April 2014

Historically, impaired driving was most often linked to alcohol impairment. As such, governments and researchers devised roadside portable breath test (PBT) tools for police to use to identify intoxicated drivers. No such roadside test was possible or necessary for drivers suspected of drug impaired driving—at least until now. The reason for the push for roadside point of contact testing for drugs in 2014 is that drug-impaired driving has become a worldwide safety issue. The use of potentially impairing medication is widespread. Indeed, many drivers operate their vehicles while accidentally under the influence of legally prescribed medication. Recognizing the need for better enforcement, police agencies everywhere are looking for new tools to combat drug-impaired driving. One such experimental tool is Oral Fluid Collection (OFC). It is a means for law enforcement to perform roadside testing of a suspected driver’s mixed saliva for drug impairment with an OFC device (OFCD). The United Kingdom was the first to sanction this type of testing on its driving population.

OFC is said to be able to identify the possible presence of a drug, whether legally prescribed or illegal. The roadside test may also be followed up with a confirmatory technique such as gas chromatography with mass spectrometry (GC-MS). And so, it is the purpose of this article to introduce OFC devices to the reader and describe how they work. We will then explain why we believe OFC devices will be coming to a roadside near you. Finally, we will discuss the application of Frye or Daubert challenges to the admissibility of OFC evidence.

What Is Oral Fluid Collection?

In the world of forensic science, Oral Fluid Collection (OFC) is technically referred to as Mixed Saliva Sampling (MSS). In the non-law enforcement world, however, it is known as Point of Collection Testing (POCT). POCT has been a feature of worksite testing for some time. Police proponents of this testing technique proclaim that it is faster, cheaper, just as accurate as blood or urine but less invasive. Notwithstanding these claims, as we will see with this promising technology, it is not wholly validated or acceptable for judicial use at this time.

How OF-POCT Works

Not all OFCDs work the same way. Each is unique depending on its manufacturer. There are, however, some similarities between the devices—one of which is that they will be used on the roadside just like PBTs are now used. For example, a citizen would have some automobile traffic contact with a law enforcement officer wherein there was some evidence of drug impairment observed and no evidence of alcohol consumption. It would be at this point that the officer would ask the suspect driver to consent to a short OFCD test on a device similar to the one above. However, it is crucial to note that just like the roadside PBTs, the OF-POCT requires a deprivation period. In its instructions and user guide, Drager says that operators must wait 10 minutes before using it.

Whatever device is used by the officer, it usually consists of a collector and a portable reader. The collection OFCD has some sort of tube consisting of an absorbent material at the end to collect saliva from the suspect. Depending on the device, a 1mL sample can be taken from the tongue, gums, inside the cheek, etc., and then placed in the oral screening device. Once the screening process is started, it takes from 2 to 10 minutes to develop a result. After the sample is analyzed, the reader displays whether or not the sample contains any of the drugs it was designed to detect.¹ Some readers even have the ability to print out the results of the test for later use; others produce a number indicating the concentration of drugs found, similar to BrAC results; and others simply are displayed on the screen with no method of memorialization. If the results are positive, the suspect might be arrested for drugged driving. We believe that this initial result will likely be treated as presumptive test—as it certainly should, if scientific principles are followed. Later, the motorist would be asked to provide another saliva sample to be used for an evidentiary test. The sampling container would be then transferred to a laboratory where the OF/MSS would be extracted and subjected to either GC-MS or Liquid Chromatography with Mass Spectrometry (LC-MS) analysis, depending upon the laboratory’s analytical abilities.

Example of Analysis Done by One of These Machines

Although there are numerous devices on the market,² each device uses a slightly different analysis. The Dräger DrugTest® 5000 is already in use in Los Angeles and seems poised to become one of the prevalent devices within the United States. Therefore, in order to gain a better understanding of the device and ways to challenge the use of the device, a description of how the Dräger DrugTest® 5000 works is necessary.³ Currently, the Dräger DrugTest® 5000 is the only device to gain federal approval through NHTSA.

The analytical method used by the DrugTest® 5000 is immunoassay. This analytical tool has been in use for over 30 years.^*

Immunoassays begin with injecting a target analyte^** into an animal such as a goat. The immune system of the animal will create an antibody^† to this foreign substance. These antibodies are then harvested from the animal and used in the creation of immunoassay tests. It is only after these antibodies are acquired that the test can be designed and performed.

The antibodies are designed to target the analyte and cause the analyte to bind to the antibody. Think of this like a jigsaw puzzle, where the antibody is the puzzle that has a hole in it for a puzzle piece to fit, and the analyte is that piece of the puzzle. When the puzzle piece (the analyte) finds a spot in the puzzle (antibody) where it can fit perfectly, it will snap into place in (bind with) the puzzle.

Let’s take this one step further and be more specific to the DrugTest® 5000. The immunoassay technique used is a competitive immunoassay. An antibody is added to the test kit as well as a drug conjugate that has been manufactured by the company. The antibody is labeled so that when it binds with something it gives off a detectable color.

Inside the test collection device are strips of absorbent material. Both the antibody and the drug conjugate are placed on this test strip. The labeled antibody is placed towards one end of the strip. In the middle of the test strip the drug conjugate is embedded. This area, where the drug conjugate is embedded, is the detection zone and is where the color change is watched for and measured. The oral fluid sample is placed on the far end of the strip next to where the labeled antibody is.

Now it becomes a competition where any drug that may be present in the sample competes with the drug conjugate to bind with the antibody. Because the oral fluid sample will come into contact with the labeled antibody before the drug conjugate can, then any drug present in the sample will “win” the competition it is having with the drug conjugate and bind with the antibody first. If there is no drug present in the sample, then the labeled antibody cannot bind until it reaches the detection zone and binds with the drug conjugate. When the labeled antibody binds with the drug conjugate, it creates a detectable red line in the detection zone that is then measured with a LED light source and detector.

The detector will measure the amount of color given off by the reaction of the labeled antibody binding with the drug conjugate. The greater the response the more drug conjugate has bound with the antibody, meaning that there was lesser amount of drug, or no drug, in the sample. When a drug is in the sample, then there will be fewer antibodies available to bind with the drug conjugate in the detection zone (because most of the antibodies have already bound with the drug in the sample), and therefore there will be less detectable color. Therefore, the signal amount identified by the detector is inversely proportional to the amount of drug present in the sample: more drug equals less signal, less drug equals more signal (as depicted in Figure 3).

Problems arise with this technique when a substance that is NOT the analyte of interest has a structure similar enough to the antibody that this other substance can bind with it just as the analyte of interest does. When this occurs the immunoassay test will show a positive result for presence of the target analyte even though the target analyte is not in the sample. This is a false-positive result known as cross reactivity.

It is very important to understand that this type of testing is presumptive and subject to many false positives from cross-reactivity. Any results obtained from immunoassay testing must be confirmed by a confirmatory test such as Gas Chromatography Mass Spectrometry.

Why Is Oral Fluid Collection Coming to a Road Near You?

Well, it’s simple: As of January 2014, for 14 states it is already here. OF/MSS is specifically authorized by statute, and some states already have regulations that allow for it.⁴ In fact, Los Angeles made POCT part of its New Year’s Eve checkpoint effort. Along with PBTs, the officers were authorized to ask drivers if they would consent to a voluntary portable oral fluid test.⁵ After consent is obtained, the OF is placed into a portable machine; the machine being used was the Dräger DrugTest® 5000,⁶ which gives immediate results without the need for a blood test.⁷ Addressing the media and the use of this technology, Los Angeles City Attorney Mike Feuer stated: “Traditionally, our office has focused on drunken driving cases. We’re expanding drug collection and aggressively enforcing all impaired-driving laws.”⁸

Further illustrating the point, the federal government is stepping up focus on drugged driving and the use of POCT. The Office of National Drug Control Policy, along with the White House, the Department of Transportation, and other Federal Agencies, have taken steps to address drugged driving,⁹ and several studies have been published on the perceived problem. For example, The National Roadside Survey of Alcohol and Drug Use by Drivers found that in 2007, approximately one in eight weekend nighttime drivers tested positive for illicit drugs.¹⁰ Drug Testing and Drug-involved Driving of Fatally Injured Drivers in the United States: 2005–2009, found that roughly one in four of fatally injured drivers who tested positive for drugs were under the age of 25.¹¹ In 2009, narcotics and cannabinoids accounted for almost half of all positive results.¹² In that same year, 18 percent of all fatally injured drivers nationwide tested positive for drugs at the time of the crash.¹³ Finally, the Institute for Behavior and Health published Drugged Driving Research: A White Paper. That paper concluded that drugged driving was a significant domestic and international problem.¹⁴ Also, there are many drugs with potential impairing effects being prescribed at a rate higher than we have seen in the history of this country.¹⁵ Accordingly, drug-impaired driving has been thrust into the spotlight of law enforcement, media, awareness groups, and lobbyists.

Moreover, federal agencies under the name “National Drug Control Strategy”¹⁶ announced their goal not only to reduce drugged driving by ten percent by the year 2015, but also to put the prevention of drugged driving on par with drunk driving prevention.¹⁷ Included in their strategy was to “[d]evelop standard screening methodologies for drug-testing labs to use in detecting the presence of drugs.”¹⁸

The authors believe that although the strategy calls for standard methodology in laboratories, it is not an inconceivable leap to standardized methodology for testing roadside. These federal agencies have money to fund research. Here, it must be noted that scientific meetings, such as the American Academy of Forensic Sciences as well as the American Chemical Society, are now including presentations and a considerable amount of discussion about this OFCD technology. Government money is pushing research which in turn is pushing innovation. Seizing the opportunity, various for-profit companies such as Dräger, National Medical Services, Cozart Bioscience Ltd., Varian, Branan Medical Corporation, and Innovacon have entered the market and already have viable devices in use. OFC tests that produce rapid and cheap results that can be read onsite by law enforcement officers who have little to no training seem to be an ideal product for supporters of the technology.

Is OFCD Technology Ready for Court?

Regrettably, all of these roadside devices have significant limitations—notably initial costs, limited scope, lack of sensitivity, and non-validation of the method used vis-à-vis unacceptably high rates of false positives.¹⁹ Clearly, these limitations underlie the need for improved technology and research.²⁰ The White Paper concluded:

[t]he US lags significantly behind Europe and Australia in its investment in drugged driving research and in applying lesson learned to saving lives and reducing injuries. The evidence that drugged driving is a serious public health and safety problem in the US is strong, as is the evidence that current efforts to combat it are grossly inadequate . . . Improved testing technology also is needed with more sensitive rapid onsite oral fluid tests. . . .”²¹

The Office of National Drug Control Policy commitment to improving awareness, education, and fighting the ever-growing problem of drugged driving, plus its reliance on the reports discussed above, are evidence of our government’s renewed efforts to combat drugged driving. This will come, as the White Paper encourages, from OFCDs. The criminal defense bar needs to be prepared for these OFCDs. In this regard, it is not a matter of “if we see them” but “when will we see them?” Remember, for most of us, OFCDs will come, but for 14 states, they are already here.

How to Prepare Frye and Daubert Challenges to OFCD Evidence

In order to prepare to defend clients accused of drugged driving and testing by OFCDs, the primary scientific attack should be by Daubert or Frye challenges. We cannot allow the assumption of valid science to enter our courtrooms unchallenged, lest we have more revelations such as those that surround lead bullet analysis, fire science, pattern recognition, and hair and fiber analysis.

Although Daubert superseded Frye in federal courts, there are still several states that continue to follow the Frye standard for scientific evidence.²² The Frye standard is well known:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular filed in which it belongs.²³

A Frye challenge to OFCD roadside evidence is proper at this point in time because as the White Paper stated, the United States lags significantly behind Europe in terms of drugged driving enforcement. Several European countries have addressed their concerns with drugged driving by approving and commissioning several studies regarding OFC. The below studies show that current OFC technology is not ready for widespread use and is certainly not generally accepted within its field.

From 2006–2008 Driving Under the Influence of Drugs, Alcohol, and Medicines commissioned a study entitled Analytical Evaluation of Oral Fluid Screening Devices and Preceding Selection Procedures.²⁴ This European project focused on the improvement of road safety related to the problem of alcohol, drugs, and medicines. The objective was to give scientific support to the European Union’s transport policy by providing a basis to generate harmonized regulations for driving under the influence of alcohol, drugs, and medicine.

This study looked at eight devices: BIOSENS® Dynamic; Cozart® DDS 806; Drugwipe® 5+; Dräger DrugTest® 5000; OraLab6; OrAlert; Oratect® III; and Rapid STAT®. All of the devices were tested with substance classes: amphetamines, methamphetamines, MDMA or Ecstasy, cannabis, cocaine, opiates, benzodiazepines, and PCP. The study revealed that OF screening tests have only been used in a few countries, but an increasing number are planning to introduce them in the coming years. It acknowledged the benefits that recent drug use is better detected in OFC and it is less invasive than many of the other tests currently on the market. The report, however, acknowledged that there were several issues with the devices. First, none of the tests reached the target value of 80 percent for sensitivity, specificity, and accuracy. The sensitivities for cannabis and cocaine were quite low in all the tests. This problem was further compounded as these two particular drugs are most prevalent in individuals suspected of drugged driving. The study concluded, “the time consuming process of onsite oral fluid screening, in combination with the quite high cost of the devices and the relatively low sensitive for cannabis, which in many countries is the most frequently used illegal drug, will probably prevent large scale testing in practice.”²⁵

Washington’s 2004–2006 ROSITA II Project²⁶ was a study commissioned to roadside-test OFCDs. It tested two devices, the SalivaScreen 5™ and the DrugWipe 5™, and concluded that the SalivaScreen 5™ was not suitable for roadside use as it suffered a large number of failures and was not sensitive or accurate enough to detect marijuana.²⁷ Rosetta II found that DrugWipe 5™ fared better, stating that it made interpretation of the results easier and more reliable, that it was easier to use, and that it did not fail. Noticeably absent, however, was any mention of the sensitivity or accuracy to detect marijuana. A chief complaint in the report was the high cut-off rate for marijuana. The officers argued the cut-off rate has to be lower, as other than alcohol, marijuana is the most prevalent drug for DUI-D arrests. Ostensibly, higher sensitivity was not possible for the device.

Finally, the National Highway Traffic and Safety Administration conducted a study entitled State of Knowledge of Drug-Impaired Driving.²⁸ That study discussed OFC testing and its problems. Some issues preclude meaningful use in the field. For example, some drugs inhibit salivary secretions (e.g., MDMA, opiates, and methamphetamine). Without sufficient sample size, the portable machines cannot achieve a valid result. Further complicating this problem, there appears little commutability among devices, with some reporting false positives or false negatives with the same sample. Another problem is that there is no consensus on cut-off levels for the operable portable devices. Almost universally and pandemic across the OFCDs is that their results are not accurate, reliable, or valid for cannabis. Further, there are no nationally established standard methods for oral fluid testing; nor are there any certification programs available.²⁹ In addition to these problems, recent evaluations of available point of collection testing devices indicate that like the European and Washington studies, the specificity, sensitivity, and predictive values for drugs have been poor.³⁰

Additionally, the “cut-off” levels for the kits are set too low for many substances and will absolutely cause the false arrest of non-impaired drivers. For example, consider the oral fluid kit for the Drager device pictured following:

With an amphetamine cut-off level of 50 ng (AMP 50), a lot of people who are properly using therapeutic drugs such as Adderall will be caught by this unnecessary wide net.

Drugs that are taken orally, such as cannabis, or that get into the oral cavity can provide inaccurate results upon confirmatory testing, much like residual mouth alcohol can provide inaccurate BrAC results at roadside with a portable breath test. These over-reported results, based upon contamination, can totally skew the extrapolation of the OFC sample quantitative result by GC-MS to a pharmacodynamic effect. Finally, there are limited studies of insufficient value that translate the quantitative results of OF POCT to traditional blood levels in plasma, making opining as to pharmacodynamic effect nearly impossible.

These and other studies reach similar conclusions—i.e.,³¹ that the OFCD evidence should not survive a Frye challenge by competent and prepared defense attorneys with good experts.

Here, it must be remembered that these devices are not generally accepted within the scientific community. Although they do have their benefits, such as being less invasive than blood testing and cheaper in terms of collection costs, what they DO NOT have is the ability to give reliable, accurate, and valid results that are generally accepted within the relevant global scientific community.

What if you live in a Daubert state? The Daubert standard replaced the Frye standard in 1992 when the United States Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals. This “new” test abandoned the “generally accepted” standard and instead employed a variety of factors to determine whether scientific evidence is reliable. The factors that were considered:

(1) is the theory, technique, methodology, etc., testable and has it been tested;
(2) has it been subject to peer review and publication;
(3) what is its known error rate;
(4) are there standards and controls maintained for the technique and methodology; and
(5) has the theory, technique, methodology, etc., been generally accepted.

These factors, however, are not all inclusive, and subsequently courts have employed a number of other factors. Using the Daubert Court’s factors, a successful challenge can also be made against the OF POCT. The technique has been tested. This article discusses two of them, and the endnotes reference several more. It has been subject to peer review and publication. The results of those tests, however, can be described as inconclusive at best, and at worst, demonstrate that the technique and the methodology used is not scientifically reliable for all of the reasons stated above. This is not only true for the roadside portable testing, but also in the confirmatory GC-MS and LC-MS testing due to the contamination. Of import here is that the error rate in these devices has been shown to be high. In fact, in the Washington study, the testing device was completely abandoned because of a constant error rate. The simple truth of the matter is that these devices are not yet ready to be used in everyday policing or prosecution. Although they show promise from a scientific and policing point of view, they are neither reliable nor scientifically proven to be scientifically acceptable.

Conclusion

Drugged driving enforcement is on the increase and will soon be on par with drunk driving. Law enforcement will be using OFCDs to combat it—even though the technology is not up to the task yet. That said, it is our job as constitutional defenders to constantly hold the government scientifically and legally accountable. To do so, we are obligated to learn and understand both the science and the law, meaning their processes, weaknesses, and strengths. Most importantly, we must always do so with dedication, honor and courage.

Notes

1. Interestingly, several of the devices look similar to an over-the-counter pregnancy test. For example, the Oratect® III test shows a blue line to indicate there is an adequate sample, and then a red line appears to indicate the presence of any drugs in the OF.

2. Examples of some of the most common and prevalent devices on the market include: Drugwipe® by Securetec (Ottobrunn, Germany); ORALscreen™ by Avitar (Canton, MA); Cozart RapiScan Oral Fluid; Drug Testing System by Cozart Bioscience, Ltd. (Oxfordshire, U.K.); BIOSENS® Dynamic by Biosensor Applications (Solna, Stockholm); Oratect® III by Branan Medical Corporation (Irvine, CA); and SalivaScreen 5™ by Medimpex United Inc. (Bensalem, PA). This is by no means an exhaustive list but is intended to just give an example of the variety of devices available to the public.

3. For those readers who wish to see a video sample of how the devices work, please visit the Dräger DrugTest® 5000’s YouTube page http://www.youtube.com/watch?v=SJ4tm6PCwF0.

4. Fourteen States currently have laws or regulations allowing for onsite oral fluid testing: Alabama, Arizona, Colorado, Indiana, Kansas, Louisiana, Missouri, New York, North Carolina, North Dakota, Ohio, Oregon, South Dakota, and Utah. See StopDUID, http://www.stopduid.org/ (last visited July 9, 2013) (“Our goal is to provide the most recent information on drugged driving policies in the United States. This website tracks research and legislative activity to strengthen DUID laws in all 50 states.”).

5. LAPD deploys drug-detection swab tests at sobriety checkpoints, http://rt.com/usa/portable-drug-test-lapd-902/ (Dec. 28, 2013).

6. Phil Rennick, “New Tools for the Detection and Prosecution of the Drugged Driver,” http://www.draeger.com/sites/assets/PublishingImages/Segments/Law%20Enforcement/US/Drugtest%20Cali.pdf (July 2013) (“The Dräger DT5000 is currently being used at sobriety checkpoints in the City of Los Angeles.”).

7. Dave Paresh, Portable drug test a new addition at New Year’s DUI checkpoints, http://www.latimes.com/local/lanow/la-me-ln-new-years-dui-checkpoints-20131227,0,3004417.story#axzz2pq68IpDT (Dec. 27, 2013).

8. Id.

9. Drugged Driving, supra note 2 (“Americans are all too familiar with the terrible consequences of drunk driving. Working with the Department of Transportation and other Federal agencies, the Office of National Drug Control Policy is taking steps to highlight the growing problem of drugged driving.”).

10. Id.

11. Drug Testing and Drug-involved Driving of Fatally Injured Drivers in the United States: 2005–2009, http://www.whitehouse.gov/sites/default/files/ondcp/issues-content/fars_report_october_2011.pdf (last accessed July 3, 2013).

12. Id.

13. Id.

14. Robert L. DuPont, Drugged Driving Research: A White Paper 4 (2011).

15. Id.

16. Id.

17. Id.

18. Id. at 7 (the strategy also calls for encouraging states to adopt per se drug impairment laws; collecting further data on drugged driving; enhancing prevention of drugged driving by education communities and professionals; and providing increased training for law enforcement on identifying drugged drivers).

19. Id. at 18.

20. Id. at 24.

21. Id. at 48.

22. The Frye standard is still followed in: California, Illinois, Kansas, Maryland, Minnesota, New Jersey, New York, Pennsylvania, and Washington.

23. Frye v. United States, 293 F. 1013, 1014 (App. D.C. 1923).

24. Tom Blencowe et. al., eds., Analytical Evaluation of Oral Fluid Screening Devices and Preceding Selection Procedures, Druid-Project (March 30, 2010), http://www.druidproject.eu/cln_031/nn_107534/sid_4898EF86AF78D3E23BAC0B35BC878CD5/nsc_true/Druid/EN/Dissemination/downloads__and__links/Final__Report.html.

25. Id.

26. Jayne E. Thatcher, ROSITA II Project: Evaluation of On-Site Saliva Drug Testing Devices in Washington State, rosita.org (2007), http://www.icadts2007.org/print/80rosita_salivascreen.pdf.

27. There is also a study done in Missouri. The Missouri study looked exclusively at the Dräger DrugTest® 5000. The results of that study are available at http://www.ucmo.edu/safetycenter/documents/DragerStudy.pdf.

28. R. K. Jones et. al., State of Knowledge of Drug-Impaired Driving, The National Highway Traffic Safety Administration (August 2003), http://www.nhtsa.gov/people/injury/research/stateofknwlegedrugs/stateofknwlegedrugs/pages/TRD.html.

29. Id.

30. Id.

31. See Olaf H. Drummer, Drug Testing in Oral Fluid, 27 Clinical Biochemist Rev. 147 (2006) (concluding “More research is needed to further the detection of drugs present in [OF] which should allow improved reliability of detection of drugs. Similarly, future technological developments of on-site devices should allow more sensitive and reliable detection of a number of drugs.”); K. Wolff et. al., Driving Under the Influence of Drugs: Report from the Expert Panel on Drug Driving, Gov.uk (March 2013), https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/167971/drug-driving-expert-panel-report.pdf (“Currently, oral fluid tests cannot be used to give a precise prediction of the concentration of a drug in blood (or plasma or serum) for confirmation testing and therefore prediction of possible drug effects.”); Wendy M. Bosker & Marilyn A. Huestis, Oral Fluid Testing for Drugs of Abuse, 55 Clinical Chemistry 1910 (2009) (“The promise of worldwide OF testing spurred commercial research and development of POCT devices, and commercial devices were rushed to market before much of the basic science of drug excretion into OF was known . . . The major problems with early generation OF POCT included inadequate limits of detection, specificity, and efficiency.” Additional research has led to some improved products. However, “additional research is critically needed to characterize potential problems with OF collection devices and immunological and chromatographic assays.”); Marilyn A. Huestis, Oral Fluid Testing: Promises and Pitfalls, 57 Clinical Chemistry 805 (2011) (OF limitations include difficulty of collection following recent drug use and the potential for passive contamination; the following technical issues with OF must be resolved: inconsistent oral fluid and elution buffer volume, variable drug recoveries, inadequate oral fluid immunoassay sensitivity and specificity, and lack of homogeneous immunoassays for automated analyzers; there could be inadequate specimen for multiple drug confirmations); F. M. Wylie et. al., Drugs in Oral Fluid: Part II Investigation of Drugs in Drivers, 150 Forensic Sci. Int’l 199 (2005) (At present, no OF device has the sensitivity or specificity to successfully detect an extensive range of drugs).

Footnotes:

**Analyte—The substance being analyzed in an analytical procedure. In this case it would be a drug such as marijuana, a benzodiazepine, cocaine, etc.

†Antibody—Proteins in the body that are designed to target and attack foreign substances that are harmful to the body, substances such as bacteria or viruses.

The right to cross-examine is arguably the most crucial of all the fundamental rights accompanying a criminal jury trial. Witnesses are allowed to convey their message through open-ended and narrative question and answer sessions. The framers of the Constitution, however, knew piercing, scrutinizing, and chiseled cross-examinations were also necessary if courtrooms were to be places of justice. A thorough cross-examination is often the only way for a defendant in a criminal case to present his theory of the case to a jury.

Many witnesses either do not understand, do not appreciate, or do not respect the rules. Even though they just had their turn to tell their story during direct examination—they still believe it is their turn to tell their story again during your cross-examination despite the questions they are asked. Difficult witnesses, out of spite or even obliviousness, deny your client a fair trial because they refuse to answer questions posed to them.

We all encounter difficult witnesses. They are not limited to experts, police officers, or biased lay witnesses. The level of difficulty a witness poses is often unknown until cross-examination begins. You must prepare for each witness to be difficult or you risk having your theory damaged—sometimes fatally. If the witness ultimately turns out not to be difficult, then you have lost nothing by having prepared.

The keys to cross-examining the difficult witness are: (1) diagnosing how your witness will be difficult and which tactics they will use; (2) preparing your cross-examination in conjunction with your theory of the case; (3) using fundamentally sound cross-examination techniques during the cross-examination; and (4) using appropriate witness control techniques if and when necessary.

I.   Identifying the types of difficult witnesses & their tactics

A.  Categorizing difficult witnesses

Difficult witnesses come in all shapes and sizes. Many are difficult on purpose, and others may present challenges because of youth, diminished capacity, or even by simple personality quirks. Hard witnesses are like snowflakes—no two are alike. No category is truly perfect, but the five most difficult witness types are: (1) the “lawyer” witness; (2) the “instant expert”; (3) the “fire-hose” witness; (4) the clueless witness; and (5) the “patronizing” witness.

1.  The “lawyer” witness

This is a witness trying to win the case on his or her own. They are consciously trying to out-think you on each and every question. A “lawyer” will attempt to thwart or foil questions by thinking of where your cross-examination is going and trying to head you off regardless of how simple the question may be. Rather than listen to the question and answer it with a responsive “yes” or “no,” they instead try to out-flank or out-maneuver you. They want to debate you instead of answering questions.

Example:

Q:  My client told you he is from Mexico, right?
A:  That’s what he told me, yes. In my training and experience I’m taught not to believe 100% of what someone tells me.
Q:  Spanish is the main language in Mexico, right?
A:  There are lots of languages in Mexico, counselor. I’m not an expert in Mexican languages and dialects.
Q:  My client told you he speaks Spanish, right?
A:  Again, I’m trained not to believe everything I hear. I’m always very careful to demonstrate the test multiple times before I have the subject begin. It’s really for his own safety because that’s my number-one priority. He nodded at me when I asked him if he understood, counselor. In my training and experience, I know he understood everything I said.

2.  The instant expert witness

An instant expert is much like the “lawyer” above, who—out of nowhere—seems to have expert knowledge on a topic no one expected him or her to have. Instant experts are problematic because they take basic assumptions and turn them on their head. Even the most simple of questions can become a circus at any time.

Example:

Q:  My client told you he is from Mexico, right?
A:  Yes.
Q:  Spanish is the main language in Mexico, right?
A:  There are about ten different variations or dialects of the Spanish language within Mexico itself. For example, the Chiapaneco dialect from the southern border of Mexico is more akin to languages of Central America, unlike the Nor-Este dialect, which we’re far more accustomed to here because it’s from the mountains of Northern Mexico. A good clue is whether they pronounce the letter “s” like the letter “z.”

3.  The fire-hose witness

A fire-hose witness cannot quit talking and speaks in manic, endless, run-on sentences. They are very difficult to control. Some fire-hose witnesses are acting intentionally, and others are simply being themselves. If being a fire hose is simply a function of their personality, a jury may get frustrated with you if you try to rein them in. The jury could see you as rude or patronizing if you are picking on a person merely because of their personality. It is rare to see experts or law-enforcement officers as fire-hose witnesses, but if they are doing so you can bet it is on purpose to make your job harder.

Example:

Q:  My client told you he is from Mexico, right?
A:  That’s what he said but I don’t know him personally. People say all sorts of things that I have no way of verifying, and most people I come into contact with on the street still understand English even if they’re not from here. One time I had someone tell me he was from the African country Zambia. He seemed to understand the tests just fine, and I ended up letting him go just like I do with most of the people I pull over.

4.  The clueless witness

Many witnesses simply are not very smart. They do not pay attention to the question, or they are not capable of giving a responsive answer even if they are paying attention. These types of witnesses veer off course through no fault of their own. A witness’ lost nature can present serious problems when they stray from topic to topic, even though you have framed your question perfectly. The clueless witness presents a major problem because it impairs your ability to teach the jury in a methodical and logical progression.

Example:

Q:  My client told you he is from Mexico, right?
A:  He told me he still has family there, so I remember feeling really bad for him that he was so far from home, and then he said something to me about him being hungry. I think he said he’d only eaten a burger eight hours ago? I don’t know for sure because I don’t speak much Spanish. I’m sorry… could you repeat the question?

5.  The patronizing witness

We have all run into witnesses who think a trial is a game and a waste of their time. A patronizing witness is one who wants to “cut through all the bull” of your pesky questions and just tell the jury your questions are baloney to him. Patronizing witnesses show little regard for the judge and even less for you. Often these types of witnesses will try to volunteer information in between questions so as to “clear up” a good point you may have just scored—as if they are on re-direct examination.

Example:

Q:  My client told you he is from Mexico, right?
A:  Yes.
Q:  Spanish is the main language in Mexico, right?
A:  Yes.
Q:  My client told you…
A:  Can I just say something here—you’re trying to make it sound like he didn’t know what was going on. That’s just baloney, counselor.

B.  Categorizing tactics difficult witnesses use

Difficult witnesses probably do not have a manual or playbook written up anywhere, but this is a list of the most common types of diversionary or evasive tactics witnesses will use when being cross-examined. There are many different ways witnesses tend to be non-responsive. Again, clever witnesses come up with different tactics all the time—but these are the most common forms of non-responsiveness or disruptive behavior.

1.  The witness answers as if still on direct examination

Regardless of how narrow you frame your question, many witnesses will still answer like it is an open-ended question. This is common amongst people who testify on a regular basis, such as police officers and expert witnesses. You know it is on purpose when they look at the jury while answering. Even so, every cate­gory of witness listed above is guilty of answering a leading question as if they are still on direct. This type of witness is trying to maintain control of your cross-examination in an effort to blunt favorable points you may be trying to make. They purposefully try to prevent you from getting into a rhythm on cross and feel like you should not get a turn at all making your points.

Example:

Q:  My client told you he is from Mexico, right?
A:  Yes [looking at the jury], it’s our common practice to communicate with people, and if it’s apparent there might be a communication issue then we ask them where they are from. I asked him where he was from originally, and I believe he told me Mexico, sir.

2.  A “baiting” witness

“Baiting” witnesses are trying to get you off course by either changing the topic or limiting damage to themselves. Generally, witnesses will bait you in one of two ways. First, they can offer what is known as “external bait.” External bait is when a witness insinuates or even expressly offers up alternative information in an effort to get you off course.

External bait:

Q:  My client told you he is from Mexico, right?
A:  Yes. But THAT’S NOT ALL he told me [witness looking at the jury with eyes widened]. He told me some other things about what happened earlier that night but I left them out of my report because I didn’t want to embarrass him.

Alternatively, “internal bait” is when the witness recognizes he is beaten and in an effort to minimize damage, tries to head you off with a premature “goal” answer well before you have gotten there.

Internal bait:

Q:  My client told you he is from Mexico, right?
A:  Yes.
Q:  Spanish is the main language in Mexico, right?
A:  Yes.
Q:  My client told you he speaks Spanish?
A:  Yes.
Q:  He told you he doesn’t speak English?
A:  Yes.
Q:  You gave him the instructions in English?
A:  He might not have understood everything and maybe I should have used an interpreter.

It is always tempting to pursue bait from witnesses whether it is transitioning to a new topic at their suggestion or just allowing them to “play dead” on a topic in hopes you will move on. Anytime you take bait, however, you teach the witnesses they can manipulate and control you and disrupt your line of questions when it becomes uncomfortable for them.

3.  Asks for clarification

Many witnesses will nitpick your questions and try to derail you by asking for further clarification or a definition of something within your question. Clarifying questions for witnesses not only disrupts your rhythm on cross-examination but also often causes you to re-ask a perfectly fine question in a way you might not ask clearly a second time. Instead of staying on target to cross-examine towards a goal, your cross-exam takes a tailspin.

Example:

Q:  My client told you he is from Mexico, right?
A:  Do you mean from there as born in Mexico or just lived there. I guess I just don’t understand your question, counselor. What do you mean “from Mexico”?

4.  Answering questions with questions

This concept is self-explanatory but very frustrating. Jurors who are not used to watching cross-examination on a daily basis may not understand that what they are watching is not a debate and instead is a one-sided story you are telling through the opposing witness. You are suddenly put on the spot when a witness poses even a simple question. You risk looking unfair to a jury by ignoring questions, yet we are socially programmed not to ignore questions others ask of us.

5.  “Out-flanking” or “lawyering”

As described above, many witnesses think they can outwit you or they can “beat you to the punch.” The witness treats every question as a trick and deliberately tries to “foil” even the most harmless of questions. Highly biased witnesses who typically testify on a regular basis are probably the biggest culprits of “out-flanking” or “lawyering.”

6.  Quibbling or fighting

Many witnesses quibble over small details and pick fights over things simply not important in your case. When you bite on a diversionary tactic like this, you risk the jury losing the big-picture vision of your overall theory. Also, the jury may just put you in the same category as the witness and think of you both as five-year-olds.

II.   Preparation to defeat the difficult witnesses and their tactics

A.  General—elbow grease

There is simply no substitute for hard work. There are many talented lawyers who are natural at walking into the courtroom and making horsey witnesses look foolish. While we all want to think of ourselves in this way, the truth is you will defeat most difficult witnesses well before the trial begins by and through your preparation.

The single greatest resource for any cross-examiner is Cross-Examination Science and Techniques by Larry S. Pozner and Roger J. Dodd (2nd Edition, LexisNexis publishing, 2009). No other resource comes close. Many of theses ideas, tactics, and techniques are based on their hard work and dedication to cross-examination.

B.  Your theory of the case

Your main advantage in every cross-examination is that you know what is important to your theory and the witness probably does not. This paper is not about trial theory, but your trial theory is integral to how you cross-examine. Successfully crossing a difficult witness is simply not possible without a clear theory. Such a theory allows you to: (a) cross-examine over areas where the witness does not expect you to cross; (b) cross over areas where witnesses are unlikely to disagree with you; and (c) avoid pointless spats over minutia with witnesses because you know they are not important.

C.  The chapter method of cross-examination

Pozner & Dodd profess three rules to cross-examination: (1) leading questions only; (2) one fact per question; and (3) all questions lead to a logical conclusion or “goal.”

1.  Leading questions only

Never ask a non-leading question in front of a jury. A non-leading question normally begins with one of the five w’s or h (who, what, where, when, why, or how). Remember, you are teaching the witness, the judge, and the jury. This session is neither a free-flow of ideas nor is it a philosophical debate. Cross-exam is you telling a story one fact at a time through the opposing witness.

When you ask an open-ended question—even a harmless one at the beginning of your cross—everyone in the room subconsciously thinks they are watching an open discussion. A cross-examination that is a mix of open-ended questions and leading questions gives mixed signals to the judge, jury, and witnesses. The witnesses appear to be invited to explain themselves, but when you attempt to gain control of them, you—not them—are the person who seems unreasonable and unfair.

2.  One fact per question

Drafting questions properly in short and simple bites eliminates many problems the difficult witness may try to pose. It thwarts requests for clarification and makes it harder for “lawyers” and/or “instant experts” to out-flank you or derail you in a manner credible to a jury. There is very little room for evasion of a question like, “You asked for a beer?”

One-fact questions should be based on facts that are as objective in nature as possible. Try to hone in on facts where if a witness evades, you have a police report or video to show the witness he is wrong. Cross-examining over vague and subjective concepts may be necessary at times—but they are fertile ground for difficult witnesses to give you headaches.

3.  Questions lead to a logical goal

Questioning to a logical goal is your capping off each chapter that is like a vignette. It teaches the jury your theory of the case one fact at a time and paints a picture you want them to see. More importantly: When you cross-examine towards logical goals, the jury is not really interested anymore in the witnesses’ testimony or evasions. The jury hears or thinks “yes” to your questions even if the witness is huffing and puffing, being non-responsive, or trying to pick a fight over minutia.

D.  Pre-trial advanced scouting/mental preparation

It is not always possible to know how a particular witness may testify or to know what games witnesses play on the witness stand. Prosecutors are at a terrible disadvantage because they generally have no clue what type of witness will come to testify for the defense. Even if they knew, there is probably no transcript or professional resource they can use to prepare for a witness unless it is an expert. If you can get an advanced scouting on a witness through a motion to suppress, ALR, or even word of mouth—do it!

Once you are aware of how your witness likes to evade, mentally rehearse by going through your cross and envisioning where and how the witness might try to evade. This will allow you to tighten your questions. When rehearsing your questions or role-playing with other lawyers before trial, try to think like a difficult witness. With what loose words can they play? Are there any opinions you are tossing out with which the witness can disagree? Also, mentally rehearse one or two witness-control techniques you might employ should you need them.

III.  Execution and technique of cross-examination

A.  The effect of your preparation

Your technique during cross-examination is designed to minimize the chance of a witness becoming difficult in the first place. If a witness becomes difficult, your method should minimize the damage caused by the witness. A sound technique will:
(1) teach the jury your theory regardless of a difficult witness; (2) minimize evasiveness from the witness; and (3) condition the judge and jury that the witnesses are out of line when they refuse to follow your lead.

1.  Use opening statement to your advantage

A huge advantage you have over a witness is you have the opportunity to give the jury a sneak preview of what they will see in the case. The jury is the sole judge of the witnesses and their credibility. If you have advanced scouting of witnesses or have dealt with them before, you can tell the jury in opening you anticipate the witnesses will be difficult and/or resort to different tactics to avoid answering questions. When the witness does begin to evade in the manner you predicted, the jury gives you even more credibility.

2.  “Downhill” cross-examination

Downhill cross-examination (or “yes-train” cross-examination) is a method in which the questions come at a slightly faster pace than what the witness is comfortable with. Like a skier going downhill on a difficult slope, minor rifts or bumps in the snow are minimized by the quicker speed of the person skiing. Your goal is to put the witness on the “yes-train” so they answer a swift “yes” to every single question in your cross-examination. This effectively makes your cross-examination like a closing argument through each witness.

i.  Picking up the pace

Questioning at a quicker pace accomplishes several important goals important to controlling difficult witnesses. Primarily, it increases the witness’ anxiety level. While we are not trying to traumatize or terrorize a witness—the truth is they are less likely to evade when they sense they are on their heels. A witness trying to “lawyer” or “out-flank” you has a much harder time doing so when you have them on the “yes-train.”

The “yes-train” also establishes a rhythm with which everyone in the court-room becomes accustomed. The witness, then, is put in an awkward position to break the rhythm if they want to be evasive. If they do break the pace, the jury sees that as being overtly disruptive.

Finally, picking up the pace causes the jurors to focus far more on the question asked than the answer. Remember, the jury is processing the picture you frame for them through the witness. If your questions follow a logical progression, then a witness’ hemming, hawing, or attempts at frustrating you do nothing to prevent your teaching the jury your theory of the case.

ii.  Jujitsu—taking the witnesses where they want to go

Getting a witness to help you go “downhill” is always a challenge. Remember, you will almost always encounter more resistance from a witness when you are attacking them or their work. Every witness, however, wants to be seen as honest, fair, objective, well-trained, professional, etc. Questions allowing the witness to discuss these traits are excellent ways to begin to go downhill with them or get them on the “yes-train.” You virtually never do damage to your own case by allowing an opposing witness to portray themselves to a jury in a positive light—because this is what the jury expects this witness to say anyway.

Even further, many winning trial theories are actually consistent with facts an opposing witness is willing to convey.

B.  Safe-harbor cutoffs

Often you and the witness can together pick up the momentum of a cross-exam through initial chapters focusing on all the witness’ good traits in the form of safe-harbor cutoff chapters. A safe-harbor is a place witnesses know they can retreat when cornered. For example, a police officer confronted with facts he left out of his police report almost always retreats by saying that the report is not a big deal, and that the fact left out of the report was left out because it was not a big deal at the time. As another example, police officers frequently allude to medical conclusions but then quickly retreat into “I’m not a doctor” when shown their conclusion is suspect.

A safe-harbor cutoff chapter takes those safe harbors away from the witness long before he or she knows they will need them. Police will say they are detail oriented and meticulous report writers long before the report is called into question. They will also readily admit they know their own limitations and are not qualified to give medical conclusions long before they are asked, because they want to enhance their credibility to the jury.

The safe-harbor cutoff chapter, then, serves two functions. It gets the witness going “downhill” quickly with the cross-examiner, and it cuts off important escape routes a witness typically seeks later.

1.  In cross problems, do not get rattled

If you have drafted tight and clear one-fact leading questions, presented them logically, and have the witness on the “yes-train,” you should notice the witness will have already offered far less resistance than you anticipated. Still, witnesses will fight. It is important to stay focused on your chapters and the points you came to score with the jury.

i.  Imperfect answers

A witness might not always give you a “yes” answer. They may say they do not remember, or they may only generally agree with your one-fact question, or they may simply disagree with your fact or question even though you have logically cornered them into answering your question with a “yes.” Starting a war with a witness and trying to cram them into a “yes” or “no” response only serves to derail your message to the jury. If the point you are making flows logically, the jury will make that jump for you. Chances are the jury will not remember the witness said “maybe” instead of “yes.”

ii.  Bait

Remember: Witnesses will throw you bait to get you off your chapter. Often taking bait is tempting because a witness may want to jump to another point on which you were prepared to cross-examine him, and you feel you can teach the witness not to be evasive by defeating him on this point, too. This is a mistake and will more often result in your cross-exam getting out of control. It is about teaching the jury—not bullying the witness.

iii.  Questions

Occasionally a witness will ask you a question. While it is tempting to allow them to do it because you want to show the jury there is nothing your side has to hide, it damages your cross-examination on many different levels. Again, it allows the judge and jury to see the cross-exam as a debate and resets their expectations accordingly. It can often put you as the lawyer on the spot as if you were a fact witness. Worst of all, answering a question posed by a witness again focuses the jury on the witness’ point of view instead of your picture on cross. Simply do not answer a witness’ question.

iv.  Non-responsiveness

Again, going “downhill” with a witness minimizes the damaging effect a non-responsive witness inflicts on your cross-examination. The jury is following your story if you are asking the questions simply and logically. Non-responsiveness, then, is just noise and does not hurt your cross as badly as you think. Unless it hurts your cross-exam, you should ignore it and not allow it to throw you off.

There are, of course, times when you must deal with a non-responsive witness. Never rely on the judge to shut down a non-responsive witness for you. If the judge overrules your objection, then the witness’ bad conduct has been ratified and they are empowered to continue being difficult. Also, when the judge overrules your objection, the jury thinks you are the bad guy. A “non-responsive” objection is only effective if you are objecting to the opposing witness’ answer while they are on direct exam with the opposing lawyer.

IV. Witness control techniques

Again, even if you have done everything possible to minimize a witness’ ability to fight you, throw you off course, or otherwise thwart your cross-examination, a witness can always be more difficult than you anticipated. Here are some specific techniques you can use to try to gain control of a witness. For a more complete list, consult Pozner & Dodd.

A.  Looping

Looping is a simple technique taking a word used by the witness and using it in three separate questions in succession. A loop can be either planned in advance or spontaneous if the witness uses a word helpful to your theory of the case. The structure of the loop question is designed merely to re-use the word you want but does little else to advance your theory of the case. The loop teaches a witness not to use words other than “yes” or “no” in answering a question. An example of a loop might look as follows:

Q:  My client told you he is from Mexico, right?
A:  Yes.
Q:  Spanish is the main language in Mexico, right?
A:  Yes.
Q:  My client told you he speaks Spanish?
A:  I don’t know if he told me all of this, but I got the general sense he seemed confused the entire time I was out there. I don’t know if it was because he was intoxicated or not.
Q:  So when you were speaking to him in English, he seemed confused?
A:  Yes.
Q:  And when you were giving him instructions on the walk and turn in English, he seemed confused?
A:  Yes.
Q:  And when you were giving him instructions on the one leg stand in English, he seemed confused?
A:  Yes.

This loop consisted of two parts: an anchor plus the phrase we wanted to loop. The anchor is a basic fact we know the witness will not dispute or has already conceded (“you were giving him instructions in English”). The second part is the word or phrase we want to loop (“he seemed confused”). The loop, then, is no more than making a slight variance to the anchor phrase and repeating the other phrase two additional times.

A loop can either be planned in advance or spontaneous. Planned loops are simpler to execute and the general rule on spontaneous loops is unless it pops instantly into your mind while you cross—it is best to just move on with your chapter.

B.  Corking

A “cork chapter” is a zinger of a chapter you have written out that generally deals with a specific point or issue where you know you can pound the witness. Often it is a prior-inconsistent statement, or it can be showing a witness his or her conclusion was simply wrong. The “cork chapter” then is inserted into your cross-examination to keep the witnesses under control if they are being difficult. If you end up not using the chapter, you can put it last or second-to-last in your sequence of chapters.

C.  “Our turn”

Occasionally, you might run into a witness that simply feels above being cross-examined. This is typically a “patronizing” witness as described above, but could also be a fire-hose witness or just as often a “lawyer” who simply wants to repeat what they said on direct examination again… and again… and again.

An “our turn” chapter is designed to show the jury how this witness is being unfair by denying you cross-examination. In an “our turn” chapter, you specifically lay out all the different ways the witness is allowed to tell their story. You end the chapter by asking the witness if they do not mind if you have “our turn” too. Here’s an example:

Q:  You believe in fair trials?
A:  Yes.
Q:  You’ve made it clear you think my client was driving while intoxicated?
A:  Yes.
Q:  You still want him to have a fair trial, right?
A:  Yes.
Q:  And in a fair trial we get to ask questions?
A:  Yes.
Q:  And in a fair trial you have to answer questions, right?
A:  Yes.
Q:  And in a fair trial you have to answer questions truthfully, right? (Notice the planned triple loop on “fair trial.”)
A:  Yes.
Q:  When you were on the roadside, you had your microphone on?
A:  Yes.
Q:  You knew you were being recorded?
A:  Yes.
Q:  You knew what you were being said might be heard by a jury?
A:  Yes.
Q:  On the roadside—that was your turn to investigate, right?
A:  Yes.
Q:  And today we’re in trial, right?
A:  Yes.
Q:  And now you’re on the witness stand testifying?
A:  Yes.
Q:  The lawyer for the state asked you questions.
A:  Yes.
Q:  So it was your turn again?
A:  Yes.
Q:  And when I’m done asking you questions, the lawyer for the state will get to ask you questions again, right?
A:  Yes.
Q:  So it will be your turn again?
A:  Yes.
Q:  You’ve testified in trials before?
A:  Yes.
Q:  So you know right now it’s our turn to ask questions?
A:  Yes.
Q:  You don’t mind if we have a fair trial do you?
A:  [No one will care how they answer.]

D. Clarification

Witnesses seeking clarification (or to repeat a question) can be a major impediment to a cross-examination flowing downhill. Witnesses seek clarification either because they truly need it or they are playing games. There are several keys to shutting down witnesses who constantly seek clarification. The first is in your preparation—that is to say, it is incumbent on you to ask clear questions. The clearer the question, the more leverage you will have in forcing the witness to answer. Unclear questions will cause the judge and jury to side with the witness when they ask for clarification.

Never clarify a question for a witness where in your mind the question has been asked clearly and properly. Clarification gives signals to a witness that they can derail you with this tactic. Also, by clarifying, you are admitting to the judge and jury you asked an unclear or unfair question when you may not have done so.

1.  Repeat the question slowly and deliberately

Calmly and politely repeat the same question slowly when a witness asks for clarification. This can be difficult because you may not precisely remember the question asked. Always try to use the exact same question verbatim (i.e., “You… drank… a… beer?”) Properly asked questions when slowed seem more simplified and it makes it clear to everyone in the courtroom there is nothing the witness does not understand. Repeating and simplifying questions is also a good tactic for non-responsive answers.

2.  Have the court reporter repeat the question

The court reporter will be able to recite your question verbatim if you cannot be sure of how you originally asked it. Additionally, in the proceedings the court reporter is somewhat of an innocuous authority figure who is neutral and does not have a stake in the outcome. Witnesses are far less likely to be disrespectful to them than they are to you. Going to the court reporter somewhat grinds proceedings to a halt (albeit for 30 seconds). The witness feels and shoulders the discomfort it causes. You only have to do this tactic once or twice and a witness abandons nitpicking your question before the jury. Having the court reporter read back to the jury, like simplifying the question, is also another effective tactic to “crack the whip” on non-responsive witnesses.

E.  Quibbling witnesses

Witnesses who constantly quibble with insignificant details or who simply refuse to agree with your statement even though cornered can be handled through a variety of tactics.

1.  Reversing

Reversing is taking the opposite answer you are looking for in an effort to show the jury how difficult the witness is being. Here is an example of using the “reversing” technique:

Q:  You worked on the police report the night of the arrest, right?
A:  Yes.
Q:  You proofread it before you turned it in, right?
A:  Yes.
Q:  You did the best you could on it, right?
A:  I suppose so.
Q:  Your report is complete, right?
A:  I don’t know… maybe it is.
Q:  Oh, so you filed an incomplete report?
A:  No, no… My report is complete.

2.  Elimination

Elimination is where you ask specific questions eliminating other possible answers where the witness is being difficult.

Q:  My client told you he is from Mexico, right?
A:  Yes.
Q:  Spanish is the main language in Mexico, right?
A:  Yes.
Q:  My client told you he speaks Spanish?
A:  Yes.
Q:  He said exactly one sentence of English to you the whole time, right?
A:  Yes.
Q:  He had a heavy Mexican accent in the English words he spoke to you?
A:  I don’t know about that…
Q:  His accent wasn’t Dutch, was it?
A:  No.
Q:  Wasn’t Russian?
A:  No.
Q:  Wasn’t Korean?
A:  No.
Q:  He had a Mexican accent, right?
A:  Yes.

3.  “So the answer is yes?”

A last technique is to wait after a long—convoluted answer—and merely reply to the answer, “So the answer is yes?” The statement should only be done once or twice through the course of a cross-examination because it is confrontational in nature and may upset the jury if done too often.

V.  Conclusion

Much of the battle to prevail against a difficult witness is fought well before the witness takes the stand. The keys are knowing what you are facing and how the witness may try to evade, preparing an exam to minimize risk of evasion, and knowing how to handle evasiveness disruptive to your teaching of the theory of the case.

The law surrounding recusal or disqualification of a judge in Texas is quite complex. It involves federal constitutional grounds, separate state constitutional grounds, and statutory grounds. In Texas, a judge may be removed from presiding over a cause of action for the following reasons: (1) s/he is disqualified under Article V, Section 11, of the Constitution of Texas; (2) her/his conduct violates the Fifth Amendment federal Due Process Clause; (3) s/he is disqualified under Rule 18 of the Texas Rules of Civil Procedure; or (4) s/he is subject to being stricken under Chapter 74 of the Texas Government Code. (Section 74.053 of the Texas Government Code permits each party in a civil proceeding the right to object one time to a visiting judge who has been assigned to a trial. This article does not address this rule.) A motion for recusal of a judge is typically brought for statutory or due process reasons, and it is usually brought for reasons enumerated in the Constitution of Texas. The procedural requirement for both types of motions is contained within Rule 18a of the Texas Rules of Civil Procedure.

Article V, Section 11, of the Constitution of Texas

Motions brought under Article V, Section 11, of the Constitution of Texas are referred to by Texas courts as “constitutional disqualification” motions. Article V, Section 11, is broader than the United States Constitution and disqualifies judges where: (1) either of the parties may be connected with the judge by affinity or consanguinity (within the third degree); or (2) when the judge has an interest in the case. The foregoing grounds for disqualification are codified under Rule 18b(a) of the Texas Rules of Civil Procedure and Article 30.01 of the Texas Code of Criminal Procedure. There is no time set within which a disqualification motion must be filed, and this issue can be raised for the first time on appeal or collateral attack. See Williams v. State, 492 S.W.2d 522, 524 (Tex. Crim. App. 1973). Recusal on other grounds must be raised in a timely manner. See id.

Impartiality & Bias, Rule 18b(b) of the Texas Rules of Civil Procedure

Rule 18b(b)(1) [formerly Rule 18b(2)(a)] of the Texas Rules of Civil Procedure addresses a judge’s impartiality and, therefore, hinges on what was in the mind of the judge. See Gaal v. State, 332 S.W.3d 448, 454 (Tex. Crim. App. 2011), citing Liteky v. United States, 510 U.S. 540, 563–564, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). Under this section of the statute, recusal is proper where the trial court’s rulings, remarks, or actions reveal “such a high degree of favoritism or antagonism as to make fair judgment impossible.” Id. A hearing is typically necessary to determine whether the trial court’s words, actions, and rulings meet the “impossibility of a fair judgment” test under Liteky, supra. However, judicial rulings, remarks, or actions “almost never constitute a valid basis for a bias or partiality motion . . . unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Gaal v. State, supra, 332 S.W.3d at 454, citing Liteky v. United States, supra, 510 U.S. at 555.

Rule 18b(b)(2) [formerly Rule 18b(2)(a)] of the Texas Rules of Civil Procedure states, “A judge must recuse in any proceeding in which the judge has a personal bias or prejudice concerning the subject matter or a party.” Under this standard, counsel need not prove actual bias or what was actually going through the mind of the trial judge. Gaal v. State, supra, 332 S.W.3d at 459. Rather, counsel only needs to prove that a reasonable person might question the court’s impartiality. Id. However, this standard is only grounds for recusal where “bias is of such a nature and extent as to deny movant due process of law.” Rosas v. State, 76 S.W.3d 771 (Tex. App.—Houston [1st Dist.] 2002, no pet.); see also Norton v. State, 755 S.W.2d 522 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d) (trial court’s refusal to consider full range of punishment constituted denial of due process). Rule 18b(a) & (b) of the Texas Rules of Civil Procedure set out all of the statutory reasons for disqualification and recusal. These provisions address either the trial court’s relationship to a party or the judge’s personal knowledge of the facts of the cause of action at issue. This article does not focus on such issues and, therefore, does not set out those portions of Rule 18b.

Fifth Amendment Due Process Grounds

Historically, under the Fifth Amendment to the United States Con­sti­tu­tion (Due Process), only three situations have been upheld as grounds for recusal: (1) where a judge has a financial interest in the case; (2) where a judge acted as a “one man grand-jury” to both charge conduct and preside over case; and (3) where a party to the action had significant and disproportionate influence through political contribution, fundraising, or campaigning on behalf of the judge. See Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 129 S.Ct. 2252, 2259–2264, 173 L.Ed.2d 1208 (2009). However, in Caperton, the Court addressed the issue of impartiality and bias as two additional grounds under the due process clause. Id. The Court held that extreme conduct, which violates the due process clause, requires recusal. Id. Judicial conduct that violates due process under the Fifth Amendment and/or Article I, Section 19, of the Constitution of Texas (due course of law) appears to be a developing area of the law—limited only by the creativity of the criminal law practitioner.

Procedural Requirements

A motion for recusal of a judge must be raised in a timely manner. Rule 18a(b)(1) requires that it be filed “as soon as practicable after the movant knows of the ground stated in the motion,” but not after the tenth day before the date set for trial or hearing un­less the movant neither knew nor should have reasonably known of the grounds. Rule 18a(b)(2) states that a motion to dis­qualify need only be filed as soon as practicable after the movant knows of such ground. Rule 18a(c)(1) states that any other party to the case may, but need not, file a written response before the motion is heard. Appealing a denial of a motion for recusal will not result in reversal of the trial court, under an abuse of discretion standard, where conduct was “within the zone of reasonable disagreement.” See, e.g., Gaal v. State, supra; Wesbrook v. State, 29 S.W.3d 103, 120–121 (Tex. Crim. App. 2000); Kemp v. State, 846 S.W.2d 289, 306 (Tex. Crim. App. 1992). A motion that is granted by the trial court, recusing itself, is not reviewable on appeal. See Gaa v. Statel, supra; see also Tex. R. Civ. Pro. 18a(j)(1)(B). Also, a motion that is denied is reviewable only on appeal from the final judgment. See Gaal v. State, supra; see also Woodard v. Eighth Court of Appeals, 991 S.W.2d 795 (Tex. Crim. App. 1998); Tex. R. Civ. Pro. 18a(j)(1)(A). Also, in extraordinary circumstances, a writ of mandamus may lie where the party seeking recusal does not have an adequate remedy available at law and the act sought to compel is purely “ministerial.” See DeLeon v. Aguilar, 127 S.W.3d 1 (Tex. Crim. App. 2004). A judge who is the subject of a motion seeking recusal should not respond. See Tex. R. Civ. Pro. 18a(c)(2).

Code of Judicial Conduct Violations

Although conduct may violate the Code of Judicial Conduct, or other ethical considerations, such violation does not necessarily constitute grounds for recusal. See Gaal v. State, supra; Wesbrook v. State, supra, 29 S.W.3d at 121 (Texas Code of Judicial Conduct requires that judge shall perform duties without bias and prejudice and shall be “patient, dignified and courteous” to all parties (Tex. Gov’t. Code, tit., 2, subtit. G, app. B)). Canon 1 of the Texas Code of Judicial Conduct states, in part, “A judge should participate in establishing, maintaining and enforcing high standards of conduct, and should personally observe those standards so that the integrity and independence of the judiciary is preserved.” Canon 2(A) of the Texas Code of Judicial Conduct states, “A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 3(B)(4) states, “A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity. . . .” Canon 3(B)(5) states, “A judge shall perform judicial duties without bias or prejudice.” Canon 3(B)(8) states, in part, “A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law.” Similarly, Article I, Section 10, of the Constitution of Texas affords a defendant the right to be heard. It may be useful to inform the court that you would like the opportunity to be heard on the record and then state those violations that have occurred.

Proposition 9

The Texas State Commission on Judicial Conduct was created in 1965 through a constitutional amendment. Texas is among the longest state constitutions in the United States. On November 5, 2013, Texas voters overwhelmingly approved Proposition 9, known formally as the Texas Expanded Judicial Sanctions Amendment. This constitutional amendment (found at Article V, Section 1-a(8), of the Constitution of Texas) will allow the State Commission on Judicial Conduct the discretion to issue a private or public admonition, warning, reprimand, or requirement for additional training and education. The foregoing is in addition to the previously enacted constitutional authority to recommend removal or retirement to the review tribunal. According to the League of Women Voters of Texas, the enactment of Proposition 9 will “lead to greater public accountability for judges and justices; continue to promote public confidence in the integrity, independence, competence, and impartiality of the judiciary; and encourage judges to maintain high standards of conduct both on and off the bench.” The League of Women Voters of Texas, “Voter Information” http://www.lwvtexas.org/PressReleases/2013/LWV-TEF–Texas_Voters_Will_Decide–Sanctions_for_Judicial_Misconduct_10-16-13.pdf.

Judicial Criminal Conduct

In rare instances, judicial misconduct may be so extreme as to qualify as the offense of Official Misconduct, pursuant to Article 3.04 of the Texas Code of Criminal Procedure. Pursuant to Article 3.04, the offense of Official Misconduct is committed where: (1) A public servant; (2) intentionally or knowingly; (3) en­gages in a violation of law; (4) while acting in an official capacity. In order to constitute an offense, such conduct must be “both wilful and related to the duties of the defendant’s office.” See State v. Denton, 893 S.W.2d 125, 126 (Tex App.—Austin 1995, pet. ref’d). Conduct may also constitute the offense of Official Oppression pursuant to Section 39.03 of the Texas Penal Code. This section states, in pertinent part, that an offense is committed where a public servant, acting under color of his office or employment: (1) intentionally subjects another to mistreatment or arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful; or (2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or (3) intentionally subjects another to sexual harassment. Judges have absolute immunity from civil liability pursuant to 42 U.S.C. § 1983 as judicial officers. See Supreme Court v. Consumers Union of United States, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980); Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951).

Caution: Make Sure Brain Is Engaged before Opening Mouth

Motions to disqualify a judge are typically more cut and dried, while motions to recuse may be based on a myriad of grounds. Ultimately, any combination of abuse of judicial discretion, which rises to a due process violation, can form the basis of a recusal motion. The criminal law practitioner should proceed with caution before filing a motion for recusal of a judge. Typically, only extreme conduct rising to a due process violation is going to necessitate recusal in Texas. If you fail in your efforts, it may be more damaging to your client—and yourself.