What is Heasay?

December 21, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

http://www.rosenthalwadas.com

(972) 369-0577

This might be the first time I’ve blogged about a specific rule of evidence, but it’s a fun topic for me and I get asked about it quite a lot by clients so let’s talk about hearsay!

Hearsay is inadmissible in court and is defined by the Texas Rule of Evidence 801(d) as, “A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”  Hearsay is rooted in the Sixth Amendment to the U.S. Constitution which allows an accused the right of cross-examination of witnesses against them.

Not very clear?  No worries.  They only devote 3 weeks to the topic in law school trying to get you to understand that one sentence.  I’ll keep it simple though hearsay and it’s effects on admissibility are extraordinarily complex and often turn on multiple interdependent factors.

In it’s plainest terms — anytime a witness is on the witness stand and quotes someone (or something) else it’s probably going to be hearsay.  We consider it unfair because it’s impossible to discredit information sources which aren’t even in the courtroom.

Here’s an example:  

Police officer #1 is on the stand and says, “Defendant’s kind-elderly neighbor told me Defendant was the drunkest she ever saw any person in her life that night.

This is textbook hearsay and here’s what makes this statement extraordinarily unfair to the accused on trial — it’s impossible to cross examine the elderly-neighbor about the statement in front of a judge or jury.  Here’s how that cross examination would go:

Q:  Officer, Do you know if elderly-neighbor might have mistaken Defendant for Defendant’s brother or Defendant’s roomate?

A:  I don’t know.  She told me it was the Defendant.

Q:  Do you know if elderly-neighbor has good vision?

A:  I don’t know.

Q:  Do you know if elderly-neighbor has a history of accusing Defendant of things he didn’t do?

A:  I don’t know.

Q:  Do you know if elderly-neighbor was on medication herself that night which could impair her ability to see things far away?

A:  I don’t know.

See how unfair this is?  Cross examining the officer is like trying to get answers out of sheet-rock.  We don’t know (1) if the officer has embellished the statement from the elderly-neighbor; and (2) we’re entitled to have the jury judge the elderly-neighbor in person while she’s questioned under oath.  The jury can judge her mannerisms, her hesitation in answering questions, and simply her plain answers the officer can’t provide.  It’s the cornerstone of a fair trial.

Here’s a bit more complicated example:

Police officer is on the witness stand and says, “I didn’t see Defendant actually commit the crime, but he did look down when he denied it to me.  I’m very familiar through my training and experience with the study from Nevada which says people who look down when they deny things are always guilty.

Here the officer is quoting a book or study and not an actual person.  Under the hearsay definition of “statement,” it makes no difference.  It would still be impossible for the defendant to show the jury the “Nevada” study (which doesn’t exist — as far as I know anyway) is nonsense.

Q:  Who wrote the “Nevada” study?

A:  I forgot.  But I know they’re really good and we use it in our academy.  I just know the guys who did the study were right.

Q:  How was the study done?

A:  I don’t remember.

Q:  Hasn’t the study been discredited by virtually every expert in the field?

A:  I don’t know.

Q:  Didn’t your own academy quit using it 10 years ago?

A:  I don’t know.  I just know the “Nevada” study says your client is guilty.

See — we have the same problem as the first example.  A study like this would have to be accepted as authoritative by an expert in the field and then could be relayed to the jury.  Another difference is the Defense would be allowed to discredit the study by showing other inconsistent language from the same study.

Not All Quotes of Outside Sources are Hearsay

To be hearsay, the quote must try to prove “the truth of the matter asserted.”  This is where hearsay discussions get really confusing and complicated.  Normally if hearsay tends to cast the accused in a negative light (the main goal of the vast majority of criminal prosecutions), there’s a good chance it is being used for “the truth of the matter asserted.”

Admissions are Not Hearsay

One key exception to the hearsay rule are known as “admissions by a party opponent.”  This is to say anything a criminal defendant tells someone is admissible in court (absent Miranda violations).  Also any party in a civil lawsuit can be directly quoted as well.

Hearsay Exceptions

Texas Rule of Evidence 803 lists 24 exceptions to the Hearsay rule.  This means even though something might be hearsay — it is still admissible because of it’s inherent trustworthiness.  Examples could be vital statistic records, statements made under high duress, or records kept in the normal course of business.

Common Uses/ Abuses of the Hearsay Rule

Hearsay is a really hot topic in family assault cases as well as child abuse cases.

In family assault cases, it’s very common where the alleged victim spouse does not wish to testify in court.  In these instances it was common for prosecutors to try and prove their case through police who arrived on the scene and took statements from the accuser.  The policy would try to use the “excited utterance” exception for the policy to essentially testify on behalf of the victim.  The U.S. Supreme Court largely put an end to this practice in 2004 in Crawford v. Washington, 541 U.S. 36 (2004) because the Court concluded this practice (in many instances) violated the Sixth Amendment right to confront accusers.

In child abuse cases prosecutors and law enforcement’s main goal at trial is to corroborate a child victim’s outcry of sexual or physical abuse.  It’s common for prosecutors to call persons who the child may have told about the abuse in an attempt to repeat the story and infer the story must be true due to how the child made the outcry.

 Texas does have an outcry rule which allows at least one adult originally told the allegations by the child to repeat what would otherwise be hearsay.  It has been a re-occuring struggle for the defense in these cases, however, to prevent the host of trained child advocates whose main function is therapy and treatment of the abuse — from coming and testifying in a very honed and polished manner against the accused though they are often the 3rd, 4th, or 5th person told about the abuse from the child.

*Jeremy 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 consult an attorney directly.  Communications sent through this forum are not confidential nor subject to the attorney/ client privilege.


The Law On Manslaughter and Criminally Negligent Homicide in Texas

October 16, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Manslaughter

Manslaughter in Texas is codified under Texas Penal Code Chapter 19.04(a) and is committed when someone “recklessly causes the death of an individual.”  Manslaughter is a 2nd Degree Felony (2 to 20 years in the Texas Department of Corrections).

The legal definition for reckless is defined by Tex.Pen.C. 6.03(c).  That provision states, ” A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”

This legal standard is clearly and obviously subjective. Therefore, no bright line test as to any fact scenario can be indicative of whether a death could be charged as manslaughter as compared to any other form of homicide under Chapter 19.  The best way to show what may be “reckless” is by giving some examples of cases where convictions for manslaughter were upheld on appeal.

Examples of Manslaughter Cases Upheld on Appeal

In Threet v. State, 2003 Tex. App. LEXIS 4136 (Tex.App. — Austin, 2003), Defendant was convicted of manslaughter where he and the victim, another college age student, got into an argument at a house-party and went outside to “trade licks.”  The victim punched Defendant first in the chest, and the Defendant then punched victim in the face.  When the victim fell to the ground, Defendant continued to punch him several times then kick him in the head with a hiking boot.  The victim died later that evening.  Defendant was indicted for murder, but was convicted of manslaughter, a lesser-included offense.

In Willis v. State, 761 S.W.2d 434 (Tex.App. — Houston [14th Dist]), Defendant was similarly convicted of manslaughter where he struck a man with a pistol-butt on the head on the steps leadning into a pool hall.  The victim fell backwards and struck his head on the board.  The victim broke his neck and died the next day.  Similar to Threet, Defendant was originally charged with murder but the jury found the lesser-included offense of manslaughter to be appropriate.

Manslaughter is similar, but should not be confused with intoxicated manslaughter which you can read about here.

Criminally Negligent Homicide

Criminally negligent homicide is defined by Texas Penal Code Chapter 19.05(a) and is committed when someone causes the death of an individual by criminal negligence.  Criminally negligent homicide is a State Jail Felony (between 180 days and 2 years in a State Jail institution).

Criminal negligence is defined by Tex.Pen.C. 6.03(d) and is occurs when someone is “criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”

Again, this standard is extremely subjective, so here is a case where appeals courts have sustained convictions for criminally negligent homicide:  Chambless v. State, 368 S.W.3d 785 (Tex.App.– Austin, 2012), Defendant woke up in the middle of the night due to noises in his front yard.  Assuming it was a neighbors dog, Defendant fired a semi-automatic rifle three to five times into the yard.  Unbeknownst to Defendant, the victim, a neighbor was in his yard and had been hit by the bullets.

*Jeremy 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 consult an attorney directly.  Contacting the attorney through this forum does not create an attorney-clien relationship.  Communications sent through this forum are not confidential nor privileged.


The Top 6 Things You Should Know Before Pleading Guilty

September 7, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Pleading guilty may be the best option in a case – but it should never be the first option.  The decision to plead guilty is often not much different than the decision to get a permanent tattoo everyone can see.  You should fully know and understand the consequences and alternatives before making this choice.

1.  What does it mean if I Plead Not Guilty?

It means you are exercising your right to a trial by judge or jury.  Every person has the right to a trial and every person has the right to plead “Not Guilty” to a criminal charge regardless of whether they committed the crime alleged.  There is nothing dishonest or immoral about pleading “Not Guilty” because your claim is essentially the state or government is unable to prove your case beyond all reasonable doubt.  Some backwards countries require you to prove your innocence — but the U.S. isn’t one of them.  By asking the State to bring it’s proof against you — you are keeping your government accountable to the people.

2.  What Rights am I Giving Up?

The framer’s of our constitution really knew what they were doing.  They gave us several extremely powerful rights — which in and of themselves could actually prevent you from being convicted regardless if you are “guilty as sin” or are completely innocent.  My list is only partial, but here are some of the rights you’ll waive in a guilty plea:

  • The right to a jury trial, the value of which speaks for itself;
  • The right to testify in your own defense and be heard — or the opposite — to remain silent so you don’t have to be exposed to harassing or abusive questions (known in the legal profession as “do you still beat your wife” questions) from the prosecutor.
  • You’re waiving arguably your most important right — the right to cross examine a witness.  Cross examination is a powerful way to break down the State’s case and show the jury or judge the full truth of an accuser’s account.
  • You’d typically (but not always) waive your right to appeal which means barring some remarkable unknown circumstances — the case will be final once the judge accepts the plea.

3.  What Are the Consequences of My Guilty Plea?

Know what you’re signing up for.  Understand the differences between deferred adjudication and a conviction and ask your lawyer about how it impacts your ability to expunge (clear) or hide (non-disclose) your record.  Understand the requirements you’re agreeing to if you’re accepting probation — and the punishments if you fall short.  Ask about other collateral consequences particular to the type of charge you’re pleading guilty to… will it affect your right to vote?  To own a firearm?  Could it cost you your job, a professional license or the ability to get a professional license?  If you’re agreeing to go to jail or prison, know the parole guidelines first.

4.  Can I Actually be Acquitted at Trial?

I tell juries all the time the truth that, “people are acquitted in courthouses all around America every single day.”  Your lawyer should be able to discuss the strengths and weaknesses of each case with you.  Again, the prosecution bears the burden of proof beyond all reasonable doubt which never shifts back to you.  Not only that, but you are presumed innocent.   Just because some facts may look bad in your case doesn’t mean you’ll lose.  Before you make the decision to plead guilty, you should know what may or may not happen at trial.

5.  Will the Punishment be Worse if I Take the Case to Trial?

People often assume the prosecutor’s plea offer is a better shake than the judge or jury will give in the event you’re convicted after a trial.  Often prosecutors, in making plea offers, simply don’t have their fingers on the pulse of the community.  Merely because the individual prosecutor may be judgmental doesn’t mean a judge or jury will agree with them.  A prosecutor asking to jail a 42 year homemaker with 3 kids for a DWI after a night of drinks with girlfriends may find the jury is angry with him for what could be seen as a mean suggestion.

6.  Won’t Fighting the Case Make the Prosecutor or Judge Mad?

Maybe.  But so what?

If you’re charged with a crime, you have to be far more concerned with how the case will impact you 10, 20, or 30 years down the road… long after both the judge or prosecutor have forgotten your name.  Besides, the vast majority of judges I’ve been around actually appreciate strong advocacy from defense lawyers and few judges (or juries) give in to a frustrated prosecutor upset about having to prove a case.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice and for legal advice about any situation you should consult with an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship an communications sent through this forum are not privileged nor confidential.


Study: U.S. Police Interrogation Methods Flawed

July 3, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Bigfoot… UFOs… False confessions…  all three concepts are far-fetched nutty theories any police officer or prosecutor will tell you doesn’t exist (normally as they roll their eyes).

This article, “Interviewing suspects: Practice, science, and future directions” published by the British Psychological Society, however, shows the topic is no laughing matter.  Not only do false confessions exist, but American law enforcement recklessly, intentionally, or obliviously utilizes pressure tactics proven to alarmingly raise the chances an innocent person questions their own innocence or attempts to extricate themselves from a psychologically terrifying situation and ultimately admits to a crime they didn’t commit.

The contributing factors according to the article include (but aren’t limited to) (1) a presumption of guilt by the interrogator; (2) focusing on traits of deceitfulness rather than traits of truthful responses; (3) unreliability of traits associated with being deceitful; (4) presenting the accused with false evidence or bluffing about unknown evidence; (5) minimizing or distorting the degree of the crime (implied leniency); (6) sleep deprivation and/or isolation; and (7) the psychological profile of the person confessing (whether factors such as susceptibility to anxiety, age, or cognitive ability play a role).

The article is obviously far more comprehensive than any editorial or summary I could write on the topic.  One of the most striking studies the paper cites is the “forbidden key” study where people are told that hitting a particular “forbidden” key on a keyboard will cause a computer to crash.  As the study goes, the computer used crashes and the person is blamed for hitting the forbidden key even though they were known not to have.  Though the tests were varied several different ways, techniques such as minimization, alleging of false evidence, or even bluffing that incriminating evidence would likely be found later all dramatically increased and in some instances doubled the false confession rate as high as 94% — the subjects internalizing and questioning their own innocence.  And as a scary afterthought — the article also discusses how judges and juries are very inadequate safeguards to bad confessions.

The article ultimately discusses the use of a British technique designed to be more open-ended and less judgmental in nature than the techniques used in the U.S.

It is a fascinating topic for anyone who wants to clinically study the psychology behind police work and behind a person confessing.

*Jeremy Rosenthal is an attorney licensed to practice in Texas.  Nothing in this article is intended to be legal advice.  Communications sent through this forum are not privileged and do not create an attorney-client relationship.  For any specific legal situation you should consult an attorney directly.


Collin County Pre-Trial Diversion Update (June, 2012)

June 22, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.thecollincountylawyer.com

It’s been a while since I’ve written about the Collin County Pre-Trial Diversion program.  

As a refresher, the pre-trial diversion program is a less formal probation offered under Tex.Code.Crim.P. 42.12.  In Collin County, a first-time offender may be offered the opportunity to enter the pre-trial diversion program which would result in the underlying charges to be dismissed and eventually expunged.  

The Collin County District Attorney’s Office has made this alternative more available in the past few years for certain categories of cases.  Most qualifying cases tend to be misdemeanor theft and drug cases though those charges are not exclusively considered.  While the diversion program is available for felonies, selection of felony cases for diversion has been extremely selective. Diversion is not offered for DWI or DUI charges.

The program has endured some growing pains but remains an excellent avenue towards clearing one’s record.  The current process is that a defendant’s attorney must first apply and be approved by the District Attorney’s Office.  After receiving approval from the DA’s office, a candidate is sent paper-work to be reviewed with their attorney.  The candidate is then required to personally make an appointment with the probation officer who conducts a final interview and decides if the candidate is admitted into the pre-trial diversion program.

Generally speaking a candidate is usually accepted into the program at the interview — but not always (a point they make repeatedly).  The interviewer, however, can reject the application.  The criterion for such rejection can be rather vague but probably hinges on the needs of the person entering the program in relation to the current load of the program.

The program isn’t perfect, but from a practitioner’s standpoint seems to have a high success rate for those who are accepted and remains a useful option.

*Jeremy 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.


Can I Recant a Police Statement?

June 20, 2012

By Collin County Criminal Defense Attorney Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Generally speaking a statement made to police in the course of an investigation can be considered by the police, a judge, or a jury for it’s full meaning.  Recanting the statement might call the original statement into question… then again it might not.

Who Made the Statement?

Statements of the Accused

Important in the analysis is who made the statement, what role that person plays in the proceedings, and the timing of the statement or statements.

A statement by an accused is referred to as an admission by a party opponent under Tex.R.Evid. 801(e)(2).  If the statement is relevant to a jury then it’s fully admissible.  The person or person(s) the statement was made to can testify to what was said by the accused or can have a written statement admitted.

Practically speaking, an accused and his or her lawyer would have to explain their reason for recanting such a statement although the burden of proof never shifts to the defendant under any circumstance.  Many judges and jurors would be naturally skeptical — and police tend to believe statements which fit their theory of the case.

Witness Statements

A statement by a witness or an alleged victim is a different and far more complicated matter.  The defendant in a case has the right to confront accusers in open court.  A witness who gives inconsistent statements to police — or attempts to recant a previous statement to police could be impeached or cross examined on the inconsistent statements before a judge or jury.

Suppressions of Statements

An accused’s remedy to have a prior statement nullified is usually a motion to suppress.  This would be in a situation where the original statement was taken illegally in violation of Miranda rights (or in Texas known as Tex.Code.Crim.P. Art. 38.22).  Those provisions do not apply to statements made prior to custodial interrogation (arrest).

Warnings about Inconsistent, Changed, or Recanted Statements to Law Enforcement

Depending on the situation — a person might not have a duty to cooperate with law enforcement.  An accused person, for example, always has the right to remain silent.  If you are cooperating with law enforcement, however, you have the legal duty to do so honestly.  Making inconsistent statements or admitting that previous statements were false could result in a person being prosecuted for criminal offenses of making false statements to law enforcement, obstruction of justice, or even perjury in some circumstances.

If you’re in the situation where you are considering in good faith recanting or amending a statement to law enforcement — you should have an attorney involved to counsel you.

*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 this or any circumstance you should contact an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship nor are communications or postings in this forum privileged.


How Double Jeopardy Works

March 4, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Double jeopardy comes from the 5th Amendment to the U.S. Constitution which holds in part, “…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb…”

Double jeopardy can be an extremely complex topic.  The easiest way to think about it is once you are acquitted of a charge, you can’t be prosecuted for the same charge again. The prosecutors who represent the government are like anyone else before the Judge.  They get their day in court — but they don’t get it again and again and again until they win.

What makes the issue so confusing at times are the different concepts behind what constitutes an acquittal for example.  The prosecution may dismiss a case but if they do so before jeopardy is said to “attach” in a particular case (typically when a jury is sworn — or in a trial before a judge — when the trial begins), the prosecution can simply refile the case if they are within their limitations period.

Also many factual circumstances could lend themselves to prosecutions of different offenses.  Crimes have statutory elements which must be proven by the prosecution.  The elements for one crime might be completely different from another crime which arose from the same situation.  Merely because someone was prosecuted and acquitted of one charge doesn’t mean the other charge can’t then be pursued by the state.  Whether subsequent prosecution is precluded by double jeopardy might depend on the over-lapping nature of the elements of given charges.

The vast majority of times double jeopardy issues are simple.  If someone is found not guilty for driving while intoxicated, marijuana possession or assault then virtually always the case is closed.  On occasion double jeopardy issues can arise, though.  When they do it’s best to speak with a lawyer about what the State may or may no do to pursue a particular case.

*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 on any issue you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client relationship.  Communications sent through this blog are not considered privileged or confidential.