Attacking and Defending Drunk Driving Tests

Bartell’s Top 10 Tools for Controlling Witnesses: Part 1

Attacking and Defending Drunk Driving TestsAdapted from Attacking and Defending Drunk Driving Tests by Don Bartell

Ready yourself for the fact that many prosecution witnesses will actively try to impede the defense lawyer’s cross-examination. Instead of direct answers to your questions, expect caveats, provisos and riders to accompany any given answer. Expert witnesses for the state are particularly notorious for trying to evade questions put to them by defense attorneys. The experts often have a pretty good idea where the defense lawyer wants to go during cross-examination, and they have no interest in accompanying the lawyer on the journey.

There are a variety of tools and techniques to control witnesses. The first five of my 10 favorites are listed below.  I think you will find them quite helpful in getting intractable witnesses to answer your questions, and only your questions.  I’ll share the final five with you in my next blog post.  Keep in mind that repeatedly using the same technique in trial tends to diminish its effectiveness.

1.       Repeat the Question

Perhaps the simplest technique to secure an answer from a witness who is intent on avoiding the question is to repeat the question. For example:

Question:  “He was driving straight?”

Answer:    “Like I said, your client was speeding and driving with his high beams on.”

Question:   “He was driving straight?”  [The question is repeated verbatim.]

Answer:     “Again counselor I was focused on his speeding.”  [Still trying to evade the

question.]

Question:   “He was driving straight?”  [The repeating technique is used again.]

Answer:      “Yes. He was driving straight” [The witness recognizes the futility of the dodge.]

Best Time to Use: The method of repeating the question can be used just about any time during your cross-examination.  It is a simple, but effective technique. For this reason it should be one of the first tools accessible to you in your briefcase.

2.        Ask the Question Again Slowly

A modification of the “repeat the question” technique is to ask the same question, but in a much slower manner. Here is an example of the method using the same series of questions from above.

Question:  “He was driving straight?”

Answer:    “Like I said, your client was speeding and driving with his high beams on. That was

enough for me to stop him.”

Question:  “He was driving straight?”  [The question is repeated verbatim.]

Answer:    “Again counselor that’s not why I stopped him. I haven’t looked for that in the

report.”  [Still trying to evade the question.]

Question:  “He was driving straight?”  [The technique is repeated.]

Answer:    “I had plenty of other reasons to pull him over.” [Still in avoidance mode.]

Question:  “He — was —  driving  — straight?   [Asking the same question, but with

marked slowness.]

Answer:     “Yes.”

Best time to Use: The repeat the question slowly method is slightly more aggressive than simply repeating the question. As such, you may want to use it only after the technique of repeating the question did not produce the desired results. It can also be used in conjunction with the repeat the question technique as was done in the above example.

3.        Ask the Question with Opposite Facts

This tactic asks the witness a question similar to the one that was purposely avoided. The twist is that the new question contains facts that call for a conclusion that is opposite from the conclusion that was called for in the question that the witness avoided. The technique exposes the absurdity of the efforts by the witness to avoid the initial question. Borrowing again from the facts of the first example, the method is shown below:

Question:  “He was driving straight?”

Answer:    “Like I said, your client was speeding and driving with his high beams on.”

Question:  “He was driving straight?”  [The question is repeated verbatim.]

Answer:    “Again counselor I was focused on his speeding.”  [Still trying to evade the

question.]

Question:  “He went into the opposite lane?”  [The opposite facts technique is used.]

Answer:     “No.”

Question:  “He traveled from lane line to lane line?”  [The opposite facts technique is used

again.]

Answer:    “No.”

Question:  “He hit the curb.”

Answer:    “No.”  [The witness is starting to wonder about how long you are going to ask about

opposite facts that did not occur. The witness is hoping there is a way out. Now is

the time to give the witness a way out. All he has to do is answer the question.]

Question:  “He was driving straight?”

Answer:    “Yes, yes.  Alright yes. For crying out loud, I never said he wasn’t driving straight.”

[We make a mental note that the witness does not seem to like this particular

technique.]

Best Time to Use:  While the technique can be used almost any time, it is best used when you are discussing easily understood facts. The reason for this is that incorporating opposite facts into a question is more problematic when the topic you are addressing is already somewhat confusing. For example, it may not be best to use it when you are discussing the inner workings of the gas chromatograph. If you are going to use this technique, be sure that you have at the ready at least three opposite facts to use.  Otherwise, you will lose the fluidity of your cross-examination while you struggle to come up with compelling opposite fact questions.

4.       Offer to Rephrase the Question

One of the gentler ways to insist that a witness answer your question is to apologize to the witness by suggesting that perhaps the reason the witness did not answer the question was that the question was confusing. Follow this up with an offer to rephrase the question. Only the rudest of witnesses can fathom up reasons to avoid answering your question under these circumstances. The technique is shown beneath:

Question:   “I want to ask you some questions about the Walk and Turn Test. [Using a transition

phrase to make it easy for the jury to follow the cross-examination.]  Mr. Jones put

each foot on the imaginary line?” [Mr. Jones is our fictitious defendant.]

Answer:      “Yep.” [Pretending to be casual so as to downplay the significance of the defendant

getting this part of the test right.]

Question:    “He kept his hands at his side the entire time?”

Answer:     “I don’t see anything in my report about that.”  [Apparently only bad stuff goes in the

report. Later on this will be a topic of another area of cross-examination.]

Question:    “Forgive me. If you do not understand my question please tell me and I will

rephrase it. What I was trying to ask you is if Mr. Jones kept his hands at his side

during the entire test.” [The technique is on full display for the jury, and for the

soon to be cooperating witness.]

Answer:       “Oh, yes.” [Feigning that he now suddenly understands the question.]

Best time to Use:  Offering to rephrase the question is something you want to consider using early in your cross-examination.  Using this technique at the outset of a cross-examination tells the witness that from here on out the witness cannot try and hide behind the excuse that he did not understand the question. It is a nice pronouncement to make early in your questioning so that everyone in court can hear the rules of engagement.

5.        So Yes Is Your Answer?

Another simple technique in getting a witness to directly answer your question is to ask the witness if what she meant by her answer was “yes”. This technique tells the witness that you will be politely insisting on direct answers to your questions. Here is an example:

Question:  “You assumed that my client had an average Widmark “r” value when you calculated

how much she had to drink.”

Answer:      “I have no reason to think she had anything but a normal value.”

Question:    “So the answer is yes?”

Answer:      “Sure, yes.”

Best Time to Use:  The technique is pretty much equally availing throughout any portion of your cross-examination.

About the Author

Donald Bartell is a partner in the law firm of Bartell & Hensel in Riverside, California. He has tried virtually every type of DUI case—from first offenses to homicides.

Mr. Bartell served as President of the California DUI Lawyers Association (CDLA), the oldest continuous DUI organization in America. He has represented CDLA as an Amicus Curia in cases involving DUI related issues in both the California Supreme Court and the United States Supreme Court. Mr. Bartell participated in the most extensive DUI jury research project ever done, a joint effort by CDLA and The National College for DUI Defense.  He is a frequent lecturer on DUI trial tactics and the author of California DUI-related legislation.

Mr. Bartell is a Phi Beta Kappa graduate of the University of California Berkeley, and a graduate of the University of Notre Dame School of Law.

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