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DA Prepped Officer for his Testimony


Welcome back to the DUI Trial Lawyers Academy. This podcast is brought to you by Silvaandsilvalaw.com. Great lawyers helping great people. And now for your host, sought-after speaker, avid mountain bike racer, and renowned DUI trial lawyer, Patrick Silva.
Patrick Silva:
Welcome back to the DUI Trial Lawyers Academy. This is your host, DUI trial lawyer, attorney Patrick Silva. This little cross-examination theme is designed to show that the district attorney, along with the officer, is a team and that their goal is to get a prosecution of your client.
How many times have you seen the officer come in, and he plays the role of a disinterested person. "I'm just doing my job. I don't know this arrestee from any other DUI arrestee." But what we're going to show is that the officer actually got together, he texted it, he emailed with the D.A. He spoke on the phone with the D.A. The D.A. might've given him different questions that he was going to be asking him on the stand. And with some jurors, this just rubs them wrong. And remember, it's a game of feelings, a game of perceptions when you're in there and you have a person on the witness stand. It's a game of impressions. What impressions are the jurors forming in their mind, when they're listening to you cross examine this person?
In the last podcast, I went over a few of the questions, and when we're trying to tie the officer down to his report. Along with tying the officer down to his report, we're going to want to tie him down to his training sources. If we're in California, we're going to tie him down to the CHP manual. That's called the CHP 70.4 HPM highway patrol manual. We're also going to want to tie down the officer to the particular NHTSA manual that was used during his training.
If you are a member of the DUI Trial Lawyers Academy, we do have every DUI NHTSA manual going back to, I believe, 1992 for easy download accessibility. "So officer Jones, did you review your CHP manual prior to your testimony here today? Officer, did you review the NHTSA manual prior to your testimony here today?" When we're talking about the NHTSA manual right now, we have the newest release of the 2018 NHTSA manual. Prior to that, we have the 2015 NHTSA manual.
Most officers are not going to be current on the manual, but let's say we establish a couple foundational questions. "Officer Jones, do you keep current on your standardized field sobriety test training under the NHTSA guidelines?" "Of course I do." Well when he answers, "yes" and he answers in the affirmative, what that does, it's now established that he's going to be current. He just said he was, on the latest NHTSA manual. The NHTSA manuals aren't changing a whole lot. If we take the 2015 manual, there was 465 pages in the 2018 manual. I believe it jumped up about a hundred pages. As far as texts and ideas, there wasn't a whole lot more just, somehow they expanded the page number with more blank areas for writing and more, just call them pictures.
Now getting into the cross. "Well, Officer Jones, did you speak with the prosecutor on this case prior to your testimony today? Did you speak to the prosecutor about the facts of this case? Did you speak to the prosecutor about the testimony that you're going to give in this matter today? Did the prosecutor suggest certain answers to you? Did the prosecutor tell you which questions he was going to ask you? Did the prosecutor hint in any way on which way he wanted you to answer? Did the prosecutor tell you that he was not going to ask you a certain question now, because you didn't do it correctly?" Those questions were just trying to show that there's a team connection between the prosecutor and the testifying officer.
And then let's get into the who, what, where, and when of it. "Well, Officer Jones, when did these conversations with the prosecutor occur? How many times did you speak with the prosecutor about this case? During these conversations with the prosecutor, was their investigator there?" Why is that last question important? The reason it's important, because if there's not an investigator present during the conversation between the officer and the prosecution, then he, being the prosecutor, has now just made himself a witness subject to subpoena in that very trial. Never seen it done, but it is a possibility and it could happen. "Officer, did you have any communication with the prosecutor via text messaging regarding the facts of this case or anything to do with this case? Officer Jones, Did you have any email communication between you and the prosecutor on this case?"
Why are those last two questions important? Because we're setting the groundwork for a subpoena for any and all texts, email communications between the officer and the prosecution. If you're able to lay that foundation and you have blank subpoenas with you ready to fill out and serve upon the officer, that might settle a case for you. You just never know. "Officer Jones, did the prosecutor take any notes during your discussion with him or her?" Again, those notes might be subject to discovery. They're going to claim a work product, but you never know. Now let's assume that there was an investigator sitting in the room when the prosecution and the officer were preparing the case. "Officer Jones, you said that there was a prosecutor and investigator sitting on your prep session with you, is that right? Did the investigator take any notes? Did he have a pen and paper out? Was he using the computer to take notes? Officer, did you take any notes during your prep session with the prosecution?"
Why are those questions important? Because again, under discovery rules, I believe you're going to have a right to those notes taken by the prosecution, by the prosecutor's investigator, and by the officer. Those were notes in preparation for his testimony. As I just mentioned, subpoenas. Here's a practice tip, always carry blank subpoenas with you during trial with blanks proofs of service, you can hand a handwritten subpoena and serve it right on the officer, right on the stand, or as he's leaving. And you might tell it something like this. "Officer, you said that you took notes during your prep session with the prosecution. I am now handing you a subpoena for those notes. You are my witness now. You're to return tomorrow morning with those notes."
Again, court work is a battle of impressions. What impressions are the jurors getting from this interaction between you and the testifying officer. Well, they're thinking, "Oh, the officer was prepping with the district attorney, there are some notes that were never turned over, and now that defense attorney wants to see those notes." Are they going to think that maybe the officer was being a little deceitful, that he was hiding? It's something that you're going to be able to blow up and actually focus on in your closing. Two of the most relevant motives a person has, is when they're being lied to, they hate that, and when they feel that their trust has been violated. So the officer comes in, he's automatically granted a level of trust by the 12 people sitting in a jury box. Well, I think on that last cross, we might've shown that, "Hey, everything isn't perfect and the officer might not be 100% trustworthy." This is the DUI Trial Lawyers Academy. DUI trial lawyer, attorney Patrick Silva. Put on the boxing gloves, climb into the ring and have a great fight. Over and out.

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Patrick J. Silva - Attorney at Law

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