Move On

From what I would assume to be a transcript posted by Jamison Koehler:

HEARING EXAMINER:  I will tell you right now, I do not, unless you have an expert here to testify as it relates to the field sobriety tests, unless you can provide that testimony through an expert –

DEFENSE COUNSEL:  — I have an expert right here –

HEARING EXAMINER:  — I cannot allow that line of questioning.

DEFENSE COUNSEL:  Let me try –

HEARING EXAMINER:  Because you are trying to get the officer to say that the tests are not peer-reviewed.  What does that mean? What does that mean to the officer?

DEFENSE COUNSEL:  I don’t care what it means to the officer.  What matters is what it means to you.

HEARING EXAMINER:  Right.  And so the officer says it wasn’t peer-reviewed, how do you refute that if you don’t have an expert?

DEFENSE COUNSEL:  I have an expert.  Right here.  The officer is an expert.  He has been certified multiple times in the administration of the test.  Otherwise he wouldn’t be qualified to testify.

HEARING EXAMINER:  No, no.  Where is your expert?  He is the government’s expert.

DEFENSE COUNSEL:  And now he is my expert.

This comes from a drunk driving case, and the officer on the stand, like the arresting officer who also conducted the field sobriety test, magically transforms into the government’s expert because someone has to be.  If the cop wasn’t an expert, then the prosecution would have to bring a second person in to play the expert, a terrible waste of manpower.  Instead, they pretend all cops are experts, because they are all trained in what to say, which ought to do the trick.

But not this time.  Defense counsel, who is unnamed in the transcript, but we will call for the sake of this post Kamison Joehler, did what every defense lawyer ought to do. He tried to turn the government’s expert into his expert. An expert, by the way, is a person who is qualified, by way of education and experience, to offer an opinion, which regular witnesses cannot do.

So since the government is putting the cop up as an expert, what’s to stop the defense lawyer from turning it around on them and using that same expert as his own?

DEFENSE COUNSEL:  And now he is my expert.

HEARING EXAMINER:  Counselor.  Move on.

DEFENSE COUNSEL:  Madam Examiner –

HEARING EXAMINER:  Counselor.  I said move on.

And, no doubt, the Hearing Examiner meant it.  Move on.  It’s that easy.

5 thoughts on “Move On

  1. Dave

    That is a good example of the phenomenon of how rules routinely used to favor the prosecution somehow don’t function when the defense wants to use the same rule.

    My first introduction to this was with regard to an evidentiary ruling in a criminal case. All throughout the transcript, you see evidence admitted for the prosecution after the defense objects on one ground, and the response is that it is admissible for this other purpose, so it is ok. (When everyone in the world knows the real reason the prosecutor wanted to admit it was for the impermissible purpose). But hey, that is the rule. But lo and behold, the defense then wants to get in evidence that yes, is inadmissible for all sorts of reasons, but there is one reason it is admissible, and that is the reason offered. The prosecutor objects and the evidence stays out. Apparently the rule repeatedly used for the prosecutor’s benefit is all used up. Sort of like the prosecution expert.

    1. SHG Post author

      The irony is that if the defense had an expert, wanna bet the Hearing Examiner would have not allowed the testimony, whether for refusal to qualify or relevance? I can’t tell you how many times I’ve challenged a cop’s qualifications as expert, only to have the judge hem and haw, then shrug, and say, “well, I’ll allow it.” Mine, of the other hand, suffer a colonoscopy.

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