Evidence Of Good Character In Criminal Cases

August 24, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

We all want to think that our good deeds and honest lifestyle for years or decades should count for something. Often I’m asked by people that have never been in trouble if the judge or jury will be able to know they’re good people.

There are ways and rules which permit you to interject good character to the judge or jury in trial. During plea negotiation, your lawyer can always try to persuade the prosecutor by pointing to a good record or a record of recovery.

Texas Rule of Evidence 404 controls character evidence for the accused in trial. An accused can put “character into question,” but there are some limitations. First is that all evidence must be relevant under TRE 401. “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Evidence of volunteer work with the elderly, then, might not be relevant during the guilt/innocence phase at a DWI trial even though it is proof of good character.

Also evidence of character cannot generally be used at trial to prove conformity therewith (though rule 404b has specific exceptions). As an example, most judges probably won’t let you defend theft allegations by showing that you have a good credit score. Character is a legally tricky issue and because it’s really on a case-by-case and fact-by-fact problem, many judges will likely disagree as to what is or is not permissible. Appeals courts give trial courts a lot of discretion with these types of things.

Another issue with injecting character into the trial is that when a criminal defendant does this, it can “open the door” to the prosecution using character evidence of their own to try and dis-prove the accused’s assertion of good character. Obviously in cases where the accused has a past record or similar accusations from before — injecting character into evidence can backfire badly at the guilt/ innocence phase of the trial.

Character is always relevant at the punishment phase of the trial where an accused has been found guilty.

*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 matter you should consult an attorney directly.

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Are There Depositions in a Criminal Case in Texas?

August 5, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy F. Rosenthal

(972) 562-7549

texasdefensefirm.com

Knowledge is power.  A good criminal defense lawyer will want to know as much of the State’s case as conceivably possible.  Most of the time that will probably only be through the police reports, an independent investigation, or what witnesses will tell you voluntarily.  Depositions in civil cases are common but depositions in criminal cases in Texas courts are extremely rare.

Depositions serve two main functions; (1) discovery — or learning the facts of the case; and (2) to nail down a witness’ version of events for later impeachment.  Insurance companies and civil lawyers know all to well that not many people give identical versions of events on multiple occasions.  They get as many witness statements from the same witness as possible to exploit inconsistencies or weaknesses.

Texas Code of Criminal Procedure 39.02 allows a defendant to petition the Court for a deposition if the defendant can show “good reason” for needing the deposition.  It is such a rarity that most trial judges probably won’t see the utility in allowing a deposition of a police officer though.  In all likelihood, depositions in criminal cases are reserved for instances where a witness may not be available later for trial.  If anything, the law allows the prosecution just as much or more leeway with deposing a witness or an alleged victim.  Section 39.025 requires that if the alleged victim is over 60 years old or disabled then the deposition must be taken by the prosecution no later than 60 days after the deposition is requested.

All is not lost for the accused though.  There are a few different mechanisms that allow deposition-like examinations of a police officer prior to trial. An example is an Administrative Law Review (“ALR”) in a DWI case to determine whether a driver’s license should be suspended or denied.  Another example is what is known as an “examining trial” in felony cases to determine if the State has probable cause to hold someone in jail accused of a Felony prior to presentment to the Grand Jury.  These are both instances where an officer can be sworn-in under oath with a record that can be used later.  A good criminal defense lawyer knows how to seize these opportunities for discovery.

*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 you should consult an attorney directly.

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What is Hearsay?

July 31, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

As a general rule, if a witness on the stand is repeating what someone else said who isn’t testifying in a case… there are hearsay issues.  In trial you have a constitutional right to cross examine someone testifying against you — but you can’t effectively cross examine someone who isn’t there.

For starters, a short blog can’t possibly do the concept of hearsay any justice. Hearsay is one of the hardest topics in evidence and is heavily covered on the multistate bar exam.

The hearsay rule can block damaging statements from being admitted into evidence at a criminal trial. In some cases, such as assault/ family violence cases, the entire outcome can rest on a single hearsay objection. Yeah… It’s THAT important.

The legal definition of hearsay is, “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”. Clear as mud, right?

For example… Let’s say person A is on trial for theft from a retail store.  At trial, the clerk who was there during the incident isn’t present at trial for whatever reason.  Instead, the prosecutor calls a police officer who came after the fact and made a report.  If the policeman relayed the observations of the clerk (such as A did this, A did that, or A hid something in a bag), this would be impermissible hearsay.  This is because A has a right to cross-examine the clerk directly about the clerk’s observations.  The law recognizes when one witness relays what is said by someone out of court — it acts as a shield protecting the out of court declarant — and the out of court declarant’s true observations cannot be tested in front of the jury deciding the case.

Hearsay shouldn’t be confused with what is known as an “admission.”. An admission is a statement made by the accused and is non-hearsay.

Again, I can’t emphasize enough how difficult a concept hearsay can be. The U.S. Supreme Court is still constantly refining how the rules work and the Texas Legislature devoted an entire chapter of the Texas Rules of Evidence to the concept of hearsay. It’s important to have a lawyer that understands it too.

*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 you should consult an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

People Giving Legal Advice — That Shouldn’t Be Giving Legal Advice

July 10, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

As even keel as I try to be — nothing gets under my skin more than people giving legal advice that have no business giving legal advice in criminal cases.  Everyone has opinions, their own experiences, and what they believe to be common sense — but I’m not really even talking about that type of stuff.

The “legal advice” I’m talking about is when the very same police officer that arrests you for DWI — also tells you that you need to just talk with the prosecutor to see if you can get a good deal… or when court staff or personnel tell you it might be easier to just talk with the prosecutor rather than get a lawyer… or when a bail bondsman tells you that your case is hopeless and hiring a lawyer is a waste of money.

It unnerves me because these are people that carry a marginal amount of credibility — and because of that people tend to listen to their generally uninformed, narrow, and incomplete analysis of a particular situation — whether it’s drugs, theft, assault or DUI.  Now, in defense of these people — they are probably well meaning in their intentions.  It’s just extremely reckless.  You wouldn’t operate on yourself because they guy at the front desk in the hospital thinks it’s a good idea… and you shouldn’t take legal advice from anyone in the justice system except YOUR lawyer.

Maybe I also get upset because unlike the police officer, court staffer, or any other various know-it-all, I spent many nights in law school up until 1 or 2 a.m. studying about the layer after layer of the law and our legal system.  Unlike them, I’ve spent my entire career since law school dealing with people and learning that their personal situations also have layer after layer.  And unlike them, I get to hand a 42 year-old single mother kleenex across my conference room table when she can’t get a job from a conviction 17 years before when some know-it-all in a position of semi-trust told her she didn’t need a lawyer.

Being a lawyer is a hard job.  Doctors manage imperfect variables which involve the human body.  Lawyers manage imperfect variables which is how the humans which comprise our system of justice will treat any given scenario.  Lawyers are bound by very rigid rules of ethics which make clear that no lawyer can ever guarantee you any result — due in large part to how imperfect and how complicated legal matters can be.

Most police officers, court personnel, and various other people that tend to come into close contact with those accused of a crime are very respectful of the complexity of legal issues and of the Attorney/ Client Privilege and thus are properly deferential.  Other know-it-all’s, though are loaded with bad advice that is only based on their past experiences and training — and none of it is from YOUR perspective or from the perspective of someone that’s dealt with these situations from start to finish.

I’m sure there’s a possibility that some of the things they say might be right 40, 50, or even 60% of the time… And I don’t know about you — but my personal experience is that having 40, 50, or 60% of the right information is a great way to make a very bad and uninformed choice.

*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 directly consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

Computer Crimes: Breach of Computer Security

June 21, 2010

Section 33.03 of the Texas Penal Code covers the breach of computer security — generally known as hacking.  That law makes it a crime for someone to knowingly access a computer, computer network, or computer system without the effective consent of the owner.

As you can tell by reading the language above, this is an extremely broad law with tons of different of applications that can apply to many different circumstances.  It can cover situations where a hacker is trying to access a bank, the government, or even arguably someone else’s facebook account.  It plainly prohibits a person simply getting on someone else’s computer without their knowing — and it would probably prohibit an employee from accessing a computer system of their employer where they have exceeded access although there are other laws that cover that particular scenario.

If the offense is committed without the person obtaining any benefit, then it’s a class b misdemeanor which is the equivalent of a drunk driving charge or possession of a usable quantity of marijuana but less than two ounces.

If the alleged offense attains a benefit, defrauds or harms another, alters, damages, or deletes property, then the offense is charged based on the dollar amount of damages done.

$1,500 or less is a class a misdemeanor, the equivalent of assault charges;

$1,500 to $20,000 is a state jail felony;

$20,000 to $100,000 is a third degree felony;

$100,000 to $200,000 is a second degree felony, the equivalent of aggravated assault with a deadly weapon;

over $200,000 is a first degree felony, the equivalent of murder or aggravated sexual assault of a child.

Punishment for breach of computer security can be extremely steep!!  I’m not an expert in corporate computer systems, by my gut tells me their damages add up QUICKLY in the event someone accesses or deletes their files.

There are tons of legal issues which pertain to proving this type of offense including but not limited to search and seizure issues and highly complex evidentiary issues that accompany computer crimes.  This is the type of offense that typically drive prosecutors crazy — because they can be highly technical and very difficult to prove.  A good lawyer can create a lot of value by working diligently on your case!

If you’re charged with a computer crime, then getting a competent and qualified lawyer is a must!

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 legal advice about you own specific situation, you should consult an attorney.

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