San Antonio, Texas

November 18-19, 2010

THE RULES OF EVIDENCE

IN DWI CASES

Stuart Kinard Memorial Advanced DWI Seminar

The powerpointwww.markstevenslaw.com

The talk• Using the Rules of Evidence to solve

problems.• We will be moving fast.• We will not follow the paper.

PagesPages

18

Motions, Etc Recent Power Point Presentations

ScopeScope

Evidence is easy.

Out With The BadIn With The Good

Any questions?

The ProblemYou’re looking for one case that will convince the judge:

• to allow your expert to testify,

and,

• to prevent the state’s expert from testifying.

Coble v. State, 2010 WL 3984713 (Tex. Crim. App. 2010)

Is Merillat’s testimony about the opportunities prisoners have for violence in TDCJ inadmissible

because it is within the comprehension of the average juror?

No.

• “It is only when the expert offers no appreciable aid that his testimony fails to meet the Rule 702standard. The question under Rule 702 is not whether the jurors know something about this subject, but whether the expert can expand their understanding in a relevant way.”

Rule 702Emerson v. State, 880 S.W.2d 759

(Tex.Crim.App.1994)

• HGN is novel scientific evidence, governed by Rule 702 and Kelly v. State.

• Requisite HGN expertise “will be satisfied by proof that the officer has received practitioner certification by the State of Texas to administer the HGN.”

• Witnesses may not correlate performance on HGN to a precise blood alcohol content.

• Witnesses must follow standardized procedures as outlined in NHTSA manual.

Texas Administrative CodeRule § 221.9

Emerson

The “expert” had “received practitioner certification by the State of Texas to administer the HGN.”

§ 221.9

• to qualify for a “practitioner certificate. . .”

• 2 years experience administering sfst

• completion of practitioner course or update within past 24 months

• requalification every 2 years

McRae v. State, 152 S.W. 3d 739, 743-44 (Tex. App.–Houston [1st Dist.] 2004, no pet.).

Where the undisputed testimony was that the officer did not

administer the HGN test as set forth in the NHTSA manual, the trial court abused its discretion

under Rule 702 when it admitted the results of the test.

The ProblemYou know the arresting officer did not administer the field sobriety

tests the way the NHTSA manual says to administer them, but he claims he has never seen the

manual you are trying to impeach him with.

The lying bastard!

Learned TreatisesRule 803(18)

• “I think your whole book is suspicious.”

• “I don’t know where you’re getting this number of pounds, sir. It’s not in my book that I was trained out of.”

• “If this officer claims he trained with a different manual, he should be ordered to bring it to Court for inspection by the defense, so that it can be used to challenge his testimony and credibility.”

Granted

The ProblemYour client was seized without a warrant, and the prosecutor damn well knows he was, but she nonetheless insists that

the burden is on you to prove there was no warrant.

Prosecutors don’t speak out of both sides of your mouths

Arroyo v. State, 117 S.W. 3d 795 (Tex. Crim. App. 2003)

• State disclosed Bivin’s rap sheet in response to defendant’s Brady motion.

• When defense offered rap sheet to impeach Bivins, prosecutor objected that defense failed to prove that the rap sheet was Bivins’s.

• The Court of Criminal Appeals was not amused.• “We hold that the State, once it tendered Bivins' rap

sheet to appellant without qualification, was estopped from thereafter claiming that the defense exhibits were inadmissible on the ground of identity.”

3131

Motion For Production Of Search And Arrest Warrants, Affidavits, And Returns

The ProblemYou want the jury to know that the ALR Judge found against

DPS and did not suspend your client’s driver’s license, but the DA argues that occurred at a completely separate hearing

and is irrelevant in the DWI trial.

Rule 107

If one party gives the jury part of the story, “the whole on the same subject . . . which is necessary to make if fully

understood or to explain” may be introduced by the other side.

The Rule of Optional Completeness

(Opening the Door)

1616--1717

Defendant’s Exhibits 1State’s Exhibit 1

DIC 24

“failed to prove”

“this case is dismissed”

The ProblemYou need to prove your client had

knee surgery a week before he was arrested, but your client is not a

doctor, he is not related to a doctor, he is not a good friend of a doctor,

and so, not surprisingly, his doctor is unwilling to come to court

voluntarily.

Rule 902(10)

• business or medical records

• self-authenticating

• if filed with the clerk at least 14 days before trial

• accompanied by an affidavit

• with notice to all parties

The ProblemYou have the worst video

ever made and cannot possibly win your case if

the jury sees it.

Every DWI lawyerEvery DWI lawyer’’s nightmare: s nightmare: The Really Bad VideoThe Really Bad Video

“I can’t do that when I’m sober.”* * *

The 5th Amendment is no help, because DWI videos are not “testimonial.”

[no defendant “shall be compelled . . . to be a witness against himself”]

HierarchyRule 101(c)

Hierarchical governance shall be Hierarchical governance shall be in the following order:in the following order:

United States ConstitutionTexas Constitution

Code of Criminal Procedure and Penal Code

Civil StatutesRules of Evidence

Common Law

HierarchyHeitman v. State, 815 S.W. 2d 681

(Tex. Crim. App. 1991)“Today we reserve for ourselves the power to interpret our own constitution.”

• Texas will not “blindly follow” or walk “lock-step” with Supreme Court search and seizure opinions.

• Article I, § 9 of the Texas Constitution may provide greater protection than does the Fourth Amendment.

11--1010

Hierarchy“I can’t do that when I’m sober.”

* * *Is Tex. Const. Art. I, § 10 arguably

broader?[defendant “shall not be compelled to give

evidence against himself”]

Miffleton v. State

Nostagically remembering all the cases he defended before ascending to the bench (there must have been at least three), the Judge announces that you will have a maximum of 30 minutes to

conduct voir dire, and that he will strictly limit you to “pertinent” questions only.

Smith v. State, 703 S.W. 2d 641 (Tex. Crim. App. 1985)

(scope of voir dire is broader under the State Constitution)

Hierarchy

• To preserve a claim under the state Constitution, your timely and specific objection must invoke the Texas Constitution.

• Objection, Your Honor, state’s exhibit 1 violates the Fourth and Fourteenth Amendments of the United States Constitution, Article I, § 9 of the Texas Constitution, and article 38.23 of the Texas Code of Criminal Procedure.

The ProblemYou would have had the

best video ever made (your client insists), but the police officer destroyed it, or lost it, or never made it.

Pena v. State, 285 S.W. 3d 459(Tex. Crim. App. 2009)

PDR Granted:Does the State Constitution’s Due Course of Law provision provide more protection than the Federal Due Process Clause?

Held:Error was not preserved.

Hierarchy• Does Pena apply when the state

loses or destroys a DWI video?• Should a breath test result be

suppressed under Pena because the intoxilyzers used in Texas do not preserve a sample of the breath for retesting?

55--77

The ProblemYou want to exclude

damaging evidence but that evidence is clearly admissible under the

Federal and State Constitutions.

Immediately after the officer arrested your client Joe for DWI, and read a letter-perfect Miranda warning to

him, Joe confessed that he had just consumed a case of beer and

apologized profusely for driving in such an extremely intoxicated

condition.

Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)

The ProblemThe prosecutor has no

witness available to testify, but wants to defeat your motion to suppress by

introducing an unsworn, unsigned police report.

When The Rules Don’t ApplyRule 101(d)

• The rules of evidence “do not apply [to] “the determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104.”

• Granados v. State, 85 S.W. 3d 217, 226-27 (Tex. Crim. App. 2002)(rules don’t apply in suppression hearings)

Unsworn, undated police reports.

Ford v. State, 305 S.W.3d 530(Tex. Crim. App. 2009)

• Rules of Evidence do not apply at motions hearings.

• “Had appellant complained about the reliability, accuracy, or sufficiency of the information supporting the trial judge's ultimate ruling on the motion to suppress, this would be a very different case.”

• Nor did appellant complain that the facts stated in the report were insufficient to establish probable cause.

5353--5454

“Had appellant complained about the reliability, accuracy, or sufficiency of the information supporting the trial judge's

ultimate ruling on the motion to suppress, this would be a very different

case.”Nor did appellant complain that the facts

stated in the report were insufficient to establish probable cause.

HELLO!

The ProblemA crucial piece of evidence in your case, necessary for

you to prevail on your motion to suppress, is

clearly inadmissible under the Rules of Evidence.

Unsworn Police Reports Are Okay• Unsigned, undated, and unsworn police

report was sufficient to establish probable cause to arrest during motion to suppress hearing in possession of marijuana case.

• “in a pre-trial motion to suppress hearing, a trial court may rely upon any relevant, reliable, and credible information, even though it may be unsworn hearsay.”

Ford v. State, 305 S.W.3d 530(Tex. Crim. App. 2009)

The ProblemYour client has only one prior conviction for DWI

but, all things considered, you prefer

that the jury hear nothing about it.

Keeping The Bad Stuff Out: Rules 401, 402, 404(b) & 403

“Objection. That evidence is irrelevant and inadmissible under Rules 401 and 402 of the Texas Rules of Evidence.”

“That objection is overruled.” “If it is relevant, it is relevant only to character, and therefore it is inadmissible under Texas Rule of Evidence 404(b).

“That objection is also overruled.”“Whatever marginal relevance the evidence has is substantially outweighed by its tendency to confuse, mislead, and prejudice the jury, in violation of Rule 403.”

“Sustained.”

Good Extraneous Offense Cases

Rule 401Layton v. State, 280 S.W. 3d 235

(Tex. Crim. App. 2009)

Rule 403Templin v. State,711 S.W. 2d 30

(Tex. Crim. App. 1986)

Rules 403 & 404(b)Montgomery v. State, 810 S.W. 2d 372

(Tex. Crim. App. 1991)

1717--3232

The ProblemYour client tells you he has

a great witness but, unfortunately, you can’t

use him because he has a previous conviction for

misdemeanor DWI.

Rule 609

• Applies to witnesses. cf. Rule 404(b)• Convicted of felonies or crimes of moral

turpitude.What is moral turpitude?

2626--3232

2727--2929

Not DWI

The ProblemYou have to object but

would much prefer to do it outside the jury’s

presence, whenever possible.

Tex. R. Tex. R. EvidEvid. 103(a)(1). 103(a)(1)When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence be admitted, such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity without the necessity of repeating those objectionsof repeating those objections.

Rules 103(a) & 104(b)• Objection• To specific anticipated

evidence• Harrell v. State, 884 S.W.

2d 154, 160 (Tex. Crim. App. 1994)(trial court must make initial determination that jury could find beyond a reasonable doubt that defendant committed extraneous misconduct)

• Alternatively, a motion in limine

The ProblemYour client was arrested for DWI and UCW and, unlike the prosecutor,

you don’t want to try the cases together.

Motion For Severance• Texas Pen. Code § 3.04

• Which case will state try first?

I don’t even want to hear about the other one.

• Rule 401

• Cf. Birch v. State, 948 S.W. 2d 880, 886 (Tex. App. – San Antonio 1997, no pet.)(DWIvideotape not relevant to prosecution for unlawfully carrying a weapon).

The ProblemJoe was arrested for DWI and, although the prosecutor has

plenty of evidence he drank plenty of alcohol, she wants to improve

her chances of success with evidence that Joe was also abusing prescription drugs.

Layton v. State, 2009 WL 250080 (Tex. Crim. App. 2009)

• Defendant charged with DWI by alcohol.• Defendant admitted taking Xanax and Valium.• Trial court allowed this evidence even though

state did not prove how much of these drugs appellant took, exactly when he took them, or their half-life in the human body.

• “The trial court erred in allowing the evidence of Appellant's use of Xanax and Valium to be introduced to the jury without the State first showing that the evidence was relevant to Appellant's intoxication.”

1717

The ProblemYour client is a good guy and you want the jury to hear about it.

Rules 404(a)(1)(A) & 406The Character for

Sobriety

• Evidence of a pertinent character trait offered by an accused in a criminal case.

• Foley v. State:

• good reputation for sobriety admissible.

The Habit of Sobriety

• That defendant was “frequently intoxicated” was relevant to the state’s theory that he murdered the deceased in a drunken rage, and was therefore admissible “as a habit” under Rule 406.Haynes v. State, 85 S.W.3d

855, 859 (Tex. App.-Waco 2002, pet ref’d).

2323

The ProblemA crucial piece of evidence can be

supplied only by the defendant, but putting

him on the stand would be ugly.

Rule 104(d)• the accused in a criminal case• by testifying upon a preliminary matter• out of the jury’s hearing• is not subject to cross-examination as to

other issues in the caseExamples

– Erdmann issue– voluntariness of consent to search– standing– was there a warrant?

The ProblemThe ProblemYou want to know what the stateYou want to know what the state’’s s intoxilyzerintoxilyzer expert is going to say expert is going to say

before he testifies in front of the jury, before he testifies in front of the jury, but:but:

• the expert refuses to talk to you;

• the judge denied you application to take the expert’s deposition; and

• the judge insists on “carrying” your motion to suppress with the trial.

Motion ForDaubert Hearing

• a hearing

• outside the jury’s presence

• to determine

• relevancy

• reliability

Rule 104(a)

Motion For Voir Dire OfExpert Witness

• prior to expert giving opinion or disclosing underlying facts•“shall,” in a criminal case•“voir dire” examination•“directed to the underlying facts or data upon which the opinion is based”•out of the hearing of the jury•mandatory

Rule 705(b)

The ProblemThe arresting officer

wants to dictate findings of fact into his video,

and the state wants to play it for the jury.

Fischer v. State, 2008 WL 141850 (Tex. Crim. App. 2008)

A novel question presented• “Are a law enforcement officer's factual

observations of a DWI suspect, contemporaneously dictated on his patrol-car videotape, admissible as a present sense impression exception to the hearsay rule under Tex. E. Evid. 803(1)?

No

The ProblemYou would like to hire Gary Trichter as your co-counsel

but your client is not a trust-fund baby.

“I have to object to whether this witness is an expert on the Intoxilyzer5000.”

“May I take him on voirdire, then, as to why he would believe it was unreliable? He’s basing it on something.”

MR. STEVENS: “I’d be glad for her to ask him that.”

Q. “have you read studies on it?”

A. “I’ve also read in –actually, Mr. Stevens has a copy of it, I brought it here today, that the State bar of Texas publishes a magazine called the Texas Bar Journal.”

Q. “You mentioned the Texas Bar Journal.”

DIRECT EXAMINATION (CONTINUED)QUESTIONS BY MR. STEVENS:

(Defendant’s Exhibit No. 11 marked.)

A. “You can see that this is addressed to my office. All attorneys get this. I keep them because I do find them helpful. An on page 898 there is flagged here an article. And as I was saying, it says, Accordingly, if you understand that the machine destroys breath and breath cannot be retested, it doesn’t work the same for everyone. It’s not warranted fit for human testing, and that you’ll get sick blowing into a community breath tube. And if you refuse for these reasons, you’ve got good mental faculties and judgment and must be sober.”

If I’m driving home from a party and get stopped by the police, should I blow in the breathalyzer?

Gary Trichter of Houston: DWI intoxication is when a person loses their normal mental or physical faculties or has a .08 blood alcohol level. Science tells us that you can’t lose physical faculties until you first lose mental faculties. Therefore, if you have no normal loss of faculties, then logically you can’t have a .08 blood alcohol level. Accordingly, if you understand that the machine destroys breath and breath cannot be re-tested, doesn’t work the same for everyone, is not warranted fit for human testing; and that you’ll get sick blowing into a community breath tube, and if you refuse for these reasons, you have demonstrated good mental faculties/judgment and must be sober.

The ProblemYou want to use a medical expert, and your client is

fabulously wealthy (wealthy enough to hire Trichter) and can afford to hire the doctor - but you are concerned because there is

no doctor-patient privilege in criminal cases in Texas.

Rule 509(b)

• “There is no physician-patient privilege in criminal cases.”

• Exceptions:–communications made to drug or

alcohol treatment providers by persons being voluntarily treated or examined for admission

Rule 503(b)“A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client. . . .”

Lawyer-Client Privilege