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

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!!!

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

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

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

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

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

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

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

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

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

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!

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!!!!

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

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

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

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

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.

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

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

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

Strength of Case – Environment Weather Light Traffic Conditions Road Conditions

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

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

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

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

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

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.

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

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

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

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

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

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

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

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)

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?

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

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

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

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)

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

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

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

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

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?

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?

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 46060 (317) 774-2530 jdh@co.hamilton.in.us