"Cross Exam of Prosecution Witnesses"
Cross-examination is the Defense Attorney’s primary tool in rooting out faulty testimony
in Rhode Island DUI and DWI cases. Often times, a Rhode Island Drunk Driving investigation
can only be held invalid by way of the concise and direct questions of the Defense Lawyer.
Preparation by the Rhode Island defense attorney for the cross-examination of prosecution
witnesses must take into account the probable testimony of such witnesses as policemen, experts,
and laymen. A Rhode Island Defense Lawyer should not overlook the possibility that the
bartender serving the defendant prior to his arrest might be a witness for the prosecution.
Counsel should note, during direct examination of prosecution witnesses, all primary
facts observed on which each witness bases his conclusion of intoxication. He can then
separately challenge the validity of each of these facts as establishing intoxication. However,
counsel should ignore facts testified to that he is unable to challenge, since cross-examination as
to these facts would simply emphasize the strength of the prosecution case to the jury. Instead,
counsel should question the witness whether separate primary facts on which he based his
opinion of intoxication might have been attributable to a cause other than intoxication.
Defense counsel should preliminarily ask the policeman to define intoxication. If a proper
definition is given, no harm is done since the jury figures that the witness was supposed to
know it. If an improper one is given, on the other hand, the fact can be very effectively used in
arguments to the jury.
in Rhode Island DUI and DWI cases. Often times, a Rhode Island Drunk Driving investigation
can only be held invalid by way of the concise and direct questions of the Defense Lawyer.
Preparation by the Rhode Island defense attorney for the cross-examination of prosecution
witnesses must take into account the probable testimony of such witnesses as policemen, experts,
and laymen. A Rhode Island Defense Lawyer should not overlook the possibility that the
bartender serving the defendant prior to his arrest might be a witness for the prosecution.
Counsel should note, during direct examination of prosecution witnesses, all primary
facts observed on which each witness bases his conclusion of intoxication. He can then
separately challenge the validity of each of these facts as establishing intoxication. However,
counsel should ignore facts testified to that he is unable to challenge, since cross-examination as
to these facts would simply emphasize the strength of the prosecution case to the jury. Instead,
counsel should question the witness whether separate primary facts on which he based his
opinion of intoxication might have been attributable to a cause other than intoxication.
Defense counsel should preliminarily ask the policeman to define intoxication. If a proper
definition is given, no harm is done since the jury figures that the witness was supposed to
know it. If an improper one is given, on the other hand, the fact can be very effectively used in
arguments to the jury.
Cross-examination is the Defense Attorney’s primary tool in rooting out faulty testimony
in Rhode Island DUI and DWI cases. Often times, a Rhode Island Drunk Driving investigation
can only be held invalid by way of the concise and direct questions of the Defense Lawyer.
Preparation by the Rhode Island defense attorney for the cross-examination of prosecution
witnesses must take into account the probable testimony of such witnesses as policemen, experts,
and laymen. A Rhode Island Defense Lawyer should not overlook the possibility that the
bartender serving the defendant prior to his arrest might be a witness for the prosecution.
Counsel should note, during direct examination of prosecution witnesses, all primary
facts observed on which each witness bases his conclusion of intoxication. He can then
separately challenge the validity of each of these facts as establishing intoxication. However,
counsel should ignore facts testified to that he is unable to challenge, since cross-examination as
to these facts would simply emphasize the strength of the prosecution case to the jury. Instead,
counsel should question the witness whether separate primary facts on which he based his
opinion of intoxication might have been attributable to a cause other than intoxication.
Defense counsel should preliminarily ask the policeman to define intoxication. If a proper
definition is given, no harm is done since the jury figures that the witness was supposed to
know it. If an improper one is given, on the other hand, the fact can be very effectively used in
arguments to the jury.
Counsel should not ask the police witness what his opinion was of the defendant's
condition at the time of the arrest, since he should not give the witness an opportunity to repeat
damaging testimony. He should not try to change the officer's opinion. He should not argue with
the police witness. However, if the arresting officer has testified to a "smell of alcohol" on the
defendant's breath, the defense attorney can usually seize upon it to the defendant's advantage,
especially if the arresting officer identifies the alcoholic beverage allegedly consumed. The court
might even permit a test, in the courtroom, wherein the defense presents a number of people
who have recently consumed a variety of alcoholic drinks to determine if the policeman is really
an "expert" on the smell of various alcoholic beverages.
The chief objectives of cross-examination of the arresting officer are to cast reasonable
doubt on each fact that led to the opinion of intoxication, and to lay the foundation for the
defense presentation. Obviously the prosecution will have elicited the arresting officer's opinion
that the defendant was intoxicated and the observed facts on which that opinion was based. The
best tactic for casting reasonable doubt of the defendant's intoxication is to isolate each separate
fact testified to by the arresting officer and to establish that such fact also indicates things other
than alcoholic intoxication. Because arrest report questioning is so extensive, it is unlikely that
everything in the report is unfavorable to the defendant (unless he was really drunk) and these
reports can usually be used effectively in the cross-examination of the police officer. Defense
counsel can also establish that the policeman does not know how the defendant acts, walks, or
talks when completely sober and cannot form an objective opinion of his demeanor.
To lay the foundation for the defense presentation, defense counsel often can establish
from the police testimony facts that tend to corroborate the defendant's story. Whatever facts will
be relied on by the defense, there are usually questions that can be asked of the policeman which
will tend to corroborate the defendant's subsequent testimony. Such corroboration can then be
referred to by the defense in the argument to the jury. The following cases are summarized and
may prove useful when considering the aforementioned issues:
Improper admission of testimony of arresting officer that motorist's level of intoxication,
on scale of one to ten, was "ten plus," was not prejudicial to motorist, and thus did not require
reversal of conviction for driving under influence of intoxicating liquor (DUI); prosecution
presented testimony of two officers who observed motorist's behavior and symptoms of
impairment, and defendant did not explain why he was swaying while standing or why he failed
the horizontal gaze nystagmus test. State v. Lummus, 950 P.2d 1190 (Ariz. Ct. App. Div. 1
1997), review denied, (Feb. 18, 1998).
State failed to establish proper foundation for admission of arresting officer's lay
opinion as to whether defendant "passed" or "failed" psychomotor field sobriety tests (FST),
in prosecution for driving under the influence of intoxicating liquor (DUI), where State failed
to adduce evidence that FSTs administered were elements of police department's official FST
protocol. HRS § 291-4(a); Rules of Evid., Rule 701. State v. Ferrer, 95 Haw. 409, 23 P.3d 744
(Ct. App. 2001).
Defendant was properly convicted of driving while intoxicated upon uncontroverted
testimony of arresting officer indicating that he had been driving erratically, had odor of alcohol
on his breath and watery, bloodshot eyes with dilated pupils, had slow and slurred speech and
could not recite alphabet or count, had difficulty removing driver's license from wallet, admitted
having consumed beer, and could not walk straight line, touch index finger to his nose or tie his
shoelaces. People v. Smith (1992, 4th Dept) 179 AD2d 1060, 578 NYS2d 800.
In prosecution for driving while impaired by drugs, state trooper with more than 72 hours
of training could properly testify at trial as to observations he made while testing defendant and
give his opinion that defendant was impaired by cocaine. People v. Quinn (1991, Dist Ct) 153
Misc 2d 139, 580 NYS2d 818.
in Rhode Island DUI and DWI cases. Often times, a Rhode Island Drunk Driving investigation
can only be held invalid by way of the concise and direct questions of the Defense Lawyer.
Preparation by the Rhode Island defense attorney for the cross-examination of prosecution
witnesses must take into account the probable testimony of such witnesses as policemen, experts,
and laymen. A Rhode Island Defense Lawyer should not overlook the possibility that the
bartender serving the defendant prior to his arrest might be a witness for the prosecution.
Counsel should note, during direct examination of prosecution witnesses, all primary
facts observed on which each witness bases his conclusion of intoxication. He can then
separately challenge the validity of each of these facts as establishing intoxication. However,
counsel should ignore facts testified to that he is unable to challenge, since cross-examination as
to these facts would simply emphasize the strength of the prosecution case to the jury. Instead,
counsel should question the witness whether separate primary facts on which he based his
opinion of intoxication might have been attributable to a cause other than intoxication.
Defense counsel should preliminarily ask the policeman to define intoxication. If a proper
definition is given, no harm is done since the jury figures that the witness was supposed to
know it. If an improper one is given, on the other hand, the fact can be very effectively used in
arguments to the jury.
Counsel should not ask the police witness what his opinion was of the defendant's
condition at the time of the arrest, since he should not give the witness an opportunity to repeat
damaging testimony. He should not try to change the officer's opinion. He should not argue with
the police witness. However, if the arresting officer has testified to a "smell of alcohol" on the
defendant's breath, the defense attorney can usually seize upon it to the defendant's advantage,
especially if the arresting officer identifies the alcoholic beverage allegedly consumed. The court
might even permit a test, in the courtroom, wherein the defense presents a number of people
who have recently consumed a variety of alcoholic drinks to determine if the policeman is really
an "expert" on the smell of various alcoholic beverages.
The chief objectives of cross-examination of the arresting officer are to cast reasonable
doubt on each fact that led to the opinion of intoxication, and to lay the foundation for the
defense presentation. Obviously the prosecution will have elicited the arresting officer's opinion
that the defendant was intoxicated and the observed facts on which that opinion was based. The
best tactic for casting reasonable doubt of the defendant's intoxication is to isolate each separate
fact testified to by the arresting officer and to establish that such fact also indicates things other
than alcoholic intoxication. Because arrest report questioning is so extensive, it is unlikely that
everything in the report is unfavorable to the defendant (unless he was really drunk) and these
reports can usually be used effectively in the cross-examination of the police officer. Defense
counsel can also establish that the policeman does not know how the defendant acts, walks, or
talks when completely sober and cannot form an objective opinion of his demeanor.
To lay the foundation for the defense presentation, defense counsel often can establish
from the police testimony facts that tend to corroborate the defendant's story. Whatever facts will
be relied on by the defense, there are usually questions that can be asked of the policeman which
will tend to corroborate the defendant's subsequent testimony. Such corroboration can then be
referred to by the defense in the argument to the jury. The following cases are summarized and
may prove useful when considering the aforementioned issues:
Improper admission of testimony of arresting officer that motorist's level of intoxication,
on scale of one to ten, was "ten plus," was not prejudicial to motorist, and thus did not require
reversal of conviction for driving under influence of intoxicating liquor (DUI); prosecution
presented testimony of two officers who observed motorist's behavior and symptoms of
impairment, and defendant did not explain why he was swaying while standing or why he failed
the horizontal gaze nystagmus test. State v. Lummus, 950 P.2d 1190 (Ariz. Ct. App. Div. 1
1997), review denied, (Feb. 18, 1998).
State failed to establish proper foundation for admission of arresting officer's lay
opinion as to whether defendant "passed" or "failed" psychomotor field sobriety tests (FST),
in prosecution for driving under the influence of intoxicating liquor (DUI), where State failed
to adduce evidence that FSTs administered were elements of police department's official FST
protocol. HRS § 291-4(a); Rules of Evid., Rule 701. State v. Ferrer, 95 Haw. 409, 23 P.3d 744
(Ct. App. 2001).
Defendant was properly convicted of driving while intoxicated upon uncontroverted
testimony of arresting officer indicating that he had been driving erratically, had odor of alcohol
on his breath and watery, bloodshot eyes with dilated pupils, had slow and slurred speech and
could not recite alphabet or count, had difficulty removing driver's license from wallet, admitted
having consumed beer, and could not walk straight line, touch index finger to his nose or tie his
shoelaces. People v. Smith (1992, 4th Dept) 179 AD2d 1060, 578 NYS2d 800.
In prosecution for driving while impaired by drugs, state trooper with more than 72 hours
of training could properly testify at trial as to observations he made while testing defendant and
give his opinion that defendant was impaired by cocaine. People v. Quinn (1991, Dist Ct) 153
Misc 2d 139, 580 NYS2d 818.