View Full Version : Can you have "too many" Professional Witnesses at a trial?
01-09-2006, 04:54 PM
I'm (maybe) going to have a trial for DWI. Among our Expert Witnesses, we will have a Urine Test expert, a Breath Machine expert, and my personal Psychiatrist.
We will also have other witnesses, like people I came in contact with right before the incident, but they're just regular people.
There was an accident, and I want to have an Accident Reconstructionist, to PROVE it was the other guy's fault, and that I was not driving poorly, and HE caused the whole thing.
but my atty. says 1.) we don't really need him, because it's not about the accident, it's about Blood Alcohol Content.
and 2.) if you have "too many" Expert Witnesses, the jury starts to feel like you're trying to ... hmmm.... I don't remember exactly what he said, but it's something like they think you're trying too hard to prove something, and it gets unbelieveable.
What do you think?
I say that proving that I was driving well, and the other guy was at fault, helps to show I wasn't drunk. I'm having a hard time letting go of the accident issue, because I just want to PROVE it wasn't my fault. But maybe I need to get over that and focus on the real issues, which is BAC.
What do you guys think?
01-09-2006, 05:18 PM
... Among our Expert Witnesses, we will have a Urine Test expert, a Breath Machine expert, and my personal Psychiatrist....
...There was an accident, and I want to have an Accident Reconstructionist, to PROVE it was the other guy's fault, and that I was not driving poorly, and HE caused the whole thing.
but my atty. says 1.) we don't really need him, because it's not about the accident, it's about Blood Alcohol Content...
Personally I think demonstrative evidence is great, it will enable everyone to visualize, what happened. I think though it has to be scaled perfectly and would probably be expensive.
I don't understand what your lawyer is saying when he says it is all about the Blood Alcohol content, did you even have a blood test? I don't see an expert witness for the blood test. What was the result?
01-09-2006, 05:33 PM
No. I refused the blood test. (Who wants a cop pushing a needle into your arm on a dark street corner in a highly-reputed part of town??) But I did take the breath test. They take the results of the breath test and try to extrapulate (I think that's the right word) what your BLOOD alcohol content WOULD HAVE BEEN if it WERE blood and not breath. Confusing? You bet. And highly subjective and prone to error.
The legal limit in Texas is .08 I was under the limit at .06 (but this was two hours after the arrest, so they try, once again, to prove what it WOULD have been if it WERE two hours earlier - kooky way to convict someone, isn't it? on such flimsy evidence)
Of course, they try to nail you on other things, too, like the heel-to-toe walk test, etc., and the eye test. All of which I passed. Except the eye test, and guess what? When you're in a roll-over accident, and also taking anti-seizure meds. your eyes do the same jerky movements that drunk people's do.
And just explain to me why I have to spend $15,000 to defend myself, when it's OBVIOUS that I was NOT drunk??!
01-09-2006, 06:42 PM
"I refused the blood test. (Who wants a cop pushing a needle into your arm on a dark street corner in a highly-reputed part of town??) "
A cop can't do the blood test. They must use a phlebotomist, qualifies RN, or MD. They can't stomp the blood out of you either. The US Supreme Court says so.
"But I did take the breath test.
The legal limit in Texas is .08 I was under the limit at .06 (but this was two hours after the arrest." Experts will testify that alcohol burns off at a rate of .02 per hour. They know you were not drinking for the 2 hours before the breath test. Also, to get a good "blow" on a breath machine (aka "The Intoxilyzer"), two tests have to be within .02 of each other. (That's the error in the machine.) Assuming .06 is the number you blew on both attempts, your BAC at the time of the test could be as low as .04 and as high as .08. Adding the 2 hours of .02 burn off to those numbers, your BAC at the time of driving could be as low as .08 and as high as .12. That puts you as maybe being under the influence at the time of the driving, since you are presumed under teh influence at a .08. Factor in that you got in a wreck, and that some field tests indicate being under the influence, and the DA will be arguing that you no doubt were .08 or higher.
Now, depending on your jurisdiction, there are some other things that can be argued to bring down the BAC a little further. (In CA, the legislature has greatly limited the ability to argue these things). For instance, alcohol absorbtion is an average, and people vary; so some folks are slow absorbers. (This can be tested be getting people drunk in a lab.)
If they did a PAS test (Preliminary Alcohol Screen), aka the balloon, then only one blow was done. This is usually done in the field, not the police department. There are a number of variables that might yield inaccurate results (there's a reason it's a "preliminary" screen.) PAS admissability varies wildly by jurisdiction; and there's all sorts of law regarding what kind of jury instructions can be given (relating to what exactly the PAS results stand for.)
All the above numbers go out the window if, for a portion of the 2 hours after driving, there was a rising rather than a falling absorption curve. That's aka the chug-a-lug defense. If alcohol is in the stomach in great quantity, it still can only absorb at around .02 an hour. That means someone is getting drunker, rather than more sober, as time goes on. A rising curve could encompass all, or part of the 2 hours. If an attorney argues "reasonable doubt" that a rising curve might exist, without evidence that it existed in this case, then the jury might become cranky and teh DA's closing argument is prety much written for him.
"Of course, they try to nail you on other things, too, like the heel-to-toe walk test, etc., and the eye test. All of which I passed. "
Experts will testify that "field tests" aren't very good indicators of DUI/DWI if someone is an experienced drinker, and/or if they are athletic. I've read a report where a .32 did a one legged deep knee bend to prove his sobriety to the officer. Field tests are factors to be considered in light of all teh other evidence.
"Except the eye test, and guess what? When you're in a roll-over accident, and also taking anti-seizure meds. your eyes do the same jerky movements that drunk people's do."
This is called "Gaze Nystagmous at the Extremes". Well, everyone has Gaze Nystagmous" at the extremes. DUI/DWI folks show early onset of it, though. If you are thinking that such measurements are better done by Opthamologists, and that there are a ton of variables, you are now seeing why an MD is a valuable defense witness to have on board.
The driving pattern is critical to a DUI, so doing an effective job of showing that the driving was fine and dandy is a good idea. Too many experts? It's too many if the expert is vulnerable. In other words, the the forensic evidence is insufficient to support the experts opinion then it'd be a bad idea to offer up an easy target to the DA. Also, accident reconstructions and the demonstrative evidence they produce tends to be very very expensive; so much so that if you are paying for it there is a cost benefit analysis to be done. (Interestingly, a Public Defender wouldn't have to enter into that analysis, since his client isn't paying for it. Experts are often less of a problem for a P.D. than a retained attorney.)
"And just explain to me why I have to spend $15,000 to defend myself, when it's OBVIOUS that I was NOT drunk??!"
Please see the above. There's lots of opportunity to screw up; and the DA has a decent argument that you were at least right at the legal limit wher eyou are presumed to be under the influence.
01-09-2006, 08:26 PM
Gryphon is right on target. In CA merey refusing to submit to DUI testsing is a very bad thing.
01-09-2006, 10:18 PM
If the blood alcohol content is as shaky as it sounds here (could convincingly be argued either way), I'd put on as much of an additional defense as I could. Attack on multiple fronts, rather than resting the defense on a "wobbler" element. But I don't know the exact charge(s) you're facing, what the other side has in terms of evidence, etc. That's really a call for your attorney (who, it should be pointed out, does control the mechanics of the defense; if you're in disagreement with him over what should be presented, discuss it with him and, if you're not convinced, get another attorney...)
01-10-2006, 09:34 AM
From a prosecutors view, yes, sometimes having too many expert witnesses isn't a good thing. I tend to think that if you have more expert witnesses, you are trying to justify your defense with their views. It also leaves you open to avenues that you might not want explored. Unless this it is a case that requires medical or forensic experts, I'd lose the expert witness. He might do more harm then good.
However, that is my opinion.