By Steve Hayne

December 11, 1973: Near paralysis with fear, I stared at my notes of the cops direct testimony.  With a huge sigh I rose and launched my attack:

“Well office, after my client threw up in your patrol car, he offered to clean it up, didn’t he?”

So, I began my first cross examination of the arresting officer in a drunk driving case.   I didn’t have a clue to confront his disastrous testimony, a fact made abundantly clear to everyone in the courtroom.  I’ve confronted thousands of cops since then and have learned some hard, valuable lessons.  One thing I always count on; it’s going to be a struggle.  After all, a cop is a professional witness; well trained and experienced in the art of disinformation, while our clients, in the art of persuasive perjury, are usually amateurs.  On top of that, cops usually know what you want and will do everything in their power to keep from giving up.  This character defect, the inability to admit one is wrong, is, by the way, usually the key to a defense verdict.

So, in preparing to confront one of these jut-jawed, square-shouldered enemies of justice, I keep the usual commandments of cross examination in mind:

1. Prepare, prepare, prepare.
2. Ask easily understood leading questions which suggest a simple yes or no answer (‘Isn’t it true’, ‘Wouldn’t you aggress’).  Cops love to “interpret” questions in order to give the wrong answer.
3. Don’t allow the office to answer a yes or no question with a speech. (cops love to give speeches).  If the does, ask the question again.  And again.
4. ‘Corral’ the officer with foundation questions which inevitably lead to the desired point – then keep him corralled (see sample questions below).
5. Think ahead – unless he’s firmly in the corral, don’t ask him the $64,000 question.
6. Don’t get greedy – when you have enough to argue the point in summation, stop! (That insignificant point can grow into a reasonable doubt by the end of the case if you have sense enough to leave it be).
7. Always endeavor to begin and end on a high note.
8. Never betray frustration, surprise, or anger when the cop gives you the “wrong” answer.
9. As always, avoid asking a question you don’t know the answer to.

Goals of Cross examination of the cop.

In most cases, my goal in cross examining a cop in a DUI case is to peel back the layers of his apparent trustworthy façade and reveal him the low-down-lying dog he really is.  In my (and my partners’) experience, most of our victories in DUI cases have come at the expense of the arresting officer’s credibility. I do not mean that you have to reduce the cop to a pathetic, sniveling wretch who tosses his badge into the waste basket as he slinks from the witness stand, but you have to make some progress in piercing his armor.  I want two things to happen during his testimony: 1) to reveal how unfair, incomplete, and biased his report is and 2) to allow the jury to slowly come to the conclusion that he can’t really be trusted.  These goals can be achieved in incompetence and bias. The usual way is as follows.  (1) to contrast his list of everything my client did wrong, with my own list of everything, my client did right,  (2) to reveal inconsistencies in the police report and (3) to offer reasons for my client’s behavior other than he was drunk.  Seldom do I accuse the cop of lying, even if he is.  My goal is to find reasons for doubt using him as my witness.  I simply don’t want to shift the burden of proof by requiring the jury to conclude the cop is lying in order to acquit my client.  It’s enough to get them to distrust his neutrality.

 What follows is a “checklist” of sample questions designed to force the officer to concede point in your favor.  It sets out a methodical challenge to the basis of the cop’s opinion that lays the foundation, brick by brick, for arguing reasonable doubt*

DUI CROSS EXAMINATION CHECKLIST

1. THE POLICE REPORT – Purpose: to get the cop in the corral-you don’t want him having miraculous on-the-spot recollections of harmful facts not in the report.

A.  The Police Report:

1. You wrote up a report of the incident immediately afterwards
2. Purpose of report is to make record of details
3. Included everything important
4. Reviewed prior to trial
5. Refer to it on direct
6. Couldn’t recall specific facts without it
7. Don’t now recall any significant facts not in report
8. Memory certainly better then than now
9. Have ticketed many people before/since
10. Have written many reports before/since
11. Can’t name person ticketed before client
12. Can’t name person after client
13. In fact, have sometimes mixed up facts of one case with another.

__________________

* Obviously, not all of the questions should be asked in every case.  Nor is this list exhaustive.  You will always need to tailor-make your cross to fit your own facts, theme and style.

2. PROFESSIONAL WITNESS – Purpose:  to use his experience and confidence against him – is it fair to compare his polished performance with your naturally nervous client?

A.  Appearance/ Demeanor:

1. You appear quite comfortable testifying
2. Have done so many times
3. Trained how to testify persuasively at academy
4. Told to look at the jury
5. How to hold hands, dress, etc.
6. Lots of practice.

3. BIAS- Purpose: to point out at the cop’s bias, that his mind was made up from the beginning of the investigation, that he’s never wrong.

A.  Basis of “opinion”:

1. Do you drink
2. Ever drive after drinking
3. Agree not inherently unsafe
4. No quarrel/legal to drive after drinking
5. In middle of night – you look for drunk drivers
6. When first notices client, thought might be drunk driver
7. People often drive [like client did] who have zero to drink.
8. When smelled intoxicants = increased suspicion
9. Started looking for signs/ symptoms of intoxication
10. No medical degree
11. Base “opinion” on observation of def that night only
12. Never testified DUI defendant not under influence
13. Never testified for in a DUI case
14. Concluded every person arrested for DUI was positively guilty
15. Have never been wrong.

4. DRIVING – Purpose: to establish that the client’s driving wasn’t inherently dangerous (where applicable) and to list all of the things he did properly.

B. Cop’s driving:

C. Client’s driving/ actions:

5. REVEALING THE TRUTH ABOUT FSTs  – Purpose: to point out the inherent unfairness of field sobriety test and to create a mental image for the jury of what it was really like.

A. Cop’s experience with FSTs:

1. First performed at academy
2. Hundreds of times since
3. First time in middle of day
4. In well-lit room
5. When well-rested
6. Like a ‘game’
7. When relaxed – not stressed out
8. Not traffic whizzing by
9. No police radio chatter
10. Comfortable temperature
11. Comfortable clothing
12. Didn’t so as well first time as now
13. Did better with practice
14. Middle of your work day
15. Well after defendant’s normal bedtime

B. Setting the scene of client’s test:

1. Parked your car at angle behind client’s; [for safety due to passing cars/ trucks]
2. Had client move to shoulder because traffic dangerous
3. How wild was shoulder
4. Gravel/ guard rail at shoulder’s edge
5. Traffic continues to pass
6. Left emergency lights on
7. Left headlights on/brights
8. Did client face towards or away from traffic (if toward: blinded by headlights – if away: no warning of approaching cars/trucks)
9. Dark/erratic lighting
10. Numerous moving shadows [passing headlights]
11. Cold/wind/rain/snow
12. At least some slope [for runoff]
13. Gravel/debris collects on shoulder
14. Don’t know how long since last swept
15. Onlookers
16. Chatter from police radio
17. Distractions from other officers
18. Buffeting from passing cars/ trucks/semis/motor homes

C.  What FSTs actually measure:

1. Intended to measure general balance, coordination and ability to follow instruction.
2. Use same tests for everyoneThe tests do not vary depending on differences in
3. Most people nervous when stopped
4. Normal for people to make physical and mental mistakes when nervous
5. Don’t know what was going through client’s mind during these tests
6. No objective way to measure level of nervousness of clientNo way to measure client’s ability to handle stress.

6. INDIVIDUAL TESTS – Purpose: to look at the FSTs  from client’s point of view and despite unfair conditions, all he did properly.

A. ABCs

1. Client cooperated throughout tests [the point of  ‘cooperation’ is made  several times during cross.  It shows the client felt he had nothing to hide and respects the law]
2. Didn’t ask when client last performed
3. Didn’t give client chance to practice
4. Familiar with WSP manual “DUI Enforcement” (page 30):

   “… if the suspect fouls the first try ask him to try again.  If the second try is successful, the office should minimize the value of any minor error made in the first”.

5. Didn’t give client second chance
6. Did you take notes at these scene
7. Where are those notes now [almost always destroyed]

B.  RHOMBERG (BALANCE)

1. Looking for numerous symptoms of intoxication
2. Ability to understand and follow each instruction
3. Ability to maintain balance
4. Client did:

   a. Put heels together

   b. Hold arms at side

   c. Tilt head back

   d. Close eyes

5. Did not tell client not to sway
6. Did not tell him to stop swaying
7. Afterwards, didn’t tell him he swayed and let him try again
8. Not normal to keep arms at side while balancing, is it

C.  FINGER TO NOSE

1. Again looking for numerous symptoms:
2. Ability to understand and follow each instruction
3. Ability to touch tip of nose with finger tip
4. In fact, a client did follow all instructions up to very end [list]
5. WSP academy DUI Enforcement Manual (page 30): … if the suspect fouls when attempting to touch should minimize the value of any error on the first try”.
6. Didn’t give client a second chance
7. It may be beneficial to note what part of the finger hits what part of the nose on each try”
8. Implies not necessarily meaningful if client didn’t touch tip to tip

D.  HEEL TO TOE

1. Looking for numerous symptoms again:
2. Ability to understand and follow each instruction
3. In fact, a client [again, list all he dif correctly]
4. Used “imaginary line”
5. WSP academy “approved sobriety test” (page 10): “Walk and turn requires a hard, dry, level, non-slipping surface with sufficient room for the suspect to complete nine heel to toe steps.  A straight line must be clearly visible on the surface”. 
6. Some people have difficulty with balance even when nothing to drink
7.  “People more than 60 years if age, over 50 pounds overweight physical impairments that affect their ability to balance should not be given this test”.

   a. What about age 55, but out of shape

   b. What about 35 pounds overweight with bad knees/ankle

8. Didn’t allow client to practice
9. Didn’t note distance between heel and toe
10. So to you, ½² is same as 3²
11. Unnatural to do test without raising arms

7. NO BASIS FOR COMPARING CLIENT’S PERFORMANCE – Purpose: to point out that the only value of the test is in comparing the client’s performance with when he’s had nothing to drink.

A. Had never seen client before that night Thus had never:

1. Heard him speak
2. Walk
3. Stand
4. Do balance tests

B. No prior knowledge of client to judge nervousness

C. No prior knowledge of what’s “normal” for client

D. Agree alcohol effects people differently

E. Effect of alcohol can depend on:

1. Amount of rest person had
2. What person’s had to eat
3. Individual metabolism
4. Tolerance
5. Drinking Habits
6. What a person is drinking
7. Over what period of time
8. Physical conditioning
9. Whether healthy
10. Whether fighting a cold
11. Even the person’s  ‘mood’ or state of mind

F. You don’t know any of those things about my client

G. Odor doesn’t tell how much a person’s had to drink

H. Odor doesn’t tell you whether person affected

I. Many other reasons for watery-bloodshot eyes, [contacts, fatigue, smoke, etc.]

J. Pupils are affected by intoxication:  Normally slow to react to light

K. Didn’t measure pupil reaction – the one test client would have absolutely no control over

L. Agree people who know client well have the advantage in judging the degree of impairment – at least in comparing client’s behavior when he’s had zero to drink.

8. NO PROBABLE CAUSE UNTIL AFTER TESTS COMPELTED – Purpose: to point out the officer himself had doubts throughout the test sequence.

A. Must arrest when have “probable cause”

B. PC means “reasonable grounds”

C. Didn’t arrest after [each field sobriety test].

D. Didn’t arrest ‘til the very end.

E. Still had doubts until very end.

9. MIRANDA/ 242 RIGHTS UNDERSTOOD – Purpose: to show the client was in full possession of his mental faculties-after he fully understood complicated legal concepts.

A. Read Miranda rights to jury

B. Read 242 rights to jury

C. Satisfied client fully understood

D. Didn’t express any confusion

E. Readily agreed to answer questions

F. Readily agreed to take breath test

G. Fully cooperated/ did not request attorney

H. Clients acted like nothing to hide.

10. NO FSTs AT STATION – Purpose: to point out unfairness of not taking a few minutes and giving client a second chance under much more reasonable conditions.

A. How long with client in total

B. Plenty of rooms/hallways at police station

C. In no particular hurry

D. How long to do FSTs [5 to 10 minutes maximum]

E. Agree test conditions better at station than roadside

F. In fact, client sat in holding cell for__ minutes.

G. Didn’t give him second chance at station.

11. CONCLUSION – Purpose: to complete the cross examination on a high note and reemphasize the basis of reasonable doubts, i.e. that officer’s opinion is fallible.

A. Client cooperative throughout

B. Didn’t note any “unusual actions”

C. Didn’t note any “unusual statements”

D. Didn’t ask client why he hit fog line, etc.

E. Didn’t do follow-up investigation per client’s explanation/answer on AIR form

F. Didn’t talk to client’s witness

G. Didn’t talk to bartender, host of party, doorman, etc.

H. Based “opinion” solely on observation of client that night

I. In fact, client told you that night, just as he has told this jury, that he was not under the influence of intoxicants, didn’t he?

In addition to the above, each case and each cop will provide other fertile areas for cross (factual discrepancies in the report, good excuse for erratic driving, a client with bad knees, the cop’s attitude on the stand, his relative experience, how he got along with the client, etc.).  With proper preparation, persistence and a dose of courage, you can turn the cop into your best witness.