Cross Examination of the Criminalist. Felipe Plascencia

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1 Cross Examination of the Criminalist Prepared by: Felipe Plascencia (Some of this material was copied from the top California DUI lawyer, Don Bartell.) I normally do not write out questions when I do cross-examination of the officer or the criminalist. I just use an outline. However, for this seminar, I was asked by numerous lawyers to share some of the questions I usually ask of the criminalist. This is not an exhaustive list because there is always times when I ask different questions depending on how the trial flows. Besides, it is different thinking of questions to ask while sitting behind a computer than when it is done in the heat of battle. Never accept the statements made by many lawyers that say that you can never beat the criminalist. They sometimes say that the best you can hope to do is to minimize the damage the criminalist will do to your case. It is absolute none sense! Not only can you neutralize them, but you can force them to help your case. On many of my DUI trials, I never used a defense expert after I got enough good information from the criminalist. That is not to say that you should not use a defense expert. Sometimes you have to use a defense expert so that both experts can cancel each other out. Remember, always firmly say three most important words a real DUI warrior says: READY FOR TRIAL! KEY INFORMATION EVERY LAWYER SHOULD KNOW: * DON T BE A JUNK YARD DOG. (BARKING AT EVERYTHING) STOP CONTRIBUTING TO SENDING JOHNNY TO JAIL BY DOING THAT. THINK ABOUT PRIMACY AND RECENCY. 1

2 -USE YOUR HEAD. I DON T MEAN THINK. ACTUALLY MOVE YOUR HEAD UP AND DOWN WHEN YOU WANT A YES OR SIDE TO SIDE WHEN YOU WANT A NO. -SHORT, SHORT, EQUALS CONTROL. 90% OF LAWERS BEGIN WITH GOOD MORNING, HOW ARE YOU? START WITH BANG AND END WITH A BANG. -IF YOU CAN T HEAR ME LET ME KNOW. -IF YOU DON T KNOW SOMETHING LET ME KNOW. -I JUST HAVE SOME QUESTIONS FOR YOU, OK.. -NOW ON DIRECT EXAMINATION THEY ASKED YOU.. -RECENCY. WOULD USUALLY STOP, LOOK AT NOTES, -SAY, JUDGE MAY A HAVE A MINUTE, THEN YOU WALK TO YOUR CLIENT AND ASK, IS THERE ANYTHING I MIISSED? -THEN YOU SAY, I HAVE NOTHING FURTHER. -THAT IS NOT THE LAST THING YOU WANT THE JURY TO REMEMBER -YOU MAY SAY, WHAT IF YOU ONLY HAVE PRIMACY, AND NO RECENCY, THEN REPEAT PRIMACY. * YOU KNEW WHAT YOU WERE GOING TO SAY BEFORE YOU CAME HERE TODAY! 2

3 *BEGINNING THE CROSS OF THE CRIMINALIST BIAS 1. BEFORE WALKED IN THROUGH THE DOORS AND TOOK WITNESS STAND, YOU KNEW WHAT YOU WERE GOING TO SAY. a. That he was under the influence b. That he was.08 or higher 2. Are you a neutral witness? 3. Are you an unbiased witness? 4. You are here to testify as a scientist? 5. You are not here to testify in favor of the prosecution. 6. You are not here to help the prosecutor get a conviction? 7. No input on arrest 8. No input on complaint being filed 9. No input on whether case should go to trial 10. Just got phone call and told to come testify. 11. You talked about the case with the D.A. prior to testifying. 12. Your crime lab does training for prosecutors. 13. Defense attorneys are forbidden from attending. 14. Your crime lab has written questions for the D.A s so they can ask you the right questions in trial. 3

4 15. How many times testified for prosecutor? 16. Each and every time you say the same thing? 17. This would not be the one that you would say is under.08 and not U/I. COMPETENCE: 1. Are you a medical doctor? 2. You know what peer reviewed article are. a. (Scientist review and approve articles published by other scientists) 3. You read scientific articles to help you understand forensic toxicology. 4. You are not a toxicologist. 5. You are a criminalist. 6. You have not published any peer reviewed articles. 7. Have you published any books on testing for alcohol? 8. Published any articles about testing for alcohol? NO PERSONAL KNOWLEDGE OF DEFENDANT 1. You were not there when Mr. Innocent was arrested. 2. You did not see what he looked like that night. 3. Did you see how he actually did no the coordination 4

5 exercises? 4. Did you see whether he was nervous or anything? 5. Did you see how he was clothed during the time? 6. And how about his appearance, did you see that? 7. You got this information from the prosecutor? 8. And the prosecutor got it from the police officer? 9. Do you remember the prosecutor asking you this hypothetical about...well it was a hypothetical because you hadn t seen any of this stuff, or you hadn t seen Mr. Innocent driving, 10. You hadn t seen him doing field sobriety tests, you hadn t seen whether he had blood shot eyes, or any of those things, right? 11. I want to ask you the same thing. I want to ask you to assume the same thing that the prosecutor asked you, same hypothetical, but I want you to take away what he said was not good driving, forget about that for a moment, okay? 12. And I want you to take away that he said that he didn t do well on the walk the line test, alright? 13. And I want you to take away any symptoms that the officer 5

6 reports; that he had blood shot eyes, forget about those things, okay? 14. But I want you to still consider that there was a valid.17 blood test, okay? 15. Getting rid of all the other stuff, it s a.17. You d still have the opinion that this person is under the influence, is that right? 16. It would be most reasonable that he was? 17. The only way he wouldn t if he drank a lot of alcohol just before he drove and it s in his stomach, and that s not a reasonable assumption. 18. So, if he was a.12 at the time of driving, you would say that he was under the influence irrespective of any other conditions, right? 19. Now let me ask you this question. Supposing Mr. Innocent drove straight as a string. Okay? Perfect driving. Didn t have any problems what-so-ever. Supposing he did each and every field sobriety test perfectly, Okay? Supposing he didn t have blood shot eyes or slurred speech, alright? And still tested at.17, you d still be saying this man s under the 6

7 influence, right? 20. We better talk about this.17 shouldn t we? GAS CHROMOTOGRAPHY: 1. Machine used looks like a larger microwave oven 2. Did you measure the blood? 3. Did you weigh the blood? 4. You only tested a small portion of the blood. 5. In fact you tested the equivalent of a drop of blood 6. You used a pipet, kind of like an eye dropper. 7. You did not put the blood in a slide and measure the alcohol. 8. You put a bunch of tubes in the machine tested them as a large batch. 9. What the machine actually measures is fumes. 10. The drop of blood is heated and creates a gas. 11. Machine injects a needle into the tube and sucks up the gas. 12. The gas goes through a tube that is in a coil and goes out the other end. 13. That is how you come up with a number such as a The machine is measuring molecules 15. It is measuring stuff that can t be seen with the naked eye. 7

8 PROBLEMS WITH BLOOD ANALYSIS 1. What much preservative was in the vial. 2. Preservative is important. 3. It is called sodium fluoride. 4. It is used to prevent fermentation. 5. What is fermentation? 6. The sugars in the blood can create alcohol in the blood sample. 7. You must have at least 1% sodium fluoride. 8. It must be properly mixed. 9. Even if you have enough preservative, if it is not properly mixed, fermentation can still occur. 10. You also have anti-coagulant. 11. That prevents clotting of the blood 12. Just because you have enough anti-coagulant doesn t mean you have enough preservative. 13. They do totally different things. 14. The anti-coagulant is naturally attracted to the blood. 15. Just because blood is not clotted, doesn t mean you have enough preservative. 8

9 16. Even if did a retest of the blood weeks later after the crime tested it, we will never know if fermentation occurred. 17. You would have to test the blood within hours of getting it, then tested weeks later to see if there is a higher result. MARGIN OF ERROR 1. There is an inherent margin of error of at least.01 in any measurement obtained. 2. So, if you have a.17 you could actually have a.16 BREATH TESTS 1. The breath machine is not perfect. 2. Margin of error is a minimum of.01 according to criminalists. Most experts agree that there is a.02 margin of error in every breath result. 3. Mouth alcohol can increase breath results. 4. The machine is measuring breath alcohol and not blood alcohol. 5. Slope detector (mouth alcohol detector) doesn t always work. 6. Slope detector is supposed to shut down the test if it detects mouth alcohol in the breath sample. 7. It doesn t always shut down the test and can read a higher result. 9

10 PHASES OF ALCOHOL INGESTION 1. There is an Absorptive Phase. 2. There is a Peak Phase. 3. There is a Plateau Phase. 4. There is an Elimination Phase. 5. There are problems associated with breath testing in the absorptive phase. 6. Dr. Forney and/or Dr. Dubowski expressed an opinion that breath test results should not be given during the absorptive phase. 7. Will get higher readings during the absorptive phase. 8. Will get higher results because the body is not at equilibrium. Meaning that the lungs are alcohol rich during the absorptive phase. RETROGRADE EXTRAPULATION 1. When you gave an opinion on what Johnny s alcohol level was you used retrograde extrapolation. 2. All that means is that you went back in time and pulled out a number. 3. You had to assume many things about Johnny in order to do that. 4. One of the top scientist in the world described what you just did. 5. Dr. Dubowski has written articles stating that retrograde extrapolation should not be done and that it is a dubious process. 10

11 OPINION 1. No peer reviewed forensic toxicology article has ever stated that people are under the influence at Name the peer reviewed articles that you read to form your opinion. 3. When did you last read those articles? 4. Did you bring them with you? 5. Don t you get asked this question when you testify? 6. Breath machines are actually reading 50 cubic centimeters when they give a reading. 8. The machine doesn t know if the person is absorbing. 9. The machine doesn t know if the person is coming down. 10. The machine doesn t know if the person is in the plateau stage. 11. The machine doesn t know if the person just stopped drinking hours ago or if the person just recently stopped drinking. 12. If we converted the breath sample into a liquid, the machine is actually reading a billionth of a fluid ounce. 13. It would take very little to contaminate the results. There are many other questions you can ask depending on the flow of the trial and how the jury reacts to your cross examination. 11

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