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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Job description. Go back and check out what the job description is. When he took the job. When he got hired. What is it today? You find out some interesting things. Maybe the job description was that he was supposed to assist law enforcement. Assist law enforcement, not arrive at the truth, not be objective. Not to analyze evidence and come up with accurate results. Not calibrate; assist law enforcement.

A number—in California, in particular, but, in a number of states, these technicians are classified by law as law enforcement officers. Some of them carry badges to show other officers when they get stopped on speeding tickets. Find out. Find out. Is this person categorized as a law enforcement officer? Imagine what you can do with that on cross-examination with this "objective" scientific expert. Is he carrying a badge? Ask him, if you know. Ask him to take his wallet out. Show the jury.

"How many times have you testified, Mr. Jones?"

"Well, 672."

"How many of those times did you testify for the prosecution against the defendant?"

"Uh, 672."

"You have never testified on behalf of the defendant in a criminal case?" Sometimes he'll say, "Oh yes I have, oh yes."

In every case it will be because he was subpoenaed by the defense attorney against his will.

Now let's talk about the two areas that I discussed in terms of specific issues and specific areas. First, the generic, the theoretical. And by this I mean really the general reliability of this machine. And I'm going to suggest a few specific approaches. Not all of it should be appropriate for you. Not all of it should be used in a given trial, but I put them out there for your consideration.

The first is what I call the "smart machine." A lot of this is in your materials—your written materials that you have. This expert is going to testify that that Intox 5000 or the Intoximeter 3000 or the BAC Datamaster, Verifyer, whatever, is a state-of-the-art machine. It is—it has fail-safe devices. It's got an RFI detector. It's got a slope detector. It's got an acetone detector. Why, this thing self-diagnoses. It diagnoses itself. It corrects its own problems. We can do it 10 miles away by modem and diagnosis it. This is an incredible machine.

What I would call the smart machine approach. And approach; "Officer—not officer—Mr. Jones." You might, by the way, make that mistake a couple of times with him. Accidentally on purpose.

"Mr. Jones, as of four years ago, this jurisdiction used the Intoxilyzer 4011A, correct?" Or the Breathalyzer 900A or whatever.

"Yes sir."

" Have you testified in court in DUI cases with the Intox, with evidence from the Intoxilyzer 4011A?"

"Yes."

"Do you—don't you now, after seeing this marvelous machine that you've been testifying about, don't you consider the 4011 a relatively primitive device?"

"Well, it was okay for its time. You know."

" But compared to this it was a machine that really wasn't quite as accurate or reliable, isn't that true?"

"Well, yes, that's true."

"When you testified in court on those cases, Mr. Jones, did you tell the jury it was a dumb machine?"

"No."

"Did you, in fact, testify that it was state-of-the-art, accurate, reliable and not a problem? Just as you have done today with this machine."

"Yes, sir."

Okay, another tactic is one that John Tarantino uses. John's one of the Regent's at the College. He's at Providence, Rhode Island. Publishes a DWI letter. Um and by the way, these, all these different ideas, I hope you realize they're not my brilliant concoctions and inventions. You know, I go to these seminars partly to steal from some of the other speakers and put 'em in my book and talk about 'em. What I'll do—it's the only way really you spread the knowledge and learn. John Tarantino has an approach called "The Spiked Aspirin". And you ask the expert, "Mr. Jones, this machine does make mistakes, doesn't it?"

"Well, not very often."

"Well it's not dead accurate 100% of the time, is it?"

"Um maybe not 100%."

"90%?"

"No, more than that."