One of the purposes of allowing cross examination of witnesses is the idea of confronting your accuser. The theory is that the credibility and sincerity of a witness accusing you is best tested by live cross examination.
A few days ago, while sitting in court waiting for my client’s driver’s license suspension hearing to start, I watched an attorney conduct his cross of the officer who administered field sobriety tests to his client. The lawyer had a list of well prepared questions written out, which he then asked of the officer, one by one. Unfortunately, the method he used was basically to have his head down the entire time, reading the questions off of his legal pad.
When the lawyer got to the part about how the officer administered the HGN test, he had a pretty good line of questions he asked, such as:
How long did you hold the stimulus at maximum deviation?
How did you measure nystagmus prior to 45 degrees?
How many total passes did you make during the HGN?
What the lawyer missed, by burying his head in his notes, was that the officer actually pulled a small “cheat sheet” out of his pocket, which gave him all the “correct” answers to these questions. These apparently weren’t notes from this particular arrest (trust me, no officer would make those sorts of detailed notes on every arrest), but just genereal guideline answers.
Not surprisingly, the officer got all of the questions right. But he was just reading his own pre-prepared notes, probably jotted down right of the NHTSA field sobriety test manual itself.
If the attorney had noticed this, he could easily have asked the officer to testify from his own memory of the event, or at least noted for the record that the officer was reading his answers from a sheet. Because he wasn’t paying attention to the witness, he missed this entirely.
One of the reasons I ask for driver’s license hearings in every DWI case is that it gives me the opportunity to cross examine the stopping and arresting officers. Several times, in cases that otherwise seemed somewhat hopeless, I have found out things about a DWI case that are extremely helpful. One of these things can be as simple as… the officer makes a really poor witness.
Complete and thorough preparation for cross examination is essential, but don’t forget to watch the witness testify. Evaluate his demeanor, and always ask yourself this: “Would this police officer make a good witness in front of a jury?”