More on cages and due process

In response to my post Defendants, cages and due process, I received the following e-mail from Sabrina Carliss:

Paul, you had an Aug 9th article titled 'Defendants, Cages and Due Process' where you spoke about the process of placing defendants behind bars or reverse cages where they testify from another room. Since it seems you're adamantly against this practice, how would you propose to deal with future alleged victims of sexual assault deal with the trials? Seems like this practice is rather kind to those assaulted (if the alleged is truly guilty). Where did you find the info for the last paragraph? 

Well, Ms. Carliss, my solution is quite simple - the complaining witness takes a seat in the witness stand and answers questions on direct from the prosecutor and on cross from the defense attorney. The Sixth Amendment guarantees a defendant the right to confront the witnesses against him and I believe that the right to confront is severely diluted when a witness is allowed to testify from another room.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. -- Sixth Amendment

My idea may sound harsh but my job is to defend the Constitution. The Bill of Rights doesn't make exceptions (and neither should we) for different crimes. When a person goes on trial, the state is looking to take away that person's life, liberty or property. If we're going to allow the state to do that then we damn well better guarantee that the defendant's rights are protected and that he be afforded all of his rights under due process of law.

By allowing a witness to testify on camera from another room we are telling the jury that the defendant is a bad person. We are telling the jury that it's okay to ignore the presumption of innocence. We are telling the jury it's okay to ignore the Bill of Rights.

Those who seek to tear down our constitutional protections like to twist the question around and ask what we would want if it was our child on the stand. The real question, however, is what would you want if you were the one on trial?

Brother, can you spare a question or two?

I see and get last minute requests for voir dire questions and questions for cross examination of technical supervisors and other experts on a fairly regular basis. The problem is, I can't provide any. I don't know the details of your case. I don't know the issues involved. I don't know what defenses are going to be raised. I don't know the theme of your case. I haven't seen the documents produced by the State in response to your discovery requests.

I'm shocked that some folks out there think there's a magic bullet just waiting to be fired and that you can obtain it at the last minute. Every case is different. The fact patterns are different. The witnesses are different. Test results are different. The issues are different.

Now there are some universal themes you can use during a voir dire. You can, and should, question the panel regarding their attitudes toward the presumption of innocence and the burden of proof. If a police officer is going to testify as a fact witness I think you should question the panel about whether they would lend more credence to the testimony of an officer simply because he is a police officer. Beyond that, the questions asked during voir dire should be determined by the facts of the case and the story you want to tell.

Yes, that requires work. It requires you to sit down and review your case and construct an overall theme and figure out how each piece of the puzzle fits and what pieces aren't necessary. If you've worked your case up properly then you've lived and breathed it for weeks, if not months, leading up to trial. It's your baby. Get in there and change that diaper and feed it and cuddle with it and rock it to sleep.

The same approach should be taken to cross examining the state's expert. While there are certain questions I would ask the technical supervisor in any case, other questions arise based on the particular facts of my case, the documents I have in my notebook and the theme of the case. My cross examination in a low breath test case will be quite different from my cross in a high breath test case. Some questions will be generated by my review of the maintenance records and test records from the state's breath test machine. Others will be generated by my familiarity and prior interactions with the witness.

There are no shortcuts to trial prep. There is no magical book of questions from which to draw. So, while I am more than happy to make suggestions and let someone bounce ideas off me, please don't expect me to do your job for you.

Loss of normal use...

According to the DWI statute in Texas, the state can prove a citizen is intoxicated in one of three ways:

1. Loss of the normal use of one's mental faculties due to the introduction of
alcohol, a drug, a controlled substance, or a combination thereof, into the
body;
2. Loss of the normal use of one's physical faculties due to the introduction of alcohol, a drug, a controlled substance, or a combination thereof, into the body; or
3. Having an alcohol concentration of .08 or higher.

There are two training manuals that are a must have for any lawyer who practices DWI defense in Texas - DWI Detection and Standardized Field Sobriety Testing (published by NHTSA) and the Texas Breath Alcohol Testing Program Operator Manual (published by the Texas Department of Public Safety).

Both of these manuals may be used to impeach the state's witnesses on the subject of "loss of normal use." A criminal defense attorney who knows what he's doing can cross-examine the state's witnesses with these manuals through the "learned treatise" exception to the hearsay rule.

According to the breath test manual, "[i]t is not the alcohol in the peripheral areas of the body which impairs a person's coordination, but the alcohol concentration in the CNS (central nervous system) tissue." This seems to indicate that it's not the concentration of alcohol in a person's breath that is critical -- it's the concentration of alcohol in a person's central nervous system (brain, brain stem and spinal cord) that is critical.

The breath test manual goes on to state that "[t]he first effect of alcohol is the impairment of judgment." That's because "[a]lcohol affects the brain in reverse order of how the brain develops." In other words, the higher level brain functions, such as judgment, logic and reason are affected before the lower level brain functions, such as breathing and digestion. According to the breath test manual, "[p]sychomotor skills are motor actions (physical faculties) proceeding directly from mental activity."

The NHTSA manual states that alcohol "doesn't affect a person until it gets into their central nervous system, i.e. the brain, brain stem and spinal cord."

This is important because the manuals the state uses to train its experts tell us that alcohol affects one's mental faculties before it affect's one's physical faculties. Thus, evidence indicating the citizen accused had the use of his mental faculties at the time of driving can be used to refute the state's argument that if a person performs poorly on the police coordination exercises, he must be intoxicated.

Now when you ask the arresting officer or the state's breath test expert whether alcohol affects one's mental or physical faculties first, and he tells the jury alcohol affects them both equally, you can pull out your manuals and read the training material that contradicts his "expert" testimony. But in order to do that, you have to know what's in those manuals.

If you're defending citizens accused of DWI, and you don't want to commit malpractice, you need to get those manuals ASAP.