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Cross Examination

Cross examination is as much an art as it is a science. Good Trial lawyers know how to effectively cross examine witnesses. Attorney Hynes has been selected as a Top 40 under 40 Lawyer by the National Trial Lawyers.

In Dan Hynes' DUI Book to teach other lawyers, he has a chapter on cross examination. Here is an excerpt from that book:

In my experience, the State’s direct examination is usually pretty straight forward. Most prosecutors tend to do the same thing, and prosecutors themselves usually tend to use the same questions in each case. After observing the prosecutor a couple of times, I wouldn’t be at all surprised if you could predict 75% or more of the questions he or she will ask. It typically is a straight forward line of questioning that goes through the police report.

 

13.1.1 Arresting Officer

In the majority of cases, the State’s first, and probably only witness, will be the arresting officer. Usually, the officer is the first person to have contact with the client on the night in question. The main exception is where there is an accident. Then, it is usually the other driver, or a paramedic who first spoke with the driver.

While every lawyer has a different personality, as well as approach, I will attempt to explain (and give reasons for) my approach. I have witnessed good OUI lawyers take the approach of basically treating the officer as a hostile witness, and pointing out everything that was not done perfectly, or otherwise basically attacking/countering just about everything the officer has to testify to.

For a variety of reasons, I do not follow that approach. If it is a bench trial, the judge likely has heard testimony from that particular officer before. I expect judges use their previous knowledge and will already have an opinion of the officer as to whether he does everything by the book and honestly.

Besides the judge having repeated contact with the officer, you will likely have future contact with both the prosecutor, and likely the officer again. I believe/hope most officers do not take the line of cross-examination questions personally, as they recognize we are just doing our job, like they were doing theirs in making the arrest. However, to me at least, I can usually receive the same, or possibly more favorable, answer from the officer by using a kinder approach/tone in the line of questioning. Unless you have rather strong proof, I would not accuse an officer of lying, as opposed to misremembering, or being mistaken. If you treat the officer with respect and do not otherwise belittle him or try to make him out as incompetent, I believe you will get more favorable answers from the officer.

If the officer, for whatever reason, has some personal dislike of you, I expect future pleas with the prosecutor, and officer could be more problematic. Further, an officer may just shut down on the stand and answer many questions with an “I do not know”, instead of giving you more favorable answers.

While I tend to try and use a kinder approach, my exception is when the officer is otherwise not being co-operative, and just refuses to answer questions I know they have knowledge of.

For example, in a breath case, in questioning the officer on numerous problems with the machine, you might get an answer that they do not know how it works, that they just press the button. While the officers aren’t experts, they certainly know basic functions of how the machine works. So, if the officer does state they don’t know anything about how it works, you can probably painstakingly go through their training to point out they are either incompetent or just not being completely honest with the Court.

Another benefit to the nicer approach is that an officer will sometimes volunteer information that helps your case, or otherwise elaborate on an answer to your benefit.

Even with a nice approach, I believe you can still elicit favorable answers from an officer and get what you are looking for.

 

13.1.1.2 Lock in Testimony to Police Reports

Some lawyers might worry that a nice approach will prevent an officer from admitting a mistake, or otherwise evade giving an answer.

One way to prevent, or curb this from happening, is to lock the officer in to his police report.

For instance, say a police report does not mention slurred speech, but the officer testifies there was slurred speech. Instead of accusing the officer of lying or marking it up, a better approach might be as follows:

You: Officer Friendly, you are an experienced police officer?

Officer: Yes, I have years of experience.

You: You graduated from the police academy?

Officer: I did.

You: At the academy part of your training included how to write police reports?

Officer: Yes.

You: Part of the purpose of the police reportis for you to later refresh your recollection?

Officer: Yes. (He may elaborate on this and state other reasons why he writes police reports, but the answer generally will probably further help you).

You: You put all of the important, relevant details in the report?

Officer: Yes. (Or if he follows-up with a response of: I do not put everything in there, emphasize that important things are put in there).

You: In this case you wrote a police report?

Officer: Yes.

You: You had an opportunity to review that police report before coming to Court today?

Officer: Yes.

You: Is there anything inaccurate in the police report, or anything you would like to change?

Officer: No.

You: It is fair to say your memory was more accurate a few months ago when you made the arrest at the time you wrote the police report than it is today?

Officer: (Some version of) Yes. (If for whatever reason you get a response that he remembers everything perfectly, ask him about the person he arrested right before, or right after the defendant. If it is an officer who makes many DWI arrests each week, you can emphasize that he may be mistaking the client for someone else).

You: I would like to show you your police report. Where in it does it mention slurred speech?

Officer: It does not, I left it out, but I remember it.

You: But you agreed you put important things in there, so I guess slurred speech must not be important?

In closing, you can argue one of two things. Either it is not important if it is not in the police report, or that the officer is misremembering.

 

13.1.1.3 Phase I Questions

Again, I like to break DWI cases down into the three phases of DWI detection. I have never had an officer state he is not familiar with NHTSA’s DWI Detection manual, although some officers will say they do not use that particular version.

One way to address this issue is to find out during the ALS hearing what version the officer used. If the State will not stipulate that your version of that edition is correct, you may need to follow-up with a discovery request.

Another way to address the issue is by objecting to the testimony as not having the correct foundation. The argument is that NHTSA updates the manuals for a reason. Although, the officer might have been doing it correct at the time of his training, it may no longer be the correct way to do it.

Once the officer agrees he uses the manual, the officer will usually agree there are three phases of DWI detection, according to NHTSA. Sometimes, you will get a confused response, but if you just use a leading question, that according to NHTSA, the first phase of DWI detection is a vehicle in motion, the officer should agree. If not, impeach with the manual.

See Chapter 9.2 for topics to cover in Phase I.

 

13.1.1.3.1 Actual Driving

Often, the driving in the case will not be that bad. If the officer did not observe anything that is a sign of impairment, point that out. I.e. Speeding, equipment violations, possibly not using a turn signal (While NHTSA indicates this is a potential cue of impairment, many officers will testify it is not a sign of impairment).

If you cannot establish there was nothing about the driving that lead the officer to believe the driver was impaired, try to minimize the things the officer did see. Often there will be only a few signs of impairment in the driving, such as swerving, and crossing a line. You may want to go through the huge list of things NHTSA considers a sign of impairment to show a relatively low % number of signs of impairment as opposed to all the things the driver did right.

 

13.1.1.3.2 Post-Stop Cues

After presenting the driving, focus on how the driver pulled over. (See post-stop clues of Phase I). If the officer did not note in the police report that the driver did not pull over fine, it is a pretty safe bet you can ask the officer that the driver recognized the emergency lights, and pulled over in a normal, reasonable, manner. Such as: no delayed reaction, he did not hit the curb, he stopped in a good location, etc.

If, on the other hand, the post-stop clues indicated numerous signs of impairment, you probably will want to give a reasonable explanation for the conduct. Was the driver distracted by something? Eating? Texting? Dropping things? While this may be irresponsible driving (or in certain circumstances negligent driving or reckless driving), it is a reasonable explanation for conduct that is not caused by alcohol impairment.

Perhaps the driver had a medical condition that was causing bad driving. By the time of trial, you would have already investigated any medical condition or medications that were taken (or should have been taken).

Was there an equipment problem with the vehicle? Sometimes, the alignment of a car is not proper, or any number of things that can lead a vehicle to drift.

Being stopped by an officer is a stressful situation. Was the driver looking in the rear-view mirror noting the officer, thus taking his eyes off the road?

For a jury trial, you may well want to emphasize that traffic stops are the most unsafe times for an officer. Point out that the officer is the one with carrying the gun. Many people (especially possibly a young female at night) will be incredibly intimidated/ anxious when pulled over. Just as the officer does not know the driver, the driver also does not know the officer. If anyone on the jury has been stopped for a moving violation, they very well may remember how anxious, scared, intimidated, etc. they felt when they were being stopped.

Many things that occur during driving can be considered a divided attention test (Although, the officer will almost never refer to them as such).

Once the officer initiates his take-down lights, the driver must recognize the signal, and take an appropriate response, while driving and maintaining vehicle control. Thus, his attention is divided.

“Some of these cues are exhibited because the stop command places additional demands on the driver's ability to divide attention. The signal to stop creates a new situation with which the driver must cope. Flashing emergency lights or a siren demand and divert the driver's attention, requiring that the driver now divide attention between driving and responding to the stop command. Stopping itself requires the driver simultaneously to turn the steering wheel, put on the brakes, use a turn signal, and so on. Thus the driver's task becomes more complex when the stop command is given. An impaired driver may not be able to handle this more complex task and additional evidence of impairment may appear.[1]

 

13.1.1.3.2 Bloodshot Eyes

Many things can cause blood shot/glassy/watery eyes. I do not believe it is possible to distinguish if the bloodshot eyes were caused by things other than alcohol, absent some extensive medical examinations. Common things that can cause bloodshot eyes include smoke, wind (this would be especially true if the operator were driving a motorcycle. Even though the driver wears glasses while riding, wind still often gets up under the glasses and will cause red eyes), being tired, perhaps medications, and many other things. Perhaps, the driver even takes medication, such as Claritin ® for his condition.

 

13.1.1.3.3 Flushed Face

While many police reports note a flushed face, according to NHTSA, a flushed face is not one of the things the officer is to be looking for as a potential sign of impairment. Some officers may give a medical reason for how the alcohol causes the flushed face. Again, it is likely impossible to distinguish flushed face due to alcohol or anything else. Some things that can be mistaken for a flushed face are someone whose face is red from being too cold, or a red face from being too hot. Different skin tone or makeup might also be construed as a flush face.

 

13.1.1.3.4 Slurred Speech

Along with bloodshot eyes, and an odor of alcohol, slurred speech is likely the most reoccurring sign in all police reports. Some officers will define it as thick-tounged, or other descriptive language. Two main defenses arise with slurred speech. Just like the other observations, the officer does not know what the person’s typical speech is. Many people have speech impediments, or mumble, or are otherwise difficult to understand. Being nervous will often exasperate this condition.

Second, ask if the officer had to repeat himself due to not understanding the answer given by the Defendant. While it does happen, it is almost always noted in the police report. Assuming it did not happen, you can go through specific things, like an address, to see that the officer completely understood what was being said.

Practice Note: Try and get any audio recordings you can that were made by the Defendant that night, such as booking video/cruiser video. Often the speech will sound just fine right around the time of arrest.

 

13.1.1.3.5 Odor of Alcohol

Odor of alcohol is in pretty much every police report for DWI- Alcohol. If it is absent and the officer says there is no odor, you have an increasingly good chance to win the ALS on the merits.

There are a few different approaches to take when addressing an odor of alcohol. Technically, alcohol has no odor/ a slight odor. What the officer actually smellsis the additives. Most officers will agree with this position and therefore state a distinct odor of an alcoholic beverage.

No matter how strong the odor of alcohol, the officer will (should) agree he cannot determine a BAC based upon an odor.

In a rising BAC breath test case, you may want to try to use a strong odor of alcohol to try and show the alcohol was recently consumed, and therefore the BAC was on its way up.

 

13.1.1.3.6 All of the Things & Divided Attention Tests That the Driver Did Right

In a jury trial, I would particularly emphasize all of the things that the driver did right.

Did the driver put the vehicle in park, and roll up the window properly?

Many things are divided attention tests, such as when the officer asks for a license & registration and the driver hands it to him. If the driver did not fumble while doing this, point it out.

If the driver walked normal, without swaying, and otherwise fine to the area where the FSTs were administered, point that out as well.

Once arrested and in handcuffs was the driver able to walk without any balance issues?

 

13.1.1.3.7 Field Sobriety Tests

There are three standardized Field Sobriety Tests related to DWI Alcohol. Remember, they are validated (according to NHSTA) as measuring a BAC, not to measure impairment.

 

13.1.1.3.7.1.1 HGN

There are many areas for the officer to administer this test improperly. The most common ones include: not checking for equal tracking/equal pupil size,

Incorrect number of passes (14),

Improper stimulus distance (12-15 inches),

Incorrect location of stimulus (slightly above eye level),

Improper stimulus speed,

Not holding the stimulus at maximum deviation (at least 4 seconds, but less than 30),

At what degreewas angle of onset first seen and was the stimulus held there to confirm, and

Incorrect calculation of 45 degrees or maximum deviation.

Sometimes the officer will still have his emergency lights on and facing the driver.

Ask the cop how many times the eye has to jerk, or how far before it must jerk to count as nystagmus. The manual does not define what type of jerking counts, except in regard to distinct and sustained nystagmus, the manual states that people exhibit slight jerking, even when unimpaired, but when impaired by alcohol it will be larger, more pronounced, sustained for more than four seconds, and easily observable[2].

In regard to onset prior to 45 degrees, was the sclera (white of the eye) still visible?

If the officer does not see onset prior to 45 degrees, an argument can be made that the BAC was less than .08. NHTSA states “If the jerking begins prior to 45 degrees it is evident that the person has a BAC above 0.08, as shown by recent research[3].”

Does the defendant suffer from an eye disorder?

Was the jerking of the eye observed by the officer due to his moving the focal object in a jerking manner, including stopping the stimulus either at the end point, or center position?

If the officer did administer the test 100% correctly, you can be just as effective in cross examination by asking just two questions. Things other than alcohol cause nystagmus? And, a nystagmus does not affect someone’s vision or ability to drive?

HGN if often not admissible in Massachusetts. Ususally, I file a motion to exclude it coming into evidence.


13.1.1.3.7.1.2 Walk and Turn

Did the officer ask if the driver had any medical conditions? Even when the officer does ask, it is usually prior to giving the instructions. How can someone know if they will have a problem doing a test before knowing what they have to do? The last thing the officer asks is: “do you understand?” The officer does not have to ask if the person can do the test, or to recite back to the officer what is expected to be done.

You will want to go to the scene to see where the field sobriety tests were administered. Pretty much every police report will say a flat, level surface, free of debris. This may not be the case.

Ask the officer what instructions he gave. Often he will add things, or leave things out. Some officers will try and act cute and recite the instructions really fast, attempting to bolster how well they know them. This is fine for you and the judge, but when someone is doing these tests for the first time, can we really expect him to understand/remember what the officer said?

If the client stepped out of the instruction stance prior to being told (or not being told) not to start until being told to, argue the clue should not count.

You may want to ask the officer what the validated clues are. Sometimes they will give them wrong.

Often there is no marked line. If the client was marked off for stepping off this imaginary line, ask the officer what the client’s imaginary line looked like. Also, note the driver has to completely step off the line for it to count.

Often people will take an improper turn by spinning and pivoting. If the person did that without stumbling or falling over, point out it is more difficult to do the turn that way. If the person made an improper turn by turning in the wrong direction, see how many steps were taken. If it was an odd number of steps, it is easier/more comfortable to turn left, if it is an even number, it is easier and more comfortable to turn right.

 

13.1.1.3.7.1.3 One Leg Stand

Again, ask the officer what instructions were given. Sometimes the officer will tell the person if they put their foot down to pick it up and continue counting. The officer is not supposed to give this instruction during the instructions phase. The officer is only supposed to tell the person to pick their foot up and continue counting once the person actually puts the foot down. Accordingly, I argue the officer implied the person can put his foot down.

Ask the officer how he timed the test. Did he look at his watch/cell phone while also looking at the driver? Many officers will keep going until the person counts to thirty, instead of terminating the test after 30 seconds.

If the person put the foot down rather quickly, argue it was due to a medical condition. NHTSA claims “The original research has shown a person with a BAC above 0.10 can maintain balance for up to 25 seconds, but seldom as long as 30.[4]” Accordingly, one may argue it is due to something other than a high BAC.

If the officer marked the person off for swaying, ask how much the person swayed (preferably at the ALS hearing, so you do not ask again at trial if the answer is bad). The guidelines do not say how far someone can sway before they are marked off. I am not sure how someone can keep perfectly still, and they probably can’t as this clue is in pretty much every police report.

Again with these tests, point out all the things the driver did right, even things that aren’t validated clues; such as counting properly out-loud.

 

13.1.1.4 Breath Test Operator

Were all the regulations followed?

What instructions were given?

Could this have led to a longer blow/higher blow?

Did the Defendant have a tongue ring, dentures, Invisalign, etc.?

If the person tried to give the breath test but was unable, was it due to a medical condition, a broken machine, or faulty directions?

The machine has a margin of error?

The machine can only tell you what a reported BAC is at the time you administered the test?

You do not know what the BAC is at the time of driving?

(If alcohol was in the vehicle, or the driver admitted to drinking, a good argument can be made the BAC was on the rise. You may want to ask the officer further questions such as if he asked the driver when his last drink was, or when he last ate. Although there is a range of how long alcohol takes to absorb, you can usually get an officer to agree it can take 30-60 minutes before the alcohol is fully absorbed)

 

13.1.1.5 Witnesses in Blood Cases

 

13.1.1.5.1 Phlebotomist

Issues to address during cross examination may include:

Whether the sample collection form was properly filled out.

Whether the person who drew the blood is legally authorized by statute.

If the blood draw was not through consent, what the phlebotomist acting at the direction of law enforcement?

What instructions where given to the driver?

Where did the blood kit come from?

Were there instructions in the blood kit?

How was the sample handled? (Try to get the phlebotomist to agree they used utmost care and did not toss the sample around, which may show the tube was not properly inverted the necessary amount).

Did the phlebotomist check the expiration date?

What kind of swab was used?

How was the area swabbed (Swabbing should be done in circles moving outward otherwise it can just circulate bacteria).

Was the driver given any medications (Which could lead to impairment)?

Was the driver hooked up to an IV which might affect a BAC result?

You may want to ask the phlebotomist about any observations of impairment that were not present.

The phlebotomist may have an understanding of fermentation, so you might want to address this as well.

If multiple samples were drawn, was blood drawn in the proper order[5]?

 

 

13.1.1.5.2 Certifying Blood Analyst

The following are some areas you may want to explore during cross examination. Although they are State witnesses, as part of the Department of Safety crime lab, I tend to find many of the analysts will be forthcoming and give answers that can harm the State’s evidence. They also will tend to answer some questions very technically, often not breaking it down into simple terms. This may be good or bad, depending on what your goal is.

Questions:

You were not present when the blood was drawn?

Did you check the expiration date on the blood kit/vials?

How long was the blood sitting at the Crime Lab before it was analyzed?

How did the blood get to the crime lab (chain of custody)?

The GC is not specific to ethanol?

If the timing of the GC is wrong, the results will be inaccurate.

If the temperature is not constant Henry’s law is inapplicable and the tests are inaccurate?

The lab tests in batches/runs?

Alcohol can stick to the column in one sample and then be released into the next sample giving an artificially high BAC. (I doubt you will get a yes answer to this question, but you might get the analyst to agree the molecules stick to the column).

The analyst did not measure for an anti-coagulant or preservative.

Blood can ferment and alcohol can actually grow/develop in blood. Especially if a preservative is not present.

Did the lab check for candida albicans?

Can’t hematocrit affect the results?

If the top of the blood vial was other than grey, determine what anti-coagulants/ preservatives were missing from the tube.

If the top was grey, you can confirm the analyst did not check for preservatives, even though they likely could have.

Higher hematocrit means more solids pushes more alcohol out of liquid and into gas and can give a higher reported value?

How did you exclude the driver had a higher than average hematocrit?

If any of the controls were off, bring this up.

If the sample was rounded up bring up that it is not an accurate BAC. (The analyst will usually correctly note they just follow the guidelines by Saf-C.)

If there are other things detected in the chromatogram inquire that is it contamination.

The machine is not perfect and has a margin of error. (I typically don’t ask what the margin of error is, unless you are right at the per se level, as I expect the response to low).

The machine used a mathematical calculation that was unknown to you?

Have you seen the source code/ software the machine uses?

If serum or plasma was analyzed, has the laboratory adjusted the BAC downward to allow for the serum/plasma concentration being 15 to 20 percent higher? (If so what value was used).

The BAC is a measurement of what was in the blood at the time of the draw?

We do not know what the BAC was at the time of driving.

 

13.1.1.6 DRE Officer

Unlike Standardized Field Sobriety Tests for alcohol cases, the 12 step program for Drug cases is much more subjective. Many of the tests do not have defined scoring criteria (Muscle Tone, Romberg Balance, Finger to Nose Test).

Also, the entire program is designed for an officer to determine a category of drugs. You can argue this is not sufficient because the State must prove beyond a reasonable doubt a controlled drug.

In regard to the toxicological sample, check to see if the drug was actually present in the blood. If it was not present, or the officer made multiple drug category guesses, but not all of the categories were present, you can argue further that the DRE conclusion is not reliable. You should also look at his Rolling Log to see his past success rate in correct conclusions.

Even if the drug was present, that does not mean the drug was impairing someone’s ability.

Below are some additional questions you might want to ask the DRE:

 

Do you know what the person’s normal muscle tone, pulse rate, pupil size, blood pressure, or temperature is?

If one of the values were high, yet another one low, point out the inconsistency.

Many things besides drugs can elevate or decrease those values?

For the Romberg Balance test, and the Finger to nose test, how many clues are needed before you deem someone a failure?

So it is subjective? One officer might reasonably conclude the driver passed?

You cannot tell by the quantity of the drugthat is present in someone’s blood if that amount is impairing their ability to drive?

If the breath test, or blood test, came back less than .08 for alcohol, and the officer called a depressant, ask if the observations made by the officer could have been solely related to alcohol.

If the person told the officer what drugs they were taking at the beginning of the process, try to show the officer saw what he was looking for, and just wanted to confirm what the person told him, no matter what the results were.



[1] NHTSA 2006 at V-10

[2] NHTSA 2006 Student Manual at VIII-5

[3] NHTSA 2006 Student Manual at VIII-5

[4]Id. at VIII-13

Disclaimer: Past results do not guarantee a future outcome. Results include cases in both Massachusetts and New Hampshire. Attorney Dan Hynes is admitted to practice law only in Massachusetts and New Hampshire. This website may be considered advertising. Contacting us does not create an attorney/client relationship. We work with other lawyers throughout Massachusetts.

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