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Cross-Examining the Arresting Officer Part II The Trojan Horse

February 13, 2008

Last issue, we broached on some of the tactics of cross-examination. This week, we look at strategy. Tactics, when employed in a trial, are the means to a goal. Strategy, on the other hand, is the goal you hope to achieve. To confuse the two is to flirt with disaster. Most often the experienced trial lawyer will be adept at tactics. This is what he or she does all the time. Frequently, however, the best court room tactics are wasted in a battle that sees no overall plan or strategy. So what if you can establish that there is a reasonable explanation for the failure of your client to successfully perform the walk and turn test? If you fail to tie that reason to your client and the overall theme of the case, you will probably lose.

Think about the last time you thought you explained away every anomaly in the defendant's performance of the field sobriety tests and lost. You gave it your best, and it was all for naught. Did you speak to the jurors after the verdict? My best guess is that if you did, they would respond with something to the effect that you had an excuse for everything. Tactically you won, but strategically you lost.

Tactics generally come easy. It is the sort of thing we learn over and over again through seminars, books or experience. Strategy is more difficult. Whereas tactics are the innate ability to fly by the seat of the pants, strategy requires a thorough examination of your case. Begin with what your client did or did not do and then turn to the individual circumstances that were unique to your client. Here lies the Trojan Horse. If a strategy is to be found, it will appear within the confines of what you already know like the invaders in Homer's classic tale.


This week we examine a case where a simple and coherent strategy led to an acquittal. Our client was charged with the usual and blew a .15 on a DataMaster machine. On the eve of trial, it became apparent that the test would fall as a result of a certification error, but that nevertheless left us with FST's that were less than adequate. In our estimation, a conviction on the common law count was quite possible. Then we looked closer. Our client, a successful upstate business man, was born in Montreal, Quebec. Now fluent in English, his native tongue is French. He lived in Quebec until the late 1960's and attempted to pursue a career as a professional hockey player. The game cost him his front teeth and his left knee. He now wears a front plate and is on his third knee operation. From these humble beginnings, our strategy was born. We were able to develop the entire theory through the testimony of the arresting officer without ever having to call the defendant to the stand.

One final note. Our client was actually a very nice guy. You will note the officer describes him as very cooperative. Indeed he was and treated the officer with the respect due his position. If you read between the lines, you can see that the officer repaid our client's courtesy in spades.

* * *

CROSS‑EXAMINATION BY MR. FIANDACH:

 

Q. Good morning, Deputy, good to see you again.

 

A. Good morning Mr. Fiandach.

 

Q. How are you today?

 

A. Good, and yourself?

 

Q. Fine Deputy. Now Deputy, there came a point in time in the evening, I think that you testified that you read the Defendant his warnings pursuant to Miranda versus Arizona off this card, correct?

 

[As we discussed last issue, this is a virtually risk free way to demonstrate that your client had the mental ability to drive.]


 

A. Yes.

 

Q. Okay. You asked him if ‑‑ you told him that he had the right to remain silent and told him he didn't have to say anything unless he wanted to, correct?

 

A. That's correct.

 

Q. Okay. You stopped after that or did you read all the ‑‑ did you read all five of these?

 

A. I read all five.

 

Q. Okay. And then immediately after that you said that anything you say can be used against you in a Court of law, correct?

 

A. Yes.

 

Q. And you said you have the right to talk to a lawyer before answering questions and have him here with you, correct?

 

A. Correct.

 

Q. I guess that we're not ‑‑ are we going to gender neutral that and have him or her?

 

A. I guess. It's supposed ‑‑ it's who I'm talking to, so...

 

Q. You can't pay a lawyer, one will be given to you before any questioning if you wish, correct?

 

A. Yes.

 

Q. And then you said do you wish to talk with me? If you do not wish to talk with me, you can stop at any time, correct?

 

A. Correct.

 

Q. And then you said do you understand what I have just said to you?

 

A. Yes.

 

Q. And he said yes?

 

A. Yes.

 


Q. And you said do you agree to give up your rights and talk with me and he said ask me the questions and I'll ‑‑ basically I'll decide whether I want to answer, right?

 

A. That's correct.

 

Q. Okay. No idea in your mind that he didn't understand any one of these five warnings, correct?

 

A. That's correct.

 

Q. And absolutely no question in your mind that he understood your final question, Do you agree to give up your rights and talk with me now, correct?

 

A. That's correct.

 

[Now we take it a step farther.]

 

Q. Okay. And for that matter, there wasn't anything you said to him all night long that you felt he did not understand, correct?

 

A. That's correct.

 

[We keep it going.]

 

Q. Okay. His mental functioning appeared to be clear, correct?

 

A. Yes.

 

Q. Now, when you observed this motor vehicle ‑‑ that intersection is kind of a strange intersection.

 

A. Sort of.

 

Q. Deputy, showing you what's been marked as Defendant's Exhibit A, does this more or less accurately describe the arrangement of Bay, Creek and Empire?

 

A. Yes.

 

Q. Okay. And the one with the D, little triangle on it representing the Defendant's vehicle and I think this one says officer.

 

A. Officer.

 

Q. That's you, correct?

 

A. That's me.


 

Q. All right ‑‑ you observed this vehicle more or less pulling out of Bay, making a right‑hand turn onto Empire, correct?

 

A. Yes.

 

Q. But we're in agreement ‑‑ I guess really the reason why I use this, is that this is not a straight 90‑degree intersection, correct?

 

A. That's correct.

 

Q. It is a little bit different than the normal intersection, correct?

 

A. Yes.

 

Q. Which tends to ‑‑ and you've driven a motor vehicle for how long, Deputy?

 

A. Since I was 16. 15 years.

 

Q. My dad wouldn't let me get a license until I was 18.

 

A. Oh, yeah.

 

Q. You agree with me that perceptions at an intersection where the streets are angled like that are different than they are when coming into a 90‑degree intersection, correct?

 

A. Yes.

 

Q. Okay. And to some degree, I'm sure you can't tell me what, but to some degree this could have affected the manner in which he pulled out onto Empire, correct?

 

A. Correct.

 

Q. At this point in time the other operational fact I think you observed was the passenger side tires crossing over into the fog line, correct?

 

A. Yes.

 

Q. So he turned into what we would call the right‑hand or the slow‑moving lane of ‑‑ of Empire, correct?

 

A. Well, at the time he actually ‑‑ and I was traveling in the left‑hand westbound lane and he had crossed over the right lane into my lane.

 

Q. Okay. And then he pulled over to the right‑hand lane?


 

A. Yes.

 

Q. And then continued to travel in that lane?

 

A. Yes.

 

Q. Okay. So he never really left that lane after he pulled back into that lane?

 

A. That's correct.

 

Q. Okay. And the only violation that you observed after that and the operational deficiency, if I can, that you observed was the passenger side tires crossing over onto the fog line?

 

A. Correct.

 

Q. Aside from that, everything appeared to be normal?

 

A. That I recall, yes.

 

Q. Okay. You activated your emergency equipment?

 

A. Yes.

 

Q. And the Defendant pulled over as he ‑‑ as a normal driver should in that situation, correct?

 

A. Yes.

 

Q. Okay. You've made, I don't know, I think I heard you testify that you made two, three hundred DWI arrests, correct?

 

A. Yes.

 

Q. You've made thousands of routine traffic stops, have you not?

 

A. Yes.

 

Q. Nothing to differentiate the Defendant's performance at this point from any of the routine traffic stops, is there?

 

A. Not that I recall, no.

 

Q. Okay. You came up along side the vehicle?

 


A. Yes.

 

Q. You tapped on the on the driver's side window?

 

A. Yes.

 

Q. And he promptly rolled the window down, correct?

 

A. Yes.

 

Q. You didn't observe any difficulties in locating the buttons or the levers or the handles or what have you?

 

A. Not that I recall, no.

 

Q. Okay. What was the first thing you said to him?

 

A. I asked him for his license and registration.

 

Q. And he produced his license and registration, correct?

 

A. Yes.

 

Q. Do you recall where he produced the license and registration from?

 

A. Wallet.

 

Q. Okay. No difficulty producing the wallet?

 

A. No.

 

Q. No difficulty producing the license?

 

A. Not that I recall, no.

 

Q. And he produced those documents in the appropriate period of time that you would expect from a motorist in that situation, correct?

 

A. Yes.

 

Q. Okay. Nothing about his hand/eye dexterity at this point that would in any way indicate to you that he was under the influence of alcoholic beverages, would there be?

 

A. No.

 


Q. Okay. What did you do next?

 

A. At that time I asked him where he was coming from. Again, he stated a friend's.

 

Q. All right. So you asked him a question and he gave you an appropriate answer, correct?

 

A. Yes.

 

Q. What did you ask him next?

 

A. I asked him how much he had to drink with some of the clues that I had gotten and he stated that he had a beer and a glass of wine.

 

Q. Okay. You smelled a strong smell of alcohol in the vehicle, correct?

 

A. Yes.

 

Q. But we're both in agreement, are we not, that particularly in cold air it doesn't take much alcohol to produce a strong smell of alcohol, does it?

 

A. That's correct.

 

Q. Okay. And there is no correlation between the intensity of what you smell and how much the Defendant had to drink, correct?

 

A. Yes.

 

Q. At this ‑‑ is this the point in time when you asked him to step from the vehicle?

 

A. Yes.

 

Q. All right. And he stepped from the vehicle as would a normal motorist under the circumstances, correct?

 

A. Yes.

 

Q. You asked him to walk back to the area between the two vehicles?

 

A. Yes.

 

Q. Now I'm assuming at this point, just based on your testimony in the past, that your vehicle is behind him by maybe a car length, car length and a half?

 

A. Yes.

 


Q. Kind of jogged out in traffic for everybody's safety?

 

A. Yes.

 

Q. Okay. And so you had him walk back into the space created by the two vehicles, correct?

 

A. That's correct.

 

Q. No difficulty in the manner in which he walked back to the area between the two vehicles, correct?

 

A. The only observations I made was that he was swaying as he walked.

 

Q. All right, but then again, in all fairness to the Defendant, you don't know if he normally sways, do you?

 

A. That's correct.

 

Q. And in fact, at one point he told you that he had a problem with his leg, correct?

 

A. Yes.

 

Q. And at another point he told you that he had three surgeries on his left knee, correct?

 

A. Yes.

 

Q. Okay. So you really don't know if he has a limp or what have you, correct?

 

A. That's correct.

 

Q. And again, he understood your instruction to walk back to the area between the two vehicles and basically he did it as would a normal motorist under the circumstances, correct?

 

A. Yes.

 

Q. Okay. The first test you asked him I think was the alphabet, correct?

 

A. That's correct.

 

[Now watch as we build the required biographical details through the deputy.]

 

Q. And he said he didn't know it in English, right?

 

A. Yes.


 

Q. You didn't really give him a hard time about that because it was obvious to you that he had a bit of an accent, correct?

 

A. That's correct.

 

Q. And you don't know ‑‑ I know at some points you testified that his speech was slurred, but I think you also testified that you had him remove his upper dentures?

 

A. That was after the tests were done.

 

Q. Yeah, I know he was ‑‑ he had his teeth in when you're asking this.

 

A. Yes.

 

Q. I understand. I wouldn't try to do that to you. (Laughter.) But I guess what I'm getting at here is we would find out later that he had an upper plate, correct?

 

A. Yes.

 

Q. And you have heard people, particularly older people, with upper plates, they do tend to have a certain slur to the speech, do they not?

 

A. Yes.

 

Q. Okay. You don't know what role the upper plate was playing in the manner in which he spoke, do you?

 

A. That's correct.

 

Q. Okay. And he had ‑‑ and you had no reason ‑‑ and he had an accent, he had the plate, you have no reason to disbelieve that he didn't know the alphabet in English, correct?

 

A. That's correct.

 

Q. Did he ever ‑‑ did you ever ask him what country he was from or what language was his native language?

 

A. Well, he said he played, I believe hockey up in Canada, so I assumed ‑‑ and he spoke French, so I was assuming Canada.

 

Q. Okay. So at this point ‑‑ I guess what I'm getting at is his native language, you understood it to be French?

 

A. Yes.


 

Q. Okay. Now, again, in turn you asked him to count, but again his native language in terms of counting would be French, would it not?

 

A. Yes.

 

Q. You don't know what effect this can have on the person's ability to count an unusual sequence of numbers backwards when English is not their native language. You don't know what effect that would have, do you?

 

A. No.

 

Q. It could have an effect, could it not?

 

A. Yes.

 

Q. Did you take a foreign language in school?

 

A. Yes.

 

Q. Which one?

 

A. French. (Laughter.)

 

[What follows was an absolute gift!]

 

THE COURT: All right. We ought to have him count backwards in French from thirty‑two to nineteen. (Laughter.)

 

MR. FIANDACH: I appreciate the offer, but I'm not going to ask him to do that, Judge.

 

THE WITNESS: Thanks. Appreciate that. (Laughter.)

 

Q. So actually, I guess what I'm getting at here is that obviously his inability to perform the alphabet can't be tied to alcohol, correct?

 

[Although not needed here, we decided to do a little recap.]

 

A. That's correct.

 

Q. And we can't tie the alcohol smell to intoxication, can we?

 

A. No.

 


Q. And we can't tie ‑‑ we really can't ‑‑ in all fairness to the Defendant, we can't tie the inability to correctly perform the counting test to alcohol, can we?

 

A. No.

 

Q. The next test we asked him to do was what?

 

A. The test was the walk and turn test.

 

Q. Okay. You've been ‑‑ you've received a lot of training on these field sobriety tests, have you not?

 

A. Yes.

 

Q. In fact, I think you received the training by the National Highway Traffic and Safety Administration did you not?

 

[Most books and lecturers take an argumentive tone on the NHTSA requirements. We go a little easier and get clearly favorable results. Also, try not to use NHTSA, at least at first, jurors and judges may not know what you are talking about.]

 

A. Yes.

 

Q. And the National Highway Traffic & Safety Administration in their manual is quite clear that back or leg problems can influence the results on this test, correct?

 

A. Yes.

 

Q. So it's really hard for us at this point in time to determine what effect the problem with his leg and the surgeries on his knee had in the 9‑step walk and turn, correct?

 

A. That's correct.

 

Q. However, if we could look at one component, you asked him to walk a certain number of steps and he seemed to understand the instructions, did he not?

 

[Keep banging away on understanding.]

 

A. Yes.

 

Q. Okay. We had an imaginary line, but he actually only stepped off the imaginary line five times ‑‑ four times on the way out, correct?

 

A. That's correct.

 


Q. And four times on the way back?

 

A. Yes.

 

Q. So five times on the way out and four times on the way back he did stay on the imaginary line, correct?

 

[If the line is imaginary, always preface it with imaginary.]

 

A. Yes.

 

Q. When he deviated from the imaginary line, do you know how much he deviated by?

 

A. I don't recall.

 

Q. Do you know whether it was with his right leg or his left leg that you thought deviated from the imaginary line?

 

A. I don't recall.

 

Q. And again, we don't know if that deviation was due to the leg problems he explained to you?

 

A. I don't.

 

Q. And in fact, the National Highway and Traffic Safety Administration teaches that a physical line should be used, correct?

 

A. Yes.

 

Q. And you have given this test with a physical line on other occasions, haven't you?

 

A. Yes.

 

Q. And the test is more difficult when a physical line is not used, isn't it?

 

A. I don't understand.

 

Q. Well, the test is certainly easier to do when there is a physical line to follow as recommended by the National Highway Traffic Safety Administration, isn't it?

 

A. I would assume so.

 

Q. And you had a lot of conversation with the Defendant that night, did you not?

 


A. Yes.

 

Q. How would you describe his demeanor?

 

A. He was very cooperative.

 

Q. He wasn't rude to you in any fashion, was he?

 

A. No.

 

Q. Didn't swear to you in French or anything?

 

A. No. Well, I don't know. (Laughter.)

 

Q. He missed his heel to toe, but again we don't know what part the leg problem or the knee problem played in that, do we?

 

A. That's correct.

 

[The Defendant did horrible on the one-leg stand, thus we give rather short shrift to this test.]

 

Q. And again, when we go to the one‑leg stand, again he seemed to understand how you wanted it done, correct?

 

A. Yes.

 

Q. So the mental component was there, correct?

 

A. Yes.

 

Q. As was the mental component was there during the walk and turn test?

 

A. Correct.

 

Q. But you can't tell me what role his ‑‑ his leg and knee problems played in his inability to perform the one‑leg stand, correct?

 

A. That's correct.

 

Q. After it was over and after you had placed him under arrest, I think we've been through it, you gave him his Miranda warnings and then you sat him down and proceeded to go through the questions on the interview form here, correct?

 

A. That's correct.

 


Q. Did you ‑‑ did you ‑‑ did you two talk about anything else that night?

 

A. I think so. He talked a little bit about hockey and ‑‑ I don't remember the exact conversation, but we had a continuous conversation throughout the arrest process.

 

[I like this angle. It makes the Deputy and the Defendant look less like adversaries and more like friends. Peripherally, it says something about the clarity of his speech.]

 

Q. He told you how he lost his teeth, didn't he?

 

A. He stated something like that, yes.

 

Q. Yeah. Again, that conversation was reasonable, it was understandable and it seemed to make sense, correct?

 

A. Yes.

 

Q. And so basically he appeared to be mentally there during these conversations, correct?

 

A. Yes.

 

Q. You asked him if he had epilepsy, he understood the question, correct?

 

A. Correct.

 

Q. And you asked him if he had diabetes and he understood the question?

 

A. Correct.

 

Q. And responded appropriately, correct?

 

A. Yes.

 

Q. You did ask him if he was taking tranquillizers, pills or medicines of any kind, correct?

 

A. Yes.

 

Q. And he answered yes?

 

A. That's correct.

 

Q. And he explained to you that he's taking Tylenol, correct?

 

A. That is correct.

 


Q. And he said what, he took six Tylenol?

 

A. Yes.

 

Q. And you asked him when the last dose was, correct?

 

A. That's correct.

 

Q. And he said that he took two at 10 o'clock that night, correct?

 

A. That is correct.

 

Q. Did you ask him what he took it for?

 

A. I don't recall. He said he had some leg problems.

 

Q. Okay. So it's reasonable to assume that he was taking all this Tylenol, that night, for his leg, correct?

 

A. Yes.

 

Q. So it is safe to assume that his leg was bothering him that night?

 

A. I would assume so, yes.

 

Q. As you sit here today, you can't tell me how much beer he consumed, can you?

 

A. No.

 

Q. Okay. When you released him, do you know who you released him to?

 

A. I don't recall. I might have written it down in my addendum.

 

Q. You released him to his daughter, correct?

 

A. Yes.

 

* * *

 

One final note, never holler or take an argumentative approach with the officer. Our experience attests over and over to the fact that a polite, precise manner of questioning on no lose issues such as those set forth above is by far the most effective way to go.



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