1. Winning the DUI Case DIRECT EXAMINATION OF OFFICERS IN OWI CASES by
Winning the DUI Case
DIRECT EXAMINATION OF OFFICERS IN OWI CASES by
Joel D. Hand
Hamilton County Prosecutor’s Office

2. Objectives of Direct Examination
INFORM
Inform the jury by presenting the facts that establish the elements of the offense.
This is where we make our prima facie case. Do this, or go home!
PERSUADE
Persuade the jury that we should win.
The Defendant is GUILTY!!!

3. Characteristics of an Effective Direct Examination
Informative
Interesting
Memorable
Persuasive
Clear
Conversational
Others…

4. Preparation is Key Identifying Witnesses Who was there? Officers
Identifying Witnesses
Who was there?
Officers
Who made the stop?
Who established P.C.?
Who administered SFSTs?
Breath test operator?
Crash investigators
Assisting officers

5. Preparation is Key Identifying Witnesses Who was there? Eye witnesses
Identifying Witnesses
Who was there?
Eye witnesses
Passengers
Other motorists
Pedestrians
Bar patrons
Others?

6. Preparation is Key Identifying Witnesses Witnesses who weren’t there:
Identifying Witnesses
Witnesses who weren’t there:
Dispatcher
Phlebotomist
Toxicologist
Others?

7. Experts in DUI Cases
Specialized knowledge about alcohol/drugs and the effects on the body
Through training or experience
Toxicologists, Chemists
Chemical Engineers, Biochemists
Medical Technicians
Technologists
DREs

8. Other Experts in DUI Cases
SFST Experts
SFST Instructors
Former Officers
Crash Reconstruction Experts
Training in Crash Reconstruction
Various levels of expertise

9. Learn the Expert Witness Rules
Doesn’t need personal observation
Shares special knowledge with court
Be familiar with evidence rules that apply

10. Preparation is Key Identifying Witnesses Witnesses to avoid:
Identifying Witnesses
Witnesses to avoid:
really bad witnesses
hostile witnesses
if you can’t avoid ‘em, call ‘em after lunch – jury will be sleepy
NEVER start or end with a bad witness!
Hide bad witnesses between good witnesses

11. Preparation is Key Identifying Witnesses
Identifying Witnesses
After identifying all possible witnesses ask yourself:
Do I NEED this witness? – Why?
What does this witness offer to the case?
How can this witness hurt the case?
Can anyone else provide the same info?
Repetitive testimony bores the jury

12. Preparation is Key Witness Order
Witness Order
Needs to make sense & help to tell the story.
Usually chronological - but not always
What order will best tell the story?
Jury must have a clear picture of what happened.
Must keep the jury interested!

13. Preparation is Key Witness Order Rule of Primacy Rule of Recency
Witness Order
Rule of Primacy
Start with strong witness
Make good first impression
Grab jurors’ interest
Rule of Recency
End on a strong note
Last witness should put the exclamation point on your case!!!!

14. Preparation is Key Witness Order Other things to consider:
Witness Order
Other things to consider:
Length of testimony
Don’t want to break between direct and cross examination – gives defense extra time to prepare
Don’t waste time in trial schedule
Juries & Judges don’t like to wait
The witness’s schedule
Avoid calling a witness out of order

15. Preparation is Key Interview witnesses – Round I
Interview witnesses – Round I
Don’t wait until right before trial
Interview all witnesses separately
Interview witnesses at the scene
Go to place of witness’s observations
Look for obstructions
Will help witness’s memory

16. Preparation is Key Interview witnesses – Round II
Interview witnesses – Round II
Interview again right before trial
Take witness to the courtroom
Explain where they will sit, where you will stand, where judge & jury will be
Test volume
Use exhibits that will be used at trial

17. Preparation is Key Review and prepare exhibits Breath test tickets
Review and prepare exhibits
Breath test tickets
Medical records/Lab reports
Breath test & operator certifications
Field sobriety test charts
Video tapes
Audio tapes
Maps & diagrams
Photographs
Others

18. Start Preparing for Trial BEFORE Making the Arrest
Observe traffic violation before making traffic stop (even if received citizen complaint or dispatch).
Be familiar with current case law and statutes.
Conduct a lawful investigation.
Write detailed police report and probable cause affidavit.
Always be professional.

19. Strength of Case – Officer
Driving Observed By Officer
Actual Driving
Stopping
Driving Not Observed By Officer
Crash
Circumstantial Evidence of Driving
Identification of Defendant
Actual Physical Control

20. Strength of Case - Defendant
Defendant’s Appearance and Condition
Eyes
Odor of Alcohol/Drugs
Defendant’s Behavior
Statements
Movements
Mental State
SFSTs
Personal Information
Physical Condition
Clothing

21. Strength of Case – Physical Evidence
Breath/Blood/Urine Test
Vehicle
Other Physical Evidence
Beer Cans/Alcohol Bottles
Glasses/Cups Containing Alcohol
Drugs
Drug Paraphenalia

22. Strength of Case – Environment
Weather
Light
Traffic Conditions
Road Conditions

23. Strength of Case – Other Evidence
Officer Training/Experiences
Other Witnesses
Expert
Eyewitnesses
EMT/Paramedics
Anticipated Defenses/Excuses

24. Developing a Theory Review the elements of the crime
Talk to prosecutor about how to prove each of the elements
Imagine the evidence the defense may present
Research all issues
Determine the strengths/weaknesses of case

25. Interviewing Witnesses
Make and keep appointments
Meet the reluctant witnesses
Explain the witness’ importance to case
Consider going with prosecutor to a witness to interview

26. Preparing Witnesses For Trial
Review case report & P.C.
Discuss trial procedures with prosecutor
Read all witness statements
Discuss any diagrams
Review any expressed opinions
Review/Discuss any estimates
Practice testimony
Prepare for cross-examination
Review deposition
Discuss clothing for court (uniform or not)
Learn your weaknesses & attempt to address them

27. Preparing Witnesses For Testimony
ALWAYS tell the truth
Answer the question asked
Correct mistakes
How to handle objections
Do not argue with attorneys
Personal knowledge

28. Preparation For Defenses
Know the defense arguments
Have a well- developed strategy for rebuttal or counter argument .
Don’t argue with defense attorney on the witness stand.
Trust your prosecutor to cover issues in re- direct examination.

29. SFSTs REFUSAL – Officer
Focus on Observations
Why drawn to vehicle initially
Evidence of drinking in vehicle
Personal behavior
Articulate How Defendant Responded to Signal to Stop
Describe the Face-to-Face Interview
Defendant’s Behavior and Movements While Exiting the Vehicle
Document Any Statements
If Possible, Videotape Defendant’s Performance/Refusal
Interview Passengers and Other Witnesses

30. Breath Test Refusal – Officer
Articulate Observations of Driving Behavior
Focus on SFSTs
Document Any Statements
If Possible, Videotape Defendant’s Performance/Refusal
Interview Passengers and Other Witnesses

31. Fundamentals of Direct Examination
Use Non-Leading Questions
Who, what, where, when, why, how, explain, describe, tell the jury…
Establish Credibility
Personalize the witness
Emphasize training/experience
Establish point of view
Sightlines
Proximity

32. Fundamentals of Direct Examination
Establish Credibility
Emphasize training/experience
Years of experience & rank
Police Academy – subjects covered
Field Training
Additional Training – hours and subjects
Specialty Areas
Special Assignments

33. Fundamentals of Direct Examination
Establish Credibility
Specialized Training
SFSTs
Breath test operator
DRE
Crash reconstruction
Others
May want to ask about special training when getting ready to discuss that subject area within direct

34. Fundamentals of Direct Examination
FACTS – not conclusions
You want the jury to draw the conclusions from the facts
One fact per question
Use Head Notes
Announces to witness & jury subject matter of question or line of questions
Outlines direct examination
Helps keep direct exam topical

35. Fundamentals of Direct Examination
What head notes could you for the officer’s direct exam in this case???
Qualifications/training
Initial observations
Pursuit
Vehicle Stop
Initial contact with the driver
Transport
Admonishments
Chemical test

36. Head Notes for Direct of an Officer
Qualifications (Education/Background; Training and Expertise)
Officer’s Observations
Vehicle in Motion; Personal Contact
SFSTs (HGN; Walk and Turn; One Leg Stand)
Describe how officer was trained to administer each test
Describe how officer actually administered each test
Describe how defendant performed on each test
Decision to Arrest (based on what?)
Implied Consent Advisement
Chemical Test (training, procedures used, test result)

37. Head Notes for Direct of a Chemist
Qualifications (training; experience; studies; publications; memberships)
Effects of alcohol on a person
Alcohol testing procedures in general
Blood, breath, urine
Reliability of chemical testing
Testing procedures used in this case
Expert’s opinions
Was defendant under the influence?
Would this affect or impair driving?

38. Fundamentals of Direct Examination
Coupling Technique
Use words from witness’s last answer to help phrase next question
Provides continuity and links facts together
Involve the Fact-Finder
“Tell the jury….”
“Tell the judge….”
Don’t overuse!!!
Save for important facts

39. Fundamentals of Direct Examination
Create Visual Images
Have witness describe the scene
Prepare witness to provide details
The more descriptive, the better
Cluster Circumstantial Evidence
Increases impact
Encourages deductive reasoning

40. Fundamentals of Direct Examination
NEVER ask a question without knowing the answer
Know what the witness will say, not just what you think witness will say
Prepare your witness for your questions and for possible cross exam questions

41. Fundamentals of Direct Examination
Anticipate Cross Examination
Identify Weaknesses and Explain
Better than waiting for cross
Opportunity to fully explain
Bury weaknesses in middle of direct
Head-off Points of Impeachment
Get prior inconsistent statements out in the open and have witness explain before the defense attack comes
Increases credibility with jury (witness & you)

42. Fundamentals of Direct Examination
Anticipate Objections
Leading questions
Unnecessary facts - relevancy
Implausible facts
Unprovable facts
GOAL: Get through direct exam without a single objection

43. Fundamentals of Direct Examination
Start Strong and End Strong
Grab attention and punch it home
Remember rules of primacy & recency!
Set the Scene
At beginning of direct
With each scene change
Avoid asking for narrative answers
Experts may be an exception

44. Fundamentals of Direct Examination
Don’t Forget About Yourself!
YOU control the courtroom
Where do you want to stand?
Will you move? (When? Where? Why? How?)
Gestures, tone, tempo, inflection, pauses
KEEP QUESTIONS SIMPLE- (my weakness)
Avoid “cop talk”, acronyms, other jargon
Notes or no notes?
Handling exhibits

45. Fundamentals of Direct Examination
Last but not least
ALWAYS LISTEN TO THE ANSWERS!!!
You never know what the witness will say
Makes direct exam conversational
Shows you are interested
Helps in formulating next question
If answer hurts you, show no pain
move on or
if witness did not understand, rephrase

46. Direct Exam Checklist
Outline/Headnotes – What do I anticipate witness to say?
Exhibit List - What exhibits are to be identified or offered through this witness?
What information do I need to emphasize from this witness?
What are the weaknesses in the testimony of this witness?

47. Direct Exam Checklist
What information will I use to set the scene or develop the environment?
How will I have the witness start his/her testimony?
How will I have the witness end his/her testimony?
What objections do I anticipate?
How will I control the courtroom?

48. Contact Information
Joel D. Hand
F.A.C.T. Prosecutor
Supervisor of Superior Courts 4, 5 & 6
Hamilton County Prosecutor’s Office
One Hamilton County Square, Suite 134
Indianapolis, IN
(317)