CROSS-EXAMINATION OF POLICE WITNESSES
by J. Boone (“Boone”) Beale
Boone Beale, A Professional Corporation
4391 Ridgewood Center Drive, Suite H
Woodbridge, Virginia 22192
(703) 690-1222
jbbeale@boonebeale.com
Boone Beale, A Professional Corporation
27 N. 17th Street
Richmond, Virginia 23219
(804) 780-1111
The following is an outline of a presentation on how to cross-examine police officers Boone made at a Continuing Legal Education forum in Richmond, Virginia, on December 1, 2004. The seminar’s theme was: “Strategies in Handling DUI Cases in Virginia.”
- Always Begin the Defense with a Theme
- Rising BAC
- Statements to the police officer
- Change in demeanor as the time passes
- Inaccurate Test Result
- Statements to the police officer
- Acid Reflux, burping
- Driving/Operating
- Make sure the police officer does not embellishWhat did the police officer observe vs. statements of the accused
d. Unlawful Arrest
i. Did the arresting police officer stop the accused?
ii. Did the arrest take placed at an allowed location?
2. Police Officer
a. Aggressive
i. Demonstrate that quality
ii. Jumping to conclusions
b. Improperly Trained
i. Cannot evaluate Field Sobriety Tests (FSTs) if not trained
ii. Have the police officer confess his lack of training
c. Inexperienced
i. What would your training officer say?
ii. Often the most candid
d. Never Lost a Case
i. Sometimes a compliment to the police officer will be why he loses his first case
ii. Does he just plain lie to make sure his “drunks” are found guilty
e. Bend-Over-Backwards to be Fair and Objective
i. Remember the adage: Don’t ask a question that you don’t know the answer to
ii. Usually the toughest to make appear biased
THE ARRESTING OFFICER
3. Divided Attention Tests
A. Walk and Turn
i. Instruction Stage:
(1) Assume the position: One foot (right) in front of the other (left) (heel-to-toe with arms at sides and listen to instructions
(2) Do not start until I finish my instructions
ii. Walking Stage
(1) Nine (9) steps heel-to-toe
a. Count out loud
b. Arms by side
c. Watch feet
d. Do not stop until completed
3. Prescribed Turn
a. Keep one foot on the line
Turn in a series of small steps pivoting while keeping the other foot on the line
4. Should be dry, hard, level, non-slippery surface and relatively safe conditions.
(If not, research recommends only HGN or perform the test elsewhere).
5. “Clues”
a. Cannot balance during instructions
b. Starts too soon
c. Stops walking
d. Does not touch heel-to-toe (>½")
e. Steps off line
f. Uses arms to balance (>6")
g. Loses balance on turn or turns incorrectly
h. Takes the wrong number of steps
6. Research shows that if the suspect exhibits 2 or more clues out of 8, there is a 68% chance that the suspect’s BAC >.10. Instructor-Manual, Section VIII, p. 52.
1. Instruction Stage
a. Suspect must stand
(1) feet together
(2) arms at sides
(3) listen to instructions
2. Balancing and Counting Stage
(1) raise 1 leg (either one) 6" off the ground
(2) keep foot raised and pointed out
(3) look at his/her foot while counting out loud...one thousand and one, one thousand and two...until told to stop or 1030 ( Police Officer should time this for 30 seconds)
3. “Clues”
a. Sways while balancing
b. Uses arms to balance
c. Hops
d. Puts foot down
4. Research states that if the suspect exhibits 2 or more clues out of 4 there is a 65% chance that the suspects BAC is >.10
5. Do not administer if >65 years old or if 50 pounds or more overweight. Instructor Manual Section VIII, p.61. Research indicates only administer HGN
C. Other Divided Attention Tests
1. Finger-to-Nose
2. Romberg Balance
IV. Horizontal Gaze Nystagmus (HGN)
B. “Nystagmus” - involuntary jerking of the eyes
C. The “Test”
1. “Object” - Tip of pen, eraser on pencil, penlight, tip of finger
2. Pass the object 12" - 15" from subject’s nose
3. Each eye is checked beginning with the left eye
4. Stimulus must be above eye level in order to see some “white” of the eye below the iris to observe the “Nystagmus” (subject may be seated e.g NBA Player)
5. Two or more “passes” are to be made before each eye for each of the following:
a. Smooth Pursuit Tracking
(1) Each eye follows the stimulus smoothly from side to side
(2) If suspect has an obvious eye disorder or an artificial eye - HGN should not be administered
b. Distinct Nystagmus at Maximum Deviation
c. Nystagmus onset before 45 degrees
C. Six possible clues, i.e. 3 checks on each eye
D. Research states that if the suspect exhibits 4 or more “clues” there is a 77% accuracy that the suspect’s BAC is >.10. Instructor-Manual, Section VIII, p. 38.
E. Only test that should be given to someone older than 65 - Instructors Manual Session
VIII, p.52
F. DO NOT USE if person has an obvious abnormal eye disorder or an artificial eye. Instructor Manual, Section VIII, p.16.
See “DWI Investigation Field Notes” form in Appendix
PRELIMINARY BREATH TEST (PBT) - ADMISSIBILITY
V. The PBT’s Admissibility
A. Determination of probable cause if challenged. See Stacy v. Commonwealth, 22 Va. App. 417, 470 S.E.2d 584 (1996)
B Stacy, supra, is not controlling under certain circumstances
1. The defendant is told that the test result will not be admitted against him/her for any reason
2. There is no reasonable, articulable suspicion to stop
3. Use your imagination
