A kinder and more effective approach for cross examining the police officer.

By Bruce Kapsack

Innovative DUI Trial Tools

Excerpted fromInnovative DUI Trial Tools

“Officer, isn’t it true that everything you have just testified to on direct examination is a complete lie?”  How many of us style our cross examination on this model?  It is the old tried and true method made famous in books and movies; but is it necessarily the best?

Sure, jurors expect us to cross examine a witness, especially a police officer, aggressively.  They may even look forward to some fireworks, but how often does this play to our ultimate benefit?  How many times could we obtain the same answers without the possible backlash of juror sentiment?  Benjamin Franklin was considered a master at the art of polite questioning which inevitably led to the conclusion he was after.  Let’s see if we can do the same.

Questions to Set the Stage: Officer Safety

When a defense counsel first rises to ask the witness a question, all is hushed.  The officer is poised to respond as if a weapon were drawn upon him or her in the street.  The DA is set to backup the officer with objections and interruptions designed to shoot counsel in the back, or at least to wing ‘em.  Jurors, formerly asleep at the dull droning of direct examination, are now ready to see this new phase of the trial, and the judge is paying attention for the first time since he or she may actually have to issue a legal ruling.

The stage is set.  All eyes are upon you and what you do.  Nothing.  Play it cool.  Become the officer’s friend and supporter.  Set the trap and wait.  Start by offering the most disarming array of questions you can: officer safety.

Q: What is the number one rule you are taught in the academy, and at every role call, at every training and every day as an officer?  Your safety is number one and all the number twos are way back.

The witness is totally unprepared for this.  It is not only obviously true, it is solicitous.  You are the enemy, yet you care, you know, you help.  In one simple question you have disarmed the officer.  How can he or she respond with “deadly force” when you have not shown any weapon?

Q: In keeping with rule #1, you are taught how to interact with people in all kinds of situations?

What can the officer say?  “No, I was never taught how to deal with people”, “I am unsure what that question means”, “Maybe”, “I don’t know”, “I can’t remember”?  Of course not. The officer will agree.  Now develop this theme with the car stop.

Q: When you make a car stop, that is dangerous?

Q: In fact, aren’t car stops the most dangerous time for officers to get hurt, or worse?

Q: You were taught that the first few moments of interaction are the most dangerous?

Q: You have no idea who, or how many, people may be in that car?

Q: And at night, like in this case, it is even worse?

Q: This makes you alert, ready, even nervous?

Now, without so much as one negative word, one bad question, you have set a stage where the guy with the gun is nervous and on edge.  Is it hard to understand why your client was equally, or probably even more, worried?  This emotional response to the officer explains a lot of the initial “objective symptoms”.  Maybe it also explains the dropped wallet or fumbled license, but that is developed much later.

Q: Now for night time stops, there is a specific protocol on how to proceed?

Q: You call it in so that someone knows where you are?

Q: On a standard stop such as this one (NOTE: that will get an admission to be used later, that there was nothing out of the ordinary about this stop), you don’t jump out of your car with your gun out?  (By compounding the question, you force the negative answer creating the first admission.)

Q: You actually wait a second or two and see what the person does?

Q: Are they trying to hide anything, or grab anything that could be harmful?

Q: And my client did none of that?

We have not even had the officer exit the car and we have established your client was not a threat, not doing anything out of the ordinary and was understandably nervous.  The jury is waiting for the shoe to drop, but is still paying attention because they are learning.  Now we follow up with the learning aspect as we build your own expertise in proper police procedures.

Q: When conducting a car stop, you pull in behind the car and wait to be sure it is stopped and the driver is not trying to trick you?

Q: You do not pull up tight on the bumper, but leave room?

Q: In fact, you pull up off center on them, with your car slightly to the inside, away from traffic?  Again for officer safety?

Q: This is done for two reasons: one, you have to get out of the car and do not want to get out into the actual road, and two, you want your headlight to be focused on the car’s rearview mirror?

Q: You focus on the mirror so that the driver can not get a clear view of you, just in case he or she is a threat or armed or dangerous?

Q: When you do this, it aims your passenger side headlight at the passenger side mirror of the stopped car so anyone in the stopped car could not use that mirror to see you either?

Q: If you have a spot light you may even use that?

Q: All in all, you are trying to (1) prevent the driver from seeing you, so you are protected, and (2) get as much light into the car as you can to see what the occupants may be doing?

This is a major point for any and all eye reactions for some time.  Think about how you feel when you are driving at night on an unlit highway and then come into a tunnel or a well lit town.  It takes time for your eyes to adjust.  Your pupils may even be dilated different from the norm.

So without one negative question we have set the stage.  It is a dark night, our client is nervous, and the car has been unnaturally bathed in light.  We have effectively neutralized the issues around nervousness and the eyes.  Yet we have not fired one salvo.

§403 A Radical Approach to SFSTs

Let’s look at this approach with the Standardized Field Sobriety Tests (SFSTs).  There are as many ways to approach these as there are attorneys, but I suggest a rather radical approach: have the officer perform them. I know we are taught never to ask a question, or conduct an experiment, in court to which we do not know the answer or outcome.  But I submit, you cannot lose by having the officer perform the SFSTs.

During direct examination, the officer has told the jury how he or she explained and demonstrated all the SFSTs to your client who then failed them miserably.  What assumption has the jury made?  The have decided the officer must have demonstrated them properly.  In the jury’s mind, the cop was perfect.

So, if you ask for an in court demonstration, what can happen: (1) the cop is perfect, which the jury expected, or (2) he isn’t.

Let’s step outside the trial for a minute.  When do most arrests for DUI occur? During the night shift. What shift do most officers who make DUI arrests work? The night shift.  What shift are most officers coming off of to testify? The night shift. When is the trial? During the day shift. This is the officer’s normal sleep time. What is a major reason for poor performance on SFSTs, at least according to real scientists? Being tired.

This is a near perfect juxtaposition of events.  A tired officer who has been working all night and sitting around all day waiting to testify is now asked, without warning, to perform the SFSTs just as he or she did before arresting your client.

Q: Officer please explain the One Leg Stand exactly as you did to my client that night.

Q: Officer please demonstrate the One Leg Stand exactly as you did to my client that night.

I always start with this test as it is the easiest to explain so it leaves the officer with little time to prepare.  It is the hardest to do when you are tired, and the officer “cheat” is easy to spot.  By “cheat” I mean that officers know if you bend the standing leg a tiny bit it is easier to hold position.  Look for the officer to do this.  If you catch it, actually push the leg into a locked position.

Yes, I know this will cause a commotion, but, if the jury sees the officer’s leg snap back into a locked knee, then the anger is with the officer for cheating.  This is the perfect place to unleash the killer defense attorney at the outrage and falsehood being attempted.  But then come back to the nice guy.  Let the jury know you were outraged for them.

If the officer, and almost all officers do, fails this test, do not attack.  Remember we are kindler and gentler. Give the officer the excuse before he or she says it.

Q: I see you put your foot down early, worked a long shift?

A: Been up for a while, about 15 hours is how I count it.

Q: Hope you get overtime for this. (Gratuitous I admit, but it gets a laugh, keeps you on the ‘good’ side and is great for closing).

Q: Then you had to sit here waiting for us?

Q: Maybe got a little cramped up?

Q: My client told you he had worked the same number of hours you said you did?

Q: Bob told you he had been sitting in the car for the same amount of time you have been sitting?

Q: So Bob failed this test, just like you just did?

Do not ask why or leave any other opening for the officer to attribute your clients failure to alcohol and the officer’s own failure to some other cause.. It is a simple statement.  Bob did not do it; he failed.  The officer could not do it; he fails. It is blatantly unfair for the officer to attribute Bob’s failure to alcohol and not fatigue if the officer’s own failure, which mirrored Bob’s, was due to fatigue.

It is up to you if you wish to go on.  If you obtained the one failure, I would say stop.  If not, go on to the next SFST. Again you have nothing to lose.  If you do move on to the other tests, then change them. For example, change the feet on the Walk and Turn, but be sure to change the turn direction, unless the officer “wrong footed” your client.

If you change the feet position at the start, and the turn direction, a tired officer will get it wrong.  Some of them will be inexperienced, or cocky, enough to say it is because you gave the test differently than they give it.

Q: But officer, didn’t you say part of these tests was the ability to follow simple directions?

Q: Does swapping left for right make the directions complex?

Q: You have done them your way a million times. It would be easy for you to do them that way, but not easy my way?

Q: That’s because you have never done them that way before?  (Do not ask if your client has performed these before as it may open the door to prior stops and or convictions.)

In some jurisdictions officers use a finger count test.  This is particularly good for change.  I have practiced both hands in both directions for so long, I could probably be the world champ.  Officers always find one way they like and stick with it.  When I changed up on one officer and told him he failed, he accused the test of being “subjective,” his actual word.  I sat down and said “Exactly.”

The Police Report

§4:10 Lock Officer In

The first principal in cross examination is to set boundaries.  When dealing with an officer, expert, or any witness who has created a report, the boundaries have been set for you in the report.  Your job is to establish those boundaries as unassailable before the chance to squirm through any hole exists.  The following routine can be used for just about any witness who created a paper trail, but is especially useful for police officers.

Q: Officer, you went to the academy?

Q: Part of your training was in how to create the numerous police reports you would need in the future?

Q: It was stressed to you to be complete?

Q: Many cases do not get to trial for some time after your involvement?

Q: Therefore, the report must be complete so you can testify to all the relevant facts?

Q: You were also trained to be accurate in the report?

Q: Again, accuracy is necessary so you can give testimony at a later date and not have to rely purely on memory?

Q: It may seem obvious, but you were also trained to be truthful in the report?

Q: In this case did you make a report?

Q: Was it complete?

Q: Accurate?

Q: Truthful?

Q: Is there anything in your complete, accurate, truthful report that is not complete, accurate or truthful?

Q: Therefore we can assume it is a full report?

Now the officer cannot add in any facts that are not in the report (completeness); can not change any misstatements (accurate); and can not deny anything in the report you want to read to him (truthful).

§4:11 Establish Bias

A second aspect to bring out on cross examination is the reason the police report was created in the first place.  The following example is based on work by one of the top DUI defense attorneys I know, Timothy Huey of Ohio.  He suggests the following to establish the report for just what it is, biased and slanted.

Throughout the trial the officer will be using his or her report in order to aid testimony.  The report can be devastating in a trial since (1) it looks official and (2) the officer will use it to clear up any mistakes or inaccurate memories he or she has.

Q: Officer do you remember when the prosecutor was asking you questions earlier and your memory of the facts was so insufficient that you needed to refer to your notes several times to find the answers he was looking for? Do you recall that?

A: I glanced over my report yes.

Q: Is that what you have there in front of you?

A: Yes.

Q: And at some point you gave a copy of that material or discussed some things in it with the Prosecutor, correct?

A: Yes.

Q: She has a copy, right?

A: Uh yeah, I think so.

Q: You think so? Didn’t you write that report primarily to provide it to the prosecutor?

A: (All possible answers to this are good. See below.)

Q: You do not mean you sent an improper ex parte communication directly to the court do you?

A: (If he says “yes” –and he might- then ask the court to take “Judicial Notice” that it would be improper. The Judge will probably volunteer, “and it didn’t happen, either.”

Q: What you really mean is that you know the prosecutor can give it to the court (or read it to the court) for purposes of a plea and sentencing in cases where the defendant pleads guilty or no contest, correct?

Q: And usually you are not present in court for that, only your paperwork is, correct?

Q: Now, if the defendant pleads no contest -as long as you put enough incriminating evidence in the paperwork to appear to make it look like a good DUI charge – the court will find him guilty. If you don’t put enough evidence in there, the court will find him not guilty or dismiss the case. That’s what you learned in police school right?

A: I’m not sure what the court does, I just write down the facts.

Q: But you know that if your paperwork is not good enough the court will dismiss the case, right? Or perhaps the prosecutor will not file one in the first place?

A: Yes. (Or, “I know that can happen, but it has never happened to me.”)

Q: Wouldn’t you agree that it would be kind of embarrassing to have a case dismissed when the defendant tries to give up, plead no contest and doesn’t even challenge the case? That wouldn’t be a high point in your career would it?

Q: You wouldn’t want that to happen to you, would you?

Q: So you want to make your paperwork pretty strong, right?

Q: Now, the “paper allegations” might not be strong enough unless there are things in there like, “strong odor of alcohol about his person,” “blood shot eyes” and standard stuff like that. You’ve got to have a bit of that in there to make sure you don’t suffer the dismissed case we just talked about, don’t you?

Q: By the way “strong odor of alcohol about his person,” is that different than “on his breath?”

A: It can be. (Come back to this later.)

Q: But a strong report needs more in it than blood shot eyes, and a strong odor, right?

Q: You have to allege the person walked or talked like a drunk. You also need to put in those standard signs, to avoid the dismissal, don’t you?

Q: Now you said you wrote your report “for the court,” but a strong report can have other purposes, true or false?

Q: In fact, the court does not see or hear your written allegations unless the accused person sees the handwriting on the wall, despairs, gives up, and just pleads guilty or no contest without any hearings, no trial, no testimony from you and no cross-examination challenging your story; no challenges whatsoever, correct?

Q: And you know an accused person might be encouraged to “give up” based in part upon a review of the unchallenged “evidence” in your report, isn’t that true?

A: (He might have a decent answer for this, but so what?)

Q: So it never occurred to you that an accused might look at your paperwork and dispute some or most of the allegations, and could think you lied and be pretty upset by it – but decide to plead guilty or no contest because he or she knows –true or not- its his or her word against yours? You’re saying its impossible someone could feel that way?

Q: In any event, you do know that an accused person who just throws in the towel and pleads guilty or no contest based on the “evidence” in your report will never be able to raise questions about or even attempt to disprove anything in your written account, correct?

Q: And lots of folks, heck most folks, plead guilty or no contest without really putting your written account to the test, true?

Q: In fact most of your reports pretty much go unchallenged, don’t they?

Q: So really whatever an officer wants a judge to believe, can put in there without much fear of contradiction, right?

Q: If an officer gets a little sloppy, tells a few white lies, or exaggerates a little, no one is really the wiser, right?

Q: Those things could only come out if someone is strong enough to stand up and actually challenge the case, right?

Q: If that happens, you, or any officer, have to pretty much go with whatever is in the report, it would be a little too late to correct any misstatements then, right?

A: I submit the report to my supervisor.

Q: But he never does anything with it does he?

A: He approves it.

Q: But you already filed charges before that right?

A: Yes.

Q: Has your supervisor ever rejected your report in a DUI case and told you to immediately go and withdraw the charges?

A. No (or an even better answer, for us.)

Q: When the supervisor approves the report he is making sure it meets his standards for such reports, right?

A: Yes.

Q: He is checking out and approving the way you wrote the report, right?

A: Pretty much.

Q: And if he sees something that needs to be corrected in an Officer’s report or has suggestions on how something could be better phrased, he will tell the reporting officer his thoughts. Again that is the point of the “review,” that’s how you learn to write a good report right?

A: Yes.

Q: And the officer will usually make any corrections his supervisor suggests. That’s one of the points of the approval process, if it is not up to his standards you fix it right?

A: That is part of the process, yes.

Q: And after the supervisor “signs off” on the report, then it goes to the prosecutor, right?

A: Back to me and then to the prosecutor.

Q: So finally, after the supervisor has made all the corrections and suggestions, that’s when the prosecutor gets it, right?

A: Yes.

Q: So again, it is primarily written for the prosecutor’s use, as I said earlier, right?

A: Yes.

Q: Thank you for answering that question the way you did. I didn’t know this is a corrected and improved report.

A: My reports don’t need correcting.

Q: As far as we know, you mean. But we have no way of telling that from the report, right?

A: This report was not corrected.

Q: So you are saying you write darned good bullet proof reports, right?

A: My reports are found to be satisfactory.

Q: I imagine they are, no matter what facts you actually viewed.

Q: All right, now this morning when you and the prosecutor were huddled in the back room for 45 minutes, I presume you discussed a few of the more important issues involved in this case, or were you discussing something else when I walked in and she asked me to leave? (Or “give us a few minutes.”)

A: Well, we talked about a lot of things (Raise your eyebrows, etc.) and yeah we quickly went over a couple things about this case.

Q: But your memory of the true facts of this case was a lot better before you and she talked, wasn’t it?

A: No!

Q: The true facts of the case were not any fresher in your mind this morning when you woke up than they are now?

A: No.

Q: Well were they clearer when you woke up or are they clearer now?

A: Well it’s clearer now that I have reviewed it, in my own mind.

Q: And you were able to recall this case and discuss the specific details with the prosecutor right?

A: Yes.

Q: And, I presume you were able to remember the little details after you looked at your notes and got up to speed, right?

A: Well a little better, yes.

Q: And you did look it over before or while you and the prosecutor reviewed your testimony. You prepared at least a little before you came up to the stand, right?

A: I glanced over my report, yes.

Q: And you and the prosecutor did discuss matters that were in your report, correct?

A: A little.

Q: And, Officer Fife was back there with you, right?

A: Yes.

Q: And you all also discussed some of his thoughts about the case, right?

A: A few.

Q: And he had written those down previously also, correct?

A: Yes.

Q: And the prosecutor has a copy of that too, right?

A: I think so, yes. (See, “you think so!?”)

Q: And you did not suffer from sudden amnesia or lose of your mental abilities between the time you took the stand and your joint review of your and officer Fife’s prewritten testimony?

A: No!?

Q: But still you needed to refresh your memory again while you testified, true?

A: Just a couple times.

Q: So since you got up this morning you have glanced at or reviewed your notes a few times, correct?

A: Only the times I just talked about.

Q: Well, at this point – right now– do you have a pretty good grasp of your and Officer Fife’s prewritten testimony or do you need to look it over again before I ask you about it and other things? (You could skip a lot of the above and just go to this question. But it is not nearly as much fun. And really does not expose the report for what it is.)

A: I don’t need to review anything now.

Q: So you finally have it all memorized?

Q: Great. Your Honor, under [appropriate local evidence rule], I am entitled to review all written materials used to refresh this officer’s recollection before or during testimony. May I do so now?

COURT: Sure, If it gets you moving. But whatever you do, you’d better be done by lunch.

Step forward and relieve the Officer of the reports, as you read them start questioning. Don’t give them back until after you are done with him or the prosecutor or officer are dumb enough to try and get them back.

Q:  By the way, do you have any other written material relating to this case?

A:  Well I have….

Take all of it. (Go through above again if you have to.)

Bruce Kapsack originated many of the DUI defense strategies used throughout the country.  He has worked or lectured with virtually every nationally-known expert in the DUI arena, and his DUI lectures for the California State Bar and the California Public Defenders are among the best attended in the state.  Mr. Kapsack is an Instructor of NHTSA’s Standardized Field Sobriety Tests.  He has been trained as a user and maintenance technician for the Alco-Sensor IV hand-held roadside BAC breath machine, and owns and operates the Draeger 7410 and 7110 Breathalyzers and the Intoxilyzer 5000.   He is the author of Innovative DUI Trial Tools, from which this article is excerpted.