Top 5 Tactics Prosecutors Use to Convict People at Trial

December 29, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

It’s obviously important to know your adversary, your adversaries tendencies, and how your adversary thinks.  Having been a prosecutor, it’s easy for me to place myself in their shoes to analyze how I’d have prosecuted the case against my client were the roles reversed.  Today I’ll discuss the Top 5 most common tactics we see in criminal prosecution I see on a regular basis.

Criminal prosecution is a difficult and noble profession.  The vast majority of prosecutors are honest, hard working and consciences.  The rules are (in some ways) much more restrictive against prosecutors who have extremely high expectations of honesty and integrity whereas a defense lawyer usually has an immediate uphill climb with juries.  While creativity is heralded in criminal defense — it is frowned upon in criminal prosecution (often unfairly).

Though I can easily nit-pick prosecutorial tactics and paint them as unfair… probably none of the techniques I describe below were created or have evolved from malicious intent, rather they were created by advocates who may not fully appreciate the harmful effect some of their tactics may have.

With that out of the way, let’s review the top 5 tactics prosecutors use in trial:

5.  “Liar Liar Pants on Fire”

Proffering a defense in a criminal trial is extremely difficult.  If you think about it, it’s almost impossible to do without a prosecutor being able to accuse your client, his friends, family or anyone testifying on their behalf of being a liar.  It’s really a built-in, automatic rebuttal when someone takes the stand to say “my friend wasn’t drunk we he left the bar” in a DWI trial, or “I was with my husband the time you say he was sexually assaulting the accuser,” or  “my wife bought that scarf three weeks ago from your store… she wasn’t shoplifting.”

What many jurors don’t realize is this built-in tactic is the exact reason we have the right to remain silent.

4.  Spinning a Lack of Evidence, Neutral Evidence, or Evidence of Innocence into Evidence of Guilt For the Jury.

One of the more frustrating techniques I come upon is where a prosecutor infers evidence which obviously points to innocence actually points to guilt.

A common example in DWI cases is where the person looks good on the video… prosecutors frequently argue this is evidence the person has a high tolerance for alcohol abuse.  It’s possible in some cases this argument may be true.  Then again, what they’re really saying the accused person is just guilt regardless of the evidence.  If they look drunk — they’re drunk and if they look sober — they’re drunk.

Another common example is in cases where there is very little evidence and only a select few witnesses.  Some prosecutors will actually argue this is because the crime was committed with expertise.  Prosecutors will argue, “The Defendant chose the time, place, and witnesses to the crime.”  In other words… if there is no evidence it’s not because the Defendant may be innocent — but because the defendant is good at getting away with things.

This tactic is a recipe for erroneous convictions.  Read the facts of cases from inmates who get exonerated after decades and you’ll see a continual pattern of virtually all evidence being subjective conjecture or horribly flawed eyewitness testimony.  No evidence means no evidence.

What is more upsetting about this tactic is it is really prohibited by the Texas Rules of Criminal Procedure Rule 2.03 (b) which does not allow any officer of the court to “impair the presumption of innocence.”  When evidence of innocence is being spun into evidence of guilt — I’d say that provision is being broken.

3.  Feigned Fairness

Prosecutors are taught to cover concepts such as the presumption of innocence, the defendant’s right not to testify, and the burden of proof being very high in their arguments and jury selection presentations.  The cursory discussion has the effect of making them seem even-handed to the jurors.

Like a politician who makes a broad statement he’s for one thing… then promptly does another, a prosecutor talks about the defendant’s important rights briefly and then pays them lip service for the rest of the trial.

Experience has taught me brushing over a defendant’s constitutional rights without any context or explanation is a sure way to have a jury ignore them.

2.  Shifting the Burden to the Defendant

It’s virtually impossible for a Defendant to prove they’re innocent of an accusation.  Think of how impossible it would be to prove you’re innocent of making a bad lane change if you were accused of it.  You’d have no video evidence or other documentary evidence supporting your case at all.  You’d only have your word — or the word of a passenger in your car.  That defense is a loser (see #5 above, Liar Liar…).

Prosecutors routinely shift the burden, though, in very tacit ways.  One common method is during jury selection prosecutors will explain Defendant has a right to discovery under the Texas Penal Code and the prosecutor has no such right.  Another is the Defendant has equal subpoena power.

Both statements are true and leave an impression of rules that are even or even turn the district attorney’s office into being victims of an unfair process.

These impressions are highly misleading, however.  First — the accused gets information because (as explained above), the prosecution is charged with proving an affirmative action.  Defendant is not required to prove a negative.  Second, Defendant’s “equal subpoena power” is extremely hollow considering the police and government have virtually unlimited investigatory resources compared with virtually none of the defense.

1.  Lowering the Burden of Proof

This is easily the No. 1 tactic prosecutors use to secure convictions.  Prosecutors are trained to lower the burden on themselves and many of them don’t even appreciate this is what they’re doing.

The burden of proof in a criminal case is “beyond a reasonable doubt.”  This phrase used to be defined for jurors as, “..the kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs.”  In 2000, the Texas Court of Criminal Appeals did away with this rule and allowed jurors to define it how they chose fit.

An extremely common example used by prosecutors — especially in DWI cases — is a likening the standard of proof beyond a reasonable doubt to an incomplete puzzle where you can still make out the over-all image (usually of a whale or a handgun).  The prosecutor explains there may be missing pieces, the jurors still don’t have a “reasonable doubt” as to the over-all picture.

Jurors find this explanation simple and highly persuasive but the puzzle is problematic.  It’s flawed assumption is proving a crime is a general proposition… instead of a specific proposition with fine details.  It lowers the burden of proof because you could remove over half the pieces to a picture of a giant whale and still be certain it’s a whale.  But what if instead of a puzzle a case is more like a math equation where we’re missing just one or two key numbers?  The remaining pieces of the equation become worthless because we can’t be sure of the outcome or how to get there.

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


Is My Driver’s License Valid Immediately After a DWI Arrest in Texas?

October 2, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Yes.  Here is a link to the State’s DIC-25 warning which you should have been given prior to having taken or refused the breath test.

Even though your physical drivers license was probably taken by the officer if you refused the test or blew over 0.08, this warning states in bold letters your license isn’t actually suspended for 40 days.  The document itself actually serves as your temporary driving permit for the 40 days.

Additionally, your license isn’t even automatically suspended after the 40 days if you appeal the suspension. In that case, your license wouldn’t be suspended until after the administrative judge rules on your appeal (and even then — only your appeal is denied).

If you voluntarily submit to a blood specimen, that specimen obviously needs to be analyzed.  It’s typically shipped to a Department of Public Safety Lab where there is a wait to have it analyzed.  In those cases where the blood comes back over 0.08, DPS should send you a notice giving you 20 days to appeal the suspension.  But even then, the suspension is not immediate upon the arrest.

It’s a common mis-impression that you’re not even allowed to drive the very next day after an arrest which law enforcement is happy not to clear-up.  This is part of the pressure tactic to attempt to persuade people to submit to breath or blood tests.

*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 matter you should consult an attorney directly.  Contacting the author through this forum does not create an attorney-client relationship.  Communications through this forum are not confidential nor privileged.

It’s a common mis-impression


Simple Thoughts on the Reliability of the Breath Test

September 12, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Texas uses the Intoxylizer 5000 as its breath test machine.  Rather than discuss it in confusing and lengthy scientific concepts (which we’re happy to do in person), let’s discuss in general terms some if the problems associated with the machine.

Think of it as a scale in your bathroom that says you weigh anywhere from 50 to 170 lbs.  Not very helpful, is it?  This is for several compounding reasons.  First is the machine’s technology was created when the Atari video games were popular and Texas simply hasn’t found it cost-effective to upgrade.  Second is the machine piles assumption after assumption about the test-taker which may or may-not be true.

Also the machine – like any other mousetrap — can completely whiff on occasion.  The amount of ethyl alcohol it would take to score a false positive could fit on the tip of a pen as just one example.  The machine can be set off by GERD or gastro-intestinal reflux disease, can respond to environmental products used in the workplace, and has problems distinguishing diabetic shock from intoxication.

Again, we’re happy to discuss the science behind the Breath test in person… but understand just because the machine said it doesn’t mean it’s accurate!  It never hurts to scrutinize any test result.


TxDOT Signs Bend Truth for Noble Cause

August 27, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

On a recent drive to Austin and back, I couldn’t help but notice about 10 or 15 Texas Department of Transportation electronic signs which flashed two sequential screens.  The first was “1785 Deaths This Year on Texas Roads” and the second was a reminder not to drink and drive.

Wow, I thought… I didn’t realize drunk driver’s caused about 250 deaths per month in Texas alone!  Then I started thinking this figure sounded a bit too high.  Then my lawyer brain started to kick in and I realized the TxDOT signs were sort of making a play on words… The signs didn’t actually SAY all 1785 were caused by DWI — they had their fingers crossed!

The Obvious

No one wants drunk drivers on our roads.  Losing a loved one on the highway is a terrible tragedy no one should experience regardless of whether it’s inattentive driving, road rage, texting or drunk driving.  Hopefully the TxDOT officials decision to publish the number of traffic related deaths will turn heads and in doing so make our highways a safer place to drive.  You can read some of the PR they got here and here.

The Rub

The signs leave the clear impression the 1785 tragic losses on the highway are ALL due to Driving While Intoxicated.  When you read the quote from TxDOT spokesman Mark Petit, he says “We think that pointing out the number of deaths that have occurred so far this year will make somebody think twice maybe about whether they should pick up that cell phone and text somebody, or whether they should buckle that seatbelt.”

But the signs don’t say, “Buckle Up” and they don’t say, “Don’t Text and Drive.”  Each sign I saw had the same sequence of traffic deaths followed by the warnings against drinking and driving.

Here’s Why It’s A Problem

It’s a problem because it leaves a false impression, over-exaggerates, and stokes the flames against a group of people that it’s already somewhat popular to pick on — DWI suspects.  TxDOT concedes traffic fatalities have declined 21% in roughly the past decade and Mr. Petit’s warning in the above quote is also clearly against distracted driving.

Think of how angry you would be if your husband, wife, son or daughter were on trial for Driving While Intoxicated and during the jury selection process, you hear extremely angry jurors who want to presume a suspect guilty and give them far harsher punishment — because they’re lead to believe DWI related deaths are approximately 300% worse than they actually are (in 2011, TxDOT reports 3,015 total highway deaths and 1,039 “involved” alcohol).

If there is harm in the Texas Department of Transportation also warning drivers to put down hand-held devices and to wear seat belts in conjunction with the traffic death statistics — I have a hard time seeing it.  Everyone wants safer roads.

*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 communications sent through this forum are not privileged nor confidential.

 


Will There Be a Video of a DWI Arrest?

July 31, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Probably, it depends on where the arrest took place.

DWI Arrests in Richardson, Plano, Frisco, Allen and McKinney are virtually all video-taped.  Texas law formerly required only larger cities and municipalities to have cameras on squad cars.  The law has since been amended so that all police cars have video cameras.  Some agencies that were not previously required to have cameras may take a bit of time to come into compliance for logistical and/or budgetary reasons.

You should always assume that you are being video and/or audio taped with talking with police.  The tape protects you just as it does the police.  Police reports frequently only highlight the facts which support the officer’s conclusion — that the driver is intoxicated.  The video, though, shows the entirety of the situation.  It exposes when police try to exaggerate their claims on any given case.  

Each county has different policies for releasing the video tapes to defense attorneys.  Collin, Dallas, Denton and Tarrant Counties are all fairly easy to work with in attaining videos, however, they are frequently not available to the defense for a month or more after the arrest because the video must go from the agency to the District Attorney’s office — and then a copy must be made for the defense.

*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 communications sent through this forum are not privileged nor confidential.