Watering Down the Burden of Proof

September 21, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

The burden of proof in a criminal case in Texas is “Proof beyond all reasonable doubt” of all the elements of an offense.

The courts in Texas used to reason that, “A ‘reasonable doubt’ is a doubt based on reason and common sense after a careful and impartial consideration of all the evidence in the case. It is the kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs.”  Geesa v. State, 820 S.W.2d 154 (Tex. 1991).

While this definition, like any other definition, wasn’t perfect — it was still very high and more importantly wasn’t subject to being manipulated consistently by prosecutors or criminal defense lawyers arguing their case.  The definition was open and shut.

In 2000, The Texas Court of Criminal Appeals changed it’s mind and ruled in Paulson v. State, 28 S.W.3d 570 (Tex. 2000), “We find that the better practice is to give no definition of reasonable doubt at all to the jury.”  Despite the fact there are legal definitions for other lesser burdens of proof in civil cases, family cases, and CPS cases, the Court reasons in criminal cases that, “It is ill-advised for us to require trial courts to provide the jury with a redundant, confusing, and logically-flawed definition…”

So today, despite the mountains of case-law, research, and scholarly articles that define proof beyond all reasonable doubt, Texas courts today routinely instruct juries that on the single most important burden in a criminal case that they can simply define proof beyond all reasonable doubt as they want.  Basically the jury can make up the rule as they go along.  Experience tells me that generally favors law enforcement.

And prosecutors have, over time, increasingly seized on this glaring weakness.  Maybe it’s just me, but I’ve noticed more and more that prosecutors are dedicating time in jury selection, opening argument and closing argument to lowering the burden of proof on themselves rather than focusing on the facts of the case.

Examples include showing unfinished puzzles to prospective jurors and suggesting that because they can still make-out an image even with the large missing pieces — that the unfinished puzzle represents proof beyond all reasonable doubt; or repeatedly dedicating time in opening and closing argument not to the evidence in the case — but to giving the jury their own theory of what “beyond a reasonable doubt” should mean (and it’s always an attempt to lower the burden).

Getting the jury to understand the significance of having a high burden of proof and de-bunking the State’s creative attempts at lowering the burden is the challenge of every criminal trial lawyer.  Experienced criminal defense lawyers do everything they can to make the state accept — not shirk — their burden of proof.

*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 matter you should consult an attorney directly.


Computer Crimes in Texas: Online Harassment

June 13, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Laws lag behind online crimes. Society gets outraged when stories come on the news about online bullying, for example, but the truth is that the legislature naturally plays catch-up to technology.

Who knew Facebook or Twitter would become as popular as they’ve become… Much less had the foresight to know how to keep people from victimizing one another just two or three years ago?

One recent step taken by Texas is the addition of Texas Penal Code Section 33.07 which criminalizes “online harassment.” That statute was passed several legislative sessions ago and it criminalizes the creation of an account on a social networking site that not only isn’t you — but is purportedly someone else (or their persona) and was created for the express purpose to harm, defraud, intimidate or threaten ANY person.

The punishment for such an offense would be a third degree felony (2-10 years TDC and/or a $10,000 fine). Similarly, it is a class A misdemeanor to send out a bogus email, text (or similar communication) purported to be from someone else that is intended to harm or defraud another person. (up to a year of county jail and/or a $4,000 fine).

The full impact of these particular Texas laws aren’t really fully understood. The main problem with criminal law as it relates to technology crimes is because the ways to commit crimes out-paces the solutions, prosecutors try to be “creative” with bending and stretching older laws that were never intended to apply to these newer problems. When prosecutors get “creative,” is when rights tend to get violated.

Computer crimes also have heavy overlapping issues with evidence rules, confession rules, and also search and seizure rules. The enactment of new codes (such as 33.07) is only the ‘tip of the iceberg’ for computer crime lawyers.

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 your own specific case, you should directly consult an attorney.


How Do I Plead Guilty to a Criminal Charge?

June 8, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

I hate advising clients to plead guilty.

Hate it!

Some tough-guy lawyers will never admit to advising clients to plead guilty but every criminal defense lawyer I know will admit to not only advising clients to accept a deal but begging or pleading with a client on occasion.  Often the facts are stacked against you or the down-side of taking a case to trial is just too scary for the client.

There is no real difference between a guilty plea and a no-contest plea in Texas, so I’m referring to both in this blawg.

A guilty plea is like a contract in Texas.  Both you and the prosecution sacrifice and gain something by way of agreement (you usually sacrifice a lot more).  You are waiving your rights to trial and all that comes with it… the right to prepare, the right to call witnesses, the right to cross examine… etc.  The State is waiving their “right” to seek a greater punishment and, they would argue, their “right” to a jury trial.  In return, you are getting a specific punishment (which may be deferred adjudication depending on your plea deal) and more importantly — you’re also eliminating variables of what may happen to you at trial.  The State benefits because they get a verdict without a trial.

The plea is subject to approval by the judge.  When you plead guilty, you legally empower the judge to (a) find you guilty and (b) sentence you anywhere within the punishment range.

A Texas judge can do one of three things with a plea.  He can accept it (the vast majority of pleas are accepted — I don’t have stats but I’d be willing to bet it’s 99.5% or even greater).  He can reject the plea, or he can accept the plea and modify terms an conditions of probation assuming the plea includes probation.

If the judge flat-out rejects the plea, then he must inform the defendant he’s rejecting the plea so the defendant can withdraw his plea an assert his right to a trial.  A judge rarely knows any specific fact of your case other than what you are charged with — like a DWI, marijuana case, drug possession with intent to distribute, and so on… and for this reason, the Judge is unlikely to tinker with a deal a lawyer and prosector have worked hard to make happen.

Whether to plead guilty or not guilty is a case-by-case analysis.  I advise clients to fight on certain cases for all sorts of reasons and I advise clients to plead guilty on occasion too — because that may be the best answer or because we’re getting a really good deal under the circumstances.

Your choice to plead guilty or not guilty is an extremely important one.  Don’t make the decision alone — have a licensed attorney experienced in the area of criminal law assist you.

*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 your specific situation you should consult an attorney.  This article does not create an attorney-client relationship.

 


The Attorney – Client Privilege

May 2, 2010

The attorney client privilege prevents an attorney from revealing confidential communications and other facts they have learned by reason of the attorney-client relationship.

For criminal cases in Texas, the attorney client privilege is controlled by Texas Rule of Evidence 503(b)(2) which is called the “special rule of privilege in criminal cases.”  That rule states, “in criminal cases, a client has a privilege to prevent the lawyer or lawyer’s representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship.”

A confidential communication is defined by the rules as a communication “… not intended to be disclosed to third persons…”  I put the words in bold above to highlight the fact that the criminal privilege is even broader than the privilege in civil cases.  This means that the lawyer cannot reveal any communication not intended to be disclosed to third persons nor any other fact which came to the knowledge of the lawyer by reason of the attorney client relationship.

Here’s what this means in English for Texas criminal cases:  virtually everything your lawyer knows about the case (assuming he learned it from you or by investigating your case) is privileged.  The lawyer cannot be compelled by law enforcement or even a judge to disclose confidential information.  If you take the Texas rule to it’s logical extreme — even the mere fact that you visited with an attorney could be considered privileged information!  This goes for situations where you’re actually charged with a crime or even just the subject of an investigation.

The attorney-client privilege is an extremely important and powerful privilege for the reason that without it — an individual may never confide in their attorney critical information needed for their defense.  People charged with crimes can and do still feel tepid at times revealing information to their attorney.  Whether that be for lack of trust or for mere embarrassment — the law does everything possible to facilitate communication between you and your attorney.

As with practically everything in the law — there are exceptions.  An attorney may not aid the furtherance of a crime or a fraud and communications regarding the same are not privileged.  Also an attorney has an affirmative duty to report the abuse or neglect of a child or to report a situation where someone may be in immanent danger.  As a general rule, if the facts or disclosure is about something that has happened in the past in a criminal case — then it will almost always be privileged.

The attorney – client privilege is at the cornerstone of the lawyer – client relationship and is one of the fundamentals of our criminal justice system.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*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 your case you should directly consult an attorney.


Mens Rea — The Guilty Mind

May 2, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Here is some legal theory or law school 101 if you will.

Something every first-year law student learns in criminal law is about the concept of “Mens Rea” which is latin for “guilty mind.”  When a guilty mind is combined with a “guilty act” (or actus reus), then under common law, a crime has been committed. Most, but not all, crimes today have a mens rea requirement.

For example, to prove the crime of theft the prosecution must show the guilty act of appropriation of property (actus reus) plus the intent of the taker to deprive the owner of the property without consent (mens rea).  An example of a crime where there is no mens rea is strict liability crime — like statutory rape or what is known as an inchoate crime which is a crime of omission — like failure to stop and render aid.  Inchoate crimes typically require a special relationship between the victim and the accused. Modern criminal law has even varied the levels of mens rea.

Crimes enacted by code in Texas and the U.S. Government can require greater or lesser mental states for offenses.  Some offenses such as Arson are called specific intent crimes — meaning that the actor had to specifically intend the result of the crime.  Other crimes have lesser mental states meaning that if a person committed an offense “knowingly” or even less, with “criminal negligence” then they are guilty.

An example of a crime in Texas where criminal negligence is sufficient to convict is selling alcohol to  a minor.  In that type of a case, the actual intent of the defendant need not be proven as long as the jury believes the defendant acted with “criminal negligence.” The charging instrument (an information in a misdemeanor case or an indictment in a felony) will detail which of the mental states is being alleged.

Any and every criminal defense lawyer should read the charging instrument in your criminal case.  If the state proves the greater mental state then they have, as a matter of law, proved the lesser.

Discussing legal theory is like pulling the loose end of a sweater.  We could discuss this topic all day and all night.  If you’re interested in more discussion, you can read more here or here.

*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 your case you should consult an attorney.