The Magic Memory

The DUI defense attorney who finds himself in a drunk driving case will quickly become aware of a rather incredible natural phenomenon: The superhuman memory of the arresting officer. He will discover that this witness possesses mental powers far beyond those of mere mortals - the ability to recall the facts of a DUI investigation in finite detail many months after the fact. And this despite the fact that the event was undistinguishable from dozens of other drunk driving arrests made by the officer during the period.

Nowhere is this awesome talent more apparent than when the officer calmly walks to the chalkboard during direct examination in a DUI trial and carefully draws a diagram of the defendant's performance on the "walk-and-turn" field sobriety test. The diagram, probably reproduced from the arrest report, will feature two straight lines or arrows and a series of steps. Commonly, there will be nine steps in each direction, with a circle representing the right steps and a triangle the left. The effect is, of course, impressive: The jury is able to see a clear and accurate record of the defendant's pathetic performance at the scene of the DUI arrest.

The officer will then, perhaps, go on to diagram in similar fashion the finger-to-nose test (circle for left finger, triangle for right, two touches each on various parts of the cartoon face) and the alphabet recitation ("The defendant missed b, r, w, and repeated x"). He will, of course, already have diagrammed in impressive detail the entire course of the defendant's car while following him - every weaving, swerving, and drifting motion for over a half-mile.

All of this the officer can recall now from the stand quite clearly and with considerable confidence.

The "magic memory" is a tactic designed to point out the obvious: No one can recall an event with this kind of detail -- not even the DUI "supercop". It must, however, be preceded by a series of apparently innocuous questions designed to establish two simple facts.

First, early in the cross-examination the defense lawyer should have developed the officer's reliance upon the DUI arrest report to "refresh" his recollection. In doing this, it should be clearly brought out that the report was written at some time after the arrest; commonly, this is done an hour or two later at the police station.

Second, the lawyer must discretely establish what the officer had in his hands while the client was performing the DUI field sobriety tests. Again, the usual reply is that he had a flashlight in his left hand and nothing in his right (it is the policy of many law enforcement agencies to require officers to keep their gun hand free during such detentions), or that he had nothing in either hand.

Counsel can now proceed to the payoff: How was the officer able to remember the walk-and-turn test in such incredible detail two hours later when he drafted the DUI report in the police station? How could he recall where each of eighteen steps landed - and each as to angle and relative distance? And the four locations where the fingers missed the nose? And the alphabet? And every maneuver of the defendant's car? And every statement he made?

A common reply by many officers at this point in the DUI trial is to claim that he was taking notes on a "field pad" as the defendant performed the tests. And this, of course, is why the seemingly innocent second series of questions were asked. The back door has been shut: The officer could not have been taking notes if he had a flashlight in his left hand during the DUI field sobriety tests.