What is Heasay?

December 21, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

This might be the first time I’ve blogged about a specific rule of evidence, but it’s a fun topic for me and I get asked about it quite a lot by clients so let’s talk about hearsay!

Hearsay is inadmissible in court and is defined by the Texas Rule of Evidence 801(d) as, “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.”  Hearsay is rooted in the Sixth Amendment to the U.S. Constitution which allows an accused the right of cross-examination of witnesses against them.

Not very clear?  No worries.  They only devote 3 weeks to the topic in law school trying to get you to understand that one sentence.  I’ll keep it simple though hearsay and it’s effects on admissibility are extraordinarily complex and often turn on multiple interdependent factors.

In it’s plainest terms — anytime a witness is on the witness stand and quotes someone (or something) else it’s probably going to be hearsay.  We consider it unfair because it’s impossible to discredit information sources which aren’t even in the courtroom.

Here’s an example:  

Police officer #1 is on the stand and says, “Defendant’s kind-elderly neighbor told me Defendant was the drunkest she ever saw any person in her life that night.

This is textbook hearsay and here’s what makes this statement extraordinarily unfair to the accused on trial — it’s impossible to cross examine the elderly-neighbor about the statement in front of a judge or jury.  Here’s how that cross examination would go:

Q:  Officer, Do you know if elderly-neighbor might have mistaken Defendant for Defendant’s brother or Defendant’s roomate?

A:  I don’t know.  She told me it was the Defendant.

Q:  Do you know if elderly-neighbor has good vision?

A:  I don’t know.

Q:  Do you know if elderly-neighbor has a history of accusing Defendant of things he didn’t do?

A:  I don’t know.

Q:  Do you know if elderly-neighbor was on medication herself that night which could impair her ability to see things far away?

A:  I don’t know.

See how unfair this is?  Cross examining the officer is like trying to get answers out of sheet-rock.  We don’t know (1) if the officer has embellished the statement from the elderly-neighbor; and (2) we’re entitled to have the jury judge the elderly-neighbor in person while she’s questioned under oath.  The jury can judge her mannerisms, her hesitation in answering questions, and simply her plain answers the officer can’t provide.  It’s the cornerstone of a fair trial.

Here’s a bit more complicated example:

Police officer is on the witness stand and says, “I didn’t see Defendant actually commit the crime, but he did look down when he denied it to me.  I’m very familiar through my training and experience with the study from Nevada which says people who look down when they deny things are always guilty.

Here the officer is quoting a book or study and not an actual person.  Under the hearsay definition of “statement,” it makes no difference.  It would still be impossible for the defendant to show the jury the “Nevada” study (which doesn’t exist — as far as I know anyway) is nonsense.

Q:  Who wrote the “Nevada” study?

A:  I forgot.  But I know they’re really good and we use it in our academy.  I just know the guys who did the study were right.

Q:  How was the study done?

A:  I don’t remember.

Q:  Hasn’t the study been discredited by virtually every expert in the field?

A:  I don’t know.

Q:  Didn’t your own academy quit using it 10 years ago?

A:  I don’t know.  I just know the “Nevada” study says your client is guilty.

See — we have the same problem as the first example.  A study like this would have to be accepted as authoritative by an expert in the field and then could be relayed to the jury.  Another difference is the Defense would be allowed to discredit the study by showing other inconsistent language from the same study.

Not All Quotes of Outside Sources are Hearsay

To be hearsay, the quote must try to prove “the truth of the matter asserted.”  This is where hearsay discussions get really confusing and complicated.  Normally if hearsay tends to cast the accused in a negative light (the main goal of the vast majority of criminal prosecutions), there’s a good chance it is being used for “the truth of the matter asserted.”

Admissions are Not Hearsay

One key exception to the hearsay rule are known as “admissions by a party opponent.”  This is to say anything a criminal defendant tells someone is admissible in court (absent Miranda violations).  Also any party in a civil lawsuit can be directly quoted as well.

Hearsay Exceptions

Texas Rule of Evidence 803 lists 24 exceptions to the Hearsay rule.  This means even though something might be hearsay — it is still admissible because of it’s inherent trustworthiness.  Examples could be vital statistic records, statements made under high duress, or records kept in the normal course of business.

Common Uses/ Abuses of the Hearsay Rule

Hearsay is a really hot topic in family assault cases as well as child abuse cases.

In family assault cases, it’s very common where the alleged victim spouse does not wish to testify in court.  In these instances it was common for prosecutors to try and prove their case through police who arrived on the scene and took statements from the accuser.  The policy would try to use the “excited utterance” exception for the policy to essentially testify on behalf of the victim.  The U.S. Supreme Court largely put an end to this practice in 2004 in Crawford v. Washington, 541 U.S. 36 (2004) because the Court concluded this practice (in many instances) violated the Sixth Amendment right to confront accusers.

In child abuse cases prosecutors and law enforcement’s main goal at trial is to corroborate a child victim’s outcry of sexual or physical abuse.  It’s common for prosecutors to call persons who the child may have told about the abuse in an attempt to repeat the story and infer the story must be true due to how the child made the outcry.

 Texas does have an outcry rule which allows at least one adult originally told the allegations by the child to repeat what would otherwise be hearsay.  It has been a re-occuring struggle for the defense in these cases, however, to prevent the host of trained child advocates whose main function is therapy and treatment of the abuse — from coming and testifying in a very honed and polished manner against the accused though they are often the 3rd, 4th, or 5th person told about the abuse from the child.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any situation you should consult an attorney directly.  Communications sent through this forum are not confidential nor subject to the attorney/ client privilege.


The Top 5 Things You Should Tell Your Lawyer

December 5, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.thecollincountylawyer.com

(972) 369-0577

It’s common for people who’ve never been in trouble before to assume everyone knows (or will know) all the details of their case… this includes their attorney.  Try as I might, I’m just not a psychic.  There aren’t many types of cases I haven’t seen… but each case I handle is truly it’s own snowflake.  

Not only is each case it’s own snowflake, but everyone has different motivating factors in decision making.  Often how we treat a case depends more on a collateral issue (such as professional licensing, a medical condition, or immigration status) as it does the actual underlying facts.  It’s too important to assume your attorney understands what truly keeps you up at night about the case.

I hope my client knows I’m not the high school principal, a policeman, or a judge.  Nothing they tell me is going cause me to treat their case anything other than professionally.  

As such, today we’re discussing the 5 things you should tell your lawyer:

5.  All the facts about the case you think are important.

I want my clients to feel comfortable.  They can tell me every detail about their case or none of the details because we don’t live in a country where we must prove our own innocence. One of the problems I have in evaluating a case through only a police report, though, is police reports tend read like a soviet history book with white-washed and self-serving facts and conclusions.  Often I find a police report doesn’t support nor contradict my client’s version of events.  This shows the importance of my client’s own account to the over-all evaluation of the case.

4.  If You’ve Been in Trouble Before.

Most people have only 1 or 2 run-ins with the law during their lifetime.  If you’ve been in trouble in the past, it’s important your lawyer know this because it could dramatically effect plea negotiations and even the Prosecutor’s ability to enhance the charges against you. 

3.  If You’re Citizenship Status is Anything Less than A Full Citizen.

Immigration is a hot topic in Washington.  Criminal actions can have extremely complicated and far-reaching implications for people seeking naturalization or people who may seek to apply for citizenship in the future.  Immigration issues often put people in “must-win” situations in Court.

2.  If You Have Special or Professional Licensing.

Criminal charges and professional licenses don’t mix well.  If you’ve got any type of special licensing required by your job it’s important your lawyer know so they can do everything possible to protect that licensing.  It ranges from a license to practice law, medical licensing and even commercial driver’s licenses.  Again, we’re not psychic and a criminal conviction can might only result in probation — but a loss of licensing could cause permanent damage to your livelihood.

1.  The Truth.

Having criminal charges pending against you isn’t much different from being on an operating table.  You wouldn’t lie or even shade the truth to your Doctor about where they need to cut to save your life.  Telling your lawyer something which misleads them only hurts you in the long-run.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice on any situation you should contact an attorney directly. 

 


Plea Bargaining

November 26, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

A criminal plea negotiation is like any other contractual bargaining discussion meaning at the very least it requires two parties to say “yes” to a singular outcome — or there isn’t a deal.

Prosecutors ask Defendants to waive many constitutional rights — the most important of which to them is a the Defendant’s right to a time and resource consuming trial.  The defendant typically (though not always) seeks certainty, leniency, or to “cut their losses” in plea negotiations.

Plea negotiations based on these bargaining positions are unfortunately a one-sided affair by their very nature.  The Defendant plays with real money and prosecutors play with monopoly money.

An accused has actual money to pay to his/her lawyer, has a possible criminal record in the balance which can cost them a job or income in the future, and obviously an accused has to weigh the possibility of going to prison in some circumstances.

On the other hand prosecutors typically lose very little by losing at trial.  In theory they are public servants and don’t want to be seen losing cases… but very few cases are high-profile enough where the DA’s office or their junior assistants fear any real public backlash.  Some prosecutors, unfortunately, actually see trying weak or bad cases as being tough on crime in their bizarro world because those same prosecutors clearly presume the accused guilty despite the weak evidence in the case.

What does work in an accused favor in plea negotiations is the prosecutors are handling anywhere between 750 and 2,000 cases per court at a time.  This means they’re often seeking the path of least resistance and they can’t possibly try or contest every single case.  They have a choice of being reasonable during plea negotiations or having their docket grind to a halt if they insist on never giving an inch regardless of the reason.

There are other effective ways for an accused to plea bargain.  Many prosecutors are fair and have a decent sense of what is just when presented with proof the accused deserves leniency or another chance.  Many other prosecutors, in contrast to one’s I’ve described above, rightly fear losing in a public forum.  Similarly, the cases a prosecutor fears losing also tend to be more problematic and time consuming for them.  I noticed as a prosecutor when cases were thoroughly researched and investigated by a defense lawyer, trying the case would be frustrating at the very least.  Whether I’d admit or not, my guess is I was more inclined to offer a favorable deal to get of rid such “problem-child” cases.

What does this mean if you’re accused of a crime?  It means you should have a lawyer prepared to do battle on two fronts.  The lawyer should thoroughly investigate the legal and factual defenses of your case… and as a backup, be able to demonstrate to the prosecutor the accused is worthy of leniency even if found to be guilty.

*Jeremy Rosenthal is an attorney licensed to practice in the State 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 does not create an attorney-client relationship and any such communications are not considered confidential nor privileged.


The Law On Manslaughter and Criminally Negligent Homicide in Texas

October 16, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Manslaughter

Manslaughter in Texas is codified under Texas Penal Code Chapter 19.04(a) and is committed when someone “recklessly causes the death of an individual.”  Manslaughter is a 2nd Degree Felony (2 to 20 years in the Texas Department of Corrections).

The legal definition for reckless is defined by Tex.Pen.C. 6.03(c).  That provision states, ” A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”

This legal standard is clearly and obviously subjective. Therefore, no bright line test as to any fact scenario can be indicative of whether a death could be charged as manslaughter as compared to any other form of homicide under Chapter 19.  The best way to show what may be “reckless” is by giving some examples of cases where convictions for manslaughter were upheld on appeal.

Examples of Manslaughter Cases Upheld on Appeal

In Threet v. State, 2003 Tex. App. LEXIS 4136 (Tex.App. — Austin, 2003), Defendant was convicted of manslaughter where he and the victim, another college age student, got into an argument at a house-party and went outside to “trade licks.”  The victim punched Defendant first in the chest, and the Defendant then punched victim in the face.  When the victim fell to the ground, Defendant continued to punch him several times then kick him in the head with a hiking boot.  The victim died later that evening.  Defendant was indicted for murder, but was convicted of manslaughter, a lesser-included offense.

In Willis v. State, 761 S.W.2d 434 (Tex.App. — Houston [14th Dist]), Defendant was similarly convicted of manslaughter where he struck a man with a pistol-butt on the head on the steps leadning into a pool hall.  The victim fell backwards and struck his head on the board.  The victim broke his neck and died the next day.  Similar to Threet, Defendant was originally charged with murder but the jury found the lesser-included offense of manslaughter to be appropriate.

Manslaughter is similar, but should not be confused with intoxicated manslaughter which you can read about here.

Criminally Negligent Homicide

Criminally negligent homicide is defined by Texas Penal Code Chapter 19.05(a) and is committed when someone causes the death of an individual by criminal negligence.  Criminally negligent homicide is a State Jail Felony (between 180 days and 2 years in a State Jail institution).

Criminal negligence is defined by Tex.Pen.C. 6.03(d) and is occurs when someone is “criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”

Again, this standard is extremely subjective, so here is a case where appeals courts have sustained convictions for criminally negligent homicide:  Chambless v. State, 368 S.W.3d 785 (Tex.App.– Austin, 2012), Defendant woke up in the middle of the night due to noises in his front yard.  Assuming it was a neighbors dog, Defendant fired a semi-automatic rifle three to five times into the yard.  Unbeknownst to Defendant, the victim, a neighbor was in his yard and had been hit by the bullets.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice. For legal advice about any situation, you should consult an attorney directly.  Contacting the attorney through this forum does not create an attorney-clien relationship.  Communications sent through this forum are not confidential nor privileged.


The Top 6 Things You Should Know Before Pleading Guilty

September 7, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Pleading guilty may be the best option in a case – but it should never be the first option.  The decision to plead guilty is often not much different than the decision to get a permanent tattoo everyone can see.  You should fully know and understand the consequences and alternatives before making this choice.

1.  What does it mean if I Plead Not Guilty?

It means you are exercising your right to a trial by judge or jury.  Every person has the right to a trial and every person has the right to plead “Not Guilty” to a criminal charge regardless of whether they committed the crime alleged.  There is nothing dishonest or immoral about pleading “Not Guilty” because your claim is essentially the state or government is unable to prove your case beyond all reasonable doubt.  Some backwards countries require you to prove your innocence — but the U.S. isn’t one of them.  By asking the State to bring it’s proof against you — you are keeping your government accountable to the people.

2.  What Rights am I Giving Up?

The framer’s of our constitution really knew what they were doing.  They gave us several extremely powerful rights — which in and of themselves could actually prevent you from being convicted regardless if you are “guilty as sin” or are completely innocent.  My list is only partial, but here are some of the rights you’ll waive in a guilty plea:

  • The right to a jury trial, the value of which speaks for itself;
  • The right to testify in your own defense and be heard — or the opposite — to remain silent so you don’t have to be exposed to harassing or abusive questions (known in the legal profession as “do you still beat your wife” questions) from the prosecutor.
  • You’re waiving arguably your most important right — the right to cross examine a witness.  Cross examination is a powerful way to break down the State’s case and show the jury or judge the full truth of an accuser’s account.
  • You’d typically (but not always) waive your right to appeal which means barring some remarkable unknown circumstances — the case will be final once the judge accepts the plea.

3.  What Are the Consequences of My Guilty Plea?

Know what you’re signing up for.  Understand the differences between deferred adjudication and a conviction and ask your lawyer about how it impacts your ability to expunge (clear) or hide (non-disclose) your record.  Understand the requirements you’re agreeing to if you’re accepting probation — and the punishments if you fall short.  Ask about other collateral consequences particular to the type of charge you’re pleading guilty to… will it affect your right to vote?  To own a firearm?  Could it cost you your job, a professional license or the ability to get a professional license?  If you’re agreeing to go to jail or prison, know the parole guidelines first.

4.  Can I Actually be Acquitted at Trial?

I tell juries all the time the truth that, “people are acquitted in courthouses all around America every single day.”  Your lawyer should be able to discuss the strengths and weaknesses of each case with you.  Again, the prosecution bears the burden of proof beyond all reasonable doubt which never shifts back to you.  Not only that, but you are presumed innocent.   Just because some facts may look bad in your case doesn’t mean you’ll lose.  Before you make the decision to plead guilty, you should know what may or may not happen at trial.

5.  Will the Punishment be Worse if I Take the Case to Trial?

People often assume the prosecutor’s plea offer is a better shake than the judge or jury will give in the event you’re convicted after a trial.  Often prosecutors, in making plea offers, simply don’t have their fingers on the pulse of the community.  Merely because the individual prosecutor may be judgmental doesn’t mean a judge or jury will agree with them.  A prosecutor asking to jail a 42 year homemaker with 3 kids for a DWI after a night of drinks with girlfriends may find the jury is angry with him for what could be seen as a mean suggestion.

6.  Won’t Fighting the Case Make the Prosecutor or Judge Mad?

Maybe.  But so what?

If you’re charged with a crime, you have to be far more concerned with how the case will impact you 10, 20, or 30 years down the road… long after both the judge or prosecutor have forgotten your name.  Besides, the vast majority of judges I’ve been around actually appreciate strong advocacy from defense lawyers and few judges (or juries) give in to a frustrated prosecutor upset about having to prove a case.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice and for legal advice about any situation you should consult with an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship an communications sent through this forum are not privileged nor confidential.