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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How COVID Broke the Courts Blog 3 -(Negotiation)

August 19, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

jeremy@texasdefensefirm.com

COVID has altered the way we negotiate cases.

Communication isn’t the same.  At times, the new modes of connection are difficult to overcome.  Rapport, trust, sincerity and the degree of how emphatic a particular plea is just harder to convey if it’s anything other than in-person.

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Prosecutors are funny creatures.  I believe they are driven by decency, a quest for justice and a sense of duty.  I know because I was one and I really enjoyed it and found it fulfilling.

But understanding them and what makes them tick is far more complicated.  Many are younger and being a lawyer for the State is their first job in our profession.  Some of the more experienced ones have still never ventured outside the DA’s office.  Their world is like none-other.  I found it to be eerily similar to an echo chamber at times filled with adulation of citizens and the all-to-often somewhat self-assured notion that we had a monopoly on the truth.  The result is prosecutors often take the guilt of the accused (or proving the guilt of the accused) for granted.

I include this to say their view of cases — and often their firmness in sticking to their point — is often far different than mine.  When I’m negotiating with them for a better plea offer convincing them to simply walk-away and dismiss a case – it takes persuasion.

Knowing what motivates prosecutors is absolutely crucial in criminal defense.  And whether I’m trying to convince a prosecutor a certain case requires cooperation or collaboration — or I’m simply trying to convince them their poker hand is an offsuit 2-7 split — it is far more difficult to do it with short, choppy emails or text messages than it is just to sit and visit with them for a few minutes.

What tends to happen with phone calls or emails is the prosecutor tends to hear the message — perhaps miss some of the intonations I’m trying to convey — and then retreat back into their echo chamber to consider it further.  It shouldn’t come as a surprise it’s a far more difficult sale.

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

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How COVID Broke the Criminal Courts – Blog 1 (No Jury Trials)

August 5, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Whether we like it or not the Coronavirus pandemic has been a transformational event – and its impact on the Courts and criminal law practice is no exception.  Some of it will be temporary and some of the transformation will be here to stay.

broken-bulb

Big Picture View of the Criminal Court System

Think of our court system as a pipeline with water going through it.  Cases go in on one end, and are channelled in certain directions to be resolved either by plea, dismissal or trial.  One of the Courts’ central roles is to simply move the cases through the system.

Certainly, the Courts have vital roles in the outcome – but as I explain to clients frequently – the Courtroom has two tables, one Judge and one witness stand.  They can’t weigh in on all 2,500 cases they’re assigned at one time.

The Role of the Jury Trial in the Process

Trial would be like the end of the water line which would typically spit the unused water out and be done with it.  It is the mechanism which closes cases the parties can’t resolve on their own.

But another crucial aspect of a Jury trial is this — parties typically also want to avoid them.  They’re uncertain.  They can be expensive for someone charged with a crime.  They can inflict real pain on a person standing trial or a witness in the trial.  Prosecutors won’t admit this – but they get paid the same whether they’re sitting at their desk or trying a case and many of them don’t want to put in the effort of a trial.  So trials also serve the critical function of pressuring criminal defendant and the prosecutor to come to some sort of agreement short of a trial.

Also there are some cases which simply have to be tried in the criminal world.  Take a Continuous Sexual Abuse of a child case where the Defendant serves 25-years to life with no parole if convicted.  If the Defendant is over 50 years old – there is simply very little reason for them to plead guilty in any event.

Pandemics and Jury Trials Don’t Mix

We can’t have typical jury trials in a pandemic.  It’s not safe and there is really no substitute.  Jury trials via zoom or other platform almost certainly violate rights to face your accusers in open court.  The jury system was also predicated on an assumption the jury can get to the truth by watching witnesses in person.

The System is Temporarily Out of Service

Not only is the mechanism we use to resolve cases not working during the pandemic — more importantly parties aren’t feeling pressured to resolve cases.

Prosecutors are currently making plea offers based on what they think a fair outcome would be for a case based on what they’ve seen as fair results in the past.  But they ignore the Defense has very little incentive — in many circumstances — in pleading guilty.

A Defendant on bond (and the vast majority are) doesn’t have to worry about upsetting a probation officer and going back to jail on a misdemeanor case.  On a felony case where the State thinks 8 years of prison is a fair offer — a defendant on bond is rarely going to sign up for that where the alternative is living a relatively normal life for another year.

Prosecutors and criminal defendants aren’t on the same wavelength with regards to resolving cases and the reason is the pressure-mechanism isn’t working.

Why Don’t Judges Just Try to do Jury Trials Anyway?

Judges could try to force the issue – but they fear making the matter worse by utilizing resources to try a case via Zoom only to have the Court of Appeals making them re-do the trial when the pandemic is over.

The Fix

The system will get back to normal once cases begin going back to jury trials.  When that will be is another issues.  But when jury trials do begin to crank up again — just like a water-pipeline with built-up pressure — you can expect excess pressure there too.

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

 

 

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Zoom Jury Trials — “It’s Good Enough” Lowers the Standard in Our Courtrooms

May 19, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Collin County is kicking around the idea of jury trials via Zoom or some other similar platform.  They just tried a virtual jury trial – sort of.  It was a “summary jury trial” which is a practice run typically for wealthier litigants.  The fake jury comes back and tells the parties what they think the outcome should be — and the parties then consider settling.

***What did you say?  Sorry.  Go ahead.***

And not to pick on Zoom.  There are other similar platforms too, but I’ll just collectively refer to them here as Zoom.  Sorry.

Judges organizing and developing the idea get A’s for ingenuity, effort, and passion for their jobs.

But it’s still a terrible idea.  Remember, a jury trial is often the most important day in one or more person’s entire life.  Here are some of the biggest reasons I can think of:

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  1.  Over Simplification of Human Communication

Human communication is complex, intricate and amazingly subtle.

I’ve interviewed thousands of potential jurors  — and I have cross examined hundreds of witnesses.  Many, many jurors cannot give my client a fair trial but would still swear they could.  Many, many witnesses want to make sure I lose and evade questions until they are pinned into answering.  A critical part of my job in the courtroom is to hone in on the most minor of cues from a juror or witness.   An eye dart.  A smirk.  Posture.  Hand position.  Voice tone or inflection… and on and on an on.

***Sorry.  Lost you for a second.***

Zoom and other similar platforms are — at least for now — tone deaf.  These subtleties are either flattened, lost, or are drowned out in 20-people being crammed onto an 18-inch monitor.

And there is something to be said about accountability of the jurors too.  Jurors deliberate knowing they will have to go back into the courtroom and look me, my client, the prosecutor and in many cases a victim in the eye.  Jurors who share less of an emotional stake in the outcome will give the parties less of their focus and attention.

2.  Too Much is At Stake

For criminal defendants decades may hang in the balance not to mention the tidal wave which hits their families and loved ones which can be practical, financial and certainly emotional.  For victims it is their opportunity to be heard and have the jury see how real and fresh their pain truly is.

Zoom is probably fine for quick interactions and brief hearings.  It’s a great tool to visit with clients both incarcerated and free on bond.  It’s probably fine for motions practice with a Judge, lawyers, and possibly other witnesses during routine hearings too.

But any one of us would feel cheated and angry if we or our loved ones were sitting in jail after a trial where we couldn’t even see the jurors or our accusers in person.  Any victim whose defendant is acquitted will feel the same way too.

***Wait, who is talking?  Sorry!***

This is a jury trial — not a teamwork meeting or happy hour.  Can you imagine deciding something as critical and complex as a sexual assault shaping the lives of countless people without some sort of personal interaction?

3.  If Anyone Cares — It Violates a Bunch of Rights

This is a blog — not an amicus brief or a law review article.  So I apologize if I keep this quick and direct.

***Look at that guy’s cat!  He will knock down that picture on the wall***

Let’s start with the right to confront witnesses under the Sixth Amendment.  Then we’ll go to Due Process under the Fifth and Fourteenth Amendment.  Then let’s talk about the umpteen-million opinions you’ll see about the jurors ability to judge witnesses based on x, y, and z.  Or maybe we just throw those all out because we need to get our docket moving?!?

Make no mistake — Judges are asking the specific question, “Can I get away with this without getting reversed?”  My message to them — be my guest but don’t complain about trying the case when it comes back on appeal.

Bottom Line

Is Zoom “good enough?”  Perhaps in some ways and for some things.  People can talk, listen and see videos and exhibits.  But until the platform is as good as the Jedi Counsel meeting where Yoda can sit in his chair remotely from Kashyyyk and interact – it won’t be the same.

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

 

 

 

 

 

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What does it Mean when a Crime is “Aggravated”?

January 18, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

It typically means “worse” or “heightened.”

The term ‘aggravated’ is applied to many different criminal charges and there is no uniform definition as to what allegation renders a charge ‘aggravated’ in any specific case.  One constant is an ‘aggravated’ allegation normally kicks the punishment range up a notch or more.  It can also affect parole eligibility if someone is sent to prison.

 

Here are the most common “Aggravated” offenses in Texas:

Aggravated Assault – Assault where someone either uses or exhibits a deadly weapon.  It can also mean assault which results in serious bodily injury.  See Texas Penal Code 22.02.

Aggravated Sexual Assault – Sexual assault is generally where a person conducts one of a number of prohibited sexual acts to another (Tex.Pen.C. 22.011).  Aggravated sexual assault can be committed where defendant inflicts serious bodily injury on the victim, assaults a person younger than 14, or a disabled or handicapped person.  Tex.Pen.C. 22.021).

Aggravated Sexual Assault of a Child – sexual assault committed against a child younger than 14 years old.  Sexual assault of a child is committed where a child is between the ages of 14 and younger than 17.

Aggravated Perjury – perjury is making a false statement under oath.  It could be in an affidavit or an official document of some sort.  Aggravated perjury is a false statement during a court case which is considered material in nature to the proceedings.  Perjury is typically a Class a misdemeanor.  Aggravated perjury is elevated to a third degree felony.

Aggravated Robbery – Robbery is typically defined as theft plus assault regardless of how minor either is.  Aggravated Robbery is where a person uses or exhibits a deadly weapon in the commission of the robbery, causes serious bodily injury, or places in fear of imminent bodily injury of a person over 65 years of age or a disabled person.  Robbery is a 2nd Degree felony and aggravated robbery is a 1st degree felony.

Aggravated Kidnapping – Kidnapping is abducting a person.  Aggravated kidnapping is where someone is abducted with the intent to be held for ransom, intent to be used as a human shield, intent to sexually violate, or with intent to terrorize.

Aggravated Promotion of Prostitution – This offense is for those who invest in, finance or promote prostitution of two or more persons.  See Tex.Pen.C. 43.04.

Aggravated Promotion of Online Prostitution – Promotion of prostitution done in a fashion which is online.  Tex.Pen.C. 43.041.

*Jeremy Rosenthal is Board Certified by the Texas Board of Legal Specialization and is licensed to practice in the State of Texas. Nothing in this article constitutes legal advice.

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