How Prosecutors Turn Evidence of Innocence into Evidence of Guilt

October 4, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Prosecuting lawyers (like any lawyers) are in the business of selling their case to the jury.  To do that, they try to combine the facts of their case with a certain degree of spin or rhetoric to persuade a jury that they have proven their case.

Some of the prosecuting lawyer’s rhetoric, though, is solely designed at spinning evidence of innocence into evidence of guilt — or at the very least making evidence of innocence a ‘jump ball’ as to whether it proves guilt or innocence.

In defense of prosecuting lawyers — I don’t think they fully appreciate exactly what they’re doing.  First of all prosecutors are like any other professional group.  They train, discuss tactics, and share ideas and techniques they find useful.  Unfortunately some also make the thinking error that innocent people don’t get arrested or prosecuted.  When you combine those factors, you get arguments like the ones I’m describing in today’s blog.

Here are some common arguments I hear:

In drunk driving cases:

“Ladies and gentlemen… this defendant doesn’t look bad doing the field sobriety tests, but he’s the type of drunk we need to fear the most because he’s the type of drunk that can find his keys…”

“Drunk drivers can look like anyone.  They don’t look like normal criminals…”

“This drunk driver doesn’t seem too bad on the video because alcoholics know how to mask symptoms of intoxication…”

In Crimes Against People (such as robbery, assault or sexual assault)

“Of course we don’t have much evidence… The defendant is very skilled at choosing the time and place so there won’t be evidence or witnesses…”

“It’s very common for victims to retract their accusations.  They’ve been psychologically traumatized by the defendant…”

“What makes this defendant so dangerous is that he looks like a normal, everyday person…”

Here’s Why I Find these Arguments Distressing:

All of these arguments can be summed up this way “if we have evidence against you, then you’re guilty… and if we don’t have evidence against you… you’re still guilty.”

You can make these arguments about ANYONE sitting in the defendant’s chair in any case regardless of the evidence.  What is worse is that each statement probably does have a nugget of truth from the prosecutor’s perspective and is thus somewhat believable by a jury.  An experienced criminal defense trial lawyer must call the prosecutor out on these types of arguments and expose them for what they are.  Great ways to convict the poor schmo in the defendant’s chair regardless of whether they may be innocent.

Combating these Tactics

Jurors have to be told that, while yes, a person that looks decent on tape but still may be drunk is extremely dangerous — a person that looks good on tape may just be okay to drive too….

…Or that yes, a skilled criminal doesn’t leave much of a trace of a crime — but another reason there are no traces at the crime scene is that the accused might just be innocent…

…Or that yes, an alleged victim may retract an accusation because of stress or coercion — but they might also retract their accusation because it wasn’t true to begin with.

*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 contact an attorney directly.  Contacting the attorney through this forum is not a privileged communication nor does it create an attorney-client relationship.

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Theft of Service

January 23, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Theft of service is a criminal charge where the alleged victim accuses someone of stealing services instead of actual property.  An example may include where someone hires a contractor to build something that he never intends to pay for.  Also, it is a law used by rental companies to charge people with theft if they don’t return the rented property.  It is controlled by Texas Penal Code 31.04(a) and says in relevant part:

“A person commits theft of service if, with intent to avoid payment for service that he knows is provided only for compensation:

“(1)  he intentionally or knowingly secures performance of the service by deception, threat, or false token;

“(2)  having control over the disposition of services of another to which he is not entitled, he intentionally or knowingly diverts the other’s services to his own benefit or to the benefit of another not entitled to them;

“(3)  having control of personal property under a written rental agreement, he holds the property beyond the expiration of the rental period without the effective consent of the owner of the property, thereby depriving the owner of the property of its use in further rentals; or

“(4)  he intentionally or knowingly secures the performance of the service by agreeing to provide compensation and, after the service is rendered, fails to make payment after receiving notice demanding payment.

The punishment levels for theft of service are the same as for normal theft charges.  This is to say that the level of offense is governed by the dollar amount alleged to have been stolen.

Theft of service is generally much harder to prove than a normal theft charge.  This is because there often isn’t a clear distinction between a bad business deal and fraud.  The key is the “intent” element.  The state must prove beyond all reasonable doubt that the accused planned to steal the services all along.  This can be extremely difficult because often the motive for someone not paying a bill lacks criminal culpability.

The second part of the statute in 31.04 creates presumptions that the court can use to instruct the jury that a person is presumed to have stolen in certain circumstances.  An example of this is where an accused fails to make payment within 10 days of receiving notice from the victim to make payment.  The presumption, though, is rebuttable and the jury does not have to accept it as true.

Theft of service — like theft — is a very serious charge.  Though to criminalize a deal gone bad may seem easy to deal with — you should get a lawyer regardless!

*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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Posted by Jeremy Rosenthal, Esq.

Weak Judges vs. Strong Judges

November 3, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

The trial judge calls many of the crucial balls and strikes at trial including on which jurors are chosen to sit on the panel, what evidence the jury may hear, what arguments the lawyers may make, whether the case even makes it to the jury, and what formal instructions are given to the jury.  While some judges see their role as a referee on the sideline — for better or worse — they play a far more important role.

If the Judge makes mistakes in their rulings — those can be appealed.  Here’s why that’s not as easy as it sounds; (1) appeal can be extremely expensive if you don’t qualify as indigent; (2) the appeals courts rarely over-turn what happens in the trial court and often label the trial judge’s mistakes as “harmless error;” and (3) appeal takes a long time which means if you’re convicted at the trial court you may be serving probation or be sitting in jail waiting for the appeals court to look at the trial judge’s mistake (though you may be able to post an appeal bond).

For better or worse, I categorize Judges into two categories: weak and strong.  Weak judges guess at the law and try to make “safe” rulings which won’t get them appealed.  They often gravitate towards the prosecution because the feel safer ruling in their favor on close issues.

Strong judges know the law and aren’t afraid to disappoint the prosecution or the defense for that matter.  Because strong judges give more predictable rulings, their dockets tend to be more efficient as a whole.

*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 case or matter you should directly consult an attorney.

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Posted by Jeremy Rosenthal, Esq.