1

KNOW THE RULES

The rules of evidence and recent appellate court opinions are the fundamental building blocks for all field sobriety drills. Traditionally the trend is to allow FST dexterity test to be admissible over objection. HGN and PBT testing is based in science and require more scrutiny. The unwritten rules of evidence also require consideration. (i.e. RULES OF ETIQUETT, RULES OF LIFE, and REALITY OF COURTROOM) READY, FIRE, AIM does this appropriately describe someone you know? Lawyers who routinely argue motions, attend administrative hearings or try multiple cases each year invariably fall into a rut. What happens when something unexpected occurs? Can we be flexible to adapt to a new wrinkle? Going through drills will help prepare for the unexpected.

2

PRACTICE WITH A GOAL IN MIND

Each drill utilized in sports is geared towards one specific aspect of the ultimate goal, convincing a jury that you are credible. Drills are often viewed as boring and mundane. The goal of a drill in athletics is to create muscle memory and improve technique. The practice of law obviously does not require muscle memory, however memory retention and timing does play an important role. When attending an administrative hearing the attorney must focus on testimony that will become the foundation at trial. The focus must not only be on the issue of preserving driving privileges. Issues such as the admissibility of the HGN test or the preliminary breath screening device can be explored with the view that the arresting officer will be bound to repeat this at trial verbatim or face the possibility of being inconsistent. A key to foundational testimony is that the attorney must know exactly what the law requires and to formulate strategy in a way that will result in the exclusion of the testim

3

CLOCK MANAGEMENT

In the courtroom 99.9% of the sequence of events can be predicted. Anticipation of these events and pretrial preparation will provide a comfort zone and give the appearance of control. Mastering the sequence of events will allow the attorney to add twists and nuances that will demonstrate control over all phases of the trial. Being conscious of what the jury wants to hear and the theme that you advance can also demonstrate control of the courtroom.

4

SCRIMMAGE

The opportunities to practice in sports drills are endless. In the courtroom practice comes at a price. It goes without saying that most folks hiring a lawyer are not happy. The client certainly does not want to be a guinea pig. In most pre-trial hearings the result is predictable. In the administrative suspension context the result will often determine whether or not the client will maintain driving privileges. In order to maximize your effort it is key to be realistic in your approach. In many jurisdictions losing the battle to win the war is a sound approach.

5

EQUIPMENT FOR THE DRILLS

To prepare for drills or to become re-acquainted with the trial of a DUI case there should be required reading. In my library I keep current the following publications: DRUNK DRIVING DEFENSE by Taylor and Oberman (published by ASPEN) and DRINKING AND DRIVING LITIGATION , SECOND EDITION by Nichols and Whited. (published by WEST GROUP) To prepare for cross examination there is but one book: CROSS-EXAMINATION: SCIENCE AND TECHNIQUES , by Larry S. Pozner and Roger J. Dodd (published by MICHIE) Evidence flash cards can be purchased through any book store that supplies a law school. Audio tapes from NACDL and materials are available online at www.nacdltapes.com For developing themes and strategy I recommend MASTER ADVOCATES' HANDBOOK, by D. Lake Rumsey, (published by National Institute for Trial Advocacy) and TRIAL WEAPONS (published by Compendium Press) For evidentiary rulings and objections: EVIDENTIARY FOUNDATIONS, by IMWINKELRIED, ( published by MICHIE) Also obtain State sp

6

THE WEIGHT ROOM

Everyone appreciates the honest truth unless it's about them, then it becomes criticism. How many of us will readily admit that we are out of shape physically or mentally regarding certain aspects of trial? To get in shape athletes will begin prior to attending camp. Read, read, readaEUR?.read some more. The above referenced literature will provide our foundation to improving our techniques. Take a weekend off away from the office and review your current method for approaching a trial. A good exercise is to write an outline showing your current method of trial preparation. Once the outline is on paper, take a moment to reflect on your strengths and weaknesses. Next, take the time to dissect each area and attempt to add to each area twofold. Then take the opportunity to prepare a trial notebook.

7

COMPILING THE PLAYBOOK

The trial notebook has replaced the days of the light tan folder with the legal pad with yellow paper. A trial notebook creates order in times where chaos can appear at any time. A trial notebook allows the following: o Plan all aspects of your case so you hit every important point o Organize your case from opening to closing o Materially reduce your trial preparation time o Assemble any case at low cost o Keep each document at your fingertips o Keep opposing counsel on the defensive o Earn the respect of the court with your organization and readiness The trial notebook will also contain check lists for those senior moments. One advantage to preparing a trial notebook is that you can add material as you see fit. Attending seminars and culling the relevant material to your practice is often helpful. Your notebook should be organized according to the stages of a trial with special sections dedicated to areas such as HGN, WAT and the OLS.

8

VOIR DIRE DRILLS

A. locate the two most recent (favorable) cases in your jurisdiction regarding juror rehabilitation by the court or government B. prepare an introduction that significantly differs from the government C. memorize the names of the panel (memory drills at the office will help) D. have a prepared response for the expected bad answers When dealing with the issues of field sobriety voir dire is a good place to start. Consider mentioning the important facts that tend to show how a majority of the FST tests are failure oriented. Examples of this are that a person is not allowed to use arms naturally for balance. The method of evaluating performance is also fertile ground.

9

OPENING STATEMENT DRILLS

A. What will you say in closing B. Work backward to create your theme C. How does the law impact your case D. Memorize the final two minutes of your closing

10

OBJECTION DRILLS

A. Invest in evidence flash cards B. Obtain the most recent favorable decision on hearsay C. Prepare a brief argument for your objection D. Add some color to your objection -- don't be boring In most jurisdictions the trial court is bound to allow the results of FST testing into evidence. The single exceptions may go to the admissibility of the HGN or the preliminary breath testing device due to the fact that each is scientific in nature. An outline or brief contained in the trial notebook will be handy at the appropriate time.

11

CROSS DRILLS

A. Roger Dodd Book B. Roger Dodd Audio Tape C. Roger Dodd video D. With the page method prepare cross of general topics Preparing for cross will pay dividends if approached correctly. FST testimony will often occur where the arresting officer takes the stand and merely recites procedure and gives his conclusions. Be realistic in that the arresting officer is not likely to change his position regarding the conclusions. One strategy is to attempt to minimize the testimony by showing the lack of training, flawed research and poor conditions.

12

JURY INSTRUCTION DRILLS

A. Form B. Defenses C. Blocking the law D. Be novel A majority of jurisdictions have allowed the trial court to charge the jury on reliability of FST testing with specific emphasis on the HGN testimony. Appellate decisions are often parsed and submitted by the government in support of HGN testimony. This often results in a "weighted" jury instruction that is unbalanced and potentially becomes burden shifting. It is good practice to prepare a jury charge that contains the anticipated language but softens the charge by stating that the evidence is subject to being rebutted.

13

ARGUMENT DRILLS

A. Hail Mary B. Ball Control C. Onside kick D. Do something unexpected The use of exhibits can be powerful at this stage regarding FST. There are many exhibits that can be purchased through NCDD regarding FST. Each exhibit is a powerful medium for combating each individual test that was administered. Be careful not to focus too much on the issue of FST in your argument so that you do not provide credibility to the government's case.