Silva Sand Trap Method
Welcome back to the DUI Trial Lawyers Academy. This podcast is brought to you by silvaandsilvalaw.com, great lawyers, helping great people. And now for your host, sought after speaker, avid mountain bike racer, and renowned DUI trial lawyer, Patrick Silva.
Welcome back to the DUI Trial Lawyers Academy, this is your host DUI trial lawyer, Patrick Silva.
Today, I'm going to go over what I call the Silva Sand Trap Method. When you get an officer on the stand, you have to decide in advance, or maybe you could decide mid trial, on how aggressive you're going to be on your cross-examination. If I'm going to be aggressive on the officer, what I might do is during voir dire is ask a juror, "Hey, would you hold it against my client if I had to get a little verbally aggressive with the officer to make him answer a question when he seems to be dodging it?"
And the folks are going to always say, "Yeah, no problem."
Then I follow up, "Yeah, is that what you kind of expect?"
"Yeah, that's what we expect."
"So you're not going to hold it against my client or myself, right?"
And what you're doing is you're setting the stage, and you're asking for permission, just in case you have to go down that road.
I believe you have to ask yourself, why should the jury care about your client? What is it that will make the jury vote in favor of you and against the prosecution? Studies have shown that the juries do not like it when the officers violate their own rules and procedures.
The next few questions are designed to create a violation of the procedure by the police officer. This is where the Silva Sand Trap comes in and you might go something like this, "Officer Jones, did you violate any police rules and/or procedures during the DUI investigation of my client, Jose Cuervo?"
What you're probably going to want to do is, at least, separate that and create two questions. "Officer, did you violate any police rules during the DUI investigation of my client, Jose Cuervo?" Or, "Officer did you violate any procedures during the DUI investigation of Jose Cuervo?"
We want to tie him down and don't let any room for this officer to wiggle out of this. Now, what is he going to say? Is he going to say yes? No, the officer's never going to say yes, "Yeah, I violated the rules and procedure." Is he going to say no? Well, it's not likely that he's going to say no because, why? Because it sets him up for later impeachment. What you'll probably get is maybe an, "I don't know, maybe, not to my knowledge, not to my recollection." Or something along that lines.
So let's assume you get "not to my knowledge," and this is going to be the most likely answer the officer gives you because, why? Because it's safe. And then what we want to do is follow up with the next question. "Well, Officer Jones, if you did in fact violate any of your police rules, would that affect the reliability of your DUI investigation?"
Remember you got to catch the second one too. "Officer Jones, if you did violate any of your police procedures, would that affect the reliability of your DUI investigation?"
Now you set the Silva Sand Trap, what's he going to say? Is he going to say no? What we're trying to do is to get the officer to agree that if he screws up and he violates his own rules and procedure, then it is going to affect the reliability of his DUI investigation. What can the officer say? He could give you a "I don't know, I'm not sure, I haven't been trained in that." He's probably going to dance around it, he might say yes if he's honest and he might say no, but you want to squeeze a "Yes" or "Isn't that right?" or "Is that a fair statement" out of him? Get him to agree, because, why?
Because later in our cross-examination we could use the looping method where we're reinserting a loop question or a loop answer that he gave us earlier in the cross to tie it back into rules and procedure violation. You could close out the Silva Sand Trap with something along this line. "Well, Officer Jones in a DUI investigation, is it more important to follow the rules and procedures or to make a DUI arrest?"
Now earlier I mentioned the word looping, how can we use some of these answers to these questions in order to loop them back to a subsequent cross? Let's say, we're going through one of the field sobriety tests, and let's just pick the one leg stand, and let's say we establish through the one leg stand that the officer didn't know the four clues: putting foot down, using arms, swaying or hopping. So, when we establish the officer did not know the clues and then we establish the officer must use the same criterion of clues as established under NHTSA then we could loop it back to one of the questions that we just established. We might say something like this, "Officer Jones, you just established that you used hopping up and down and moving side to side as a clue while counting backwards in your head."
I just made that up.
Earlier we talked about the fact that on the standardized field sobriety tests, you're required to follow their protocol.
"Yes, sir, That's right."
And following their protocol is the same as following the rules and procedures, right?
"Would you agree, that when you used clues that were not established under NHTSA, you were actually violating your own rules and procedures?"
He might say yes, he might say no, but you're getting the question out there.
"And Officer Jones, earlier at the very beginning, when we first talked, you actually admitted that if you, in fact, did violate your rules and procedures, it would affect the reliability of your investigation."
"Well I think so, that's what I did say, I'm not sure."
"Well then let's talk about that, Officer Jones."
"Officer Jones, you didn't use the correct clues, you know what the correct clues are now, do you wish you knew what the correct clues were at the time you administered the field sobriety test to my client?"
He should say yes.
"Does it appear that you violated your own rules and procedures when you used the incorrect clues and as a result, it would affect the reliability of your DUI investigation?"
I'm assuming he's going to say yes, he might say no, but make sure you listen, follow up with another question.
That's going to conclude this short, but sweet discussion on the Silva Sand Trap. Now put on the boxing gloves, climb into the ring and have a good fight. Over and out. Bye.
Thank you for listening to the DUI Trial Lawyers Podcast. This episode brought to you by silvaandsilvalaw.com.
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