Proving Innocence

September 27, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

It’s extremely difficult to prove a negative.  That’s why our criminal courts don’t require it and the State always has the burden of proof.

A basic example I give jurors is to ask them prove they committed no traffic offenses on the way to jury duty that morning.  They very quickly get the point — other than their word, there is no way on Earth they can prove they didn’t run a red light, didn’t speed, or didn’t change lanes without signaling.

Jurors must be educated, though, and an experienced criminal trial attorney knows this.  Prosecutors over the yeas have developed subtle ways to undermine this point.  They’ll suggest to juries that the Defense has equal subpoena power and that the Defense has the right to call witnesses of their own.  I’m not sure what purpose it serves the prosecution to do this — other than to improperly shift the burden to the Defense.

There are some instances where Defendant’s should put on an innocence defense.  Testimony from the defendant isn’t legally required under the 5th Amendment, but an accused has the absolute right to testify in their own defense.  Testimony of credible witnesses may also help in an innocence defense.  Other than that, a thorough investigation of a case may reveal objective evidence which tend to be less refutable.

It is wrong to assume that because you have no evidence of innocence, or an innocence defense wouldn’t seem persuasive that the accused just plead guilty.  In a drunk driving charge, for instance, it usually (but not always) makes more logical sense to force the state to prove elements such as intoxication rather than try to show the jury how little a person drank before getting behind the wheel.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any situation you should directly consult an attorney.

Watering Down the Burden of Proof

September 21, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

The burden of proof in a criminal case in Texas is “Proof beyond all reasonable doubt” of all the elements of an offense.

The courts in Texas used to reason that, “A ‘reasonable doubt’ is a doubt based on reason and common sense after a careful and impartial consideration of all the evidence in the case. It is the kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs.”  Geesa v. State, 820 S.W.2d 154 (Tex. 1991).

While this definition, like any other definition, wasn’t perfect — it was still very high and more importantly wasn’t subject to being manipulated consistently by prosecutors or criminal defense lawyers arguing their case.  The definition was open and shut.

In 2000, The Texas Court of Criminal Appeals changed it’s mind and ruled in Paulson v. State, 28 S.W.3d 570 (Tex. 2000), “We find that the better practice is to give no definition of reasonable doubt at all to the jury.”  Despite the fact there are legal definitions for other lesser burdens of proof in civil cases, family cases, and CPS cases, the Court reasons in criminal cases that, “It is ill-advised for us to require trial courts to provide the jury with a redundant, confusing, and logically-flawed definition…”

So today, despite the mountains of case-law, research, and scholarly articles that define proof beyond all reasonable doubt, Texas courts today routinely instruct juries that on the single most important burden in a criminal case that they can simply define proof beyond all reasonable doubt as they want.  Basically the jury can make up the rule as they go along.  Experience tells me that generally favors law enforcement.

And prosecutors have, over time, increasingly seized on this glaring weakness.  Maybe it’s just me, but I’ve noticed more and more that prosecutors are dedicating time in jury selection, opening argument and closing argument to lowering the burden of proof on themselves rather than focusing on the facts of the case.

Examples include showing unfinished puzzles to prospective jurors and suggesting that because they can still make-out an image even with the large missing pieces — that the unfinished puzzle represents proof beyond all reasonable doubt; or repeatedly dedicating time in opening and closing argument not to the evidence in the case — but to giving the jury their own theory of what “beyond a reasonable doubt” should mean (and it’s always an attempt to lower the burden).

Getting the jury to understand the significance of having a high burden of proof and de-bunking the State’s creative attempts at lowering the burden is the challenge of every criminal trial lawyer.  Experienced criminal defense lawyers do everything they can to make the state accept — not shirk — their burden of proof.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice. For legal advice on any specific matter you should consult an attorney directly.

White Collar Crime

September 15, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

“White Collar Crime” refers generally to corporate crimes including but not limited to fraud, bribery, insider trading, embezzlement, computer crimes, money laundering, identity theft and forgery.  White collar allegations can be particularly detail oriented both with the facts and with the law.

What Makes Charges Scary

Having Defended multiple cases — the pattern you sometimes see is the investigators decide you’re a criminal first and then go about putting their case together later.

White collar cases — with the often hundreds if not thousands of documents tend to be like huge mosaics.  Anyone can take a portion of the documents to paint a certain picture which may not reflect how a business or transaction was really conducted.

If you’re charged with a white collar crime you need a lawyer who can show investigators, prosecutors and juries the 40,000 foot view instead of a handful of cherry-picked documents.

Major Differences Between Other Charges

Unlike every-day “street” crimes, “white collar crimes” can be very document-intensive and require experienced counsel that is experienced in document review and analysis.  Prosecutors may take a 1,200 page stack of documents and breeze over them to make sure it fits their theory of the case — but a white collar criminal defense lawyer doesn’t have that luxury.  A white collar crimes lawyer has to understand that the key evidence that can lead to acquittal can be buried on page 1,034 in the third paragraph from the bottom.

Additionally, the prosecution in white collar cases can fall into many traps.  Charging crimes such as embezzlement and misappropriation of fiduciary property is tricky — and some prosecutors, for example, lazily try to prosecute these cases like it was shoplifting from a big-box store.  An experienced white collar defense lawyer can expose and utilize such prosecutorial errors.

If you’re accused of a white-collar crime you should involve counsel immediately.

*Jeremy F. Rosenthal is an attorney licensed in the State of Texas and is Certified in Criminal Law by the Texas Board of Legal Specialization.  Nothing in this article is intended to be legal advice.  For any legal advice for any specific situation you should directly consult an attorney.

Can the Victim Drop Assault Charges?

September 14, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

In a criminal case in Texas — not directly.  In a civil case — yes.

Assault charges can be brought two different ways in Texas — in a criminal court or (far less commonly) in a civil lawsuit.  A civil lawsuit can be brought by the alleged victim to recover money while a criminal charge is brought by the State seeking a criminal conviction on the accused’s record.  Civil cases can always be dropped by the person bringing the suit.

In a criminal action, the parties are the State of Texas and the accused.  The victim is not directly a party to the action and is really more accurately characterized as a witness.  An alleged victim can request that charges be dropped, but the prosecuting attorney does not have to honor that request.

Many prosecutors will ask an alleged victim for what is known as an “affidavit of non-prosecution” or an ANP for short if they don’t want to prosecute.  An ANP is a statement under oath which details the reasons for their not wanting to prosecute.

An alleged victim has potential legal exposure for making a false police report in the event they admit statements on their ANP that are inconsistent with what they originally told police.  For this reason, an alleged victim should seek counsel as well prior to doing an affidavit of non-prosecution (not the same lawyer defending the assault case — that would be a conflict of interest for the lawyer).

The Bottom Line

Assault cases — especially ones involving alleged family violence or spousal abuse — aren’t necessarily dismissed in Texas courts merely because the victim wants the case to be dismissed.  The matters are complicated and the alleged victim should seek a lawyer in addition to the accused having a lawyer where the alleged victim is seeking to ask for charges to be dropped.

*Jeremy F. Rosenthal is an attorney licensed in the State of Texas.  Nothing in this article is intended to be legal advice.  For specific legal advice about any specific situation, you should consult an attorney directly.

Physician – Patient Privilege in Criminal Cases

September 13, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Texas Rule of Evidence 509 governs the physician- patient privilege.  As with all privileges, it acts to protect communications that are confidential between a physician and a patient “relative or in connection with any professional services rendered by a physician to the patient.”

Tex.R.Evid. 509(b), however, practically negates the physician- patient relationship in criminal cases.  That section bluntly says, “There is no physician-patient privilege in criminal proceedings.”

The only small exception under 509(b) is that communications to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for drug or alcohol abuse is not admissible in a criminal proceeding.  This is obviously to encourage people who need help for substance abuse to voluntarily get help without recourse.

Police and/or prosecuting agencies can and do regularly subpoena medical records in criminal cases.  Examples are blood samples taken during medical treatment after a car crash where alcohol or substance abuse is suspected.  Other examples include statements made by pharmacy personnel in the reporting or allegation of prescription fraud.

Federal law which protects patients privacy under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) has a recognized exception in Texas for law enforcement purposes when they are issued a grand jury subpoena.  This means that you can’t rely on HIPAA laws to protect your privacy with doctors depending on how the police or prosecuting agency try to attain medical records.

The bottom line — communications between patient and doctor are not legally protected in criminal proceedings. The privileges largely apply in civil cases, but not criminal.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas and is Board Certified in Criminal law.  Nothing in this article is intended to be legal advice.  For legal advice for any specific situation you should consult an attorney directly.

Getting Criminal Charges Dismissed

September 12, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

Criminal cases can be like snowballs — as they head downhill they can get harder to stop and they pick up momentum.  An experienced and skilled criminal defense lawyer knows when, how and why police or prosecutions will want to dismiss criminal cases.

The Top of the Mountain

Using our snowball analogy, the beginning of the criminal case (or the top of the mountain) is generally where the police get involved.  Frequently, that may be a traffic stop in the case of a DWI or drug seizure, or that can be where someone makes a report to police and police detectives get involved investigating an assault (as an example).

Will the police drop the case?  Perhaps.  It obviously depends on the type of offense and other factors weigh in such as the attitude of alleged victims and/or public pressure.  On DWI’s, for example, the police are under a great deal of pressure to pursue those types of cases.  Police agencies are reviewed regularly by MADD and other Police agencies actually apply for grants for the express purpose of prosecuting DWIs.  Those groups don’t like hearing that the police are dismissing charges on DWI arrests.  You can expect many agencies to have policies in place that don’t allow them to not-persue charges after a DWI arrest.

On other cases that the police investigate, it may be possible to either convince the police that the case isn’t worth pursuing.  Always have a lawyer when negotiating directly with law enforcement agencies!  Certain rules such as the attorney-client privilege and other rules of evidence protect you when your lawyer is dealing directly with law enforcement — not to mention an experienced criminal defense lawyer knows how to deal with police better than you.

Some police agencies will resist filing criminal cases on people who assist them in further investigations.  The most classic example is with narcotics and drug enforcement.  Again, having an attorney assist you in these types of negotiations can help assure that you are protected.

Down the Hill

Eventually, the case will make it’s way to the District Attorney’s office.  Once it gets there the “snowball” can be harder to stop.  Prosecutors have an affirmative duty under the Penal Code not to seek convictions — but to see that justice is done.  So they can and do dismiss cases or sometimes they’ll reject cases even though the police may want to prosecute.

Prosecutors control the Grand Jury process in felony prosecutions and often they will allow the defense to submit information (called a Grand Jury Packet) to the Grand Jury attempting to persuade them not to issue a true bill of indictment.  While the prosecutor doesn’t have direct control over the Grand Jury — if the Grand Jury issues a “no-bill” or won’t indict a person for a felony — it can basically have the same effect as a dismissal.

After the Case is Charged by Indictment or Information

Once the State files an Information (in Misdemeanors such as possession of marijuana or Driving While Intoxicated), or they attain an indictment in a felony, then getting a prosecutor to dismiss becomes even more difficult — but again — not impossible.

Many prosecutors in Texas can be very resistant to dismissals and often times will try weaker cases they think they should lose rather than appear weak on crime.  Again, the unique facts of every case govern the State’s willingness to dismiss charges short of a trial.  Some charges, like DWI and Assault/ Family Violence cases are dictated by policy in Collin County — and the Assistants District Attorneys need special permission from their superiors for dismissals.

Often a dismissal at this juncture is a result of an attorney that hustles to build a case as to why the prosecution needs to dismiss the case in the best interests of justice and/or because he convinces the prosecutors they will not only lose the case — but lose face before the citizens.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For specific legal advice about any situation you should consult an attorney directly.

Getting Letters Threatening to Sue You for Shoplifting?

September 6, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

Retailers have made it a habit of sending letters threatening lawsuits under the Texas Theft Liability Act to people that were arrested in their store for the suspicion of shoplifting.  It is important to first understand that any civil action or demand is completely and wholly separate from your criminal case.  Their letter is no different than a private party trying to settle a lawsuit out of court.

People often have the mistaken idea that giving in and paying the money has a bearing on the criminal prosecution one way or another.  There is no connection between the cases… in fact, if the letter were to threaten criminal prosecution of any sort in exchange for a civil settlement — then the retailer could be prosecuted themselves for extortion!

The Texas Theft Liability Act is a civil statute which may allow for the companies to sue someone in civil court for money losses (Tex.Civ.Prac.&Rem.C. Chapter 134).  Section 134.003 says, “a person who commits theft is liable for the damages resulting from the theft.”  Section 134.005(a)(1) holds that the damages they could win in court are, “the amount of actual damages found by the trier of fact and, in addition to actual damages awarded by the trier of fact in a sum not to exceed $1,000.”

The problem the retailers usually have with being successful in this claim is that in shoplifting cases — the items alleged to have stolen are virtually always recovered.  Therefore, a retailer cannot honestly say they’ve suffered any damages “resulting from the theft.”  Some will argue that the fact they have to hire loss prevention personnel are damages… but they’re not damages that resulted from THE theft in question.

Finally, Section 134.005(b) states, “Each person who prevails in a suit under this chapter shall be awarded court costs and reasonable and necessary attorney fees.”  This can be interpreted to be a “loser pays” provision.  Meaning the store comes to court and loses — they pay for your lawyer.

If you’ve been arrested for shoplifting and you get a letter from a retailer — at the very least talk with a lawyer about your rights and whether it’s a good idea to pay their demand.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article should be considered legal advice.  For any legal advice about any specific situation you should directly consult an attorney licensed in your state.