Posts tagged with "cross-examination"

Where Defense Counsel Invited Error, He Could Not Then Demand a Mistrial

In the previous article “Jury Could Reasonably Infer That Defendant Withheld Fact She Participated in Robbery In Order To Receive State Benefits,” the defendant did not succeed in her claim that the State presented insufficient evidence to convict her of fraudulent receipt of worker’s compensation benefits. In her appeal, she additionally argued that because an officer improperly referenced the defendant’s request for counsel during his testimony, the court should have declared a mistrial but failed to do so.

During cross-examination, defense counsel pressed the officer regarding whether he had taken a statement from the defendant following the robbery, asking variants of the same question. The officer consistently stated he did not take a statement, and upon repeat questioning, clarified that he had not done so because the defendant asked for an attorney. Defense counsel did not object to this testimony, and it was the judge who pointed out, outside the presence of the jury, the potential constitutional issue of referencing the counsel request. At this point, defense counsel made an oral motion for a mistrial, arguing that the statement was improper and nonresponsive. The court denied the motion, finding that the officer’s testimony was “sort of responsive,” and instead instructed the jury to disregard the officer’s testimony about the defendant’s request for counsel.

Declaring a mistrial is an extreme measure granted in very few situations, such as prejudice undermining the right to a fair trial. If the court can implement a curative action to counter the prejudice, oftentimes through a jury instruction, this is the preferred course of action. It is within the trial court’s discretion to grant or deny a motion for a mistrial, and the defendant “bears the burden of establishing that there was irreparable prejudice to the defendant’s case such that it denied him a fair trial.” However, if the error claimed by the defendant resulted from questioning on his part during cross-examination, “[s]o long as the answer is clearly responsive to the question asked, the questioner may not later secure a reversal on the basis of any invited error.”

In this case, the Appellate Court determined that defense counsel invited the error. By repeatedly asking the officer whether he had taken a statement from the defendant, despite consistent negative answers, defense counsel “opened the door for [the officer] to explain why there was no statement.” In addition, the defendant failed to show how she was denied a fair trial. The judge gave a curative instruction to disregard the statement, and “[a]bsent evidence to the contrary, we presume that the jury followed the court’s limiting instruction.” The Court further noted the strength of circumstantial evidence against the defendant. Therefore, this argument on appeal was rejected as well, and the judgment affirmed.

When faced with a charge of larceny, burglary, conspiracy, or attempt, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

Despite Prosecutorial Impropriety, Closing Argument Comment Did Not Deprive Defendant of a Fair Trial

In the previous article, I discussed how the Appellate Court of Connecticut rejected a defendant’s claim that the trial court improperly admitted allegedly prejudicial evidence. This article focuses on the defendant’s second claim on review: prosecutorial impropriety.

As previously noted, the defendant was charged with operating a motor vehicle while under the influence (OMVUI) of alcohol and operating a motor vehicle with a suspended license. At trial, the State admitted into evidence an A-44 form, which is used by police when they report an arrest related to OMVUI. This form indicated that the defendant “refused to perform” two field sobriety tests, but on direct examination, the officer who filled out this form stated that no field sobriety tests were performed because the defendant appeared too intoxicated to safely perform them. On cross-examination, defense counsel questioned the disparity, and during closing arguments repeatedly highlighted the discrepancy to call into question the witness’s credibility. In its rebuttal argument, the prosecutor stated that the A-44 form was a standardized form voted on by the Connecticut legislature. However, this cited evidence that was never entered into the record, though defense counsel did not object when the statement was made.

When the defendant appealed his conviction, his second ground for appeal was that the prosecutor’s statement during closing arguments constituted an impropriety that deprived him of a fair trial. He argued that “the state impermissibly bolstered [the officer’s] testimony by improperly referring to evidence that was not in the record during closing argument.”

A reviewing court applies a two-step process when assessing a claim of prosecutorial impropriety. First, the court must determine whether an impropriety even occurred. Although counsel are generally allowed “generous latitude” with respect to their arguments, a prosecutor may forcefully argue his case so long as it is done so fairly based on facts within the evidence and attendant inferences. In this case, the Appellate Court concluded that the prosecutor’s statement amounted to an impropriety. He made reference to evidence that was not admitted, and because “the comment amounts to unsworn testimony… [it was] not proper in closing argument.”

However, the inquiry does not stop at a mere finding of impropriety. In the second step, the court must consider “whether that impropriety, or the cumulative effect of multiple improprieties, deprived the defendant of his due process right to a fair trial.” The court will consider the following six factors in the context of the entire trial:

[T]he extent to which the impropriety was invited by defense conduct, the severity of the impropriety, the frequency of the impropriety, the centrality of the impropriety to the critical issues in the case, the effectiveness of the curative measures adopted and the strength of the state’s case.

State v. Jordan, 117 Conn. App. 160, 164 (2009). In this case, the Appellate Court only found the first factor in the defendant’s favor. It noted that the comment was not sufficiently egregious and only occurred once. In addition, attribution to the legislature is not a central issue in an OMVUI case, and the court instructed the jury that counsel’s arguments were not evidence and thus could not be considered. The defendant provided no evidence that the jury disregarded this instruction. Finally, the State’s OMVUI case was sufficiently strong with ample supporting evidence. Therefore, the Appellate Court found that despite the impropriety, the comment did not deprive the defendant of a fair trial.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence) or license suspension, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

High Court of Connecticut Sustains DUI Conviction, Noting Field Sobriety Test Evidence Was Properly Admitted

In a recent criminal law matter, the Supreme Court of Connecticut found that a trial court did not abuse its discretion in allowing into evidence the results of a horizontal gaze nystagmus test (nystagmus test), because its administration satisfied a two-part admissibility requirement.

This case arose from an incident that occurred in the early morning hours of December 18, 2005. The defendant was involved in a single-car accident after consuming several alcoholic beverages. Suspecting the defendant was intoxicated after making observations of his appearance and demeanor, a police officer administered several field sobriety tests, including the nystagmus test, all of which the defendant either failed or was unable to perform. The defendant was then arrested for and charged with operating a motor vehicle while under the influence (OMVUI) of alcohol in violation of General Statutes § 14-227a, among other charges.

Prior to trial, the defendant filed a motion in limine seeking to exclude all evidence related to the nystagmus test. He argued that “it had not been administered according to the ‘strict’ standards established by the National Highway Traffic Safety Administration” (NHTSA). The court denied the motion, stating that compliance with the NHTSA standards “went to the weight of the evidence, not its admissibility.” After the officer who performed the nystagmus test testified at trial, the defendant filed a motion to strike, which was denied. The defendant was convicted on all counts and thereafter appealed.

The nystagmus test is one of three standard field sobriety tests administered by police officers in Connecticut when they suspect that an individual is intoxicated. In a previous case, the Appellate Court described what this test involves:

To administer the [nystagmus] test, the officer positions a stimulus approximately twelve to eighteen inches away from and slightly above the subject’s eyes. The stimulus, usually a pen or the officer’s finger, is then moved slowly from the midline of the nose to maximum deviation, the farthest lateral point to which the eyes can move to either side. The officer observes the subject’s eyes as he tracks the stimulus and looks for six clues, three for each eye, to determine whether the subject passes or fails the test. The officer looks for (1) the inability of each eye to track movement smoothly, (2) pronounced nystagmus at maximum deviation and (3) the onset of nystagmus at an angle less than forty-five degrees in relation to the center point. A finding of four clues indicates failure of the test and is a sign of intoxication.

State v. Commins, 83 Conn. App. 496, 499 (2004). However, nystagmus test evidence can potentially mislead a jury. As such, the State must “lay a proper foundation” regarding the credentials of the person who administered the test, and that the administration itself “was conducted in accordance with generally accepted standards,” such as those promulgated by the NHTSA.

In this case, the Supreme Court found that the State laid the proper foundation regarding the officer’s credentials, and that the manner in which she administered the nystagmus test complied with NHTSA regulations. At trial, the officer testified that she received training in both the administration of field sobriety tests and the interpretation of their results. In particular, she stated that she received “advanced training” from the NHTSA. Furthermore, her description of how she administered the test to the defendant was deemed proper by the Court. More telling, the defendant had the opportunity on cross-examination to call into question the weight of this evidence. Therefore, the Supreme Court did not view admission of this testimony as an abuse of discretion by the trial court.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence), an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

DUI Suspect Did Not Have Right to be “Selectively Silent;” Rebuttal Inquiry Did Not Violate Constitutional Protections

Last year, the Appellate Court of Connecticut considered whether a prosecutor’s line of inquiry violated a defendant’s due process rights against self-incrimination under the state and federal constitutions.

This case arose from an incident that occurred at 1:22am on April 9, 2008. A state trooper was on routine patrol along I-95 in Fairfield, CT, when he received a report of an erratic driver in his vicinity. He promptly located the vehicle in question, which was driving only 35mph in a 55mph zone. In addition, the trooper saw the vehicle swerve multiple times and nearly strike a guardrail. Therefore, the trooper initiated a traffic stop. While interacting with the driver, who was later identified as the defendant, the trooper made the following observations: bloodshot and watery eyes, slurred speech, and the distinct odor of alcohol. The trooper spotted a plastic cup with a tan liquid in the center console, but the defendant would not answer any questions regarding it.

The trooper asked the defendant to exit the vehicle and administered three field sobriety tests. The defendant was then arrested for operating a motor vehicle while under the influence (OMVUI) and transported to state police barracks located in Bridgeport, CT. There, he agreed to submit to two breathalyzer tests, both taken within two hours of the defendant operating his car and with results over the legal limit. The defendant was advised of his Miranda rights and presented with questions from a motor vehicle supplemental form (A44 form): the defendant answered some, but refused to answer others regarding alcohol and food consumption.

Before trial, the defendant filed a motion in limine to exclude the admission of the A44 form, citing his constitutional right against self-incrimination, but the court denied the motion. At trial, the State conducted an “offer of proof” through the trooper regarding the A44 form, and the defendant objected, but the form was admitted into evidence. On cross-examination, defense counsel engaged the trooper in a line of questioning regarding the defendant’s cooperation in answering questions from the form. On redirect, the State asked whether the trooper inquired about the amount the defendant had to drink, and the defense objected on the ground of self-incrimination. The State argued that “the line of questioning had been opened by the defendant,” and the court agreed and overruled the objection. The defendant was subsequently found guilty by a jury and he appealed his conviction, arguing in part that his due process rights were violated by admission of the A44 form and related questioning during trial.

When one party engages a witness in a particular subject during examination at trial, he or she “cannot object if the opposing party later questions the witness on the same subject.” This is known as “opening the door” to rebuttal. Where a defendant has been advised of his Miranda rights, he does not also have the right to be “selectively silent.” Thus, the right against self-incrimination is inapplicable to a factual scenario where a defendant so advised chooses to answer some questions but “selectively declines to answer several others.”

In this case, the Appellate Court found that when the defense asked the trooper questions related to the defendant’s cooperation regarding the A44, the State had every right to follow up with questions on redirect evidencing the unresponsive answers. As the Court stated, “The defendant cannot reap the benefits of inquiry into one subject and expect the state’s questioning within the same scope to be held impermissible.” Therefore, there was no abuse of discretion when the court allowed the State’s inquiry on redirect regarding the defendant’s refusal to answer questions related to alcohol and food consumption. After addressing additional grounds for appeal, the Appellate Court affirmed judgment in its entirety.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence), an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

Lower Court Did Not Abuse Its Discretion in Termination of Cross-Examination, Since Evidence Was Not Relevant in Suppression Hearing

In a recent criminal law matter, the defendant was charged with operating a motor vehicle while under the influence (OMVUI) in violation of § 14-227a(a)(1). He filed a motion to suppress the arrest due to lack of probable cause, and a hearing was held. The State asked the arresting officer, who was their only witness, to describe his police training and what happened on the night of the defendant’s arrest. The prosecutor asked the officer questions related to his return to the defendant’s vehicle after the initial traffic stop. However, the court interjected, stating this line of questioning was beyond the scope of the motion. The prosecutor agreed, and defense counsel began his cross-examination, repeatedly asking about the officer’s training. The court once more interrupted, stating the officer’s training and what occurred beyond the initial stop concerned questions of fact for the jury. Although defense counsel vehemently objected, he did not make a proffer “of other evidence he wanted to adduce during the cross-examination.”

The motion to suppress was denied and the defendant was subsequently convicted following a jury trial. On appeal, the defendant argued, in part, that the court abused its discretion when it cut off his counsel’s cross-examination during the suppression hearing. He stated that he was entitled to a “full and fair cross-examination of the state’s sole witness,” and the court’s action constituted a deprivation of his Sixth Amendment protections.

The right of confrontation is a cornerstone principle of the Sixth Amendment of the U.S. Constitution. A criminal defendant has a right to cross-examination, which “requires that the defendant be allowed to present the [fact finder] with facts from which it could appropriately draw inferences relating to the witness’ reliability.” In other words, during cross-examination, the defendant has the opportunity through counsel to expose a witness’ motive, interest, bias, or prejudice. However, a defendant is not permitted to present “every piece of evidence he wishes,” and courts generally have considerable discretion in controlling matters discussed during cross-examination. When a defendant claims a violation of his right to cross-examine, a reviewing court will consider: “The nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.”

In this case, the Appellate Court of Connecticut agreed that the court erred in determining that what happened after the initial traffic stop was a question for the jury and thus outside the scope of the suppression hearing. Nonetheless, it found that the court did not abuse its discretion because the officer’s training was not relevant and the defense counsel proffered no other evidence he sought to discuss during cross-examination. In addition, counsel had ample opportunity at trial to extensively cross-examine the officer, but “nothing in it… could have affected the validity of the court’s ultimate ruling on the motion to suppress.” Because the evidence of the officer’s training was not relevant, the defendant’s confrontations rights were not violated. Therefore, the lower court properly excluded the evidence.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence), an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

Criminal Law Update: Drug Analysis Must Be Supported By Live Testimony

This week, the United States Supreme Court ruled that criminal laboratory reports may not be used at trial unless the laboratory analyst actually responsible for preparing the report physically appears to give testimony in court and to be subjected to cross-examination.

In a 5-4 decision, the Court ruled that the Sixth Amendment confrontation clause gives criminal defendants the right to challenge the validity of chemical analyses proffered by prosecutors by examining a live witness who would be compelled to appear at trial.

Prosecutors argue that the landmark decision adds a significant burden to the government’s ability to prosecute crimes in which lab reports are routinely submitted with little or no supporting testimony.

By contrast, the majority decision notes that convenience is not the measure of constitutionality, pointing out that “the confrontation clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination.”

The full decision can be found at: http://www.supremecourtus.gov/opinions/08pdf/07-591.pdf

If you have questions about drug analysis or a criminal matter, contact us at (203) 221-3100 or jmaya@mayalaw.com for a free consultation. 

A Student’s Rights During the Expulsion Process

When a school board decides that a child’s misbehavior warrants a greater punishment than up to ten (10) days’ exclusion from school, they may instead consider issuing an expulsion. As with suspensions, there are three recognized grounds (discussed in greater detail here) for expelling a student: his or her behavior 1) violates a publicized school policy; 2) seriously disrupts the educational process; or 3) endangers persons or property. Where the conduct was committed on school grounds, only one category need be established; if off school grounds, then a showing of both #2 and #3 are required.

As a parent, if your child is facing an expulsion, it is imperative that you understand your child’s rights during the expulsion process. Below you will find a concise guide on what to expect before, during, and after the expulsion hearing.

Before the Hearing and Preparation

When an expulsion is considered for student misbehavior, parents must receive written notice “within twenty-four hours detailing the date, time, a plain statement of the matters at hand, and a list of free or reduced-fee legal services.”[1] The school board must also provide any and all documentary evidence it intends to present at a suspension hearing. Barring emergency circumstances,[2] students are statutorily entitled to a formal hearing in front of the school board within ten (10) days after the proposed expulsion.[3]

Parents are advised that prior to the hearing, they review the school board’s evidence and speak with the school board’s witnesses to understand the substance of their potential testimony. In addition, parents should arrange for their own witnesses to testify on their child’s behalf.

At the Hearing

The expulsion hearing is presided over by three members of the board of education (or an impartial hearing officer).[4] Their purpose is to determine whether an expulsion is proper, and if so, how long it should last. A school administrator will present the facts leading to the expulsion, followed by presentation of evidence and cross-examination of witnesses by both parties. Board members have the opportunity to ask questions, and both the student and administrator may present additional arguments.

After the Hearing

The school board or hearing officer may render one of three possible decisions:

  1. Reject expulsion. The child immediately eligible to return to school.
  2. Support expulsion. The child cannot attend school or any school-sponsored activity for the duration of the expulsion. The school board will consider disciplinary history in determining the length of the expulsion.
  3. Recommend a suspended expulsion. This is basically probation for the student. If the student misbehaves again, the expulsion may be imposed.

Within twenty-four (24) hours of the hearing, parents must receive the decision. If expulsion was recommended, parents cannot appeal but are left with some choices:

  • The board must provide an alternative educational program (AEP) for the duration of the expulsion. Click here for more information on AEPs.
  • The parent may seek to enroll their child in another school, but this may be denied by the potential receiving school.
  • The parent may apply, on their child’s behalf, for early re-admission to the school.

Because of the potentially adverse and significant impact a suspension or expulsion can have on a student’s future, it is imperative to seek the advice of an experienced school law practitioner. The lawyers at Maya Murphy, P.C., assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, and Westport. Should you have any questions regarding school discipline or other education law matters, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

Written by Lindsay E. Raber, Esq.


[1] “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq. at pp.42 (citing Connecticut General Statutes § 10-233d(a)(3)).

[2] Connecticut General Statutes § 10-233d(a).

[3] Connecticut General Statutes § 10-233d(a)(3).

[4] Connecticut General Statutes § 10-233d.