The Probable Cause Fairy: AKA An Officer’s “Training & Experience”

October 27, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

It was very early on in my experience with criminal law when I first learned the power of an officer’s “training and experience.”

Much of our legal system is built to prevent profiling of any kind.  Some of those safeguards include both statutes and case law which prevent officers from arresting or even just hassling people based on “hunches.”  Courts have long recognized where there is a hunch, there is a good chance there is profiling.

Courts insist probable cause must be based on what is called articulable fact and then making reasonable deductions from those facts which make it probable a crime is in progress or just occurred.

An example of articulable fact would be “Defendant swerved into the next lane of traffic without signaling.”  The statement is concrete and establishes an objective fact, i.e., the car moved from one lane to the next.  A reasonable deduction would be there is something wrong with the driver.  An officer can and should investigate more.

But the topic is still pretty mushy.

Here’s an example of something which probably isn’t articulable fact: “Defendant took several steps away from his car after I asked him to exit the vehicle.”  This doesn’t really tell us anything, does it?  Can we deduce this person has done something wrong or is trying to get away with something?  It’s hard, huh?

How Police and Prosecutors Convert Hunches into Articulable Facts

They do it through using the magical phrase referring to an officer’s “training and experience.”

So lets change the above example… “Defendant took several steps away from his car after he exited the vehicle.  In my training and experience, people in possession of drugs will often separate themselves from the contraband.”

Really?  Which class was that in the police academy?  How many times, officer, has a defendant taken several steps away from a car because they had drugs… and would you mind trying to remember those cases…. because this sounds like you just made it up?

See how it works?  By inserting “training and experience” into the sentence, SHAZAM — what was once just a hunch is now articulable fact.

In defense of police and prosecutors — I don’t think they really see what they are doing is trying to manipulate the standards.  They may honestly believe police get a ‘hound dog’ sense after being on the streets for their careers…. and maybe they do.  But the bottom line is blurs the line between “articulable fact” and a hunch.  Unfortunately, courts often go along with the fiction.

The Defense Lawyer’s Struggle

Our constant struggle is trying to root out exaggeration and, for lack of a better word, fudge from prosecutors and police which helps them attain probable cause or convince a jury to convict.

Any time I hear that phrase in the courtroom it sets off my spidey sense and it is time to fasten the seat-belts.  But that is just my training and experience!

*Jeremy Rosenthal is Board Certified in Criminal Law in Texas.  Nothing in this article should be considered as legal advice.  For legal advice about any situation contact an attorney directly.

 

 

 


Do Police Lie in Police Reports?

October 17, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Yes, no and maybe so.

Each police report is its own snowflake.  No two are exactly the same (unless the officer does a bad job with a cut & paste).

When I have my clients look at police reports I typically caution them they will not like what they’re about to see.  This is because many offense reports can be heavily spun to support the officer’s conclusion and read like scathing propaganda when they are the subject of the story.  Police include facts which support their decision to arrest and facts and theories which don’t support their own see the editing room floor.

Police don’t write reports to be malicious but they probably feel that way to us when we read them.  They are simply justifying their decision to arrest.

We also have to understand rarely would a single arrest be important enough for an officer to stake his or her career on.  If they are caught being dishonest — most good agencies won’t have anything to do with them.  They really are trying to do their best.  They just see the world — and the arrest differently.

Fortunately a police report is of limited importance.

Rarely do I come across something in a report which is just an unmitigated whopper.  I have to keep several things in mind when I’m reviewing a police report.

  • My client and I have a different version of events.  This doesn’t make the officer a liar.  He or she just saw the events a different way.
  • It is normal for a police officer to omit facts which don’t support their conclusion.
  • There is a difference between lies and exaggerations.

Exaggeration in Police Reports and the “Halo Effect”

A “Halo Effect” is a cognitive bias about someone or something which causes a person to paint an over-all picture about that thing a certain way.  For instance when an employer does a job review for an employee they like – they might give the employee better marks for individual tasks than they otherwise deserve.  The employee’s “halo” blinds our view of other not-so-perfect traits.

But we’re focused here on the reverse.  The officer’s negative impression of the arrestee paints facts and traits which are negative, not positive.  So it is not uncommon to see on offense report where everything negative fact about a defendant down to dirty fingernails is listed by the officer.  We see a “reverse” halo effect in a police report.

How to Use Police Lies to Your Advantage In A Criminal Case

Today we have more and more use of body-cams, in car videos, and even citizens filming police with their own cell phones.  When the police lie, exaggerate, or omit facts from their police report which don’t support their conclusion — then often time they are caught because the video shows otherwise.

In cases where there is no video, the challenge is different.  A skilled cross-examination can show how surrounding circumstances and logic make their conclusion not so.

The Bottom Line:

Rarely will we ever completely agree with the police officer’s account.  But we have to remember his or her account is only so important.  In showing the jury the truth, we do not have to defeat the officer — we have to show the officer was mistaken/ biased/ exaggerating/ inconsistent or whatever human trait lead him to an imperfect conclusion.  This takes skill.

*Jeremy Rosenthal is licensed in the State of Texas and is Board Certified in Criminal Law.  Nothing in this article should be considered legal advice.  For legal advice about any situation you should contact an attorney directly.

 


Our Number is (972) 369-0577. Put it In Your Phone Right Now. Yes, YOU!

June 13, 2017

By Texas Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Put our phone number in your phone right now.  It is (972) 369-0577.

Why do you want a criminal defense lawyer’s number in your phone?  It should be self explanatory but many don’t think they’ll ever need it.  Fair enough.

There are two main reasons.

The First Reason

I recently spoke to several groups of non-lawyers about criminal justice.  They were interested in my topic but not particularly excited or passionate.  Why should they be?  To them criminal cases happen in newspapers or on television and — like advertising — it might affect a few people out there but it doesn’t affect them.

At the most recent lecture, I decided to bring the topic home for a more engaging discussion.  I wanted the audience to know why they all needed our phone numbers in their phone.  And the answer is simple —  You don’t lead a life of crime and you don’t plan on getting arrested…? GREAT!  Me too!

But Rosenthal & Wadas has built a big criminal defense law practice right here in the suburb of McKinney, Texas?  How did we do that…?  Because people’s sons, daughters, aunts, uncles, grandsons, granddaughters, sisters, brothers, friends and co-workers are getting arrested here.  They get arrested for DWI, domestic violence, drug charges, embezzlement, sexual assault and on and on and on.

Now, when a criminal case gets hot — it gets hot.  When the arrest or accusation happens — the case is hot.  We potentially create more value by getting into a case right at the beginning than at any other time.  This is because we can represent someone during an investigation or sometimes just help put the fire of an arrest out so we can begin getting to the bottom of what happened to get the best end result.

Sometimes key legal advice or representation at the inception of a case can make the whole thing go away.  You read that right.

So if you don’t plan on ever getting arrested — great — but put our number in your phone for when you get an unexpected call from a co-worker, friend, or just a non-conformist family member.  People’s friends and loved ones are being arrested every-day right here in Collin County and they’ll often turn to you looking for direction.  I hope it is never your loved one, but why not be prepared?

Our office has a lawyer on call 24/7.

The Second Reason

Putting our number in your phone is free.  (972) 369-0577.

Do it now while you’re thinking about it.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  Nothing in this article is intended to be legal advice.  For legal advice about any specific situation you should contact a lawyer directly.

 

 


The Victim Doesn’t Want to Press Charges — So Now What?

April 4, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

A criminal prosecution is between the State of Texas and the accused.  The victim or accuser is little more than a glorified witness.  Just because a victim doesn’t want to press charges doesn’t mean the case goes away.

If The State Doesn’t Have to Drop the Charges — Then What Good Does it Do?

District and County attorneys are elected.  This means they reply to citizen and voter demands (in theory).  Most pride themselves in standing up for victims and making sure a victim in any case is satisfied.  A prosector or police officer may very well drop a case in response to a request by an accuser to dismiss a case.  Even if they don’t dismiss the case the prosecutor must factor how the accuser will look before the jury.  A prosecutor would think twice before calling a reluctant witness who tells the truth yet assists the defense at every turn.

Why Wouldn’t a Prosecutor Drop the Charges Upon Request?

Prosecutors see many cases come across their desk.  In state court, they see the same cases over and over whether they be assaults, theft, DWI or drugs.  Some get in the routine of comparing one case to another as instead of evaluating each case in a vacuum.  In their defense, there is nothing wrong with their world view.

What this means is they might tend to compare victims against one another as unfair as that may should.  Also, some prosecutors simply believe every accuser who comes forth to drop charges is being forced to do so — or is otherwise doing so because they are weak, intimidated or can’t stand up for themselves.

I Told them I want the Charges Dropped and they Won’t.  What Should I Do Now?

Again, most prosecutors really do want to make a victim or accuser happy.  Getting complaints from victims is worse for them then losing a case.  It doesn’t hurt to have an open and honest dialogue with a prosecutor if your goal is to have either charges dropped, a person to be dealt with leniently, or for a person to get a specific type of help for that matter.

Do I Need a Lawyer if I’m Trying to Drop Charges?

Normally, no.  If you are going to be discussing the facts of a case with police or prosecutors, however, you can be prosecuted for a false police report if you make statements which are materially different.  If you have concerns about statements you’ve made to the police then its not a bad idea to visit with a lawyer before re-visiting with them.  Obviously you should always be honest with both police and prosecutors at all times.

*Jeremy Rosenthal is an attorney licensed in Texas.  He is board certified in Criminal Law.  Nothing in this article should be considered as legal advice.  For legal advice about any situation you should talk with an attorney directly.

 


Can I Get Sued Because of A Criminal Case… Or Vice Versa… Can I Be Charged With a Crime because of a Civil Case?

November 30, 2016

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Today I’ll discuss a question I get from time to time in various forms:

  • “Can I also get sued even though I’m being criminally prosecuted?”

… and the same question in reverse,

  • “I’m getting sued right now (or being threatened with a lawsuit)… could they also criminally prosecute me?”

…another common one is,

  • “Can someone threaten me with criminal charges to get me to settle a civil dispute?”

Could Someone Being Criminally Prosecuted also be Sued?

Yes, but it’s very rare and comparing a criminal prosecution to a civil lawsuit is like comparing a knife fight to a pillow fight.  I might be more biased because I handle criminal cases but I tend to think they’re far more serious than civil cases — though civil cases can be thoroughly unpleasant too.

Most crimes where there is an accuser or victim involved can almost certainly trigger civil liability.  Civil causes of action are far easier to bring and are generally easier to prove-up (because they’re just trying to take your money and not your liberty — or so the theory goes).

Probably the most common scenario I see is a car accident case where DWI might be alleged.  Even that is mostly insurance companies duking out who will pay for what.

A criminal prosecution is often a ‘poor-man’s’ lawsuit.  Going to the police and making the prosecutor’s telephone ring off the hook is free.  Paying for your own lawyer to make someone else’s life miserable is a luxury.  Hence the rarity of seeing both a civil and a criminal prosecution.

Ultimately my instinct is defend the criminal case first and worry about civil liability second.  This is because of the severity of criminal prosecution and the punishments are simply not equivalent.

I’m Being Sued (or Threatened with a Lawsuit).  Could this Turn Criminal?

Again, very rarely.

While most crimes involving victims or accusers trigger criminal liability as well — the reverse is not nearly as true.  Civil causes of action are far more problematic to convert to criminal charges.  This is for all sorts of reasons… civil cases are often based in negligence, or misunderstandings, or questions about who pays for an unexpected loss.

Most parties in a civil proceeding have little, if any, interest in pursuing criminal actions.  Generally they just want whatever relief they think they might be entitled to.  That could be things such as money or an injunction of some sort.

Also, police are very reluctant to get involved in what they perceive to be a civil dispute.  They have enough to worry about and a complicated civil matter is often an easy “we can’t help you” situation.

Certain cases criminal value are extremely diminished when civil liability is sought first.  Think of a sexual assault case where the accuser first tries to get a settlement or sues the perpetrator before going to the police.  What might have been a solid case is now stained by questions about what could be the accuser’s real motive.

A normal exception would probably be certain white-collar cases where both victims have abundant resources and state or federal investigating agencies are interested due to the sheer amount or volume of a crime in question.  Again, though, keep in mind these are not your garden variety or every-day case.

Can Someone Threaten Criminal Prosecution To Get a Civil Settlement?

No.  That’s blackmail.  Think about it… “Pay me money or a I’ll go to the police.”  Generally lawyers or companies that make these types of threats word them extremely carefully.  They make it clear you are settling civil liability only.  Don’t get me wrong — they’re normally happy to let you think that by settling the civil case — you’re keeping a criminal matter “hush hush.”

While it’s okay to settle civil liability through a private settlement — no private party or entity can threaten criminal action nor waive the State or Government’s right to prosecute.

*Jeremy Rosenthal is licensed to practice law in the State of Texas.  He is Board Certified in Criminal Law.  Nothing in this article is intended to be legal advice.  For legal advice on any situation you should contact an attorney directly.

 

 

 


My Main Enemy: Cynicism

November 7, 2016

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Cynicism is defined by Miriam-Webster’s Dictionary as, “believing that people are generally selfish and dishonest,” or people are”selfish and dishonest in a way that shows no concern about treating other people fairly.”

I’m writing about cynicism today because it is the cancer from which our criminal justice system suffers most.  The cynicism I’m writing about today is all too often from law enforcement, probation officers, prosecutors, Judges, and even my own which I battle like everyone else.

When I talk to clients, I describe cynicism as a “headwind” which makes our fight tougher than it might appear.  On a DWI, for example, I tell people everyone in the Courthouse will treat you like an alcoholic even if you had your first drink of alcohol the night you were arrested.

World Views

Everyone has their own world view – especially related to their job.  I understand everything I see and experience through my practice shapes my view of how people are and the world around me.  When dealing with people, it is important to know how their every-day job and life experiences shape their views.

As an example, I remember being a waiter during college and falling into the mental trap of occasionally judging people based on how they tipped.  I knew in the back of my mind then — as I am sure today — the judgments I was making were of only an ever-so-thin slice of my experience with a person.  A big tipper might otherwise be a total jerk.  A bad tipper may be a great mother, father or neighbor who just wasn’t carrying as much cash as they thought they were going to need that day.

I feel lucky to meet with people who need help when they come see me.  So I tend to see people and their families when they are reticent, respectful and often in desperate search of hope and guidance.  My view of “the system” then, is someone charged with a crime is vulnerable and in great need of counsel and support.

But I know not everyone sees it that way.

World Views of Those in the Criminal Justice System

I have to remind myself the people dealing with my clients only get a thin slice of them.  To some police my client might be just the crime they were accused of instead of a person.  To some prosecutors my client might just be another file.  To some judges my client might just be another schmo needing mercy.  Many of these professionals can allow cynicism to get the better of them.  Everything they hear and see can be a lame excuse.

Fighting Cynicism

Fighting the pre-existing views of someone can not only be daunting but sometimes downright impossible.  Think of how impossible it can be to change someone’s political, religious or even sports opinions.  Instead of attacking the cynicism head on (and losing), it’s often the better play to incorporate the strengths of our arguments into what the prosecutor or judge already believes.

An example might be showing a prosecutor who is convinced everyone charged with certain crimes are drug addicts my client is clean and has a plan to stay clean.  This out-flanks the opponent and takes away all the oxygen from their fire.  If they’re still going to be mad at the accused then they could be exposed as being unreasonable to a Judge or Jury.

Sometimes the cynicism we are dealing with is too great.  No matter what I say or do I can’t convince someone “who knows it all” otherwise.  Sometimes we have to fight in court and see what a jury thinks.   Even if the prosecutor and judge don’t get it — a Jury still can.

My Cynicism

Did you catch it?  I have to remind myself that even though others I deal with might disagree with me… or seem to know it all… I have to carefully listen and be mindful of their point of view before I get cynical about their views.

*Jeremy Rosenthal is an attorney licensed in Texas.  He is Board Certified in Criminal Law. Nothing in this article is intended to be legal advice.  For advice on any situation contact an attorney directly.

 

 


People Giving Legal Advice — That Shouldn’t Be Giving Legal Advice

July 10, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

As even keel as I try to be — nothing gets under my skin more than people giving legal advice that have no business giving legal advice in criminal cases.  Everyone has opinions, their own experiences, and what they believe to be common sense — but I’m not really even talking about that type of stuff.

The “legal advice” I’m talking about is when the very same police officer that arrests you for DWI — also tells you that you need to just talk with the prosecutor to see if you can get a good deal… or when court staff or personnel tell you it might be easier to just talk with the prosecutor rather than get a lawyer… or when a bail bondsman tells you that your case is hopeless and hiring a lawyer is a waste of money.

It unnerves me because these are people that carry a marginal amount of credibility — and because of that people tend to listen to their generally uninformed, narrow, and incomplete analysis of a particular situation — whether it’s drugs, theft, assault or DUI.  Now, in defense of these people — they are probably well meaning in their intentions.  It’s just extremely reckless.  You wouldn’t operate on yourself because they guy at the front desk in the hospital thinks it’s a good idea… and you shouldn’t take legal advice from anyone in the justice system except YOUR lawyer.

Maybe I also get upset because unlike the police officer, court staffer, or any other various know-it-all, I spent many nights in law school up until 1 or 2 a.m. studying about the layer after layer of the law and our legal system.  Unlike them, I’ve spent my entire career since law school dealing with people and learning that their personal situations also have layer after layer.  And unlike them, I get to hand a 42 year-old single mother kleenex across my conference room table when she can’t get a job from a conviction 17 years before when some know-it-all in a position of semi-trust told her she didn’t need a lawyer.

Being a lawyer is a hard job.  Doctors manage imperfect variables which involve the human body.  Lawyers manage imperfect variables which is how the humans which comprise our system of justice will treat any given scenario.  Lawyers are bound by very rigid rules of ethics which make clear that no lawyer can ever guarantee you any result — due in large part to how imperfect and how complicated legal matters can be.

Most police officers, court personnel, and various other people that tend to come into close contact with those accused of a crime are very respectful of the complexity of legal issues and of the Attorney/ Client Privilege and thus are properly deferential.  Other know-it-all’s, though are loaded with bad advice that is only based on their past experiences and training — and none of it is from YOUR perspective or from the perspective of someone that’s dealt with these situations from start to finish.

I’m sure there’s a possibility that some of the things they say might be right 40, 50, or even 60% of the time… And I don’t know about you — but my personal experience is that having 40, 50, or 60% of the right information is a great way to make a very bad and uninformed choice.

*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 about any specific situation you should directly consult an attorney.