Demonstrative Cross-Examination of an Officer
Larry Taylor

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(Starts in a Random spot question a person in the seminar)

The question you ask him where he is going? Where he is coming from? What time is it? What day of the week is it? What Highway are you on? What is the purpose of these questions?

Student: Well, to let me know that he has an awareness that does not go by alcohol.

You are protesting memory and perception, correct?

Student: well, yes sir.

You are testing that is alcohol has impaired his mental facility.

Student: Yes sir.

Where was he wrong?

Student: He was wrong on the time. He had actually said that the actual time was a little after 2:00 when it was 2:30.

Then he was a half an hour off on the time at that hour of the morning, correct?

Student: Yes sir.

And your ability to see that was the indication of intoxication?

Student: Oh yes sir.

You expect a sober person to tell you exactly what time it was without looking at their watch, correct?

Student: Yes sir.

Anything else that was wrong that led you to believe that this person was intoxicated?

Student: Yes sir, his clothing was disordered and he appeared to be uncooperative.

In other words, he got them all right, correct? Every question you asked, he gave an intelligent response to. He understood each of the 30 to 40 questions you asked him.

Student: I got an answer so apparently so.

Does that indicate to you that there was no impairment of his mental facilities at that point in time?

Student: Well, I didn’t get an answer, so I guess so.

If mental impairment is impaired first and there is no mental impairment, would you be surprised if at that time he was physically impaired?

Student: I’m sorry I didn’t understand the question.

You have testified that mental impairment has occurred at first at a lower level of alcohol concentration?

Student: Yes, sir.

And we have determined apparently according to your question designed to determine whether there was mental impairment, there was not.

Student: I would agree with that. Yes, sir.

Yet, you are testifying that moments later you found physical impairment from his performance on the field of sobriety test?

Student: Yes.

Do you have independent recollection by the way of all the events in this case?

Student: Well, I can review this before I come to court, I believe this is the second or third DUI that I have ran across this particular evening. My job is generally to write down the DUI’s, I generally have to depend upon these reports.

Is it a fact that you read this report a number of times before testifying here today, did you not?

Student: Several times, yes sir.

Do you have the defendant’s recollection of the facts or are you testifying from a ________________

Student: A little of both. Not everyday do I get photographed for a TV session.

Did the ah, defendant, ah, cross over the lane lines, dripped across lane lines?

Student: No, sir.

That’s just common sense, is it not?

"[Unmiked student speaking]" Yes sir

Did he exhibit erratic speed?

"[Unmiked student speaking]" Not erratic

Wouldn’t that be what a sober person would do when he had an officer on his tail?

"[Unmiked student speaking]"

Did he stumble when he was walking?

"[Unmiked student speaking]" I don’t recall

Did he exhibit an unsteady gate?

"[Unmiked student speaking]" I don’t recall

Did he use any profanities when talking with the Police?

"[Unmiked student speaking]" no sir

These are all symptoms you are all looking for, in an DUI investigation, are they not, among others?

"[Unmiked student speaking]" Yes sir

Return to Lectures

Demonstrative Cross-Examination #1

Demonstrative Cross-Examination of an Officer
Larry Taylor

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Please show me where those appear in your report.

"[Unmiked student speaking]" Well

That he did not exhibit those symptoms.

"[Unmiked student speaking]" I don’t have them.

In fact officer, anything that you did that night did not go into your report, did it?

"[Unmiked student speaking]" Well, we are taught to write down all the things that were wrong so that we can recall them.

So you only put incriminating facts in your report?

"[Unmiked student speaking]" that’s true

And anything showing innocence you leave out?

"[Unmiked student speaking]" Yes

And your testimonies here today you are relying what’s in your report to testify, are you not.

"[Unmiked student speaking]" Yes I am

Officer, let me give you a hypothetical situation: If you had the exact same facts that you had here, The driving, the objecting symptoms and the unfailed sobriety test and you later arrested that individual and took him into the station and then put him on the same machine and the machine read .03, .04, what would you have done?

"[Unmiked student speaking]" If the machine says to turn them loose, I turn them loose.

So at that point in time you have determined that that in despite of all of the facts that you have testified here to the jury that you would not feel that this individual was not under the influence of alcohol?

"[Unmiked student speaking]" Well if the machine says to turn them loose, I have to turn them loose.

All right, time is running out. A couple of comments and then lets ask questions. First of all, obviously this is a abbreviated cross-examination; normally it takes about 8-10 hours of cross-examination of the arresting officer. This is just a way of skipping across a few of the issues that I know, seen a lot of __?__ to deal with on the cross. Secondly, now this is not rehearsed by the way, all I have told him that is try to get in some trouble and make it difficult and ah and we assumed a couple of facts that were not in the report. You’ll notice that I did not use any audio and visual. No toys. Like Dick uses. I think they are wonderful. I think they’re great. I wish I was good at them. I’m not. I have been doing this for 27 years and I’m set in my ways. I have been teaching Law School ____?_____. And so I don’t do it. I think it is a great idea but it’s not my style and I’m not going to, ah, adopt someone else’s at this stage, but if you could use audio, visual, toys, amongst your evidence, whatever, I strongly recommend it. It is a great idea. Ah, any questions about, ah, the cross-examine. Either ideas, ah, about how you would have done it or what I did wrong or whatever?

"[Unmiked student speaking]" -I think you did a great job…

Thank you. I think you might be right.

"[Unmiked student speaking]" Cop – One thing that I would have added, is the officer's mistakes can be further magnified by using the varying issues that he used against this ____?____. What time is it? ___?____. I think I would have asked the officer how long you have been testifying on the stand? And then I would have guessed any number of things that would have been off because I don’t know. And I may be making the same mistake that is ____?____.

OK, first of all, I always prepare that. Hopefully, I get the guy at the DMV hearing and I take the court assessment __?__. What I want to get him saying that he has got that flashlight and that gun hand free. You know, where we practice __?__ is the policy that the CHP, the Sheriffs, everybody, to have the gun hand free to top that. And they are going to want to very fair, meaning all kinds of lighting meaning everything to make this fair, so they are going to say that a flashlight, now sometimes they are going to say to tuck it under the arm, You have to deal with that. Ah, but you want to make sure the situation where he already claims that he already has field notes, you could show that he could not have. Now, having said that, the guy, the rear guy has it under his arm and his gun hand, he sees it coming, he’s heavy before, he knows and he is writing notes, then you want to know, you want to develop to the jury why he destroyed his notes. Are you aware in these cases that the defense attorney wants to see your notes, etc, etc… There is no good reason to destroy the notes unless you are hiding something and you can develop that one.

Demonstrative Cross-Examination #2

Demonstrative Cross-Examination of an Officer
Larry Taylor

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"[Unmiked student speaking]"

My—in my trials and – LA, California is a little different. A terrible state for DUI’s. Terrible. One of the few good things we have is 12 people in a box. And, considerable leeway. They got to produce experts, usually have to have at least two cops and so on and you have to do the same. So the trial tends to take longer, typically 3-4 days. I’m just telling some of the guys that I just finished on in San Pedro that took 3-and-a-half weeks on a first time misdemeanor 1616. 3-and-a-half weeks. And I had a cop, a LAPD cop, 2 cops total on the stand, case ______, rebuttal, sur ruttutal, ah, for probably 30-40 hours for those two officers. And that’s unusual but, generally, yes 6-8 hours on the arresting officer. On the partner I try to get rid of normally pretty quickly as if he doesn’t matter he’s just, you know, officer, you’re a partner, you are a back up, you had him backing him up that day, aren’t you? That kind of thing. Get him out. The arresting officer, you want to, yeah I spent 6-8 hours and I catch crap from the judges, sometimes and sometimes the judges enjoy it. But, you know it all depends, yeah but usually 6-8 hours. And I realize that is the luxury in a lot of the states you practice in.

"[Unmiked student speaking]"

Can a battery issue be ____?

"[Unmiked student speaking]"

Well I mean concerning the argument, I think you need to attack each one if I understand your question. First of all, it should take about 12-15 minutes and that is why I got it down to, either a one-minute window to do all of these tests. Surely there is a problem. Ah, second, I didn’t go into it, but he was getting that that are not standardized. OK, off is that test and for a couple of others there are a couple of others in there that were not standardized these are things that, you know, with 6 hours of test, cross examination you can develop. So far as if one test is invalid, __?_ 2 or 3. I don’t see that. I don’t think any judges will suppress it on this basis and, ah, I don’t take that approach, I got to attack each test separately, because the jury, they aren’t lawyers, they’re common sense. They’re going to look at it. If you screw up one test, then ok, what about the other two? They stand on their own, I think. And you got to get rid of each one. Preconception of the officer, predisposition of the officer these are ways of course of backing off. Yeah

"[Unmiked student speaking]"

Called the arresting officer?

"[Unmiked student speaking]" Yeah.

Well I don’t have to. I don’t understand. I mean the DA calls him, my cross-examination.

"[Unmiked student speaking]"

In the defense case? Does it have ____ witness?

"[Unmiked student speaking]" Yeah

I suppose you could do it. What I find usually that the DA goes back to the cop and the expert again on rebuttal. Not necessary but often.

"[Unmiked student speaking]"

No, it’s in my book. But I didn’t come up with it on my own. I got that from the articles but I had cited in cases of authority.

"[Unmiked student speaking]"

Well actually, What I find is that the officers don’t know but they don’t want to admit it. And you got a book there, of you got the ___?___ manual, whatever and you are looking at it and you say, "Officer it's a fact that caffeine, ___?____ and nine times out of ten he’ll say "I don’t know, or I think so, I heard that." I rarely have I had a cop tell me once he realizes once he realizes that I know what I’m talking about and they figure it out very quickly, ___?___. They’ll say that, ah, I heard that. Very rarely will they say that "absolutely not, No." They don’t need it and they don’t _______.

"[Unmiked student speaking]"

Well I don’t go to the cops, but yeah, this is something that I have lectured to many of you before. I have sent scientific journals to their experts witness days before their testimony. Ah, so that they can read it and I can get it in. Ah, through their cross exam. Ah and when they say, "Why, I haven’t read it." Then I can say..., if they don’t, then you can bring out the opposite, you know, of some expert you got here, __?__ that’s not even interested in the literature in his field and is dropped in his lap and told he will be cross examined. So it is a good way to..., particularly if you can’t afford your own expert, to use their expert if you have one in your own state, if the prosecution uses one as a conduit to get the scientific evidence.

Demonstrative Cross-Examination #3

Demonstrative Cross-Examination of an Officer
Larry Taylor

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"[Unmiked student speaking]"

I never had one do it.

"[Unmiked student speaking]"

What I normally do and now again this is abbreviated. What I normally do is that I have them do something like that. I will sometimes use my client. I will sometimes do it myself, I have even used a cop. So, I will have it diagramed and 3 hours later, 2 hours later, whatever the same period of time is, here it is 2 hours, I will say " Officer, it has been 2 hours since __________________________—. No human being can.

"[Unmiked student speaking]"

That’s tough, you see in California, we live in a unique place, ah, they don’t recognize this, they don’t recognize the rest of the United States most of the time. They don’t recognize the statewide field sobriety test. But, the CHP for example and the LA Sheriff’s and so on, do use the manual, they reproduce is what they do, in the student manual, for the officer’s going through the academy. It is identical. They just don’t refer to it as a _____ and so on. So what I’ll do usually is have the CHP’s manual for the CHP’s Academy and a lot of the police department’s in California send a copy to their academy, CHP DUI training.

"[Unmiked student speaking]"

Well the Southern California research institute’s in Southern California, but we don’t recognize that. At least not in Northern California.

Yes, the back row.

"[Unmiked student speaking]"

One thing I have done along the lines, not the same thing, in California, almost all of the arrest, they don’t need cards, they got it written on their arrest reports and I notice in Washington state, on the front page, it lays out the Miranda rights to be read and then signed. And almost, once again in California, almost never do you see Miranda actually ever being given because they are smart because they do all of the questioning before the arrest, arrest the guy, then they have nothing more to say to the guy after them arrest, so they don’t bother with the Miranda. What I find interesting is juries, one of the few things they know about is Miranda’s. They have seen so many TV shows and they think you are supposed to give it and the cop is cheating if he doesn’t give it, no matter when. And I want to bring out not that it is irrelevant to a damn thing, I just want to bring out that the cop never gave the guy a Miranda. It makes him look like he is not playing by the rules.

"[Unmiked student speaking]"

Question?

"[Unmiked student speaking]"

Well, of course, they always say destroy it, ah at least in my jurisdiction.

"[Unmiked student speaking]"

I think you don’t understand what I am saying. The cops don’t do rough notes. There are none. Ever in most cases, but they’re destroyed.

"[Unmiked student speaking]"

Yes, there are some guys that actually do rough notes. In my experience most cops will say, "yeah I did notes, but I destroyed them," But they never existed and I am quite confident of that in most cases. Uh, but then again, you can develop them so why in the hell do you have to destroy these non-existent notes.

"[Unmiked student speaking]"

Oh, I just wanted, a hypothetical, I did, I would develop it if I had more time. What I’m trying to show is that all this is nothing. In most states, except California, you have two counts, you have 08, or the 1.0 in your state and then you have the DUI or DWI. The DUI or the DWI does not rely on the blood alcohol evidence, breath machine, but this cop who has given all of this _____ testimony, all of these tests, all of these observations, this terrible stuff and he’s going to cut this guy loose. He is so insecure and unsure of what he saw and observed that all it takes is some machine to say 03 or 04 on a separate charge that may be irreverent to presumptions and so on, that he’s going to cut that guy loose. All of that meant nothing since that machine disagreed with him. That’s what I’m trying to show. If it sounds overwhelming, but it doesn’t amount to much.

Demonstrative Cross-Examination #4

Demonstrative Cross-Examination of an Officer
Larry Taylor

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"[Unmiked student speaking]"

You’re not talking about that to a jury and that would not work for the judge in a free trial suppression motion.

"[Unmiked student speaking]"

Actually, I find that Jurors wake up during cross exams of cops. This is where they have been watching on television. A direct exam, ok, what happens next, what happens next, what happens next? _________. There are two things that they perk up: When a defense attorney and a cop go at it and when your client takes the stand, ok. And so I don’t really find it, a, ah and I ah for whatever reason I may, ah, I manage to find plenty of conflict in that 8 –10 hours and that keeps them interested. I don’t find it to be a problem.

"[Unmiked student speaking]"

That’s in Alaska?

"[Unmiked student speaking]"

We don’t have anything like that in California. But, ah, nor has any federal, nor any federal cases kept, but then again, we don’t always recognize any federal cases in California.

"[Unmiked student speaking]"

Yeah, I believe that. The ah, well, it’s the time, the perfect timing, Thank you very much.

CUT TO LATER (Conclusion)

This is the modern architecture of Austin Paul and I noticed in the front on the south side, there was an inscription. Chiseled in stone. "And thou shall teach them ordinances and laws. And thou shall show them the way ___________the walk and the work they must do." And on the east and west side of Austin Hall, are the Coats of Arms of Harvard University with a single word "Verifax," "Verifax." It was still said about four years ago - we met in Chicago, both lawyers, with a common idea, common dream. And we wanted to form a national organization and we wanted to achieve excellence in this newly developing special thing. To carry the law where they claim be__________. And our idea of achieving that excellence was to primary do education and the centerpiece of that education was to be an annual seminar. We didn’t want to call it a seminar because it wasn’t just going to be a seminar; it was going to be more than just an opportunity to learn from the very top people we could find in the field. We also wanted it to be an experience. We wanted you to be able to come, realize that you were not alone, to become emotional charged, go back to where you can fight again and to know that you are a part of a very special Fraternity. We chose Harvard Law School because we thought it would epitomize what we are trying to do. The first some of you that were at the first summer session, we called it the "Summer Session ________ Seminar," know that it was a success. There were glitches, there was busses that got lost, there was air condition and heat that kicked out. We had plenty of problems. Break out rooms that got locked, but it was a success. The second summer session for those of you that came, was even better. It was a success. But this clearly was the best. And I think the reason why it was best that we had; the primary reason is one person. It’s his leadership, his efforts and I can guarantee you the umpteenth time he devoted to this summer session time that began at the end of the last summer session, for the past year, time was devoted by the leadership shown by Doug Cowen. Now I would like to at this time present to Doug to not count only as a ____ honored and nationally respected peer, but ---------------