Police and Confirmation Bias

April 27, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Confirmation bias is a psychological phenomenon whereby people have a tendency to selectively prefer information which confirms their pre-existing beliefs and hypotheses.

Why is this important in criminal law?  Because every case involves investigation in one way or another.  Police officers can and do fall into the confirmation bias trap.

Textbook signs of confirmation bias include ignoring evidence that contradicts the initial impression of the officer and interpreting neutral facts or exculpatory facts as evidence of guilt among others.

Psychologists have conducted studies on confirmation bias.  In one study, test subjects were given fake police files which weakly incriminated a particular suspect.  Later evidence showed that perhaps a second suspect was the culprit and that the original information was false.  Not surprisingly, the subjects fell into several confirmation bias traps.  They rejected evidence inconsistent with the innocence of the original suspect, they viewed neutral or ambiguous evidence as evidence of the original suspect’s guilt, and finally the suspects ignored evidence pointing to the guilt of the second suspect in favor of evidence against the first suspect.

I see confirmation bias all the time from law enforcement during investigations.  You can tell when it’s going on in certain opinion-oriented cases such as DWI when you read an offense report which omits or wholly ignores evidence that contradicts the officer’s findings.  Often times police will take neutral facts (like where they describe a person as ‘nervous’ at a traffic stop) and attempt to spin that into evidence of guilt.  Obviously that is non-sense as many people are nervous when confronted by authority figures like a police officer in uniform — not just criminals.

Dealing with confirmation bias takes a skilled trial lawyer.  Jurors must be educated during jury selection about confirmation bias and be show the practical example of confirmation bias in action when the officer holds firm to his opinion despite all the contrary evidence.

*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 for your own matter you should contact an attorney.

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Posted by Jeremy Rosenthal, Esq.

Texas Grand Jury FAQ’s

April 2, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

What is a Grand Jury:

A Grand Jury is a panel that decides whether a felony should be indicted or not.  The DA’s office can file misdemeanors on their own, however, to file felony charges a grand jury must agree there is probable cause.

Grand jury meetings are secretive and confidential.  The public has no access to their deliberations.  Typically they deliberate matters brought before them by the District Attorneys office.  Here is a link to some technical and historical information about Texas grand juries.

Grand Jury Findings

Grand juries can do several things with cases they hear.  They can issue a true bill which equals a felony indictment or they can issue a no-bill turning the case down.  Occasionally they will charge a person with a misdemeanor instead of a felony through indictment.  After a true bill is issued, the case gets assigned to a court and proceeds normally.

Criminal Defendant’s Rights During Grand Jury Proceedings

If you really think about it… having a grand jury as a hurdle for the prosecution in and of itself is the only real right you have in this process (in theory anyway).

A criminal defendant does not have the right to testify at the grand jury nor does your attorney have the right to be present.  Because the proceedings are secretive the transcript, if any, is not available.  You can’t even watch.

What Can I Do If I’m Under Grand Jury Investigation of if I Get a Grand Jury Letter?

Call an attorney.  The prosecutors have discretion to allow your attorney to submit a packet of information to a grand jury to attempt to dissuade them from indictment.  Also the prosecutor can agree to allow you to testify before the grand jury — but not in the presence of your attorney.  On many cases, prosecutors have incentive to negotiate with you prior to your case going to grand jury.  As a policy, Collin County DA’s office will not negotiate with people at the grand jury phase that are unrepresented by counsel.  This may seem like a frustrating policy — but frankly it’s for your own protection.  Grand jury situations are very complicated and the ramifications are very serious if mismanaged.

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 you should consult an attorney. 

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You Don’t Have to Prove You Are Innocent — It’s Probably Impossible Anyway!

March 4, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

One of the most common misconceptions in criminal law is people’s confusion about the difference between proving innocence and casting doubt.  It’s an understandable mistake because after all — we’re all programmed since birth to hear ‘both sides of the story.’

In our system of justice — you are under absolutely no burden whatsoever to prove you are innocent.  The prosecution must prove you’re guilty beyond all reasonable doubt.  If they can’t, then you’re entitled to acquittal.

This is because another way of saying a person has a reasonable doubt is there is a reasonable chance the person is innocent too.  So you can see the huge difference in demonstrating how innocence is a reasonable possibility and actually convincing jurors a person is innocent.

When I had jury duty in Collin County they even showed us a video where an actor said, “we had to find the person innocent” which, to me, sounds like someone scratching a chalkboard… they really had to find the person was ‘not guilty.’  and there is a huge difference.

There is really no other fair way to have a criminal trial if you really think about it.

During jury selection, I’ll often ask a panel member how they would prove to me that they didn’t break a traffic law — say speeding or running a red light — on their way to court.  Most say that they could swear to it.  But then they draw a blank about how they would actually prove their innocence with hard evidence and not just their word.  The truth is that they could never prove their innocence unless there was some sort of camera following them on their entire trip which is silly to even think about.  In fact, the harder they tried to somehow unsuccessfully prove their innocence — the guiltier they would look!

Think about all the people being let go after years and years of prison due to exoneration.  Those are cases where there is DNA evidence — and DNA evidence is not commonly used in DWI cases, theft cases, or drug possession cases.  It’s not always even available in murder or sexual assault cases!

If you’ve been charged in Dallas or Collin County you shouldn’t worry about whether you can prove that you’re innocent.  I’ll save you the time and trouble — there is a great possibility that you can’t – and you don’t have to anyway.  Focus on getting a criminal defense lawyer that can use the evidence available to cast doubt on the prosecution and state’s conclusions.

*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 should be considered legal advice.  For legal advice you should consult directly with an attorney.

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Posted by Jeremy Rosenthal, Esq.

If I Am Guilty, Then I Have to Plead Guilty, Right?

March 2, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Wrong, wrong, wrong!

People say this to me all the time.  I honestly admire them when they do.  But here’s the thing — you have a right straight from our Constitution to plead not guilty and force the state to prove your guilty beyond all reasonable doubt.  If they can’t you are entitled to acquittal regardless of what you did or didn’t do.  People who have a problem with that also have a problem with Thomas Jefferson, John Adams, and our other founding fathers.

Here is the flaw in the “I have to plead guilty” attitude:  Just because you’re being remorseful doesn’t mean the law and the prosecutor will be fair.  The State of Texas doesn’t have a phone line to the almighty so they can together decide what is and is not justice (regardless of the attitude of many of their prosecutors and policemen).

Take a DWI arrest in Collin County for example.  The person is taken to jail which is like a punch in their gut.  They have an embarrassing scene on the roadside, and then they have friends or loved ones help them get out which is also humbling.  For many, that experience alone may be punishment enough.

The state takes the position that you need to be branded with this forever and they’ve put a price tag on it designed to be as nasty a hardship on your wallet as they can possibly inflict.  Not only that, some politician down in the polls 15 or 20 years from now may decide to re-punish you with additional red-tape to prove they are “tough on DWI”  (and yes, there have been laws passed this last decade which affect the rights of those convicted in the past).

Also don’t forget you don’t have to prove your innocence at trial.  Even if you are guilty, the state often can’t prove it or they make a legal mistake entitling you to acquittal.  That is their fault and not yours.  Again, you’ve done nothing shameful or dishonest by pleading not guilty.

Merely because a prosecutor or policeman says pleading guilty equals justice doesn’t make it so.

*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 please directly consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

How the Police Take Your Blood Without Your Consent

February 26, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Courts allow police to apply for search warrants for mandatory blood draws.

A warrant, in theory, is a precise legal document which explains to the judge or magistrate reviewing the warrant why the police believe it’s likely evidence of blood over 0.08 will be present in your system.  In practice, however, police utilize one-size fits all warrants with boilerplate language.

A recent U.S. Supreme Court Opinion, Missouri v. McNeely, has in all likelihood invalidated Texas law which allowed for warrantless blood draws on felony DWI arrests.  Thus, the only way a blood draw without consent can be done is through a warrant.  In McNeely, the courts held the process for applying for blood warrants has become so simplified that only if there is exigent circumstances may an officer proceed without a warrant.

Books have been written about search warrants so I can’t cover them all here — but as with many things in the law, it’s complicated.

With a DWI blood warrant, the judge allows the police to draw your blood.  If you are in that situation, then you must comply with the officer’s instructions.  Your remedy is to fight the search in court later.

There are all sorts of legal problems with DWI blood warrants in Dallas and Collin County.  Arguments can be made the the practice breaks or comes close to breaking several other statutes and laws.

The Texas Transportation Code Section 724.103 states, “…a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.”  This language can be argued to be in conflict with the search warrant statute.

Texas Code of Criminal Procedure 14.06 suggests that when someone is arrested, the officer shall take the person arrested before a magistrate “without unnecessary delay.”  Where the police hold someone while they take 30 minutes or an hour to get a search warrant, it can be argued they violate this provision too.

Blood warrants and draws are a complicated area of the law.  It takes a detail oriented lawyer to be able to analyze the medical and legal issues behind proper blood draws and the underlying science.

*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, please consult an attorney.

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