Hiring Expert Witnesses for Your Case – What You Should Know

October 11, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Expert witnesses are an important part of trial advocacy.

What is an Expert Witness?

A person with specialized knowledge of a particular is allowed to testify provided they comport with other rules surrounding reliability in both Texas and Federal Courts.

Judges have a detailed legal framework they must follow to determine if a particular expert may testify in a particular case.

Experts can testify in applied scientists such as DNA or blood analysis, areas such as computer forensics, cell phone tower triangulation, and in soft sciences such as therapy or domestic violence, and even in areas such as accounting, plumbing, or as in the movie “My Cousin Vinny,” — independent rear suspension cars made in the 1960’s.

Do I Really Need an Expert Witness?

Follow your lawyer’s recommendations here.

The defense can establish their own trial theory either through their own witnesses and experts or through the prosecution’s witnesses and experts.  Prosecution witnesses and experts are predictably uncooperative with us and some of their experts will easily admit to shortcomings in the state’s case and others won’t.  There is no substitute for the clarity and power a good expert witness can provide on your side.

There are risks to proffering an expert witness in your defense.  A good expert witness should be loyal to their discipline – not necessarily to you winning your case.  This helps them be credible.  But this also means your expert may have to admit to facts which can hurt your case when the prosecutor asks… and sometimes those could be facts and analysis the prosecutor was never aware of in the first place.

Ultimately the complexity of certain issues often dictates.  Trial is teaching the jury a theory.  That can be hard with a state’s expert who sees it as their job to make sure you lose.  A good expert witness on your own side is often necessary.

Why is an Expert Witness Paid?

I don’t work for free and neither do you.  I haven’t met anyone who does.

The fact a defense expert witness is paid and how much are typically good fodder for prosecutors on cross examination.  If you think about the fact they’re paid – it’s actually a good thing.  That is because testifying is their livelihood and for that reason they wouldn’t jeopardize it by saying crazy or quack science when a court reporter allows everyone in the State to know how they testify.

The Court Can Pay For Your Expert

The Court can pay for someone’s expert witness in certain instances — even if the lawyer is retained privately.  The expert must be willing to accept the court’s payments which are typically lower than on the private market and the Court will underwrite and evaluate Defendant’s financial status.

Ask your lawyer about Court assistance for experts if money is tight.

*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by the Texas Board of Legal Specialization.

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Your Right to a Speedy Trial – and The Effect of the COVID Pandemic

October 8, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

This could probably be a full blown law review article but I’ll stick to good blogging etiquette – long enough to cover the basics and short enough to keep interest.

These days I sound like a broken record with my clients.  “We’re not able to have your jury trial yet.  We need to reset your case again.  Sorry.”

Many of my clients don’t want a speedy trial and many are happy to put off their prosecution indefinitely.  Everyone is different and their circumstances are different so I can see it both ways.  The Constitution guarantees a right to a speedy trial for no other reason that it takes away a possible prosecutorial ploy to ruin someone’s life by just maintaining a cloud of suspicion over a person without ever having to prove their case.

I find courts and prosecutors still struggle with their own understanding of what a speedy trial is or isn’t.  Unfortunately my experience is Courts and prosecutors generally don’t take speedy trial issues very seriously and only see it as an arbitrary escape hatch for a criminal to avoid responsibility.  Our challenge is to show the Court why the Constitution means what it says and says what it means about speedy trials in every case.

How Speedy Trial Works under the Law

The cornerstone case for speedy trial for both State and Federal purposes is called Barker v. Wingo.  That case weighs four separate factors in determining whether there has been a violation of someone’s rights to a speedy trial.

The Barker v. Wingo Factors (Quickly)

The Court Weighs:

  1.  The length of the delay;
  2.  The reason for the delay;
  3.  The time and manner in which Defendant asserted their right;
  4.  The degree of prejudice Defendant has suffered because of the delay.

Prejudice suffered can be anywhere from the natural stress and anxiety which comes from being criminally prosecuted to things which more directly impact the case such as witnesses being more difficult to find or memories about an event fading.

Another big factor is the reason for the delay.  Courts typically try and calculate who is at fault for how much of the delay.  In Barker v. Wingo, the accused was a co-defendant in a homicide.  The prosecution wanted to convict the other person first so they sought 13 or 14 continuances on Barker’s case for strategy reasons.

COVID Delays

We won’t know how the Courts will construe speedy trial delays under Barker for the purposes of the pandemic.  I don’t think they can blame the defense, obviously, for the delay – but the question is whether the Courts will attribute the delays to the government because of of public safety?  Could courts turn around and try to blame Defendant for asserting rights such as the right to confront witnesses in person – or not having a judge trial instead of a jury trial?  It’s hard to know.

Stay Tuned

In 2021 and almost certainly beyond – we are looking to have a major backlog of court cases which will need to be resolved.  Courts have often been dismissive of speedy trial issues but the issue may have a resurgence.

What Lawyers Should be Doing Now

There is really no reason a lawyer shouldn’t file a speedy trial demand in each of their cases set for trial during the pandemic.  Those speedy trial demands can always be waived, but it helps establish the third prong – that the defense is trying to assert their right early in the process.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.

 

 

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Posted by niftybrady

What is an “Outcry” of Sexual Abuse?

October 4, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

An “outcry” is the term used to describe generally when a complaining witness – typically a child younger than 17 years old – describes sexual abuse for the first time to a person 18 years or older.

Why an Outcry is Important

Outcries and the circumstances which surround them are critical to sexual assault cases.  Psychologists I’ve worked with on sexual abuse cases have described sexual abuse or molestation as a “rock in the shoe” a victim carries with them all or most of the time.  The victim, psychologists say, are then constantly evaluating and ‘testing’ others around them including grown-ups to see if they can trust that person with the often confusing and very private information.

 

 

When an Outcry Can be Questionable

We expect valid outcries of abuse, then, to be in circumstances where the victim is in a situation of trust, love or safety.  But we often see an outcry in situations where the complaining witness is in trouble with an adult or led by hysterical questioning.  With teens, a questionable outcry may come when parents are cross examining a teen trying to avoid being in trouble – or where a teen might be desperate for attention.

Often times law enforcement and even prosecutors will glaze over problematic outcries.

The Legal Significance of an Outcry

Texas Code of Criminal Procedure 38.072 allows an ‘outcry witness’ to testify in court and repeat the minor’s story they were originally told.  Because outcry is a ‘process’ of the minor opening up – often to different adults – courts generally allow multiple adults to come and repeat the child’s story.  Normally repeating what another person has said to you is deemed hearsay and is inadmissible in court – violating your 6th Amendment right to confront your accuser.

The original outcry witness is allowed to testify but often so are more polished law enforcement professionals too because they also interview a child accuser.

An outcry witness cannot testify in the place of the complaining witness, but instead the prosecution uses outcry witnesses to fortify the complaining witness’ story.  It’s not uncommon for the state’s witness’ to play human polygraph and try to telegraph to the jury they believe the accusers story.

Summation

The prosecution and defense have a very different view of an outcry.  While the prosecution tends to take an outcry at face value and then to exploit rule 38.072 in an effort to retell time and again the allegations before the jury, the defense is focusing on the context and the substance of the outcry itself.  Does it pass the “rock in the shoe” test?

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What Constitutes Consent in a Sexual Assault Case?

September 29, 2020

By Jeremy Rosenthal, Criminal Defense Lawyer

(972) 369-0577

jeremy@texasdefensefirm.com

The question of consent in sexual assault cases is very complex – probably impossibly so.  If you add alcohol or intoxication to the mix the issue gets even tougher if that’s at all possible.  I’ll do my best to make sense of it.

The Law

In Texas, Sexual Assault is defined by Texas Penal Code 22.011 and says in relevant part:

(a) A person commits an offense if :

(1) the person intentionally or knowingly:

(A) causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;

(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent;  or

(C) causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;

The legal definition of “consent” means “assent in fact, whether express or apparent.”  Tex.Pen.C. 1.07(11).  Not too helpful, is it?

Also, today I’m discussing sexual assault – not statutory rape or sexual assault of a child.  That is a different topic.  Persons under the age of consent in Texas (17) cannot lawfully give consent.

Digging Deeper

At a trial, the Judge would instruct the jury to follow the law.  The law I just recited for you.  As you can tell – it is amazingly subjective.  Here’s what is terrifying about the whole conundrum – opinions about what may or may constitute consent vary greatly and typically along gender lines.

In a recent book by Author Malcom Gladwell called, “Talking to Strangers: What We Should Know About the People We Don’t Know” Gladwell attempts to tackle this very issue.  He listed the results of a Washington Post/ Kaiser Family Foundation Poll of 1,000 college students which asked the students whether they thought any of the following behaviors “established consent more more sexual activity.”

A.  Takes off Own Clothes:

  1. Men: 50%
  2. Women: 44%

B.  Gets a Condom:

  1. Men: 43%
  2. Women: 38%

C.  Nods in Agreement:

  1.  Men: 58%
  2. Women: 51%

D.  Engages in foreplay such as kissing or touching:

  1.  Men: 22%
  2. Women: 15%

In each scenario, women consistently believe across the board consent has not been given more frequently than men.

When meeting with clients and their families, I’m often told of specific behaviors of the complaining witness — typically the female — and asked why that doesn’t solve the issue right there?  “But she got into the car with him….”  or “But she pulled his shirt off…” or “But she began rubbing me…”

What this study says is men and women simply see the issue differently… and short of actual verbal consent, there is virtually no “silver bullet” which vindicates someone accused of sexual assault cleanly.

Does This Mean Anyone Who is Accused is Going to Lose?

Certainly not.  A ‘saving grace’ in all this is the standard of proof in a criminal case, that the state must prove their case “beyond a reasonable doubt,” is a fire-wall to a conviction.

Remember, the ‘intent’ aspect of a sexual assault or rape jury charge is based on the accused’s point of view – not the complaining witness’.  That is to say if there is a reasonable doubt the accused thought the complaining witness consented, then they should be acquitted.

So the question about, let’s say, the accuser getting a condom isn’t whether she was, in fact, consenting or not consenting to engaging in penetration — it is whether the accused could have reasonably believed that established consent.  43% of male college students think it does.  In a perfect world, the communication between the two people would be as clear as possible but since it’s not a perfect world – we have to deal with real world scenarios.

In this scenario the defense would likely argue the accused could have reasonably believed the accuser was giving consent because the question is whether the accused intended to knowingly and intentionally act without the accuser’s consent.  Even people who staunchly believe there was no consent given in that circumstance may still likely concede the accused might have misinterpreted this and vote for acquittal.

On the down-side, it goes without saying people who hold firm views on these topics have an understandably difficult time seeing the issue another way.

Misconceptions About the Legal Definition of Consent

I see lots of debate, literature and public information campaigns trying to educate people on what is and isn’t consent.  Examples could be like this video about drinking tea.  It’s very clever and informative and I think all of our hope is it helps to cause people to understand and conform to acceptable behavior – but it’s not necessarily the law.  In the courtroom we deal with statutes, jury charges, and what the legislature has defined as consent.  If it’s not in the Texas Penal Code or some other statute – it’s not the law.

How Does Your Lawyer Defend You in a Sexual Assault Case?

First, your lawyer has to understand most of people’s views about consent in sexual assault cases are driven by emotion, life circumstances, and their pre-existing world views.  Parents of teenage sons may very well imagine their own son in similar circumstances facing lifetime sex offender registration while a potential juror who has themselves been a victim of sexual assault may feel an intrinsic connection with the accuser.

Jury selection is therefore crucial.  It is the lawyer’s ability to eliminate jurors who have pre-existing biases and prejudices that are so strong they can’t sit on the panel.  And any lawyer who has tried enough cases will tell you – they don’t advertise who they are up front.  Your lawyer has to be able to evoke enough emotion to get that juror to reveal their true inner dialogue.

It’s a given beyond jury selection your lawyer needs to work, work, work.  The harder they work, the luckier they will get.

*Jeremy Rosenthal is board certified in Criminal Law by the Texas Board of Legal Specialization and has been designated as a Super Lawyer by Thomson Reuters.

 

 

 

 

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Police Reports: Dishonesty by Omission

June 16, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Here’s Minneapolis PD’s press release from the George Floyd murder:

Screen Shot 2020-06-11 at 8.23.03 AM

Of course, this was before they knew they’d been caught on a camera they didn’t control. It’s fiction.  They left out the part where Officer Chauvin had his knee on Mr. Floyd’s neck.  Or that he had it there for nine minutes.  Nothing to see here, folks.  Move along, right?  Even worse, MPD paints themselves as the heroes of this story.  “Even though we didn’t do anything wrong, we called for an investigation…”

Are the statements actually made in the press release true or false?  Well, I suppose most are actually true.  He did appear to be suffering medical distress.  An ambulance was called (way too late), and no weapons were used assuming you don’t count Officer Chauvin’s knee.

Yet, the press release is a work of fiction because it omits critical and relevant aspects of the truth.

And this is how many, many police reports we review on a regular basis deceive as well.  A DWI report might say things like, “suspect did not know his location, stumbled out of the car, and had red bloodshot eyes” where those things are apparent.  But you’ll never see a report which says, “He knew where he was, exited the vehicle perfectly and his eyes looked normal” even if they are true too.  Fiction.

A common example I give to client’s about why they should exercise the 5th Amendment is this:

  • You:  My friend and I went to the party.  We didn’t see anyone there we really knew.  It was very uncomfortable.  I think we finished about half of a beer each and we decided to leave.
  • Police Report:  Suspect admitted entering the house.

Does the report say anything untrue?  I suppose not.  But its a lie.

The public gets a small taste with this news snippet of the perennial challenge of trying to take police reports at face value.  You just can’t.  Even when reports don’t exaggerate or don’t outright state mis-truths, then can still be extremely dishonest.

Part of the process of defending someone is filling in the gaps which comprise the truth.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is currently designated as a Texas Super Lawyer by Thomson Reuters.

 

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