Cross Examination of Experts Preparation Project.

• Author: Kimball, Tom

IT IS NO FICTION that prosecutors notoriously maintain voluminous caseloads and investigate, prepare, and ultimately present their cases with little to no resources. In many jurisdictions, there might only be a few prosecutors in the county that are literally "sinking or swimming." That reality is no more prevalent than in the impaired driving arena. Certainly all criminal defendants have a lot to lose when faced with the prospect of conviction and incarceration. But unlike offenders who commit other crimes, many defendants charged with driving under the influence have never been involved in the criminal justice system, maintain full time jobs, have stable families, hold ties to their community, and have the financial resources to hire defense attorneys with specialized expertise in this field. They have a lot to lose and will spend resources to try to undermine the State's case.

Prosecutors by nature are planners. From the time we receive the arrest materials and decide to bring charges we consider how the case will ultimately play out if it were to proceed to trial. We are guided by our ethical rules, such as the American Bar Association's Rule 3.8(a) entitled "Special Responsibilities of a Prosecutor" which requires that prosecutors refrain from prosecuting a charge he/she knows is not supported by probable cause. To maintain that obligation prosecutors take courses to learn about impaired driving detection, field sobriety tests, breath, blood, urine and oral fluid toxicology testing and results. Prosecutors review video evidence and other evidentiary materials, they study the relevant statutes and case law to support the charges and their theory of the case. At trial, prosecutors are well prepared for direct examination of government witnesses. But what do we do when faced with a novel defense theory or a defense expert hired to discredit the government's case? We're less prepared. And that's a scary notion for many.

In 2009, Tom Kimball, proposed a concept to the Traffic Safety Committee of the National Association of Prosecuting Coordinators (NAPC).The idea was born during his experience as a Tennessee Traffic Safety Resource Prosecutor (TSRP), where he attempted to help prosecutors prepare for jury trials that included defense experts. In his role, he gathered transcripts and did research concerning prior statements of the expert, often combing through large boxes of transcripts at any given time. When a prosecutor was given notice...