Presentation on theme: "Winning the DUI Case DIRECT EXAMINATION OF OFFICERS IN OWI CASES by"— Presentation transcript:
1 Winning the DUI Case DIRECT EXAMINATION OF OFFICERS IN OWI CASES by Winning the DUI CaseDIRECT EXAMINATION OF OFFICERS IN OWI CASESbyJoel D. HandHamilton County Prosecutor’s Office
2 Objectives of Direct Examination INFORMInform 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!PERSUADEPersuade the jury that we should win.The Defendant is GUILTY!!!
3 Characteristics of an Effective Direct Examination InformativeInterestingMemorablePersuasiveClearConversationalOthers…
4 Preparation is Key Identifying Witnesses Who was there? Officers Identifying WitnessesWho was there?OfficersWho made the stop?Who established P.C.?Who administered SFSTs?Breath test operator?Crash investigatorsAssisting officers
5 Preparation is Key Identifying Witnesses Who was there? Eye witnesses Identifying WitnessesWho was there?Eye witnessesPassengersOther motoristsPedestriansBar patronsOthers?
6 Preparation is Key Identifying Witnesses Witnesses who weren’t there: Identifying WitnessesWitnesses who weren’t there:DispatcherPhlebotomistToxicologistOthers?
7 Experts in DUI CasesSpecialized knowledge about alcohol/drugs and the effects on the bodyThrough training or experienceToxicologists, ChemistsChemical Engineers, BiochemistsMedical TechniciansTechnologistsDREs
8 Other Experts in DUI Cases SFST ExpertsSFST InstructorsFormer OfficersCrash Reconstruction ExpertsTraining in Crash ReconstructionVarious levels of expertise
9 Learn the Expert Witness Rules Doesn’t need personal observationShares special knowledge with courtBe familiar with evidence rules that apply
10 Preparation is Key Identifying Witnesses Witnesses to avoid: Identifying WitnessesWitnesses to avoid:really bad witnesseshostile witnessesif you can’t avoid ‘em, call ‘em after lunch – jury will be sleepyNEVER start or end with a bad witness!Hide bad witnesses between good witnesses
11 Preparation is Key Identifying Witnesses Identifying WitnessesAfter 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 OrderNeeds to make sense & help to tell the story.Usually chronological - but not alwaysWhat 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 OrderRule of PrimacyStart with strong witnessMake good first impressionGrab jurors’ interestRule of RecencyEnd on a strong noteLast witness should put the exclamation point on your case!!!!
14 Preparation is Key Witness Order Other things to consider: Witness OrderOther things to consider:Length of testimonyDon’t want to break between direct and cross examination – gives defense extra time to prepareDon’t waste time in trial scheduleJuries & Judges don’t like to waitThe witness’s scheduleAvoid calling a witness out of order
15 Preparation is Key Interview witnesses – Round I Interview witnesses – Round IDon’t wait until right before trialInterview all witnesses separatelyInterview witnesses at the sceneGo to place of witness’s observationsLook for obstructionsWill help witness’s memory
16 Preparation is Key Interview witnesses – Round II Interview witnesses – Round IIInterview again right before trialTake witness to the courtroomExplain where they will sit, where you will stand, where judge & jury will beTest volumeUse exhibits that will be used at trial
17 Preparation is Key Review and prepare exhibits Breath test tickets Review and prepare exhibitsBreath test ticketsMedical records/Lab reportsBreath test & operator certificationsField sobriety test chartsVideo tapesAudio tapesMaps & diagramsPhotographsOthers
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 OfficerActual DrivingStoppingDriving Not Observed By OfficerCrashCircumstantial Evidence of DrivingIdentification of DefendantActual Physical Control
20 Strength of Case - Defendant Defendant’s Appearance and ConditionEyesOdor of Alcohol/DrugsDefendant’s BehaviorStatementsMovementsMental StateSFSTsPersonal InformationPhysical ConditionClothing
21 Strength of Case – Physical Evidence Breath/Blood/Urine TestVehicleOther Physical EvidenceBeer Cans/Alcohol BottlesGlasses/Cups Containing AlcoholDrugsDrug Paraphenalia
22 Strength of Case – Environment WeatherLightTraffic ConditionsRoad Conditions
23 Strength of Case – Other Evidence Officer Training/ExperiencesOther WitnessesExpertEyewitnessesEMT/ParamedicsAnticipated Defenses/Excuses
24 Developing a Theory Review the elements of the crime Talk to prosecutor about how to prove each of the elementsImagine the evidence the defense may presentResearch all issuesDetermine the strengths/weaknesses of case
25 Interviewing Witnesses Make and keep appointmentsMeet the reluctant witnessesExplain the witness’ importance to caseConsider going with prosecutor to a witness to interview
26 Preparing Witnesses For Trial Review case report & P.C.Discuss trial procedures with prosecutorRead all witness statementsDiscuss any diagramsReview any expressed opinionsReview/Discuss any estimatesPractice testimonyPrepare for cross-examinationReview depositionDiscuss clothing for court (uniform or not)Learn your weaknesses & attempt to address them
27 Preparing Witnesses For Testimony ALWAYS tell the truthAnswer the question askedCorrect mistakesHow to handle objectionsDo not argue with attorneysPersonal knowledge
28 Preparation For Defenses Know the defense argumentsHave 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 ObservationsWhy drawn to vehicle initiallyEvidence of drinking in vehiclePersonal behaviorArticulate How Defendant Responded to Signal to StopDescribe the Face-to-Face InterviewDefendant’s Behavior and Movements While Exiting the VehicleDocument Any StatementsIf Possible, Videotape Defendant’s Performance/RefusalInterview Passengers and Other Witnesses
30 Breath Test Refusal – Officer Articulate Observations of Driving BehaviorFocus on SFSTsDocument Any StatementsIf Possible, Videotape Defendant’s Performance/RefusalInterview Passengers and Other Witnesses
31 Fundamentals of Direct Examination Use Non-Leading QuestionsWho, what, where, when, why, how, explain, describe, tell the jury…Establish CredibilityPersonalize the witnessEmphasize training/experienceEstablish point of viewSightlinesProximity
32 Fundamentals of Direct Examination Establish CredibilityEmphasize training/experienceYears of experience & rankPolice Academy – subjects coveredField TrainingAdditional Training – hours and subjectsSpecialty AreasSpecial Assignments
33 Fundamentals of Direct Examination Establish CredibilitySpecialized TrainingSFSTsBreath test operatorDRECrash reconstructionOthersMay want to ask about special training when getting ready to discuss that subject area within direct
34 Fundamentals of Direct Examination FACTS – not conclusionsYou want the jury to draw the conclusions from the factsOne fact per questionUse Head NotesAnnounces to witness & jury subject matter of question or line of questionsOutlines direct examinationHelps keep direct exam topical
35 Fundamentals of Direct Examination What head notes could you for the officer’s direct exam in this case???Qualifications/trainingInitial observationsPursuitVehicle StopInitial contact with the driverTransportAdmonishmentsChemical test
36 Head Notes for Direct of an Officer Qualifications (Education/Background; Training and Expertise)Officer’s ObservationsVehicle in Motion; Personal ContactSFSTs (HGN; Walk and Turn; One Leg Stand)Describe how officer was trained to administer each testDescribe how officer actually administered each testDescribe how defendant performed on each testDecision to Arrest (based on what?)Implied Consent AdvisementChemical 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 personAlcohol testing procedures in generalBlood, breath, urineReliability of chemical testingTesting procedures used in this caseExpert’s opinionsWas defendant under the influence?Would this affect or impair driving?
38 Fundamentals of Direct Examination Coupling TechniqueUse words from witness’s last answer to help phrase next questionProvides continuity and links facts togetherInvolve the Fact-Finder“Tell the jury….”“Tell the judge….”Don’t overuse!!!Save for important facts
39 Fundamentals of Direct Examination Create Visual ImagesHave witness describe the scenePrepare witness to provide detailsThe more descriptive, the betterCluster Circumstantial EvidenceIncreases impactEncourages deductive reasoning
40 Fundamentals of Direct Examination NEVER ask a question without knowing the answerKnow what the witness will say, not just what you think witness will sayPrepare your witness for your questions and for possible cross exam questions
41 Fundamentals of Direct Examination Anticipate Cross ExaminationIdentify Weaknesses and ExplainBetter than waiting for crossOpportunity to fully explainBury weaknesses in middle of directHead-off Points of ImpeachmentGet prior inconsistent statements out in the open and have witness explain before the defense attack comesIncreases credibility with jury (witness & you)
42 Fundamentals of Direct Examination Anticipate ObjectionsLeading questionsUnnecessary facts - relevancyImplausible factsUnprovable factsGOAL: Get through direct exam without a single objection
43 Fundamentals of Direct Examination Start Strong and End StrongGrab attention and punch it homeRemember rules of primacy & recency!Set the SceneAt beginning of directWith each scene changeAvoid asking for narrative answersExperts may be an exception
44 Fundamentals of Direct Examination Don’t Forget About Yourself!YOU control the courtroomWhere do you want to stand?Will you move? (When? Where? Why? How?)Gestures, tone, tempo, inflection, pausesKEEP QUESTIONS SIMPLE- (my weakness)Avoid “cop talk”, acronyms, other jargonNotes or no notes?Handling exhibits
45 Fundamentals of Direct Examination Last but not leastALWAYS LISTEN TO THE ANSWERS!!!You never know what the witness will sayMakes direct exam conversationalShows you are interestedHelps in formulating next questionIf answer hurts you, show no painmove on orif witness did not understand, rephrase
46 Direct Exam ChecklistOutline/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 ChecklistWhat 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 InformationJoel D. HandF.A.C.T. ProsecutorSupervisor of Superior Courts 4, 5 & 6Hamilton County Prosecutor’s OfficeOne Hamilton County Square, Suite 134Indianapolis, IN(317)