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.

 


Can I Get Off of Probation Early in Texas?

October 3, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Can I Get Off Probation (Community Supervision) Early?

Yes, except for DWI cases.

What is the Soonest I Can Get Off of Probation?

You are allowed to get off of probation 1/3 of your time in for regular community supervision and the judge can terminate deferred adjudication community supervision at any time.

As a practical consideration probably no judge will allow you to terminate your probation prior to completing all of your requirements such as community service, classes, payment of restitution, etc.

Does My Probation Officer Need to Approve?

Practically speaking — it doesn’t hurt, but legally — no.  The Judge has the final say.  Many probation officers will act as if they are the ‘gatekeeper’ but in reality they are powerless to the extent the judge listens to them (or doesn’t listen to them as the case may be).

Some probation departments have a policy where they make no recommendation whatsoever for fear of recommending someone who ultimately re-offends (thus making them look bad).

How Do I Get Off Probation Early?

You can file a motion for early termination of community supervision or deferred adjudication and request to have a hearing before the judge.  This can be done pro-se or with an attorney.  The benefit of having a lawyer is it can typically be done more efficiently — and if there is any disagreement, the lawyer is in a better position to advocate for your early release.

*Jeremy 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 situation you should contact an attorney directly.

 


Buzzed Driving Actually Isn’t Drunk Driving

October 2, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

There is a new ad campaign from the National Highway and Transportation Safety Administration (“NHTSA”) and the Ad Council trying to curb drunk driving.  The new slogan is “Buzzed Driving is Drunk Driving.”

Its catchy.  Its concise.  I’d say it’s pretty good advertising.

But the problem is its just not true.  At least not in Texas.

Why Buzzed Driving Actually Isn’t Drunk Driving

Texas Penal Code 49.01(2)(A) defines intoxication as;

(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more.

I don’t see the word “buzzed” anywhere in there.  I don’t see the word “drunk” either for that matter.  And this brings me to what I call the ‘war of words.’

“The War of Words” in the Courtroom:

The war of words is a common battleground in most DWI trials.  The legislature gave us the clunky words “not having the normal use.”  The problem is many prosecutors I’ve tried Driving While Intoxicated cases against try to re-define it in a way to make it easier to get their conviction.  They’ll either give favorable or inaccurate examples or they will omit parts of the definition which are inconvenient.

As just one example, I’ve heard prosecutors explain to jurors a glass of wine making someone cheek’s red equals intoxication because that person is “no longer normal.”  But the statute doesn’t say, “no longer normal.”  Not troubling?  Consider by this standard anyone who has a drop of alcohol is a drunk driver when the get behind the wheel.

This means YOU are a drunk driver.  Yes, YOU!

The Definition Also has the Word “Use” 

I remind jurors about the word “use” in conjunction with the term normal.  Someone with a bad knee might not have a normal knee… however when driving a car, they can use it well enough to have the “normal use” of the knee for the purposes of operating a motor vehicle.

Someone might have a headache rending them not ‘physically normal’ for the time their head hurts.  But they can still speak, do math or drive a vehicle with their malady.  So I’d say this person, while not normal, has the ‘normal use’ of mental or physical faculties.

The “Two Beer” Game

There is just something about a formal and dark courtroom with a judge in a robe and everyone wearing suits to get us all to forget reality.  When a uniformed police officer begins using lexicon such as calling cars “vehicles” and calling the person he stopped a “suspect,” then calling a bud light an “alcoholic beverage,” it sets the scene for what I like to call “the two beer game.”  That is when we all act like two beers is excessive and irresponsible for drinking prior to driving.

In reality, 2 beers would only legally intoxicate a leprechaun or a 10-year old — neither of whom I’ve ever seen on trial for DWI.

It is important to get the jury out of the “two beer game” mode.  I like to ask jurors why restaurants like Chili’s, On the Border, or Texas Land & Cattle have bars inside and also parking lots… it is because it is not illegal to have alcohol and drive.  It is my way of getting jurors to “snap out” of the indoctrination.

Buzzed Driving

The Buzzed driving slogan is indoctrination and spin.  Decreasing the number of drunks on the road is high-minded work.  It is important.  From that point the slogan is okay.

The Buzzed Driving slogan only hurts those wrongly accused of DWI because their jurors have been lied to about the law.  In other words, it is only a problem when you or your loved one is on trial.  In which case you’re pretty mad about this lie.

*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 situation you should contact a lawyer directly.

 


Seeking the Full Truth

August 31, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Too often I find lawyers are afraid of the truth.  They are afraid something their client has done looks bad.  Even worse, they are afraid to investigate a case because they’re worried about what they’ll uncover.

The more I practice law what I really find is the truth works and the truth makes sense.

The more difficult the charge then the more likely it is there is a back-story which puts things into better context.

Is it more likely someone is a rotten apple and likes breaking children’s bones for fun or… is it more likely the police are worried about such villainy and are less focused on the truth than the suspect?

Is it more likely someone is trying to build a drug empire in suburban Dallas schools on their own… or is it more likely they are addicted themselves?

Is it more likely a shoplifter just enjoys getting free things at someone else’s expense… or that there is mental illness which makes every-day decisions much more difficult?

Unfortunately many lawyers would see cases like these and run for cover.  Rather than search for the whole truth they beg for mercy for their clients.  Don’t get me wrong — I am sure there are cases where this is appropriate.

The truth normally makes sense and is understandable by judges, jurors and prosecutors.  I cringe when I hear news stories or even other lawyers talk about extreme cases as if the person accused is so dumb and we are all so smart.  I cringe because this isn’t reality.  Every person and every case is entirely unique.  If we can’t see it then aren’t we the ones being dumb?

*Jeremy Rosenthal is board certified in Criminal Law by the Texas Board of Legal Specialization.  Nothing in this article should be considered legal advice.  For legal advice about any situation you could contact a lawyer directly.

 


Why the Police are Out to Get You

July 13, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

http://www.rosenthalwadas.com

(972) 369-0577

It is pretty common for someone I’m visiting with to feel like the police, prosecutors and even some judges are pitted against them as they face criminal charges.

The reason is simple.  It’s true.

The reason it is true is also simple.  They think you’re a bad guy and they don’t know you.  Flexing on people they think are addicts, drunk drivers, wife-beaters, thieves, or people who hurt children is a natural reaction for anyone and everyone.  If they think you’re in one of these categories — then yes — they are often out to get you.

I’ve had the honor to defend countless people for criminal charges which range the full gamut of severity.  I can count on one hand the ones who are truly mean and vindictive humans.  This is not to say some of my clients haven’t made mistakes or hurt others because they certainly have.

The difference is all too often, the police, prosecutors and judges don’t know what they don’t know.  They might not understand underlying mental illness, addiction, or disfunction of the accused and often the accusers.  They might not understand the day-in and day out struggle you might face battling whatever it is ailing you or your loved ones. They intuitively know there are two sides to the story but some need to be reminded how powerful your side of the story is.

My job is making sure they understand.  Police, prosecutors and judges are typically hard working and fair people.  When given the the right and persuasive information they normally do what they think is right.

Not all advocacy is in front of a jury.

*Jeremy Rosenthal is an attorney licensed 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 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.

 

 


How Can they Prosecute Me with No Evidence?

May 28, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

http://www.rosenthalwadas.com

(972) 369-0577

After years of practice, I have come to the following unescapable conclusion:

Your lawyer and you have a different idea of what the word “evidence” means!

The question about evidence is one of the most common and understandable questions I get.  The answer is complex but I’ll do my best to break it down.

How My Clients and their Families Think About Evidence:

Most of my clients and their families think of evidence as what lawyers would consider “direct” evidence or “circumstantial evidence.”

Direct evidence would be something typically solid or concrete such as a DNA sample in a sexual assault case, a blood specimen in a DWI case, or perhaps a police video taken of a drug arrest.

Circumstantial evidence, by contrast, is evidence which requires an assumption of some sort to be made to reach a conclusion.  For example — there was no snow on the ground when you went to bed and when you woke up the ground was covered in snow.  This is circumstantial evidence it snowed while you slept.  Pretty much everyone gets that too though sometimes it can be tenuous.  (For example, “the Defendant was nervous when he was talking to the police so he must be guilty….” as you can see circumstantial evidence can be pretty shaky too).

Many people do not like considering testimony as “evidence” for the reason most testimony cannot be verified or dis-proven.  This is perfectly understandable and perhaps should be the standard by which people’s lives and criminal records should be decided but as with all things — it’s not so simple.

How Your Lawyer Thinks About Evidence:

Evidence is a topic which occupies a full major law school class and is a huge chunk of the bar exam.  Texas has its own rules of evidence largely modeled after the Federal Rules of Evidence.

Those rules are detailed and in many cases have legal opinion after legal opinion dissecting those rules even further in to minuscule nuances.  Those rules conform to the U.S. Constitution and Supreme Court cases can and do change how these rules are construed in courtrooms on a frequent basis.  Often a small evidentiary issue can literally decide an entire case.

Most evidence in a criminal case is testimony.  Yes, much of it is difficult to either verify or dis-prove.  But the Texas and Federal Rules of Evidence allow testimony alone to be the basis of a conviction whether it can be verified or not.  In lawyer’s terms, testimony alone is “legally sufficient” to sustain a conviction.

The law presumes a jury is able to decide what is credible and what is not.  In a sense, a jury could consider an accuser’s testimony to be just as concrete as DNA evidence.

So an accuser making an allegation of sexual abuse, a spouse claiming to be hit, or a police officer claiming to have found drugs in the center console of a car all count as “evidence” though it may not seem as solid from our standpoint.

Can Someone Come in to Court and Just Say Anything?

Not quite.  Obviously, a person who lies can be subject to aggravated perjury.  The threat of perjury rule doesn’t keep people from lying under oath but it certainly deters.  Again, when something can’t be verified or disproven then proving perjury can be impossible too.

A person cannot testify to hearsay or to something not within their first-hand knowledge.  A simplified explanation is someone can only testify to something directly observed by them.  Witnesses are normally not allowed to guess as to what may or may not have occurred.  Expert witnesses must have some scientific basis to draw certain conclusions.  Many other rules are in place to promote fairness with regards to testimony.

Allowing Uncorroborated Testimony Seems Unfair.  Why is this the Rule?

Examples would be cases where a robber mugs someone in an alley or a sex offender engages in inappropriate touching of a child.  There might not be any corroborating evidence other than the accusation itself.  So while it might seem unfair to allow testimony of one person alone to convict — it would be just as unfair to victims to allow their perpetrator to go free for the same reason.

“He-Said, She-Said” Trials

Many trials come down to a “he-said, she-said” courtroom fight.  This is unfortunate but any decent lawyer should be able to deal with this by scrapping, clawing, and fighting so their theory of the case prevails.

It is important for your lawyer to know how to understand and persuade a jury to believe their theory of the case over the prosecution’s theory.  It is no small task.  Prosecutors get a lot of experience and it is a mistake to under-estimate them.

The Answer to the Question, “How Can they Prosecute Me with No Evidence?”

They probably do have some degree of what the law considers to be evidence.  We just don’t like it and we have to learn to over-come the evidence it in court.

*Jeremy 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 situation you should contact a lawyer directly.