Washington DUI Trial Law : Washington State DWI Lawyer & Attorney : Francisco Duarte : Seattle, Tacoma, Bellevue, Kirkland

If cross-examination is about revealing the truth of your case through story telling, how do you do it? Moreover, if the truth of your case is that your guy did it then what do you do? To be fair, I cannot answer the question in this article. But if you like this article, I can be persuaded to write another one just on that topic alone.   However, here is a brief answer to the question.   There are many truths about a case, about a witness, or about the events surrounding a case. The challenge is to find the real story about your case or the witness. 

Once you have found the truth, or a truth, about your case or about the witness you tell the story one question at a time. The witness’ answer does not matter as much, if at all. The reasonableness and the sincerity of your story is what matters to the jury. The jury will remember and accept your story regardless of the witness’ answer. For example, every single witness has a story, such as the witness is biased, mistaken, inept, out to lunch, whatever. Moreover, every witness has a story she or he wants to tell. It is important to note the difference between the two. The story that the witness wants to tell is not necessary the same, and seldom is, the same story about the witness. The true story about an expert witness might be that he or she is a hired gun or an expert for sale to the highest bidder. If so, you never need to question the expert witness about his credentials, expertise, or conclusion. All you would need to do is tell the true story (in question format) about the witness—that is, that he or she is for sale on the auction block to the highest bidder. In this scenario, it would not matter that the witness might be correct in his or her conclusion or that the witness has impeccable credentials.

The cross-examination of an eyewitness might go something like this. The example is taken from a case where the attendant of a 7-11 gas station was called to testify two years after the incident about the identity of a suspect who was speaking with two other individuals next to the public phone outside the store. The day the witness testified would have been his second time “seeing” the defendant. The true story in this cross-examination was that the witness was not competent to make a proper in-court identification of the suspect.

Question: You have been working at the 7-11 gas station for the last 5 years?

Answer: Yes sir.

Question: As a cashier?

Answer: Yes, that’s my job.

Question: You work 6 days a week?

Answer: Yes.

Question: You put in 9 hours a day?

Answer: At least, it takes me an extra 15 to 20 minutes to wrap up my day.

Question: You see a lot of people in and out of the gas station.

Answer: Yes sir.

Question: On average you see 75 to 100 customers a day at the register? 

Answer: Yes, and I see more around the gas station. We’re very busy. 

Question: In an average year, you see more than 30,000 customers?

Answer: I guess so.

Question: In the last two years you have seen more than 60,000 customers?

Answer: I see a lot of people every day. Sir, I can’t remember them all.

Because the risk of failure in a trial is heightened during cross-examination, telling a true story about your case or witnesses in cross-examination will help you avoid the pitfalls and master the basics of questioning. Here are some of the basic principles that might help one to avoid the agony of defeat and to experience the thrill of victory: 

1. Find a story, a real story about your case, witness, events, etc! Then tell it! Prepare your story and break it down into concise statements to control the scope and the direction of your cross-exam. Then tell your story. If you draw an objection, alleging that you are testifying, then you know you are doing really well. This is the point of cross-examination. You tell the story one question at a time and have the witness confirm or deny the fact. Again, the answer is not as important as your true story. For instance:

Question: The itsy bitsy spider went up the waterspout, true?

Answer: No, it did not. 

Question: Down came the rain, correct?

Answer: No, it was sunny. 

Question: And washed the spider out, correct?

Answer: Maybe, I am not sure.

Question: Then the sun came out, true?

Answer: The sun was out all day and night.

Question: And dried up all the rain, right? 

Etc…!!!!!!!

2. Rarely take on a witness in his or her field of expertise. As a general rule, it is unwise to attempt to discredit a witness on his or her field of expertise. In most cases, the witness is by far more knowledgeable about the subject matter than you are. A direct attack on the subject matter results in an opportunity for the witness to enlarge upon the testimony he or she has already given, and to explain what might have otherwise been misunderstood or even overlooked by opposing counsel and the jury.  The task here is to expose the witness' motivations, biases, shortcomings, etc.

3. Establish only facts from an expert witness. In preparing your cross-examination, pay close attention to the clear distinction between matters of scientific fact and mere matters of opinion. An expert witness can hardly disagree with established facts, but would be more than pleased to let you know why in his or her opinion the facts support his or her conclusion. The facts will enable you to argue your theory of the case with credibility and force.

4. Avoid posing questions that call for or invite opinion testimony. Obviously, in spite of your best effort to control the witness, the witness would love the opportunity to tell you what they think about the case, your client, etc. Therefore, if you elicit or invite an opinion from the witness, you are going to get the answer you do not want to hear.

5. Make the opposing witness your witness. As a matter of principle, jurors connect with witnesses before they connect, if at all, with the attorneys in the courtroom. This means that witnesses generally have “built-in” credibility. Therefore, in a well-crafted cross-examination, you can establish with the aid of the witness a number of irrefutable facts to argue your theory of the case.

6. Cross-examine the witness early and often before the trial date. In other words, interview and study the witness far in advance of trial.  In trial, as a matter of principle, you cannot afford to ask a question to which you do not know the answer. You should prepare your cross-examination and test it out with the witness prior to the trial date. In this way, you will learn in advance of the trial date the answer to your question and the reason why that is the answer to your question. Moreover, if the answer to your question is a damaging one, you can either rework the question to one that works for you or abandon it altogether without any risks. 

7. Do not repeat the witness’ direct testimony. It is very easy to fall in the trap of allowing the witness to repeat the direct testimony, which results in reinforcing the opposing party’s case and bolstering the witness’ credibility. If the jury hears it once, maybe they will believe it. If they hear it twice, they will probably believe it. And, if it is in writing (like the BAC ticket,) nothing on this earth will persuade then that it’s not true. 

8. Do not get greedy. Lengthy cross-examinations without focus, direction, and purpose are disastrous and should rarely be attempted. Your goal is to elicit enough information to argue the theory of your case. Therefore, do not ask one question too many, the witness would love the opportunity to burn you, if possible.

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             The law defines the crime of driving under the influence (DUI/DWI) as driving with an alcohol concentration at .08 or higher. (See Male and Female BAC Chart.) We all know this. It is virtually impossible to miss the .08 signs on the side of the road, the TV public announcements, the motor-vehicle driving booklet, the news reports about DUI laws, etc., etc. What is not well known about the DUI laws is that it has another definition. It is illegal to drive when a person is under the influence of or affected by alcohol and/or drugs. In other words, a person is guilty of DUI if his or her ability to drive is lessened to any appreciable degree, regardless of the quantity of alcohol or drugs in their system.

            This means that a person who blows below .08 may be arrested, charged, and convicted of DUI. It also means that a person with no alcohol in their system, but who has some quantity of drugs in his or her system, including prescription medications, may be convicted of DUI.   This part of the law is not well known or understood by the public. I have represented many individuals who have been accused of DUI with very low alcohol concentrations—as low as .02, the equivalent of a 12 oz. beer. Also, I have represented senior citizens who have been accused of DUI when they had taken only their prescribed medication as ordered by physicians. Surprisingly, it is not a defense to the charge of DUI that the person was entitled to use the prescribed medication.

People who find themselves in this situation are shocked when they discover these details about the DUI laws. On top of being scared, ashamed, and depressed, they feel a great sense of frustration because they believe, and rightly so, that they were misled by the government. Often I hear questions like how fair is it for the government to profit from alcohol sales and at the same time prosecute people who don’t exceed the legal limit? How can an elderly person with a clean record be accused of DUI when they were taking their meds as required? The answer to all of these questions, of course, is unsettling and unsatisfying--that’s the law! The Legislature, in its infinite wisdom, passed these laws believing them to be right.

The shocking revelations about the DUI laws do not end here. It actually gets worse when these folks find out that the evidence to be presented against them often consist solely of the subjective opinion of the arresting police officer. The officer will be called at trial to express an opinion about the accused’s sobriety state, citing to his or her experience as a police officer and to his or her observations about the accused. The testimony is often bolstered by reference to roadside tests, otherwise known in law enforcement circles as field sobriety tests, which are not even designed to measure a person’s ability to drive. These tests are no more than physical exercises designed to create imbalance, but spun to convince a jury that they mean something a kin to a forensic breath or blood test.

There is no question that driving intoxicated is dangerous and it should be stopped. Also, there cannot be any question that the laws as they stand leave too much room for unfair treatment and unjust prosecutions. Perhaps the law should be that no person should drive after consuming any amount of alcohol. That way, every citizen will clearly understand what is expected and what the law requires. Most importantly, it removes from the equation the flaw in prosecuting and convicting persons on the subjective opinion of witnesses. 

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Just about every trial lawyer will tell you that cross-examination is by far the most challenging aspect of a trial. In fact, many say that cross-examination is an “art” and few are born with the innate talent to do it well. The most notable books on the subject reinforce the idea that cross-examination is an art. For instance, The Art of Cross- Examination, by Francis L. Wellman, The Lost Art of Cross-Examination, by J.W. Ehrlich, and The Art of Questioning – Thirty Maxims of Cross-Examination, by Peter Megargee Brown.   So what does this mean for the rest of us who were born without the artful talent of cross-examination? I suppose we can only hope that through experience and trial practice we will develop the skill and proficiency to avoid the most severe battle wounds of trial.

An effective cross-examination can make you feel like you are the greatest lawyer of all time. On the other hand, a failed cross-examination can deflate you and make you question even your decision to enroll in law school. Cross-examination brings to life the old ABC Sports’ slogan: “The agony of defeat and the thrill of victory!” I agree that cross-examination is the most difficult trial skill, but it is not an art. Thank goodness. The good news is that anyone can do it well, in fact, artfully.

Good cross-examination is the result of thorough preparation and hard work. This you knew. But did you know that the most effective cross-examination is when, based on a complete knowledge of the legal and factual issues involved in the trial, the examiner tells his or her story about the case, the witness, or the event? Yes, cross-examination is story telling. Right about now you are thinking…“is this guy for real?” Yes, I am not kidding.   A successful cross-examination is telling the true story about your case, the witness, or the event one sentence at a time.

Cross-examination is not about getting the witness to agree with you point by point (this would be nice) or to pummel the witness to submission (in some cases this would be nice too.) These are not realistic goals. In fact, in a genuinely challenging cross-examination rarely will you and the witness agree on any point. It is not reasonable to expect collaboration from an opposing witness, especially an expert witness, unless you are watching an episode of Perry Mason. Not only does Perry Mason get the witness to agree with his story, but also, his cross-examination breaks the witness into confessing about the murder and to all future murders in upcoming episodes.

Now, perhaps the question in your mind is “why is cross-examination all about story telling?” I suppose the honest answer is that cross-examination is not all about story telling. It is anything you want it to be, but a successful cross-examination is all about story telling. You see we cannot lose sight of our audience, the jurors, nor can we lose sight of how jurors individually and collectively learn and process information during a trial.

Picture yourself in the courtroom staring at the jury box. The jury is sitting there, six or twelve people, selected to hear your case presumably because they are open minded, have never heard of your case, or have no opinion about your case. (If you are picturing a DUI case, then the jurors in the jury box are the ones left because you ran out of peremptory challenges and the court would not grant all of your challenges for cause to keep you from busting the panel.)   When those six or twelve people get together in that jury room something magical happens. Make no mistake about it, the jurors might be ignorant about the law and court procedure, but collective they become “super-human.” Collectively, they are the smartest people in the courtroom.   They pool together their experiences, knowledge, perceptions, commons sense, and feelings.   This matters when you are asking them to follow you all the way to a not guilty verdict (oh, those sweet words.)

For example, the jury’s “super-human” quality allows them to discern lawyer tricks quicker then a blink of an eye. So, a “smart” cross-examination might result in the witness apparently saying the right things, but the jury will reject the examiner’s excellent work because they perceived the examiner’s approach to be phony or manipulative. The jury will then assume that the witness’ answers were the result of shrewd lawyer tricks and not the truth. So, the object of cross-examination is to test the truth of the opponent’s story against yours. This is what jurors expect to happen during cross-examination. 

There is another reason why cross-examination is all about story telling. Jurors do not remember verbatim the witnesses’ answers.   They do, however, remember stories. This is true of any human. Joshua Karton, an accomplished actor and jury consultant, says that less than 7% of communication comes from spoken words, 38% comes from voice (tone, inflection, etc.,) and 50% comes from visual stimulation (eye contact, movement, images, etc.)   The rest is perception and or interpretation by the listener. This means that jurors learn very little about the truth of any case from the actual words spoken in trial.

A jury, even one with super-human quality, is handicapped. We all know for ourselves that learning through our ears is very difficult. In fact, must of the learning we do is visual, and as lawyers, we do must of it by reading. Therefore, the most effective way to communicate through spoken words is the use of stories. This is the only way I know to meaningfully overcome the jury’s handicap. Stories allow the listener (the jurors) to be engaged in an intimate way, invoking emotion, mental pictures, feelings, etc.

This brings me back to my point. Cross-examination is all about story telling, guiding the jurors to see the truth of your case and inviting them to adopt it as their own. In this way, it doesn’t matter whether or not the witness agrees with you because the jury will remember the story, the true story, you told during cross-examination.

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It is not uncommon for prosecutor’s to flex their muscles to advance their agenda. On the surface, they speak of “justice” as if the term belonged to them exclusively, seemingly forgetting that the term belongs to the citizens and not to the government.  Unfortunately, the public has been misled to think that prosecutors only do “justice” and criminal defense attorney’s get the criminally accused off on technicalities. A quick scan of television programs, like Law and Order, seem to wrongly advance such concepts.    What is often ignored in the media is that prosecutors from time to time persecute others, forgetting their real, true role in society. A prosecutor is bestowed with the duty to serve the public in general. This means that a prosecutor should not prosecute without just cause, should exercise reasonableness, and conduct all of its dealings honorably and fairly. 

However, this month the King County Prosecuting Attorney’s Office flexed its muscle against a respected senior jurist, Judge Peter Nault of the King County District Court. The prosecutors forced his transfer by refusing to have Judge Nault preside over their cases. They claim that Judge Nault has failed to follow the law.   A high-ranking official within the prosecutor’s office said, “Nault’s rulings also have involved other issues, such as sentencing, where mandatory minimum terms were not imposed, and evidentiary matters involving the admissibility of evidence.” Seattle Times, August 14, 2008.

These remarks are unfair and represent a departure from the ethical duties of a prosecutor not to make disparaging remarks about a judge. Behind all of this is the prosecutor’s dissatisfaction with Judge Nault’s independence. Prosecutors are used to getting their way and when they encounter an independent judge they have tantrums. Prosecutors realize that elected judges are vulnerable at election time when they are not endorsed by law enforcement agencies. It takes a strong independent judge to overcome the attacks from special interests groups, like prosecution advocates.

In this instance, the prosecutor’s office had a choice to make. They could either respect Judge Nault’s independence (accepting the fact that a healthy system requires checks and balances among the branches of government), or refuse to have their cases heard by Judge Nault, advancing disparaging remarks about his judicial conduct. Obviously they chose the latter. Sadly, Presiding Judge Barbara Linde, a former King County Prosecuting Attorney, decided to remove Judge Nault from his assigned post, acquiescing to the prosecutor’s pressure. 

An independent judiciary is necessary for the preservation of justice. Judges are not elected or appointed to rubber stamp the prosecutor’s desires, actions, or will. Rather, a judiciary is there to ensure that the public is provided with a fair system. There are times when fairness requires a judge to make unpopular decisions, contrary to the wishes of prosecutors, such as in the recent rulings around the state of Washington suppressing the results of breath tests in driving under the influence (DUI) cases.  The breath test evidence was tossed out of court due to governmental malfeasance and ethical lapses at the state toxicology laboratory.  Why blame the judges for the misconduct of prosecutorial agents? Is a notch on the belt more important than fairness and integrity? I hope not!

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