What does the Term “Forensic” mean?

November 7, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Forensics are when normal scientific principals are utilized for courtroom purposes – normally in a criminal context.  The applications can be fairly broad as far as scientific (and even some non-scientific) disciplines are concerned.

Some Science is Purely for the Courtroom

A textbook example are certain sciences where the science itself is almost solely geared at solving crime.  An example could be blood spatter.  There might be a different application of the science of blood spatter than criminal law – but if there is I don’t know it.  Bite marks would be another example of a discipline which is virtually entirely for the purposes of criminal cases (forensic odontology) and there has been tons of criticism of bite mark evidence.

Some Science Can Either be Forensic or Not

Other examples require the injection of legal or investigative principals into the science.  Examples there could be forensic pathology, toxicology, or psychology.

Pathology is essentially the study of tissue as it relates to disease.  Forensic pathology takes it one step further often to either determine causes of death or in other cases – causes of bruising for assault cases.

Toxicology is the study of toxins and poisons and their effect on the body.  Forensic toxicology, then, applies to specific legal principals such as the ability to drive, a person’s level of impairment, or perhaps a foreign substance which caused a person to die in a homicide case.

Forensic psychology is a unique practice where a psychologist applies mental health principals and diagnoses and applies them to individuals either to reconstruct someone’s thought process during a potential criminal episode, their overall psychological profile, or for mitigation purposes.

“Forensic” Disciplines We Might Not Think About Much

Other examples of forensics which are disciplines and areas of expertise we don’t associate with medicine can be:

  • forensic computer exams
  • forensic accounting
  • forensic engineering

Instances Where the Term “Forensic” is Potentially Misused

Police and children’s advocacy centers utilize what they call a “Forensic Interview” of a child in sexual or physical abuse cases.  It’s basically an open-ended interview of a child where they are asked to describe physical or sexual abuse in a non-leading fashion.  The psychological or scientific underpinnings or basis for the technique has never been made clear to me – at least not in the courtroom by any of the practitioners.  But it makes the interview seem official or important to the jury – which is why they label it that way, I’m sure.

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

 

 

 

 

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How Do I Find Out if I Have A Warrant Out For My Arrest?

October 28, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Here is the link to search for warrants in Collin County.  Here is the link for warrants in Dallas County.  Tarrant County wants you to contact the individual municipality where the warrant originated.  Denton County also makes you contact them for warrant info.

There is a database for warrants nation-wide, but unfortunately it’s not public.  Checking for warrants can be a pain-staking process if you suspect you have a warrant for your arrest but aren’t sure.  The counties which make you call them to inquire doubtlessly do it in an effort to draw folks who have a warrant into their spider-web.  My guess is it backfires because many people are too scared to call.

The vast, vast majority of arrest warrants are for mundane purposes such as traffic tickets or probation revocations (I love my readers, but I don’t do traffic tickets – so please don’t call me for those!).  Most warrants simply sit there unless or until someone gets pulled over or has some other type of benign law enforcement contact which results in them being run for warrants.

Can Warrants Be Hidden on Purpose?

Yes.  Law enforcement can issue warrants and have them be sealed.  They might do it if there is an on-going investigation of a conspiracy they don’t want to spoil – and then they arrest everyone at once.  The FBI, DEA and other federal law enforcement agencies do this frequently.  Another reason could be they want to arrest someone in person for whatever reason.

Pocket Warrants

Police can also get an arrest warrant but not enter into the national or local databases.  We might see these in cases like sexual assault or injury to a child.

They keep it in their “pocket” in an effort to arrest and immediately interview a suspect.  Think of it this way — if they have a murder suspect and they get a warrant from a judge — if they enter it into the national database, they risk having someone from another agency arrest the suspect at 3 a.m.  This could give the suspect several hours to “lawyer up” and not participate in an interview or interrogation.  The pocket warrant allows the officer to pick the exact time, place, and manner of arrest.

What Should I Do if I Have a Warrant for My Arrest?

You have to turn yourself in.  Most people don’t like hearing this.  Warrants don’t go away on their own and it’s very rare to be able to get a warrant thrown out before arrest.  Most judges and prosecutors have policies in place they won’t even deal with you unless the warrant is taken care of first.  And here’s what I tell my clients — if they don’t take care of the warrant on their own terms, then the warrant will be executed against them at the worst possible time.  Maybe while they are on a dream date.

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

 

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Will I Be Arrested if I Shoot an Intruder?

October 22, 2020

By Texas Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Texas law allows you to use “deadly force” in certain circumstances to defend yourself.  One of those circumstances is when an intruder has forcefully and unlawfully entered your home.

Will you be arrested?  Perhaps, but the law may let you out of it if you qualify.

 

What is Deadly Force?

“Deadly force” means force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.  Tex.Pen.C. 9.01(3).

When Can I Use Deadly Force to Protect My Home?

Tex.Pen.C. 9.32 discusses the defense of use of deadly force and in relevant part says this:

(a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the other under Section 9.31; and

(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:

….(B) to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

(b) The actor’s belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the deadly force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);

(2) did not provoke the person against whom the force was used; and

(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

The Statute Translated and Broken Down

In English – if you are in your habitation, vehicle, or place of business AND someone has not only unlawfully entered but did so by using force AND you have done nothing to provoke the person AND you yourself are not committing a crime – then if you shoot the person, you have self defense available to you.  Additionally, you do not have the duty to retreat.

What Does it Mean My Actions are “Presumed to be Reasonable”

Remember – the law could very well go to a jury in any legal case.  The jury decides whether what a person did to defend their home was reasonable.  This law assists them and ‘nudges’ them to tell them it was reasonable.  It also encourages police and prosecutors not to arrest or go forward where cases where this applies.

Why Does the Intruder Have to Use Force to Break In for Me to Be Able to Shoot Him?

This prohibits situations where someone is invited over, an argument ensues, and then the person doesn’t leave despite being told to do so.  In that instance, the person’s entry into the home would be unlawful yet not forceful.

What Does it Mean I Can’t Be Committing a Crime?

This is a confusing part of the statute.  Remember, this law is designed to protect the homeowner who wakes up at 3 in the morning to find a burglar in their home or who comes home for lunch to find their door kicked in and someone rummaging through their possessions.

The law isn’t designed to protect someone running a drug house or prostitution ring.  Also, the law had to have a touch of flex too because it covers car-jacking situations – and not bar fights which turn into fights in a car.

But if you Recklessly Shoot a Third Person…

If you use deadly force and in doing so harm or kill a different – innocent – person, then the self defense protections are unavailable to you.

*Jeremy Rosenthal is Board Certified in Criminal Law.  He has been designated as a Texas Super Lawyer by Thomson Reuters.

 

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Mental Illness & Criminal Law: The Insanity Defense

October 18, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Not guilty by reason of insanity (“NGRI”) is a defense where the accused did not appreciate the difference between right and wrong because of their mental illness or impairment.

In Texas, though, the insanity must be a complete defense.  That is, the person’s criminal act must be entirely because of the insanity or whatever false delusion they were having.  If they even slightly had the ability to decipher right from wrong then the law does not allow for acquittal under the insanity defense.

Mens Rea

Most crimes have what the law calls a “culpable mental state.”  Mens Rea is latin for “guilty mind.”  When a person commits assault, murder, theft or runs an illegal casino – they do so with the culpable mental state which accompanies the crime.  That is, they either intend, know or in some instances are reckless as to whether the illegal result occurs.

A criminal charge punishes a criminal act when accompanied with a criminal mind – or so the theory goes.

An Insanity Defense Negates the Mens Rea

Where there is no guilty mind most cases would not allow a person to be ‘punished.’

Here is of how NGRI works or wouldn’t work:

  • Where someone is under the delusion the world is under attack by aliens – and Wal-Mart has graciously opened their doors so that everyone can grab whatever supplies they need and run for the hills… this could be an insanity defense for theft because under the person’s delusion, they are still not committing theft.  Wal-Mart authorized them to take the supplies given the circumstances.
  • Where a person is under the delusion the newspaper delivery person is a North Korean soldier flinging a grenade a their house – and the person returns fire in self defense, they could actually be acquitted due to NGRI because if that delusion were true, the defendant wouldn’t be committing a crime.
  • On the flip side — let’s say someone heard voices in their head which were unrelenting telling them to take supplies from Wall-Mart for whatever reason.  This might not be NGRI because the person still knew taking was wrong.

There are many more variations and real world examples can be both far fetched at times and in other instances gruesome and tragic.

What Happens When the Court Finds Someone Not Guilty By Reason of Insanity?

The Court retains jurisdiction over the person.  The person can often times be committed to a State Hospital where they can be treated or restored.

The period for restoration cannot exceed the maximum punishment.  But in some instances like in murder cases – that could result in lifetime confinement in a State Hospital.

A person acquitted based on an insanity defense cannot expunge their record – so public records would always remain about their situation.

Misnomers About the Insanity Defense

Texas puts the burden on the accused to prove insanity.  It can also only be done where Defense has expert testimony from a professional who can establish the person could not in any way decipher right from wrong.

Many folks understandably get upset with people who plead insanity or are acquitted due to insanity and see it as an easy escape hatch to avoid consequences.   NGRI is a difficult mountain to climb for criminal defendants, though, and the reward for winning is normally going to a State Hospital for an undetermined amount of time plus a permanent criminal record – though not necessarily a conviction.

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

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Vehicular Homicide – Criminally Negligent Homicide

April 22, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

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Criminally Negligent Homicide is controlled by Texas Penal Code 19.05(a) which says, “A person commits an offense if he causes the death of an individual by criminal negligence.”  It is a State Jail Felony punishable between 180 days and 2 years in a State Jail facility and a fine not to exceed $10,000.

Criminal Negligence

“Criminal Negligence” under Texas Law is multifacited for the purposes of a distracted driving death case.  A typical jury is instructed:

A person causes the death of an individual by criminal negligence if—
1. there is a substantial and unjustifiable risk that his conduct will cause
that death;
2. this risk is 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 person’s standpoint;
and
3. the person ought to be aware of that risk.

I highlighted the word “ought” because this is the distinction between Criminally Negligent Homicide and Manslaughter.  For Manslaughter, a person is actually aware of the danger yet consciously disregards the danger.

This is known as a “culpable mental state” and is a topic of first-year law school.  In Latin we call it “Mens Rea.”  Manslaughter requires a higher mental state and Criminally Negligent Homicide is a lower mental state.

Causation

As I discussed with Manslaughter, Causation is critical yet confusing.  The test in Texas is what is known as “but for” causation.  That is, “but for” the acts of the Defendant, would the person have died?  But consider a case where the deceased made mistakes which contributed to their own death?  This is known as concurrent causation.

The test for concurrent causation is whether the concurrent cause, on its own, was insufficient to cause the person’s death.

Here’s an example:

Driver 1 is texting and driving and fails to properly yield the right of way to another driver (Driver 2).  Driver 2 is also texting and was careless about seizing the right of way from Driver 1.  Driver 2 dies in the collision.  The Jury would have to resolve two questions for causation — first, is Driver 1’s distracted driving the “but for” cause of Driver 2’s death; and second, is Driver 2’s own carelessness insufficient on it’s own to cause his/her death?

It’s hard stuff – and unfortunately Jurors have a hard time tuning out emotion too — but that’s another topic.

Summation

Criminally negligent homicide for distracted driving or texting while driving in Texas is a lesser charge than Manslaughter.  The reason is because the culpable mental state also lower.  Other than the mental state there is little legal difference between Manslaughter and Criminally Negligent Homicide, however, the punishment ranges are clearly much less than for Manslaughter (2-20 years).  I hope this helps you understand the issues!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is recognized as a 2019 Super Lawyer by Thomson-Reuters.

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