Written by attorney Johnathan Tracy Ball

Cross Examining the Arresting Officer in a DWI Case

Finding the Good News in the Arresting Officer's Report: How to Cross Examine the Arresting Officer in a DWI Trial By Johnathan Ball 605 E. Violet, Suite 3 McAllen, Texas 78504 Phone: 956-501-6565 Fax: 956-682-1211 [email protected] 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. There is much more to this article. Contact me for the rest of it.

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