Pretrial Motions and Trials

Maybe your client is guilty. Maybe it will be easy for the State to prove that your client is guilty. That is, if they can get their witnesses to show up.

There are all sorts of reasons that defense lawyers set cases for hearings and trials, not the least of which is that they expect(well… hope?) that a judge will suppress some or all of the evidence, or that a jury will find their client not guilty.

Occasionally a client will even volunteer this as the solution to their problems, “What are the chances that so-and-so won’t show up, and my case will be dismissed?”

Continue Reading Witness Chicken (The Police Version)

I was in District Court most of the morning and saw an interesting set of events. As they unfolded, I paid more and more attention, but I’m sure I missed some details at the beginning. Here goes:

First: A prosecutor, a cop, defense lawyer Oscar Buitron, and the defendant at the bench. Testimony was being taken in a DWI case. Something about a CAD report and whether or not the officer really had called in to dispatch to check the license and registration on a vehicle as he had previously sworn under oath.

I suspected, and later confirmed, that it was some sort of continuation of a pretrial hearing that had already occurred. The officer was insisting that he indeed had called in to check the vehicle, but he was squirming, uncomfortable. Just a little bit. He’d testified before, so he was almost holding his own.

But it was obvious from the questioning that Oscar thought he could prove the officer was being… let’s say… untruthful. And more importantly that he had the goods to prove it. Then out came the CAD report itself (of course).

I had other things going on, but my interest was piqued and I managed to catch something about “if you press this button here”, “then you press that button there”, “blah blah blah”. They were up at the bench, no microphones, I didn’t catch everything being said.

After testimony concludes, there’s some chatter about resetting it to another-another-pretrial setting so that Oscar can bring in some more witnesses (APD officers no less) who will be able to show that the arresting officer’s testimony – that he had called it in, that dispatch had called him back and said the registration wasn’t current, but that he had then manually deleted that information from the CAD report itself – was impossible. (Never mind nonsensical. “Gee, let me take some time out of my busy day to erase the confirmation that this was a good stop.”)

Second: Probably 15/20 minutes later I’m chatting with that prosecutor about something completely unrelated, and the bailiff walks up to him and says, “The officer wants to talk to you”. He motions to the jury room. The prosecutor excuses himself from our conversation and leaves.

Third: Another half hour later… the defendant is back at the bench entering a plea. To back time on a misdemeanor.

Now I don’t need to see parts one and two to know that as a general rule when a defendant walks up to the bench in Felony Court and pleads to a misdemeanor, that he’s getting a significantly above average deal in his case. Never mind that it was back time: no probation, no more jail. Oscar was obviously well prepared and had gotten a good result.

By the way, I left it out of the initial description, but the prosecutor had brought out other traffic violations for the court to hang its hat on, so this was – despite the testilying – no slam dunk win for the defense.

I talked to Oscar afterwards (who among us doesn’t love it when one of our brothers or sisters ekes out a victory) and found out some more details.  It was a habitual case. The defendant had (at least) two prior pen trips and was looking at a minimum of 25 years if convicted on the indictment.

More invigorating (perplexing? commonplace?) still was that Oscar hadn’t known this would pop up during the first pretrial. The officer had already listed in his PC affidavit, and testified to traffic violations that weren’t demonstrably false, when he decided to just “add” the testimony about calling in the license to dispatch. (This is a favorite police “excuse” in my experience. Which is foolish because it’s one of the easiest to catch them on.) Nothing mentioned about it though in the PC or the offense report.

Oscar’s BS detector went off. He asked the judge to continue it, rechecked the tape which confirmed his memory that the officer appeared to discover that the vehicle was unregistered well after the stop, and ordered the CAD.

Mostly though, it’s that second step listed above that intrigues me so. The cop in the back room sweating and “needing to talk” to the prosecutor.

What exactly did that officer tell the prosecutor, when the bailiff alerted him that he needed to “confer”? I’ve never worked for the State, so I can only imagine the possibilities…

  • “Hey I’m not sure how intoxicated he was after all. Can you work out a deal?”
  • “Please drop this case… I don’t want to come back on it. Ever.”
  • “Quick question for you… what’s the penalty for perjury again?”

My friend and Lubbock DWI lawyer Steve Hamilton on a recent Q&A in a DWI voir dire:

So in this trial I asked the potential jurors about a hypothetical. What would you do if you only had one option, either convict an innocent person or set a guilty person free? Out of 20 people, 7 or 8 said they would actually convict an innocent person!!


I was actually somewhat shocked with the amount of people who said they would send an innocent person to prison. One person said he would do that and that he hoped he would be the person who was sent to prison to protect society.


I bet it’s a lot easier for that potential juror to say he’d be A-OK with being toted off to jail or prison for something he didn’t do… when he’s not the one that is being accused.

I was waiting in Travis County Court #7 this morning to talk to the judge about a post conviction occupational driver’s license. Meanwhile, a pretrial motion to suppress had already started.

From what I could gather, the officer had seen a car pulled off on the side of the road. The defense attorney was doing a good job pointing out through cross examination that no traffic violations had been witnessed.

Apparently, the State was attempting to justify the initial detention through the ‘community caretaking’ exception. Community caretaking is shorthand for the legal concept in Texas that the police can legally detain you ‘for your own good’. Of course, since it’s only litigated in the criminal context, that means they ended up arresting you for one thing or another, so how much good it ended up doing you is questionable at best.

So the officer had pulled over ‘to investigate,’ I suppose, but I had missed that part of the testimony, when this little gem came up:

  • Defense attorney: Was there anything unsafe about stopping in that neighborhood?
  • Officer: Well, any area in Austin can be unsafe.
  • Defense attorney: Do you consider that to be a high crime area?
  • Officer: All areas in Austin can be ‘high crime’.

Exactly! There’s no place in Austin, in Texas, or really in the world that an officer can’t characterize as “could be a high crime neighborhood’.

So, when an arresting officer testifies that “part of the reason I detained him was to investigate due to it being a high crime area,’ appellate courts need to stop pretending that adds any logical or legal basis for a stop or a detention. Is this really how low we want our standards to sink?

Like most of the affronts to our constitution, no one cares about this sort of erosion of civil rights… until they are arrested for DWI…

Kevin Smith of Wichita, Kansas writes about his ‘Matlock Moment’ in a recent DWI jury trial.

His client’s situation was familiar to DWI lawyers everywhere. The defendant looked fine when walking, talking, and interacting with the officer except… when it came to doing those Field Sobriety Tests.

To win a DWI case, the defense lawyer must often come up with a plausible explanation of why the client does poorly on the agility tests, other than intoxication or impairment. In Kevin’s case, his female client was wearing 2 inch high heel shoes.

Kevin’s description of the key moment in trial:

The "not guilty" verdict came down to a question.

Before I reveal the question it will help to picture the officer first. He’s about 6’4", roughly 250 lbs. (with a sizable belly to boot), bald, and very tough looking.

So here’s the question: "You probably would have done as bad on the field tests had you also been wearing two-inch high heels, wouldn’t you?"

He responded, "Maybe, but I can’t tell you for sure since I’ve never worn high heels."

Excellent example of distilling the defense case down for the jurors to ‘get it’. 

And, it’s an example of that rare type of cross examination question: you don’t know the answer, but you don’t care how the officer responds. He can either – as in this case – answer truthfully, which helps your client; or he can hem and haw and sound unreasonable. I’d almost prefer to hear the officer’s explanation of why high heels wouldn’t affect his performance on the FSTs. The jury will still get the point.

Kevin doesn’t say whether he had the officer read this portion of the NHTSA DWI Manual to the jury:

The original research indicated that individuals over 65 years of age, back, leg or inner ear problems had difficulty performing this test. Individuals wearing heels more than 2 inches high should be given the opportunity to remove their shoes. [DWI Detection and Standardized Field Sobriety Testing, 2006 NHTSA Manual, VIII-11. Emphasis Mine]

Doesn’t sound like this officer offered Kevin’s client the opportunity to take off her shoes, and that can be an important point to put in front of the jury.

Of course, when you get an answer as good for the defense as Kevin got, it may not be necessary.

Most mornings aren’t quite this fun. I had a DWI client set for a PreTrial hearing today, and he had what I thought was a pretty good case. The officer had previously testified at the ALR license hearing that he had pulled my client over after “running his license” and it had come back with expired registration. My client committed no other violations. When the officer told him why he had activated his overheads, the client points out that his registration was current.

Of course, the officer was behind my client the whole time, and was ‘relying’ on the information he got from dispatch.

There is what’s known as a “good faith exception” to the requirement that an officer has reasonable suspicion to detain someone (a reason to come up and start harassing them in the first place). The seminal US Supreme Court case is an example where the officers relied on a warrant, but someone had accidentally typed the wrong address. Upon bursting in to the wrong house, they went on to find contraband (if I remember correctly). SCOTUS said that since they were acting in “good faith” (hadn’t made the error deliberately or even themselves), that the government was entitled to prosecute the defendants.

That’s all well and good, but back to my client, let’s face it: this is still something a jury is going to think is a bogus stop. That has to affect their ultimate determination about the value of the State’s case.

Also, the officer had testified at the driver’s license suspension hearing that he runs these checks all the time, and that it wasn’t unusual for the information he received about registration by way of dispatch to be incorrect.  I wasn’t expecting that answer, but I liked it. One of the beauties of  cross examination is that ‘probing’ can lead to unexpected results.

I felt like it was potentially a good issue to put in front of the judge, and I sure wouldn’t plead someone to these facts without at least having a hearing, even if the case went ‘downhill’ after the stop from the defense perspective.

And in the specific case, in what turned out to eventually be irrelevant, my client had politely declined to do the officer’s proffered Field Sobriety Tests. Perhaps most harmful to the state’s case: the officers had neglected to turn off their mikes when they said, post arrest, “Guilty or Not Guilty, at least he’ll have to pay a lawyer $5000”. (I wish I’d known I should have charged that much for a pretrial fee.)

So my intent was to litigate the Motion to Suppress, based on the obvious problems with the case. And since I had the transcript of the ALR hearing, I felt I had an additional argument to make: since the officer previously testified that he frequently got ‘bad information’ from dispatch about whether folks are properly registered, this didn’t meet the so-called ‘Good Faith Exception’.

When I arrived in court, the Prosecutor had a manila envelope with something inside it attached to her Police Report. I asked her to look at it and tell me what it was (I assumed it was some sort of Attorney Work Product I wouldn’t be privy to.) Lo and behold, it was the CAD audio tape that I had requested months earlier – the actual police to dispatcher transmission of the License Check that the officer had run.

The court reporter allowed me to listen to it on her audio tape machine back in her office, and, tada, we hear the dispatcher report to the officer that my client was “Clear and Current”, meaning no warrants, and no out of date tags. The officer’s original excuse that he unintentionally pulled over a citizen for no valid reason (because of bad info from dispatch) was now completely shot.

After hearing the tape for herself, the Prosecutor agreed that this was an illegal detention and arrest, and agreed to dismiss my client’s case outright. It’s unfortunate that I have to complement them on that action, but it’s true that some prosecutors would have tried to still find a way to justify this blatantly illegal arrest.

Of course, sometimes it’s ‘easier’ for the State to dismiss a case, even a DWI, than to risk ‘embarrassing’ the officer.  Best possible result for my client, but not necessarily for the public.

One more sad fact I suppose: I’m sure this sort of thing happens at least 10 times as often as I am able to actually prove that it does. Oh well, it’s fun getting to play detective every once in a while.

[N.B. I wrote this entry over a year ago on a ‘test blog’ I put up when I was first getting interested in blogging.  So, it wasn’t actually this morning, but you get the point.]

Ran across a new blog for lawyers that I’m really looking forward to reading from now on. It’s published by Charles Perez and subtitled “Preparation and Presentation of Visual Exhibits at Trial or in Pre-Litigation”.

Having used Power Point in DWI trials before, I was interested in his post on “The (All Too Common) Power Point Presentation”, as well as his observation in another post that when it comes to technology in the courtroom, often less is more.

If you are an attorney practicing DWI defense on a regular basis then this blog should be added to your RSS. I know that here in Austin, the prosecutors have definitely stepped up the quality of their presentations to juries in DWI cases over the last several years.

DWI defense lawyers need to (at least) keep up with the competition.

I had a DWI client who was initially stopped for making a U-Turn at an intersection in Austin where there was a posted “No Left Turn” sign. Never having seen this exact situation before, I decided to do a little research to find out whether the detention was valid.

Oddly, it turns out that the Texas Transportation Code is nearly silent in terms of laws regulating U-Turns in Texas. Finally I stumbled across something I thought might help in the Austin City Code.

Austin City Code, Title 12, Traffic Regulations, Chapter 12-1 Traffic Regulation and Administration, Section 12 – 1 – 30. That Austin City Code provision says:


The driver of a vehicle may not turn the vehicle to proceed in the opposite direction at:

(1)  an intersection or median opening on a divided street where a posted traffic sign prohibits turning in the opposite direction; or

(2)  a location where the turn is not prohibited, unless the turn can be made safely and without interfering with other traffic.

My argument therefore was that the statute specifically provided that a person may not U-Turn (1) if there’s a “No U-Turn” sign, or (2) if it can’t be done safely.

My client was fortunate that the officer testified at the ALR that there were no other traffic violations besides making a U-Turn where there was a “No Left Turn” sign, that there was not a “No U-Turn” sign, and that the maneuver wasn’t a danger to other traffic around him. 

At the pretrial hearing on the Motion to Suppress, I led the officer through the prior testimony. The judge initially took the case under advisement, asked for briefs and re-argument, and eventually ruled in my client’s favor, granting the Motion to Suppress. All evidence gathered after the detention was “thrown out” (as they say on TV), and it left the State with literally no evidence against my client.

By the way, the State’s argument – and it makes for a pretty good one on a common sense level – is that a U-Turn is necessarily two left turns.

Finally, I should probably point out that this is not only a very specific situation that doesn’t come up very often, and that it only applies in Austin – or other Texas cities with similar Code provisions.

Of course, there’s never a general “yes” or “no” answer to this question without knowing the specifics of the case, and what the state’s evidence is going to be.

Assuming though, as in most DWI trials in Texas, that the prosecutor’s evidence will come from one or two officers and the videotape, that the defendant did medium to OK on the tests (no one ever does them perfectly), and that there aren’t any outrageous admissions by the defendant on video (“I’m drunk”, “I had a twelve pack in the last 2 hours”), then the general answer in my opinion is “no, the defendant should not testify”.

Remember that the State’s burden is to prove guilt, and the defense needn’t prove innocence.

Perhaps more importantly, you don’t want this trial to look like a swearing match to the jury. Assault cases, for example, can often come down to the classic “he said, she said” swearing match. But DWIs are fundamentally different.

It’s rarely my theory in a DWI trial that the officer is lying. After all, there’s usually video evidence to show exactly what happened before, during, and after the field sobriety tests.

The theory in most DWI trials is going to be that the defendant’s performance on those so-called sobriety tests is (a) not that bad and (b) equivalent to how he personally might perform on them if he’d had nothing to drink. Then combine that theory with the argument that the state has failed to prove guilt beyond a reasonable doubt.

Not only is a defendant’s testimony unnecessary in that situation, it may backfire. It focuses the jury on a “the cop said this, and the defendant said that” theory of the case instead of a basic, criminal law 101 “the state didn’t prove intoxication” argument.