Pozner and Dodd literally wrote the book on cross examination. For cross examination in a DUI case, one tip from Larry Pozner is actually a very sophisticated approach to cross examination which can be adapted to DUI cases. At first, it may seem like his idea applies just to a particular type of common situation. It’s actually more akin to an entirely different philosophy on cross examination overall.
As Pozner puts it, DUI defense attorneys, including some of the best Orange County DUI attorneys, make a common mistake when they think they have succeeded in destroying the credibility of the officer. The more sophisticated approach is to arrange things so that the officer is given the choice between hurting his case and hurting his self-image. Defense attorneys help him by letting himself-imageself image. If he sees us as his friend and ally in protecting his self-image he may help us rather than fighting us on every little thing.
Anything he says after that that helps our case will be more believable coming from the officer. I might add that by attacking the officer we also risk looking like some arrogant condescending DUI defense lawyer picking on the hard working officer who’s just trying to do his job. That’s not going to help us either if we choose the destroy the officer route. We all want to see the witness led away in handcuffs at the end of our cross but the reality is that’s not going to happen
So how does this actually work in a real case? At the motion hearing, the arresting officer said my client had a very strong odor of alcohol. The arresting officer came up on the passenger side. The backup said he didn’t really notice much of an odor then and he was on the driver’s side.
What most lawyers would’ve done would be to use this to make it look like one of the officers had to be mistaken. I would have forced him to admit that either he got it wrong or his partner did. “Ladies and gentlemen the only thing we know for sure on this issue is that at least one of the officers got it wrong.” So I’m there saying bad things about the officer which may be resented by the jury if they identify with him more than they do with me. I’m there trying to make the officers look stupid. Anybody who didn’t do well in school is going to empathize with somebody pubically made to look stupid. So my point could backfire on me.
So what do we do instead? Pozner made explicit something that we’ve all sort of known intuitively for a long time. If you give the cops a choice between hurting his case and hurting his image of himself as a good cop the cop will choose hurting the case. And if we can get the cop to do that, what better witness can we have for our side than the arresting cop himself?
So after the prosecutor finishes building the arresting officer up with all his great training and experience we refer to that and then ask him the same type of questions about the backup. When it turns out they’re both well-trained good cops then how could they come up with opposite opinions? We don’t ask them this, we give them the choice between hurting their case and hurting their egos.
Maybe we do at something like this: Now officer you’re both highly trained and experienced officers. Yet you came up with very different opinions about one of the most important issues in this case, odor of alcohol. Now officer don’t get me wrong I’m not saying either one of you was lying or mistaken or had a bad memory. I think I know what’s going on. See if this sounds accurate to you.
The simple fact is that two good officers can, in good faith, have very different opinions about something like that, true? A lot of the judgments that officers make in drunk driving cases aren’t cold hard facts but rather matters of opinion? And two cops can disagree about matters of opinion?
Then on closing we say something like this:
“Drunk driving cases are sort unusual in one way. They’re not like other criminal cases where the issue is was somebody murdered or something like that. You’re being asked to rely on the officer’s opinion instead of facts. The problem with that is opinions can vary as you have just seen. You don’t have to take my word for this. The officer told you so. Even good well trained officers can have very different opinions in drunk driving cases.”
Suppose there was no odor of alcohol at all in this case. There wouldn’t be much of a case without that would there? So the smell of alcohol is pretty important isn’t it? But now we see that this is just a matter of opinion. It’s like deciding who makes the best pizza. So the officers have different opinions on something that is central to the case. So you might want to ask yourself if you are going to convict on an opinion like this. And are you going to do that in a case where the officers themselves don’t agree.