I am working on an appeal from a DUI conviction. I enjoy reading other lawyers’ trial transcripts seeing what works and doesn’t and coming up with ideas for my own trials. In DC, first offense DUI defendants are not entitled to a jury trial, which can be frustrating as many judges will accept what police officers say as gospel, even when obviously “shading the truth” (that’s just a nice way of saying lying). Rarely, however, do I see an officer make it so obvious as the following when responding to questions about the procedures he followed in giving the Field Sobriety Tests:
A. Are we going to go back and forth with another smoke screen? . . . You know, we’re going to go back and forth with these smokescreen questions. I’m just going to tell you I don’t recall.
It’s bad enough that they bring in this pseudo-scientific hoakum (the field sobriety tests – the horizontal gaze nystagmus eye test, the walk-and-turn, and the one-leg-stand balance tests) as evidence of driving under the influence of alcohol, but then when a defense lawyer questions them on the actual procedures they used and how they compare to what they are supposed to do, you can get some variation of the above.
Reading the transcripts, it’s difficult to fault anything my colleague, a well-respected DUI lawyer, did. But I hope I would have not let that statement stand. In that passage, the cop is basically saying that if you ask me a question I think is a “smokescreen”, I am going to lie and say that I don’t remember. I would like to think that I would have had the presence of mind to press the officer on that: “So if I ask a question that you think is a smokescreen, you will tell me you don’t recall?” “Didn’t you swear to tell the truth?” “Just because someone can’t prove what you do and don’t recall, that doesn’t make it less of a lie does it?” I hope when I am in my next DUI trial and the officer says something like that, I will not let it stand.