THE NUTS AND BOLTS OF CROSS EXAMINATION IN DUI CASES

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1 THE NUTS AND BOLTS OF CROSS EXAMINATION IN DUI CASES Prepared By: Bill C. Messick Attorney at Law PO Box Mobile, AL (251) Prepared On August 21, 2009 On direct, the witness testifies. On cross, the attorney testifies. Unknown. (That is great advice. But, it does not tell you how you are supposed to testify on cross). INTRODUCTION Effective Cross-Examination: It does not happen by chance. Successful crossexamination skills do not come naturally. The reason is simple. Unless you had a very unusual background, you did not master cross-examination skills when you were a child. Your parents probably had a knack for getting at the truth when you did something that you shouldn t have. But, that was not cross-examination. That was investigation. The questioner was trying to get information not present his or her side of a witness testimony to persuade a judge or jury. No matter how they made you feel, your parents questions were all wrong for a courtroom. Cross-examination is very different because people do not normally talk that way outside the courtroom. It is a learned technique. Effective cross-examination takes thorough preparation and practice. Always keep in mind that one of the main goals of cross-examination is to lay the foundation for your closing argument. It is not designed to get information. Crossexamination is your opportunity to present your side of the case; occasionally getting the officer to agree that what you say is true. That is why you should stick to leading questions on cross-examination. To do otherwise is to lose control over the witness or send a message to the jury that the witness is reliable. Favorable testimony during cross usually comes in small increments. Rarely will you get a single response that devastates the prosecutor s theory of the case. But, it does happen. Page 1 of 35 Pages

2 LAW ENFORCEMENT OFFICERS BOTH SIDES OF THE COIN Most of us agree that we need good law enforcement. The majority of law enforcement officers are honest, hardworking people who are, for the most part, underpaid just doing their job. They put their lives on the line everyday never knowing when they begin their shift if they will ever see their families again. It s a stressful job to say the least. Unfortunately, there are some law enforcement officers who believe every citizen is guilty and cops can do any wrong. These cops will pervert their training and experience to insure convictions. Because these police officers must necessarily and frequently appear in court, they become professional witnesses. They manipulate evidence and their testimony to suit their own goals. They have no reservations about shading the truth and using disinformation to get a conviction. These cops know what you want and will do almost anything to keep you from getting it. They may not intentionally lie to get a DUI conviction. But, they are so focused on obtaining a conviction that they totally lose their objectivity. Most of these officers are incapable of admitting they might be wrong or mistaken. This is their Achilles' heel. If you have prepared your case, you can turn their arrogance into a Defense Verdict. You may not be able to expose the cop as a big, fat liar. But, with proper preparation and effective cross-examination, you will be able to reveal his or her bias and allow the jury to see for themselves that this cop really cannot be trusted. PREPARATION AND PRACTICE Successful cross-examination takes thorough preparation and practice. paraphrase Thomas A. Edison, it is 90% perspiration and 10% inspiration. To There is no magic formula for effectively cross examining a witness, including police officers. It requires: (1) complete knowledge of the case, (2) experience (trial and error), and (3) the ability to trust your instincts about a witness. As soon as you sign up the case, start taking notes about what questions you want to ask the officer on cross-examination. As you accumulate more facts and information and documents, you will develop even more questions. At the end of that process, put all of those questions into a single document and start rehearsing say it out loud. Review your questions with a colleague preferably an experienced trial lawyer. Think of the probable answers the cop might give. If the questions and answers do not fit your theory of the case, redraft them. Do not be afraid to start over! Page 2 of 35 Pages

3 GETTING STARTED (Laying The Foundation For Effective Cross-Examination) Once the decision has been made to take the case to trial, you need to gather as much evidence and information as you can to prepare your trial strategy. I always start with my client and any witnesses. Then, I review and copy the Court s file. Next, I try to meet with the Prosecutor to review their file. And, if possible, I talk to the officer or officers involved. Finally, if I intend to challenge the breath test, I contact the Alabama Department of Forensic Science to obtain documentation about the client s breath test and the history of repairs for the machine in question. The Client: Your client can be a valuable source of information about the case. They will usually have a copy of the UTTC, Certificate of Breath Alcohol Analysis, and the AST-60 (also known as the Official Notice of Intended Suspension Of Driving Privileges And Affidavit ). If the client cannot produce them, those items will usually be in the Court s file or the prosecutor s file. My experience has been that clients want to be actively involved in their defense. They want to tell their story. After listening to their story at the initial meeting, I ask them to write down, in detail, everything that happened. Depending on their computer skills, I ask them to type it out and it to me or deliver it to my office. Depending on the facts of the case, I will ask the client to go out and photograph or videotape the scene and/or their automobile for me. If something important develops, I will send out a private investigator to re-shoot the photographs and/or videotape. (If the client was arrested following an accident, always obtain a copy of the Accident Report. You might be amazed at what you find there). Finally, I ask the client for a list of people that were with them; or potential witnesses. You will be amazed at how much helpful information these witnesses can provide for the Defense; even if they are never called to testify. The Court s File: If my client does not have their copy of the Certificate of Breath Alcohol Analysis, the AST-60 or the UTTC, I can usually find them in the Court s file. Even if my client has provided those documents to me, the Court s copies are usually more legible. In the Court s file, I will occasionally find a copy of the Offense Report or Narrative Report. However, those are becoming scarce. The Prosecutor s File: Some prosecutors are more accommodating than others. Depending on the prosecutor, I will drop by their office or call them to discuss the case. Most seasoned prosecutors will allow you to inspect and copy most everything in their file. Beware of the prosecutor that resists even your most basic requests. That usually means they are hiding some weakness in their case. That should alert you to dig deeper and find out what it is. Page 3 of 35 Pages

4 Discovery: Do not hesitate to file Discovery motions. But, refrain from filing boilerplate motions which contain requests for items that are not relevant to your case; or that do not exist. It will alienate even the friendliest judge. The Officer: Contacting a cop before trial can be challenging. They are usually on patrol or in court not at their office. Many do not return calls especially to Defense Attorneys. Be persistent. Leave several messages for them. Some will call you back just to stop you from leaving messages. Veteran police officers will usually talk frankly with you about the case. However, I never lose sight of the fact that they are advocating law enforcement s position. Ask to view the video if there is one. Practice Tip: Occasionally, you will encounter a cop that will flatly refuse to talk with you or return your calls. Depending on the circumstances, you might consider sending the cop a letter, via certified mail, return receipt requested, requesting that s/he contact you. Make it clear in your letter that you want to talk with the officer about the case before the trial date. And, ask the officer to select a date, time and place that is convenient for them. If the cop fails to respond to your letter (and calls), you may be able to impeach them on cross by showing that s/he is prejudiced against your client and that they are biased in favor of the prosecution. Here is an example: Q: You received a letter from me on (insert date) asking you to contact me to set up a convenient time for you to discuss (insert client s name) case? A: That is correct. Q: But, you did respond to my letter, did you? A: That s right. (At this point, the cop will give some self-serving reason as to why they didn t respond, e.g. I don t talk to slime-ball Defense lawyers). Q: So, you and haven t discussed this case with me before today? A: Correct. Q: This is my first time speaking with you about your accusations against (insert client s name)? A: Well, like I said, eh, Right. Q: But, before trial, you spoke with the prosecutor here, (insert name), about this case? A: Yes. Q: On more than one occasion? Page 4 of 35 Pages

5 Look For Inconsistencies: After you have obtained the UTTC, Certificate of Breath Alcohol Analysis, and the AST-60, compare the dates and times for any inconsistencies that can be exploited. Check to see if more than one officer was involved; (ie. One made the arrest and one gave the breath test). TIPS AND SUGGESTIONS FOR CROSS-EXAMINATION Never argue with a fool. The jury may not be able to tell the difference. Do Not Destroy The Witness Unless You Have To: If you have done your homework, you can usually make your point effectively and win the case without ripping up the cop. But, if the officer asks for it, then the jury will appreciate what you do to them. If you must go after the officer, exercise some restraint. I have watched some lawyers gratuitously slam the cop on the witness stand. In too many of cases, it did not work because the jury still convicted their client. Avoid Head-On Attacks When Possible: Effective cross-examination can be compared to a battle. Most of the time, an indirect approach can be more successful than a direct attack. The most difficult way to cross-examine any witness is to fight them on their own ground. They will rarely admit that they made a mistake or lied. It is usually better to focus your cross-examination on a combination of smaller topics; putting together a puzzle for the jury. By the time you finish your cross-examination, the officer will have painted themselves into a corner. Leading Questions: We instinctively ask leading questions on cross-examination. But, to help establish your credibility with the jury, try not to lead the witness any more than necessary. Try to frame your questions in such a way as to limit the witness and maintain control of them; while giving the jury the impression that the witness is free to answer as he or she chooses. Avoid introductions and tag endings. Cross-examination is better paced, and the witness better controlled, if you can avoid using the following words and phrases: Introductions such as: Tag Endings such as: Isn t it true that In fact isn t that true? isn t that correct? right? Nit-Picking: Avoid nit-picking or quibbling with the witness on cross unless it furthers your theory of the case and supports your jury argument. Page 5 of 35 Pages

6 Avoid Chronological Order: Organize your cross questions by topic or subject matter. Avoid chronological order when possible. You do not want to follow in the prosecutor s footsteps and you want to keep the cop off balance so they don t know where you are heading with your questions. Do not start where the prosecutor left off. The cop is still thinking about that topic. Start your cross with a completely different topic; especially a subject on which you can get supportive responses. Never Ask The Witness To Explain: Ordinarily, you should not ask the witness open-ended questions such as "Why" "How" or "Can you explain that" or "Would you describe..." They give the witness too much wiggle room. There is one exception. If you have the witness cornered with no avenue of escape and you want to see them squirm. You might consider asking a question that forces him or her to explain a position that is inconsistent with a position that they have already committed to; and for which they can give no reasonable explanation. Taking Risks: We all know the rule that says a trial lawyer should never ask a question unless they know the answer. In an ideal world, this is true. But, it is not always practical. Even after thorough trial preparation you might face a situation in which you must ask a question to which you do not know the answer. Try to limit the scope of those questions in such a way that, regardless of what the officer s answer, the potential damage will be minimal. CONTROLLING THE WITNESS ON CROSS-EXAMINATION Cops love to dodge questions from the Defense Attorney and start talking about something else. Unless your judge is exceptional, do not expect much help from the court if you encounter an uncooperative or evasive witness. You must learn to depend on yourself to get the answer you want or make the witness look evasive to the jury. It is not a good idea to argue with the witness because the jury will usually side with the witness not the cross-examiner. Short, leading questions on cross do not always work. Here is a short list of ways to control an uncooperative witness. 1. SEMANTICS: If the witness is playing semantics, they might argue with your choice of words. Do not insist on a particular word. Instead, offer them a neutral term. That way, the you are not arguing with the witness. The witness is arguing with you. Q: You made a videotape of the stop and field sobriety tests? A: No. I digitally recorded it. Q: What would you like to call it? Page 6 of 35 Pages

7 2. DO NOT ANSWER QUESTIONS: Some cops try to turn the tables and ask questions of the person conducting the cross-examination. Do not answer their question. A: Well, what was I supposed to do? Q: I m sorry, but the rules of evidence do not permit me to answer your question. If they did, I would be happy to explain exactly what you should have done. That response will stop the witness without being rude. The advantage is that you have until the end of the trial to think of an answer which you can give during your closing argument when the witness cannot talk back. 3. LOOP BACK: Some cops will try to avoid answering your question any way they can. They might start an argument or attempt to explain why when all the question called for is what. Looping back shows the jury what the witness is up to: Q: You never offered my client any Field Sobriety Tests? A: Right. Q: But, you normally offer Field Sobriety Tests? A: It was a waste of time. The PBT was more important to develop probable cause to arrest for DUI. There is no obligation for me to offer FST s. Q: A moment ago, you said you never offered my client any FST s? A: Right. Q: Then, I asked you if you normally offer FST s. But you did not answer my question, did you? A: Well, I right. 4. CHANGE THE SUBJECT: Often the cop will try to change the subject to avoid answering your question. Q: But, you normally offer Field Sobriety Tests? A: The PBT is more important because it tells me if the subject had enough alcohol in their system to justify an arrest for DUI. Q: We will get to the PBT in a moment. But, before we do, you need to answer my question. A: What was your question? Q: You normally offer Field Sobriety Tests, right? Page 7 of 35 Pages

8 A: Right. Q: And, you are trained to do so? A: Right. 5. DOES THAT MEAN YES OR NO : You can sometimes deal with an argumentative witness by explaining that all you want is a yes or no answer. Q: But, you normally offer Field Sobriety Tests? A: The PBT is more important because it tells me if the subject had enough alcohol in their system to justify an arrest for DUI. Q: Does that mean yes. A: What do you mean? Q: You normally offer Field Sobriety Tests, right? A: Right. 6. INTERRUPTING SPEECHES: Often, the cop has a canned speech prepared for cross-examination and is determined to deliver it. When you object, the judge merely tells you the witness may explain their answer. The judge is of no help and you need to interrupt. You need to stop the runaway witness before they regurgitate everything they learned at DUI school. - Try holding up your hand in the universal sign of the traffic-cop. Hey, sometimes it works. - If that does not work, try to pick up on something the cop says and interrupt them with a follow-up question. No one will catch on to what you re doing because we are accustomed to follow-up interruptions all the time in regular conversations. 7. OPINIONS: Many cops are intent on giving self-serving opinions on cross. Now is the time to invoke the name of the jury. Q: You arrested Mr. Jones after he completed your Field Sobriety Tests? A: Based on my training and experience, he failed the FST s. Q: After they review the video, it will be up to the jury to decide if Mr. Jones passed the Field Sobriety Tests, right? Page 8 of 35 Pages

9 TWO TYPES OF CROSS-EXAMINATION There are basically two types of cross-examination; supportive and destructive. Supportive cross-examination questions are those that support or advance your theory of the case. In supportive cross, you do not want to destroy or attack the witness. You want to develop favorable testimony from the prosecutor s witness; obtain admissions, fill-in-the-gaps from the prosecutor s direct examination. During closing, you can argue that the prosecutor s own witness gave testimony favorable or supportive to your theory of the case. If you are going to rely upon favorable testimony provided by the prosecutor s witness, it might be wise to refrain from attacking their credibility. In some instances, the witness testimony on direct might be helpful to your theory of the case. In that instance, have the witness to repeat it on cross and move on. Destructive cross-examination is intended to attack the witness testimony given on direct exam. You could use it to discredit their testimony by showing that it differs with common sense; or, with what others observed. You might want to impeach the witness. The Alabama Rules of Evidence (ARE) provide a variety of ways to impeach a witness. Here is a short, non-exhaustive list of those rules: Rule 602 ARE Rule 609 ARE Rule 608 ARE Rule 612 ARE Rule 613 ARE Rule 616 ARE Lack of Personal Knowledge Evidence of Conviction (felonies and moral turpitude) (Opinion and Reputation) Character And Conduct of Witness Writing Used To Refresh Memory (while testifying) Prior (Inconsistent) Statements Evidence of Bias, Prejudice Or Interest Practice Tip: While cross-examining a cop, you might be required to ask both supportive and destructive questions. Ask supportive questions before destructive ones. Bias? What Bias? Bias is never collateral. It is always a proper subject for cross-examination. If asked directly, the officer would deny any bias against your client. But, whether they admit it or not, they want to see your client convicted. It is in their best interests to do so. To admit they are wrong now could cost them their job. Therefore, they will sometimes go to extremes to insure a conviction. Others are just hostile to Defendants or Defense Attorneys. At a minimum, they will avoid helping your client or the defense. You must expose and exploit the officer s bias to the jury. Most jurors like to believe they are fair and just. And, if you skillfully expose the officer s bias, they will lose credibility with the jury. Page 9 of 35 Pages

10 WIDE-OPEN CROSS-EXAMINATION Rule 611(b) ARE continues Alabama's history as a "wide open rule" jurisdiction regarding matters that may be inquired about on cross-examination. Questions on crossexamination are appropriate as long as they are relevant either to credibility or to any material issue in the case. Moody v. State, 267 Ala.204, 100 So.2d 733 (1957); Cooper v. State, 526 So.2d 602 (Ala.Crim.App. 1986). DISCOVERY DURING CROSS-EXAMINATION Ordinarily, an offense report or arrest report is not discoverable because it is considered work product. See Rule 16.1(c) Alabama Rules of Criminal Procedure (ARCrP). However, there is a 'backdoor' way to get your hands on the cop s offense report, arrest report, field notes, narrative or whatever they want to call it. Pursuant to Rule 612(b) ARE, (Writing Used To Refresh Memory), the Defense does have a right to examine police report at the beginning of cross-examination, if, while testifying, the witness uses the writing to refresh his or her memory. See Ex Parte Johnson, 576 So.2d 1281 (Ala. 1991), and Gibson v. State, 555 So.2d 784 (Ala.Crim.App.1989), cert. denied. Practice Tip: Before the trial begins, try to determine if the officer has their offense report or field notes with them. If so, when the officer is sworn in, observe them very carefully to determine if they refer to their offense report during direct exam. If so, inform the judge that the officer referred to his/her report during direct and, therefore, you are entitled to see it pursuant to Rule 612. Ask the Judge for an opportunity to review it before you begin your cross-examination. If the officer does not refer to their offense report during direct examination, it is up to you to ask some questions that will force them to do so. Before trial, the officer probably reviewed their offense report to refresh their memory only on those facts that will help convict your client. Unless they are extremely thorough, the officer probably does not recall the color and year model of your client s vehicle. Likewise, they probably do not remember the exact time they stopped your client or the time they arrested your client. If there were any passengers with your client, other officers at the scene, or witnesses, ask the officer to tell you their names. Ask them the tag number of the Defendant s vehicle or its make, model and VIN number. Ask them what time they administered the PBT (Alco-Sensor) and what time they administered the Draeger test. Asking questions along these lines will usually force the officer to refer to their report. Once you establish that the officer consulted their offense report or notes during their testimony, ask the Judge to instruct the officer to turn over the report to you pursuant to Rule 612(b) ARE. Page 10 of 35 Pages

11 In Camera Inspection: If the prosecutor or officer refuses to produce the report, ask the judge to strike the officer s testimony or ask for a mistrial. If the judge orders production of the report, the prosecutor might claim certain parts of the report are not relevant. Ask the judge to conduct an in camera hearing to determine which portions of the writing are not subject to trial discovery. Be sure to object to any portions not produced and asked that they be included in the appellate record and preserved for appeal. Be sure to get a ruling on your objection. Nothing will get your case Affirmed quicker than a failure to get a ruling on your objection. Where a prosecution witness has testified on direct examination, the defendant, upon laying a proper predicate, is entitled to have the court at least conduct an in camera inspection of a report made by law enforcement officials as outlined in Palermo v. United States, 360 U.S. 343, 3 L. Ed. 2d 1287, 79 S. Ct. 1217, 59-2 U.S. Tax Cas. (CCH) 9532, 3 A.F.T.R.2d (P-H) 1680 (1959), reh'g denied, 361 U.S. 855, 4 L. Ed. 2d 94, 80 S. Ct. 41 (1959). See Bogan v. State, 529 So.2d 1029 (Ala.Crim.App.1988). QUICK TIPS ON CROSS-EXAMINATION 1. DEVELOP A THEME: You must be totally familiar with the case before you develop a theme. Everything you do must be weaved into the theme of your case; motions, voir dire, opening statement, direct examination, cross-examination and closing argument. 2. SUMMARY TRIALS: When practicable, get a panel of 6 or 12 average people to listen to the case before the actual trial. You might be surprised at what you learn from them which could lead to an acquittal. I usually recruit workers from our office complex with the lure of $25 or $50 for 1 to 2 hours plus Domino s pizza or Subway sandwiches. (Depending on the time of year, it is sometimes difficult to recruit twelve so I usually settle for six). I will usually ask fellow Defense Attorneys or former prosecutors to serve as the prosecutor and judge. We do not put on any live witnesses. Each side gives a brief opening statement; then summarizes what they expect the witnesses would say and the evidence would show. If there are any videos of the stop, FSTs, breath test or booking, we will show those. At the end, each side gives a closing argument. We allow the jurors to ask questions during the trial. When they reach a verdict, both sides get to ask questions as to what most influenced the jurors to reach their verdict. Over the years, I have been floored by what they say the things they focus on that I might have never thought of otherwise. 3. KEEP IT SIMPLE: Here are a few quick tips for effective cross-examination: 1. Ask leading questions 2. Ask short questions 3. Use simple words 4. Ask for facts not evaluations 5. One fact per question. Page 11 of 35 Pages

12 CROSS EXAMINATION QUESTIONS DUI CASES Prepared By: Bill C. Messick Attorney at Law PO Box Mobile, AL (251) The lawyer s vacation is the space between the question put to a witness and his answer. Rufus Choate INTRODUCTION The following are sample cross-examination questions for DUI cases in Alabama. They are designed to force the officer to concede the point in your favor. They methodically challenge the basis of the cop s opinion and lay the foundation, brick by brick, for arguing reasonable doubt in your Closing Statement. Obviously, not all of these questions are relevant to every case. Nor are these questions intended to be exhaustive. Every case rests on its own facts. You should tailor your cross-examination to fit the theme of your case and your own personal style. Practice Tip: Always prepare a written outline of cross-exam questions so that if the judge sustains the prosecutor s objections to the questions, or series of questions, you can object to their ruling and make a written proffer with a request that the questions be included with the record for purposes of appeal. RECOLLECTION REFRESHED PURPOSE: To show that the officer really has no independent recollection of the facts of this case. They had to refresh their recollection. BEFORE TESTIFYING DID YOU REVIEW? Your Report Your Field Notes Court's File Prosecutor s File Videos Photographs Page 12 of 35 Pages

13 OFFICER'S MEMORY PURPOSE: To show the officer has no independent memory of your client s case. [] DO YOU HAVE A GOOD MEMORY? [] Does your memory get better or worse after a period of time? [] better [] worse [] You well remember my client's case? [] Who did you arrest for DUI: [] just before my client? [] don t remember [] just after my client? [] don t remember [] So, you don't remember the case just BEFORE and just AFTER client's case? [] YOU REMEMBER THIS CASE BECAUSE YOU REVIEWED: Your Report before testifying? Your Field Notes before testifying? Court's File before testifying? Prosecutor s File before testifying? Video before testifying? Photographs before testifying? If not, you would be unable to remember this case? ABOVE MAKING MISTAKES PURPOSE: To show the officer might be mistaken OR is unbelievably perfect [] How many DUI ARRESTS have you EVER made? [] Did you work LAST WEEK? [] How many DUI arrests last week? 5, 10, 20? [] How many traffic citations last week? 5, 10, 20? [] Who did you issue a citation to just before my client? [] Who did you issue a citation to just after my client? [] Ever mixed up facts of one case with another? [] Ever attributed action of one defendant with another? Page 13 of 35 Pages

14 NOTE: Use the following series of questions ONLY IF you have found one or more mistakes in the documents written by the officer. [] Ever mixed up facts of one case with another? [] Ever attributed action of one defendant with another? [] You are not beyond becoming confused? [] Ever wrote down information wrong on a: AST-60? Certificate of Breath Analysis? UTTC? Practice Tip: If there is a discrepancy regarding the dates, times or other relevant information between the above-listed documents, ask the cop to explain them. PATROL AREA [] Why were you where you were when client arrested? [] routine patrol (For some reason, this question makes some cops visibly nervous or angry). [] How long have you: [] patrolled area where you arrested client? [] worked this particular shift? [] If on "routine patrol", What was the officer looking for? LAW ENFORCEMENT TRAINING PROFESSIONAL WITNESS PURPOSE: To demonstrate to the jury that the cop s credibility might not be properly judged by them merely on consideration of what sounds good or that s/he does not appear nervous. To show that the officer is a professional witness. [] Where did you receive your law enforcement training? [] When did you graduate? [] NHTSA Manual used? ( To show that s/he is familiar with FST requirements and limits) Page 14 of 35 Pages

15 DUI TASK FORCE PURPOSE: To show that the officer is motivated to make DUI arrests/convictions [] Any special training regarding DUI's? [] Certified to be on DUI Task Force? (When? ) [] Re-Certified to be on DUI Task Force? (When? ) [] You a member of a DUI TASK FORCE? [] Grants are based on number of DUI arrests? (Motivation to make cases) [] Paid overtime to be on DUI task force? (Motivation to make cases) VIDEO CAMERA IN PATROL UNIT PURPOSE: To show jury that the events were recorded. And, if the video has been destroyed, you can move for mistrial or argue at Closing that it was done to conceal exculpatory evidence. If the video exists but the prosecutor did not admit it on Direct Exam, you can get it admitted now. [] You had a video camera in your unit that day/night? [] It was working properly? NOTE: If the cop says no try to determine if it was working properly on the persons arrested just before and just after your client. Selective Operation (Use if cop says he had a camera but did not tape your client): [] Does your video camera record automatically when your shift begins? [] Who decides to activate the video camera? [] Cop does [] The video camera is only activated when you decide to turn it on? [] The video camera is only deactivated when you decide to turn it off? Page 15 of 35 Pages

16 [] At what point did you turn the video camera on? (when s/he responded to the call, etc). [] The video camera was on during client s FST's? [] Did you bring that video today? OTHER VIDEOS?: Check to determine if the police agency involved has a video camera installed in their booking room and in the room where the Draeger Breath Test is administered. If yes to either one, ask questions similar to the ones listed above. WHAT S NORMAL FOR MY CLIENT [] When you stopped my client, you did not know: how long s/he'd been awake? the last time s/he'd slept? if s/he was tired or refreshed? what his/her handicaps were? if s/he was suffering from eye irritation? if s/he suffers from equilibrium problems? if s/he was sick? [] You do not know what my client's normal mental faculties are? [] You do not know what my client's normal physical faculties are? DESCRIBE TRAFFIC, WEATHER AND LIGHT CONDITIONS AT SCENE? Page 16 of 35 Pages

17 FIELD SOBRIETY TESTS PURPOSE: To show that the officer is not as knowledgeable as they claimed on Direct. Goes to credibility. MEDICAL EDUCATION [] COLLEGE? - If yes, when, where and what Degree received? [] MEDICAL SCHOOL? - If yes, when, where and what Degree received? [] NURSING SCHOOL? - If yes, when, where and what Degree received? [] COURSES IN NURSING? - If yes, when, where and what Degree received? [] COURSES IN ANATOMY? - If yes, when, where and what Degree received? Practice Tip: Ask the following questions only if the Judge has allowed the prosecutor to ask the officer questions relating to the Horizontal Gaze Nystagmus (HGN) Test and/or the Romberg Test. [] If the officer answers yes to any of the above questions, then ask him if he is comfortable discussing: anatomy of the ear; static equilibrium; dynamic equilibrium; etc. [] DYNAMIC EQUILIBRIUM of the EAR causes everyone to sway to some degree? [] A certain amount of OCULAR OCILLATION is normal in everyone? FIELD SOBRIETY TRAINING & CERTIFICATION: Practice Tip: Ask these questions only if you have a reason to believe the cop is not qualified to administer the Field Sobriety Test. PURPOSE: To show that the officer is not qualified to administer the FST s. Page 17 of 35 Pages

18 [] FST training? (16 hours required) [] FST Certified? [] SHOW ME your Standardized Field Sobriety Test Certificate (It is required by Ala.Dept Of Forensic Sciences, Chap ) (Note: only approves the 3-standard tests approved by NHTSA). [] Is your FST card Current? [] FST Certification Expires: [] Where did you receive your FST training? [] When did you graduate? [] No Doctors trained you on FST s? [] They were peace officers by training? ( to show the jury the training was biased) NHTSA MANUAL None of The FST s Are 100% Reliable: [] NHTSA Manual used in training? [] FST training already testified to? [] FST's are not 100% reliable? [] Only 3-valid FST's, Right? (Source: (3) Field Sobriety Screening Tests and NHTSA Manual) (NOTE: NHTSA Manual lists percentage of reliability for each test) 1. HGN test (only 77% reliable) 2. Walk and Turn test (only 68% reliable) 3. One leg stand test (only 65% reliable) OBJECT to HGN results and any other FST's that are not ADFS & NHTSA approved. Page 18 of 35 Pages

19 THE HGN IS INADMISSIBLE: The HGN is inadmissible for the purpose of determining that the Defendant was intoxicated. ミ Object if prosecutor fails to lay proper foundation. Ex parte Sides, 574 So.2d 859 (Ala.1990) Ex Parte Malone, 575 So.2d 106 (Ala. 1990) Johnson v. State, 591 So.2d 580 (Ala.Crim.App. 1991) Desselle v. State, 596 So.2d 602 (Ala.Crim.App. 1991) Cumbie v. City of Montgomery, 703 So.2d 423 (Ala.Crim.App. 1997) NOTE: If the judge allows the cop to discuss the HGN results or any other FST s not expressly approved in the NHTSA Manual, see the questions below. CONDITIONS AT THE SCENE: PURPOSE: To show that the conditions did not comport with NHTSA guidelines. [] Test on FLAT GROUND? [] Dusk or dark outside? [] Flashing Lights of patrol car? [] Headlights flashing? [] Side-Markers flashing? [] Lights of on-coming traffic? [] Other people present? [] How many vehicles passed while you had my client on side of the road? [] Passing vehicles created buffeting winds or wind waves? [] These tests were performed on the side of the road, correct? [] Gravel and debris on the side of the road? [] You do not know the last time the road was swept before my client was performing these tests for you? [] My client had to balance on that gravel and/or debris? [] Your emergency lights still on while my client was doing the test? [] Your lights were rotating and bouncing off the trees, street signs, vehicles, road surface, etc.? Page 19 of 35 Pages

20 [] And you could see your emergency lights bouncing off the things in the area? [] My client was facing your vehicle while doing the test? NO PRACTICE BEFORE THE TESTS: [] You did not allow my client to practice the tests before you began evaluating him/ her? [] Some people have difficulty with balance even with nothing to drink? [] YOU decide if client passes or fails FST s?! [] PASS or FAIL is up to you alone? WALK AND TURN (WAT): (only 68% reliable as per NHTSA Manual) [] Was there an actual straight line on the surface of the road for my client to walk or did you have him or her to just imagine one? [] Which of the three clues did Client exhibit? Three (3) Clues: [] Steps off the line three or more times; [] Is in danger of falling; [] Cannot do the test [] The subject MUST exhibit two or more clues, or cannot complete the test, to conclude that the suspect s BAC is likely to be above legal limit? [] The WAT Test is only 68% reliable as per NHTSA Manual? ONE-LEG STAND (OLS): (only 65% reliable as per NHTSA Manual) [] Which of the four clues did Client exhibit? Four (4) Clues: [] Sways while balancing; [] Uses arms to balance; [] Hops; [] Puts foot down Page 20 of 35 Pages

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