon were drawn upon him or her in the street. The DA is set to backup the officer with objections and interruptions designed to shoot counsel in the back, or at least to wing’em. Jurors, formerly asleep at the dull droning of direct examination are now ready to see this ‘new’ phase of the trial, and the judge is paying attention for the first time since he or she may actually have to issue a legal ruling.

The stage is set. All eye are upon you and what do you do. NOTHING. Play it cool. Become the officer’s friend and supporter. Set the trap and wait. Start by offering the most disarming array of questions you can; officer safety.

Q: What is the number one rule you are taught in the academy, and at every role call, every training and every day as an officer? Your safety is NUMBER ONE and all the number twos are way back.

The witness is totally unprepared for this. It is not only obviously true, it is solicitous. You are the enemy, yet you care, you know, you help. In one simple question you have disarmed the officer. How can he or she use ‘deadly force’ when you have not shown any weapon.

Q: In keeping with rule #1, you are taught how to interact with people in all kinds of situations.

What can they say? “No, I was never taught how to deal with people”, ‘I am unsure what that question means”, “Maybe”, “I don’t know”, “I can’t remember”? Of course not. They will agree. No develop this theme with the car stop.

Q: When you make a car stop, that is dangerous

Q: In fact, isn’t car stops the number one time officers get hurt, or worse

Q: You were taught, it is the first few moments of interaction that are the most dangerous.

Q: You have no idea who, or how many, people may be in that car.

Q: And at night, like in this case, it is even worse.

Q: This makes you alert, ready, even nervous.

Now, without so much of one negative word, one bad question, you have set a stage where the guy with the gun is nervous and on edge. Is it hard to understand why your client was equally, or probably even more, worried. Explains a lot of the initial “objective symptoms”. May also explain the dropped wallet or fumbled license, but that is developed more later.

Q: Now for night time stops there is a specific protocol on how to proceed

Q: You call it in so that someone knows where you are.

Q: On a standard stop, such as this one (NOTE: that will get an admission to be used later, that there was nothing out of the ordinary about this stop) you don’t jump out of your car with your gun out? (By compounding the question, you force the negative answer creating the first admission)

Q: You actually wait a second or two and see what the person does.

Q: Are the trying to hide anything, or grab anything which could be harmful

Q: And my client did none of that

We have not even had the officer exit the car and we have established your client was not a threat, not doing anything out of the ordinary and was understandably nervous. The jury is waiting for the shoe to drop, but is still paying attention because they are learning. Now we follow up with the learning aspect as we build your own expertise.

Q: When conducting a car stop, you pull in behind the other car and wait to be sure they are stopped and not trying to trick you.

Q: You do not pull up tight on their bumper, but leave room.

Q: In fact, you pull up off center on them, with your car slightly to the inside, away from traffic. Gain for officer safety.

Q: This has two reasons, one, you have to get out of the car and do not want to get out into the actual road, and two, you want your headlight to be focused on their rearview mirror.

Q: You focus on the mirror so that they can not get a clear view of you, just in case they are a real bad guy.

Q: When you do this, it makes your passenger headlight aimed at the drivers passenger side mirror so he could not use that to see you either.

Q: If you have a spot light you may even use that.

Q: All in all, you are trying to (1) prevent the driver from seeing you, so you are protected, and (2) get as much light into the car as you can to see what they may be doing.

This is a major point for any and all eye reactions for some time. Think about how you feel when you are driving at night on an unlit highway and then come into a tunnel or a well lit town. It takes time for your eyes to adjust. Your pupils may even be dilated different from the norm.

So without one negative question we have set the stage. It is a dark night, our client is nervous, and the car has been unnaturally bathed in light. We have effectively neutralized the issues around nervousness and the eyes. Yet we have not fired one salvo.

Lets look at this approach with the Standardized Field Sobriety Tests (SFST’s). There are as many ways to approach these as there are attorneys, but I suggest a rather radical approach. HAVE THE OFFICER PERFORM THEM. I know, we are taught never to ask a question, or conduct an experiment, in court to which we do not know the answer, But I submit you can not lose.

During direct examination the officer has told the jury how he/she explained and demonstrated all the SFST’s to your client who then failed them miserably. What assumption has the jury made? The have decided the officer must have demonstrated them properly. In the juries mind, the cop was perfect.

So, if you ask for an in court demonstration, what can happen; (1) the cop is perfect, which the jury expected, or (2)……..

Lets step outside the trial for a minute. When do most arrests for DUI occur; night shift. What shift do most officers who make DUI arrests work; night shift. What shift are most officers coming off of to testify; night shift. When is the trial; day shift. This is the officers normal sleep time. What is a major reason for poor performance on SFST’s, at least according to real scientists, being tired.

This is a near perfect juxtaposition of events. A tired officer who has been sitting around all day is now asked, without warning, to perform the SFST’s just as he/she did when they arrested your client.

Q: Officer please explain the One Leg Stand EXACTLY as you did to my client that night.

Q: Officer please demonstrate the One Leg Stand EXACTLY as you did to my client that night.

I always start with this test as it is the easiest to explain so it leaves the officer with little time to prepare. It is the hardest to do when you are tired, and the officer “cheat” is easy to spot. By “cheat” I mean that officers know if you bend the standing leg a tiny bit it is easier to hold position. Look for the officer to do this. If you catch it, actually push the leg into a locked position.

Yes, I know this will cause a commotion, BUT, if the jury sees the officers leg snap back into a locked knee, then the anger is with the officer for cheating. This is the perfect place to unleash the killer defense attorney at the outrage and falsehood being attempted. But then come back to the nice guy. Let the jury know you were outraged FOR THEM.

If the officer, and almost all officers do, fails this test, do not attack. Remember we are kindler and gentler. GIVE THE OFFICER THE EXCUSE BEFORE THEY SAY IT.

Q: I see you put your foot down early, worked a long shift?

Q: Been up for a while, about 15 hours is how I count it.

Q: Hope you get overtime for this. (Gratuitous I admit, but it gets a laugh, keeps you on the ‘good’ side and is GREAT for closing).

Q: Then you had to sit here waiting for us.

Q: Maybe got a little cramped up.

Q: My client told you he had worked the same number of hours you said you did?

Q: Bob told you he had been sitting in the car for the same amount of time you have been sitting.

Q: So bob failed this test.

Do not ask why or leave any such opening. It is a simple statement. Bob did not do it, he failed. The officer could not do it, he fails. His failure is due to fatigue, Bob’s due to alcohol, not fair.

It is up to you if you wish to go on. If you obtained the one failure, I would say stop. If not, go on to the next, again you have nothing to lose. If you do move on the other tests, then change them. For example, change the feet on the Walk and Turn, but be sure to change the turn direction, unless the officer “wrong footed” your client.

If you change the feet position at the start, and the turn direction, a tired officer will get it wrong. Some of them will be inexperienced, or cocky, enough to say it is because yu gave the test different than they give it.

Q: But officer, didn’t you say part of these tests was the ability to follow simple directions:

Q: Does swapping left for right make the directions complex?

Q: You have done them your ay a million times, it would be easy for you to do them that way but not easy my way.

Q: That’s because you have never done them before. (Do not ask if your client has priors as this may open the door)

In some jurisdictions officers use a finger count test. This is particularly good for change. I have practiced both hands in both directions for so long, I could probably be the world champ. Officers always find one way they like and stick with it. When I changed up on one officer and told him he failed he accused the test of being ‘subjective’. His actual word. I sat down and said “Exactly”.

Trackback This Post | Subscribe to the comments through RSS Feed