J. Burkhardt
Beale's December 1, 2004 Continuing Legal Education Outline:
How to Cross-Examine Police Officers
CROSS-EXAMINATION
OF POLICE WITNESSES
by J. Burkhardt ("Burk") Beale
BOONE, BEALE, COSBY & LONG
4391 Ridgewood Center Drive, Suite H
Woodbridge, Virginia 22192
(703) 690-1222
jbbeale@boonebeale.com
BOONE, BEALE, COSBY & LONG
27 N. 17th Street
Richmond, Virginia 23219
(804) 780-1111
The following is an outline of a presentation on how
to cross-examine police officers Burk made at a Continuing
Legal Education forum in Richmond, Virginia, on December
1, 2004. The seminar's theme was: "Strategies in Handling
DUI Cases in Virginia."
1.
Always Begin the Defense with a Theme
a.
Rising BAC
i.
Statements to the police officer
ii.
Change in demeanor as the time passes
b.
Inaccurate Test Result
i.
Statements to the police officer
ii.
Acid Reflux, burping
c.
Driving/Operating
i.
Make sure the police officer does not embellish
ii.
What did the police officer observe vs. statements
of the accused
d.
Unlawful Arrest
i.
Did the arresting police officer stop the accused?
ii.
Did the arrest take placed at an allowed location?
2.
Police Officer
a.
Aggressive
i.
Demonstrate that quality
ii.
Jumping to conclusions
b.
Improperly Trained
i.
Cannot evaluate Field Sobriety Tests (FSTs) if
not trained
ii.
Have the police officer confess his lack of training
c.
Inexperienced
i.
What would your training officer say?
ii.
Often the most candid
d.
Never Lost a Case
i.
Sometimes a compliment to the police officer will
be why he loses his first case
ii.
Does he just plain lie to make sure his "drunks"
are found guilty
e.
Bend-Over-Backwards to be Fair and Objective
i.
Remember the adage: Don't ask a question that you
don't know the answer to
ii.
Usually the toughest to make appear biased
THE ARRESTING OFFICER
3.
Divided Attention Tests
A. Walk and Turn
i.
Instruction Stage:
(1)
Assume the position: One foot (right) in front
of the other (left) (heel-to-toe with arms at sides and
listen to instructions
(2)
Do not start until I finish my instructions
ii.
Walking Stage
(1)
Nine (9) steps heel-to-toe
a. Count out
loud
b. Arms by
side
c. Watch feet
d. Do not stop
until completed
3.
Prescribed Turn
a. Keep one
foot on the line
Turn in a series of small steps pivoting while keeping
the other foot on the line
4.
Should be dry, hard, level, non-slippery surface and relatively
safe conditions.
(If not, research recommends only HGN or perform
the test elsewhere).
5.
"Clues"
a. Cannot balance
during instructions
b. Starts too
soon
c. Stops walking
d. Does not
touch heel-to-toe (>½")
e. Steps off
line
f. Uses
arms to balance (>6")
g. Loses balance
on turn or turns incorrectly
h. Takes the
wrong number of steps
6.
Research shows that if the suspect exhibits 2 or more
clues out of 8, there is a 68% chance that the suspect's
BAC >.10. Instructor-Manual, Section
VIII, p. 52.
1.
Instruction Stage
a. Suspect
must stand
(1) feet together
(2) arms at sides
(3) listen to instructions
2. Balancing
and Counting Stage
(1)
raise 1 leg (either one) 6" off the ground
(2)
keep foot raised and pointed out
(3)
look at his/her foot while counting out loud...one
thousand and one, one thousand and two...until told to
stop or 1030 ( Police Officer should time this for 30
seconds)
3. "Clues"
a. Sways while
balancing
b. Uses arms
to balance
c. Hops
d. Puts foot
down
4. Research
states that if the suspect exhibits 2 or more clues out
of 4 there is a 65% chance that the suspects BAC
is >.10
5. Do
not administer if >65 years old or if 50 pounds or
more overweight. Instructor Manual Section VIII,
p.61. Research indicates only administer HGN
C. Other Divided
Attention Tests
1. Finger-to-Nose
2. Romberg
Balance
IV. Horizontal Gaze
Nystagmus (HGN)
B.
"Nystagmus" - involuntary jerking of the eyes
C.
The "Test"
1. "Object"
- Tip of pen, eraser on pencil, penlight, tip of finger
2. Pass the
object 12" - 15" from subject's nose
3. Each eye
is checked beginning with the left eye
4. Stimulus
must be above eye level in order to see some "white" of
the eye below the iris to observe the "Nystagmus" (subject
may be seated e.g NBA Player)
5. Two or more
"passes" are to be made before each eye for each of the
following:
a.
Smooth Pursuit Tracking
(1) Each eye follows
the stimulus smoothly from side to side
(2) If suspect
has an obvious eye disorder or an artificial eye - HGN should
not be administered
b.
Distinct Nystagmus at Maximum Deviation
c.
Nystagmus onset before 45 degrees
C. Six possible clues,
i.e. 3 checks on each eye
D. Research states
that if the suspect exhibits 4 or more "clues" there is
a 77% accuracy that the suspect's BAC is >.10.
Instructor-Manual, Section VIII, p. 38.
E. Only test
that should be given to someone older than 65 - Instructors
Manual Session
VIII, p.52
F. DO NOT USE
if person has an obvious abnormal eye disorder or an artificial
eye. Instructor Manual, Section VIII, p.16.
See "DWI Investigation Field Notes"
form in Appendix
PRELIMINARY BREATH TEST (PBT) - ADMISSIBILITY
V. The PBT's
Admissibility
A. Determination
of probable cause if challenged. See Stacy v. Commonwealth,
22 Va. App. 417, 470 S.E.2d 584 (1996)
B
Stacy, supra, is not controlling under certain circumstances
1.
The defendant is told that the test result will not
be admitted against him/her for any reason
2.
There is no reasonable, articulable suspicion to
stop
3.
Use your imagination
|
