How Double Jeopardy Works

March 4, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.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 Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. 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.

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Posted by Jeremy Rosenthal, Esq.

An “Illegal Search” is Really More Like an “Illegal Procedure” Penalty in Football

March 3, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

One of the best weapons in defending many cases is the exclusionary rule.  That rule prevents illegally attained evidence from being used by the prosecution during trial.  The exclusionary rule is the citizens legal protection remedy from illegal police acts.

Isn’t it a Bit Much to Say the Police Acted Illegally?

Think of the word ‘illegal’ in terms of a penalty during a football game such as ‘illegal procedure.’  The word ‘illegal’ has a much lighter connotation when we know it’s just a 5 yard penalty for a player moving the wrong direction before the snap.

Calling a search or particular police action ‘illegal’ is really no different.  As the accused, you’re merely saying there was a foul committed without regard to wether it was intentional or severe.  But the rules are the rules and everyone has to play by them.

Illegal Searches Can’t be Very Common, Right?

They’re more common than you think.  You have to remember civil rights cases from the 1960’s and 1970’s still have a large imprint on search and seizure law.  The courts are uncomfortable with traffic stops and/or searches based on little more than hunches because those were rightly exposed as profiling.  Though today’s police may profile teenagers or people who have an alternative appearance – there isn’t much of a difference under the law.  Profiling is profiling.

You also have to remember police in targeting certain groups are often aggressive in their approach.  Police need articulable fact to justify traffic stops and continued roadside detentions.  It’s very common to see extremely thin and subjective reasoning for keeping someone detained at a routine traffic stop – nervousness, the time of day/ night, or even labeling the area of the stop as ‘high crime’ with little or no proof this is the case.  Courts have repeatedly said these types of justifications are akin to multiplying zeros when it comes to articulable facts.  Bad stops frequently get thrown out triggering the exclusionary rule.

Again, police know they are fighting crime and doing great things by keeping drugs, guns, and drunk drivers off the streets.  They will often push and test the rules for reasons they think are justified.

The end result may be that often they have mis-stepped and ‘fouled’ the person they arrested.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.  Nothing in this article is intended to be legal advice.  Contacting the attorney through this blog is not privileged and communications are not confidential.

 

1 Comment | Civil Liberties, Search & Seizure, Uncategorized | Permalink
Posted by Jeremy Rosenthal, Esq.

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

texasdefensefirm.com

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 Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court 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.

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Posted by Jeremy Rosenthal, Esq.

Will I Make the Police Mad if I Don’t Talk With Them?

February 11, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Probably.  But you shouldn’t worry about their feelings.

Jails and prisons are full of people who gave statements to police when they were under investigation.

Exercising your 5th Amendment right to remain silent is perfectly legal and if your case ever came down to a trial, the jury would never be informed of the fact that you declined an interview based on an attorney’s advice.

Won’t the Police Drop the Case if they Think I’m Innocent? 

Of course that’s possible and I’m sure that happens.  But just as often the officer has already made up his mind and is only building his case against a suspect by bringing them in for an interview.

Police are not judges.  They do not get involved in disputes to hand the party they think should win a ribbon or prize when the investigation is over.  They investigate crime.  They do that by building a case element by element as defined by the Texas Penal Code.  Often the only way they can make their case is through a statement of the accused.

By declining an interview, a suspect may be denying the police the very ability to even go forward with an arrest warrant or possible criminal charges.  So if the police are upset that a suspect didn’t come in — that is obviously outweighed by the benefits of exercising 5th Amendment rights.

Can’t I Convince them I’m Innocent?

Good luck with that.  Most experienced criminal attorneys will tell you police often make-up their mind very early in an investigation.  People don’t change their mind once they’re made — and police are no different.

Here’s a common scenario I joke about:

Detective:  What happened?

Suspect:  We went into the party for a few minutes.  We didn’t really know anyone there so we left.  It was a bit awkward actually.  I’m not sure we even had a drink while we were there.

Police report conclusion — “Suspect admitted entering the house.”

See what you’re dealing with?

Won’t Things Be Better if I Take Responsibility if I did Make a Mistake?

Maybe yes and maybe no.  At the very least you should consult a lawyer to hear their thoughts about your case.  Your version of taking responsibility may be a heartfelt apology, restitution, and a promise to change your behavior.  The State of Texas’ version could be to send you to prison depending on the situation.  Having a lawyer in the mix could at least help you have some degree of control in the situation or even broker favorable terms if you made a mistake and feel strongly about cooperating with law enforcement.

In Federal cases, cooperation through your attorney can help substantially lower your exposure to criminal penalties.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court 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 forum does not create an attorney-client relationship.  Information given to attorney through this forum is not confidential or subject to the attorney-client privilege.

1 Comment | Civil Liberties, Uncategorized | Tagged: , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Texas Criminal Statutes of Limitation

December 20, 2011

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Updated October 27, 2016

Texas current criminal statutes of limitation are governed by Texas Code of Criminal Procedure Chapter 12.  The statute of limitation is the deadline for the State to file an information (the charging document in a misdemeanor) or for a grand jury to issue an indictment (in a felony). The prosecution has met the statute where they file the case prior the expiration of the statute — even if they don’t apprehend the defendant prior to the statute.  The delay in apprehending a defendant, though, is a separate issue.

2 Year Statute of Limitation:

All misdemeanors Including

  • First and Second DWI arrests
  • DWI with greater than 0.15
  • Possession of Marijuana of 4 oz or less
  • Assault causing bodily injury (with or without family violence allegation)
  • Vandalism (Criminal mischief) up to $2,500 damage
  • Theft up to $2,500

3 Year Statute of Limitation Any felony not specifically listed in Texas Code of Criminal Procedure Chapter 12.01 5 Year Statute of Limitation

  • Theft
  • Robbery
  • Kidnapping (unless victim is under 17 years old)
  • Burglary
  • Injury to elderly or disabled individual (if done without intent)
  • Abandonment or endangering a child
  • insurance fraud

7 Year Statue of Limitation

  • Misapplication of fiduciary property or property of a financial institution
  • Securing execution of a document by deception
  • A felony violation of Chapter 162 of the Tax Code
  • False statement obtain property or credit
  • Money laundering
  • Credit or debit card abuse
  • Fraudulent use or possession of identifying information

10 Year Statute of Limitation

  • Theft by executor, guardian or trustee with intent to defraud beneficiary or creditor
  • Theft by public servant of government property
  • Forgery or the uttering, using or passing of forged instruments
  • Injury to an elderly or disabled person (with intent)
  • Sexual Assault (see below for exceptions)
  • Arson

Statutes of Limitations Based on Victim’s Age

10 Years from victim’s 18th birthday

  • Injury to a Child

20 Years from the victim’s 18th birthday 

  • Sexual performance of a child
  • Aggravated Kidnapping (with intent to violate or abuse victim sexually)
  • Burglary (if done with intent to violate or abuse victim sexually)

No Statute of Limitation

  • Murder
  • Manslaughter
  • Aggravated Sexual Assault of a Child
  • Sexual Assault if there is biological matter collected and subjected to forensic DNA testing and the testing results show that the matter does not match the victim or any other person whose identity is readily ascertained.
  • Continuous sexual abuse of child or children
  • Indecency with a child
  • Leaving the scene of an accident if the accident resulted in death

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any legal issue, you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client relationship.  Communications through this forum are not confidential. 

4 Comments | Civil Liberties, Uncategorized | Tagged: , | Permalink
Posted by Jeremy Rosenthal, Esq.

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