By Collin County Criminal Defense Lawyer Jeremy Rosenthal
(972) 369-0577
It’s tough to quantify or discuss all possible defenses to all possible cases in one neat blog. There are some cornerstones, though, and areas which any defense lawyer should look for acquittals.
You can read my index to other domestic violence charge blogs here.
A Note on Legal & Factual Sufficiency
It’s obvious I wasn’t watching any given couple’s quarrel which lead to someone getting arrested. I couldn’t be a lawyer in those cases because I’d be a witness. I don’t evaluate cases for what I personally think happened, rather, I evaluate them for what I think a jury may or may not believe.
What I evaluate to prepare for a trial, then, is what we call legal sufficiency and factual sufficiency. Just remember when I discuss possible outcomes below – what I mean to say is “will the evidence be enough to show….”
Legal and factual sufficiency are confusing appellate terms which I’m evaluating for when I hear a case. Maybe I’ll blog about that one day on it’s own if I want to put everyone to sleep… but not today.
What you do need to know about legal and factual sufficiency for the purposes of this blog is this: A judge cannot allow a jury to deliberate at all if the evidence is legally and/or factually insufficient. If the evidence shows the crime was committed by an apple and it’s an orange charged with the offense – then the judge acquits the orange before a jury can deliberate.
If there is Evidence Assault Occurred, Can the Prosecution Get it to a Jury?
The Texas Rules of Evidence dictate what a jury can hear. If a jury isn’t allowed to hear something under the rules – then it could render the evidence insufficient and require acquittal.
Example #1: Complaining witness told a neighbor who told their hairdresser they got choked by their spouse. Can the hairdresser come in and prove-up the assault for the prosecution?
- No. The rules of evidence (specifically the hearsay rule) would prevent this testimony.
Example #2: Neighbor routinely sees police coming to the house next door and sees the defendant yelling at children on Halloween. Can the neighbor come to court to prove-up assault because “everyone knows he beats her?”
- No. The rules of evidence prohibit speculation of this sort.
The Confrontation Clause
Another topic which could easily take three or four lectures of a law school course in constitutional law is the confrontation clause. Any lawyer defending domestic abuse cases has to be extremely up-to-date on these issues no differently than a physician has to keep up with the latest medical research on studies and pharmaceuticals.
The confrontation clause under the 6th Amendment of the US Constitution normally requires the accuser themselves to come into court and testify to secure a conviction. But this isn’t always the case and the exceptions are constantly changing.
If the Jury Can Hear Evidence of an Assault, Can We Persuade the Jury Otherwise?
If the evidence might be legally and factually sufficient to sustain a conviction then we can’t count on a judge throwing it out before it gets to a jury. In these cases we have to get to work proving the accusers account is incomplete, exaggerated, or otherwise wrong.
This is where a lawyer has to get into the dirt of a case knuckle-deep. Who said what to one another, who was standing where, who was holding what object, who is on what medications, who consumed alcoholic beverages, who has a history of of doing what… etc, etc.
Do we have reason to believe the accuser exaggerates? Do they have a history of exaggerating such claims or bringing false claims? Does the complaining witness have psychological disorders such as manic episodes which might contribute to them giving a falsified account to police?
Are There Any Applicable Defenses?
I’ve blogged about the main defenses to assault – which apply regardless whether the complaining witness is a family member or in a dating relationship or not.
Can we show the jury this was self defense? Who hit first and can we prove it? Did they place the other person in fear of imminent bodily injury? If so – how? What does the physical evidence show?
Did the accuser “consent” to or otherwise invite the assault by their conduct? Did they stand in a doorway and refuse to allow the other to leave? Did they somehow dare the other one to hit them?
Each Case is Unique
Again — every case which comes in is unique. But the good news for defending cases like these is they are rarely cut and dried. The police have the difficult job of showing up to a scene and keeping the peace.
It often results in someone going to jail for no other reason than the police don’t know the couple — they just don’t want to come back later the same evening and pick up a dead body.
The legal system is designed for police to make an arrest with a lower threshold of evidence for exactly this reason — probable cause. We have plenty of time after the fact to put the pieces together and mount an aggressive defense.
*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization. He is recognized as a Texas Super Lawyer by Thomson Reuters.
