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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Now, what to cross-examine about? We've considered who. What do we cross-examine about? There are basically two theories you're interested in. The first is the theoretical. That is, areas that will always be relevant in cross-examination of a breath, or blood, or urine. There are always, intrinsically, sources of problems with the machine, no matter what happened in the specific case. Examples might be, um, the 2100-to-one partition ratio. Bearing in mind, I understand, those of you from California and a few other states; the legislation, the legislatures have passed laws against science and banned you from talking about those subjects.

So you have two different areas. You've got the generic, the theoretical and then you have the specific. The specific is the case—the facts that exist in your particular case. Rising blood-alcohol concentration, for example, in attempts to retrograde extrapolate. Blood in the mouth as a result perhaps of an accident. Specific to your case.

Alright. Just a few words of advice of strategy, tactics, whatever. First, I would strongly suggest don't shotgun. Rick mentioned just a few moments ago you shouldn't try to convince the jury that this machine is totally a piece of junk and everything's wrong with it and so on. Don't shotgun. Use a rifle instead. Pick a few specific areas, particularly if they're relevant to your case and your facts and focus on those in depth, in detail. Never shotgun. Now, I have shotgunned. There are cases—maybe you don't have any facts to work with in your case. Maybe your position is going to be: this machine is just inherently unreliable and you shouldn't - uh, consider it in attempting to reach a verdict beyond a reasonable doubt. But, generally, don't shotgun.

Secondly and I believe Ed yesterday, Ed Fitzgerald yesterday mentioned this. Make it understandable to the jury. You're dealing with a lot of scientific terminology that you have become, or will become, used to using. And partition ratios—very familiar; everyday language to many of you. It is not to the jury. Make it understandable. Make it understandable in your questions, your arguments and so on, but also with your witness.

Ed was talking about in the defense expert, to make sure he, he makes it understandable to the jury and make it look like you're the one who doesn't understand. I absolutely agree, but do it with the prosecution's expert too, but there is a different approach there. Make it look like he's trying to talk over their heads. "For those of us, Mr. Jones, who are a little slower, can you please tell me what you mean by a partition ratio or so on?" You know, force him to come down to your level, i.e. the jury's level. Force him to speak English. Also, analogize and this is part of the same thing, analogize everyday things if you can. Draw analogies to things that the jury is going to be able to understand.

And finally and I'm not terribly good at this, but some of the guys are really experts and that is use visuals. Use visuals whenever possible. Graphics, demonstrations, toys. Good comedy. They have some great toys to play with and I'll show you. Anybody who hasn't seen Phil play with his police car with the lights turned off just hasn't really realized the potential of what can be done in a jury [court] room.

Okay, let's talk about a few specific techniques. And, again, I've got one hour in which you are supposed to demolish the case so I'm going to skip over a whole lot of areas fairly superficially just to get you pointed in the right directions and to suggest to you a few possible tactics.

First off and this was covered somewhat quite a bit yesterday by Ed and that is as to the expert—the qualifications of the expert—and I would add, now that we're dealing with the State's expert, the bias and just a few things. You obviously have his resume. You've done some background checking. You may have worked with this guy in the past. And, as Ed said, publications—there are approximately 50 blood alcohol experts in the Los Angeles and Orange County area where I practice, depending on which crime lab you're dealing with. Each one's got a staff. In all the years I've been practicing there, I know two of those—these guys are technicians, they're not experts—two of these guys who have written articles, in both cases for the State Criminalistic's Association. So by all means, establish and make sure right up front these guys have not published a thing and contrast that with your own expert if you have one.

Secondly, in most of the cases that I have encountered, well, in almost all of them, they have bachelors degrees. They have a bachelors degree from Long Beach State College in chemistry. Major in chemistry. Well, you know, I have a bachelors degree from Berkeley in history, does that mean I can go out and become a Professor of History? No. Does that mean I'm an expert in history? Absolutely not. That's why I had to go to law school. I am not an expert. Make sure they understand that he has majored in chemistry or biology or whatever and he has a bachelors degree.

Now, an awful lot of cases I've had—in the qualifications of the expert by the prosecutor—the expert will say that, "Yes, I have a bachelors degree and I'm working on my masters degree." How many times have you heard that? "I am working on my masters degree." I hear it over and over again. What he means usually is he got his bachelors degree 12 years ago and he took a couple classes eight years ago. Find out through discovery or whatever—of course, you don't ask questions you don't know the answers to. Many times I'll say, "Well, Mr. Jones, you say you're working on your masters degree. How close are you to it? When was the last class you took?" And usually they question [answer] like, "Well I'm not really sure, some time ago." He will go around and around. You nail him. He'll say "Well, uh, eight years ago." Now the jury resents that. They resent being hoodwinked. He is not working on his masters degree and it shows insecurity. Has not completed his education and he's getting one today.