OUR TRIAL NOTEBOOK
Part 1 - Discovery Requests
When defending clients throughout the Commonwealth of Massachusetts, our DUI Defense Attorneys will request the following:
1. All written statements of the Defendant, whether signed or unsigned.
2. All tape and video recordings made of statements by the Defendant.
3. Transcripts of recorded statements of the Defendant.
4. Notes made by police officers or by other investigating officers of their conversations with the Defendant.
5. Copies of any mail or written messages, including incoming and outgoing mail from or to the Defendant in jail, or from whatever source obtained, written by the Defendant.
6. A copy of any writings executed or audio or video tapes recorded by any police official or other interested party dealing with the incident under which the Defendant stands charged, including, but not limited to:
a. Police Reports
b. Police logs
c. Notes made by police officials to be used at trial
d. Reports regarding Defendant's refusal to take tests
e. Reports and documents prepared for the Registry of Motor Vehicles
f. Copies of all radio and computer transmissions of the arresting officer(s) beginning one hour prior to the detention up to and including one hour after Defendant's arrest
7. Any and all photographs taken at the scene of the arrest, or otherwise relating to this case.
8. Names of police officials or citizens in the company of the Defendant within one hour before or after arrest who would have been in a position to hear the speech, see the mode of dress, or generally observe the defendant's actions during that time.
9. Names of anyone who read the defendant his or her Miranda rights, including time and places.
10. Results of Field Sobriety Tests administered on the Defendant, recorded or not, together with the name of the administrator of the tests, times and given places and copies of any manuals or other items of instruction relating to the proper police procedures in administering any Field Sobriety Tests.
11. If the Defendant was placed in jail within one hour of his or her arrest, the appropriate jail log and photograph(s).
12. Names and addresses of all persons interviewed by the District Attorney's office, its investigators or agents, department, or any other law enforcement agency known to the Prosecutor or his or her representatives in relation to this case.
13. Written list of all witnesses (including police officers) whom the Prosecution expects to call to testify in support of his or her case.
14. All written statements made by witnesses or any other persons, whether signed or unsigned, which relate to the case. If no statements have been given, a summary of the testimony each witness is expected to give at trial.
15. All books, papers, documents, writings, recordings, or tangible items which may be used by the Prosecution at trial.
16. Any and all photographs taken of the Defendant or portion of his or her body.
17. All reports or records of prior convictions of the Defendant or any other person whom the Prosecution plans to call as a witness.
18. Any facts known to the Prosecution which would aid or assist the defense in locating a witness who might in any way give exonerating testimony for the Defendant.
19. Supply the Defendant's attorney with copies of the following:
a. The serial number and date of manufacturer, together with the date of delivery, to the police agency of the breath testing machine in question.
b. The full corporate name and address of the manufacturer of the breath testing machine unit in question.
c. Copies of all printed or written test and research data submitted by the manufacturer of the machine to the Department of Justice, the Department of Health, and/or the Department of General Services, or to the criminal investigation division of the Commonwealth of Massachusetts or the Attorney General's Office which pertain to the workings, specificity, selectivity, or accuracy of the machine in question, but not limited to scientific and mechanical data.
d. Records of all tests employed by the Commonwealth used to determine the acceptability of the breath testing machine for use in the Commonwealth of Massachusetts.
e. The results and all supporting data related thereto now in the possession or under the control of any governmental agency as mentioned above herein of any comparative tests between the breath testing machine used in this case and other breath testing machines.
f. The complete text of any directive, notice, bulletin, or item of a similar type, to the using agencies by any of the above manufacturers of the machine involved.
g. A copy of the machine's manual supplied with the particular machine in question, together with the copies of each other instruction manual that has been supplied by the manufacturer of the machine or by any governmental agency involved prior to or subsequent to the issuance of the manual as delivered together with the machine.
h. The results of each and every breath test as run on the breath testing machine now in the possession of the police agency beginning ninety (90) days prior to the Defendant's arrest up to and including ninety (90) days after Defendant's arrest.
i. Data concerning whether the breath test machine is designed to make a permanent record of reading.
j. A copy of the complete maintenance history of the breath testing machine in question for that period ninety (90) days before and ninety (90) days after the test in question.
k. A copy of the complete repair history of the breath testing machine in question for that period ninety (90) days before and ninety (90) days after the test in question.
l. A copy of calibration tests made on the breath testing machine in question including temperature regulators and effects of interfering substances.
m. The names of the individuals who observed the Defendant continually for fifteen (15) minutes prior to testing.
n. The number of times the Defendant blew into the breath testing machine.
o. The timing device used during the test and whether it has been certified.
20. With respect to the person who administered the test to determine the Defendant's blood-alcohol content, describe or identify the following:
a. The name of the person who administered the test and his or her qualifications and certifications.
b. The department or agency by whom such person is employed.
c. Compliance with applicable statutes or regulations as to standards of testing for persons administering and interpreting chemical tests for intoxication.
d. The date the person who administered the test was originally certified.
e. The examination and laboratory scores of the person who administered the test to the defendant on the certification examination.
f. The criteria for certification.
g. The date the person who administered the test was last certified.
21. Allow Defendant's attorney and/or Defendant's expert witnesses access to the breath testing machine now in the possession of the agency or its agents upon the giving of 48 hours notice for the purpose of examining, photocopying and testing said machine as against the plans and specifications set out by the manufacturer, said inspection to be carried out between the hours of 8:30 a.m. and 5:30 p.m. Monday through Friday, excluding holidays.
22. Provide the names and addresses of all witnesses, particularly expert witnesses, who will testify at trial as to the conduct, results or interpretation of the breath analysis tests performed by the defendant.
Part 2 - Trial (Cross-Examination of Officer)
Cross-examination of the arresting officer - and any other officer involved with the case - is as important as any other aspect of defending a person who is accused of an OUI. If the arresting officer's credibility is not put into question, or at least neutralized through effective cross-examination, then the chances of success are greatly diminished.
Our DUI Defense Attorneys begin the cross-examination process of the arresting officer well before the officer takes the stand. By approaching the arresting officer in person, or sending a letter to discuss the facts of the case, we learn the personality of the officer in order to effectively cross-examine him or her. If the arresting officer refuses to respond to our inquiry, then that lack of response is brought to the attention of the jury.
If the arresting officer is friendly and cooperative, then they may be led to favorably impress upon the judge or jury what a great person our client is. If the arresting officer is arrogant and uncooperative, then the judge or jury will look at him or her with disfavor. No matter what the personality is of the arresting officer, we utilize it to the benefit of our client.
We lead the arresting officer in the cross-examination. Our questions are closed-ended and require either a "yes" or "no" answer. Each question has a purpose.
- Are there any portions of your reports where you made a mistake that you would like to correct?
- Are you a medical doctor?
- Have you had medical training?
- Have you been trained in chemistry?
- Are you an ophthalmologist?
- Have you been trained in ophthalmology?
- You have received extensive training during your career as a police officer, haven't you?
- Have you received training in OUI/DUI investigations?
- How many total hours of training have you received?
- When did you attend your training?
- Did you training include testifying in court in OUI/DUI cases?
- Have you watched other police officers testify in court?
- Were you nervous the first time you ever testified in court?
- Are you as nervous now as you were then?
- You would agree that your training and experience in testifying in court is to help make you a more believable-sounding witness?
- Have you ever been called as a witness for a defendant in an OUI/DUI case?
- Have you ever testified on behalf of a defendant in an OUI/DUI case?
- Would it embarrass you within your department if this jury (Judge) were to find my client not guilty?
- Would it be okay with you if the jury (Judge) were to find my client not guilty?
- Do you want the judge or jury to convict my client?
- Before trial, didn't I try to talk with you about this case?
- Didn't I tell you how I just wanted to know the truth from you?
- You refused to talk with me, didn't you?
- You had to read your reports and notes prior to testifying today, didn't you?
- This is because the incident happened a long time and you forgot certain facts?
- Do you recall the name of the person whom you arrested immediately prior to my client?
- Do you recall the name of the person whom you arrested immediately after my client?
- Do you remember the type of shirt my client was wearing?
- Do you recall the color of the interior of my client's car?
- Earlier on, you testified that you've conducted 1,500 OUI/DUI investigations, correct?
- You've arrested 450 people, correct?
- So then 70% of the time, your suspicions were wrong?
- In your training, were you taught how important it is to follow your training?
- Why is it important to do so?
- Do you follow procedures step-by-step?
- Were you trained to write complete and accurate reports?
- Were you trained that a driver must be able to divide their attention to safely drive a car?
- Were you trained that a driver who is operating under the influence will have an impaired ability to divide their attentions?
- Were you trained to look for 24 specific driving clues that an impaired driver will display?
- Have you ever been arrested for an OUI/DUI?
- When you first observed my client's car, did you conclude he/she had been drinking?
- When you pulled my client over, did you conclude he/she was impaired by alcohol?
- Did you sense any odor? (If yes, "Could you tell how much he/she drank? What type?")
- Did his/her eyes appear to be red and watery? (If yes, "Isn't it true you have seen many motorists who have red and watery eyes and were absolutely sober? There are many reasons for ones' eyes to be red and watery, aren't there? One reason is that the person is tired?")
- When my client exited the vehicle, you didn't have to assist him/her, did you?
- Did my client "climb" out of the car?
- When he/she exited, they didn't stumble, did they?
- You would agree then that the alcohol didn't affect the ability to exit a car?
- Did my client leave the vehicle in gear?
- After my client exited the car, you began to ask a series of questions?
- Did he/she appear to understand each and every one?
- Did you understand my client's responses?
- So, would you agree that the alcohol did not appear to cause mental impairment?
- Did my client have fumbling fingers or problems with finger dexterity?
- When you first approached my client, exactly what was the first thing you said?
- What was the second thing that you said?
- What was the first thing that my client said to you?
- What was the second thing that he/she said?
- Would you agree that the National Highway Traffic Safety Administration is the authoritative source of field sobriety testing?
- Did you take the National Highway Traffic Safety Administration training for Field Sobriety Testing?
- Was your field sobriety training done pursuant to standards and procedures established by them?
- Did you have to perform these standard tests in front of an instructor before you could pass the course?
- Now, before you administered field exercises, you asked my client questions, didn't you?
- What was the first question?
- What was the second question?
- What was the third question?
- You said earlier that you sensed my client slurred his/her speech?
- Have you heard my client speak many words?
- More than 10? More than 30? More than 50?
- What was the one word that my client said in a slurred manner?
- You indicated my client was polite earlier in direct questioning, didn't you?
- Did he/she treat you with respect?
- Did my client say "yes or no, officer?"
- He/she wasn't belligerent?
- Please tell the judge/jury other reasons you indicated my client was polite…
- He/she submitted to your authority?
- When you were transporting my client to the station/jail, were you driving your vehicle?
- When you were driving, you were paying attention to the road?
- Just prior to administering the breath test, you had paperwork to fill out?
- You had to program the machine with information before my client blew into it?
- Did you ask my client whether or not he/she had smoked a cigarette prior to the stop?
- Did you ask whether he/she had anything to eat just before your stop?
- You were trained that the law requires a 15 minute observation period before a suspect blows into a machine, weren't you?
- What were you doing at exactly _____________ (15 minutes before the first blow)?
- Do you know when the thermometer in the simulator was last verified for accuracy?
- Do you know the theory of operation of the breath machine…how it works and what it does?
- Your department owns videotape equipment, doesn't it?
- It also often makes it routine procedure to obtain videotape evidence of OUI/DUI suspects?
- But you obtained no videotape evidence in this case, did you?
- You didn't videotape my client while he/she was performing your roadside exercises?
- In fact, you didn't videotape him/her any time on the day/night of the arrest, did you?
- All we have is your opinion - subjective - versions of events, correct?
- You would agree that the video camera has no motive, agenda or bias?
- Had you obtained videotape evidence, that would show my client's balance and demeanor, wouldn't it?
MASSACHUSETTS OUI TRIAL ATTORNEYS
When you're looking for a DUI Law Firm that has the reputation for hard-hitting strategic defenses, call The Massachusetts DUI Defense Group. To schedule a FREE Case Review at any of our offices, contact us online or call (888) 693-8434 for help in any of the following areas: