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| A Guide for Law Enforcement Officers and Expert Witnesses in Impaired Driving Cases |
DUI Cops Are Instructed How to Testify
“Always demonstrate how you conducted
field sobriety evaluations.
Be certain, however, that you can do in court all the evaluations you asked the defendant to perform”
Just spent some time reviewing what must be the Bible for DUI cops testifying in criminal cases it is called The Criminal Justice System: A Guide for Law Enforcement Officers and Expert Witnesses in Impaired Driving Cases and is published by our enemies The National Traffic Law Center at the National District Attorneys Association.
“Jurors focus on an officer’s demeanor as well as the content of the testimony. Avoid becoming agitated or taking personal issue with defense tactics”
Here are a few excerpts where they attempt to answer questions for DUI Enforcement officers. They even call police encountering allegedly drunk drivers “experts”, which in light of at least one court’s opinion, has not been established.
Are DUI cops really experts?
Prosecutors must establish that witnesses and theories are experts and that roadside investigative methods must have proven “reliability to the Court in a Daubert hearing. The State must show that field sobriety exercises were created using the same rigorous scientific method that is behind every theorem and postulate in science journals before field sobriety exercises can be admitted.”
What are Officers Told about Court Appearances What They Say and How They Say It?
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| Question and Answer Script |
The instruction manual for cop’s testimony tells police officers that “[d]uring direct testimony, the officer’s responsibility is to present the facts of the case. Keep in mind—the officer saw and smelled it and the judge and jury did not. The officer must paint a mental picture for the judge and jury.
“These officers are likely to make more arrests and help secure convictions.”
In order to do that, the officer should:
- Testify to what he observed using language geared for the lay person – in other words, don’t use jargon, acronyms, or abbreviations;
- Never guess at an answer – it’s okay to say, “I don’t know” if you don’t know; and
- Provide specific descriptive details concerning exactly what the suspect did or was not able to do and explain what these actions mean.
Officers are also told that when testifying in a DUI case “Professional conduct during a trial is very important. Jurors focus on an officer’s demeanor as well as the content of the testimony. Avoid becoming agitated or taking personal issue with defense tactics – just stick to the facts. Remember: the minute you lose your temper, you lose your audience.
“At least occasionally, make eye contact with the jury when testifying”
Personal appearance also matters. If you are a uniformed officer, wearing your uniform to court is usually preferable to street clothes. If in civilian clothes, wear dress pants and jacket— with tie, if male.
What do Prosecutors Think are the Characteristics of a Good DUI Officer Witness?
The manual tells us, “The most successful DWI detectors are those officers who:
- know what to look and listen for;
- have the skills to ask the right kinds of questions;
- choose and use the right kinds of tests;
- fully document all verbal, visual, and sensory observations; and,
- are motivated to apply their knowledge and skill whenever they contact someone who may be under the influence.
These officers are likely to make more arrests and help secure convictions.
How are Police Officers Told to Describe a DUI Suspect?
In the 20 years or so I have been defending DUI cases, I have noticed a pattern of cops using almost identical language to describe drivers. Here is why. The Manual tells the witness that instead of testifying “Driver appeared drunk” they should describe the driver as “Driver’s eyes bloodshot; watery; gaze fixed; hands shaking. Strong odor of alcoholic beverage on driver’s breath”
How are Police Witnesses Coached to Testify When They Appear in Front of a Jury?
“At least occasionally, make eye contact with the jury when testifying (unless directed not to, as is the preference of some judges), even when the attorney asking the question is not standing near the box. Always be courteous, even when the defense attorney is not. Control your temper, and never allow yourself to be drawn into an argument. Remember, the best way to make a good impression with the jury is to be courteous and professional. You were just doing your job during the arrest, and you do not have a personal stake in the case.”
This is not for the purpose of “matching testimony”
“Always demonstrate how you conducted field sobriety evaluations. If the prosecutor forgets to ask you to come off the witness stand to demonstrate, suggest that it will aid your testimony. Be certain, however, that you can do in court all the evaluations you asked the defendant to perform at the time of the arrest. Obviously, if you cannot do them, the jury will not expect the defendant to have done them properly.”
What are Prosecutors Trained to Do with Witnesses Before Appearance at a Jury Trial?
“Prior to trial, be sure to discuss your conclusions with the arresting officer(s), the toxicologist, and the prosecutor. This is not for the purpose of “matching testimony” but rather to ensure that any unanswered questions or potential discrepancies are addressed beforehand.”
What Pitfalls are Police Warned About Testifying in a DUI case?
Some frequently encountered pitfalls include:
- relying too much on notes and reports;
- arguing with defense counsel;
- appearing to be too invested in obtaining a conviction;
- offering unsolicited and improper conclusions and opinion testimony;
- being non-responsive to the point of adding gratuitous comments;
- using too much jargon; and
- being overly defensive when in error.
They cops are instructed, “Maintaining your composure and professionalism throughout this process is not always easy, but it is always important.”
Next Up we will review The DUI Prosecutor’s Manual