Demolishing the State's Test Results
Through Cross-Examination

Note: the following lecture was presented by Mr. Taylor in 1997 at a national seminar in New Orleans entitled "Mastering Scientific Evidence in DUI/DWI Cases."

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Like Jess Paul said yesterday, you know, he got a phone call from Bubba — I got one three or four months ago — and Bubba said, "Can you talk at this seminar in New Orleans" and I said "Sure."

Bubba always throws great seminars. You never say, "No." And he said, "Well how 'bout if you talk about cross-examining the blood-alcohol expert." I said, "Okay." And about two months later in the mail I got the brochure and I learned that after my one hour presentation here, you are going to know how to "demolish" the State's blood-alcohol case. Uh, maybe not, maybe not, but I think, I hope to be able to at least point you to a few areas that you may not be familiar with and also to suggest to you some tactics, some techniques that have been useful in the past.

Initially, before we get started. I'd like to suggest and, for those of you who've heard me talk about cross-examining the police officer before, it's the same, essential, overall strategy. Not about the officer, but the overall case. You've got to have a uniform approach to the case — a theory of the case — a way to approach the prosecution's case. And the approach I have used successfully in the past is simply that you put the machine on trial — or the blood test or the urinalysis and in the vast majority of cases this should be the machine.

Put the machine — and by the way again — notice and I always say this, it is not an instrument. Don't ever call it an instrument. It is a machine. Juries understand machines. They don't understand instruments. Instruments have a scientific aura to them. Washing machines, fruit blenders, whatever, they understand those and this is a machine and it does make mistakes. It does break down.

Put that machine on trial. You do it by attacking it at every opportunity. Long before the jury gets there you have attacked it with discovery motions, suppression motions. You've attacked it in voir dire. You've attacked it in your opening statement, on cross-exam of the officer, of the expert, if there is one. You've attacked it if you've got the luxury of a defense expert. In your closing argument. In your instructions. You are constantly attacking that machine and three things happen.

Inevitably, invariably three things happen and the first is the prosecutor takes the defense in attempting to defend his beloved blood-alcohol analysis. And you cannot win by defending. The prosecution is not going to win by defending. So, you've redefined essentially the rules of the game.

Secondly and most importantly, by the end of the trial you have re-focused the trial. That is, the focus of the trial has changed. The focus at the beginning of the trial, the issue was, was your client under the influence and/or over .08 beyond a reasonable doubt.

At the end of the trial when the jury goes in the deliberation room, the focus, the issue should be and will be, if you've done your job: Was that machine reliable and accurate and working correctly beyond a reasonable doubt? And I don't care if you're talking about the .08 or the DUI count.

And lastly the officer's testimony is de-emphasized, perhaps even overlooked in this focus on the machine.

Okay, how do you accomplish this? Who do you cross-examine? Well, first of all you cross-examine the officer to the extent that you can. He is the one, presumably, who operated the machine. If not, then you're dealing with cross-examination of an operator and it's going to be very limited. And you want to make sure that that jury understands why it's limited. This guy is not qualified. Don't assume they realize that a police officer doesn't know a thing about a machine. You've got to demonstrate that for them. He is not qualified. Doesn't have the slightest idea what he's doing. He is checking off boxes on a list. But you can establish certain things. Certain areas. One of the most critical — and we'll talk about this-is the 15, or in some states, 20 minute observation period. If you're dealing with the urine, the urine void. If you're dealing with blood, his observations of the withdrawal of the blood. We'll get into those.

In the vast majority of cases, of course, you're gonna be dealing with the state's forensic expert and that's what we're going to primarily concentrate on here. In some few states, apparently the State is not required to produce an expert and you might consider subpoenaing that expert and you calling him — the analyst — the person who's in charge of calibrating the machines — whatever — you subpoena that person and, of course, make sure the jury understands that you were the one who produced that witness and then cross-examine him. This is not only helpful in the specifics of the case, it is a conduit for you to get in information from a number of scientific journals, articles that you're going to want the jury to know about.

How do you know he's read those articles? Because you mailed them to him two weeks before he testifies. And you have a cover letter saying you're going to cross-examine him about these articles. And, of course, if he plays cute and says I didn't bother to read them or whatever, you make sure the jury understands that this so-called expert in his field is not interested in keeping up with the scientific literature put on his lap in his field.

The third person who you could not cross-examine, but examine if you have the luxury, certain of the public defenders here may not. Others of you, whose clients may not, if you have the luxury, certainly hire an expert. I would strongly recommend people like Dick Jensen, Rick Swope and so on, but I understand again the financial limitations. You might consider looking at your local college faculties for possibilities for witnesses. Professors of physiology, chemistry, whatever, medical schools.