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Cross-Examining the Arresting Officer - Part I

February 13, 2008

By our calendar, it has been about four years since the topic of cross-examination has broached these pages. With all do respect to our Court and Law Enforcement subscribers, we felt that our return to this area was a little overdue. The art of successful cross-examination, in an alcohol influenced operating offense, frequently requires the examiner to accentuate the positive while utterly ignoring the negative. Further, to succeed, you cannot attempt Pickett's Charge, in which you plunge head-long into the arms of a waiting adversary. Illinois attorney and former Dean of the National College for DUI Defense, Lawrence Taylor, points out in his book, Drunk Driving Defense, that cross-examination is most successful when viewed in terms of judo. You do not rely exclusively upon your own strength, you redirect the strength of your opponent. In military terms it is viewed as an oblique maneuver. You strike at an angle and use the position of the enemy as a shield. Think about it. In all but the worst cases, the defendant probably did many things right. Without being facetious, she got out of the car, right? Not only did she get out of the car, she got out when requested, in a normal amount of time and in a normal manner. After she was out, she stood where the officer directed her to stand. The trick here is to look at the sum of your client's activities that evening and stress over and over again all that he or she did correctly.


What follows is a transcript of the cross-examination of the arresting officer in a trial we recently did. The case was particularly bad. It was a refusal and although the circumstances were somewhat unclear, the best reason made for the presence of the police officers was a noisy brawl, at a party, largely attended by underaged drinkers. Our client admitted to consuming five beers, failed the alphabet test, the finger to nose test and the nine-step walk and turn. After the arrest, he repeatedly smashed his head into a holding cell wall, threatened suicide and ultimately was held for a mental examination. The following transcript has been edited for purposes of publication herein.

 

 

CROSS‑EXAMINATION

BY MR. FIANDACH:

 

Q Now, officer, this took place approximately two years ago?

 

A Yes.

 

Q Okay. I am sure that ‑ ‑ and People's Exhibit Number 2, the report of refusal to submit to a chemical test, you filled that out on the evening that this event occurred?

 

A Yes.

 

Q It is possible to say that your memory of the event was a little bit clearer then than it was months after it happened? That it is two years later.

 

A Yes.

 

Q You do agree that you signed this report of refusal to submit to a chemical test under penalty of perjury?

 

A Yes.

 

Q You made every effort to fill that report form out correctly?

 

A Yes.

 

Q And showing you what has been marked as ‑ ‑ well, showing you what is in evidence as People's Exhibit Number 2. I call your attention to the area marked time of refusal. It states 2:45, does it not?

 

A Yes.

 

Q It does not indicate that the refusal was at 2:52, does it?

 


[The entire purpose of this was to grab the attention of the jury as well as to unsettle the officer, it really meant nothing in terms of the case.]

 

A No.

 

Q And you affirmed this under penalty of perjury?

 

A That is correct.

 

Q Now, when you first observed the vehicle it was pulled up to the loud party?

 

A Yes.

 

Q And you said that several individuals immediately got out of the car, correct?

 

A Yes.

 

Q Do you recall how many individuals got out of the car?

 

A No, I don't.

 

Q Do you recall what door they got out of the car with?

 

A No.

 

Q And did you observe where the individuals were seated prior to the time that they all got out of the car?

 

A No, I did not.

 

Q You don't know how many individuals got out of the car?

 

A No, I do not.

 

Q So, just to make sure that I am clear on this, you don't know how many individuals got out of the car and you don't know where they were seated in the car immediately prior to getting out?

 

A That's correct.

 

Q This vehicle is a four passenger vehicle?

 

A A sport utility vehicle. I'm not sure how many people it holds.

 

Q You can't rule out the fact that one of the people that got out of the car was seated behind the wheel, could you?


A Yes, I can.

 

Q But you don't know where these individuals were seated prior to the time that they got of the car. That was just your testimony.

 

A Yes.

 

Q Okay. So, I'll ask you again, if you don't know where they were seated before they got out of the car you can't rule out the fact that one of them could have been seated behind the wheel?

 

A That's correct.

 

Q The bottle of beer, you said that you observed the bottle of beer in the center console?

 

A Yes.

 

Q You did fill out a report of the events of this evening, correct?

 

A That is correct.

 

Q And in that report you said that the bottle of beer was on the floor, did you not?

 

A Yes.

 

Q For that matter, you don't know whether the bottle of beer was opened, do you?

 

A No.

 

Q And even if it was opened, you can't say who was consuming the contents can you?

 

A No.

 

Q It would be pure speculation on your part that the Defendant consumed that beer?

 

A That is correct.

 

Q You asked the Defendant to give you his documents?

 

A Yes.

 

Q And I am assuming that consisted of his license, registration and insurance card?

 

A That is correct.

 


Q And he identified all of those documents, correct?

 

A As far as I know, yes.

 

Q He handed you these documents properly and in the proper amount of time, correct?

 

A That is correct.

 

Q There was nothing in the manner in which these documents were produced that sticks out in your mind?

 

A No.

 

Q Certainly nothing in the manner in which these documents were produced indicated to you that the Defendant was intoxicated?

 

A I'm sorry.

 

Q Certain nothing in the manner in which these documents were produced that indicated that The Defendant was intoxicated?

 

A That is correct.

 

Q The Assistant District Attorney asked you some questions about the Defendant thrashing and holding himself against the wall in the cell and banging his head. You didn't observe any of that behavior prior to the time that he was taken to the Police Department, did you?

 

A That's correct.

 

Q So, at the scene he was cooperative, was he not?

 

A Yes.

 

Q You asked him to do five field sobriety tests and he did submit to all those tests, did he not?

 

A Yes. That's correct.

 

Q And he appeared to understand all the instructions that you gave him at the scene?

 

A Yes.

 

Q And he certainly wasn't thrashing at the scene?

 


A That is correct.

 

Q He wasn't throwing himself on the ground?

 

A Correct.

 

Q He wasn't beating his head on any object or the vehicle?

 

A Correct.

 

Q All that took place after the arrest?

 

A Yes.

 

Q And you are an experienced police officer.

 

A Yes.

 

Q About ten years on the job?

 

A That is correct.

 

Q Are you familiar with the phenomena of post‑arrest depression, are you not?

 

A Yes, I am.

 

Q And you have seen people act in bizarre fashion after an arrest regardless of whether they are intoxicated or not?

 

A I have seen people act in a bizarre fashion prior to an arrest and after an arrest.

 

Q It clearly all happened after his arrest?

 

A That is correct.

 

Q And he certainly didn't have any alcohol between the time that you first encountered him and the time you placed him under arrest, did he?

 

A. That is correct.

 

Q The first field sobriety test that you asked him to do was an alphabet test?

 

A No.

 

Q Which one was it?


A The finger to nose test.

 

Q He understood your instructions?

 

A That is correct.

 

Q Where did you take him, to the rear of his vehicle?

 

A To the rear side, rear passenger side of his vehicle along side the road.

 

Q He walked normally to that area?

 

A. He swayed.

 

Q But you don't know that he doesn't normally sway, do you?

 

A That is correct.

 

Q At no time in the evening did he require any support?

 

A Not that I recall.

 

Q He never fell?

 

A No.

 

Q It wasn't necessary for you or another officer to keep him from falling?

 

A That is correct.

 

Q Prior to asking him to perform the finger to nose test, you gave him some instructions?

 

A Yes.

 

Q You asked him to stand with his feet together?

 

A Yes.

 

Q His head back?

 

A Yes.

 

Q Eyes closed?

 

A Yes. Correct.


Q To extend his arms?

 

A Yes.

 

Q To extend his index fingers?

 

A Yes.

 

Q And to touch the tip of his index finger to the tip of his nose, correct?

 

A That is correct.

 

Q Did he put his head back?

 

A Yes.

 

Q And you said he had a problem keeping his eyes closed?

 

A Yes.

 

Q. Did you ever ask him why?

 

A. No.

 

Q. So then any conclusions you may have drawn as a result of believing that he was peeking is pure speculation, is it not?

 

A. It is.

 

Q He did keep his feet together and he had his index fingers extended during that period of time, and he never fell?

 

A That is correct.

 

Q He never required to grab onto any object for support?

 

A That is correct.

 

Q And you weren't ‑ ‑ well, you are also concerned about his safety but you weren't concerned that he would fall, were you?

 

A No.

 

Q. Even when positioned like this [demonstrating].

 


A. No.

 

Q He touched his tip of his right finger right below his nose on the upper lip?

 

A That is correct.

 

Q And he touched the same point all four times?

 

A That's correct.

 

Q With the tip of his index finger?

 

A That is correct.

 

Q So, in terms of touching you have got over half the touching right. He used the tip of his index finger, but not the tip of the nose; is that correct?

 

A. Correct.

 

Q. While mainlining the precise physical position that you asked him to assume?

 

A. Correct.

 

Q. Which required him to remain stable on his feet?

 

A That is correct.

 

Q The next test you gave him is what?

 

A The alphabet test.

 

Q And he said A through X correctly, did he not?

 

A That is correct.

 

[Note, that although the Defendant continued with YMEZ, this is ignored in favor of the officer's declaration that he did A through X correctly.]

 

Q You didn't give him a counting test?

 

A No.

 

Q Was there a reason?

 

A I don't usually use that test.


[Don't overlook tests that appear on the form but are not given. Frequently, they can be used to create the inference that officer was less than thorough or that the Defendant might have passed.]

 

Q. But other members of your force do, don't they?

 

A. They do.

 

Q. And in fact the field sobriety test report [never call it an alcohol influence report form] has included on it a place to record the results of the counting test, doesn't it?

 

A. Yes.

 

Q. And as you sit here today, you cannot say under oath that the Defendant would have failed the counting test, can you?

 

A. No, I can't

 

Q You gave him a nine steps walk and turn test, did you not?

 

A Yes. That's correct

 

Q Do recall the instructions that you gave to him prior to that test?

 

A Yes, I do.

 

Q And could you give those to me.

 

A I asked him to stand straight and to walk heel to toe in a straight line, taking nine steps and to count out loud one through nine. To stop on the ninth step, turn to his right and walk back taking nine steps heel to toe, counting out loud one through nine and to keep his arms down to his side.

 

Q When you first arrived at this loud party call you said that there was arguing in the car. You don't know what the arguing was about, do you?

 

A That is correct.

 

Q You don't know who started it?

 

A No.

 

Q There certainly was nothing from that argument that in any way indicated to you that the Defendant was intoxicated, correct?

 


A That's correct.

 

[This last line was inserted solely to break up the officer's concentration on the portion that is to follow.]

 

Q You asked the Defendant to take nine steps out and nine steps back and he took nine steps out and nine steps back?

 

A That is correct.

 

Q That was the number that you requested him to take?

 

A Yes.

 

Q Did he at any time miss heel to toe?

 

A Yes.

 

Q Do you recall on how many occasions?

 

A Basically he didn't walk heel to toe.

 

Q But he never stepped off the line?

 

A No, he never stepped off the line.

 

Q So, he walked the requested nine steps out and nine steps back?

 

A Yes.

 

Q Do you recall how much he missed heel to toe by?

 

A No.

 

Q The parameters that you are trained under, I understand that the way you are trained, is a half an inch or greater?

 

A Yes.

 

Q All you could tell me under oath at this point in time is that he missed heel to toe by a half an inch?

 

A Yes.

 


Q You testified that he raised his arms. The parameters on raising the arms is by six inches or more?

 

A Yes.

 

Q All you could tell me is that he raised them at least six inches from the side of his body?

 

A Yes.

 

Q. Such as I'm doing [demonstrates].

 

A Yes.

 

Q You can't tell me that he raised them for more than six inches?

 

A That is correct.

 

Q The manner in which he walked the nine steps out and the nine steps back, we know that he stayed on the line?

 

A Yes.

 

Q He did the correct number of steps?

 

A Yes.

 

Q Thus to sum, all we know is that he walked on the line for the correct number of steps but that he may have missed heel to toe by at least a half inch on each occasion, and raised his arms on at least one occasion by no more than six inches, correct?

 

A Correct.

 

Q Now, the Assistant District Attorney asked you if he had any physical or cognitive difficulty which would limit his ability to perform the field sobriety tests. Do you recall that question?

 

A Yes.

 

Q You said that you asked him that question, correct?

 

A No.

 

Q You didn't ask him whether he had any physical or cognitive deficiency that would limit his ability to perform the field sobriety tests, did you?

 

A No.


Q What did you ask him?

 

A I asked him if he had anything physically wrong with him.

 

Q And you asked him this before you asked him to do the field sobriety tests?

 

A That is correct.

 

Q So, essentially, do you have anything that would keep you from doing the field sobriety tests, More or less?

 

A Yes.

 

Q You didn't tell him what the field sobriety tests that you were going to give him consisted of?

 

A That's correct.

 

Q You don't necessarily know that he knew what field sobriety tests you were going to give him?

 

A Yes.

 

Q And the correctness of that answer, if you will, would to some degree, would be dependent on whether he knew what tests were going to be given?

 

A Correct

 

Q The Defendant told you he had five to six beers?

 

A Yes.

 

Q He didn't tell you the time‑frame of those five or six beers?

 

A No.

 

Q This happened very early in the morning, did it not. Early in the morning, about 2:00?

 

A That is correct.

 

Q You don't know what time he started drinking, do you?

 

A That's correct.

 

Q You don't know what time he stopped drinking?


A Correct.

 

Q You have been trained in the manner in which alcohol is both absorbed and metabolized by the human body?

 

A Yes.

 

Q Time is a factor here, is it not?

 

A Yes.

 

Q In order for you to form a conclusion based upon his response that he had five or six beers that evening, you would have to know what time he started and what time he finished?

 

A That is correct.

 

Q Now, during the evening you had interfaced with him a lot and you asked him to do a lot of things?

 

[The following is based upon the fact that under People v. Cruz, the defendant must be both physically and mentally unable to operate a motor vehicle as a reasonable and prudent driver. It serves to underscore mental coherence.]

 

A Yes.

 

Q Each time you asked him to do something he appeared to understand what you asked him?

 

A That's correct.

 

Q You read him his warnings under Miranda versus Arizona?

 

A Yes.

 

Q There are five warnings and two waivers that follow?

 

A Yes.

 

Q He understood those warnings, correct?

 

A I believe so. Yes.

 

Q And, in fact, he invoked his right to remain silent?

 

A Yes.


Q And in other words, he refused to answer?

 

A Yes. He refused to answer.

 

Q He appeared to understand the warnings that you gave him, correct?

 

A Yes.

 

Q And he appeared to understand the instructions that you gave him that evening?

 

A Yes.

 

Q You never had any concern that he didn't understand what you were telling him?

 

A No, I did not.

 

Q And you filled out a prisoner data report that night?

 

A Yes.

 

Q You asked him approximately forty questions?

 

A That is correct.

 

Q And he responded to each of these pedigree questions; is that correct?

 

A Yes.

 

Q In the appropriate fashion?

 

ADA: Judge, I am going to object. What is the appropriate fashion? It is opened to speculation.

 

THE COURT: Sustained.

 

Q Let me clarify that. When he gave you an answer, that seemed correct for the situation?

 

A Yes.

 

Q You never had any feeling that when you were doing the pedigree questioning that he didn't understand what you were doing; is that correct?

 

A That's correct.

 

Q He seemed to understand everything that was going on that evening?


A Yes.

 

MR. FIANDACH: Nothing further.

 

THE COURT: Thank you.



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