Can They Make Me Testify Against My Husband/ Wife?

May 2, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

In Texas the prosecution can and will force one spouse to testify against another — often against their will.  I am often asked in disbelief in assault cases “can they really do this?”  Unfortunately the answer is, “yes.”

Texas Rule of Evidence 504 governs the husband-wife privilege.  Generally speaking, any communication made to one’s spouse is privileged under that rule during and even after the marriage.  Either spouse may assert the privilege whether they are a party to a case or not.  Unfortunately, the husband-wife privilege is riddled with far more exceptions than other privileges (such as the attorney-client privilege).

Tex.R.Evid. 504(a)(4)(D) is just one of the specific exceptions to this rule of privilege.  That rule states a spouse can be compelled to testify against their other spouse if that spouse is considered the victim of the crime or if any other member of the household or any minor child.

Additionally, it is important to note that in some cases, the testimony attempted to be compelled out of the “victim” spouse is not regarding communication but regarding conduct.  Obviously the privilege in and of itself only applies to “communications” in the first place.  The privilege, therefore, cannot be used to prevent disclosure of facts surrounding an incident where family violence has been alleged.

The state in assault cases must still prove their case beyond all reasonable doubt.  Jurors are very sensitive to situations where it is clear one spouse does not want to testify against the other and don’t always appreciate the police and/or the state being overly-invasive of a family… so even where a spouse is compelled to testify against their will — the cases can and do frequently result in acquittals.

*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 about any situation you should always directly consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

Will Assault Charges be Dropped if the Accuser Doesn’t Want to Prosecute?

March 10, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Possibly, but it mainly depends on the prosecutor.

A criminal assault or family violence charge in Texas is a proceeding between the State of Texas and the accused.  The accuser is mainly treated as a witness.  The decision to prosecute is squarely on the prosecuting attorney.

This is typically a policy driven area with prosecutors.  District and County Attorneys are elected officials in Texas and none want to look weak on this sort of matter.

Affidavits of Non-Prosecution

Many criminal defense attorneys or prosecutors ask that alleged victims that wish to drop charges fill out an “affidavit of non-prosecution.”  That is a statement under oath which gives the alleged victims reasons for not wanting to prosecute.  An affidavit of non-prosecution does not bind the prosecutor or the judge to dismiss the case.

If the accuser is considering filing an affidavit of non-prosecution, that statement is almost always a statement under the penalty of perjury.

If the alleged victim gives an inconsistent account in the affidavit as she did to the police — he or she may be guilty of giving a false statement to a police officer.

It is crucial for the alleged victim to know that defendant’s lawyer is not their lawyer.  In fact, that lawyer has a direct conflict of interest in advising them.  It is not imprudent, improper, or uncommon for the alleged victim to have their own attorney in these situations.

*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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Posted by Jeremy Rosenthal, Esq.

Top 5 Mistakes When Hiring a Criminal Defense Lawyer Countdown — No. 3

February 15, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

This week I’m counting down the top 5 biggest mistakes people make when hiring a criminal defense attorney.

#3:  Hiring an Attorney That Isn’t Qualified

Economists estimate that a criminal record can reduce your lifelong income by as much as -30%.  For someone that would normally earn $50k per year, that comes out to a loss of $450,000 over 30 years!

Not only do you need a lawyer if you’re charged with a crime, but it had better be one that knows what they’re doing!

A licensed attorney in the State of Texas can practice virtually any field of law ranging from mergers, bankruptcy, truck crashes all the way to criminal.  There are slight exceptions here and there.  Just because someone is licensed doesn’t mean they’re qualified or experienced enough to handle your criminal case!

Board certified lawyers are lawyers that have qualified with the State Bar through recommendations from their peers and from taking a test.  In Texas, the only designation recognized by the State Bar in board certification is for the general field of “Criminal Law.”  While many lawyers hold themselves out as members of organizations such as the “DUI College,” this is not an official designation but more of a private membership.  Being board certified is never a bad thing, but it doesn’t give you, as the client, permission to turn your brain off when interviewing that lawyer to see if they are right for your case.

The best way to flesh-out whether an attorney your talking with is qualified for your particular case is to ask pointed questions.  Ask how many cases of the same offense have they handled in the past?  How familiar are they with the local rules of where your case is pending?  What percentage of their over-all case load is your type of case?

The lawyer’s answers will tell you a lot!

 

*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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Posted by Jeremy Rosenthal, Esq.

How Can I get a Police Report After I was Arrested?

February 12, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Texas law makes it tougher than you might think to see your own police report.  Believe it or not it could be the middle of trial before you’re allowed to see it!

But don’t worry, in Texas state courts it rarely, if ever, happens that way regardless if it’s DWI, theft, assault, drugs or whatever.

The Michael Morton Discovery Act passed taking effect for cases filed after January 1, 2014 require the prosecutors to give your lawyer a police report upon request, though, there are limitations on to whom your lawyer can disclose the report.  You can read more about those changes here.

Two quick points — lawyers look at police reports the same way doctors look at x-rays.  We key in on things you may not notice because they’ll have legal significance.  If you don’t already have a lawyer — consider one.  Second, this discussion isn’t for traffic tickets and municipal fines in Texas though some of the same rules may apply.

Police departments don’t have to give you the report in a criminal case unlike a civil car accident.  Texas Government Code 522.108 is an exception to the Texas Public Information Act for law enforcement in criminal matters.

Many prosecuting agencies like Dallas and Ft. Worth and Collin County currently have “open file” policies meaning the defense attorney has access to the entire file.

And you do have rights in all this.  The Texas Code of Criminal Procedure Art. 39.14 provides that if you show “good cause” to the Court, the Court can order the prosecution to produce a whole laundry list of items from their file prior to trial.  The prosecutor has legal and ethical duties to produce favorable evidence to you.  Brady is generally any evidence which is exculpatory (proves innocence) or which is favorable to the defendant — though the issue is complex.

Again, without legal training and experience as a legal practitioner — getting your hands on a police report can be useless.  If the case is serious enough for you to want a police report, it’s probably serious enough for you to get a lawyer!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Jeremy is designated as a Texas Super Lawyer by Thomson Reuters.  www.texasdefensefirm.com.

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How do I select a lawyer in a Criminal case?

February 8, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

In Texas, if you have been charged with an offense you have three basic choices.  You have the choice to plead guilty or not guilty, the choice to testify on your own behalf, and the choice to select a judge or jury to asses punishment if trial is unsuccessful.  These are not simple choices, fun choices,  or easy choices.

Your lawyer should be able to give you as complete a picture as possible with regards to the facts, the law, and the probable outcomes so that you are comfortable making these important decisions.  Additionally, your lawyer should make it their business to be a skilled advocate for trial and/or dealing with the prosecutor or law enforcement.  You need to be comfortable with your attorney and no one attorney is perfect for everyone.

Don’t be afraid to ask questions in your consultation.  Appropriate questions are how many times an attorney has handled this type of case, what percentage of this type of case comprises their current case-load, and how often do they take cases to trial?  These simple questions can tell you a lot about the lawyer such as their willingness and ability to explore every angle of your case.

Some lawyers can be very aggressive in their rhetoric but no lawyer can guarantee you results in any circumstance.  Be very leery of lawyers who do.  You can ask a lawyer their ‘win-loss’ record, but don’t expect many revealing answers.  Cases, people, and their legal situations are like snowflakes.  Sometimes victory means complete acquittal and an expunction and sometimes victory means dodging a legal bullet to the head and taking a flesh wound instead.  Our profession is one of managing countless variables and cramming it into ‘win-loss’ context really doesn’t give anyone an accurate picture.  When I get asked that question, I joke with people that I’m trying to make the playoffs!

Finally, don’t be afraid to visit multiple lawyers.  Attorneys that are good at what they do shouldn’t be bothered by this.  This is your critical decision, after all.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. He is a Super Lawyer as designated by Thomson Reuters.  www.texasdefensefirm.com

1 Comment | DWI, Emergency Protective Orders, Expunction & Non-Disclosure, Murder, probation, sex cases, sex crimes, sex offender registration, sexual assault, Uncategorized | Tagged: , , , , , , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

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