Preparation of defense witnesses and direct examination

• Pages: 313-352
• Author: Jonathan Dichter

PREPARATION OF DEFENSE

WITNESSES AND DIRECT

EXAMINATION

5-1

CHAPTER 5

PREPARATION OF DEFENSE WITNESSES

AND DIRECT EXAMINATION

I. INTRODUCTION

§5:01 Types of Witnesses

§5:02 Direct Examination of Experts: The Correct Approach

§5:03 Some Tips From Our Experts

§5:04 Innovation: Using AI as your Expert Research Assistant

II. PERCIPIENT WITNESSES

§5:10 Preparation

§5:11 Purpose and Goals

§5:12 Establish Witness’ Lack of Personal Interest and Attempts to Talk to Prosecution

§5:13 Sample Direct Examination of “Drinking Buddy”

§5:14 Introduction of Receipts Through Percipient Witness

§5:15 Sample Direct Examination of Bartender

III. FIELD TEST EXPERTS

§5:20 Selection and Preparation

§5:21 Purpose and Goals

§5:22 Administration of SFSTs

§5:23 Interpretation of SFSTs

§5:24 Reliability and Meaning of SFSTs

§5:25 Direct Examination of SFST Expert: Version 1

§5:26 Direct Examination of SFST Expert: Version 2

IV. BREATH EXPERTS

§5:40 Selection and Preparation

§5:41 Purpose and Goals

§5:42 Basic Operation of the IR Machine

§5:43 Blood/Breath (Partition) Ratio

§5:44 Absorption Phase Testing

§5:45 Temperature Issues

§5:46 Two Samples

§5:47 Steepling Example

§5:48 Two Breath Samples With .02 Agreement

§5:49 Example of .02 Agreement

§5:50 Machine Specificity and Interferents

§5:51 Acetaldehyde

PREPARATION OF DEFENSE

WITNESSES AND DIRECT

EXAMINATION

Innovative DUI Trial Tools 5-2

§5:52 Airblank Fallacy

§5:53 Slope Detector/Mouth Alcohol

§5:54 Diabetes, Hypoglycemia, Dieting

§5:55 GERD Cases

§5:56 Innovation: Attacking the Software Behind the Machine

V. ALCOHOL EXPERT AND RISING ALCOHOL

§5:60 Selection and Preparation

§5:61 Purpose and Goals

§5:62 Physiology of Alcohol

§5:63 Destruction of Presumptions

§5:64 Creating Doubt

§5:65 Disconnect Theory

§5:66 Tolerance

§5:67 Consistency Theory

§5:68 Blood Tests

§5:69 Henry’s Law

VI. MEDICAL EXPERTS

§5:80 Treating Physician

§5:81 Validity of Test

§5:82 Cross-Examination

VII. COUNTERING PROSECUTION’S “THE DEFENSE EXPERT WAS NOT AT THE SCENE” STRATEGY

§5:90 You Must Show the Jury That Independent Review Is More Reliable

§5:91 Opening or Voir Dire

§5:92 Cross-Examination of the Arresting Officer

§5:93 Direct Examination of Your Expert

§5:94 Closing

§5:95 Innovation: Camera Data as a New Objective Record

PREPARATION OF DEFENSE

WITNESSES AND DIRECT

EXAMINATION

5-3 Preparation of Defense Witnesses and Direct Examination §5:03

I. INTRODUCTION

§5:01 Types of Witnesses

There are basically four kinds of witnesses for the defense in a DUI case:

• Percipient witnesses. See §§5:10-5:15.

• Field test experts. See §§5:20-5:26.

• Alcohol experts (i.e., experts on breath testing, blood testing, and alcohol metabolism). See §§5:40-5:69.

• Medical experts. See §5:80-5:82.

Each one has a unique perspective and each one needs to be handled in a special way. The open-ended ques-

tions you can lob at your expert are probably not appropriate for your client’s buddies. A bartender can more easily

discuss the night in question than the doctor who has been treating your client for years. However, don’t overlook

that many of these people may be able to get more than just the facts out before the jury.

See Appendix A The District Attorney’s Manual for the prosecution’s approach to cross-examination of defense

witnesses and common chemical test defenses.

§5:02 Direct Examination of Experts: The Correct Approach

Richard Mathews is a jury consultant in San Francisco. His research shows that jurors don’t like the word

“expert.” Juries have not even formed a trust relationship with the attorney and yet the attorney is telling the jury

to take his or her word that the witness is an expert. Turns out this backres. Instead, Rich argues, use the word

“expert” against the state, but refer to your witness as a “specialist,” “top person in the eld,” “recognized chemist,”

“outsider,” “top teacher,” or “author.”

For many of us, direct examination of an expert is an opportunity to show o. We can demonstrate to the jury

just how well we know the science and how much we have learned about all the other evidence in a DUI case.

We have spent hour upon hour in classes and at seminars costing us thousands of dollars. Now is the time for us

to make all of that pay o by lining up our witnesses and letting y.

THIS IS THE WRONG APPROACH.

Jurors did not “pay” to see you. They do not want you to give a long-winded recitation of theories. They want

to hear from those who were there or from those who have initials after their names that indicate some type of

advanced knowledge.

This is not to say that you should not get the training. Rather, it is important to have that training in order to

intelligently discuss the various defenses with your client and expert and to know what to present to the jury. It is

just a question of who presents the information.

§5:03 Some Tips From Our Experts

Tom Workman is one of the more knowledgeable experts out there. Experts like Tom spend great time, money,

and energy doing research, prepping cases and teaching us lawyers how to defend cases. What we forget is that

what is one case to us, may be a career to them. Here are some suggestions that Tom made when asked what we

should know in using experts in court:

1. Never stipulate to your expert’s credentials. If you do, the jury will not hear the credentials of the defense

expert, and consequently it will go with the government’s expert.

2. The prosecution may move to exclude your expert and ask for the substance of the testimony, at a hear-

ing. If you don’t object, the ADA will get a dry run at the testimony, and newer judges tend to “split the

baby” and only allow half of the evidence in. You must explain to the judge that so long as your expert

is qualied, and the testimony is relevant, it is for the jury to decide what if any weight the testimony

should be given. If the judge insists on knowing more, then ask for in camera ex parte showing. Explain

to the judge that to have a full-blown hearing with the prosecution is equivalent to a deposition of your

witness, which the prosecution is not allowed. Further, the role of the judge in such a motion is not to

weigh the evidential value, but merely to see to it that the testimony will be relevant. This evaluation does

not require cross-examination.

3. When an attorney retains an expert, the attorney holds that expert’s future in her hands. If the government

attacks the expert and an appeal should be taken, the attorney should not simply say: “Too bad, you,