Mens Rea — The Guilty Mind

May 2, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Here is some legal theory or law school 101 if you will.

Something every first-year law student learns in criminal law is about the concept of “Mens Rea” which is latin for “guilty mind.”  When a guilty mind is combined with a “guilty act” (or actus reus), then under common law, a crime has been committed. Most, but not all, crimes today have a mens rea requirement.

For example, to prove the crime of theft the prosecution must show the guilty act of appropriation of property (actus reus) plus the intent of the taker to deprive the owner of the property without consent (mens rea).  An example of a crime where there is no mens rea is strict liability crime — like statutory rape or what is known as an inchoate crime which is a crime of omission — like failure to stop and render aid.  Inchoate crimes typically require a special relationship between the victim and the accused. Modern criminal law has even varied the levels of mens rea.

Crimes enacted by code in Texas and the U.S. Government can require greater or lesser mental states for offenses.  Some offenses such as Arson are called specific intent crimes — meaning that the actor had to specifically intend the result of the crime.  Other crimes have lesser mental states meaning that if a person committed an offense “knowingly” or even less, with “criminal negligence” then they are guilty.

An example of a crime in Texas where criminal negligence is sufficient to convict is selling alcohol to  a minor.  In that type of a case, the actual intent of the defendant need not be proven as long as the jury believes the defendant acted with “criminal negligence.” The charging instrument (an information in a misdemeanor case or an indictment in a felony) will detail which of the mental states is being alleged.

Any and every criminal defense lawyer should read the charging instrument in your criminal case.  If the state proves the greater mental state then they have, as a matter of law, proved the lesser.

Discussing legal theory is like pulling the loose end of a sweater.  We could discuss this topic all day and all night.  If you’re interested in more discussion, you can read more here or here.

*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 about your case you should consult an attorney. 

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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.

Female Shoplifting and Depression – A Link?

April 19, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

I’m not a psychiatrist or a psychologist.  My law license says “Counselor” and I joke that I’m not exactly sure why.

Regardless of the disclaimers, it seems to me that there may be a link between depression and theft when it comes to women.  Just in surfing the internet, there is article after article about the links between the two from medical professionals and non-professionals alike.  Even Winona Ryder, famed shoplifter from 2001, suffered from depression and anxiety disorders.

Putting on our lawyer’s hat, the question isn’t necessarily the same question that medical professionals may ask themselves.  The legal question is two-fold.  First, how does this apparent phenomenon translate into legal reality — and second, what are appropriate treatments assuming conventional criminal justice punishment misses the mark?

Texas Penal Code 8.01 is the insanity defense.  That statute states,

“(a)  It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.

“(b)  The term “mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

As you can see, the statute expressly prohibits diagnoses such as kleptomania or other “abnormality manifested only by… antisocial conduct.”  This language may tend to have courts highly scrutinize an insanity defense in a shoplifting or theft case.  Indeed, Texas case law is somewhat scant in these cases as well providing little useful guidance.

Not only do courts highly scrutinize the insanity defense for theft cases, but many jurors have an extremely difficult time acquitting or excusing someone who is factually guilty of any criminal offense.

Based on the legislature, courts, and jurors view of the insanity defense, an insanity defense could be an extremely difficult defense to raise in a theft or shoplifting situation.

As far as treatment is concerned, most courts in Texas send persons that have either plead guilty to theft to “anti-theft classes” for probation.  Also, not being a medical professional, my guess is that therapy, counseling, and/or medical treatment for the underlying depression and discussion of the triggers for the theft actions can never be a bad idea.  The problem is that the counseling and treatment may come along with a painful criminal record.

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 always consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

What is a Motion to Suppress?

April 15, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

A criminal defendant can challenge the legality of a detention, a search, seizure or other police tactic which resulted in law enforcement attaining evidence.  If the action is held to be illegal, the evidence is excluded (or suppressed) at trial.

Depending on the facts of any specific case, the suppression of evidence may mean the State’s evidence at trial will be insufficient to sustain a conviction — or it may only eliminate the jury considering damaging evidence during the trial.

Texas Code of Criminal Procedure 38.23 says in relevant part, “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.”

This provision stems from the Fourth Amendment to the U.S. Constitution and it’s prohibition against unreasonable search and seizures.  Search and seizure law and determining what is or is not a valid or legal arrest, search and/or seizure is a highly complex and highly complicated area of the law.

In Texas, there is actually a legal presumption that if a search is warrant-less, that the search is invalid.  The prosecution can over-come this burden with clear and convincing evidence that the search was valid during a hearing before the Judge.

Motions to suppress are common ways of defending criminal cases.  Again, if evidence is attained illegally and it is excluded, the prosecution may lose it’s only evidence as to certain elements of the case.  Where this is the case, they lose as a matter of law.  This isn’t always the case, though, where the prosecution has other ways of proving a crime independent of the illegally attained 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 about your own situation you should contact an attorney.

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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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