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

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Winning the DUI CaseWinning the DUI Case

DIRECT EXAMINATION OF OFFICERS IN OWI DIRECT EXAMINATION OF OFFICERS IN OWI CASESCASES

bybyJoel D. HandJoel D. Hand

Hamilton County Prosecutor’s OfficeHamilton County Prosecutor’s Office

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Objectives of Direct ExaminationObjectives of Direct Examination

INFORMINFORM Inform the jury by presenting the facts Inform the jury by presenting the facts

that establish the elements of the that establish the elements of the offense.offense.

This is where we make our prima facie This is where we make our prima facie case. Do this, or go home!case. Do this, or go home!

PERSUADEPERSUADE Persuade the jury that we should win.Persuade the jury that we should win. The Defendant is GUILTY!!!The Defendant is GUILTY!!!

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Characteristics of an Effective Characteristics of an Effective Direct ExaminationDirect Examination

InformativeInformative InterestingInteresting MemorableMemorable PersuasivePersuasive ClearClear ConversationalConversational Others…Others…

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Preparation is KeyPreparation is Key

Identifying WitnessesIdentifying Witnesses Who was there?Who was there?

OfficersOfficers Who made the stop?Who made the stop? Who established P.C.?Who established P.C.? Who administered SFSTs?Who administered SFSTs? Breath test operator?Breath test operator? Crash investigatorsCrash investigators Assisting officersAssisting officers

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Identifying WitnessesIdentifying Witnesses Who was there?Who was there?

Eye witnessesEye witnesses PassengersPassengers Other motoristsOther motorists PedestriansPedestrians Bar patronsBar patrons Others?Others?

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Identifying WitnessesIdentifying Witnesses Witnesses who weren’t there:Witnesses who weren’t there:

DispatcherDispatcher PhlebotomistPhlebotomist ToxicologistToxicologist Others?Others?

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Experts in DUI CasesExperts in DUI Cases

Specialized knowledge about Specialized knowledge about alcohol/drugs and the effects on the alcohol/drugs and the effects on the bodybody Through training or experienceThrough training or experience Toxicologists, Chemists Toxicologists, Chemists Chemical Engineers, BiochemistsChemical Engineers, Biochemists Medical TechniciansMedical Technicians TechnologistsTechnologists DREsDREs

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Other Experts in DUI CasesOther Experts in DUI Cases

SFST ExpertsSFST Experts SFST InstructorsSFST Instructors Former OfficersFormer Officers

Crash Reconstruction ExpertsCrash Reconstruction Experts Training in Crash ReconstructionTraining in Crash Reconstruction Various levels of expertiseVarious levels of expertise

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Learn the Expert Witness RulesLearn the Expert Witness Rules

Doesn’t need personal Doesn’t need personal observationobservation

Shares special knowledge with Shares special knowledge with courtcourt

Be familiar with evidence rules Be familiar with evidence rules that applythat apply

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Identifying WitnessesIdentifying Witnesses Witnesses to avoid:Witnesses to avoid:

really bad witnessesreally bad witnesses hostile witnesseshostile witnesses if you can’t avoid ‘em, call ‘em if you can’t avoid ‘em, call ‘em

after lunch – jury will be sleepyafter lunch – jury will be sleepy NEVER start or end with a bad NEVER start or end with a bad

witness!witness! Hide bad witnesses between good Hide bad witnesses between good

witnesseswitnesses

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Identifying WitnessesIdentifying Witnesses After identifying all possible After identifying all possible

witnesses ask yourself:witnesses ask yourself: Do I NEED this witness? – Why?Do I NEED this witness? – Why? What does this witness offer to the What does this witness offer to the

case?case? How can this witness hurt the case?How can this witness hurt the case? Can anyone else provide the same Can anyone else provide the same

info?info? Repetitive testimony bores the juryRepetitive testimony bores the jury

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Witness OrderWitness Order Needs to make sense & help to Needs to make sense & help to

tell the story.tell the story. Usually chronoUsually chronologicallogical - - butbut not not

alwaysalways What order will best tell the story?What order will best tell the story? Jury must have a clear picture of Jury must have a clear picture of

what happened.what happened. Must keep the jury interested!Must keep the jury interested!

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Witness OrderWitness Order Rule of PrimacyRule of Primacy

Start with strong witnessStart with strong witness Make good first impressionMake good first impression Grab jurors’ interestGrab jurors’ interest

Rule of RecencyRule of Recency End on a strong noteEnd on a strong note Last witness should put the Last witness should put the

exclamation point on your case!!!!exclamation point on your case!!!!

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Witness OrderWitness Order Other things to consider:Other things to consider:

Length of testimonyLength of testimony Don’t want to break between direct Don’t want to break between direct

and cross examination – gives defense and cross examination – gives defense extra time to prepareextra time to prepare

Don’t waste time in trial scheduleDon’t waste time in trial schedule Juries & Judges don’t like to waitJuries & Judges don’t like to wait

The witness’s scheduleThe witness’s schedule Avoid calling a witness out of orderAvoid calling a witness out of order

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Interview witnesses – Round IInterview witnesses – Round I Don’t wait until right before trialDon’t wait until right before trial Interview all witnesses Interview all witnesses

separatelyseparately Interview witnesses at the sceneInterview witnesses at the scene

Go to place of witness’s Go to place of witness’s observationsobservations

Look for obstructionsLook for obstructions Will help witness’s memoryWill help witness’s memory

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Interview witnesses – Round IIInterview witnesses – Round II Interview Interview againagain right before trial right before trial Take witness to the courtroomTake witness to the courtroom

Explain where they will sit, where Explain where they will sit, where you will stand, where judge & jury you will stand, where judge & jury will bewill be

Test volumeTest volume Use exhibits that will be used at Use exhibits that will be used at

trialtrial

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Review and prepare exhibitsReview and prepare exhibits Breath test ticketsBreath test tickets Medical records/Lab reportsMedical records/Lab reports Breath test & operator certificationsBreath test & operator certifications Field sobriety test chartsField sobriety test charts Video tapesVideo tapes Audio tapesAudio tapes Maps & diagramsMaps & diagrams PhotographsPhotographs OthersOthers

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Start Preparing for Trial BEFORE Start Preparing for Trial BEFORE Making the ArrestMaking the Arrest

Observe traffic violation before Observe traffic violation before making traffic stop (even if received making traffic stop (even if received citizen complaint or dispatch).citizen complaint or dispatch).

Be familiar with current case law and Be familiar with current case law and statutes.statutes.

Conduct a lawful investigation.Conduct a lawful investigation. Write detailed police report and Write detailed police report and

probable cause affidavit.probable cause affidavit. Always be professional.Always be professional.

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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

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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

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Strength of Case – Physical Evidence

• Breath/Blood/Urine Test

• Vehicle

• Other Physical Evidence

– Beer Cans/Alcohol Bottles

– Glasses/Cups Containing Alcohol

– Drugs

– Drug Paraphenalia

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Strength of Case – Environment

• Weather

• Light

• Traffic Conditions

• Road Conditions

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Strength of Case – Other Evidence

• Officer Training/Experiences

• Other Witnesses

– Expert

– Eyewitnesses

– EMT/Paramedics

• Anticipated Defenses/Excuses

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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

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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

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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

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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

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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.

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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

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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

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Fundamentals of Direct Fundamentals of Direct ExaminationExamination

Use Non-Leading QuestionsUse Non-Leading Questions Who, what, where, when, why, how, Who, what, where, when, why, how,

explain, describe, tell the jury…explain, describe, tell the jury… Establish CredibilityEstablish Credibility

Personalize the witnessPersonalize the witness Emphasize training/experienceEmphasize training/experience Establish point of viewEstablish point of view

SightlinesSightlines ProximityProximity

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Establish CredibilityEstablish Credibility Emphasize training/experienceEmphasize training/experience

Years of experience & rankYears of experience & rank Police Academy – subjects coveredPolice Academy – subjects covered Field TrainingField Training Additional Training – hours and subjectsAdditional Training – hours and subjects Specialty AreasSpecialty Areas Special AssignmentsSpecial Assignments

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Establish CredibilityEstablish Credibility Specialized TrainingSpecialized Training

SFSTsSFSTs Breath test operatorBreath test operator DREDRE Crash reconstructionCrash reconstruction OthersOthers

May want to ask about special May want to ask about special training when getting ready to discuss training when getting ready to discuss that subject area within directthat subject area within direct

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FACTS – not conclusionsFACTS – not conclusions You want the jury to draw the You want the jury to draw the

conclusions from the factsconclusions from the facts One fact per questionOne fact per question

Use Head NotesUse Head Notes Announces to witness & jury subject Announces to witness & jury subject

matter of question or line of questionsmatter of question or line of questions Outlines direct examinationOutlines direct examination Helps keep direct exam topicalHelps keep direct exam topical

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What head notes could you for the What head notes could you for the officer’s direct exam in this case???officer’s direct exam in this case??? Qualifications/trainingQualifications/training Initial observationsInitial observations PursuitPursuit Vehicle StopVehicle Stop Initial contact with the driverInitial contact with the driver TransportTransport AdmonishmentsAdmonishments Chemical testChemical test

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Head Notes for Direct of an Head Notes for Direct of an OfficerOfficer

Qualifications (Education/Background; Training Qualifications (Education/Background; Training and Expertise)and Expertise)

Officer’s Observations Officer’s Observations Vehicle in Motion; Personal ContactVehicle in Motion; Personal Contact

SFSTs (HGN; Walk and Turn; One Leg Stand)SFSTs (HGN; Walk and Turn; One Leg Stand) Describe how officer was trained to administer each Describe how officer was trained to administer each

testtest Describe how officer actually administered each testDescribe how officer actually administered each test Describe how defendant performed on each testDescribe how defendant performed on each test

Decision to Arrest (based on what?)Decision to Arrest (based on what?) Implied Consent AdvisementImplied Consent Advisement Chemical Test (training, procedures used, test Chemical Test (training, procedures used, test

result)result)

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Head Notes for Direct of a ChemistHead Notes for Direct of a Chemist

Qualifications (training; experience; Qualifications (training; experience; studies; publications; memberships)studies; publications; memberships)

Effects of alcohol on a personEffects of alcohol on a person Alcohol testing procedures in generalAlcohol testing procedures in general

Blood, breath, urineBlood, breath, urine Reliability of chemical testingReliability of chemical testing

Blood, breath, urineBlood, breath, urine Testing procedures used in this caseTesting procedures used in this case Expert’s opinionsExpert’s opinions

Was defendant under the influence?Was defendant under the influence? Would this affect or impair driving?Would this affect or impair driving?

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Coupling TechniqueCoupling Technique Use words from witness’s last answer Use words from witness’s last answer

to help phrase next questionto help phrase next question Provides continuity and links facts Provides continuity and links facts

togethertogether Involve the Fact-FinderInvolve the Fact-Finder

““Tell the jury….”Tell the jury….” ““Tell the judge….”Tell the judge….” Don’t overuse!!!Don’t overuse!!! Save for important factsSave for important facts

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Create Visual ImagesCreate Visual Images Have witness describe the sceneHave witness describe the scene Prepare witness to provide detailsPrepare witness to provide details The more descriptive, the betterThe more descriptive, the better

Cluster Circumstantial EvidenceCluster Circumstantial Evidence Increases impactIncreases impact Encourages deductive reasoningEncourages deductive reasoning

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NEVER ask a question without NEVER ask a question without knowing the answerknowing the answer

Know what the witness will say, Know what the witness will say, not just what you not just what you thinkthink witness will witness will saysay

Prepare your witness for your Prepare your witness for your questions and for possible cross questions and for possible cross exam questionsexam questions

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Anticipate Cross ExaminationAnticipate Cross Examination Identify Weaknesses and ExplainIdentify Weaknesses and Explain

Better than waiting for crossBetter than waiting for cross Opportunity to fully explainOpportunity to fully explain Bury weaknesses in middle of directBury weaknesses in middle of direct

Head-off Points of ImpeachmentHead-off Points of Impeachment Get prior inconsistent statements out in Get prior inconsistent statements out in

the open and have witness explain before the open and have witness explain before the defense attack comesthe defense attack comes

Increases credibility with jury (witness & Increases credibility with jury (witness & you)you)

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Anticipate ObjectionsAnticipate Objections Leading questionsLeading questions Unnecessary facts - relevancyUnnecessary facts - relevancy Implausible facts Implausible facts Unprovable factsUnprovable facts GOAL: Get through direct exam GOAL: Get through direct exam

without a single objectionwithout a single objection

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Start Strong and End StrongStart Strong and End Strong Grab attention and punch it homeGrab attention and punch it home Remember rules of primacy & Remember rules of primacy &

recency!recency! Set the SceneSet the Scene

At beginning of directAt beginning of direct With each scene changeWith each scene change

Avoid asking for narrative answersAvoid asking for narrative answers Experts may be an exceptionExperts may be an exception

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Don’t Forget About Yourself!Don’t Forget About Yourself! YOU control the courtroomYOU control the courtroom

Where do you want to stand?Where do you want to stand? Will you move? (When? Where? Why? How?)Will you move? (When? Where? Why? How?)

Gestures, tone, tempo, inflection, pausesGestures, tone, tempo, inflection, pauses KEEP QUESTIONS SIMPLE- (my KEEP QUESTIONS SIMPLE- (my

weakness)weakness) Avoid “cop talk”, acronyms, other jargonAvoid “cop talk”, acronyms, other jargon Notes or no notes?Notes or no notes? Handling exhibitsHandling exhibits

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Last but not least . . . .Last but not least . . . . ALWAYS LISTEN TO THE ANSWERS!!!ALWAYS LISTEN TO THE ANSWERS!!!

You never know what the witness will You never know what the witness will saysay

Makes direct exam conversationalMakes direct exam conversational Shows you are interestedShows you are interested Helps in formulating next questionHelps in formulating next question If answer hurts you, show no painIf answer hurts you, show no pain

move on or move on or if witness did not understand, rephraseif witness did not understand, rephrase

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Direct Exam ChecklistDirect Exam Checklist Outline/Headnotes – What do I Outline/Headnotes – What do I

anticipate witness to say?anticipate witness to say? Exhibit List - What exhibits are to Exhibit List - What exhibits are to

be identified or offered through be identified or offered through this witness?this witness?

What information do I need to What information do I need to emphasize from this witness?emphasize from this witness?

What are the weaknesses in the What are the weaknesses in the testimony of this witness?testimony of this witness?

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Direct Exam ChecklistDirect Exam Checklist What information will I use to set What information will I use to set

the scene or develop the the scene or develop the environment?environment?

How will I have the witness start How will I have the witness start his/her testimony?his/her testimony?

How will I have the witness end How will I have the witness end his/her testimony?his/her testimony?

What objections do I anticipate?What objections do I anticipate? How will I control the courtroom?How will I control the courtroom?

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Contact InformationContact Information

Joel D. HandJoel D. HandF.A.C.T. ProsecutorF.A.C.T. Prosecutor

Supervisor of Superior Courts 4, 5 & 6Supervisor of Superior Courts 4, 5 & 6Hamilton County Prosecutor’s OfficeHamilton County Prosecutor’s OfficeOne Hamilton County Square, Suite One Hamilton County Square, Suite

134134Indianapolis, IN 46060Indianapolis, IN 46060

(317) 774-2530(317) [email protected] [email protected]

Documents

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