Can You Show the Arresting Officer’s Disciplinary Record in Trial?

February 12, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

It’s possible but it’s certainly not a given.

The Texas and Federal Rules of Evidence try to keep trials from turning into free-for-all mud slinging contests.  Imagine how ridiculous a trial would be if every officer could be drilled on the witness stand about their 4th grade report card.  Then again, if an officer has taken part in shenanigans which call his/her word into question — it might be key for a jury to know.

Two Rules — What the Judge MUST Allow and What they MAY Allow

The rules categorize prior conduct of a witness into two main categories.  Evidence that a judge must allow the jury to see and evidence the judge has the discretion to allow jurors to see depending on the circumstances.

Crimes of Moral Turpitude 

Under Tex.R.Evid. 609, evidence of a prior conviction for a crime of moral turpitude (typically crimes that involve honesty) shall be admitted as well as any felony conviction provided the conviction was in the last ten years.  This gives courts a bright-line, stringent test for allowing prior conduct into evidence.

The problem is that disciplinary action against an officer is virtually always going to fall short of the requirements under rule 609.  Good police agencies will fire an officer for any conduct which could be used to torch the officer repeatedly on the witness stand… and clever police agencies know not to make reports of misconduct in writing unless they absolutely have to.

A combination of other rules may, in certain instances, allow general impeachment of an officer based on past incidents of misconduct even if those bad acts fell short of being convictions required by rule 609.

Rules Which Allow You to Get Into the Officer’s Records 

Tex.R.Evid. 404(b), 405(b) 608, and 611 which you can read here combine to give a judge the ability to determine whether to allow a jury to hear evidence of bad conduct of a police officer (or any other witness for that matter).

Situations where a prior bad act by an officer would be allowed in evidence or excluded from evidence are like snowflakes in their ability to be unique and unpredictable.

An example where it may be admissible, however, is where a specific incident of police misconduct in the past is extremely similar to an occurrence in the present case — and the prosecutor has left the jury with a clear mis-impression that the office has a perfect history.  For instance where a police officer who routinely makes DWI arrest coincidentally has his microphone go off when giving instructions on field sobriety tests time after time against department policy.  At some point “I forgot to check my microphone batteries before my shift” quits working as an excuse.

These scenarios are typically very complex.  If you have questions about a specific case you should bring it to your attorney’s attention to see under what circumstances an officers past problems may be brought to the jury’s attention.

*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 specific situation you should contact an attorney direction.  Contacting the attorney through this forum does not create an attorney-client relationship.  Communications through this forum are not confidential or privileged.

The Importance of Trial Advocacy and Trial Skills

December 29, 2011

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

I don’t write much about trial advocacy because I think most people who happen across my blawg are probably more interested in other nuts & bolts legal topics.  Experience, comfort and skill in the courtroom is extremely important stuff, though.

I can safely say I spend more time honing my trial skills than any other type of other continuing education available.  This is in part because it fascinates me and, frankly, it’s my trade.  I like to think of myself like a basketball player who works every day after practice on nothing but free-throws, dribbling to the left, or shooting threes.

On my bookshelf you’ll find books about jury psychology, cross-examination, and persuasive rhetoric.  I devour jury studies, psychological studies, and other data which I feel help give me an edge in trial.

Trial is the fascinating competition between two (or more) parties trying to re-create an event in the most persuasive way possible.  Preparing for any trial is like composing a tune or in some cases — a symphony.  There are many small components which have to neatly and seamlessly fit together all aimed at not only telling the more persuasive story, but convincing a judge or jury to be motivated to act on your cause.

In all my trial work and through all my experience I have come to one conclusion about successful trial work:

The will to win is the will to prepare.  The harder I work, the luckier I get.

Television and the movies make us think there are a handful of gifted mouthpieces that can magically show up and enchant a jury regardless of the facts.  The most talented actor in the world can’t prepare for a few hours then take the lead in a broadway show.  The most gifted athlete can’t sit on the sofa all week then lead his team to a playoff win.  Why would it be any different for a lawyer born with the gift of gab taking on a trial with little or no preparation where the results truly matter?

Trial advocacy is extremely important in criminal defense.  It never ceases to amaze me how creative and talented many of my colleagues are at trying cases.  At the same time, I’ve watched many trials on the sidelines watching through my fingers at how badly the lawyers have prepared.

Do yourself a favor when you are picking a lawyer for your criminal case — ask them how often they try cases, ask them how much they study trial advocacy, and ask them what they do to prepare for trial.

The answers should be extremely revealing.

*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 advice about any situation you should always contact an attorney.  Contacting the attorney through this forum does not create an attorney-client relationship.  Communications sent through this forum are not confidential.


Criminal Law and Psychology

September 4, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

One of the things I geek out on in my practice is how psychology intersects with criminal law.  It never ceases to amaze me how the applications of this field of science could affect virtually any type of case ranging from marijuana possession and driving under the influence, to robbery and murder.

I am obviously an amatuer psychologist at best, so I’ll apologize and defer to any real psychologists that read my blog and take issue with anything I say.  Also, I’m well aware my discussion today only scratches the surface.

Our brains are constantly processing, prioritizing and often distorting information.  It’s part of being human.  My belief as a criminal defense attorney is that I have understand this is the case for everyone — myself included.  Not only do I have to understand this is the case, but I have the challenge of demonstrating to a judge or a jury the explanation may not be a clear as it appears.

Police approaching a driver may be influenced by all sorts of things which affect their perception… not the least of which are past experiences, biases and prejudices.  For reasons I don’t understand, police may also feel the need to be controlling to the point where they feel justified in manipulating someone into allowing them to search a vehicle or take take field sobriety tests.

Then there is the person that is pulled over on the road-side.  The presence of an authority figure in uniform can be extremely powerful… to the point that someone would capitulate to an unreasonable officer request even though the person may know it their legal right to refuse — and in their legal best interest to refuse.  The interplay between an officer with the need to control and an every-day person who is socially programmed to respect authority figures fascinates me an it’ often critical to demonstrate to the jury exactly what is going on between the lines so the understand the police’s white-washed version might not necessarily be the entire story.

Again, I could go on all day, but a last example I’ll give is psychology of an everyday person sitting on a jury.  As much as we think a juror reasons the same way we do, a good criminal trial lawyer has to understand that the juror is in a completely different mindset.  Jurors are responsible citizens that merely showed up at the direction of the county, city, or federal government for jury duty.  They are shuffled from room to room and ultimately put into a room full of lawyers they don’t trust trying to tell competing stories.  Jurors aren’t going to naturally gravitate to your position just because you think you’re so clearly right and the other side is obviously wrong.  Studying juror psychology, though, helps a good criminal trial lawyer shape and sculpt his message so that it is consistent with the jurors’s pre-existng values, beliefs, and biases.

As an attorney that frequently tries cases ranging from DWI and drug possession to aggravated robbery and other serious felonies, I make it a priority to know and understand all the psychological interplay more than my opponent prosecuting the case.

*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 contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client relationship and communications sent to the attorney are not considered privileged.