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Pitfalls of Testifying in DWI cases

In a recent blog post by blogger Robert Guest, he posts about some of the techniques taught to prosecutors when cross examining a defendant in a DWI case.  These are the same techniques taught to me while working as a prosecutor.  He reports from old manuals that he has:

Today’s subchapter is called "Crossing the Defendant", it should have been called "guilty until proven innocent." Prosecutors are taught to spin or ignore evidence of innocence.

– ADA’s are taught to work out a "time line" of that day’s events with the defendant. Why? Because there is "no credible way the defendant could have kept track of that, so you will either succeed in showing their no memory of times, or he has an overdeveloped memory."

– What should a prosecutor do if the defendant does not look intoxicated on the video? Drop the charge? Of course not. Argue that the defendant only looks good because of the adrenaline brought on by arrest.

– If the defendant claims the officer was abusive ask the defendant why he/she did not file a complaint with the police department.

– Ask the defendant how often he usually drinks. For regular drinkers argue that the defendant has a high tolerance and would not know if he is drunk. If he is not a regular drinker then argue he would not know his own limits.

There are others too, of course.  Other "damned if you do, damned if you dont" ways to further humiliate someone testifying in their own behalf.  Sometimes they will try and trip up a defendant on whether or not they felt they were intoxicated, and what that definition is… If they report the "falling over drunk" type definition, then during arguments, the State can argue that "we agree.. he wasnt intoxicated according to his definition.. but he was intoxicated according to the legal definition."

And how often have we heard it argued "witness credibility" of our clients??  Because he testifies, he AUTOMATICALLY must be lying, because he has something to gain?  Of course he does.. everyone on trial does.  Does that mean a citizen accused, who was sworn to tell the truth always lies?

These are just some of the arguments that an attorney and a client must be prepared to face when deciding whether or not to testify.

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