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.

The Importance of Trial Advocacy and Trial Skills

December 29, 2011

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

I don’t write much about trial advocacy because I think most people who happen across my blawg are probably more interested in other nuts & bolts legal topics.  Experience, comfort and skill in the courtroom is extremely important stuff, though.

I can safely say I spend more time honing my trial skills than any other type of other continuing education available.  This is in part because it fascinates me and, frankly, it’s my trade.  I like to think of myself like a basketball player who works every day after practice on nothing but free-throws, dribbling to the left, or shooting threes.

On my bookshelf you’ll find books about jury psychology, cross-examination, and persuasive rhetoric.  I devour jury studies, psychological studies, and other data which I feel help give me an edge in trial.

Trial is the fascinating competition between two (or more) parties trying to re-create an event in the most persuasive way possible.  Preparing for any trial is like composing a tune or in some cases — a symphony.  There are many small components which have to neatly and seamlessly fit together all aimed at not only telling the more persuasive story, but convincing a judge or jury to be motivated to act on your cause.

In all my trial work and through all my experience I have come to one conclusion about successful trial work:

The will to win is the will to prepare.  The harder I work, the luckier I get.

Television and the movies make us think there are a handful of gifted mouthpieces that can magically show up and enchant a jury regardless of the facts.  The most talented actor in the world can’t prepare for a few hours then take the lead in a broadway show.  The most gifted athlete can’t sit on the sofa all week then lead his team to a playoff win.  Why would it be any different for a lawyer born with the gift of gab taking on a trial with little or no preparation where the results truly matter?

Trial advocacy is extremely important in criminal defense.  It never ceases to amaze me how creative and talented many of my colleagues are at trying cases.  At the same time, I’ve watched many trials on the sidelines watching through my fingers at how badly the lawyers have prepared.

Do yourself a favor when you are picking a lawyer for your criminal case — ask them how often they try cases, ask them how much they study trial advocacy, and ask them what they do to prepare for trial.

The answers should be extremely revealing.

*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 advice about any situation you should always contact an attorney.  Contacting the attorney through this forum does not create an attorney-client relationship.  Communications sent through this forum are not confidential.

 

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Posted by Jeremy Rosenthal, Esq.

5 Reasons Not to Testify in Your Own Defense

October 1, 2011

By Collin County Criminal Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

The U.S. Constitution and Texas Code of Criminal Procedure 38.08 guarantee a person on trial the right to testify in their own defense.  38.08 reads, “Any defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause.”

The vast majority of experienced criminal defense lawyers will advise their clients against testifying in the vast majority of cases.  There are many reasons why defense lawyers think this way and here are just some:

1.  It is virtually impossible to convince someone you are innocent of a crime.

We assume that people listening to us are open minded and can be persuaded with our honest nature and straight-forward approach — but like most assumptions, it’s wrong much of the time.  Our founding father’s knew a lot about human nature and our natural rush to judge people.  They knew that people rarely believe someone that claims they are innocent, so why even bother with the charade?  It only endangers the citizens more to have a star chamber system of government.  Putting the burden of proof on the government and forcing them to prove their case is simply the fairest way to have a trial.

2.  There is no “right way” to behave when you’re testifying.

Obviously you should be yourself when if you are testifying, but you have to consider the audience.  In act 3, scene 2 of Hamlet, Queen Gertrude says about someone professing their innocence, “…The lady doth protest too much, methinks.”  This just means that if you assert your innocence very aggressively — people think you’re lying.  And here’s more bad news… if your voice shakes when you testify — people also could think you’re lying.  People an also think you’re lying if you make too much eye contact, make too little eye contact, look at the floor, look at the judge, look at someone in the audience, look at your lawyer, look at the alleged victim (if any) and on and on and on.  The bottom line is that professing your innocence can work — but it’s usually a lose-lose situation.  Psychologists teach us that not even the best law enforcement personnel around can detect lies by looking at someone’s facial expressions.  Jurors are even worse!  What one person was raised to believe is a truthful expression is a lie to someone else — and vice versa.

3.  Prosecutors have a built-in cross examination advantage.

They can accuse you of lying on the witness stand to beat the rap!  Not only that, but prosecutors know what they’re doing and can ask “do you still beat your wife” questions to which there is no right answer.  You shift the burden from the prosecutor to yourself and the jury is no longer weighing the merit’s of the state’s case — they’re evaluating you.  Testifying in your own defense can be an all or nothing gamble.

4.  Juries Really Don’t Hold it Against You.

Juries are actually very good at not holding it against you if you don’t testify.  Most courthouses have videos they show the juries which discuss someone’s right to remain silent before they get into the courtroom.  Then the trial judge normally goes over the right not to testify.  Then most prosecutors go over the right not to testify for no other reason than they want to seem fair.  Then your lawyer gets to go over your right not to testify during jury selection and disqualify anyone that demands to hear your side of the story.  Jurors have this singular point drilled into their skulls all day and all week long.  My experience after trials when visiting with jurors is that they’re actually quite good at compartmentalizing and ignoring the Defendant if they didn’t testify.

5.  To limit damaging testimony.

You always have to testify honestly and no lawyer should ever tell you otherwise nor would any good lawyer imply that it’s OK for you to bend the truth.  If the truth is that you’re guilty then you obviously shouldn’t testify and it’s a wiser strategy to force the prosecution to prove your guilt beyond all reasonable doubt.  Also, if you have difficult facts to explain or some things in your history would look bad to a jury — then staying off the witness stand may be a good idea as well depending on your case.

When You Should Testify

When your lawyer tells you!  If I advise a client to testify, it is normally because there is some piece of evidence which is important to our theory which I cannot get before the jury any other way than through my client.  Also, many affirmative defenses are very difficult to legally raise with out testifying on your own behalf.

Listen to your lawyer’s advice with regards to testifying in your own defense.  They will clearly have a good understanding of the facts in your case and the experience to know whether it’s the right choice.

*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 post does not constitute a privileged communication and an attorney-client relationship is not established by any such communication.

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Posted by Jeremy Rosenthal, Esq.

Weak Judges vs. Strong Judges

November 3, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

The trial judge calls many of the crucial balls and strikes at trial including on which jurors are chosen to sit on the panel, what evidence the jury may hear, what arguments the lawyers may make, whether the case even makes it to the jury, and what formal instructions are given to the jury.  While some judges see their role as a referee on the sideline — for better or worse — they play a far more important role.

If the Judge makes mistakes in their rulings — those can be appealed.  Here’s why that’s not as easy as it sounds; (1) appeal can be extremely expensive if you don’t qualify as indigent; (2) the appeals courts rarely over-turn what happens in the trial court and often label the trial judge’s mistakes as “harmless error;” and (3) appeal takes a long time which means if you’re convicted at the trial court you may be serving probation or be sitting in jail waiting for the appeals court to look at the trial judge’s mistake (though you may be able to post an appeal bond).

For better or worse, I categorize Judges into two categories: weak and strong.  Weak judges guess at the law and try to make “safe” rulings which won’t get them appealed.  They often gravitate towards the prosecution because the feel safer ruling in their favor on close issues.

Strong judges know the law and aren’t afraid to disappoint the prosecution or the defense for that matter.  Because strong judges give more predictable rulings, their dockets tend to be more efficient as a whole.

*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 specific case or matter you should directly consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

Does the Fact I’ve Never Been In Trouble Before Mean Anything?

October 26, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

One of the most common questions that I am asked is whether the countless years or decades of a clean-record counts for anything at trial.  The good news is that it does but theres lots to consider.

Texas rule of evidence 404 is a rule which discusses when character evidence is relevant, what limitations are on the types of character evidence may be admitted, and when character evidence may be appropriate.

Generally evidence of “a persons” character is not admissible at all to prove conformity therewith on a particular occasion.  The exceptions, though, tend to swallow the rule.

Tex.R.Evid. 401(a)(1)(A) allows the defense to proffer character evidence of the accused in a criminal case.  The same rule allows the prosecution to attack that character evidence if the defense “opens the door” by injecting character as an issue.

Remember — there are two possible phases to a criminal trial.  Guilt/Innocence and punishment.  Character evidence is wide-open in the punishment part of a trial.  I’m really focusing this article on the trickier part — guilt/innocence.

From a trial lawyers standpoint — proving up good character in the guilt innocence phase is always trickier than it may seem.  Remember that courts only allow evidence through the formal rules which means that good character will almost always have to be proven through a live witness of some sort.  That witness will be subjected to cross-examination… and depending on the facts, your trial attorney will have to do a cost-benefit analysis of whether it is worthwhile to prove-up character in light of the potential cost.

Let’s take a DWI case for example.  Let’s say that a person who was out that evening with the accused would testify that the defendant always calls a taxi if they thought they had too much to drink.  But let’s also say that person drank so much on the night in question himself that he doesn’t remember how much the accused had to drink.  That witness may add value to the case through his positive testimony about the defendant’s traits — but could ultimately hurt the case over-all in light of what he would reveal on cross-examination.

These are they types of decisions experienced criminal defense lawyers, dwi lawyers and dui lawyers must make on a routine basis.

*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 you should directly consult an attorney about any legal issue.

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Posted by Jeremy Rosenthal, Esq.

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