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. Once you have exposed the witness as a liar, a charlatan or just as an idiot in general, there’s no rehabilitating that witness’s testimony. This is especially true of an arresting officer in a DWI trial.

Anyone can effectively cross examine an arresting officer in a DWI trial. Period. It takes no special skill or talent. Cross examining an arresting officer in a DWI case effectively trial takes two things:

Number (1) is preparation. You must know your case inside and out in order to properly cross examine.

A. 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 inside out 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.

B. Review the video. You have to review the video to for two reason: the first is to see if your client is intoxicated to the degree the officer claims in the report. Often times, 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 exaggerating what is on the tape, the jury will look with a jaundice 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, its probably time to look at pre-trial 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. This is especially true for the horizontal gaze nystagmus test. I’ve included a chart below to show the time the officer should take.

C. 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.

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

E. File pre-trial motions that limit the officer’s testimony and control what he’s able to talk about. I have a couple attached to this paper for you to use and revise as you wish. Portable breath test, judicial notice of nystagmus, motion to exclude HGN test, Request for 705 Hearing, Motion in Limine, Requested Jury Instructions.

Secondly, to cross examine effectively you must have a willingness to be confrontational. Remember, ours is a confrontational business. It is accusatorial by nature. Our job is to protect our clients from the unscrupulous men and women who are willing to walk into court and lie to get their way. Our job is to expose these men and women 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 call the witness a “lying sack of shit.” What I am suggesting is that you have to be willing to get in the witness’s face and force him or her to remember the truth. More on this later.

Develop Your Own Style

Cross-examination is

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 practice, 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 “no’s” from the witness.” Keep this in mind. Cross examination is not a chance for the witness to explain anything. It’s not a chance for you to satisfy your curiosity or conduct discovery. 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.

To cross examine effectively and get what you need you have to control the witness. Controlling a witness means this: 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 police officers because the lawyer just didn’t control the witness. I believe the lawyers were pulled into the water because they were not prepared.

A. Control Starts With Locking the Officer into One Story

The first thing I do 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 script off that report. Anything the officer says that’s not in the report is going to be bad for me. My first step then is to force him to 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 report?

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 Billy Joe Bob?

Q: Because if it was important enough for you to consider in arresting Billy Joe Bob, 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 Billy Joe Bob?

Q: Do you remember the name of the name of the person you arrested after Bill Joe Bob?

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 you report?

Q: To date, you have not remembered an 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. The reason that I start this way is that I never ask an officer questions like, “My client did not do (insert bad deed here)?”

Instead, almost all of my questions start with, “Your report does not indicate (insert good fact here)?” The reason you do this is that I want to eliminate the entire world of possibilities outside of the report. I want the officer to only testify about the facts that are either in or not in his report. If you allow the officer to testify about something that is not in his report, you may very well lose control of the officer’s testimony. 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.

B: 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 DVD’s of his administration of the field sobriety tests in real world settings and submit them for review. To become an instructor you have to attend numerous additional classed and have a certain number years of experience. Remember this, the huge majority of officer 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 video tapes 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.

C: 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 clients should be getting his stomach bumped, 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 and the stacks of written material, most police officer do not do the tests correctly. This is especially true of the Horizontal Gaze Nystagmus Test (HGN Test). More on this later in the paper

Step One in DWI Detection: The Vehicle in Motion

The first part is the vehicle in motion. Typically a DWI defendant will be stopped for speeding, failure to stop 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 Billy Joe Bob for speeding?

Q: Your report says nothing about Billy Joe Bob swearing?

Q: Your report says nothing about Billy Joe Bob weaving?

Q: Your report says nothing about Billy Joe Bob’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 Billy Joe Bob 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. Reports very seldom mention anything bad in this area. So 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 Billy Joe Bob taking too long to pull over?

Q: Your report says nothing about Billy Joe Bob swerving quickly to pull over?

Q: Your report says nothing about Billy Joe Bob failing putting on his blinker?

Q: Your report says nothing about Billy Joe Bob parking his car illegally on the side of the road?

Q: In other words, Billy Joe Bob responded to your overheads lights safely, properly and lawfully?

The point of asking the officer about all the things the report does not say, is to show the jury just how many different ways a person can be judged intoxicated. I want the jury to understand that the universe of signs 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 on man’s opinion, and that opinion is unsound.

“Strong Odor of Alcohol Emitting from His Breath.”

The next issue to deal during the second phase of DWI detection is the ubiquitous “strong smell of alcohol emitting from his breath” statement found in all DWI police 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 Bill Joe Bob, you approached his vehicle.

Q: You said you smelled a strong odor of alcohol on Billy Joe Bob’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 can not 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

Also in phase two of DWI detection is what are called divided attention questions. This is where the officer will ask your client to produce his driver’s license and insurance. And while 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: 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 seemed 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 Billy Joe Bob having trouble finding his driver’s license?

Q: Your report says nothing about Billy Joe Bob having trouble locating his insurance?

Q: Your report says nothing about Billy Joe Bob 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 to me is the most important part of the whole process. 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 camera’s available?

Q: You did not call another officer to come over and record you’re giving the field sobriety tests?

Q: Not only were other officer’s on the street with camera’s, 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 Billy Joe Bob into the police department compound?

Q: There is a camera outside the door where you brought Billy Joe Bob in to be booked?

Q: There is a camera in the booking area where you took Billy Joe Bob to be fingerprinted and photographed?

Q: There is a camera inside the intoxilyzer room where you took Billy Joe Bob and read him his Miranda warnings?

Q: There is a camera inside the cell where you put Billy Joe Bob?

Q: The point is, there were at least seven different working camera that night where you could have provided this jury a video tape?

Q: And you have can’t provide a single video tape 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: first, 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 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. In a 49 page opinion the Court detailed the history of the field sobriety tests as well as the accuracy of those tests. It should be noted that the Horn Court specifically included a detailed analysis of Emerson v. State¹, 880 S.W.2d 759 (Tex.Crim.App.1994) and a Court’s ability to take judicial notice of facts which are not readily disputable, and the veracity of which can be easily determined. The Horn Court held that there also are many other causes of nystagmus that are 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 a myriad of issues completely unrelated to alcohol and all benign.

I ask the Court to instruct the jury as follows:

“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 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 nystagmus and nystagmus caused by caffeine?

Q: In other words, you have no ability to distinguish between acute alcohol nystagmus and nystagmus caused by other completely legal sources?

Q: Based on you 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 which was taught by other police officers?

At this point I feel like I have neutralized this 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 and he only received training from other police officers.

Next, assuming there is a video, I move into the administration of the field sobriety tests. The following time constraints are given to officer for administering the test. 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 on standard for 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, its 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?

At this point I move into the following chart and show that the trooper did not give the test according to standards. Once you’ve show that the test has not been administered according to NHTSA standards I ask the following questions:

Q: Officer, you agreed with me a little bit ago that if you gave the test incorrectly the jury should not rely on your conclusions of the test?

Q: I was just able to show you that you did not give this test in accordance with NHTSA standards?

Q: So the jury should not rely on your conclusions with the HGN test should they?

The manual provides the following time constraints for the test:

	Right Eye-Time	Left Eye-Time
Lack of Smooth Pursuit	Approximately 2 seconds out and back-Repeat	Approximately 2 seconds out and back-Repeat
Distinct and Sustained Nystagmus at Maximum Deviation	Hold at maximum deviation for a minimum of 4 seconds-Repeat	Hold at maximum deviation for a minimum of 4 seconds-Repeat
Onset of Nystagmus Prior to 45 Degrees	Hold for 4 seconds -Repeat2	Hold for 4 seconds-Repeat

Total Hold Times

20 seconds

20 seconds

See U.S. Department of Transportation, DWI Detection and Standardized Field Sobriety Testing, Student Manual, February 2006 Edition, VIII-7 (hereinafter The Manual).

For the walk and turn and the one leg stand, I do not have a set protocol of questions that I used. 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 not matter how the officer tries to justify what the report says, if the tape does not back it up, that’s ball game.

Tips for Getting the Witness to Answer a Question

There are times when you get the officer on the stand, you ask a straightforward question, and you get an evasive response that has nothing to do with the question you asked. I recently had a suppression hearing where I asked a very experience McAllen Police Officer if he administered the tests in accordance with NHTSA standards. His response was, “I did them the way I was trained.” At that point, he knows where I’m going, and I know he does not want to be taken there. But this is where you have to be confrontational. Whenever I get a non-responsive response, I ask the question again using one of the following methods:

Q: Officer, I appreciate your response but you didn’t answer my questions?

Repeat the questions.

If you receive a second non-responsive response I tell them

Q: That’s not what I asked you, let’s try it again.

Repeat question.

If I get another non responsive responses I usually ask something like this:

Q: Officer, you heard my question correct?

Q. You had no problems answer the prosecutor’s questions did you?

Q: So when I ask you a simple, straightforward question and you refuse to provide me a straightforward answer, it’s you’re doing your intentionally trying to mislead this jury?

Other times if I get a witness who does not what to answer a pivotal question I ask something like the following:

Q: Officer, you have nothing to hide from this jury?

Q: You’re not ashamed of the arrest you made?

Q: You don’t believe you violated any law in making the arrest do you?

Q: With that in mind, let me ask my question again.

But my favorite way to do it is to simply ask the question again and again, asking it a little slower each time. By about the fourth time you ask the question, doing it so slowly that you may was well be talking to a child, he’ll get the point.

Q. Did you give the test according to NHTSA standards?

A: I did it how I was trained.

Q: Thank you for that response but its not what I asked you. (More slowly) Did you give the tests according to NHTSA standards.

A: (answering more slowly) I did them how I was trained.

Q: I appreciate your response but that not what I asked. (Even more slowly)

Did. You. Give. The. Test. According. To. NHTSA. Standards?

A: (brief pause) I don’t know.