5.8 Cross-examination

• Library: Defense of Serious Traffic Cases in Virginia (Virginia CLE) (2022 Ed.)

5.8 CROSS-EXAMINATION

5.801 In General.

Counsel may not want to put the client on the stand to testify because of the dangers inherent in cross-examination by the Commonwealth. Therefore, in many traffic cases, the defense must elicit the facts that support the client's theory of the case from other witnesses, often from the police officers themselves. Unless a client badly misbehaved during the arrest, the officers are often not contentious and will, if specifically asked by defense counsel, relate the good along with the bad. Photographs of the scene or simple diagrams can also be helpful in clarifying the event for the court. The police officer generally can be used to lay a foundation for this type of evidence since it is only necessary that it accurately represent the scene at the time of the incident.

The manner of cross-examining a police officer will depend on the officer's personality as well as his or her attitude toward the client. The theme of the case concerning the client's innocence should be formulated before the trial begins, and counsel should frame the cross-examination of all witnesses at trial, including police officers, toward developing the theme.

Knowledge of the police officer and the ability to engage his or her personality is extremely important in deciding how to approach the cross-examination. An officer who is candid and straightforward should be cross-examined with questions that lead back through the events, giving the officer the opportunity to respond with answers that will help the defendant. An officer who is obviously angry and biased is more likely to make emotional mistakes while testifying and should be cross-examined more strongly to elicit those mistakes.

If pretrial inspection of the officer's notes reveals that important information is not documented, cross-examination should highlight the omissions. It is important throughout the cross-examination process that counsel bring out all the positive features of the client's driving behavior, performance on the sobriety tests, or other conduct to develop the theme counsel has set for the client's defense. To accomplish this, it is sometimes necessary to remain formal and distant with a police officer who requires a stronger cross-examination. In many instances, it may be easier to gain concessions in informal conversation before trial so that negative testimony will not come before a trial judge.

5.802 Purpose.

For counsel who is thoroughly prepared...