How Smart Phones Have Revolutionized Criminal Law

November 15, 2019

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Smart phones have revolutionized trial practice in the 21st Century.

How?  Because everyone old enough to be charged with a crime carries around a box of evidence with them.  The smart phone can tell who you talk to,  what messages you send to others, where you’ve been, what you’ve bought, and scariest of all — when you combine all these things — they tell others what you’re thinking.

And that’s not just you carrying around this box of evidence — it’s everyone.  I saw a commercial the other day which suggested we have more information about us in our phone than in our entire house!cell-phones-smartphones

So how do we make smart phones work for the defense?  It helps us get to the truth — which is virtually never as one-sided as the prosecution believes.  We can establish alibis, witness bias and witness motive — and that’s just the beginning.

Compulsory Process under the 6th Amendment to the U.S. Constitution allows us to subpoena records and smart phone data either directly from an adverse witness or from third-party providers such as Facebook, Instagram, or SnapChat.

In complicated trials and cases — it always makes sense to make smart phone technology one of the core foundations of an investigation.  We might know we know certain facts in a particular case — and smart or cell phone technology help us turn those facts into concrete instead of risking a swearing match.

*Jeremy Rosenthal is Board Certified by the Texas Board of Legal Specialization and is a licensed attorney in the State of Texas.

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10 Principles of Defending People: #6 Investigate

June 5, 2018

By Collin County Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Here are the previous articles I’ve written about principles of defending people in this series:

Investigation is critically important in criminal defense and in many ways it is one of the central reasons we’ve been hired.  The chief sustained complaint for ineffective assistance of counsel claims is failure to investigate.

In sum, I’ll use a quote again I just used the other day… “the harder I work, the luckier I get.”  This is squarely the truth in investigating a case.

 

What Constitutes a Thorough Investigation?

It obviously depends on the case.  Not every case is capital murder.  The list of what needs to be done to investigate in some cases can be endless.  Examples of research needing to be done includes (but certainly isn’t limited to):

  • Thorough interviews of witnesses (including your own client);
  • Reviewing the background of witnesses (including your own client) such as criminal history, lack of criminal history, mental health issues, or even school records;
  • visiting the scene of the accusation;
  • inspecting physical evidence in possession of the police;
  • independent lab analysis or confidential re-testing of certain evidence;
  • Hiring an expert witness to assist with complex issues;
  • Reviewing public documents such as previous court records;
  • Investigating cellular data and social media such as text messages, Facebook, Twitter, Instagram, SnapChat, etc.;

Pursuing a Theory

A major difference between a Defense investigation and a police investigation is the theories we pursue.  A Defense investigation shouldn’t be scatter-shot.  It needs to be focused towards a particular theory or theories in a particular case.  Police investigations tend to have theories too… but their theory is almost always that Defendant is guilty.

Why Don’t Some Lawyers Investigate?

There are multiple reasons.  First, is lawyers didn’t go to investigation school, they went to law school.  An investigation is something most lawyers learn by doing which might suck for you if you’ve hired one that’s still learning.

Second, many lawyers are afraid of what they’ll find.  They buy in to their client’s guilt and are worried if they dig up bad facts for their client then they’ll end up making the situation worse for their client.

Final reasons might include their lawyer is too busy, not resourceful enough, or tragically are indifferent.

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

 

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Posted by Jeremy Rosenthal, Esq.

10 Principles of Defending People: #10 — You Can’t Be Judgmental

May 30, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

The next few blogs I write will be about what I think it takes to be a successful criminal defense lawyer.  They are traits I hope my clients find in me.

10.  You Can’t be Judgmental

Being judgmental is for everyone else except your lawyer.  This is Square one.  If you can’t get past this then you don’t have much business defending people in my book.  Carrying judgmental thoughts about your client is excess junk we don’t need cluttering our brains while doing the complex task of practicing law.

Understand two things about my job.  First is I don’t know whether my client is really guilty or innocent.  The only way I’d know for certain is if I witnessed things myself — in which case the rules wouldn’t allow me to represent the person anyway.  Second, is beyond helping a person — our role has a far greater good and purpose… but that is a different topic altogether.  You can read about it here or here.

My impression is by the time a person gets to my office, they feel judged by their parents, spouse, children, neighbors, extended family, co-workers, and strangers they see pushing  shopping carts in the dairy section of the super market.  They don’t need it from me too.

Some lawyers simply can’t clear this hurdle.  Its too hard for them.  What they don’t realize is removing judgment from the equation is the first step towards really understanding their client.

Being judgmental causes lawyers to presume guilt and not innocence which is an extremely dangerous mind-set.  Presuming guilt causes a toxic and circular thought process which invariably results in the lawyer dumping the case — and the client — as quickly as they can.

Many people — not just lawyers — feel if someone “gets away” with something the sun will somehow not rise the next morning.  We hate injustice and we hate thinking about it in these terms, but the Earth will still turn on its axis if a guilty person doesn’t get convicted of Drug Possession, DWI, or even murder.

It is somewhat liberating to know how imperfect the world really is when you really reflect.

And oh, by the way… someone who is unsuccessfully prosecuted occasionally gets to enjoy indefinite sleepless nights, permanent damaged relationships such as divorce, and lost employment and opportunity.  They might also enjoy fear of financial ruin, actual financial ruin, or even their name permanently smeared in the newspaper.  Not that any of this should count as punishment.

A person who comes in and says they didn’t commit the crime deserves their version to be thoroughly investigated.  A person who comes in and says they made a terrible mistake deserves having us make every effort they are really understood by prosecutors, a judge or a jury.  I can’t see where my independent opinion of this person or what they might have done fits into any of this?

A good lawyer needs to clear their mind of the excess junk so they can fight for liberty, more accountable government, and to help a person who needs a voice.

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

 

 

 

 

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Posted by Jeremy Rosenthal, Esq.

Is it a Crime to Not Report a Crime?

May 23, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Failure to report a felony is rarely charged — but it is a crime.  What is more commonly charged is failure to report the abuse or neglect of a child.

When we do see these types of charges, it is often because law enforcement suspects far worse but simply can’t prove anything… or it is often a reduced charge the prosecutors and defense lawyers settle on for a plea negotiation.

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Texas Law:

Texas Code of Criminal Procedure 38.171 requires the felony to be one which (1) the person observed; (2) it is likely serious bodily injury or death may have occurred; (3) It’s reasonable to think no one else has reported it; and (4) the person can make the report themselves if it doesn’t place them in danger.

— and if this crazy offense does occur, it is a Class A misdemeanor.

Federal Law:

The Federal Law is called Misprision of a Felony.  It is much broader in that there only be “knowledge” of the felony.  A major difference is under Federal law, the accused must take an affirmative step in assisting concealment of the felony… in essence making them an accessory.

Keep a few things in mind about failure to report crimes and they start making sense for why we see them so rarely:

Police Want the Real Offender

They want the perpetrator of the crime someone knows about more than anything else.  If police had to round up and prosecute people who knew they think knew about certain crimes but didn’t report — it would make their work load go crazy.

“Failure to Report” cases are really hard to prove.

How do you go about proving someone “knew” about something…?  You’d almost think they’d have to witness it themselves?

Also consider that someone might have some information a crime was committed — but not enough information to truly assist police.

The statutes take these things into consideration which is why they are so narrow.  The gist of these laws is police want and need help in serious situations… not to round everyone up who knows something.

Law Enforcement Usually Understand’s You’re in a Tough Spot Too

Police are people too and they might understand the witness or person is in a tough spot to do something.  Many crimes take planning and a series of bad decisions.  Witnesses to crimes normally don’t choose to be witnesses and they often have to make decisions on the spot.

I can see police threatening people with this charge to get them to talk about solving the underlying crime… but again, remember the cops want the REAL bad guy more than anything.

Failure to Report Abuse or Neglect of a Child or failure to report Aggravated Sexual Assault of a child is a bit of a different story.  I’ll write about that in another blog.

*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 should be considered legal advice.  For legal advice about any situation you should contact an attorney directly.

 

 

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Posted by Jeremy Rosenthal, Esq.

Is it a Crime to Threaten Someone?

May 22, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

A threat is a crime in Texas under certain circumstances.  I’ll discuss the two most common.

Terroristic Threat

The first offense is labeled by the Penal Code as a “Terroristic Threat“.  It might be a touch aggressively named, but is committed when there is a threat of violence seeking a particular reaction listed under Texas Penal Code 22.07(a)(1).  Examples include trying to put another person in fear of imminent serious bodily injury, trying to interrupt public transportation, or trying to cause a reaction of an Emergency Organization.

Aggravated Assault with a Deadly Weapon

The second is aggravated assault with a deadly weapon.  Aggravated Assault with a Deadly Weapon can be committed several different ways — but for our discussion, it is committed where a person “uses or exhibits” a “deadly weapon” during an assault by threat.

A deadly weapon is legally defined by Texas Penal Code 1.07(a)(17) as a firearm or anything which has a use or intended use that is to inflict serious bodily injury or death.  Prosecutors can get pretty liberal with what is and isn’t a deadly weapon.  In general if someone is threatened with an object like a knife, bat, pipe or something like that — it will be an aggravated assault with a deadly weapon.

What About Freedom of Speech?

Any legal scholar will tell you there is a limitation to every right under the bill of rights.  You cannot run into a theater and yell, “fire!”  In fact, Terroristic Threat is the very crime you’d be committing by doing so.

*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 constitutes legal advice.  For legal advice about any situation you should contact an attorney directly.

 

 

Leave a Comment » | Assault, Deadly Conduct, Emergency Protective Orders, Homicide, Murder | Tagged: , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

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