By John A. Tarantino, Adler Pollock & Sheehan P.C., Providence, RI
Criminal defense lawyers who defend driving under the influence of alcohol and drug cases always have to cross examine one or more police officers. The police officer is always a crucial witness for the prosecution; and, consequently, if the defense attorney can successfully cross examine the police officer, the odds of obtaining an acquittal increase dramatically. What constitutes a successful cross examination, of course, will vary from trial to trial. We all dream of a cross examination that destroys the arresting officer. That rarely happens. More probable – but still quite successful – is the cross examination of the police officer that calls into question his or her fairness, predisposition, bias, knowledge, training, experience and ability (as well as desire or lack of desire) to testify accurately and completely. If we can call into question one or more of these areas, we often can raise reasonable doubt about the defendant’s guilt. When we are able to call into question several of these areas, we stand a very good chance of establishing reasonable doubt. And when we can call into question a majority of these areas, we can usually convince jurors that they should not be deliberating for a long period of time before they come back with a not guilty verdict.
There are many ways to successfully cross examine an arresting officer and I, as well as other defense attorneys, have offered suggestions on how to do so. See, e.g., Tarantino, “Cross Examining the Police Officer: Guerrilla Warfare,” 8 DWI Journal: Law & Science 5 (May 1993); Tarantino, “Keeping the Police Officer in Check During Cross Examination,” 14 DWI Journal: Law & Science 7 (July 1999); Tarantino, “Questioning Police and Lay Witness Testimony on Intoxication,” 14 DWI Journal: Law & Science 1 (January 1999); Tarantino, “Stop, Look and Listen … Then Attack the Officer’s Testimony on the Behavior and Appearance of Defendant,” 13 DWI Journal: Law & Science 4 (April 1998); Tarantino, “Three Keys to Successful Cross Examination,” 4 DWI Journal: Law & Science 11 (November 1989); Tarantino, “Using Thematic Cross Examination to Control Witnesses,” 6 DWI Journal: Law & Science 2 (February 1991); Defending Drinking Drivers, ch. 6 (2nd ed., 2005 supp.); L. Taylor and S. Oberman, Drunk Driving Defense, ch. 13 (5th ed., 2004).
This article will focus on how to get the police officer to make admissions and concessions that much of what the defendant did was right, as opposed to wrong; and, even further, how to get the police officer to admit or concede that at least some of what he did was wrong, rather than right. By framing the issue in terms of “right” and “wrong,” you will give the jury easy and basic concepts to understand and, as I hope to show, in most cases you will have an opportunity to get the police officer to admit that at least some of what he did was wrong and that much of what the defendant did was right. Here’s how.
The cross examination that follows is one modeled and adapted from a case where the arresting officer was also the breath test technician. He observed the defendant’s vehicle cross the center lane on two occasions, pulled over the vehicle, observed signs of intoxication during the questioning of the driver, administered certain field sobriety tests (which, in the officer’s opinion, the defendant “failed”) and administered a breath test that revealed a BAC of .12. All of this testimony came out on direct examination when the officer was questioned by the prosecutor.
Here are some of the key points made during cross examination:
Defense Counsel: Officer, I want to go over some of the things that you testified happened on the night of April 14, 2003, okay?
Officer: Certainly, counsel.
Defense Counsel: In order to do so, I’m going to ask you some questions about the things that my client did that were right and the things that my client did that you say were wrong, okay?
Officer: Okay.
Defense Counsel: What I would like to do is record those things that my client did that were right and those that he did that you say were wrong, okay?
Officer: Sure. (Defense Counsel goes before the jury and stands before a flip chart).
Defense Counsel: Officer, what I’m doing is this: I’m drawing a line down the middle of this chart. To the left of the line I’m going to write the word “right” and on the right-side of the line I’m going to write the word “wrong.” And what we’ll do is we’ll list those things that my client, Steve Williams, did that were right and list those that you say he did that were wrong.Defense Counsel: So, let’s begin. You say that my client crossed the center line while he was driving his vehicle, correct?
Officer: Yes.
Defense Counsel: So, I suppose you would say that was wrong, correct?
Officer: Yes, that was wrong.
Defense Counsel: Okay. We’re going to put the first checkmark then in the “wrong” column. Now, let’s continue. You activated your overhead lights and my client pulled over, correct?Officer: Yes.
Defense Counsel: That’s a checkmark for my client in the “right” column. He did what he was supposed to, correct?
Officer: Yes.
Defense Counsel: Okay. We now have one checkmark in the “right” column and one checkmark in the “wrong” column.
Defense Counsel: You then approached my client and asked for his license and registration, correct?
Officer: Yes.
Defense Counsel: And my client gave them to you, correct?
Officer: Yes.
Defense Counsel: So, we’ll put another checkmark in the “right” column.
Defense Counsel: You asked my client to get out of his car, correct?
Officer: Yes.
Defense Counsel: He got out of the car, didn’t he?
Officer: Yes.
Defense Counsel: Okay. Let’s put another check in the “right” column.
Defense Counsel: You say that you asked my client to perform some coordination tests, what you called field tests, correct?
Officer: Yes.
Defense Counsel: My client agreed to perform them, correct?
Officer: Yes.
Defense Counsel: Let’s put another check in the “right” column.
Defense Counsel: You say that my client didn’t do well on those tests, correct?
Officer: That’s right. He didn’t.
Defense Counsel: Well, I’ll ask you some more questions about the coordination tests in just a minute, but for now in order to be fair to you, Officer, let’s put a check in the “wrong” column.Officer: That’s fine.
Defense Counsel: Now, let’s just talk a little about those coordination tests. Your police manual talks about how these coordination tests are supposed to be conducted, correct?
Officer: Yes.
Defense Counsel: And you’re familiar with that manual, correct?
Officer: Yes.
Defense Counsel: And you’re obligated to follow the manual, correct?
Officer: Yes.
Defense Counsel: But you didn’t follow the manual, did you?
Officer: I did, substantially.
Defense Counsel: You did substantially? Does that mean you didn’t follow the manual entirely?Officer: Yes.
Defense Counsel: And that’s because you administered the tests under conditions that the manual says they should not be administered, correct?
Officer: May I see what you’re referring to?Defense Counsel: Sure. Here’s a copy of the manual we are talking about. Look at page 6 and see if that refreshes your recollection.Officer: Yes.
Defense Counsel: Now, Officer, I know you want to be fair. We’re talking about right and wrong here. You’re not saying that it would be right to say that my client failed these coordination tests if you didn’t administer them in the right way, according to the manual, would you?Officer: I don’t know.
Defense Counsel: You’re supposed to follow the manual, aren’t you?
Officer: Yes.
Defense Counsel: You didn’t, did you?
Officer: Not perfectly.
Defense Counsel: You didn’t conduct the tests in the way they were supposed to be conducted, did you?
Officer: No.
Defense Counsel: Well, don’t you agree then as a matter of fairness that we should strike that “wrong” as it relates to the coordination tests?Officer: I don’t know. You tell me.
Defense Counsel: Officer, you’re the one testifying. You want to be fair, don’t you?
Officer: Yes.
Defense Counsel: So, shouldn’t we cross that “wrong” out to be fair?
Officer: Yes.
Defense Counsel: Okay. Now, let’s talk about what happened next and in order to do so, Officer, and to be entirely fair, I am going to put up another chart. The first chart we’ve been talking about explains what the defendant did that was right or wrong, correct?
Officer: Yes.
Defense Counsel: Now, this chart that I’m putting up talks about what you did that was right or wrong. And we’ll set it up the same way. We’ll put a line down the middle and this one will say “Officer Jones,” the left-hand column is what you did that is right, and the right-hand column is what you did that is wrong. So, in terms of the administration of the field sobriety tests, we are going to put a “wrong” in your column, correct?
Officer: Yes.
Defense Counsel: Now, let’s go back to the questioning. As a result of the wrongly administered field sobriety tests, you arrested my client, correct?
Officer: After the field sobriety tests, I arrested your client, yes.
Defense Counsel: But you arrested him after you conducted the tests wrongly, correct?Officer: Yes.
Defense Counsel: Now, Officer, do you think that it was right to arrest my client for suspicion of driving under the influence of alcohol after you had wrongly conducted the field sobriety tests? Do you think that’s fair?
Officer: I don’t know. I thought your client was under the influence of alcohol.
Defense Counsel: Officer, we’ve already agreed, haven’t we, that you conducted the tests wrongly?
Officer: Yes.
Defense Counsel: So, let me ask you again. You said you wanted to be fair. Was it fair to arrest my client on suspicion of drunk driving when you conducted the field sobriety tests wrongly?
Officer: I don’t know. That’s for the jury to decide.
Defense Counsel: I know it’s for the jury to decide and I have great confidence that they will decide the issue correctly. But I’m asking you, as you sit here today, as an officer of the law, having admitted you conducted the field sobriety tests incorrectly. I’m asking you, yes or no. Having conducted the field sobriety tests wrongly, was it fair to arrest my client?
Officer: I really don’t know how to answer that. I can’t answer that.
Defense Counsel: So, what you’re saying, Officer, and what you’re telling this jury under oath is that you cannot say whether you were fair or unfair in arresting my client for driving under the influence of alcohol?
Officer: Yes.
Defense Counsel: And based on that very same arrest that you can’t say was fair, you asked my client to take a breath test, correct?Officer: Yes.
Defense Counsel: And you say my client didn’t pass the test, correct?
Officer: No. Your client didn’t pass. He blew a .12.
Defense Counsel: Would you agree that you had no right to ask my client to take that test if you had not been fair in arresting him?
Officer: Yes. I guess so.
Defense Counsel: Well, let’s do this. For now, we will put a “wrong” in my client’s column because you said he failed the breath test.
Defense Counsel: Now, with respect to the breath test, did you administer that correctly?Officer: I believe so.
Defense Counsel: You do?
Officer: Yes.
Defense Counsel: There’s a training manual for the breath test as well as the coordination tests, correct?
Officer: Yes, it’s part of the same manual.
Defense Counsel: Are you sure, are you certain, Officer, that you conducted the breath test in accordance with all of the directions and instructions?
Officer: I think so. Is there something in particular that you think I did wrong?
Defense Counsel: It’s not what I think, Officer. I’m asking you. Did you, or did you not, follow all of the directions and instructions on how to administer this breath test? It’s a yes or no question.
Officer: I think so, but I’m not sure. Show me what you’re concerned about.
Defense Counsel: I’m concerned about my client’s rights. I’m concerned about my client getting a fair trial. That’s what I’m concerned about. And in order to do so, I want to ask you these questions. Did you, or did you not, follow all of the instructions in the manual regarding the administration of the breath test?
Officer: Yes. I think I did.
Defense Counsel: Thank you for your answer.Defense Counsel: Now, let’s look at the manual. There’s a checklist, isn’t there, on how to administer the breath test?
Officer: Yes.
Defense Counsel: Take a look at the checklist and take a look at your report. Without telling the jury what it is you did or didn’t do, just answer this question. Did you follow the manual?Officer: Not perfectly.
Defense Counsel: Does not perfectly mean “no”?
Officer: I didn’t follow the manual exactly.
Defense Counsel: That means no, correct?Officer: Correct.
Defense Counsel: So, you didn’t follow the manual?
Officer: No.
Defense Counsel: As we agreed before, Officer, you want to be fair. You didn’t follow the manual. It says that’s how you’re supposed to conduct the breath test. So, we have to take away the “wrong” in my client’s column on the breath test as well, correct?
Officer: I guess so.
Defense Counsel: And that means we have to put a “wrong” in your column again, correct?Officer: Yes.
Defense Counsel: So, now, Officer, as we can all see, the only “wrong” in my client’s column is crossing the center line.
Officer: Yes.
Defense Counsel: And there are a lot of “rights” in my client’s column, aren’t there?Officer: Yes.
Defense Counsel: But there are several “wrongs” in your column, correct?
Officer: Yes.
Defense Counsel: Now, Officer, let me ask you this final question. Isn’t it true that drivers can cross the center line without being under the influence of alcohol?
Officer: Yes.
Defense Counsel: Officer, I’m going to give you a “right” for that correct answer. Thank you and I have no further questions.
This cross examination was extremely effective in showing the jury that by using simple concepts of right and wrong, it was entirely unfair and, therefore, wrong for the officer to arrest the defendant. This is even though the defendant, in the officer’s view, crossed the center line, showed signs of intoxication, failed the field sobriety tests and failed the breath test. By cross examining the officer in simple and direct ways, and by giving the officer little, if any, room to move, I was able to control the officer, get the answers that I wanted, totally turn around the officer’s testimony and make him into the best defense witness possible. The result, of course: an acquittal.
John A. Tarantino, editor of DWI Journal: Law & Science, is a principal in the Providence and Boston law firm of Adler Pollock & Sheehan, PC, and the author of a leading treatise in the field. He is also a founder and former regent of the National College of DUI Defense, and can be reached at 401-274-7200 or 617-482-0600.