How Double Jeopardy Works

March 4, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Double jeopardy comes from the 5th Amendment to the U.S. Constitution which holds in part, “…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb…”

Double jeopardy can be an extremely complex topic.  The easiest way to think about it is once you are acquitted of a charge, you can’t be prosecuted for the same charge again. The prosecutors who represent the government are like anyone else before the Judge.  They get their day in court — but they don’t get it again and again and again until they win.

What makes the issue so confusing at times are the different concepts behind what constitutes an acquittal for example.  The prosecution may dismiss a case but if they do so before jeopardy is said to “attach” in a particular case (typically when a jury is sworn — or in a trial before a judge — when the trial begins), the prosecution can simply refile the case if they are within their limitations period.

Also many factual circumstances could lend themselves to prosecutions of different offenses.  Crimes have statutory elements which must be proven by the prosecution.  The elements for one crime might be completely different from another crime which arose from the same situation.  Merely because someone was prosecuted and acquitted of one charge doesn’t mean the other charge can’t then be pursued by the state.  Whether subsequent prosecution is precluded by double jeopardy might depend on the over-lapping nature of the elements of given charges.

The vast majority of times double jeopardy issues are simple.  If someone is found not guilty for driving while intoxicated, marijuana possession or assault then virtually always the case is closed.  On occasion double jeopardy issues can arise, though.  When they do it’s best to speak with a lawyer about what the State may or may no do to pursue a particular case.

*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 on any issue you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client relationship.  Communications sent through this blog are not considered privileged or confidential.

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Posted by Jeremy Rosenthal, Esq.

Associated Press Finds Stunning Inaccuracies on Background Checks

December 22, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Did you know 90% of employers do background checks since 9/11?  Criminal background searches are now a $2 billion per year industry and due to increased digitalization of court records — mom and pop background check companies are beginning to spring up.  They don’t seem to have the resources or desire to get things right.

And here’s the scary part — most of the leading background check companies wouldn’t even return the AP’s phone calls to discuss how many of their files were inaccurate.  They currently use automated systems which scrub online databases run by governmental entities with flawed formulas that misinterpret information the human eye might spot.  They commonly botch common names and stick the wrong people with criminal charges.  Many are also very poor at updating their information when criminal cases are expunged or non-disclosed.

You can read the article in it’s entirety here.  There are few articles out there that are must-reads.  This is one of them.

From a criminal defense lawyer perspective — fighting to keep someone’s record clean is pointless if some company who doesn’t care about what they report calls you a criminal anyway and costs you a job.

Another main point to take from the AP article is no one will care about making sure your criminal history is clean as much as you will.  Making sure you have a clean history is every bit as important as checking your credit score.

*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 contact an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship.  Communications sent through this blog are not confidential.

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Posted by Jeremy Rosenthal, Esq.

Who Can See My Criminal Record?

June 1, 2011

By Collin and Dallas County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Criminal records are generated different ways.  What you have to remember is that when you get arrested, you are cycling through a public system where information is (to varying degrees) open to the public.

Your “official” criminal records are kept by the FBI and the Texas Department of Public Safety.  The FBI runs the NCIC (National Crime Information Center) and DPS runs the TCIC (Texas Crime Information Center).  Only specifically authorized personnel are allowed to view information in these databases and it is not readily accessible to the public.  In fact, the illegal dissemination of information of the NCIC or TCIC is a class b misdemeanor in Texas.

When a private citizen or company is looking at your criminal record, what they are really looking at is information a third-party vendor has purchased or acquired directly from county, state or city court system.  Under the Gramm-Leach-Bliley Act of 1999, users must justify their queries and have a legitimate purpose for conducting background research on websites of the public data forums.  As you might guess, the categories are somewhat broad — so if you’re applying for a job or for credit then it’s safe to assume your background may be legally checked.

Non-disclosures and expunctions are ways in Texas that criminal records can be mitigated.  An expunction under Tex.Code.Crim.P. Chapter 55 is an extremely powerful right which authorizes the actual destruction of the information surrounding the arrest.  

A non-disclosure under the government code chapter 481 can help in limiting the persons who can have access to an arrest record.  Generally, only governmental agencies will have access to criminal records.

*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 particular issue, you should consult an attorney directly.

 

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Can a Failed Drug Test Result in a Probation Revocation?

April 9, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

The short answer is yes.  But as with all things in our court system, it’s not certain.

Here’s how a revocation works — if you do something (or don’t do something) which is a violation of your probation or deferred adjudication, then usually a probation officer will make the decision to recommend revocation to the prosecuting attorney.  If the prosecuting attorney agrees with the probation officer (and virtually all will), then a motion to revoke probation is filed, and usually a warrant is issued.  After the accused is brought back to court, the revocation is heard.  (FYI, you’re entitled to a bond on misdemeanor revocations but for felony revocations you are not entitled to a bond in Texas.  You’re only entitled to a bond for felony revocations if you were on deferred adjudication).

Technically, a probation officer in Texas works for the Judge, but they don’t carry the power of the judge.  If they want to take any action against you — they cannot do so on their own.  In order for a probation officer to formally change the terms and conditions of your probation, they must either do so with your agreement (admittedly sometimes after bullying probationers with “or else” threats), or they must go through the prosecutor.

A failed drug test is a common example of a probation violation that results in revocation (or adjudication if the person is on deferred).  Probation officers consider many things, however, before deciding to revoke.  They are people too and they’ll hopefully consider your history, your past cooperativeness or progress, or your sincerity in admitting making a mistake if that’s the case.  In some counties, probation officers may have a bigger or smaller case load — and unfair as it may be, that can also impact their decision.

If you have questions about how a probation officer is treating you or if you’re not sure about legal representations they make to you — it is not inappropriate at all to involve a lawyer.  Also remember that you have the right to remain silent even with a probation officer about violations they may allege.

*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 particular matter you should consult an attorney directly.

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New Photo-Lineup Bill May Become Texas Law

March 25, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

The Texas legislature is considering measures to give force all law enforcement agencies conducting photo-lineups to have uniform standards and uniform procedures.

This article summarizes the problem and the situation.  Texas has had an atrocious record of wrongful convictions, and the statute is designed at eliminating one of the root causes — photo lineups that are not done correctly.  Experts agree that often the person administering the photo lineup can consciously or subconsciously influence the witness.

The measure will not entirely invalidate photo-lineups that don’t comply, however.  As long as the lineup “substantially complies” with state law, it will still be legal.  This clause takes a lot of bite out of the law, but it’s a step in the right direction none-the-less.

*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 pertaining to any legal matter you should consult an attorney directly.

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