Inside the Minds:
Witness Preparation and Examination
in DUI Proceedings, 2011 ed.
Published by Aspatore Books, a Thomson Reuters business
Your Name: Michael Cardoza
Firm Name: The Cardoza Law Offices
Title (Partner, Founder, Chair of…, etc.): Founder
Your Phone #: (925) 274-2900
Your Email: MCardoza@cardolaw.com
Business Address (Where book will be sent. Please include the street address, not a P.O. Box): 1220 Oakland Blvd., Suite 200 Walnut Creek, CA 94596
Your Bio: Michael Cardoza, a San Francisco native, is a high profile defense attorney and has a criminal law background that spans over thirty-five years. Mr. Cardoza spent the first half of his career as a prosecutor in Los Angeles, San Francisco and Alameda Counties. After 14 years of prosecutorial experience, he established the highly successful criminal defense and business litigation firm, The Cardoza Law Offices, located in Walnut Creek, California. In addition to his law practice, Mr. Cardoza is currently a leading legal analyst for television and radio programs commenting on such cases as Scott Peterson, Michael Jackson, Robert Blake, Johannes Mehserle (BART police officer), Black Muslim Bakery and Barry Bonds, among others. His legal commentary credits include: CNN’s Larry King Live panel, NBC’s Today Show, MSNBC, Fox News and KRON-TV. Cases that Mr. Cardoza has been involved in such as the San Francisco Dog Mauling and Barry Bonds steroid scandal have been featured on the Oprah Winfrey Show, Good Morning America, 60 Minutes, HBO, and 48 Hours as well as in print in such publications as Time magazine and Sports Illustrated. Mr. Cardoza acts as a faculty member of the trial advocacy program at Stanford University Law School. He also volunteers his time as a Judge Pro Tem in Santa Clara County, and acts as an appointed arbitrator for the Superior Court of the City and County of San Francisco. He frequently guest lectures at numerous District Attorney Associations and private firms. He resides in Walnut Creek with his wife and children.
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As we think about your chapter in the broader context of the book topic, what would you briefly summarize as the focus of your chapter?
For my wife Kim, who always believed in me.
CHAPTER TITLE: Thoroughly Preparing Witnesses for DUI Cases *
Witnesses are one of the most important parts of any legal proceeding. Understanding their role is necessary to achieve a desirable outcome. Clients are key witnesses to a criminal case whether they take the witness stand or not. A client’s behavior and testimony can make or break a criminal case. Fostering a good relationship with them is therefore vital. It is important to use this relationship throughout DUI proceedings to achieve a successful result.
The Client’s Role in DUI Proceedings
Your client plays a very important role in all DUI proceedings. Whether the client takes the stand as a witness or invokes their constitutional right to not testify, he or she is observed by the jury throughout the case. How a client or witness is perceived by the jury is as important as his or her testimony. Jurors begin evaluating a client immediately and based on their appraisal, decide whether a client is trustworthy or not. Once that decision is made in a juror’s mind all further testimony on a client’s behalf is either believed or rendered not credible.
Molding a Client’s Behavior for a DUI Trial
Jurors tend to believe witnesses if they like the witness, therefore the best witnesses are those that are calm, focused and not easily angered. The same can be said of your client throughout a DUI proceeding, whether he or she takes the stand as a witness or not. If the jury likes your client they will tend to trust their testimony as well as the testimony of other defense witnesses and arguments of defense counsel. When preparing a client for trial, attorneys must remember to prepare them for things besides possible testimony. Witnesses need to be taught that their every move will be evaluated by jurors or potential jurors from the minute they step out of their house. Walking into the courthouse, waiting in the hall, using the restroom, sitting in court, these are all opportunities for jurors to observe your client. Clients must dress nicely and act respectfully and appropriately outside the courtroom as well as inside of it. How they are perceived by jurors will shape how the jury perceives their case.
Preparing a Client to Provide Testimony
When preparing a client for actual testimony, certain basics must be taught. Clients must be told to stay calm, to listen carefully to the questions, and to be respectful to opposing counsel at all times. They must learn to monitor their emotions as well as the content of their answers. It is best to review these things numerous times with a client throughout the course of DUI proceedings.
Once these subjects are covered preparing for direct examination can be done. Mock examinations are vital to preparing your client to take the stand. Reviewing the client’s answers and practicing what will be said over and over again is very important. I conduct numerous mock examinations on many different occasions. I ask my clients tough questions throughout their representation to see how they hold up under pressure. I will often prepare them while we are in court for appearances prior to trial, such as arraignment and pre-trial conference. I am constantly monitoring my client’s behavior when we make these court appearances. Like a nagging mother, I am telling my clients to sit up straight, to answer the judge clearly, to not chew gum, to dress appropriately, and to be respectful. These are all trial strategies that I begin working on from our very first court appearance. Jurors routinely ignore the content of what a witness says and focus on trivial things such as body language, demeanor, personality, and appearance. Jurors look at these things and use them as indications of whether the client is guilty or not guilty. Bottom line: if the jury likes you, they are more likely to give you a favorable verdict. Spend as much time preparing your client on how to testify as you do preparing them on what to say.
The Importance of Direct and Cross-Examination
Jurors should judge witnesses on the truthfulness of what they say. If a client or witness contradicts himself or herself, you would think the jury would hold that against them. However, jurors often trust witnesses who contradict themselves and distrust witnesses who hold their ground. Because of this it is important for clients to admit certain mistakes and inconsistencies up front.
Under cross-examination, clients should act as respectfully to the prosecution as they do to their own attorney on direct. Prosecutors will try to anger, confuse, and upset a defendant while he or she is on the stand. How a client responds to that prodding is more important than what he or she says. Clients must never seem angry or impatient with the prosecution. They must remain friendly, confident, calm, and not rattled by tough questions and again not afraid to admit a mistake. There will be times during cross-examination when the client has the right to be angry with the prosecution. However, the client can not show anger or impatience, no matter what occurs or is said. The more the prosecution attacks the client, the calmer the client must be. Jurors must never sense defensiveness from a client.
I counsel my clients to sit close to edge of the chair, to speak loudly and articulately, to not use slang, and to look into the eyes of the prosecution when answering their questions. I also advise my clients to look at the jury once or twice during their testimony in order to make a connection with the jurors. My advice to attorneys is to avoid interrupting the prosecution with too many objections during cross examination. Do not give the appearance that you are coaching or trying to save your client, rather, let the prosecution beat up on your client a little. Your well-prepared client will be able to handle it, and may even garner sympathy from the jury.
Determining When a Client is Appropriate for the Stand
I can often tell whether or not my client will make a good witness within the first few minutes of meeting them. However, that opinion may change over the course of the proceedings. Regardless of my initial impressions, I immediately start preparing them for testimony. I prepare my clients throughout the duration of their case. We are constantly discussing their testimony. Preparing for a defendant to take the stand is not something you can accomplish at the last minute. It is a process that needs to be done over time. That said, I tell lawyers not to be afraid to put their clients on the stand if they are prepared. Although jurors are instructed they can not hold it against a defendant for not taking the stand, the reality is most do question defendants who refuse to testify. Prepare your client as if he or she will be testifying, but make the final decision when all of the prosecution’s evidence is in.
It is especially important to have your client testify in refusal cases, when driving is an issue and there is a low-blood alcohol scenario. In these cases, the clients need to explain why they did not take a chemical test and how much they had to drink and when. It is extremely important to prepare clients in these cases for tough questions from the prosecution. Clients must present logical and rational explanations for why their testimony may contradict the law enforcement’s testimony.
Even the most well prepared client can implode on the stand. I try to prepare my clients for this as well. Usually clients are really good on the stand for the first 10-15 minutes. However, they often realize this and get overly confident. To prevent this, I tell them not to lean back in their chair and to never get comfortable on the stand. I warn them to be on guard the whole time, on the edge and aware. I prepare my clients to admit weakness and apologize for mistakes made, for example: “I was rude and uncooperative to cops and I apologized for that.” This makes them appear credible in the eyes of the jury.
Regardless of the amount of preparation you give a client, mistakes happen on the stand and unforeseen problems arise. A classic example is when a client is told to not discuss prior arrests or convictions on the stand, as these priors will not come before the jury unless the client himself brings them up while testifying. Even though a client is prepared they often make mistakes, ie.: testifying that “I had never been handcuffed before this incident” or “The last time I was arrested the police were much nicer to me.” These statements give the prosecution the right to ask about prior arrests and convictions that previously were kept from the jury. Situations like these arise, the only way to try to prevent them is to be adequately prepared.
The Qualities of Good Witnesses
Often, jurors expect your client to be unreasonable and intransigent. They expect to hear excuses, exaggerations, untruths, or self-serving statements. By testifying calmly and admitting that your case is not perfect, you make points in the eyes of the jury and when you need them to believe you, they do. Good witnesses are confident and calm. Bad witnesses are emotional, volatile, or unintelligent. As an attorney you must asset their intelligence and personality. Some personalities just cannot testify successfully because jurors will interpret nervousness as guilt.
A good indication of a good witness is whether or not you personally like your client. If you are uncomfortable or just can’t relate to your client, chances are neither will a jury. Typical civilian witnesses in DUI cases are witnesses to a client’s drinking, to their driving, or to the arrest procedures. Usually these are friends and family and when testifying they must appear as unbiased as possible while admitting their relationship with client.
If you find yourself in a situation where your client is not likable or not able to calmly testify you must work your case around this fact. Look for other witnesses that can testify as to the things your client would have so that the testimony comes in without subjecting your client to testifying. If there are certain emotional facts about your client that you wish the jury to hear, try working them into your closing arguments if the client would do more harm than good on the stand.
Methods To Follow For Other Witnesses
In DUI proceedings other witnesses are also important in presenting your case and in challenging the prosecution’s evidence. Preparing for these witnesses must also be given time and attention.
When preparing to have an expert testify on your client’s behalf remember that they must be able to relate to the jury. Experts must be able to break down the science so jurors can understand, remember, and believe it. Attorneys must work with their experts so that the science is simplified and presented in terms they will understand. Juries will not remember convoluted science because the jurors themselves do not want to deal with complex issues. They want simple explanations that make sense to them. Even the most brilliant expert will fail to assist your case if he or she cannot break it down simply for a jury. People look for simple explanations for things all the time, therefore you must give them one thing to hang their hat on, for example, why this machine was wrong, and they will stick with it. Common sense and clear explanations by the experts will allow the jurors to grasp on to your science and find for your side. I often have my experts come up with analogies that jurors can relate to from their everyday lives and occupations.
When looking for a good expert witness an attorney must spend time talking to the expert themselves. If an expert can explain a scientific nuance to me in a way that I can understand then I know they can do it for our jury as well. A common mistake attorneys make with expert witnesses is failing to spend the time to prepare them for testimony in the same way they prepare their clients. Attorney’s often assume because an expert knows the science they can explain the science. This is not always the case. You must find out, by having conversations and mock examinations with your expert, if they can adequately and simply explain the science to your jury.
Another important type of witness to prepare for is law enforcement. Two things are necessary in preparing to cross I counsel young attorneys to ask police officers detailed questions about the field sobriety tests they administered on clients. I often ask officers to actually demonstrate the tests used in my case on me. I will question their ability to remember my performances at the end of their testimony. This often shows that when they don’t immediately write down a test result it is, you can forget important details. Since officers often give the tests the write their report form memory hours later, this can raise questions about the accuracy of the test results as written in the police report.
I also advise attorneys to obtain a copy of the California Highway Patrol’s manual on DUI investigations and field sobriety tests. This manual is an excellent source of information on science and the proper procedures for administering tests. I often use these manuals to prepare for my cross examination of police officers.
My suggestion to new attorneys entering into the DUI world is to begin by researching and understanding the science and machines used within the law. I also suggest they observe good prosecutors and defense attorneys in trial and to try as many of their own cases as possible. Adapt the tools and methods you observe in the veteran attorneys to your personality. And most importantly, always prepare, both yourself and your witnesses.