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Cross-Examination of the Arresting Officer

February 13, 2008

If there's a single item that can be said to be critical in the trial of an alcohol related operating offense, it is the cross-examination of the arresting officer. While good cross-examination may not necessarily mean an acquittal, bad cross-examination will almost certainly guarantee a conviction.

How then does one set out to cross-examine this pivotal witness?

Good cross-examination of the arresting officer begins far in advance of the trial. It originates with the filing of discovery demands and pre-trial motions. With the increased statewide use of more detailed field sobriety test forms, paper discovery can now go a good deal further in advising counsel about the manner in which the defendant performed his or her field sobriety tests. Forms commonly used by municipal police departments often include a diagram or chart of a face to demonstrate the motorist's level of performance on the finger to nose examination. Likewise, such forms often include a chart of the nine step walk and turn and "one leg raise." Counsel's initial role in reviewing these documents is not so much to see where your client failed, but where he or she adequately complied with the officer's requests. In other words, although we know that your client "failed" the finger to nose examination, by how much did he or she fail? The beauty of the roadside sobriety tests is that they are so incredibly subjective. While we hope to be reviewing their reliability in the near future, we should all recognize that "failing" is in the eye of the beholder. Lay persons, such as jurors will not only be impressed by the fact that your client touched a spot between the tip of the nose and the right nostril, they will see such performance as quite good.

Ditto for the line walk and one leg stand. Here the "I couldn't do that if I was sober" factor really begins to set in. Defense counsel, armed with the discovery material should therefore be prepared to make full use of this principle and emphasize the positive, or those items of his or her client's performance that speaks to the motorist's sobriety. Here, one's outlook can truly mean everything. It's a little like the old saw about the difference between the optimist and the pessimist. You know, the optimist sees the glass as half full and the pessimist sees it as half empty. Exactly the same considerations apply in preparing to cross-examine the arresting officer. Whereas the prosecution will view a touch on the right nostril as a failure, defense counsel should literally praise such performance for its exactitude.

The problem with repeatedly trying these cases is that we tend to get set in our ways and save for "the next trial" that novel or different attack. I believe its Tommy Kirk, a well known DWI defense lawyer in Florida who has a Styrofoam wig stand -- the kind that is shaped like a human head and has the topography of a face -- and has the arresting officer place colored push pins for the right and left index fingers. He then has the officer attempt to identify the tip of the wig stand's nose. After several noticeable disagreements as to exactly where the tip of the nose is located, he has the officer measure the distance from the mutually agreed "tip" to the point where the pin was placed using a metric ruler. He will then get the officer to concede that the motorist touched a point 4 millimeters from the desired point. When defense counsel develops the results of this portion of the test in this fashion, his or her conclusion that the motorist "passed" is far more likely to be accepted than the officers bare conclusion, often given with no rationale or support, that the motorist failed.

A second opportunity afforded by this exercise is that oftentimes the arresting officer will not specify what he or she means by the term "tip." In the event that the officer did point to his or her tip, the argument can be made that he or she did so quickly, without adequate lighting, and may have, himself, been a millimeter or two off center.

The nine-step walk and turn presents similar opportunities. One method I've seen suggested is to have the arresting officer lay out a masking tape line for the line which he requested the motorist to walk. Thereafter, he or she is given eighteen cardboard colored feet to place along the line in roughly the same place as your client placed his or her feet. The officer is then asked if the motorist hesitated between steps or raised his or her arms and if so, where. Thereafter, if hesitation or arm raising was minor, ask the officer to walk "in the defendant's steps." You'll be amazed how good the results will look when presented in such a light. If the officer testifies that the motorist hesitated or raised his or her arms, then you should simply walk in the steps your self, leading into your question with "then, at the time you administered the nine-step walk and turn the defendant placed his feet as follows." If the performance is reasonably good, you can then ask the officer to measure the distance from the line to each misplaced step, this time in inches. Adding up the individual measurements will permit you to argue that the sum total of your client's error was a mere 10 inches over fifteen feet. Percentages work well here. In the preceding example the measure of the defendant's error was a mere .055%. A side benefit of all this is that during such an exercise you will note that the arresting officer will frequently declare "I can't remember exactly" or "somewhere around here" which opens the door on closing argument for counsel to argue that not even the arresting officer is really sure as to how the motorist performed.

Oftentimes these tests will be conducted in an area created between the patrol car and the suspect's vehicle. Half of the time the motorist will be facing a barrage of light and during the remainder the area will be dimly lit or not lit at all. Moreover, there remains the unsettling effect created by the flashing lights and fear. Even embarrassment on the part of a motorist being asked to perform these tests on a busy highway factors in. During the winter months, draw an analogy between such exercises and skiing directly beneath a ski lift.

Motions likewise play an essential role. A key focus of these applications must be a request for a hearing to determine the existence of reasonable suspicion for the stop, probable cause for the arrest, as well as the voluntariness of statements allegedly made. If ordered, these hearings will permit counsel to explore such diverse issues as the manner in which the vehicle was operated, observations made at the point of the arrest and the circumstances under which admissions were made. Even if you believe you have a firm handle on the facts, a hearing is nonetheless necessary. The sworn testimony generated upon a hearing to suppress will memorialize the officer's testimony and enable defense counsel to forcefully impeach in the event that the testimony at trial is somehow changed.

Does this mean that testimony at the hearings and trial should be identical? Yes and no. Yes, insofar as counsel, at the hearing, was able to minimize the import of the officer's observations, and no, to the extent that counsel should rarely, if at all impeach the arresting officer at a pre-trial hearing.

With the foregoing having been said, how should one cross-examine the arresting officer? The key to this answer lies deep within the workings of the human mind. Human beings have a natural affinity for percentages. The human mind is constantly assessing new data by forming mathematical comparisons with what has come before. Think about it. When you were a child, it seemed as though it was forever between birthdays. As we grow older the years seem to grow shorter. Why? Because as a child the period between birthdays was fifteen or twenty percent of your life. As we age that figure becomes infinitesimal. Similar forces are at work in the trial of alcohol related operating offenses. In the usual situation the arresting officer will say that your client touched the bridge of her nose, swayed as she stood, missed her heel on the walk and turn and missed several letters on the ABC's. Left untouched, the jury will view this as 'four for four' and your client will lose. The mistake many make at this point is to somehow believe that the arresting officer may be shaken from his or her earlier testimony. Such efforts will generally have the effect of simply reaffirming everything the officer said on direct.

A much more effective technique is to use percentages to your client's advantage. Break each and every test into as many component parts as possible, while emphasizing the degree of success your client achieved when viewed as a whole.

The Romberg examination is simply an exercise where the motorist is instructed to stand straight, place his or her feet together, the arms at the side and tilt his or her head back while estimating the passage of thirty seconds. In the usual situation the arresting officer will report that the motorist failed inasmuch as he or she swayed. Using the component technique, cross-examination would be as follows:

Q. Officer, would you describe to the best of your ability the precise set of instructions you gave Dana when you started this exercise?


[Two points here. First, it is an exercise, not a test or an examination. Second, counsel must endeavor to get a complete set of instructions for reasons that follow.]


A. First, I told the suspect to stand straight with the feet together and the arms down at the sides. I then told her to maintain that position, emphasizing that the test should not be performed until I said "begin." I then asked her if she understood and explained how I wanted her to tilt her head back and close the eyes until she thinks 30 seconds have transpired. I then said begin.


Q. All right. So you told Dana to stand straight?


A. Yes.


Q. And she did.


A. Correct.


Q. Put her feet together?


A. Yes.


Q. And she did?


A. Yes.


Q. You then told her to put her arms at her side?


A. Yes.


Q. You told her not to begin, correct?


A. That's correct.


Q. And she didn't?


A. She did not.


Q. You told her to put her head back?


A. I did.


QQ. And she did?


A. She did.


Q. Close her eyes?


A. Yes.


Q. She closed them?


A. She did.


Q. Mentally count?


A. Yes.


Q. And she did?


A. Not for thirty seconds.


Q. That was not my question. You asked her to mentally count and to the best of your knowledge she did?


A. She did.


Q. You asked her to do seven things?


A. Well, yes.


Q. And she did each.


A. Yes, except that she only counted to twenty seconds and swayed.


Q. Please answer my question. She did everything that you asked her to do?


Q. Put that way, yes, she did.


Q. You mentally counted as well?


A. Correct.


Q. . . . And assumed that your mental count was correct.


A. Well, yes.


Q. Now you said she swayed.


A. Yes, she did.


Q. There was no instruction about swaying, was there?


A. No.


Q. And you never told her not to sway did you?


A. Ah, no.


Q. . . . Or told her to stop?


A. No.


Q. And she didn't stumble?


A. No.

Q. Fall?


A. No.


Q. Or require support?


Q. She did not.


Bias should not be ignored. Those of us who frequently represent clients charged with alcohol influenced operating offenses are acutely aware that with near absolute certainty the results of the field sobriety tests will have little or nothing to do with the officer's decision to arrest. Jurors, however, are not so attuned. Here, don't overlook the form of your questions. Loftus[i] notes that "changing even one word in a single question can systematically alter an eyewitness account." Words that belie the fact that the officer was simply engaged in "standard operating practice" go far to defuse his or her conclusions. One way this can be accomplished is through the use of words such as "frequently," "regularly" or "repeatedly." Witness the following:

Q. Now officer, you stopped Mary Motorist after you observed her right front tire cross the fog line, correct?


A. That's right.


Q. You regularly work 9:00 p.m. to 6:00 a.m.


A. I do.


Q. And you frequently pull over vehicles for crossing the fog line, don't you?


A. Well, yes.


* * *


Q. And you testified that she had some difficulty producing her license?


A. I did.


Q. And you considered this, in your opinion, to indicate that she was intoxicated?


A. I did.


Q. And you frequently include this in reaching your opinion don't you?


A. I do.


Q. So you asked her to do some exercises?


A. I did.


Q. And you regularly ask people to do these exercises, don't you?


A. Yes.


Q. . . . which you always use when you conclude that a person is intoxicated.


A. Yes.


Q And most people who do these exercises fail, don't they?


A. Most do, yes.


Q. And you therefore conclude that they should not be driving, don't you?


A. I do.


Q. Even though in our case all you observed was one tire crossing the fog line.


While the foregoing is only an illustration, it is indicative of the methodology counsel should follow. First get the officer to define exactly what the motorist was asked to do. Then dissect those identical instructions into as many parts as possible and through the use of tightly structured cross-examination, demonstrate the rather high degree of success that the motorist attained.

Prosecutors, of course, are not without recourse here. Much of the successful cross-examination of the arresting officer feeds on the fact that much of the People's proof starts and stops with the word "failed." The prosecutor who blithely assumes that because the arresting or administering officer reports that the defendant failed, this conclusion will be blindly accepted by the jury, is making a big mistake. Prosecutors must elicit the details of why the arresting officer came to such a conclusion. He or she should elicit, on direct, the officer's training and skill, but more importantly how his or her training has enabled him or her to draw such a conclusion. Statements such as "individuals who have consumed alcoholic beverages in excess frequently exhibit a loss of fine motor control, thus the fact that the defendant missed by even a slight amount is important in making my determination," go far here.

.E. Loftus, Ph.D., Reconstructing Memory: The Incredible Witness, 8 Psychology Today 1 at 116 (1974).

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