Can Our Own Expert Actually Hurt Us?

October 12, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

The legal system encourages the accused to utilize expert witnesses and professionals to evaluate and advise during the investigation and defense of a case.

A lawyer has a duty to thoroughly investigate a case they are defending and it can be ineffective assistance of counsel not to do so.  But let’s be clear – none of those duties are contingent on whether the lawyer thinks his client to be guilty or innocent.

Experts are Subject to the Attorney Client Privilege

An expert hired by the defense is part of the defense team.  That means what they learn is privileged which makes it safe to learn bad facts the prosecution might not know.

Let’s use an example from a DWI case:

The police draw defendant’s blood, put it in a tube sealed and marked with a number then shipped to a lab where it goes into the mail room where some guy sorted it while he was on his phone then sent it to the analyst who only has 100 other samples to juggle that morning…. and then the result comes back looking much higher than the lawyer thinks it should be.

The lawyer can do a DNA test on the blood to see if they have the right person.  But there is a big worry the DNA will match and defense just actually just found better evidence our own client is guilty than the prosecutor already has?!?

The rules protect this type of investigation and it’s actually possible to have blood retested or tested for DNA without the prosecution’s knowledge.  Also, whatever Defense expert learns is privileged.

In the event the gamble worked – and it’s not Defendant’s blood — Defense expert can then testify about it on the witness stand before the Judge or Jury.  Doing this would waive any privilege the expert had as part of the defense team.

In other words – the bad facts Defense expert learned can be kept secret or made public.  Defense lawyers wouldn’t investigate their cases as thoroughly if they were worried learning bad facts would only assist in convicting their client.

Using an Expert to Evaluate – Not Testify

A good expert is one who is faithful to their discipline – not a particular outcome in any given case.

It is common for me to reach out to an expert and have them do an evaluation of a case only for them to tell me, “Jeremy I don’t think you want me to testify about this case.”

The expert can still assist by giving technical support as to how defense might handle a prosecution witness or by steering defense away from problematic defensive theories.

They Can Still Hurt Us Even if They Testify

Calling an expert witness is always a judgment call.  Because the witness is loyal to their discipline and not the outcome – we have to recognize when Defense calls them to the stand — the privilege is essentially waived.  Everything which went into their evaluation and opinion is discoverable by the prosecution.

This means the prosecution can draw out either harmful facts or data which can be used to undermine our defense.

The question is whether after balancing the harm versus benefit – it still makes sense to call an expert witness.  This is where your lawyer’s experience is crucial.

*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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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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What is Statutory Rape?

October 5, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Statutory rape is the common term used to describe when a person over the age of consent (in Texas, 17) has sex with a person under the age of consent.  Texas does not call it “Statutory Rape” and here it is just referred to as “Sexual Assault of a Child.”  The penal code expressly states sexual assault of occurs regardless of whether the person knows the age of the minor.  Tex.Pen.C. 22.011 (a)(2).

It is a second degree felony carrying 2-20 years of jail and equally concerning is it carries lifetime sex offender registration.

Strict Liability

Most crimes require what is known as a “mens rea” or mental state.  An easy example of a culpable mental state is intentionally knowing you’re taking someone else’s umbrella when you leave a restaurant.  You’re not committing a crime merely by taking it — but the crime occurs when you intentionally or knowingly take it without the owners consent.

Sexual Assault of a Child is known as a “strict liability offense” which means there is no culpable mental state.  Like speeding, the offense is said to have occurred when the act is done regardless of what the actor intended.  The constitutionality of the strict liability nature of statutory rape has been litigated in Courts over the years.  The courts have cited an “overriding government interest in promoting the health, safety and welfare of it’s citizens” in upholding strict liability offenses.

The Romeo and Juliet Defense in Texas

It is an affirmative defense to sexual assault of a child where the actor was not more than 3 years older than the minor at the time of the intercourse and if the minor was at least 14 or older.  Tex.Pen.C. 22.011(e).  The defense sounds straight-forward but it can be a bit confusing.

In other words a 19 year old could have an affirmative defense to sexual assault of a child if the minor was 16 at the time they had sex provided it was consensual and their birthdays were no more than three years apart.  Or, a person as old as 17 may also have an affirmative defense to statutory rape if the complaining witness was 14 — again — provided their birthdays were no more than 3 years apart and the act was consensual.

The defense would not apply to a 16 year old having sex with a 13 year old, however, by the statute’s very language.  Nor would the defense apply to a person 19.5 years old having intercourse with someone 16 years, 1 month old.

“But I Thought She Was Old Enough”

Many people think it is or should be a defense if the person thought they were having sex with someone of age.  This would be what is known as a “mistake of fact” defense under Texas Law.  The mistake of fact would, in theory, nullify the culpable mental state.  But courts haven’t recognized this defense in Texas.  Again, because it is a strict liability offense – there is technically no mental state to nullify.  So unless the legislature or the Court’s say otherwise, “I thought she was old enough” isn’t a winning argument.

So Is There Any Defense At All When Someone Thought Their Partner Was Old Enough?

A prosecutor has what I call an “over-ride switch” to the Texas Penal Code and the Code of Criminal Procedure.  That is their duty not to necessarily seek a conviction but to see justice is done.

We can absolutely try to convince a prosecutor the facts of a particular case merit the case not being prosecuted.  It could be the older person suffered from some sort of mental deficiency, illness, or shortcoming.  It could be the teenager appeared and represented themselves as older in a particularly egregious manner, or even the teenaged minor used some other type of threat or coercion too.  As I said, every case is unique and it can be a combination of factors.

The prosecutor has the legal duty and responsibility to evaluate each one to see if it merits prosecution… though, it is never favorable to be at a prosecutor’s mercy when lifetime sex offender registration is on the line.

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

 

 

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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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