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.

Why I Defend People

July 27, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Why do I defend people?

There are many reasons, I suppose.  I’m sure much of it is due to the way I was raised or my experiences with authority figures when I was growing up.  Either way, as with most people, I’m sure I’ll never fully understand exactly why I do what I do for a living.

Beyond that, though, there are several core values which I think I share with many other lawyers.

1.  Good People Can be Wrong

I fear the destruction decent people can do when they are blinded by the goodness of their work.  The more I see our criminal justice system in action, the more in awe I am of how the framers of the U.S. Constitution understood human nature.  They knew back then that government, law enforcement, and even the masses of citizens will ALWAYS seek more power in the name of safety, security and decency.  It was true back then and it’s true today.  And write it down… it will be true 200 years from now.

I realize it’s very easy to sound like the village idiot when discussing over-zealous prosecution.  But here’s the thing… decent people hurting others in the name of good comes in very subtle forms…

…like a rookie officer pretending to do a computer check while waiting for drug dogs to smell a teenagers car;

…a friendly reminder from the County Sheriff that you can enjoy your holiday weekend knowing officers are standing by to jam needles in the arms of the bad guys driving drunk;

…or a petty store loss prevention officer detaining and lecturing a manic depressed housewife for shoplifting for two hours before calling the police.

2.  Police Don’t have the Monopoly on Justice

I get to visit with juries on a frequent basis and show them that the prosecution and the police don’t have a monopoly on truth, fairness or justice.  Though I make a joke about it, we show citizens Superman and Batman don’t drink coffee with the police at Starbucks in between shifts rounding up bad guys.

We don’t live in a cartoon world where everything is black or white.  Just because the legislature says the punishment for a DWI is fair — doesn’t make it so.  I enjoy showing jurors the human side of the story to allow them to judge for themselves the right thing to do in each case.

3.  It Makes Law Enforcement Better

You read that right.

Everyone in America gets their paper graded.  Everyone.  Juries and Judges with the help of criminal defense Lawyers grade the police papers’ by throwing out cases where they have over-reached, done a sloppy job, or been flat wrong.  Law Enforcement officers will tell you that they can be trusted to manage their own performance, but again, the “trust-me” system of checks and balances is more for places like North Korea.

When a police officer gets caught exaggerating clues in front of a jury or has their arrest thrown out by a Judge because they took a shortcut, it honestly makes them a better officer whether they’ll admit that or not.

4.  It’s a Hard Job and it Takes Courage

Being a criminal defense lawyer isn’t for everyone.  You have to have the courage to stand in front of 70 complete strangers who can’t understand why the person next to you should even deserve a lawyer… or how any lawyer would even undertake to defend such a person.

Not only do you have to have the courage to confront this situation… you have to have the confidence, experience and preparation to fight — and win — trials that begin this way.

I’m not suggesting being a prosecuting attorney is easy or less honorable because it certainly is not.  But it’s a lot easier to stand on the star in the middle of Cowboy’s Stadium and scream “Go Cowboys” than it is to yell, “You’ve got it all wrong!”

5.  I’m a contrarian.

I just am.

*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.

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Governor Perry Vetoes Texting While Driving Ban

June 19, 2011

By Dallas and Collin Count Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

The Texas legislature recently passed House Bill 242 which made texting while driving illegal in Texas.  It would have made violations a Class C misdemeanor, which is the lowest offense level – equivalent to speeding.

On June 17, 2011, Governor Perry vetoed the bill saying the bill was “a government effort to micromanage the behavior of adults.”  He did state texting while driving was “reckless and irresponsible.”

Study after study has shown texting while driving to be as or more dangerous than drunk driving.

*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 directly.

 

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Cleaning Up Your Criminal Record 101

April 9, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

There are several steps I take when trying to help someone clean-up their criminal record.

The first and most important question is what are we dealing with?  Your lawyer needs to know (1) the charges brought against you and (2) what the outcome of those charges.

This is where the analysis gets a bit tricky.

Virtually any Texas case that resulted in a final conviction will be very difficult to work with.  There are always remote possibilities of continuing appeals or perhaps even a pardon, but those are another topic for another day.  Really, if your previous case resulted in a final conviction — regardless of classification, there simply aren’t many ways to mitigate your record that isn’t a long-shot.

Many cases where someone has successfully completed deferred adjudication for a class b misdemeanor or above may result in what is known as a non-disclosure.  A non-disclosure, in a nutshell, is a sealing of your criminal record so that only law enforcement and governmental entities are privy to your record.  Non-disclosures are discretionary which means that it is up to the Judge to say yes or no.  Also, a person is not eligible for a non-disclosure for 2 years after they are off of deferred in a misdemeanor, or 5 years for a felony.  Additionally, the legislature has cherry-picked certain offenses as not being eligible for non-diclsosures even where deferred is successfully completed.  The best example is where the court enters an affirmative finding of family violence.

And then there are expunctions which, frankly, is the goal in every criminal case.  An expunction under Texas Code of Criminal Procedure Chapter 55 is a complete destruction of your arrest record.  You can read about expunctions in the link I provided, but generally speaking, an expunction is typically available when the State is legally barred from prosecuting you for whatever reason.  The main reason is generally an acquittal (which creates a double-jeopardy bar).  Also, as you can see in the statute, most class c misdemeanors allow for expunctions upon successfully completing deferred adjudication and the Statute of limitation expiring.

*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.

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Grand Jury Notice Letters From the District Attorney’s Office

February 2, 2011

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

If you have gotten a a letter notifying you of a grand jury date in Collin County, Texas, it means the District Attorney’s office is attempting to indict you for a felony.  You need a lawyer immediately.

A grand jury is a body of citizens appointed by a district judge who meet regularly to review whether there is sufficient evidence to issue a true bill of indictment for a felony offense.  An accused does not have the right to be present nor present a case to the grand jury.

Though you don’t have many rights when it comes to a grand jury proceeding, you do have a lot of legal strategy to consider.

How Your Lawyer Would Deal with the Grand Jury

Often times a person accused of a crime can submit a “grand jury packet.”  A grand jury packet is an informal summation of the Defendant’s arguments for the grand jurors to review not to indict.  Most packets include an an analysis of the applicable law, the defendants side of the case, and also other mitigating factors behind the incident being investigated.

On occasion, a grand jury will allow an accused to testify in their own defense when the accused volunteers to do so.

Many times, also, it may not make sense to submit a grand jury packet.  One advantage a criminal defendant has in our system is that they don’t have to divulge their defense to the prosecutor.  Depending on the particular facts, it may be wiser to not reveal your defense until the time of trial.  Knowing when a grand jury packet will work — and when it will backfire requires thorough and detailed professional analysis by an experienced and aggressive criminal defense attorney.

It is possible to turn the grand jury situation to your advantage as a criminal defendant.  this is because the theory behind the grand jury system is that it is actually a safeguard against over-zealous prosecution.  Think of it this way — a civil lawyer needs only a good faith belief to file a lawsuit for money.  A prosecutor needs probably cause to file a misdemeanor without a grand jury review.  Because a felony charge is so serious — it does require review and indictment by a separate panel.  That panel can — and will tell the prosecutors “no” from time to time.

*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 directly.

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