Scenario: The defense raised the issue of natural nystagmus on officer cross-examination. On re-direct, we offer to have the officer perform HGN on the defendant today in court to verify whether or not he has natural nystagmus. Defense objects. We point out that it's not testimonial. Judge sustains objection and instructs the jury that they should disregard the question because it could not tell them anything because this is 2 1/2 years later (overruling an objection that he not comment on the weight of the evidence in the interim). Judge then instructs the State outside the presence of the jury that should we ever ask for that again, the court will grant a mistrial.

My question is this: Has anyone successfully done this in court? And is there any caselaw supporting this tactic?

Yeah, had that happen once, same exact situation. My judge gave me 30 minutes to find a case on point. I found two unpublished opinions (regarding HGN in-court demonstration specifically). The fact that they were unpublished should have told the judge that the issue was really not that controversial - HGN has never been held to be testimonial - but my judge sustained the objection anyway (and yelled at me, despite the cases). In any event, the cases I located were Vasquez v. State, 2005 WL 2659941 (Tex.App.---Dallas 2005) and Blassingame v. State, 1996 WL 482950 (Tex.App.---San Antonio 1996). Good luck.

And since it's too late to object to the questions regarding whether the defendant had natural nystagmus (which I though you could properly do in that it's intended to mislead the jury without any foundation for the question), I would redirect the officer with questions about whether your defendant ever indicated to him that he had natural nystagmus or produced any medical records to that effect, and of course argue the heck out of that point. No, it's not defendant's burden to prove his innocence, but if he's going to raise an issue like that, where is the evidence going to HAVE to come from?

We had a Felony DWI-BT refusal back in 2003. The defendant had five prior Misdemeanor DWI convictions, and two Felony DWIs that he went to the pen on. He was facing a habitual offender punishment range.

The only evidence we had was an odor of an alcoholic beverage on his breath and six clues on the HGN test. He refused to perform any other SFSTs and wouldn't answer any questions prior to or after Miranda.

The defense brought in an expert who testified that he had watched the police car video and in his opinion the defendant did not appear to be intoxicated. He also testified that he had administered the HGN test to the defendant in a sober state and that he had natural nystagmus.

I explained to the prosecutor that less than one half of one percent of the human population has natural nystagmus, and you just don't wake up one day and have it. It is congenital in nature. I told her that I had only seen one person in my career who had natural nystagmus. I told her the defense expert was lying and that I could prove it.

The defense attorney objected, but our visiting district judge told him to sit down and allowed me to administer HGN to the defendant in the presence of the jury. Guess what? He didn't have natural nystagmus.

After the trial was over the jury told us they knew the defense expert was a liar and they didn't believe anything he said as a result of my finding.

Now, that is a story with a good ending!

If you think something like that is coming (which you can guess if you properly requested notice before trial of defense experts), then you should be filing a motion to have the testing done pretrial, along the lines of a Lagrone motion, as used in capital murder cases for psychiatric exams.

Shouldn't be any different than asking for pretrial fingerprinting. You are simply documents some physical aspect of defendant.

JB--
I agree that if the defense is going to have an expert that it is much easier to anticipate such an issue; however, in the circumstances EJF and I had, it was brought up by the defense in cross-examination as a "hypothetical" issue (which then turned into "you don't know whether my client has natural nystagmus or not, do you?").

Thanks Gretchen. Looking forward to presenting those tomorrow morning, even though I have a feeling the result will stay the same. And that there doesn't appear to be any "published" caselaw on this issue provides yet another example of the silliness of unpublished opinions...

I'm going to say something that I've heard Clay Abbott repeat many times in his DWI training. Hypothetical questions require the witness to testify about something that he has no immediate knowledge about.

The answer to a hypothetical question should be "I don't know". If the defense attorney persists with the line of questioning then you continue to answer "I don't know". Hopefully you (the prosecutor) have caught on to this by the second time I say "I don't know" and objected.

Please don't let the defense bring this crap in and create a reasonable doubt in the mind of the jurors.