Scientific Evidence of False Memories

July 26, 2013

By Collin County Criminal Defense Attorney Jeremy Rosenthal

www.thecollincountylawyer.com

(972) 369-0577

The New York Times published this article talking about how scientists have been able to create false memories in mice.

Eyewitness testimony has been extremely problematic in criminal cases.  Not only are human’s imperfect in their ability to recollect specific facts and incidents — the problem is compounded because people can convey their poor recollections in a persuasive manner.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any situation, you should contact an attorney directly.


Can I Recant a Police Statement?

June 20, 2012

By Collin County Criminal Defense Attorney Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Generally speaking a statement made to police in the course of an investigation can be considered by the police, a judge, or a jury for it’s full meaning.  Recanting the statement might call the original statement into question… then again it might not.

Who Made the Statement?

Statements of the Accused

Important in the analysis is who made the statement, what role that person plays in the proceedings, and the timing of the statement or statements.

A statement by an accused is referred to as an admission by a party opponent under Tex.R.Evid. 801(e)(2).  If the statement is relevant to a jury then it’s fully admissible.  The person or person(s) the statement was made to can testify to what was said by the accused or can have a written statement admitted.

Practically speaking, an accused and his or her lawyer would have to explain their reason for recanting such a statement although the burden of proof never shifts to the defendant under any circumstance.  Many judges and jurors would be naturally skeptical — and police tend to believe statements which fit their theory of the case.

Witness Statements

A statement by a witness or an alleged victim is a different and far more complicated matter.  The defendant in a case has the right to confront accusers in open court.  A witness who gives inconsistent statements to police — or attempts to recant a previous statement to police could be impeached or cross examined on the inconsistent statements before a judge or jury.

Suppressions of Statements

An accused’s remedy to have a prior statement nullified is usually a motion to suppress.  This would be in a situation where the original statement was taken illegally in violation of Miranda rights (or in Texas known as Tex.Code.Crim.P. Art. 38.22).  Those provisions do not apply to statements made prior to custodial interrogation (arrest).

Warnings about Inconsistent, Changed, or Recanted Statements to Law Enforcement

Depending on the situation — a person might not have a duty to cooperate with law enforcement.  An accused person, for example, always has the right to remain silent.  If you are cooperating with law enforcement, however, you have the legal duty to do so honestly.  Making inconsistent statements or admitting that previous statements were false could result in a person being prosecuted for criminal offenses of making false statements to law enforcement, obstruction of justice, or even perjury in some circumstances.

If you’re in the situation where you are considering in good faith recanting or amending a statement to law enforcement — you should have an attorney involved to counsel you.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about this or any circumstance you should contact an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship nor are communications or postings in this forum privileged.


Official Oppression

June 9, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Texas Penal Code Chapter 39.03 governs official opression which occurs when a public servant acting under the color of office:

“(1)  intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;

(2)  intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or

(3)  intentionally subjects another to sexual harassment.

(b)  For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity.”

Official oppression is a Class A misdemeanor punishable up to a $4,000 fine and/or one year of county jail.

Generally speaking this statute keeps public officials accountable in the event they misuse their office.  The difficult part in proving this offense would be to show that the public official knew their conduct to be illegal.  Ignorance of the law is no excuse but having a good faith belief that what you are doing is legal is a different matter.  Official acts of police, judges and prosecutors are given extremely broad leeway so they do carry out their public duties in constant fear of being prosecuted themselves.  The law is subjective and as long as an official has some sort of good-faith belief in the legality of their actions, it would be extremely difficult to prove official oppression.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice for any situation you should contact an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship and communications with regard to this blog are not confidential.


How Double Jeopardy Works

March 4, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Double jeopardy comes from the 5th Amendment to the U.S. Constitution which holds in part, “…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb…”

Double jeopardy can be an extremely complex topic.  The easiest way to think about it is once you are acquitted of a charge, you can’t be prosecuted for the same charge again. The prosecutors who represent the government are like anyone else before the Judge.  They get their day in court — but they don’t get it again and again and again until they win.

What makes the issue so confusing at times are the different concepts behind what constitutes an acquittal for example.  The prosecution may dismiss a case but if they do so before jeopardy is said to “attach” in a particular case (typically when a jury is sworn — or in a trial before a judge — when the trial begins), the prosecution can simply refile the case if they are within their limitations period.

Also many factual circumstances could lend themselves to prosecutions of different offenses.  Crimes have statutory elements which must be proven by the prosecution.  The elements for one crime might be completely different from another crime which arose from the same situation.  Merely because someone was prosecuted and acquitted of one charge doesn’t mean the other charge can’t then be pursued by the state.  Whether subsequent prosecution is precluded by double jeopardy might depend on the over-lapping nature of the elements of given charges.

The vast majority of times double jeopardy issues are simple.  If someone is found not guilty for driving while intoxicated, marijuana possession or assault then virtually always the case is closed.  On occasion double jeopardy issues can arise, though.  When they do it’s best to speak with a lawyer about what the State may or may no do to pursue a particular case.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas and is Board Certified in Criminal Law.  Nothing in this article is intended to be legal advice.  For legal advice on any issue you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client relationship.  Communications sent through this blog are not considered privileged or confidential.


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

www.rosenthalwadas.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 F. Rosenthal is an attorney licensed to practice in the State 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.