Five Keys to Defending Assault/ Family Violence Cases

May 1, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Police and prosecutors have built a machine to combat domestic violence.  Their intentions are noble yet often misguided and built on false assumptions and one-size fits all narratives.

Family assault cases are one of the most common cases our office handles.  Every one of them is unique but the more and more we focus on them, the better able we are to know the focal points needed for success.

  1.  “No Compromise” attitude.

The fact is in domestic violence cases, the harder you work and the less willing you are to compromise — the luckier you’ll be.  In family assault cases the prosecution’s case tends to deteriorate when pressed.  This doesn’t mean I have to be a jerk to the prosecution — in fact, quite the opposite.  I want to be able to offer them a way out – but on my terms.  If they don’t want out, then we have to be ready to hammer them at trial.  A lawyer’s attitude in these cases is the single most important key to defending these cases.

2.  Legal (And not Emotional) Analysis of the State’s Case.

The law surrounding domestic violence and assault cases is complex and intricate.  There are enough cases analyzing the Sixth Amendment to the US Constitution’s confrontation clause to fill an entire law school course.  There are also multiple defenses to assault which might often apply in any given fact scenario – and your lawyer must also understand in what circumstances the Judge would legally be required to instruct a jury as to those defenses.

Legal analysis is critical because often we know well before the case goes to court the prosecution can’t or is unlikely to win.  This gives us the power and leverage to dictate our terms to the State.

One of the main reasons our system provides for lawyers is so we can effectively divorce our legal problems from our emotional ones.  By that, I mean these cases require a cold-dispassionate analysis.  Just because you might “feel” like you should be at fault doesn’t mean the law says this.

3.  Aggressive Factual Investigation

In spousal abuse allegations your lawyer can’t be afraid of the facts.  As discussed above, the harder we work, typically the luckier we get.  One distinct advantage a criminal defense lawyer has over the prosecution in the vast majority of cases is we typically have a better road map.  We know their side of the story in the police report and they either don’t have our side of the story (because of the 5th Amendment right to remain silent) or they know our story but tune it out because they never think they’re wrong.  In any event, I feel like we always have a more “powerful flashlight” to find the aspects of the case we know will help us win.

Also, it is key to be aggressive particularly from the outset of the case.  Perspectives and accounts tend to change in these cases.  By capturing witness’ recollections early, a lawyer can capitalize on changing stories instead of being victimized by them.

4.  Knowing the Collateral Consequences of a Domestic Violence Charge

One of the reasons I think it is important to have an attitude of “no compromise” is because family assault cases can be so damaging in ways which aren’t obvious.  We call these “collateral consequences.”  Direct consequences would be things such as possible jail sentences (up to a year in Class A Misdemeanor assault cases or up to 10 years prison for cases where impeding breath is alleged), fines, and court costs.  Collateral consequences are issues such as loss of 2nd Amendment rights to possess firearms, your ability to adopt a child in the future, inability to hide your criminal record from the public and on and on.  In truth, even misdemeanor family violence charges can act like “mini-felonies” and there are abundant tripwires.

5.  Persistence

Many of my client’s want me to waive a magic wand and have the problem go away with the snap of my fingers.  It might work like that from time to time but usually not.  One of the keys to a good outcome in a domestic violence charge is knowing we have to be prepared for a “marathon” as compared to a “sprint.”  If we get lucky sooner — so much the better.  But we have to understand the “luck” is normally a function of hard work.

*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 for 2019.

 

 


Domestic Violence – Reciprocal or Unilateral?

October 2, 2019

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

texasdomesticviolencearrest

The overwhelming mentality in family assault prosecution is the violence is always unilateral.  That is, one spouse and one spouse alone is perpetually controlling, manipulative and ultimately physically abusive.  This is the theory of “the cycle of violence.”

I’ve handled hundreds of domestic assault cases and this just isn’t my experience.  The “cycle” is true some times but not nearly as often as most prosecutors believe.  Most cases involve reciprocal violence.

My experience is there is dysfunction which manifests itself by the couple communicating through violence and assaultive actions.  She throws a phone at him one day — he pushes her into a wall the next day.  She gets drunk and hits him with a fist – he punches back.  The person prosecuted might have been the perpetrator that day — but it doesn’t mean the entirety of the relationship circulates around that one person controlling, manipulating and battering the other.  They continually do it to one another.

“The Cycle of Violence”

The theory essentially makes domestic violence unilateral.  One side, and one side alone, is always to blame the for each and every instance of domestic violence — typically the man in a heterosexual relationship.  The theory goes he is controlling, often degrading, manipulative and physically abusive.  This is followed by a honeymoon period of sorrow and remorse but builds back into the explosive rage and violence.

The “Cycle” though, has many blindspots.  For instance there is no consideration of mental health issues or even for basic self defense situations.

The “cycle of violence” does have some of merit.  The problem is the degree of belief and trust some prosecutors put in this theory.  What prosecutors don’t know about a couple — they might fill in with conjecture often related to their “cycle” theory.

Here’s an example:  In a assault/ family violence case the complaining witness does not return the prosecutor’s phone calls.  Plugging in the generic ‘cycle of violence,’ many prosecutors assume the reason is because the batterer is in control of ‘victim,’ or that the ‘victim’ wants to help the batterer because she can’t stand up for him/herself.

Reciprocal Domestic Violence

Academic studies support my observations in my practice.  In one study, it shows reciprocal violence is far more common than unilateral — and that it is most commonly the female that is the aggressor.  The idea the male is typically the aggressor has been shown to be stereotypical and false.

Whether you believe spouses beating up one another is reciprocal or not — the truth is we simply don’t know and that all couples develop their own unique mini-culture.

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

 

 

 


What is Heasay?

December 21, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

This might be the first time I’ve blogged about a specific rule of evidence, but it’s a fun topic for me and I get asked about it quite a lot by clients so let’s talk about hearsay!

Hearsay is inadmissible in court and is defined by the Texas Rule of Evidence 801(d) as, “A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”  Hearsay is rooted in the Sixth Amendment to the U.S. Constitution which allows an accused the right of cross-examination of witnesses against them.

Not very clear?  No worries.  They only devote 3 weeks to the topic in law school trying to get you to understand that one sentence.  I’ll keep it simple though hearsay and it’s effects on admissibility are extraordinarily complex and often turn on multiple interdependent factors.

In it’s plainest terms — anytime a witness is on the witness stand and quotes someone (or something) else it’s probably going to be hearsay.  We consider it unfair because it’s impossible to discredit information sources which aren’t even in the courtroom.

Here’s an example:  

Police officer #1 is on the stand and says, “Defendant’s kind-elderly neighbor told me Defendant was the drunkest she ever saw any person in her life that night.

This is textbook hearsay and here’s what makes this statement extraordinarily unfair to the accused on trial — it’s impossible to cross examine the elderly-neighbor about the statement in front of a judge or jury.  Here’s how that cross examination would go:

Q:  Officer, Do you know if elderly-neighbor might have mistaken Defendant for Defendant’s brother or Defendant’s roomate?

A:  I don’t know.  She told me it was the Defendant.

Q:  Do you know if elderly-neighbor has good vision?

A:  I don’t know.

Q:  Do you know if elderly-neighbor has a history of accusing Defendant of things he didn’t do?

A:  I don’t know.

Q:  Do you know if elderly-neighbor was on medication herself that night which could impair her ability to see things far away?

A:  I don’t know.

See how unfair this is?  Cross examining the officer is like trying to get answers out of sheet-rock.  We don’t know (1) if the officer has embellished the statement from the elderly-neighbor; and (2) we’re entitled to have the jury judge the elderly-neighbor in person while she’s questioned under oath.  The jury can judge her mannerisms, her hesitation in answering questions, and simply her plain answers the officer can’t provide.  It’s the cornerstone of a fair trial.

Here’s a bit more complicated example:

Police officer is on the witness stand and says, “I didn’t see Defendant actually commit the crime, but he did look down when he denied it to me.  I’m very familiar through my training and experience with the study from Nevada which says people who look down when they deny things are always guilty.

Here the officer is quoting a book or study and not an actual person.  Under the hearsay definition of “statement,” it makes no difference.  It would still be impossible for the defendant to show the jury the “Nevada” study (which doesn’t exist — as far as I know anyway) is nonsense.

Q:  Who wrote the “Nevada” study?

A:  I forgot.  But I know they’re really good and we use it in our academy.  I just know the guys who did the study were right.

Q:  How was the study done?

A:  I don’t remember.

Q:  Hasn’t the study been discredited by virtually every expert in the field?

A:  I don’t know.

Q:  Didn’t your own academy quit using it 10 years ago?

A:  I don’t know.  I just know the “Nevada” study says your client is guilty.

See — we have the same problem as the first example.  A study like this would have to be accepted as authoritative by an expert in the field and then could be relayed to the jury.  Another difference is the Defense would be allowed to discredit the study by showing other inconsistent language from the same study.

Not All Quotes of Outside Sources are Hearsay

To be hearsay, the quote must try to prove “the truth of the matter asserted.”  This is where hearsay discussions get really confusing and complicated.  Normally if hearsay tends to cast the accused in a negative light (the main goal of the vast majority of criminal prosecutions), there’s a good chance it is being used for “the truth of the matter asserted.”

Admissions are Not Hearsay

One key exception to the hearsay rule are known as “admissions by a party opponent.”  This is to say anything a criminal defendant tells someone is admissible in court (absent Miranda violations).  Also any party in a civil lawsuit can be directly quoted as well.

Hearsay Exceptions

Texas Rule of Evidence 803 lists 24 exceptions to the Hearsay rule.  This means even though something might be hearsay — it is still admissible because of it’s inherent trustworthiness.  Examples could be vital statistic records, statements made under high duress, or records kept in the normal course of business.

Common Uses/ Abuses of the Hearsay Rule

Hearsay is a really hot topic in family assault cases as well as child abuse cases.

In family assault cases, it’s very common where the alleged victim spouse does not wish to testify in court.  In these instances it was common for prosecutors to try and prove their case through police who arrived on the scene and took statements from the accuser.  The policy would try to use the “excited utterance” exception for the policy to essentially testify on behalf of the victim.  The U.S. Supreme Court largely put an end to this practice in 2004 in Crawford v. Washington, 541 U.S. 36 (2004) because the Court concluded this practice (in many instances) violated the Sixth Amendment right to confront accusers.

In child abuse cases prosecutors and law enforcement’s main goal at trial is to corroborate a child victim’s outcry of sexual or physical abuse.  It’s common for prosecutors to call persons who the child may have told about the abuse in an attempt to repeat the story and infer the story must be true due to how the child made the outcry.

Texas does have an outcry rule which allows at least one adult originally told the allegations by the child to repeat what would otherwise be hearsay.  It has been a re-occuring struggle for the defense in these cases, however, to prevent the host of trained child advocates whose main function is therapy and treatment of the abuse — from coming and testifying in a very honed and polished manner against the accused though they are often the 3rd, 4th, or 5th person told about the abuse from the child.

*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 consult an attorney directly.  Communications sent through this forum are not confidential nor subject to the attorney/ client privilege.


Does The Alleged Victim in an Assault Case Need a Lawyer Too?

November 16, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

I get asked this question from time to time, so today I’ll try and answer it.

The short answer is maybe.  In virtually any assault case, the main evidence comes from the alleged victim who almost always gives a statement to police either at the scene of the arrest or at the police station.

Alleged victims are often later asked to give statement in subsequent proceedings whether it is in trial, statements to a prosecuting attorney, or by signing affidavits of non-prosecution requesting that charges be dropped.  Statements which are inconsistent with the original statement given to police can give rise to criminal liability to the victim.

Texas Penal Code 37.08 covers false reports to police officers and states in relevant part, “A person commits an offense if, with intent to deceive, he knowingly makes a false statement that is material to a criminal investigation and makes the statement to… (1)  a peace officer conducting the investigation; or (2)  any employee of a law enforcement agency that is authorized by the agency to conduct the investigation and that the actor knows is conducting the investigation.”

In a nutshell, it is possible that where an alleged victim makes a statement to law enforcement down the road in a case which reveals that they weren’t being truthful at any point of the case when dealing with police or with prosecutors… then the alleged victim themselves can have criminal exposure.

False reports to police officers are class b misdemeanors and carry a punishment of up to 180 days jail and a $2,000 fine.

Also, the attorney representing the accused in an assault cannot also give legal advice to the alleged victim.  This is because there is a very clear conflict of interest for the attorney who represents the accused’s best interests — and has no ethical or legal obligation to protect the alleged victims interests as well.

If you’re the alleged victim in an assault case or domestic violence case in Texas, you may want to seek legal counsel if you have any questions about your rights and representation if so needed.

*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 specific legal advice about any particular case or situation you should directly consult an attorney.


What is Aggravated Assault in Texas?

June 26, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Aggravated assault can happen one of two ways.  For either way, an assault must be committed pursuant to Tex.Pen.C 22.01 AND one of the following two circumstances must have occurred:

1.  the person causes serious bodily injury to another, including the person’s spouse; or

2.  uses or exhibits a deadly weapon during the commission of the assault.

“Serious bodily injury” is defined by Texas Penal Code Section 1.07(46) as, “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

Aggravated assault is a 2nd degree felony and carries with it a prison term of between 2 and 20 years in the Texas Department of Corrections and a fine not to exceed $10,000.

Aggravated assault can be a 1st degree felony where the accused utilizes a deadly weapon during the assault and causes bodily injury to a member of their family or someone they are in a dating relationship with.

Though there are obviously many factual variations of how an aggravated assault can take place, they usually occur when a normal assault under Penal Code 22.01(1) causes injury above and beyond ordinary bodily injury (hence rising to the level of serious bodily injury), or (2) is an instance where someone is threatened with immanent bodily injury (22.01(2)) — and a deadly weapon is used or exhibited when that person was threatened.

Another big issue in aggravated assault cases is often what constitutes a “deadly weapon.”  Under Texas Penal Code Section 1.07(17) as (A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

The first definition is somewhat clear as to what constitutes a deadly weapon, but the entire issue of an aggravated assault case often turns on the definition of subsection (B) above.  For example, a rock, candlestick, or any other object you can think of could be argued to qualify as a deadly weapon based on how it was being used at the time of the alleged assault.

In either event, an aggravated assault is an extremely serious charge and should never be taken lightly.  You should seek skilled legal representation.

*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 case you should consult with an attorney directly.