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.
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
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.