Johnathan Ball

One of the greatest fictions known to the law is that a jury of twelve laymen can hear a judge read a set of instructions once, then understand them, digest them, and correctly apply them to the facts in the case. It has taken the judge and the lawyers years of study to understand the law as stated in those instructions.

—Wylie A. Aitken, The Jury Instruction Process—Apathy or Aggressive Reform? 49 Marq. L. Rev. 137 (1965)

Appellate courts should begin uniformly recognizing jury charge error as Constitutional error, requiring reversal in all but the rarest cases.¹ More frankly, jury charge error should be viewed as structural error, the same as not having a lawyer, having people of a certain race excluded from the jury, or having a judge presiding over the trial with a pecuniary interest in the outcome. Alas, the prospects of courts viewing charge error as structural is far fetched. Couching jury charge error in terms of Constitutional error, however, provides the proper respect for the importance instructions play in jury deliberations, adds uniformity to the law, and captures the constitutional nature of jury instructions.

That jury instructions are ubiquitous is undeniable. That jury instructions have been given in trials before the adoption of the Constitution is a matter of historical fact. Judges begin the jury selection process by addressing the prospective jurors and delivering instructions they are sworn to follow. The guilt/innocence phase of trial opens with more instructions, which jurors are told they must follow. The court then provides instructions for the jurors at the close of the trial, telling the jury they are bound to follow the instructions as given; they are required to follow the law as stated by the court even if they disagree with the law; and they are not free to disregard the court’s words.

The court’s instruction set the very framework in which the trial is conducted. An erroneously instructed jury is the equivalent of a doctor conducting a hernia operation using surgical instruments and procedures designed for knee operations. Faulty jury instructions always cause harm, just like conducting a faulty surgery. And it is pure guesswork by appellate judges to surmise that a deficiently instructed jury caused no harm to a defendant pronounced guilty by the erroneously instructed jury. One commentator astutely opined there is no way for an appellate court to determine whether or not the instructions were understood, based on the record. The Jury Instruction Process—Apathy or Aggressive Reform? 49 Marq. L. Rev. 137, 139 (1965). Hence, it is impossible to assume a jury made a rational decision based on faulty instructions, when there is no way of knowing they understood in the first place. Ascribing Constitutional error review to jury charge error affords a proper level of protection to defendants. A short primer on the history of jury instructions would be useful to begin the analysis.

A Brief History of Jury Instructions

In the early 13th century, trial by jury began to evolve. It is safe to assume that at the time juries began to hear and decide cases, judges began to instruct juries. Originally, judges were given free rein over instructions, both as to content and the procedure to be followed. Abuses of this discretion, particularly the “bullying” of juries by judges, led to the adoption of certain restraints. Wylie A. Aitken, The Jury Instruction Process—Apathy or Aggressive Reform? 49 Marq. L. Rev. 137, 138 (1965).

Jury instructions are not a recent development in American jurisprudence. The practice of courts providing jurors with instructions to follow goes back to the founding, and before. In Georgia v. Brailsford, 3 U.S. 1 (1794), the Chief Justice of the United States Supreme Court, John Jay, presided over a trial. The Constitution had been ratified only seven years before this case was tried. At the conclusion of the trial, Chief Justice Jay provided the jury with instructions. The jurors were told they were the judge of the facts, but were to receive the law from the court. Chief Justice Jay instructed the jurors they were free to judge the propriety of the law as well (a wink and a nod to jury nullification).

The concept of jury instructions was something the founders were intimately familiar with when framing and ratifying the Sixth Amendment. Current Sixth Amendment interpretation is determined based on what the founding era constitutional authors would have understood about the trial process. The Supreme Court once stated, “A trial by jury trial should be understood and applied as at common law, including all the essential elements as they were recognized in this country and England when the Constitution was adopted.” Patton v. United States, 281 U.S. 276, 288 (1930). The framer’s understanding of trial would have included jury instructions as part of that process.

Jury instructions were used in state courts early on in the United States. In United States v. Battiste, 24 E Cas. 1042 (C.C.D. Mass. 1835) (No. 14,545), a case decided less than 50 years after the Constitution was ratified, the jury was instructed:

“[I]t [is] the most sacred constitutional right of every party accused of a crime, that the jury should respond as to the facts, and the court as to the law. It is the duty of the court to instruct the jury as to the law; and it is the duty of the jury to follow the law, as it is laid down by the court.”

In State v. Smith, 6 R.I. 33, 36 (1859), about 24 years after Battiste was decided, it was held regarding jury instructions:

“The line between the duties of a court and jury, in the trial of causes at law, both civil and criminal, is perfectly well defined; and the rigid observance of it is of the last importance to the administration of systematic justice. Whilst, on the one hand, the jury are the sole ultimate judges of the facts, they are, on the other, to receive the law applicable to the case before them, solely, from the publicly given instructions of the court. In this way court and jury are made responsible, each in its appropriate department, for the part taken by each in the trial and decision of causes, and in this way alone can errors of fact and errors of law be traced, for the purpose of correction, to their proper sources. If the jury can receive the law of a case on trial in any other mode than from the instructions of the court given in the presence of parties and counsel, how are their errors of law, with any certainty, to be detected, and how, with any certainty, therefore, to be corrected? It is a statute right of parties here, following, too, the ancient course of the common law, to have the law given by the court, in their presence, to the jury, to guide their decision, in order that every error in matter of law may be known and corrected . . . In short, without the aid of authority, if a party, and especially one criminally convicted, shows to us that so well defined a right of trial, as that the jury should receive the law of the case before them, solely, and openly, from the court, has been violated in his person, we dare not refuse him a new trial, to be conducted in the mode which the constitution, as well as the common and statute law, accords to him.” [Emphasis added.]

See also Nicholson v. Commonwealth, 96 Pa. 503 (1879): “The court had an undoubted right to instruct the jury as to the law, and to warn them as they did against finding contrary to it.”

The importance of jury instructions was well established in American jurisprudence by 1859, having had a long tradition in the common law of England. Appellate courts were cognizant that jury charge error meant that a fair trial for a defendant was not had. Nicholson makes clear there was no harmless error review when looking at jury instructions. The appellate courts “dare[d] not refuse” a new trial when there was jury charge error. Revisions to jury instruction law occurred soon after. Jurors were stripped of their right to judge both the law and the facts. Instead, jurors were told they would only be allowed to judge the facts.

The case of Sparf & Hansen v. United States, 156 U.S. 51 (1894), has stood for the proposition that a defendant is not entitled to have a jury instructed that it may not follow the law as given by the Court—i.e., a jury nullification instruction. Sparf & Hansen v. United States declared that jurors were no longer to be instructed on their ability to interpret the law. Jurors were fact finders, nothing more. Juries, post Sparf, were bound to follow the law as given by the court. They were no longer allowed to pass judgment on the wisdom of the law itself. State courts adopted this view, and it exists as the current understanding of jurors’ role in trial.

The historical basis for concluding that jury instructions are a fundamental, time-honoured component of trials, known to the founders, is easily seen. The practice of instructing the jury is an entrenched and established procedure in American criminal jurisprudence. Viewing jury charge errors through non-constitutional harmless error review does not take into account the fundamental nature of the charge and the importance of the instructions to the jury.

What Is Structural in a Trial?

The Supreme Court explained in Arizona v. Fulminante, 499 U.S. 279 (1991), a structural error is a “structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” In certain cases, where structural errors undermine “the fairness of a criminal proceeding as a whole,” a court may reverse “without regard to the mistake’s effect on the proceeding.” Nall, Deborah, S., United States v. Booker: The Presumption of Prejudice in Plain Error Review 81 Chicago-Kent L. Rev.621, 632.

The Supreme Court has held there are certain Constitutional errors that invalidate a conviction even though there may be no reasonable doubt that the defendant is guilty and would be convicted absent the trial error. For example, a judge in a criminal trial “is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict, see Sparf & Hansen v. United States, 156 U.S. 51, 105 (1895); Carpenters v. United States, 330 U.S. 395, 408 (1947), regardless of how overwhelmingly the evidence may point in that direction.” United States v. Martin Linen Supply Co., 430 U.S. 564, 572–573 (1977). A defendant is entitled to counsel at trial, Gideon v. Wainwright, 372 U.S. 335 (1963). See also White v. Maryland, 373 U.S. 59 (1963), where a conviction was set aside because the defendant had not had counsel at a preliminary hearing without regard to the showing of prejudice.

In Vasquez v. Hillery, 474 U.S. 254 (1986), a defendant was found guilty beyond reasonable doubt, but the conviction had been set aside because of the unlawful exclusion of members of the defendant’s race from the grand jury that indicted him, despite overwhelming evidence of his guilt. Vasquez also noted that rule of automatic reversal when a defendant is tried before a judge with a financial interest in the outcome, Tumey v. Ohio, 273 U.S. 510, 535 (1927), despite a lack of any indication that bias influenced the decision. Waller v. Georgia, 467 U.S. 39, 49 (1984), recognized that violation of the guarantee of a public trial required reversal without any showing of prejudice and even though the values of a public trial may be intangible and unprovable in any particular case.

Jury instructions fit neatly into the structural category. Could they be structural? Yes. Will a court in our lifetime hold them structural? Doubtful. So how should they be realistically viewed? Jury instructions should be viewed as providing the court-sanctioned structural and decisional framework for jurors. Jury instructions establish principles of law, burdens of proof, along with standards and methods to weigh evidence, which the jury must follow. Read by the court, jury instructions have the stamp of legitimacy and authority. Jury instructions are designed to educate and guide the jury.²

Further, as one commentator aptly discussed, jury instructions offer a focused moment of Constitutional connection between the court, the defendant, and the jurors. At that moment when the court reads its instructions, jurors are listening and learning about the law and the legal system. While the entire trial process is a participatory and educative experience for jurors, it is at the moment of instruction that jurors are formally educated about their responsibilities, their role, and the system’s expectation of them. Cronan, John P., Is Any of this Making Sense, Reflecting on Guilty Pleas to Aid Criminal Juror Comprehension, 39 Am. Crim. L. Rev. 1187, 1193–94 (2002). See also Ferguson, Andrew Guthrie, Jury Instructions as Constitutional Education, 84 University of Colorado Law Review (forthcoming 2012). The jury instructions are hundreds of years of evolving trial practice, writ large for the jury to take with them to the jury room. If the jury is instructed incorrectly, no amount of appellate review can correct that error.

Some Social Science Research Relating to Jury Instructions

In the past several decades, there has been a significant amount of social science research conducted in the area of jury instructions. Much of the early work investigated the issue of instruction comprehensibility, and was focused on the premise that if jurors do not understand the law, they cannot be expected to apply it. Much of this social science research has indicated that jurors misunderstand a large portion of the instructions they are presented with. Some research has found comprehension rates for jury instruction to be below 65 percent.³

That jury instructions are misunderstood by jurors is not a new phenomenon in law. “The lawyers and judges are perfectly aware that juries pay scant attention to the type of instructions commonly given them on the law applicable to the facts and, that as a rule, they are incapable of the fine discrimination such an application requires. But it is impressive to the public and it clothes the jurors with a sanctimonious mantle of enlightenment which gives them a sense of peace and accord with authority. Trial lawyers may consume a great deal of time on instructions, but little of it is wasted on attempting to force the jury’s attention to them. It is usually as futile as reading a decision of the Supreme Court to a justice of the peace or arguing the Constitution with a policeman.” Wylie A. Aitken, The Jury Instruction Process—Apathy or Aggressive Reform? 49 Marq. L. Rev. 137 (1965).

This lack of comprehension becomes especially apparent, and all the more dangerous, when dealing with burdens of proof, procedural issues, and presumption of innocence instructions. A study conducted in 1976 found that only 50 percent of individuals presented with the Florida Pattern Jury Instructions understood that the defendant did not have to present evidence, and that the State had the burden of proof. In another study from 1992, only one third of jurors who had served on a criminal jury were found to have correctly understood the burden of proof was on the prosecution. See Lieberman, Joel D. & Krauss, Daniel A., Jury Psychology: Social Aspects of Trial Process, 2009 MPG Books. LTD, Bodmin, Cornwall p. 138.

When the historic underpinnings of jury instructions are confronted with the research data available about the incomprehensibility of jury instructions in many cases, their importance and fundamental role in the Fifth, Sixth, and Fourteenth Amendments’ guarantee to a fair jury trial conducted in accordance with law, by an fair and impartial jury, becomes evident.

Why Should Jury Charge Error Be Considered Constitutional Error?

The verdict of a jury who does not comprehend the law amounts to “cracker-barrel justice.”

—423 Mich. L. Rev. 276, 278 (1925)

First, jury charge errors are not like other trial errors. Consider the erroneous admission of evidence obtained in violation of the Constitution. When a trial court allows evidence to be introduced that was obtained in violation of the Fourth Amendment, at least defense counsel can put on evidence to rebut or refute the erroneously admitted evidence. In response to the erroneously admitted, defense counsel could argue the drugs were not his client’s, or the illegally seized weapon does not match the ballistics report adequately to find his client guilty. Defense counsel can argue something to mitigate the damage. The defendant enjoys no such procedural protection with erroneous jury instructions.

Neither a defendant nor his lawyer has any right to suggest the jurors disregard the court’s instruction.⁴ In fact, every single federal appellate circuit that has pattern jury instructions tells the jurors they are not free to disregard any portion of the instructions.⁵ Along with federal courts, the substantial majority of State courts have pattern jury instructions mirroring our federal counterparts.⁶ Arguing to a jury to disregard the court’s instructions would likely get defense counsel an early termination of his/her summation, and a quick trip back to counsel’s table.

The charge, as read to the jury, is judicial gospel. That is not an overstatement. That is the practical reality of these documents, and society’s view of judges (except maybe in Cameron County).⁷ Speak with any juror after a verdict, and they will tell you they rely on the instructions, and sift through the instructions for guidance. The jury charge is not part of the trial process, it is the trial process, writ large.

I have invoked Justice Scalia in several writings concerning the Sixth Amendment. While some in the defense bar (myself included) may view many of Justice Scalia’s opinions with a jaundiced eye, that is not the case with his Sixth Amendment jurisprudence. Justice Scalia is a purist when it comes to Sixth Amendment rights. There is no diluting what one is entitled to under the Sixth Amendment, in his view. Time and again, I return to his eloquent dissent in Neder, stating he would find jury charge error to never be harmless (in other words, at least Constitutional error, or possibly even structural error). Justice Scalia’s dissent in Neder reads as follows:

“Article III, § 2, cl. 3 of the Constitution provides:

“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury. . . .” The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . .” When this Court deals with the content of this guarantee—the only one to appear in both the body of the Constitution and the Bill of Rights—it is operating upon the spinal column of American democracy. William Blackstone, the Framers’ accepted authority on English law and the English Constitution, described the right to trial by jury in criminal prosecutions as “the grand bulwark of [the Englishman’s] liberties . . . secured to him by the great charter.” 4 W. Blackstone, Commentaries at 349. One of the indictments of the Declaration of Independence against King George III was that he had “subjected us to a Jurisdiction foreign to our Constitution, and unacknowledged by our Laws” in approving legislation “for depriving us, in many Cases, of the Benefits of Trial by Jury.” Alexander Hamilton wrote that “the friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury: Or if there is any difference between them, it consists in this, the former regard it as a valuable safeguard to liberty, the latter represent it as the very palladium of free government.” Neder dissent at 30.

Applying Justice Scalia’s rationale, the historical prevalence of jury instructions, the ubiquitous nature of jury instructions today, the recent revisions in Sixth Amendment jurisprudence by the Supreme Court, and the social science data discussed above, preservation of fundamental fairness and Due Process⁸ rights require viewing jury instructions as constitutional. This means finding that jury charge error is constitutional error, regardless of harm.

Conclusion

It is simply impossible to know, without engaging in pure speculation, what effect erroneous jury instructions actually have on a jury. Arizona v. Fulminante, 499 U.S 279, 331 (1991). When reviewing the erroneous admission of evidence, appellate courts exclude the illegal evidence, and review the remainder of the evidence to determine whether the admission of the erroneous evidence was harmless beyond a reasonable doubt. Arizona v. Fulminante, 499 U.S 279, 310 (1991). That kind of evidentiary gerrymandering cannot be done with jury charge errors. To review jury charge error in such a fashion requires an appellate court to craft a hypothetically correct jury charge and sit as the 13th jury member (sound familiar?). The entire framework of the trial, from beginning to end, is infected by the absence of proper jury instructions.

Incorrect jury instructions mean the facts of the case are being viewed by the jury through a clouded legal prism. Light cannot refract through a clouded prism into its constituent parts. And truth cannot be expected to properly refract through the minds of jurors when clouded by erroneous instruction. Harm resulting from jury charge error should be presumed. Jury charge error should be constitutional error requiring reversal.

Notes

1. Texas Rules of Appellate Procedure 44.2.(a) : Reversible Error in Criminal Cases Constitutional Error: If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.

2. Strict legal correctness was once the primary concern of the courts at the appellate level, and this naturally became the main concern of the trial judges, who were fearful that their charges might be struck down by the higher courts. The Jury Instruction Process—Apathy or Aggressive Reform? 49 Marq. L. Rev. 137, 139 (1965). Thanks to harmless error review and the “hypothetically correct jury charge,” there is no more fear at the trial court level.

3. See Lieberman, Joel D. & Krauss, Daniel A., Jury Psychology: Social Aspects of Trial Process, 2009 MPG Books. LTD, Bodmin, Cornwall p. 131. Seminal works by Sales, B. D., Elwork, A., & Alfini, J. (1977): Improving Comprehension for Jury Instructions. In B. D. Sales (Ed.), The criminal justice system (pp. 23–90). New York: Plenum, Elwork, Sales, and Alfini (1977, 1982), and Charrow, R. P., & Charrow, V. (1979). Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions. Columbia Law Review, 79, 1306–1374. Elwork et al. Joel D Lieberman & Bruce D. Sales, Jury Instructions: Past, Present, and Future, 6 Psycho., L. & Pub. Pol. 587 (2000).

4. Although one creative and brave federal judge did give the following instruction to a jury and was approved by the appellate court. I will request this instruction from here on out in all my trials. It is an accurate instruction that encapsulates the burden and decision-making authority in the trial very well:

“Federal trial judges [insert State judges as the need arises] are forbidden to instruct on jury nullification, because they are required to instruct only on the law which applies to a case. As I have indicated to you, the burden in each instance which is here placed upon the Government is to prove each element of the offenses . . . beyond a reasonable doubt, and in the event the Government fails to sustain its burden of proof beyond a reasonable doubt as to any essential element of any offense charged against each defendant, it has then failed in its burden of proof as to such defendant and that defendant is to be acquitted. In short, if the Government proves its case against any defendant, you should convict that defendant. If it fails to prove its case against any defendant you must acquit that defendant.” See United States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993).

5. The following is a list of the jury instructions from various federal circuits, which state in no uncertain terms that jurors are not allowed to ignore the court’s instructions:

First Circuit Court of Appeals

Pattern Criminal Jury Instruction 1.01 for the 1st Circuit Court of Appeals:

“You will hear the evidence, decide what the facts are, and then apply those facts to the law I give to you. That is how you will reach your ver­dict. In doing so you must follow that law whether you agree with it or not. The evidence will consist of the testimony of witnesses, documents and other things.”

Pattern Criminal Jury Instruction 3.01 for the 1st Circuit Court of Appeals:

“It is your duty to apply the law exactly as I give it to you, whether you agree with it or not.”

Third Circuit Court of Appeals

Model Criminal Jury Instruction 1.02 for the 3rd Circuit Court of Appeals:

“You must apply my instructions about the law. Each of the instructions is important. You must not substitute your own notion or opinion about what the law is or ought to be. You must follow the law that I give to you, whether you agree with it or not.”

Model Criminal Jury Instruction 3.01 for the 3rd Circuit Court of Appeals:

“Your second duty is to apply the law that I give you to the facts. My role now is to explain to you the legal principles that must guide you in your decisions. You must apply my instructions carefully. Each of the instructions is important, and you must apply all of them. You must not substitute or follow your own notion or opinion about what the law is or ought to be. You must apply the law that I give to you, whether you agree with it or not.”

Sixth Circuit Court of Appeals

Pattern Criminal Jury Instruction 1.02(2) for the 6th Circuit Court of Appeals:

“It is my job to instruct you about the law, and you are bound by the oath that you took at the beginning of the trial to follow the instructions that I give you, even if you personally disagree with them.”

Seventh Circuit Court of Appeals

Pattern Criminal Jury Instruction 1.01 for the 7th Circuit Court of Appeals:

“Your second duty is to apply the law that I give you to the facts. You must follow these instructions, even if you disagree with them. Each of the instructions is important, and you must follow all of them.”

Eight Circuit Court of Appeals

Model Criminal Jury Instruction 1.01 for the 8th Circuit Court of Appeals:

“[Y]ou must follow my instructions, whether you agree with them or not. You have taken an oath to do so.”

Model Criminal Jury Instruction 3.02 for the 8th Circuit Court of Appeals:

“It is your duty to find from the evidence what the facts are. You will then apply the law, as I give it to you, to those facts. You must follow my instructions on the law, even if you thought the law was different or should be different.”

Ninth Circuit Court of Appeals

Model Criminal Jury Instruction 1.1 for the 9th Circuit Court of Appeals:

“To the facts as you find them, you will apply the law as I give it to you, whether you agree with the law or not.”

Model Criminal Jury Instruction 3.1 for the 9th Circuit Court of Appeals:

“It is also your duty to apply the law as I give it to you to the facts as you find them, whether you agree with the law or not. You must decide the case solely on the evidence and the law and must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. You will recall that you took an oath promising to do so at the beginning of the case.”

6. I selected just a few of the States that have model jury instructions to show they all contain identical language to our federal counterparts:

California:

Model Jury Instruction:

200
“You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys’ comments on the law conflict with my instructions, you must follow my instructions.”

Colorado:

Model Criminal Jury Instruction: Chapter B: Jury Orientation: Before Opening Statements:

“It is my job to decide what rules of law apply to the case. You must follow all of the rules as I explain them to you. Even if you disagree or do not understand the reasons for some of the rules, you must follow them. You will then apply these rules to the facts which you will determine from the evidence. In this way you will determine whether the prosecution has proven the guilt of the defendant beyond a reasonable doubt.”

Model Criminal Jury Instruction:

E 01
“It is my job to decide what rules of law apply to the case. While the lawyers may have commented during the trial on some of these rules, you are to be guided by what I say about them. You must follow all of the rules as I explain them to you. Even if you disagree or don’t understand the reasons for some of the rules, you must follow them.”

Connecticut:

Criminal Jury Instructions:

1.1-2:
“You will follow the instructions as to the law that applies in this case as I will explain it to you. You must follow the instructions as to the law, whether or not you agree with it. As jurors you must put aside your personal opinions as to what the law is or should be, and you must apply the law as I instruct. You will apply the law, as instructed, to the facts you find, based on the evidence, and in that way reach your verdict.”

Florida:

Standard Jury Instructions for Criminal Cases:

“These are some general rules that apply to your discussion. You must follow these rules in order to return a lawful verdict:

“1. 
You must follow the law as it is set out in these instructions. If you fail to follow the law, your verdict will be a miscarriage of justice. There is no reason for failing to follow the law in this case. All of us are depending upon you to make a wise and legal decision in this matter.”

Hawaii

Circuit Court Standard Jury Instructions

1.01:
“I will instruct you in full as to the law applicable to the case. It will be your duty to accept the law as defined in these instructions and to follow it.”

3.05
“[Y]ou must follow these instructions even though you may have opinions to the contrary. You must consider all of the instructions as a whole and consider each instruction in the light of all of the others. Do not single out any word, phrase, sentence or instruction and ignore the others. Do not give greater emphasis to any word, phrase, sentence or instruction simply because it is repeated in these instructions.”

Idaho:

Individual Idaho Criminal Jury Instructions:

ICJI 001: 
“In applying the Court’s instructions as to the controlling law, you must follow those instructions regardless of your opinion of what the law is or what the law should be, or what any lawyer may state the law to be.”

ICJI 201: 
“You must follow all the rules as I explain them to you. You may not follow some and ignore others. Even if you disagree or don’t understand the reasons for some of the rules, you are bound to follow them. If anyone states a rule of law different from any I tell you, it is my instruction that you must follow.”

7. “It is obvious that under any system of jury trials the influence of the trial judge on the jury is necessarily and properly of great weight, and that his lightest word or intimation is received with deference, and may prove controlling.” Starr v. United States, 153 U.S. 614, 626 (1894) (citing Hicks v. United States, 150 U.S. 442, 452 (1893)); see also Bollenbach v. United States, 326 U.S. 607, 612 (1946).

8. Due Process is unique. Due Process is not a hyper-technical concept defined with a fixed content, removed from real-world considerations such as time, place, and circumstances. Mathews v. Eldridge, 424 U.S. 319, 334 (1976). The constitutional principle encompassed by the founders in the phrase “Due Process” expresses the overarching constitutional goals and expectations of fundamental fairness to all—a requirement whose meaning and application can be as opaque and malleable as its importance is lofty. Due Process should be considered as the touchstone of all things just and fair in American jurisprudence.

Applying the Due Process Clause is therefore an uncertain enterprise that requires judicial divination of what fundamental fairness consists of in a particular scenario. The court’s constitutional discovery of fairness and justice is done by first considering any relevant precedents, and then by assessing the several interests that are at stake, oftentimes in competition with one another, and the interplay of those interests. See Lassiter v. Dep’t of Social Services, 452 U.S. 18 (1981).

The most instructive and oft-cited case thus far on the application of Due Process for constitutional issues is Mathews v. Eldridge, 424 U.S. 319 (1976). The Eldridge court articulated three elements that need to be rigorously assessed in deciding what Due Process requires in terms of procedural safeguards established by a Court. The three Eldridge interests are as follows: (1) the private interests at stake, (2) the government’s interest, and (3) the risk that the procedures used will lead to erroneous decisions. A court must balance these competing elements against each other to decipher the demands of Due Process in order that justice may be satisfied.

Definition of SANE Examination

Before delving into the case law, it is helpful to begin with some definitions to clearly delineate the terms of the argument. First, the United States Department of Justice’s description of SANE program operations states that “[t]he SANE or other medi­cal personnel (e.g., emergency department physicians or nurses) first assess the victim’s need for emergency medical care and ensure that serious injuries are treated. After the victim’s med­ical condition is stabilized or it is determined that immediate medical care is not required, the SANE can begin the evi­den­tiary examination¹ [emphasis added].” People v. Spangler, 285 Mich. App. 136, 149–150 (2009). Further, the role of the SANE includes the following functions: “Perform[ing] a physical examination on the victim, collect[ing] evidence, treat[ing] minor² injuries such as cuts/bruises, expert testimony regarding the forensic evidence collected, serv[ing] on a SANE response team (SART), work[ing] closely with law enforcement agencies and the prosecutor’s office, support[ing] the psychological needs of the victim.” See Paruch, Deborah, Silencing the Victims in Child Sexual Abuse Prosecutions: The Confrontation Clause and Children’s Hearsay Statements Before and After Michigan v. Bryant, 28 Touro L. Rev. 85 (2012), endnote 310.

Second, the word “forensic” is universally understood as meaning “pertain[ing] to, connected with, or used in courts of law.” Oxford English Dictionary Online Edition (taken from second print ed. 1989). Black’s Law Dictionary, 6th edition, (5th re­print, 1991), defines “forensic” as “belonging to courts of jus­­tice.” A few definitions down, on the same page in Black’s Law Dictionary, 6th edition (5th reprint, 1991), the term “fo­ren­­sic medicine” is defined as “[t]hat science which teaches the application of every branch of medical knowledge to the pur­­poses of law . . . to enable a court of law to arrive at a proper con­­cl­u­sion on a contested question affecting life or property.”

Putting these definitions together, a fair operative definition of a SANE examination is this: “A forensic medical examination, conducted by a specially trained forensic medical provider, conducted as soon as practically possible after the occurrence of an alleged sexual assault, for the purpose of collecting evidence of a potential sexual assault and for the treatment of mi­nor injuries.” The forensic nature of the SANE examination is precisely what makes it testimonial. No definition of SANE exam holds they are not forensic in nature. As such, forensic examinations, including SANE examinations, belong to the Courts and the Confrontation Clause, not medical records and hearsay.

Currently, there exists only one published court of appeals case in Texas dealing with the nature of SANE examination. This case is Beheler v. State, 3 S.W.3d 182 (Tex.App.—Forth Worth, 1999). The Beheler court held that statements made to a SANE nurse are made for the purpose of medical diagnosis, and are therefore not testimonial. Beheler and its antiquated interpretation of the purpose of a SANE examination is wrong and does not reflect the reality of what the purpose of a SANE examination is.

First, Beheler was decided in 1999. The fault-line shifting United State Supreme Court decision of Crawford v. Washington, 541 U.S. 36 (2004), which totally and completely changed the landscape of confrontation law jurisprudence, was decided five years later. As such, Beheler’s rationale/analysis for what does and does not qualify as statements made for purposes of medical diagnosis, as opposed to testimonial statements, must be viewed with suspicion, if not outright hostility.

Second, Beheler never touched on the issue of confrontation rights. Beheler was decided under the now-defunct and maligned regime of Ohio v. Roberts, 448 U.S. 56 (1980). Roberts and its ilk courted more base and easily manipulated notions of “reliability,” eschewing confrontation’s rigid and demanding ways.

Third, the Beheler opinion is one where the Defendant challenged the admission of the young female victim’s statements to the SANE examiner on evidentiary grounds, not constitutional confrontation grounds.

Fourth, Beheler’s description and definition of a SANE exam is not in keeping with current constitutional interpretations of the ultimate purpose of a SANE examination as held at both the State and Federal level.

Fifth, Beheler does not even attempt to address the fact that a SANE exam is forensic by its very definition.

Sixth, Beheler does nothing to address the issue of how an alleged assault victim’s identification of an alleged perpetrator of a crime is in furtherance of medical diagnosis, which has been held in other jurisdictions to be dispositive on its testimonial nature. See State v. Kirby, 280 Conn. 361, 391 (2006), holding that whether “such statements [to a SANE examiner] . . . accuse or identify the perpetrator of the assault [] is significant to determining whether statements to the medical provider are testimonial.” (See also Coates v. State, 175 Md. App. 588 (Maryland 2007), where the court found that the identity of the abuser was of no concern for medical treatment purposes and the statements to the SANE nurse were testimonial.)

Last, any reliance on Behler for the proposition that a SANE examination’s purpose is for medical diagnosis ignores overwhelming case law to the contrary that such examinations are not primarily for medical diagnosis. Adherence to Behler’s definition inexplicably ignores commonly used definitions in the field of SANE examinations as established by the Department of Justice, standard English-language dictionary definitions, legal dictionary definitions, and those of academic scholars reviewing and critiquing this issue. All the aforementioned sources find that the forensic nature of SANE examinations make them testimonial.

Adherence to holdings like Beheler mean in the very near future that confrontation could readily be judicially decimated to nothing more than shallow formalism and meaningless platitudes if SANE examinations are flippantly recognized as being somehow being sufficiently attenuated from their actual law enforcement purpose—if all that is required to make such state­ments elicited during these forensic examinations nontestimonial is for the person conducting the questioning/examination to claim health and welfare as some part of their purpose in conducting the examination.³ Mosteller, Robert P. (2007), “Testing the Testimonial Concept and Exceptions to Confrontation: ‘A Little Child Shall Lead Them,’” 82 Indiana L. Rev. 918, 973.

Forensic Exams Are Considered Testimonial in Federal Courts and in the Majority of State Courts Across the Country

With the definitions from above regarding SANE examinations in hand, a brief survey across the SANE examination confrontation law landscape at both the state and federal level is warranted. This survey will show that the Behler court’s holding that the SANE examination was non-testimonial in nature goes against the overwhelming majority of jurisdictions that have considered this issue and directly ruled on it.

A. Federal Courts: SANE Examinations and Forensic Examinations Are Testimonial

The issue of SANE exams has been dealt with by federal courts. Federal courts, interpreting federal Constitutional jurisprudence, have squarely ruled that forensic exams, such as SANE exams, are testimonial in nature.

In United States v. Gardinier, 2007 CAAF LEXIS 723, reconsideration denied (2007), a military court was overturned when the court marshal judge ruled a forensic sexual assault exam was non-testimonial in nature. The Gardinier court held:

“We recognize that the referral of an alleged victim to a medical professional by law enforcement or trial counsel does not always establish that the statements at issue were made in response to a law enforcement or prosecution in­quiry or elicited with an eye toward prosecution. [] Here, however, the evidence indicates that Ms. Sievers, who specialized in conducting forensic medical examinations, performed a forensic medical exam on [the victim] at the behest of law enforcement with the forensic needs of law enforcement and prosecution in mind. Under the totality of the circumstances presented here, [the victim]’s statements to [the SANE nurse] are testimonial and were admitted in error.” Id at 66.

The holdings by federal courts that forensic interviews are testimonial do not stop at Gardinier. In United States v. Bordeaux, 400 F.3d 548 (8th Cir. 2005), Mr. Bordeaux maintained that the district court violated the Confrontation Clause of the United States Constitution by admitting a statement of the victim, made out of court, to an individual whom the government itself identified as “forensic interviewer.”

The factual background of Bordeaux shows that after the allegations of sexual abuse arose, government officials referred the victim to a center for child evaluation. At this center, the victim was interviewed by a forensic interviewer before being examined by a doctor. Consistent with the center’s standard operating procedure, the interview was videotaped. As was the custom, two copies of the videotape were made—one for the patient’s medical records and one for law enforcement officials. On the videotape, the victim indicated that Mr. Bordeaux put his penis in her mouth. The district court admitted the tape into evidence, and it was shown to the jury. The district court also admitted hearsay statements from a doctor at the center who observed the interview. The doctor recounted what the victim had said during her interview.

After conducting a constitutionally sound analysis of the statements made by the victim, the Bordeaux court held:

“We hold that Mr. Bordeaux’s sixth amendment rights were violated. First of all, [the victim’s] statements are testimonial. Statements elicited during police interrogations lie at the core of the definition of ‘testimonial.’ Crawford, 124 S. Ct. at 1374. A police interrogation is formal (i.e., it comprises more than a series of offhand comments—it has the form of an interview), involves the government, and has a law enforcement purpose. The same is true of the interview here. The formality of the questioning and the government involvement in it are undisputed in this case. The purpose of the interview (and by extension, the purpose of the statements) is disputed, but the evidence requires the conclusion that the purpose was to collect information for law enforcement. First, as a matter of course, the center made one copy of the videotape of this kind of interview for use by law enforcement. Second, at trial, the prosecutor repeatedly referred to the interview as a ‘forensic’ interview, meaning that it ‘pertained to, [was] connected with, or [was to be] used in courts of law.’ Oxford English Dictionary Online Edition (taken from second print ed. 1989). That [the victim’s] statements may have also had a medical purpose does not change the fact that they were testimonial, because Crawford does not indicate, and logic does not dictate, that multi-purpose statements cannot be testimonial.”⁴ Id at 556.

The analysis that SANE exams, and forensic exams in general, qualify as testimonial is accepted by federal courts. Legal scholars have convincingly and overwhelmingly argued that SANE nurses “should categorically be treated as police agents” because of their intimate involvement with the prosecutor, the state, and the criminal process on multiple levels. Elizabeth J. Stevens, Comment, Deputy-Doctors: The Medical Treatment Exception after Davis v. Washington, 43 Cal. W. L. Rev. 451, 472 (2007). A majority of state courts as well that have considered this issue have determined that statements by a sexual abuse victim to a SANE nurse, or similarly situated forensic examiners, are testimonial in nature and barred by the Confrontation Clause. People v. Spangler, 285 Mich. App. 136 (2009). The Spangler court held, after considering the Justice Department’s definitions of a SANE examination and the relevant case law:

“While SANE personnel might treat medical conditions requiring immediate attention for a victim’s safety, ‘further evaluation and care of serious trauma is referred to a designated medical facility or physician.’ Id. Any medications provided the victim by SANE personnel are ‘prophylactic . . . for the prevention of sexually transmitted diseases . . . and other care needed as a result of the crime.’ Id. Clearly, the SANE examination is one geared for the preparation, collection, evaluation and disposition of evidence, and all medical treatment provided is relative to the patient being a victim of a sexual crime. We believe that this purpose exists in concert with the very things that might make a statement obtained thereby ‘testimonial.’” People v. Spangler, 285 Mich. App. 136, 149–150 (2009).

Further, the fact that the majority of states consider SANE examinations and other similar forensic examinations as testimonial has been recognized in federal court. See Dorsey v. Banks, 749 F. Supp. 2d 715, 751 (2010). See also Paruch, Deborah, Silencing the Victims in Child Sexual Abuse Prosecutions: The Confrontation Clause and Children’s Hearsay Statements Before and After Michigan v. Bryant, 28 Touro L. Rev. 85 (2012), concurring that the majority of states find SANE examinations testimonial under Crawford and its progeny.

Under absolutely no other set of circumstances would a health care provider reveal such privileged and private information to a third party. The information obtained by the SANE nurse is revealed to law enforcement post-exam as a matter of simple routine. The purposes of the SANE nurse revealing the results of her examination to law enforcement is to allow law enforcement to use the SANE examination, the results of the examination, and the expertise of the SANE nurse at trial. So how and why would any court find these types of statement non-testimonial when the overwhelming body of federal and state case law, along with legal scholars, says they are testimonial?

Surveying various court’s holdings, confrontation law scholars have concluded that appellate courts are often reticent to find statements testimonial. These scholars believe this judicial reticence is based on the appellate court’s concern about the decisive impact the determination of such statements as testimonial will have on the prosecution of child abuse and sex crime cases in general. In other words, these commentators believe that appellate courts are seeking to protect state prosecutions and prosecutors at the trial court level, while at the same time providing an added level of insulation on appellate review—rather than faithfully applying confrontation law jurisprudence. “Testing the Testimonial Concept and Exceptions to Confrontation: ‘A Little Child Shall Lead Them,’” 82 Indiana L. Rev. 918, 978. The fear appears to be that granting too much Confrontation will result in too many acquittals.⁵

However, there is light at the end of the tunnel. While some courts have resisted the change ushered in by Crawford, most courts are faithfully applying confrontation law to forensic examinations and SANE examinations in general.

B. Kansas: SANE Exams Are Testimonial

In State v. Bennington, 293 Kan. 503 (2011), the defendant was convicted of multiple crimes stemming from his sexual assault and robbery of a 77-year-old woman in her home. The victim died before defendant’s jury trial began, but she had related the incident in some detail to her niece, to a SANE examiner at the hospital, and, more generally, on a claim form submitted to her bank (the defendant had stolen money from her). The trial court denied the defendant’s motion to exclude admission of those statements. The jury found the defendant guilty of all charges. The Supreme Court of the State of Kansas found that the trial court erred in admitting the statements of the victim through the SANE nurse. The Court held:

“Moreover, when a SANE—even one who is a non-State actor—follows the procedures for gathering evidence pursuant to [Kansas statute] and asks questions prepared by the [police], the SANE acts as an agent of law enforcement. See Michigan v. Bryant, 562 U.S., 131 S. Ct. 1143, 1151 n.3, 179 L. Ed. 2d 93 (2011) (noting non-State actors may be considered agents for purposes of analysis of whether statements are testimonial); Davis v. Washington, 547 U.S. 813, 823 n. 2, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006) (same).” Id at 524.

Both the Kansas Supreme Court and the Supreme Court of the United States (Bryant) have held that non-police actors who are gathering evidence that is subsequently turned over to the police are agents of law enforcement. Period. There is no room for debate on that subject. Holdings to the contrary are pernicious judicial attempts to revive the old Roberts regime of confrontation at the expense of fully welcoming in the new era of Crawford.

The Bennet court and the Medina court (discussed below) analyzed SANE nurse involvement in a constitutionally correct way. These courts recognized, as has the United States Supreme Court, that police and prosecutors can, and do, take steps to make it even easier for district judges and appellate courts to bypass the Confrontation Clause and manipulate the introduction of evidence⁶—even when there is no possibility of finding an “ongoing emergency” (e.g., in cases where the hearsay statement was made days or weeks after the alleged crime), courts still have other means of labeling hearsay as non-testimonial, thereby placing it beyond the reach of the clause.⁷ One such way is to find that the statement was made, or obtained, for some “primary purpose” other than the investigation of a crime. This tactic is very common in cases involving medical professionals who act on behalf of, or in concert with, the police.⁸ See Cicchini, Michael D., Judicial (In)discretion: How Courts Circumvent the Confrontation Clause under Crawford and Davis. 75 Tenn.L.Rev. 753, 772.

In fact, the National District Attorney’s Association published a 46-page guidebook for district attorneys entitled “The Role of the Sexual Assault Nurse Examiner in the Prosecution of Domestic Violence Cases.” The premise of this article is to teach prosecutors how to minimize the forensic aspect of the SANE examination and maximize the medical aspect, to insulate the examination results from confrontation. In appendix C of this publication, there is an article entitled “Overcoming Crawford Issues.” In other words, prosecutors are being taught how to “overcome” a defendant’s right to confrontation by subtle ma­nipulation of testimony and words. These attempts by the government and state to usurp confrontation are precisely what Crawford and Davis are against. The government knows it, and they do their best to manipulate it.

C. Kentucky: SANE Examinations Are Testimonial

In Hartsfield v. Kentucky, 277 S.W.3d 239 (2009), the defendant allegedly sexually assaulted the victim. Immediately thereafter, the alleged victim fled and exclaimed to a passerby that the defendant had raped her. The alleged victim then went to her daughter’s house and told her that she had just been raped. The alleged victim was taken to a hospital, where she was examined by a SANE nurse. The victim related the details of the rape to the SANE nurse. The alleged victim died after the defendant was indicted for sex crimes against her, but before he was tried.

The Hartsfield court held that the sexual assault nurse ex­aminer’s questioning was predominantly for the purpose of information gathering and the resulting statement was testimonial:

“The SANE nurse was acting in cooperation with or for the police. The protocol of SANE nurses requires them to act upon request of a peace officer or prosecuting attorney. A SANE nurse serves two roles: providing medi­cal treatment and gathering evidence. SANE nurses act to supplement law enforcement by eliciting evidence of past offenses with an eye toward future criminal prosecution. The SANE nurse under [Kansas statute] is made available to ‘victims of sexual offenses,’ which makes the SANE nurse an active participant in the formal criminal investigation. We believe their function of evidence gathering, combined with their close relationships with law enforcement, renders SANE nurses’ interviews the functional equivalent of police questioning.” Id at 244–245.

“In the case before us, the SANE nurse’s interview was not to provide help for an ongoing emergency but, rather, for disclosure of information regarding what had happened in the past. [The victim] was away from the per­petrator, and the questioning was not for the purpose of resolving a problem. The interview had some level of formality, despite being unsworn. So the statement was virtually the kind of statement that a witness would give at a trial or hearing.” Id at 244–245.

“Looking to the factors enumerated in Davis, the SANE nurse’s questioning involved past events, was not related to an ongoing emergency, and took on the nature of a formal interview. So we conclude that the statements taken from [the victim] during her interview with the SANE nurse were testimonial in nature. Following the Supreme Court precedent, we conclude that the Court of Appeals erred when it reversed the trial court’s ruling in limine excluding from use at trial the statements [the victim] gave the SANE nurse. These statements were testimonial statements that Harts field never had the opportunity to cross-examine and so they are barred by the Confrontation Clause.” Id at 244–245.

The Hartsfield court saw the examination for what it was: an effort to collect evidence for later use at trial.

D. Nevada: Sane Exams Are Testimonial

The Nevada Supreme Court in Medina v. State, 131 P.3d 15 (2006), held that statements made by an adult sexual assault victim to a SANE nurse were testimonial. The court affirmed the conviction and found admission of the victim’s statements to be harmless error beyond a reasonable doubt. Nonetheless, the court’s reasoning is important to understand why the deceased’s statements to the SANE nurse, in the case sub judice, were testimonial.

During the Medina trial, the SANE examiner testified as to what the victim told her about the rape during the sexual assault examination. The SANE examiner testified that the victim stated that “she was choked, that she was hit, that Medina put his penis into her mouth, into her vagina, he put his penis into her rectum. The victim stated that Medina put his mouth on her vagina and then he put his penis in her mouth.” Id at 8. The Nevada court held court that the SANE nurse’s hearsay testimony violated the Confrontation Clause because the SANE nurse was a police operative. Id at 12.

In Medina, the SANE examiner testified that she is a “forensics nurse,” and that she gathers evidence for the prosecution for possible use in later prosecutions. As such, the circumstances under which the victim made the statements to the SANE examiner would lead an objective witness to reasonably believe that the statements would be available for use at a later trial. “The victim was not available for trial, and Medina had no prior opportunity to cross-examine her regarding the statements to the SANE examiner. Therefore, the district court manifestly erred when it admitted the statements the victim made to the SANE examiner during the sexual assault examination [emphasis added].” Id at 14.

E. Tennessee: SANE Examinations Are Testimonial

In State v. Cannon, 254 S.W.3d 287 (Tenn. 2008), the 82-year-old victim reported that an unknown assailant raped her in her home. The victim did not testify at trial. Defendant was con­victed of aggravated rape. On appeal, he challenged the admission of evidence and the violation of his confrontation rights. The Supreme Court of Tennessee concluded that the victim’s statements describing the assault to the police officers and her statements to the sexual assault nurse examiner (SANE) were testimonial and admitted in violation of defendant’s right of confrontation.

The Cannon court held that statements made by the victim to the SANE nurse were testimonial and subject to confrontation:

“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emer­gency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Id at 302.

This Issue Needs to Be Resolved

In Rangel v. State, 250 S.W.3d 96 (Tex.App.—Forth Worth, 2008), the Texas Court of Criminal Appeals was presented with the issue of forensic interviews and whether they are testimonial. Rangel petitioned for Discretionary Review. The Texas Court of Criminal Appeals initially granted, but then withdrew its granting of its Petition for Discretionary Review and punted, holding instead that the constitutional error was not preserved.

However, a dissenting opinion to the refusal to grant the PDR was filed by Justice Cochran. Justice Cochran provided a detailed analysis of the splits across the country that relate to forensic interviews. Justice Cochran wrote in her dissent:

“Virtually all courts that have reviewed the admissibility of forensic child interview statements or videotapes after the Davis decision have found them to be ‘testimonial’ and inadmissible unless the child testifies at trial or is presently unavailable but the defendant has had a prior opportunity for cross-examination. Id at 104. fn 26 e.g., State v. Hooper, No. 33826, 176 P.3d 911, 2007 Ida. LEXIS 234 (Idaho, December 24, 2007) (holding that videotaped statements the child victim made to nurse during interview at a sexual-trauma abuse-response center were testimonial because the circumstances surrounding the interview indicated that the primary purpose of the interview was to establish past events potentially relevant to later criminal prosecution as opposed to meeting the child’s medical needs); State v. Henderson, 284 Kan. 267, 160 P.3d 776 (Kan. 2007) (reversible error to admit three-year-old child’s videotaped statement to social worker taken at government facility to gather evidence against alleged perpetrator when child did not testify at trial); State v. Justus, 205 S.W.3d 872 (Mo. 2006) (while social worker’s job was to protect child, ‘primary purpose’ of videotaped statements was to establish past events); State v. Blue, 2006 ND 134, 717 N.W.2d 558 (N.D. 2006) (videotaped statement to forensic interviewer at child advocacy center inadmissible); State v. Pitt, 209 Ore. App. 270, 147 P.3d 940 (Ore. Ct. App. 2006) (reversible error to admit ‘testimonial’ videotaped statements made by two children to social worker at child abuse assessment center when children did not testify at trial); In the Interest of S.R., 2007 PA Super 79, 920 A.2d 1262 (Sup. Penn. 2007) (reversible error to admit videotape of child victim’s statement to forensic DHS interviewer for the purpose of investigation and possible prosecution when child did not testify at juvenile’s adjudication hearing).”

While Justice Cochran’s dissenting opinion does not deal with SANE examination, it shows definitively that in the context of forensic examinations, courts across the United States have held such exams to be testimonial and subject to the rigors of confrontation.

Further, the fact that statements are made to non-law enforcement actors does negate the testimonial nature of a statement. Justice Scalia, in his Bryant dissent, stated that what constitutes testimonial must be looked at as meaning a statement that “may be used to invoke the coercive machinery of the State against the accused” as distinguished with a non-testimonial statement such as one from “a narrative told to a friend over dinner [emphasis added].” Judge Dibrell “Dib” Waldrip and Sara M. Berkeley, “What Happened? Confronting Confrontation in the Wake of Bullcoming, Bryant, and Crawford,” 43 St. Mary’s L.J. 1, 4 (2011). To hold otherwise would be to simply allow the police to use surrogate investigative services in order to avoid having to ever produce an accuser in court, and instead, rely on professional witnesses—i.e., police officer, CPS worker, SANE nurse, etc.

Sound constitutional reasoning favors finding SANE examinations to be testimonial. Holding otherwise simply leaves too large an opening for prosecutors to walk statements through unconfronted. Once those types of statements reach the jury, there is no unringing the bell. The damage is done. And with the quick sweeping broom of harmless error review, any erroneous admission of a SANE nurse’s testimony is neatly swept under the judicial rug. Confrontation means just that: confrontation. SANE examinations should not be viewed as a midwife for bringing unconfronted testimonial statements into court via hearsay exceptions.

Notes

1. People v. Spangler, 285 Mich. App. 136, 149–150 (2009)

2. The treatment by a SANE nurse has to be confined to only minor medical issues because by definition the SANE nurse is not a medical doctor and cannot provide medical treatment.

3. It defies logic to believe that an examination conducted by a medical provider would not have the patient/examinee’s health and welfare at least tangentially in mind. The police simply do not have the training or education to conduct such an exam. The medical examination is a proxy examination done by medical providers for the police. See Elizabeth J. Stevens, Comment, “Deputy-Doctors: The Medical Treatment Exception after Davis v. Washington,” 43 Cal. W.L. Rev. 451, 472 (2007) (“[U]nder Davis, courts should treat health care providers as agents of the police and their interactions with the declarant as police interrogation” based on principles of agency law). Ms. Stevens’ article is attached to this motion in the appendix as “B.” The United State Supreme Court has applied agency related issues in the criminal context. See Pinkerton v. United States, 328 U.S. 640 (1946).

4. Therein lies the rub: Just because statements may have a dual purpose, it does not diminish the constitutional nature of such statements. The dual purpose is what makes those kinds of statements so dangerous and readily manipulated by police. It allows testimonial statements to be smuggled into court under the guise of a non-testimonial hearsay rationale. Once the smuggled statements have reached the jury, unconfronted, there is no unringing that bell.

5. But see Roman, John, PhD, Walsh, Kelly, PhD, Post-Conviction DNA Testing and Wrongful Conviction, Urban Institute, Justice Policy Center, 2100 M St. NW, Washington, DC 20037. This project was supported by Contract No. 2008F-08165 awarded by the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. This study found an absolutely staggering rate of wrongful convictions for sexual assault cases in Virginia:

“We find that in convictions in Virginia between 1973 and 1987 where evidence was retained in a sample of 422 convictions for sexual assault:

• The convicted offender was eliminated as the source of questioned evidence in 40 out of 422 convictions (9 percent).
• The convicted offender was eliminated as the source of questioned evi­dence in 33 out of 422 convictions (8 percent) and that elimination was supportive of exoneration.
• The convicted offender was eliminated as the source of questioned evidence in 40 out of 227 convictions (18 percent) where a determination could be made from the DNA analysis.”

According to the Innocence Project, of the 250 people who have been wrongfully convicted then released from prison, 84% were convicted of sexual assault http://www.innocenceproject.org/news/250.php, p19. These types of statistics on wrong­ful convictions should cause everyone who touches the criminal justice sys­tem, particularly in sexual assault cases or in cases (such as Appellant’s) where sexual assault issues play a vital role in obtaining a conviction; to pause; to hesitate; to reevaluate exactly what it is we are doing. In short, it should cause all of us to shudder. Each and every time a person goes to jail based in whole, or in part, on allegations of sexual assault, the evidence and the established procedures which allowed in the evidence of the purported sexual assault, needs to be scrupulously reviewed. Due process demands this. See United State Supreme Court case of Mathews v. Eldridge, 424 U.S. 319 (1976). The Eldridge court articulated three elements that need to be rigorously assessed in deciding what due process requires in terms of procedural safeguards established by a court. And remember, confrontation is a procedural safeguard, not a substantive guarantee of the evidence. The three Eldridge interests are as follows: (1) the private interests at stake, (2) the government’s interest, and (3) the risk that the procedures used will lead to erroneous decisions. Eldridge factor three is dispositive on this issue.

6. “Confusion of the language of good and evil: this sign I give unto you as the sign of the State.” Thus Spoke Zarathustra, Frederick Nietzsche, Simon & Brown Publishing 2012, p. 72. More specifically here, “[Deliberate] [c]onfusion of the language of [testimonial] and [non-testimonial]: this sign I give unto you as the sign of the state.”

7. This reticence by courts to hold statements testimonial is likely a means of trying to breathe continued life into pre-Crawford hearsay statutes. Prior to Crawford, many state legislatures (including Texas) had fashioned special hearsay exceptions for cases involving domestic violence. Pre-Crawford courts had liberally construed these statues to open the hearsay floodgates, allowing in statements by domestic violence victims very lax hearsay exceptions. This solicitous treatment of hearsay reflected a belief that many domestic violence victims and family members who witness domestic violence recant or refuse to cooperate after initially complaining to the police. See Lininger, Tom, Prosecuting Batterers After Crawford, 91 Va. L. Rev. 747 (2005).

8. http://www.ndaa.org/pdf/pub_role_sexual_assault_nurse_examiner.pdf.

Good criminal defense lawyers are known for doing two things well: cross-examination and closing statements. In my opinion, a devastating cross-examination of a witness during trial will do more to demoralize the other side than anything else. Additionally, a good cross-examination is exactly what a jury wants to see. It is your chance to energize the jury and show them the weakness in the case against your client. Once you have exposed the witness as a liar, a charlatan, or just as an idiot in general, there’s no rehabilitating that witness’ testimony by the State. This is especially true of an arresting officer in a DWI trial.

The tips and suggestions in this paper are just that—tips and suggestions. They are the best ideas I have found from various CLEs and some I have devised. Use this as a starting point and customize it to your needs and style.

Remember, anyone can effectively cross-examine an ar­rest­ing officer in a DWI trial. Cross-examining an arresting of­fi­cer in a DWI case effectively takes two things. The first is prep­a­ra­tion. You must know your case inside and out in order to properly cross-examine.

Go to the DA’s office and read the police report. Write down the entire report word for word. You have to know that report before you ever ask the first question. The report is going to control the line of questioning in trial. If you don’t know the report, you can’t formulate your questions.

Then review the video. See if your client is intoxicated to the degree the officer claims in the report. Oftentimes the report does not match what’s on camera. That’s golden. When the officer’s report makes your client sound like he needs his stomach pumped but the video shows him standing, talking, and walking without any difficulty, the jury will hate the officer for lying. If you can show that the officer’s report is grossly exaggerated, the jury will look with a jaundiced eye on the rest of his testimony. Conversely, if the video shows your client drooling, unable to stand up on his own, or generally mimicking Curly from the Three Stooges, it’s probably time to look at pretrial diversions.

If the field sobriety tests were given, make sure the officer took the time to give them correctly. There are very stringent rules for administering the field sobriety tests (although the Court of Criminal Appeals has been kind enough to police officers to substantially relieve them of their duty to administer these tests correctly, or do anything right in general). This is especially true for the horizontal gaze nystagmus test.

Once you know your case and you’ve read the police report, write a script of questions you intend to ask. Writing the script will allow you to methodically question the officer and will keep you on track when you get rattled.

Get the officer’s TCLEOSE records before going to trial. You need to know what level of certification the officer has before testifying.

File pretrial motions that limit the officer’s testimony and control what he’s able to talk about. File motions to exclude the portable breath test, request judicial notice of nystagmus, file a motion to exclude HGN test if it was not given properly, request a 705 hearing, ask for appropriate jury instructions.

The second thing you need in order to cross-examine effectively is a willingness to be confrontational. Remember, ours is a confrontational business. It is accusatorial by nature. Our job is to expose the unscrupulous as liars, as cheats, as people who dishonor what is otherwise a very honorable profession. The only way to do that is to be confrontational. I am not suggesting you walk into court and start your cross by calling the witness a “lying sack of shit.” What I am suggesting is that you have to be willing to get in the witness’ face and force him or her to remember the truth.

Develop Your Own Style: Cross-Examination in the Real World

What is cross-examination? It’s defined in Black’s law dictionary as “the opportunity for the attorney to ask questions in court of a witness who has testified in trial on behalf of the op­­pos­ing party.” This is a good academic definition, but in the courtroom it means nothing. The best definition I’ve heard for cross-examination goes something like this: “Cross-examination is the opportunity for the defense lawyer to testify, punctuated by occasional ‘yeses’ and ‘nos’ from the witness.”

Keep this in mind. Cross-examination should not be used as a deposition. It is not a chance to ask open-ended questions and allow the witness to explain. It is your chance to explain to the jury why the witness is wrong. The witness is only there to say “yes” or “no” in response to your statement. I emphasize “statement” because that is what you are doing—you are making statements.

Control the Witness at All Costs

In cross-examination, as in fishing, nothing is more ungainly than a fisherman pulled into the water by his catch.

—Louis Nizer

Being thoroughly prepared will greatly aid in controlling the witness. Controlling a witness means making the witness provide the answers you want even when he/she does not want to. There is nothing more important than control in cross-examination. I have seen lawyers with very good suppression issues get dragged around the courtroom by experienced police officers because they just didn’t control the witness. I believe the lawyers were pulled into the water because they were not prepared.

Control Starts With Locking the Officer into One Story

The first thing I do for control is lock the police officer into what’s written on the report. I do not want the police officer tes­tifying to anything that isn’t contained in his report. I base my cross-examination script on that report. My first step is to make the officer agree to only testify from his report. Here is what has worked for me in the past:

Q:   Officer, you were trained at the academy to write reports?
Q:   You were trained to write your reports accurately?
Q:   To write them truthfully?
Q:   And in writing the reports accurately and truthfully, you include all the information that you took into account when deciding to arrest Joe Citizen?
Q:   Because if it was important enough for you to con­sider in arresting Joe Citizen, it would have been important enough to include in your report?
Q:   Do you remember the name of the person that you arrested before you arrested Joe Citizen?
Q:   Do you remember the name of the name of the per­son you arrested after Joe Citizen?
Q:   The point is that you are not here to testify about anything that isn’t in your report?
Q:   Because you just don’t remember?

If the officer simply insists that he can remember details that he did not put in his report, I ask the following:

Q:   Officer, you are allowed to supplement your reports if you need to include additional information in them?
Q:   And the kind of additional information you would need to supplement are those things that would deal with your decision to make the arrest?
Q:   To date, you have not supplemented your report?
Q:   To date, you have not remembered any additional facts of this case that you felt were important enough to spend time writing a supplemental report about?
Q:   And you’re free to supplement your reports any time?

By locking the officer into his story, I have cut off most any retreat. It also prevents him from being able to say that he suddenly remembers some damning detail about my client’s case. You always want to ask questions that allow you to put the report in front of the officer and say, “Show me in your report where it says that.”

Controlling the Witness Means Refuting the Officer’s Training and Credentials

After locking the officer into his report, you need to show the jury about the officer’s credentials. This is done through the TCLEOSE records. In Texas, there are three levels of certification for administration of field sobriety tests: (1) certified, (2) practitioner certified, and (3) instructor certified. To become cer­tified, an officer needs to attend the police academy and take an eight-hour course taught by other officers. To become practitioner certified, the officer must collect numerous DVDs of his administration of the field sobriety tests in real-world set­tings and submit them for review. To become an instructor, the officer has to attend numerous additional classes and have a certain number of years of experience. Remember this: The huge majority of officers are only going to be certified. Nothing else. Once I learn they are only certified, from the TCLEOSE records, I ask the following questions:

Q:   You said on direct that you are certified to administer the field sobriety tests?
Q:   Now you understand that there are three levels of certification to administer the field sobriety tests in Texas?
Q:   The first level is certified?
Q:   The second level is certified practitioner?
Q:   That is where you collect videotapes of yourself ad­ministering the field sobriety tests and you submit them to Austin for review?
Q:   You are not a certified practitioner?
Q:   The next level above certified practitioner is certified instructor?
Q:   That is where you take even more classes and you have been certified for a number of years?
Q:   And you are not instructor certified are you?
Q:   So what you are telling this jury is that you have the lowest level of certification allowed by law to administer the field sobriety tests and testify about those tests in court?

At this point you’ve accomplished two things: You have locked the officer into using only his police report to testify from, and secondly, you’ve just shown the jury that the person who they have been told all along is an expert really isn’t all that smart.

Controlling the Witness Means Finding the Good News in the Report

Police reports are full of gifts. They are loaded with good facts for your client regardless of what the report says. I have had police reports that read like my client should be getting his stomach pumped, yet somehow my client still managed to stand on one leg for 22 of 30 seconds. Police reports have inconsistencies, embellishments, and outright lies. This is what you have to look for. Begin by breaking down the arrest into three sections. NHTSA teaches police officers to conduct DWI detection in three steps: First is observing the vehicle in motion. Second, observing the vehicle after the initiation of the traffic stop and initial contact. Third, the field sobriety tests. This leads me into another point: Buy the NHTSA Student Manual. The student manual will tell you exactly how the officers are trained to administer the field sobriety tests. Despite the training, most police officers do not do the tests correctly. This is especially true of the horizontal gaze nystagmus test (HGN test).

Step One in DWI Detection: The Vehicle in Motion

Typically a DWI defendant will be stopped for speeding, failure to stop at a designated point at a traffic light, or failure to come to a complete stop. Do not ask the officer, “So, you pulled my client over for speeding?” or “How do you know he was speeding?” Instead, talk about what’s not in the report. Assuming the stop was for speeding, here’s what I ask:

Q:   Officer, DWI detection is divided into three parts. The first is the vehicle in motion?
Q:   That’s where you look to see how the driver handles the vehicle while it’s moving?
Q:   You said you stopped Joe Citizen for speeding?
Q:   Your report says nothing about Joe Citizen swearing?
Q:   Your report says nothing about Joe Citizen weaving?
Q:   Your report says nothing about Joe Citizen’s vehicle drifting into another lane?
Q:   Officer, you’re trained in the academy how to drive a car at high speeds?
Q:   You undergo special training because operating a vehicle at a high rate of speed is dangerous?
Q:   It’s dangerous because at a high rate of speed you have substantially less control over the vehicle?
Q:   That is why we have speed limits?
Q:   And the reason that we do not allow people to drive while intoxicated is because intoxicated people cannot react and think normally?
Q:   In other words, an intoxicated person has less control over their vehicle than a sober person?
Q:   And an intoxicated person driving his vehicle at a high rate of speed has tremendously less control than a sober person driving at a high rate of speed?
Q:   Yet your report makes no mention of Joe Citizen lacking the ability to control his vehicle even though he was speeding?

Obviously, you have to tailor the questioning to your own report. But the point is that I do not want to allow the officer to repeat what he said on direct. I want to talk about things that help my client. I want to talk about all the good things my client did, like not swerving, or weaving, or hitting another car. Whatever good I can find in the report, I use it.

Step Two in DWI Detection: From Initiating the Stop to Initial Contact

Next, I go into the stop. Look for indications in the report that your client took too long to pull over, pulled over too quickly, tried to run, or any other aspect of driving that reflects poorly on your client once the stop was initiated. Assuming that is not there, my next step in the cross-examination goes something like this:

Q:   Officer, the next step in DWI detection is looking at the driver’s reaction after you have activated your overhead lights?
Q:   And your report says nothing about Joe Citizen taking too long to pull over?
Q:   Your report says nothing about Joe Citizen swerving quickly to pull over?
Q:   Your report says nothing about Joe Citizen failing to put on his blinker?
Q:   Your report says nothing about Joe Citizen parking his car illegally on the side of the road?
Q:   In other words, Joe Citizen responded to your overheads lights safely, properly, and lawfully?

I want the jury to understand that the universe of signs of intoxication relied on in DWI cases is huge. And even with this huge array of possible bad acts available, the officer was only able to find two or three things to hang his hat on. Prosecutors are taught to minimize expectations of jurors in DWI cases. We as defense lawyers need to do the opposite. We need to raise the expectations to show just how minuscule the evidence really is against our clients. We need to show the jury that this is nothing more than one man’s opinion, and that opinion is unsound.

“Strong Odor of Alcohol Emitting from His Breath”

The next issue to deal with is the ubiquitous “strong smell of alcohol emitting from his breath” statement found in police DWI reports. I take this as an opportunity to show the jury just how willing an officer is to embellish the facts. I have two objectives in this line of questioning: First, to help the officer exaggerate the smell as much as possible. And second, to burst those embellishments quick, fast, and in a hurry.

Q:   After pulling over Joe Citizen, you approached his vehicle?
Q:   You said you smelled a strong odor of alcohol on Joe Citizen’s breath?
Q:   When you say it was a strong smell, you mean it was extremely noticeable?
Q:   It was so overwhelming it was just coming out of the car before you even got to the window?
Q:   But the fact is you cannot distinguish between the smell of half a can of beer and an entire bottle of whiskey?
Q:   The reason that you can’t distinguish between the two is because the amount of alcohol has nothing to do with how strong the smell is?
Q:   Because half a glass of wine smells the exact same on someone’s breath as a whole bottle of vodka?
Q:   So when you say the odor was “overwhelming,” that’s just misleading because the smell of alcohol is all the same?

It does not matter what the response to the last question may be. By the time you ask that last question, you should have backed the officer into a corner on the smell issue. So regardless of whether he admits it’s misleading or not, stick with it, until you get him to admit that it was an embellishment or, at a minimum, just his choice of words.

Divided Attention Questions

This is where the officer will ask your client to produce his driver’s license and insurance. And while the client is looking for the driver’s license and insurance, the officer will ask questions like, “Where are you coming from?” “What’s your telephone number?” or “Where are you going?” The reason officers ask these questions is to see if the suspect can do two things at once—i.e., look for documentation and think about answers to questions. This is a gold mine of good questions to show your client was not intoxicated. Look in the report to see if there is any mention of your client not being able to find his driver’s li­cense, fumbling through his wallet as though his fingers were numb, or seeming confused when asked where he was going.

If there’s no mention that he had difficulty with this, I go into the following line of questioning:

Q:   Officer, when you make contact with a suspected drunk driver, you’re trained to ask divided attention questioning?
Q:   That is where you will ask for the driver’s license and insurance?
Q:   And while they are looking for their insurance and driver’s license, you ask them where they are coming from or where they are going?
Q:   And the point of doing this is to see if they have the mental wherewithal to do two activities at once?
Q:   Your report says nothing about Joe Citizen having trouble finding his driver’s license?
Q:   Your report says nothing about Joe Citizen having trouble locating his insurance?
Q:   Your report says nothing about Joe Citizen having trouble answering your questions while looking for his driver’s license and insurance?
Q:   In other words, he had the mental wherewithal to handle two tasks at once?
Q:   He passed your divided attention tests?

Step Three in DWI Detection: Observations from Stepping Out of Vehicle Through Field

Sobriety Tests

The third step in DWI detection for police officers is their observations when they get the defendant out of the vehicle and administer the field sobriety tests. This is where you have to look at the video. I very much prefer it when there is no video. My experience has been that juries do not like it when there are no videos. Nowadays, there are cameras everywhere, and everyone has a video camera on their cell phone. So I bring this issue up in voir dire. I talk about cameras being every­where to get the jury primed for questions about not having a camera and to let the jury know ahead of time there won’t be a video.

If there is no video I ask the officer the following set of questions:

Q:   You told this jury you have no video/your camera wasn’t working?
Q:   You weren’t the only officer with your department on the street that night?
Q:   There were other officers that were on the street who did have cameras available?
Q:   You did not call another officer to come over and record you giving the field sobriety tests?
Q:   Not only were other officers on the street with cam­eras, but there were other cameras at the police de­part­ment?
Q:   For instance, there is a camera outside the entrance of the sally port where you brought Joe Citizen into the police department compound?
Q:   There is a camera outside the door where you brought Joe Citizen in to be booked?
Q:   There is a camera in the booking area where you took Joe Citizen to be fingerprinted and photographed?
Q:   There is a camera inside the Intoxilyzer room where you took Joe Citizen and read him his Miranda warnings?
Q:   There is a camera inside the cell where you put Joe Citizen?
Q:   The point is, there were at least seven different work­ing cameras that night where you could have provided this jury a videotape?
Q:   And you can’t provide a single videotape to present this jury?

Next, move into the field sobriety tests. The first thing I do is go after the HGN test. I want to show three things: that nystagmus can be caused by lots of things other than alcohol, that the officer has no training in how to differentiate between acute alcohol nystagmus and any other type of nystagmus, and that the officer gave the HGN test incorrectly.

I rely extensively on the case of United States v. Horn, 185 F.Supp.2d 530, to show that nystagmus can be caused by factors other than alcohol. Horn is mandatory reading. There is no other case I am aware of that so thoroughly details the good and bad about field sobriety tests. In Horn a federal district court provide a detailed history of HGN and nystagmus, and the current scientific state of the Standardized Field Sobriety Tests. It should be noted that the Horn court specifically included a detailed analysis of Emerson v. State, 880 S.W.2d 759 (Tex.Crim.App.1994), and a court’s ability to take judicial notice of facts that are not readily disputable, the veracity of which can be easily determined. The Horn court held that there also are many other causes of nystagmus unrelated to alcohol consumption. Id. at 555. The Horn court held:

“The fact that there are many other causes of nystagmus in the human eye also is the type of adjudicative fact that may be judicially noticed under Rule 201. Thus, the defendant in a DWI/DUI case may ask the court to judicially notice this fact, once the government has proved the causal connection between alcohol ingestion and exaggerated nystagmus. Alternatively, the defendant may seek to prove the non-alcohol related causes of nystagmus by other means, such as the testimony of an expert witness, cross-examination of any such witness called by the government or through a properly admitted learned treatise.” See Id. at 556.

It was further stated in the Horn opinion: “The court recognized the following causes or possible causes of nystagmus: problems with the inner ear labyrinth; irrigating the ears with warm or cold water; influenza; streptococcus infection; vertigo; measles; syphilis; arteriosclerosis; Korchaff’s syndrome; brain hemorrhage; epilepsy; hypertension; motion sickness; sunstroke; eye strain; eye muscle fatigue; glaucoma; changes in atmospheric pressure; consumption of excessive amounts of caffeine; excessive exposure to nicotine; aspirin; circadian rhythms; acute head trauma; chronic head trauma; some prescription drugs; tranquilizers, pain medication, and anti-convulsant medicine; barbiturates; disorders of the vestibular apparatus and brain stem; cerebellum dysfunction; heredity; diet; toxins; exposure to solvents; extreme chilling; eye muscle imbalance; lesions; continuous movement of the visual field past the eyes; and antihistamine use.” See Id. at 556. I have been successful in urging this motion to courts. It is simply beyond any dispute that nystagmus can be caused by myriad issues completely unrelated to alcohol, and all benign.

I ask the Court to instruct the jury as follows during a trial:

The Court takes judicial notice of, and you are instructed that, nystagmus can be caused by numerous sources in­cluding alcohol, excessive caffeine consumption, excessive nicotine consumption, the flu, high blood pressure, aspirin, acute head trauma, diet, and changes in atmospheric pressure. You are the sole judges regarding the weight to give the officer’s testimony relating to nystagmus.

Once the jury has been instructed accordingly, I start on the following line of questions:

Q:   Officer, how many times do you need to see an eyeball bounce before you will determine there is acute alcohol-induced nystagmus?
Q:   You are not able to make a distinction between nystagmus caused by alcohol and nystagmus caused by nicotine?
Q:   You have no training in how to differentiate between acute alcohol induced nystagmus and nystagmus caused by caffeine?
Q:   You have no training in how to differentiate between acute alcohol induced nystagmus and nystagmus caused by aspirin?
Q:   In other words, you have no ability to distinguish between acute alcohol induced nystagmus and nystagmus caused by other completely legal sources?
Q:   Based on your training, nystagmus all looks the same to you regardless of its source?
Q:   You never received training in nystagmus detection from a doctor?
Q:   You never received training in nystagmus detection from a nurse?
Q:   You never received nystagmus training from anyone in the medical field?
Q:   The sum total of your nystagmus detection training comes from a course taught by other police officers?

At this point I feel like I have reduced the officer’s credibility as an expert. I have been able to show that the officer has the low­est level of certification allowed by law, that the officer has no ability to distinguish nystagmus, that he received no medical training to diagnosis nystagmus, only receiving training from other police officers.

Next, assuming there is a video, I move into the administration of the field sobriety tests. My experience has been that more often than not, the arresting officer does not administer the test in accordance with the guidelines. This is a great way to score points with the jury. My line of questioning goes something like this:

Q:   Officer, you received training in administering the standardized field sobriety tests?
Q:   And the training you received comes from standards established by NHTSA?
Q:   NHTSA set the rules for how you are to administer the field sobriety tests?
Q:   And the reason they are called standardized is because there is a set standard you have to follow?
Q:   In other words, there is not one standard for the McAllen PD, one for DPS, and one for the sheriff’s department?
Q:   Everyone has to administer the same tests in the same way?
Q:   This is especially true for the HGN test, which is considered to be the most scientific of the tests?
Q:   You are given very specific time constraints in ad­ministering the HGN test that allow you to detect minute movements in the eye?
Q:   And it’s important that you follow the standard that is set?
Q:   In fact, you are taught that you have to follow the set time frames for administering the HGN test or else you’re not going to get valid results?
Q:   In other words, if you administer the test incorrectly, it’s going to affect your ability to properly interpret the results?
Q:   And if you are unable to properly interpret the re­sults of the test, the jury is simply not going to be able to rely on your conclusions?
Q:   In other words, if you gave the HGN test incorrectly, the jury will not be able to rely on your interpretations of the test?

For the walk and turn and the one-leg stand, I do not have a set protocol of questions that I use. It varies greatly from case to case. But most of my lines of question on these two tests deal with inconsistencies between the officer’s report and what the tape shows. If the report says my guy had unsteady balance and difficulty walking but the tape tells a different story, this is another gold mine. Because no matter how the officer tries to jus­tify what the report says, if the tape does not back it up, then the officer is lying.

Police reports in DWI cases are full of valuable information. And sometimes the best evidence for your client is what is not listed in the report. By knowing what to look for and developing a script of questions ahead of time, you will be better able to effectively cross-examine the police officer and raise your client’s chances of acquittal. Good luck.