©TCDLA 2020. All rights reserved.
Texas Criminal Defense Lawyers Association 6808 Hill Meadow Dr., Austin, Texas 78736
BATTLING THE RESISTANCE IN TYLER SEMINAR INFORMATION Date Location Course Director
January 15, 2021 Livestream Event Mishae Boren and Bobby Mims
Total CLE Hours 6.0 Ethics: 1.0 6.0 Friday, January Ethics: 1.015, 2020
Time
CLE
8:15 am
Daily CLE Hours: 6.0 Topic
Ethics: 1.0 Speaker
Opening Remarks
Bobby Mims and Mishae Boren
8:30 am
.75
The More Important the Action, the Greater the Resistance: (Cross Examination)
Kyle Therrian
9:15 am
1.0
The Battle Must be Fought Anew Every Day: (Pretrial)
Molly Bagshaw
10:15 am 10:30 am
Break .75
11:15 am 11:30 am
The Resistance is Fueled by Fear: (Opening Statements)
Clay Steadman
Lunch Break 1.0 ETHICS
12:30 pm
The Resistance is Self-Sabotage: (Mental Health)
Dustin Nimz
Break
12:45 pm
.75
Procrastination; the Most Common Resistance and the Easiest to Rationalize: (Voir Dire)
Clifford Duke
1:30 pm
.75
Controlling the Perceptions: (Experts)
Jolissa Jones
2:15 pm
1.0
When the Finish Line is in Sight: (Closing Arguments)
Matthew Allen
3:15 pm
0
Local Update and Roundtable
Bobby Mims and Mishae Boren
3:30 pm
Adjourn
TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Texas Criminal Defense Lawyers Association
Battling the Resistance-Tyler Table of Contents
Speaker
Topic Friday, January 15, 2021
Kyle Therrian Molly Bagshaw Clay Steadman Dustin Nimz
The More Important the Action, the Greater the Resistance: (Cross Examination) The Battle Must be Fought Anew Every Day: (Pretrial) The Resistance is Fueled by Fear: (Opening Statements) The Resistance is Self-Sabotage: (Mental Health)
Clifford Duke
Procrastination: The Most Common Resistance and the Easiest to Rationalize: (Voir Dire)
JoLissa Jones
Controlling the Perceptions: (Experts)
Matthew Allen
When the Finish Line is in Sight: (Closing Arguments)
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Texas Criminal Defense Lawyers Association
Battling the Resistance-Tyler January 15, 2021 Livestream
Topic: The More Important the Action, the Greater the Resistance: Cross Examination Speaker:
Kyle Therrian 4500 W Eldorado Pkwy Ste 3000 McKinney, TX 75070-5758 (972) 369-0577 Phone (972) 369-0532 Fax kyle@texasdefensefirm.com
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Battling the Resistance – Cross Examination
BATTLING THE RESISTANCE- CROSS EXAMINATION
KYLE THERRIAN Rosenthal, Kalabus & Therrian 4500 Eldorado Parkway, Suite 3000 McKinney, Texas 75070 www.texasdefensefirm.com kyle@texasdefensefirm.com (972) 369-0577 (office) (972) 369-0532 (fax)
BATTLING THE RESISTANCE January 15, 2021 Tyler, Texas
Battling the Resistance – Cross Examination
Table of Contents Introduction ........................................................................................................................ 1 The greatest legal engine ...............................................................................................................1
A Constitutionally Protected Right ..................................................................................... 2 The Sixth Amendment’s Confrontation Clause ................................................................................2 Black Letter Basics .........................................................................................................................3
Limitations on Cross Examination ...................................................................................... 4 The “scope of direct examination”..................................................................................................4 Cross examination can’t be denied, but can be limited ....................................................................4
Witness impeachment ........................................................................................................ 6 Impeachment generally .................................................................................................................6 Character for truthfulness ..............................................................................................................6 Prior inconsistent statements .........................................................................................................7 Impeachment with prior convictions ..............................................................................................8 Learned treatises ...........................................................................................................................9 Impeachment style points ..............................................................................................................9 Preparation is the key to effective cross examination ................................................................... 12 Organization: chapters which advance your theme ....................................................................... 12 The three rules of cross-examination ............................................................................................ 13
Confrontation and the pandemic ..................................................................................... 15 Cross-examination in the crosshairs.............................................................................................. 15 TCDLA COVID-19 Taskforce resources ........................................................................................... 15
Introduction The greatest legal engine “Cross Examination is beyond a doubt the greatest legal engine ever invented for the discovery of truth.” 3 J. Wigmore, Evidence § 367, p. 27 (2d ed. 1923). Cross-examination is truly an artform belonging to the practice of criminal defense. In an arena where our client’s often exercise the right to not testify, and where we lean on the presumption of innocence without presenting witnesses at all, cross-examination is where we tell our client’s story. Preparing for trial is preparing for an impending clash between your client’s version of truth and someone else’s. Regardless of whether a witness perceives a different variation of truth or purely concocts one for the prosecution, the constitution affords confrontation in the form of cross-examination. And to that end, confrontation means what it says: Confront vb. (16c) 1. To stand face-to-face with, esp. defiantly; to present a bold front to. 2. To oppose or be opposed by; to encounter (difficulties, obstacles, etc). 3. To bring into the presence of; to put faceto-face with. 4. To set in opposition for comparison; to compare. CONFRONT, Black’s Law Dictionary (11th ed. 2019). The clash of accusation and the defendant’s challenge “permits those tasked with deciding the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing credibility.” California v. Green, 399 U.S. 149, 158 (1970). In 1895 the Supreme Court described it as the “ordeal of cross examination.” If you think the Supreme Court meant anything less than the common understanding of the word “confrontation” consider then the word “ordeal” and its distinct legal history: “primitive form of trial in which an accused person was subjected to a dangerous or painful physical test, the result being considered a divine revelation of the person’s guilt or innocence.”). ORDEAL, Black’s Law Dictionary (11th ed. 2019) The goal of this paper is to help practitioners hone their cross-examination skills through a discussion of the law pertaining to cross-examination, some important tips in utilizing cross-examination in criminal cases, and exploring a few prevalent areas of cross examination and confrontation in criminal defense today.
A Constitutionally Protected Right The Sixth Amendment’s Confrontation Clause The Sixth Amendment of the United States Constitution provides In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. U.S. Const. amend VI. Self-described as a jurist who “ought to be the darling of the criminal defense bar,” Justice Antonin Scalia was a modern champion of the Sixth Amendment, placing the constitutional guarantee into prominence in the most Scalia-esque way, with the history leading to its adoption. Robert Smith, Antonin Scalia’s Other Legacy, Slate (Feb. 15, 2016). As drafted by the founders, confrontation is explicit adoption of an English system of live testimony subject to adversarial testing and a rejection of a European civil-law system which “condone[d] examination in private by judicial officers,” and permitted ex parte question and answer submitted to the court in written depositions. Crawford v. Washington, 541 U.S. 36, 43 (2004). From this history, Scalia made clear that confrontation is more than the mere constitutional codification of the rule against hearsay: First, the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused. It was these practices that the Crown deployed in notorious treason cases like Raleigh’s; that the Marian statutes invited; that English law’s assertion of a right to confrontation was meant to prohibit; and that the foundingera rhetoric decried. The Sixth Amendment must be interpreted with this focus in mind. Accordingly, we once again reject the view that the Confrontation Clause applies of its own force only to in-court testimony, and that its application to out-of-court statements introduced at trial depends upon "the law of Evidence for the time being." 3 Wigmore § 1397, at 101; accord, Dutton v. Evans, 400 U.S. 74, 94, 27 L. Ed. 2d 213, 91 S. Ct. 210 (1970) (Harlan, J., concurring in result). Leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices. Raleigh was, after all, perfectly free to confront those who read Cobham's confession in court. This focus also suggests that not all hearsay implicates the Sixth Amendment's core concerns. An off-hand, overheard remark might be unreliable evidence and thus a good candidate for exclusion under hearsay rules, but it bears little resemblance to the civil-law abuses the
Confrontation Clause targeted. On the other hand, ex parte examinations might sometimes be admissible under modern hearsay rules, but the Framers certainly would not have condoned them. The text of the Confrontation Clause reflects this focus. It applies to "witnesses" against the accused--in other words, those who "bear testimony." 2 N. Webster, An American Dictionary of the English Language (1828). "Testimony," in turn, is typically "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-ofcourt statement.
Black Letter Basics Incorporation. The bedrock guarantee of confrontation applies to both federal and state prosecutions. Pointer v. Texas ,380 U.S. 400, 406 (1965). The three purposes of confrontation. Ensure that the witness would testify under oath and understand the serious nature of a criminal trial, (2) to allow the accused to cross-examine the witnesses who testify against him; and (3) to allow jurors to assess the credibility of a witness by observing that witness’s behavior. Mattox v. United States, 156 U.S. 237 (1895). Testimonial statements. The Confrontation Clause works to exclude only those out-of-court declarations which are testimonial. The grayest area, and place of most significant debate, exists between those statements which describe ongoing emergencies and those which become accusatory. Davis v. Washington, 547 U.S. 813, 822 (2006). The requirement and the exception. The Constitutional requirement of the right to confront those who offer testimonial statements is subject to limitation. Upon a showing of witness unavailability, the use of hearsay statements of a witness whom the defendant had the opportunity to previously cross examination does not offend the Sixth Amendment. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009). Face-to-face. The right to confrontation generally requires face-to-face or in-person examination of witnesses. “[I]t is that personal presence of the defendant and the right to ask probing, adversarial crossexamination questions that lies at the core of an American criminal trial's truth-seeking function.” Coronado v. State, 351 S.W.3d 315, 325 (Tex. Crim. App. 2011).
Limitations on Cross Examination The “scope of direct examination” There are two competing approaches to constraining the scope of cross examination. The American rule (the majority approach) limits the scope of cross-examination to topics covered by direct examination and any matters affecting the credibility of a witness. The English rule permits cross-examination on any matter relevant to the proceedings. Federal Rule 611(b) adopts the American Rule: “cross-examination should not go beyond the subject matter of direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.” Broad discretion is afforded to the trial court in determining how direct examination may be exceeded by cross-examination seeking to test truthfulness of a witness. United States v. Contreras, 602 F.2d 1237, 1242 (5th Cir. 1979). Texas has no such limitation. Texas follows the English Rule. Texas Rule of Evidence 611(b) provides “[a] witness may be cross-examined on any relevant matter, including credibility.” Prohibiting crossexamination which could lead to the impeachment of a state’s witness is grounds for reversal. Carroll v. State, 916 S.W.2d 494 (Tex. Crim. App. 1996).
Cross examination can’t be denied, but can be limited Both in Texas and in federal courts, Rule of Evidence 611 grants general authority to trial judges for the “Mode and Order of Examining Witnesses and Presenting Evidence.” That rule provides: (a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment; While a trial judge’s exercise of this authority is restrained by the constitution, Sixth Amendment confrontation rights are not unlimited. Both Texas and federal courts recognize the same authority— memorialized by Rule 611—to limit harassing, repetitious or confusing cross-examination even in the face of constitutional considerations. United States v. Balliviero, 708 F.2d 934, 938 (5th Cir. 1983); United States v. Ackal, 705 F.2d 523 (5th Cir. 1983); United States v. Young, 655 F.2d 624 (5th Cir. 1981); Clark v. State, 365 S.W.3d 333 (Tex. Crim. App. 2012). This is a delicate balance, and especially so in Texas courts where more latitude is afforded on cross. Texas shifts this balance even further in favor of the defendant by recognizing the legitimacy of exploratory cross-examination even without a requirement that the cross-examining party articulate a purpose or objective behind the questioning. Carroll v. State, 916 S.W.2d 494 (Tex. Crim. App. 1996). If the right to confrontation were a Venn Diagram, there would be a slight sliver of the Fifth and Fourteenth Amendments’ Due Process clauses overlapping the Sixth. Seemingly co-extensive with the any rights protected under the Sixth Amendment, it should be noted that the Supreme Court has articulated on more than one occasion, “[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth
Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.” Holmes v. South Carolina, 547 U.S. 319, 319 (2006)(citing Crane v. Kentucky, 476 U.S. 683, 690 (1986). A discussion of the constitutional dimension of cross examination is not merely to underpin its importance. A substantial part of effective cross-examination is in the preservation of error when a trial court unduly cuts it short. To this end, there are two important rules practitioners need to know in every case: (1) object to the trial court’s limitation and cite the constitutional bases for the trial court’s error, and (2) make an offer of proof which state’s the relevance of the questioning and urges the court to reconsider.
Witness impeachment Impeachment generally Federal and Texas Rule of Evidence 607 provide “any party, including the party that called the witness, may attack the witness’s credibility.” This is an explicit abandonment of the “voucher rule” which was falsely premised upon a notion that the party calling a witness holds that person out as worthy of belief. This broadly stated rule is limited in one regard: a party may not call a witness simply to open the door to impeachment evidence otherwise not admissible. Hughes v. State, 4 S.W.3d 1 (Tex. Crim. App. 1999).
Character for truthfulness A standard jury charge admonishes “you are the exclusive judges of the facts proved, of the credibility of the witnesses, and of the weight to be given to the testimony.” In order to fairly judge a witness’s credibility, the jury must consider whether there is a basis to call it into question. It is our job as crossexaminers to put legitimate character issues before the jury for consideration. Texas and Federal Rule of Evidence 608(a) The first rule of truthfulness impeachment is simple. Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked. Federal Rule 608(b) The second rule varies between Texas and federal court. The federal rule is broad: (b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross examination,
allow them to be inquired into if they are probative truthfulness or untruthfulness of: (1) the witness; or (2) another witness whose character the witness being cross-examined has testified about. Under the federal rule, you can ask about specific instances of conduct upon a good-faith belief that conduct reflects upon the witness’s character for truthfulness or untruthfulness. The rule is stated broadly enough that virtually any act of dishonesty or deceit is fair game. Job applications, tax returns, officer employee files are all fair game. The main limitation is that the cross-examiner is stuck with the answer
the witness provides—if the dishonest witness gives a dishonest response, extrinsic proof is prohibited (unless the question pertains to a prior criminal conviction under Rule 609). But keep in mind, nothing in Rule 608(b) prevents a lawyer from providing copies of the relevant documents to a witness and asking about them. Assuming the witness is not versed in Rule 608(b), confrontation with a truthful document should panic the witness into admitting the truth. Texas Rule 608(b) (and its exceptions) There is no latitude for impeachment for truthfulness (at least under Rule 608). Texas Rules of Evidence limit impeachment by extrinsic evidence to evidence of ciminal convictions qualifying under Rule 609 only. However, in certain circumstances, the constitution may override. “[W]e acknowledge that the Confrontation Clause occasionally may require the admissibility of evidence that the Rules of Evidence would exclude.” Lopez v. State, 18 S.W.3d 220, 225 (Tex. Crim. App. 2000). In Lopez the court discussed the potential for admissibility of a victim’s prior unrelated false accusations, notwithstanding their exclusion under Rule 608. The Court of Criminal Appeals found, despite the possibility that such evidence could be admissible under the defendant’s right to confrontation, the evidence was not sufficiently probative of untruthfulness to override the limitation of Rule 608. Texas Rules of Evidence provide other avenues for extrinsic evidence impeachment: Texas Rule of Evidence 613 allows for extrinsic evidence impeachment to show bias or self-interest, and Texas Rule of Evidence 404(b) allows for extrinsic evidence of other acts of misconduct to establish a person’s motive (for making a false allegation). See Hammer v. State, 296 S.W.3d 555, 563 (Tex. Crim. App. 2009).
Prior inconsistent statements Impeaching with prior inconsistent statements are the “flea-flicker play” of cross-examination: hard to pull off, so fun to do/watch. Most of us prepare for cross-examination by working from a known set of facts (either truths that are universally true, truths that are true because the witness has previously adopted them as true, or truths that are true based on deduction from a witness’s previous statement). When a witness previously said “X” is true and now testifies that instead “Y” is true, it is time for impeachment. Federal Rule 613 The federal is less stringent than the Texas rule. Virtually any inconsistent statement is fair game. It can be sprung on the witness and the opposing party without warning. Nobody needs to see it. The crossexaminer need not give the witness the witness time, place, or context of said statement. The witness gets an opportunity to explain (at some point, but when is unimportant). If the witness denies making the previous statement, the cross-examiner may admit the statement into evidence, if sworn. See Rule 801(d)(1). Texas Rule 613 The Texas rule sucks a little bit of the fun (surprise) out of impeachment with a “foundation requirement.” “When examining a witness about the witness’s prior inconsistent statement—whether oral or written—a party must first tell the witness: (A) the contents of the statement; (B) the time and place of the statement; and (C) the person to whom the witness made the statement.” Under the current Texas Rule 613, the witness need not see the statement prior to inquiry, but opposing counsel must be shown if requested; the witness must be afforded an opportunity to explain or deny (at some point), and; extrinsic evidence of the witness’s statement is admissible if the witness unequivocally fails to admit to
making the statement. As stated above, Texas Rule 613 also permits this impeachment when there is a prior inconsistent statement or to show the witness has a bias or self-interest in his or her testimony. Roughly the same procedures for impeachment apply to showing bias or self-interest.
Impeachment with prior convictions Both the federal and the Texas rule permit impeachment of a witness using prior convictions to show truthfulness, but only when certain conditions are met. Those conditions vary between the Texas and federal rules. Federal Rule 609 The federal rule first requires satisfaction of one of two preconditions before impeaching a witness with a prior conviction: (1) the crime was punishable by death or imprisonment in excess of one year, or (2) the crime involves dishonesty or false statement, regardless of the punishment. Next, if the offense is admissible merely because it meets the one-year-punishment requirement, the federal rule requires a 403 prejudicial-v-probative balancing test for an ordinary witness, and if the witness is the defendant, the balance requires that “the probative value of the evidence outweighs its prejudicial effect to the defendant.” (an almost-inverse variation of 403). If more than 10 years have passed since the witness’s conviction or release from confinement (whichever occurred later), the probative value of the prior conviction must substantially outweigh the prejudicial effect (an inverse variation of 403). Federal Rule 609 also has rules on the affect of pending appeals, pardons, annulments, and juvenile cases. If you think these might pertain to your impeachment, be sure to read Rule 609 thoroughly. Texas Rule 609 The Texas rule places three preconditions on admissibility, all which must be met: (1) the offense was a felony or involved moral turpitude, (2) the probative value outweighs prejudicial effect to a party (an almost-inverse variation of 403), and (3) it is elicited from the witness or established by public record. The Texas rule places the same time-based restriction on prior convictions: after 10 years (from the later of conviction date or confinement release) the probative value must substantially outweigh prejudicial effect (inverse variation of 403). Like the federal rule, the Texas rule places other limitations pertaining to appeals, pardons, annulments, and juvenile cases which should be reviewed in appropriate cases. One significant difference between the federal and the Texas rule is the ability to invoke notice requirements. Texas Rule of Evidence 609(f) provides: Evidence of a witness’s conviction is not admissible under this rule if, after receiving from the adverse party a timely written request specifying the witness, the proponent of the conviction fails to provide sufficient written notice of intent to use the conviction. Notice is sufficient if it provides a fair opportunity to contest the use of such evidence. This rule can operate as a handy way to exclude the State’s evidence when they neglect to comply. I personally make this request in the same document as my written request for discovery, expert designation, and 404(b) evidence. I submit this contemporaneously with my letter of representation.
Learned treatises Another way to confront a witness with facts written elsewhere is through the hearsay exception for learned treatises. Both Texas and Federal Rule of Evidence 803(18) exclude from hearsay statements contained in a “treatise, periodical, or pamphlet.” The preconditions are: (1) the witness is testifying as an expert, (2) the statement is called to the attention of the expert on cross or relied upon by the expert on direct, and (3) the publication is established as reliable authority by that expert, another expert, or judicial notice. The most important part of Rule 803(18) is the final sentence: “If admitted, the statement may be read into evidence but not received as an exhibit.” This explicit authorization makes a learned treatise nearly as useful as a prior sworn statement.
Impeachment style points My law school trial techniques professor and mock trial coach trained her students like football players running drills – and it worked; eleven years later, I still use the same technique. This method works with all the rules (federal and state), it happens so quickly that your opponent can’t do much about it, and it exudes courtroom command and avoids the messiness of having jurors review documents later which prove the witness was dishonest. The general approach is as follows: ▪
Identify the statement: “you previously made a statement [identify]”
▪
Elevate the prior statement and cut off safe-harbors: elevate the importance and significance under which the prior statement was made: “you told the truth, telling the truth is important, swore to the truth (if applicable).” Build on this significance with the witness’s commitments to thoroughness, accuracy, etc.
▪
Approach and present: “I’m now showing you your previous [statement/report/whatever].”
▪
Loop-and-impeach: “in your thorough report where you were telling the truth, you said [whatever].” Read the statement verbatim (the good part)(in your favorite tone of voice for the circumstance). Then, ask simply “did I read that correctly?”
▪
Sit down and shut up, next topic: let ‘em explain it on redirect. Move on. The jury saw what you just did. It hurt the witness. No more work to be done.
Seven times out of ten you will get an objection “reading from a document not in evidence.” To the attorney who prepares their cross examinations carefully and tailors them to the Rules of Evidence, your ears will only hear “I object because that was done masterfully, and I don’t like it!” The simple reply is that “this is impeachment permitted by Rule 613.” Below is an example of how this all comes together: Q: You testified on direct examination that Mr. Smith didn’t come to a complete stop at the light on 1st Street? A: Yes. Q: You prepared an offense report in this case, correct [date, place, whatever you think is
necessary in the moment to identify the report]? A: Yes. Q: Offense reports are important because people rely on them? A: Yes. Q: Prosecutors rely on them to make decisions in a case? A: Yes. Q: Defense lawyers rely on them to advise their clients? A: Yes. Q: You rely on them, should you need to refresh your memory about an arrest? A: Yes. Q: When you prepare offense reports, you do so honestly, you tell the truth? A: Yes. Q: When you prepare offense reports, you are thorough? A: Yes. Q: When you prepare offense reports, they are complete with the bases for a traffic stop / arrest / conviction (separate questions)? A: Yes. Q: Your offense report in this case is a complete, thorough, detailed report? A: Yes. Q: You were honest when you wrote your offense report in this case? A: Yes. [approach and present] Q: In your honest, complete, and thorough offense report, you indicated “the subject vehicle came to a complete stop prior to turning right on 1st Street.� Did I read that correctly? A: Yes. [sit down and move on]
This is far from a “kill-them-with-kindness” style of cross-examination. Some practitioners seek to soften the blow of impeachment based on their familiarity with their own jurisdiction and their perception of the community’s patience for confrontation with certain types of witnesses. My suggestion is, rather than watering down this approach, tap your intuition and use it as judgment on whether an impeachment is necessary. When it is, it should be done with maximum effect and by leaving nowhere to run. Watering it down, leads to chasing the witness’s quibbles.
Preparation, Style, and Technique Preparation is the key to effective cross examination An effective cross-examination leaves the jury with the impression that the lawyer is the authority on the facts of the case. Indeed, in a successful cross-examination, the witness agrees with every question posed or is punished by impeachment for disagreeing. There are many elements to accomplishing this feat, but preparation is the foundation. Because every cross-examination question should be one that the crossexaminer is entitled to a favorable response, questions must be crafted in a manner leaving little room for quibbling. I create a script for my cross-examination questions for this very reason. I don’t stop at scripting. I also annotate my cross-examination questions, too. When you script questions which demand a favorable response, there must be consequences for a witness who produces an unfavorable one. Cross-examination includes the impeachment that should come when the witness fails to play fair. Annotating a script with a citation to the information (report/manual/treatise/statement) that demands the favorable response is key. This type of preparation is the foundation for swift impeachment; and swift impeachment is the foundation for the witness learning to not disagree with you again. Consider for a moment whether you can answer right now this question: where in the NHTSA DWI manual does it train officers on how to be persuasive in their testimony? Go to your bookshelf and grab your NHTSA manual. Now hit your stopwatch and see how long it takes you to find it. That’s exactly how long the jury would have watched you dig around to show them why the witness is wrong. Aside from this lesson of the benefits reaped from my own obsessive compulsiveness, my golden rules of cross examination preparation and techniques I learned from Larry Pozner and Roger Dodd. Their book “Cross-Examination: Science and Techniques” is a must read – the rest of this discussion consists of highlights of their methodology.
Organization: chapters which advance your theme If you want the factfinder to digest your version of facts, you need to organize your examinations in a digestible format. In this regard, cross-examination organization shares a lot in common with drafting findings and fact and conclusions of law. No matter what part of a case you are preparing, you should always start with a theme—your theory of an acquittal (or mitigation). It informs how you prepare and organize. It informs what you add and what you cut. This is especially true for cross-examination. Pozner and Dodd teach the “chapter method” of crossexamination. The chapter method breaks your cross-examination into topics which advance your case theme. Every question advances the topic, every topic advances the theme. Generally, a chapter is limited to a single typewritten page in your trial notebook. A chapter progresses in a logical sequence, begins generally and increases toward the specific. A chapter ensures you paint one picture at a time. Below is an example of a series of questions from a cross-examination with an officer who I knew had a reputation of “trying to be the lawyer” when he testifies.
2. Officer is not neutral; officer is here to persuade
This officer is not a witness, this officer is an advocate ▪ ▪ ▪
NHTSA trains you to be persuasive (S12 p. 33 of 42) NHTSA trains repetition and other techniques of testimony (S12 p. 33 of 42) NHTSA trains persuasive demeanor and eye contact (S12 p. 33 of 42)
This chapter involved a series of questions all aimed at showing the jury that the witness was not a neutral repository of facts, but instead his role in the trial was to convert seemingly innocent facts into facts of guilt through his training in persuasion and coordination with the district attorney. I grouped this trilogy of questions together in a segment with a heading. The heading does not serve as an actual question (the officer would never agree). Instead the heading is the picture I want to paint in the jury’s mind with these grouped-together similar questions. Because these all involve more obscure references to the NHTSA DWI manual, in preparation I did not expect the officer to have a specific memory of this part of his training, nor would I have a specific memory where to find it in the book. Thus, annotations.
The three rules of cross-examination Leading questions only In law school it was taught as “never ask question you don’t already know the answer to.” Posner and Dodd describe this as “avoiding enemy words.” No “who, what, when, where, how, why, explain, so, but.” Leading questions allow the cross-examiner to be the teacher. A leading cross-examination question should be a short declarative statement in the form of the question. They need not always be preceded by an “isn’t it true” phrase or concluded with a “correct?” or “right?” Inflection of voice and context can turn a declaration into a question. “you used laser to determine [client]’s speed, right?” “You pointed that laser into oncoming traffic?” With both context and the correct inflection of voice the jury and the witness will receive this declarative statement as a question. One new fact per question K.I.S.S. Keep it simple stupid. A cross-examination question should be a short concise question that establishes a single fact. The hesitation by some in this area is attributed to a false belief that packing multiple facts into a single question helps to expedite the trial. Short concise single-fact questions that are irrefutably answered by the witness with a “yes” puts the witness on the “yes-train.” The witness joins in the cadence of the questioning and is disincentivized from equivocating, quibbling, or engaging in debate. Short concise single-fact questions also paint a more vivid picture and sometimes let you emphasize good facts. Compare: “You cheated to help yourself and get ahead?” With: “You cheated?” “You cheated to help yourself?” “You cheated to get ahead?”
The first scenario is exactly loaded enough for the witness to try to find a way to quibble. The second scenario calls the witness a cheater three times and introduces one new fact per question. The progression creates a scenario where it is difficult for the witness to disagree with the next question if they already agreed with the preceding question. Start with the general and proceed to the specific A handful of general and indisputable premises, once agreed upon, makes it hard for a witness to quibble with specific declarative leading questions. Compare: “My client’s lane change was not unsafe, was it?” With: “Circumstances are what make a lane change unsafe, would you agree?” “Time of day matters?” “Traffic patterns matter?” “Weather conditions matter?” “You stopped Johnny at 1:00 AM?” “There was no traffic?” “The weather was clear?” “You would agree Johnny’s lane change at 1:00 AM with no traffic and clear weather was not unsafe?” First question, fifty-fifty chance you get quibble. Second series of questions builds a foundation from general indisputable premises all of which lead to a specific goal: a concession on a specific declarative statement that advances your chapter and your theme. But before reaching that specific declarative statement, you’ve first placed the witness atop a mountain of his own concessions and at a height from which he or she is afraid to fall. The power of listening Don’t be a slave to your script. Listen to what the witnesses say on direct examination. Use your judgment whether to cut-off on non-responsive cross-examination answers. Some of the best closing-argumentworthy quotes come from a nonresponsive answer where the witness put their foot in their mouth. A routine example of this is the blame-shifting or blame-spreading responses which come with particularly effective witness-damaging cross-examinations. If a witness wants to throw others under the bus, or blame policies and procedures, I grab my pen and pad. “So it’s not just you who does this [awful thing], it’s the whole department?” Well hell, now the jurors can see this awful thing happening to themselves.
Confrontation and the pandemic Cross-examination in the crosshairs The Texas Supreme Court has issued more than two dozen orders pertaining to the practice of law during the pandemic. Many of those pertain to procedures for the possibility of safe in-person jury trial and virtual proceedings. Though none of these orders explicitly state that a trial court may virtually conduct a proceeding to which the Confrontation Clause applies, some trial courts have interpreted such authorization. One thing has been consistently and abundantly clear in every Supreme Court order pertaining to virtual participation in court proceedings: any authorization to conduct virtual hearings or trials are “subject only to constitutional limitations.” Just this month (January 2020), the Court of Criminal Appeals reiterated that the right to confrontation is an in-person right. Substitution of virtual cross-examination for that intended by the founders must be supported by “important policy concerns” articulated by the State. Haggard v. State, No. PD-0635-19 (Tex. Crim. App. 2020). Whether “the pandemic” constitutes an important policy concern has yet to be determined, but we do know “[t]he Constitution is not suspended when the government declares a state of disaster.” In re Abbott, 601 S.W.3d 802, 805 (Tex. 2020).
TCDLA COVID-19 Taskforce resources TCDLA has assisted its membership in a multitude of ways during the pandemic. The COVID-19 Taskforce has set out to predict and address some of the most prevalent legal issues facing criminal defense lawyers. That team has compiled an incredible stockpile of resources and posted them to the TCDLA website for the use of our membership. Whether your client is being denied a bond because of the Governor’s unconstitutional suspension of Article 17 provisions, or you are being forced into a trial that is unsafe or curtails your client’s rights by imposing mandatory virtual elements, you can find motions and guides on how to handle these difficult situations. Check out: https://www.tcdla.com/TCDLA/COVID.aspx And if you just need to kick some ideas around, feel free to call or email any one of the members of the committee. Our contact information is listed in the same link.
Texas Criminal Defense Lawyers Association
Battling the Resistance-Tyler January 15, 2021 Livestream
Topic: The Battle Must be Fought Anew Every Day: Pretrial Speaker:
Molly Bagshaw 3515 Fannin St Houston, TX 77004 (713) 526-6300 (713) 808-9444 molly@houstoncriminaldefense.com
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
The Battle Must be Fought Anew Every Day: (Pretrial) January 2021 Molly Bagshaw Hochglaube & DeBorde, P.C. Houston, Texas molly@houstoncriminaldefense.com (713) 526-6300
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Below you will find a checklist of all of the things we do in our office the second we get hired on a case. Pre-trial is everything. It can make or break a case for your client. Cases are best won at the trial court level and that starts on day one. As the old saying goes, “you’d rather have it and not need it, than need it and not have it.” That is exactly what you should be thinking throughout the entirety of your client’s case. Obviously, things are changing every minute with the uncertainty of 2020, but these are the main things you have to do to ensure the best representation for your client. Every county is different but these principles persist. Most of our work is in Harris County, TX so keep in mind a lot of my advice is based on my experiences there. You will notice throughout my presentation that I make mention of certain filings, letters, or motions that I use in practice. I have compiled 15 of them for your easy reference and they are included with my presentation for easy reference. They are prepared for you to plug in your information, your client’s, and in some instances the facts specific to your case if necessary in an easy word format. I have included a guide here for your reference and highlighted in yellow throughout the paper you will see where they come up: MOTIONS/FILINGS BANK *Reminder to change/double check pronouns for male/female clients! 1. NOTICE OF APPEARANCE 2. REQUEST FOR DISCOVERY 3. MOTION TO APPOINT INVESTIGATOR 4. AKE MOTION 5. MOTION FOR RESTRICTED PRODUCTION OF CAC VIDEO AND FOR PROTECTIVE ORDER DURING COVID-19 PANDEMIC 6. STORED COMMUNICATIONS ACT PROPOSED COURT ORDER 7. LETTER TO PRESERVE/REQUEST SURVEILLANCE 8. LETTER TO CLIENT RE: PLEA OFFER 9. MOTION FOR THE COURT TO DIRECT THE COURT REPORTER TO RECORD PROCEEDINGS 10. FORMAL REQUEST FOR COMPLIANCE WITH ARTICLE 39.14 11. MOTION FOR PRODUCTION OF EVIDENCE FAVORABLE TO THE ACCUSED 2
12. MOTION TO DISCLOSE INFORMATION REGARDING THE VENIREMEN 13. MOTION TO REQUIRE STATE TO LIST ITS WITNESSES 14. REQUEST FOR DISCLOSURE OF EXPERTS 15. MOTION IN LIMINE Pre-Trial – where do I start and where do I go from there? Court Filings Notice of appearance/motion to substitute § SAMPLE #1: NOTICE OF APPEARANCE § Make sure to file the NOA immediately so you can get attached to the case and get notification of all filings. If you are substituting for another lawyer, talk to that lawyer and make sure you notify them. Get them or someone from their office to sign the motion to substitute. You can also sign by permission but it is better to get them to sign themselves so there is no confusion later on. Request for discovery § SAMPLE #2: REQUEST FOR DISCOVERY § Preserve all issues for appeal and get access to everything we are entitled to. Go to the word document for all the specific language regarding this filing. Connect yourself to the portal § Harris County, Fort Bend County, and Montgomery County have all moved to an online portal system for discovery. You create a login and will get notifications to your email every time an ADA uploads new discovery to the case. Gone are the days where you go to court and you look at the paper file to see what is in there (unless it’s juvenile!). If your county hasn’t followed suit yet they likely will soon or at some point down the road. It can be extremely helpful to see all the discovery in one place. This will show you that if nothing has been uploaded. This means you can get information even before your next court setting as it comes up. Embrace the change! Getting to know the county § Every county is different so make sure if you take a case in a new county or even if you’ve been in the county for years, don’t be afraid to ask if they’re moving to an online portal. Ask if there are any county specific procedures you should know about so you are always on top of things. Set up/check notifications for you and your staff § Consider adding a legal assistant, clerk, or associate to your notifications. That way you won’t miss any new discovery the second it comes through. Also have a system in place to make sure you’re checking filings to see if the state has requested any subpoenas, etc. so you’re always ahead of the game.
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Consider using mycase, Clio, or an online portal to share documents § Our clients love this portal. We use “mycase” but everyone has their own preference. You can share court filings, reset forms, get electronic signatures, send them calendar invitations, and take notes regarding meetings and calls. The client can send you messages and even upload their own documents. It will even keep track of your time for you. You can share documents with co-counsel, investigators, and experts. Your “file” can be in one digital place so again I would encourage everyone to embrace this tech-direction the law is moving. The Client This is your greatest source of information Build rapport and don’t expect they’ll tell you everything right away. Especially if you are appointed there is a level of mistrust the client will have immediately. It is our job as the lawyers not to take it personally and to prove to them that we are on their side. That may take time so be patient with them. Get your client to sign releases for previous attorney files, for medical records (HIPAA compliant), for the ability to share information about their case with certain family members they’ve agreed to (unless and until they withdraw that consent). Utilize Zoom/Microsoft Teams/Google Meet § Just because we are in a pandemic, that doesn’t mean that you can’t safely “meet” with your client. I prefer zoom but there are many different platforms. You can use these meetings to share discovery, to check in with them, or to just build rapport. Keep a running list of check-in’s/meetings § This is another example where an online system can come in handy. If you make a note of all of the conversations you had it will help you know it’s time to have another one. You can also make a note of “told client state offered 10 years on this date and they rejected it” and then you KNOW you are doing your job and everything you are supposed to do. It’s easy for these things to get lost in the shuffle so documentation is your friend. It is crucial. Whatever your system may be even if it’s a paper file – get it down in writing. Witnesses Call every single person on the offense report (or investigator) § It may not be argued that a given course of conduct was within the realm of trial strategy unless and until the trial attorney has conducted the necessary legal and factual investigation which would enable him to make an informed rational decision. Ex Parte Welborn, 785 S.W.2d 391, 395 (Tex. Crim. App. 1990). § You have to live by this principle ^ you do not want to leave any stone unturned. Too often on appeal cases we see a witness coming out of the woodwork that the attorney did not attempt to find and it could have
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made a huge difference. Don’t make that same mistake! It could be everything for your client. How do I talk to the witnesses? § It can be intimidating talking to witnesses but a good rule of thumb is to introduce yourself and who you represent. Then ask if they’d have time to talk to you. Some may slam the phone down and then you have your answer! Others might go on a long rant. Either way, that is great information to have. § If you’re going to call the complainant, have someone else in the room and make sure to record it. It’s a good idea to have your investigator reach out to this person because if you need to impeach their testimony at trial, you can use them instead of getting in to it with the witness yourself. § Record, record, record! Texas is a one-party consent state for recordings so you can record these conversations without having to inform the other party. ADA Communication Introduce yourself to the ADA. § It is important that they can put a face to the name. Especially now in 2020, while we are not in court, if you can reach out to them via e-mail and set up a phone call I’ve found it to be very beneficial. It shows them you are on top of the case and allows them to grow comfortable with you. I even sometimes offer to point them to the exact part of the offense report, body cam, or other piece of evidence that may cause them to look at the case differently. You should not be aggressive in any way, but you can be a pleasant co-worker and a zealous advocate at the same time. I strive to strike that balance in all of my cases but I know it will be a lifelong challenge. Check the website consistently to see if there has been a change in ADA. § Often times, the prosecutor will change on a case with you having no recollection. In Harris County, the DA portal tells you who the prosecutor is on any given case and updates as DAs move courts. You also should be able to call the DA’s office in any county and ask. Loop back around on issues/problems you see – they likely won’t § They are SO overwhelmed with cases. It is important to loop back around about something you flagged for them earlier ^ and see if they got a chance to look at it. Most will be appreciative that you are taking the time and that you care. If they don’t seem to be, take a note of that and maybe give them some more time or space. Again – strive to be the best coworker/advocate you can be. To subpoena or not to subpoena… If you can get any sort of record WITHOUT issuing a subpoena, then you absolutely should. You want to keep your cards to the vest as much as possible. You can utilize public information requests (see below), releases, family members, etc.
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Subpoena arresting agency, fire department, hospital records § Body cam, MDTs, etc. • “Please provide any and all available documentation regarding incident: INCIDENT #. Including, but not limited to 911 calls, incident reports, MDT’s, AVL’s, body camera footage, dash camera footage, and written and audio dispatch records.” …then provide all of the details re: the arrest. § The State will say they’re going to turn all of these over, but it is best practice to get them yourself. You may even get them before the State and that gives you more time to go through it. Jail records § Contact the jail and figure out if they need a specific release for anything. Especially for your client’s mental health records they will likely have some form of their own that needs to be filled out. Figure this out as soon as possible. School records (for client or for CW) § Many schools will send you the information for your client with just a release from them. You can subpoena records for complaining witnesses from their school and often times you will get those even without a protective order in place. CPS records – protective order § You should have access to any relevant CPS records through use of a protective order. Speak with the prosecutor on the case and they will get the protective order filed so that you can have access to the records. These are voluminous but worth reading. Public Information Act Requests Can do so without alerting the State § This is the beauty of the PIA request. You never have to turn that information over. § Call the group you are requesting information from and ask them how they want to receive the request. Many of them have email addresses for this specific reason. Then send an email “Pursuant to the Texas Public Information Act, please provide…” to that address and they should respond quickly. Have someone in your office do it – anyone can make this request, they do not have to be a lawyer Can often times be crucial! What can I get? § Personnel files of officers § Previous state’s files on your client’s former cases Investigators Appointed - motion to appoint investigator § SAMPLE #3: MOTION TO APPOINT INVESTIGATOR
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State the exact $$$ amount you want and the name of the person on the motion/order. This makes it that much easier for the Judge to sign off on it if there is no ambiguity. Hired – speak to the client about this straight away § Tell them exactly why you think you need an investigator. Is there a young complainant? Do you think it would be better to have a man/woman approach a certain witness? Are there many many witnesses listed? Is this a capital or a life case? Tell them who you are considering and how much they cost. Tell them it is up to them but why it is important. Again – cases are won at this phase. Why should I use an investigator? § Other than to work up the case as quickly and effectively as possible, another good reason to use an investigator is to protect yourself. You want to make sure your cases are effectively investigated and they will help you do that. As mentioned previously, you can use them to impeach witnesses later on. They have access to certain databases and information we wouldn’t even think about! They are invaluable to any good pre-trial investigation. Experts Retained: talk to client ASAP about the potential need § As earlier with investigators, tell the client WHY this is important and how much it will cost. A medical examiner, psychologist, or child psychologist are some of the most common experts to use in complicated cases. Appointed: Ake motion – EX PARTE § SAMPLE #4: AKE MOTION § This should be done EX PARTE so the ADA is not alerted to your defense strategy. You also may want them to only be a consulting expert and not a testifying expert, in which case you would not have to disclose the findings. Polygraph Consider a polygraph test for grand jury to include in your packet § These are not admissible in court but CAN present to the grand jury. We have gotten no bills with good polygraphs we have included (usually on sex-related cases). Might also open up a broader discussion with client § They may disclose more information to you before or after the polygraph and honesty between you and the client is always a good thing. We can best represent them if we know everything on the front end. If you do not get the results you want, simply don’t add it! Cabler Polygraph, LLC 3730 Kirby Dr., 12th Floor, Houston, Texas 77098 § Phone: 832-657-4712 stephen@cablerpolygraph.com § Or any local polygraph administering expert Phone Dump Can be very helpful in CW cases §
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If there are text messages, phone calls, maps followed, emails, or anything that can help us – we want to preserve it all as soon as possible § Can even be helpful in location/mis-identification cases to help establish alibi Again opens up conversations with your client – we need to see it all Eric Devlin, Lone Star Forensic Group, LLC. § 14027 Memorial Drive 391 Houston, TX 77079 (888) 632-6172 edevlin@lfg-texas.com email, www.lonestarforensicgroup.com website § Or any local person! Appointed – get screenshots so you can at least challenge whatever phone dump the state may do. Drug Testing Only if the facts are relevant to it… § For example, the client is alleged to have assaulted their wife while high on PCP. Suggest that they get a hair follicle (most accurate) drug panel done in order to cast doubt as soon as possible. Keep it in your back pocket or submit it with the grand jury packet. • Grand jury - a lot of this will depend on your ADA and that is why it is so important to strike up conversations with them early. What do they think of the case? Hair follicle Can also open up conversation with client re: the facts § We’ve suggested this to clients before and they have shifted their story to tell us the truth. You can genuinely believe them and want to help them by making this suggestion and others, but it may also give you better information than you would have otherwise had. A win either way! Grand Jury Packet What exactly is the grand jury? § In a felony case in Texas, every criminal defendant is entitled to an indictment by a grand jury. The grand jury is made up of 12 private citizens who determine whether there is probable cause for the case to continue. We, as defense attorneys, don’t get to go inside. Our clients don’t get to either. But we CAN submit a packet. It can be a one page letter, or it can be a 50-page packet with 15 exhibits. It really depends on the case and the prosecutor. You don’t want to give away too much to the grand jury unless you think the prosecutor is looking for a reason to drop the case. If they are – it may be worth the risk. Identify early on whether this is potentially a good “packet” case Anything goes! Don’t need to worry about admissibility Screenshots Surveillance – RING cameras (ask your client if they have one) §
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Polygraph Character letters CAC Videos Watch ASAP SAMPLE # 5: MOTION FOR RESTRICTED PRODUCTION OF CAC VIDEO AND FOR PROTECTIVE ORDER DURING COVID-19 PANDEMIC § We have watched a series of our Childrens Assessment Center videos over zoom during the pandemic. These motions ^ have made that happen. We would ideally get the transcript (in the motion) but being able to watch it remotely is the second-best thing. Look for suggestibility in the way the interviewer poses the question. They are law enforcement posing as a therapist and we need to be very wary of these interviewers and challenge them every chance we get. Consider hiring a video expert § We recently have used Dr. Kamala London and she is great! • kamala.london@utoledo.edu • Department of Psychology University of Toledo 2801 West Bancroft St. Toledo, Ohio 43606-3390 § They can really shed light on issues with the interview/interviewer and the children that we would NEVER notice. There are many great local experts as well, but with ZOOM technology we’ve been able to do our consults with her on the internet and she even has watched the videos from the privacy of her home. Social Media Look but don’t touch § Per the Ethics Rules we can LOOK at someone’s social media, but we cannot interact with it WITHOUT making it clear EXACTLY who we are (I am an attorney and I represent client’s name). That means – no fake accounts to make friend requests. Just take screenshots and make a note to check in every once in a while on their social media. § The client can do this too. Have them take screenshots or save any screenshots that friends send their way. Facebook, Twitter, Instagram, TikTok, Kik Dating apps: Bumble, Hinge, Tinder, Grindr, Coffee Meets Bagel, TAGD, etc. STORED COMMUNICATIONS ACT – then can issue a court order compelling records § SAMPLE #6: COMMUNICATIONS ACT PROPOSED COURT ORDER § Many of these dating apps or social media companies will respond to subpoenas saying they do not have to comply based on the Stored Communications Act. But this motion/order is a way around that ^ give it
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a shot! We are doing it in a case currently to obtain someone’s Bumble profile. The Scene Send your investigator or go yourself § It is crucial to get the lay of the land for yourself. Someone may claim that the perpetrator jumped over the counter when there is no counter! Or any other implausible story. But you won’t know until you go there – so check it out. Take pictures § Take pictures of the entire area (you never know what might be relevant later) and save them to the file. These can also be helpful for spotting surveillance cameras. Request surveillance from any cameras you spot § This is important to do as soon as possible as many of these surveillance systems turn over in 7 days or less. § Letter • Some of these companies/schools/gas stations/civilians will be very helpful. Once you’ve identified the location and source of the camera, give them a letter requesting the surveillance you seek. • SAMPLE #7: LETTER TO PRESERVE/REQUEST SURVEILLANCE § Subpoena • If they’re squirrely, just go ahead and get a subpoena and serve it on them! Go over them with your client § Your client may or may not have been at the scene. If they were, they know more about it than you do! Don’t assume that you can spot all of the problems. Go through the pictures and the facts with them – you never know what information may come from it. Family/Friends Reach out to family. It cannot be understated how important family can be. You never know what information you can get from family members once they trust you and know you have their loved one’s best interest at heart. § Rapport § Information Ask them what they think of certain people/witnesses § Ask them who else you should reach out to! Sometimes the client will forget or omit certain people because of their own personal reasons, and a family member or friend could point you in the right direction to get very important information. Check back in with them – things may have changed § And as time goes on they may begin to trust you more and more. As new information comes to light, it may trigger a random memory in them that can be useful. It never hurts to continue to check in.
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The Client (again!) Again? Again. And again. § Never forget to continuously check in with your client. Go over the discovery with them. Ask them the tough questions. Show them that you really do care about them by not ONLY talking about the case. It will serve you both well in the long run. Even if a client isn’t fond of you (we’ve all had those clients) continue to check-in and prove to them you have their best interests at heart. We may think that isn’t in the job description with all of the things we already do, but it is. They are already facing the most difficult time in their life and we need to really listen to them to provide the best advocacy possible. Subpoenas/Records (re-issue/re-request!) REISSUE, REISSUE, REISSUE Call again! § Often times we don’t get the things we’ve requested. Follow up! Be a pest! Ask them where the records or information is. So many people would rather give you the records and a business records affidavit than show up in court. Help them to help you and vice-versa by following up. Check up on everything § Keep a list of everything you’ve requested and everything you’ve received. This too can be so easily lost in the shuffle. Get updated records § We all know that many of our cases could be pending for years. Those school records you got in 2018 now have 2 more YEARS of information in them. The CPS investigation that wasn’t closed 6 months ago but now is, you need those conclusions. Prepare Witnesses Client – make sure they know it is their right to choose whether to testify and discuss the pros and cons § Too often on many of our appeal cases we see (1) clients who should have testified that didn’t, but mostly we see (2) clients who did testify who absolutely should not have and it turns in to a complete disaster. Make sure your client knows even well before trial just how risky this is. Go through a mock direct/cross with them so they can see just how difficult it can be. This is not to scare them – it is to prepare them. They need to understand it is their right to decide, but it is your job to explain that to them and make sure they are ready to make that decision knowing everything. Witnesses – prepare them for cross, discuss direct § Bring potential witnesses in to your office and ask them the hard questions. Have a law student or associate play the prosecutor and break
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them in (so you’re not the enemy asking them mean, leading, personal questions – you want to keep that rapport). Discuss Plea Offer Make sure the client understands the real risks of going to trial Put in writing that you have counseled them about this and have them sign it § SAMPLE #8: LETTER TO CLIENT RE: PLEA OFFER § Set them (and yourself) up for success • Both you and the client should go in to trial eyes wide open of the real risks, especially when there is a long punishment range. This is as much to protect the client as it is you. You want to be crystal clear what punishment they’re facing. You’d be surprised how many clients go to trial who have either forgotten or were never told. Pre-Trial Motions All of the following motions should be filed before trial in order to preserve any of the issues for appeal and to ensure that the proceedings are followed to a T. 9. MOTION FOR THE COURT TO DIRECT THE COURT REPORTER TO RECORD PROCEEDINGS 10. FORMAL REQUEST FOR COMPLIANCE WITH ARTICLE 39.14 11. MOTION FOR PRODUCTION OF EVIDENCE FAVORABLE TO THE ACCUSED 12. MOTION TO DISCLOSE INFORMATION REGARDING THE VENIREMEN 13. MOTION TO REQUIRE STATE TO LIST ITS WITNESSES 14. REQUEST FOR DISCLOSURE OF EXPERTS Motions in Limine If you’re still with me (!) Get these on the record in writing to preserve issues for appeal § SAMPLE #15: MOTION IN LIMINE § These are entirely specific to the facts of your case and no one knows that better than you. Don’t be afraid to get creative. I’ve seen people ask for the state not to call the complainant a victim, or once I asked for them not to mention a damning statement my client made on the body cam about using a “hot check” in her 20’s. No one thing is too small to try to keep out. You never know what the jury or just one jury member could latch on to. And if the state violates it you can move for a mistrial. Any MILs from the state – get on the record your arguments against them § Make sure it is clear for purposes of the record that you have fought against the state’s motions and got on the record why you should be able to get in to those issues. If the court still says you can’t, make an offer of proof outside the presence of the jury, re-urge the judge to let you talk about it, then move on. You have successfully preserved the record and given the appellate attorney what they need (remember – they’re limited to what’s in the record on direct appeal). Don’t forget about them! 12
§
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If your motion gets granted but then the state brings it up in front of the jury anyways with no objection from you, that is NOT preserved. Always re-urge these. I make a note of what they are on both sides in large font and in a clear place so I don’t forget.
The Battle Must be Fought Anew Every Day: (Pretrial) Molly Bagshaw Hochglaube & DeBorde, P.C. Houston, Texas molly@houstoncriminaldefense.com (713) 526-6300
State of Texas vs. Cooper • Inspired by Cooper:
Court Filings • Notice of appearance/motion to substitute • Request for discovery • Connect yourself to the portal • Getting to know the county • Set up/check notifications for you and your staff
• Consider using mycase, Clio, or an online portal to share documents
The Client • This is your greatest source of information • Build rapport and don’t expect they’ll tell you everything right away
• Releases • Utilize zoom/teams/google meet • Keep a running list of check-in’s/meetings
Witnesses • Call every single person on the offense report (or investigator) • It may not be argued that a given course of conduct was within the realm of trial strategy unless and until the trial attorney has conducted the necessary legal and factual investigation which would enable him to make an informed rational decision. Ex Parte Welborn, 785 S.W.2d 391, 395 (Tex. Crim. App. 1990).
• How do I talk to the witnesses?
ADA Communication • Introduce yourself to the ADA • Check the website consistently to see if there has been a change in ADA • Loop back around on issues/problems you see – they likely won’t
To Subpoena or not to subpoena… • • • •
Subpoena arresting agency, fire department, hospital records Jail records School records (for client or for CW)
CPS records – protective order
Public Information Act Requests • • • • •
Can do so without alerting the State Personnel files of officers Previous state’s files on your client
Have someone in your office do it – anyone can make this request Can often times be crucial
Investigators • Appointed - motion to appoint investigator • Use the amount you want and the name of the person
• Hired – speak to the client about this straight away • Why should I use an investigator?
Experts • Retained: talk to client ASAP about the potential need • Appointed: Ake motion – EX PARTE
Polygraph • Consider a polygraph test for grand jury to include in your packet • Might also open up a broader discussion with client • If you do not get the results you want, simply don’t add it!
• Cabler Polygraph, LLC 3730 Kirby Dr., 12th Floor, Houston, Texas 77098 • Phone: 832-657-4712 stephen@cablerpolygraph.com
Phone Dump • Can be very helpful in CW cases • Again opens up conversations with your client – we need to see it all • Eric Devlin, Lone Star Forensic Group, LLC. • 14027 Memorial Drive 391 Houston, TX 77079 (888) 632-6172 edevlin@lfg-texas.com email, www.lonestarforensicgroup.com website
Drug Testing • Only if the facts are relevant to it… • Hair follicle • Can also open up conversation with client re: the facts
Grand Jury Packet • What exactly is the grand jury? • Identify early on whether this is potentially a good “packet” case • Anything goes! Don’t need to worry about admissibility • Screenshots • Surveillance – RING cameras (ask your client if they have one) • Polygraph • Character letters
CAC Videos • Watch ASAP • MOTION FOR RESTRICTED PRODUCTION OF CAC VIDEO AND FOR PROTECTIVE ORDER DURING COVID-19 PANDEMIC
• Consider hiring a video expert • Dr. Kamala London, kamala.london@utoledo.edu • Department of Psychology University of Toledo 2801 West Bancroft St. Toledo, Ohio 43606-3390
Social Media • Look but don’t touch • Facebook, Twitter, Instagram, TikTok, Kik • Dating apps: Bumble, Hinge, Tinder, Grindr, Coffee Meets Bagel, TAGD, etc.
• STORED COMMUNICATIONS ACT – then can issue a court order compelling the records
The Scene • Send your investigator or go yourself • Take pictures • Request surveillance from any cameras you spot • Letter • Subpoena
• Go over them with your client
Family/Friends • Reach out to family • Rapport • Information
• Ask them what they think of certain people/witnesses • Check back in with them – things may have changed
The Client • Again? • Again. • And again.
Subpoenas/Records • • • •
REISSUE, REISSUE, REISSUE Call again! Check up on everything
Get updated records
Prepare Witnesses • Client – make sure they know it is their right to choose whether to testify and discuss the pros and cons
• Witnesses – prepare them for cross, discuss direct
Discuss Plea Offer • Make sure the client understands the real risks of going to trial • Put in writing that you have counseled them about this and have them sign it • Set them (and yourself) up for success
Pre-Trial Motions • MOTION FOR THE COURT TO DIRECT THE COURT REPORTER TO RECORD PROCEEDINGS
• • • • • •
FORMAL REQUEST FOR COMPLIANCE WITH ARTICLE 39.14 MOTION FOR PRODUCTION OF EVIDENCE FAVORABLE TO THE ACCUSED
MOTION TO DISCLOSE INFORMATION REGARDING THE VENIREMEN MOTION TO REQUIRE STATE TO LIST ITS WITNESSES REQUEST FOR DISCLOSURE OF EXPERTS
PROBATION ELIGIBILITY FILING – ask the court
Motions in Limine • Get these on the record in writing to preserve issues for appeal • Any MILs from the state – get on the record your arguments against them • Don’t forget about them!
Thank You!
Texas Criminal Defense Lawyers Association
Battling the Resistance-Tyler January 15, 2021 Livestream
Topic: The Resistance is Fueled by Fear: Opening Statements Speaker:
Clay Steadman
612 Earl Garrett St Kerrville, TX 78028-4535 (830) 257-5005 Phone (830) 896-1563 Fax claysteadman@yahoo.com
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
The Resistance is Fueled by Fear
OPENING STATEMENTS Prepared by: Clay Steadman Law Offices of Jesko & Steadman 612 Earl Garrett Kerrville, Texas 78028
1|Page
Phone:
(830) 257-5005
Fax:
(830) 896-1563
Email:
jesksted@ktc.com
Introduction An opening statement can be intimidating and daunting, but it is your first opportunity to begin to explain to the jury your client’s version of the events, as alleged by the State. It is your first and only opportunity, at the beginning of the trial, to give your client’s opinion on the basic elements of the State’s case (ie: who, what, how, when, and why). The opening statement is a special time because this is where you begin to tell his story to the jury. This is the jury’s first introduction to your client on a personal level, and what you expect them to discover over the course of the trial. The jury does not know what happened yet, but they will, and the purpose of your opening statement is to have them realize that they will want to listen to our version of the alleged events and ultimately discover what happened. During Your Initial Preparation Ask Yourself:
1. What is your objective or goal in preparing an opening? 2. What should be your objective or goal in preparing an opening, and eventually what do you anticipate will be the theme of your closing statement? These are two especially important questions you must ask your during your trial preparations, but these two questions may have two very distinctive and different answers. While your opening statement may remain relatively unchanged during your trial preparation, the answer to these two questions may change somewhat for 2|Page
your closing statement, based upon the testimony of the witnesses and the evidence which is admitted during trial. However, it is important that during your opening statement you remain consistent, as this will allow a smooth transition during the progress of the case, which can connect the theme and tenor of your opening and closing statements. This is accomplished by utilizing a common theme or strategy throughout the case, that the jury can recognize, follow, and accept. Problem: While you can develop a strategy that allows the jury to recognize and follow your theme, and the defense you intend to present, you do not know if it will be accepted. Solution: 1. Start by telling a story about your client and the case facts that the jury can understand. 2. Tell this story regardless of the circumstances, based upon what you perceive to be the strengths of your defense. 3. Recognize and confront the weaknesses of the State’s case. 4. Recognize and explain the weaknesses you believe exist in your defense.
Common Problems We Face Impossible Facts If you find yourself in trial with what seem to be nothing but bad or impossible facts, confront them head on. I personally never attempt to gloss over these types of situations, because that will undoubtedly come back to haunt you during the trial. Possibly one of the most difficult issues to confront in a criminal case, is your client’s confession, or the existence of confirmed DNA or other undisputed physical evidence. You will have to address these issues, in some way during your opening, because the State will almost certainly make this the focus of their case. Unfortunately, the ostrich defense will not work, as there will nowhere to hide. You are not the Best Storyteller This is a fact that is probably true for most of us that are trial attorneys. Fact is some attorneys have this gift without practice or hard work, but the rest of us, must perfect this art over time. You cannot become a better storyteller, unless you practice. Do not let the fact that you feel that you cannot tell a story very well, keep you from trying. We all can tell a story. Some of us old enough to remember, used to have to give oral book reports in middle school, 3|Page
or do a presentation in class (this is of course before the extensive use of computer presentations). Telling a story and connecting the theory being argued, is a matter of confidence and experience. Once you have given a couple of opening and closing statements, your confidence will increase, because you can see the connection you can make with the jury if you prepare. The Need to Simplify Your Message Never talk down to a jury. Do not try to over complicate the message by using “big” words, or multifarious statements. See I just did it by using the word multifarious. Have you ever heard anyone who is normal, other than an attorney, use the word multifarious? Multifarious means: Having many different parts, elements, forms, etc.; numerous and varied; greatly diverse or manifold. It is an adjective used to describe a set of circumstances. An example would be a multifarious question (ie: a compound question). But if I am trying to describe a set of circumstances to the jury, why not just simply state what I mean, “this situation has a lot of different moving parts”. Jurors make the sole determination of credibility in the courtroom regarding evidence and testimony, but make no mistake, they are measuring you, as you defend your client. If you talk down to a jury, or try to show them how smart you are, you risk alienating the jury at the outset of the trial. Keep your message personal, and to the point. This will in turn allow you convey
a simple message to the jury. After all the simplest message we want to convey to every jury is “Not Guilty”. If it is a punishment case, that message is we want a probated sentence or a minimum prison sentence. Keep your message simple by focusing on the theme itself. Examples: Arguing the Burden of Proof. Not the jury’s job to continue to investigate this case. Avoid rushing to judgment. Personalize your client. Alleged victim is not reliable/credible. Law Enforcement’s investigation was not conducted properly. This can also be tied into “rush to judgment” argument, where you make the point to the jury that they should not make the same mistake law enforcement has made. These are just a few examples of how you keep the message simple by focusing on the theme itself. These examples can be first raised, in a very general sense, during voir dire, and incorporated given specific facts throughout your opening. As such, when preparing your case for trial, and developing the theme for your opening statement, you will need to incorporate part of this theme into your voir dire, in a very general sense, without referencing any specific facts of the case. You cannot discuss specific case facts of the case during voir dire, but you can ask questions regarding a prospective juror’s ability to make 4|Page
decisions or stand in judgment of another, and how they would conduct themselves in that regard. Voir Dire Examples: Who here believes it is their job to further investigate or solve this crime? Can you vote your conscience, not that of your neighbors? (ie: I have used the argument “one juror, one vote”). Cautionary tale of jumping to conclusions. If you will have to attack law enforcement’s investigation in your case, you need to see if any prospective jurors are more willing to believe law enforcement personnel, over the testimony of a lay witness (ie: explore their connection to law enforcement, their biases, and how they feel about law enforcement’s opinions on certain matters).
Basics of the Opening Statement
Establish an argument for those undisputed facts that strengthen your theory of defense.
Energize the Jury
Deflect facts that are obviously a weakness, in arguing your defensive theory.
You must energize your base and get some if not all of those jurors on your side, so they will listen to you, and recognize what you are attempting to explain during your opening. Humanize your client. The jury may not like your client, but they need to understand him, before they can understand why we are arguing he did not commit this act, or what the justification is for his actions and behavior. This will energize your jury, because they may be able to relate on a personal level as to what your client was going through or experiencing at the time, he is alleged to have committed the crime for which he or she is on trial. Remind the Jury Explain to the jury about why we are here and the circumstances surrounding this case. There is a difference between offering an explanation and giving an excuse. I have found that when I open, I never want to offer an excuse for the circumstances surrounding the case, or my client’s actions, but offer the jury an explanation. An explanation is always a stronger argument because it allows for the fact that the State’s position and law enforcement’s actions or investigation is wrong or mistaken. During your opening you should, if possible, distinguish and separate the case facts into categories, and consider the following issues: 5|Page
Explain the strength of those undisputed facts. Argue, how a perceived weakness, or bad fact, is in fact not reliable, nor does its establishment alone constitute guilt beyond a reasonable doubt. Note: In your opening without having heard any evidence, you may find yourself in a situation with several bad facts and I have found that relying on a burden of proof argument can be a useful method in explaining your position on such issues. Repeat and Re-Rinse During your opening incorporate a common theme of reminding the jurors of defensive theory’s issues and facts, and what to look for as the case progresses. Again, simplify your message. As you start to explain these facts during opening, keep in mind the following: Why some facts are relevant and require close attention. Why some facts are not important and do not merit consideration. Get out ahead of these situations during your opening, such that the jury is aware of your argument.
Warn the Jury Warn the jury of the mechanics of the proceeding. (The State gives its opening statement
first, and has the last word during closing statements)
The purpose of this, is to caution the jury that the State has the burden of proof, and what the consequences would be in this case, and our system of justice, if a jury chose to ignore this burden. It is acceptable to warn and caution the jury of what the consequences are, when they do not apply and follow the law, and the instructions they are given by the court. In your opening explain to the jury why the State can go first and last, because they alone have the burden of proof, which is theirs alone to carry. I will usually state my position in opening that the jury should decide the case based on the credible facts they hear, and not emotion. I sometimes explain to the jury that in our system of criminal justice it is easy to get caught up in the emotions surrounding the circumstances of the case, but that based on the credible facts they will hear, they will know and seek the truth in rendering a just decision. Lay the Foundation and Connection for Your Defensive Theory/Theme During your opening lay the foundation for a strong connection between your opening and closing. You can establish this connection early by using and establishing a consistent defensive theme in your opening and utilizing that
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theme throughout your case and closing argument. Establishing common statements or assertions. Example: When discussing the “truthâ€?, or what the truth is, during your opening, you may want to predicate your statement, by explaining to the jury that you believe at the conclusion of this case, the evidence will establish, that the truth is: (and use a bullet point list of facts that you are confident will be established that support your theory of defense). Thus, avoiding an objection from the State that your opening is argumentative because it assumes facts not in evidence and is conclusory. Truth be told I do not always remember to preface certain statements in my opening in this manner, and I do not particularly like to do qualify my opening in this manner. If I draw an objection I will generally apologize to the court and rephrase my statement with a simple qualification that I expect the evidence to show or demonstrate that ‌.., and I will usually offer an explanation tying in the burden of proof again and this is why you cannot jump to conclusions. That type of response will sometimes put the State back on their heels as they have just put a spotlight on their burden and how they must build a case against my client.
Relevant Case Law Regarding Opening Statements Article 36.01 ((a) (5)), of the Texas Code of Criminal Procedure, provides that the defense may give an opening statement, and similarly Article 36.01 (b), provides that the defense’s opening statement may be made immediately after the State’s opening statement. See Love v. State, 69 S.W.3d 678 (Tex. App. – Texarkana 2002, pet. ref’d). A defendant is not entitled to make an opening statement, prior to the introduction of the State’s evidence, unless the State (prosecution), has in fact made an opening statement. See Boston v. State, 871 S.W. 2d 752 (Tex. Cr. App. 1994). In a situation when the State does not make an opening statement, the defendant is still entitled to make an opening statement upon the conclusion of the State’s evidence or case. See Moore v. State, 868 S.W.2d 787 (Tex. Cr. App. 1993). When a defendant makes a timely request to exercise his statutory right to make an opening statement before the jury, it is error for the trial court to deny the defendant’s request. See Espinosa v. State, 29 S.W.3d 257 (Tex. App. – Houston [14th Dist.] 2000, pet. ref’d). You need to keep these cases handy, if you are in a jurisdiction, where the court, may otherwise attempt to influence or limit your right to an opening statement. I personally, have never seen a case where the State has 7|Page
not made an opening statement, but I know these circumstances do exist. [Practice Tip] If you waive your opening statement at the commencement of the trial, always reserve your right to make an opening statement upon the conclusion of the State’s case. Example: If I have what amounts to a punishment case, strategically, I will sometimes waive my opening statement at the commencement of the trial but reserve my right to give an opening statement at the conclusion of the State’s case. This is a trial strategy, as I do not want to unnecessarily “open the door” regarding any potential extraneous offenses, prior to the introduction of the State’s evidence. [Practice Tip] Always have a theory and goal for your opening statement, and make sure that you implement that theory at the beginning of the case, or at the very least the conclusion of the State’s case. It is rare where I will waive and reserve my opening statement, because part of conveying my client’s story to the jury, is to stand up and reject the State’s allegations. When a bully punches you in the nose, you do not run to the teacher, you pick yourself up, dust yourself off, and whoop their ass. Limitations on Opening Statements: You need to review Article 36.01 (a) of the Texas Code of Criminal Procedure in preparing your opening statement, as this code provision expressly limits what
you can state during opening. I have this code provision available at trial just in case I draw an objection in opening my opening statement. Upon an objection being made, I generally approach the bench, and argue to the court why my statements are not objectionable. Specifically, Article 36.01 ((a) (5)), provides that “The nature of the defenses relied upon and the facts expected to be proved in support shall be stated by defendant’s counsel.” Note: This can give you a lot of discretion in what to assert in an opening statement, because of how broad we can interpret the language to be applied to the nature of the defenses and facts expected to be proved. If you keep your opening statement in context in asserting those issues, it should not draw an objection. I do not believe you will draw many objections in opening statement, unless you go into an area of evidence previously ruled upon and excluded by the court, or if you allow your opening statement to become too argumentative and conclusory. State’s Perspective: The courts have held that, “an opening statement in a criminal case is an outline of the facts that the prosecution in good faith expects to prove. Parra v. State, 935 S.W.2d 862 (Tex. App. – Texarkana 1996, pet. ref’d). [Practice Tip] If the State starts to make a conclusory argument during its opening, or references testimony or facts, which have been previously excluded or may 8|Page
be ruled inadmissible by the trial court (ie: subject to a motion in limine), you need to: (1) object and approach the bench, and (2) request that the trial court give an instruction to the jury to disregard the State’s previous statement, and (3) request an immediate mistrial. You will almost certainly loose this objection, but you need to make sure it is made to preserve this issue for appellate review. The defense is not entitled to include in any opening statement matters which are not legal defenses to the charged offense. See Boston v. State, 871 S.W. 2d 752 (Tex. Cr. App. 1994). Be advised that Article 36 of the Texas Code of Criminal Procedure, does not apply to punishment proceedings. See Generally Penry v. State, 903 S.W. 2d 715 (Tex. Cr. App. 1995); See Love v. State, 69 S.W.3d 678 (Tex. App. – Texarkana 2002, pet. ref’d). As such, there is no provision in the Texas Code of Criminal Procedure which requires the trial court to allow that opening statements be made at the beginning of the punishment phase of the trial. See Love v. State, 69 S.W.3d 678 (Tex. App. – Texarkana 2002, pet. ref’d). [Practice Tip] If you are not allowed to make an opening statement at the commencement of the punishment proceedings, and it is your desire to make such a statement, I would immediately, (1) object, and (2) if possible, have a written objection and motion, requesting that you be allowed to make an opening statement, ready to be filed. The objection and motion
should articulate the necessity of your request, and what you expect the sum and substance of your opening statement to reference. You should further argue that the trial court, by not allowing you to make such an opening statement on your client’s behalf, the trial court is prejudicing your client’s right to a fair and impartial trial, regarding the punishment phase, and this is a violation of his right to due process and due course of law. These objections will not require the trial court to reverse its position, because Article 37.07 of the Texas Code of Criminal Procedure, which pertains to the punishment phase of trial, does not require a court to allow opening statements to be made, however, it should be enough to preserve this issue for appellate review. I have never had a trial court deny me the right to make an opening statement at the commencement of the punishment phase of a trial. [Additional Case Law Concerns] The defendant does not have the right to make an opening statement in a case where he will not present any witnesses or evidence and is merely arguing that he is relying on his plea of “not guilty”. Donnell v. State, 191 S.W. 3d 864 (Tex. App. – Waco 2006, no pet.); See Norton v. State, 564 2d 714 (Tex. Cr. App. 1978). In a case where the defendant makes an opening statement immediately after the State’s opening statement, the State may reasonably rely on this defensive opening statement as to what evidence the defense intends to present and rebut this anticipated defensive 9|Page
evidence during its case-in-chief as opposed to waiting until rebuttal. See Generally Bass v. State, 270 S.W.3d 557 (Tex. Cr. App. 2008). In Bass, the trial court ruled that the defendant had opened the door to the presentation of an extraneous offense during defendant’s opening statement. Bass v. State, 270 S.W.3d 557 (Tex. Cr. App. 2008). Note: There is the danger in getting too aggressive in an opening statement because you can “open the door” regarding other issues, such as extraneous offenses, which may otherwise be inadmissible. It has been my experience during an opening statement, that I can relate my theory of the case, to the jury without delving into certain facts, which may allow the State to reference certain facts, which may be otherwise inadmissible.
Factors to Consider
Support
Wasting Time
In telling your client’s story, find a way to pick up some momentum and support for your client. Seize on any opportunity or fact that will make the jury want to support your client.
If you are wasting time, you are not just wasting your time, you are wasting the jury’s time. Jurors do not want to listen to you, just to hear you talk. You need to be considerate of their time, as they have a family and a job to get back too. Your time is never more valuable than the jury’s time. Do not explain to the jury what an opening statement is or its purpose. If you must explain yourself, you generally have lost the jury already, and they do not want to listen to your client’s story. Don’t’ try waste time explaining that nothing I or the State says, is evidence, as the trial court will notify the jury of that fact. You do not want to point this issue out, because it also may diminish your standing in the eyes of the jury. Remember, you represent a living, breathing, human being. Your client’s story is one that must be told, and you establishing a good relationship with the jury is critical in telling that story. Goals Comprehension Simplify your story, such that the jury comprehends and understands what you are trying to explain. Credibility Establish up front the importance of credibility and illustrate to the jury how you are going to help them identify and establish that your client’s story is credible. 10 | P a g e
Impact The telling of your client’s story in opening statement, needs to have impact. Your opening statement needs to leave a lasting impression, so much so it will cause the jury to refer to it, during the course of the trial. Using Analogies Why: They work for two simple reasons: (1) A good story requires the attention of the audience, because they do not want to miss any information. Simply put, the audience, which in this case is the jury, wants to find out what happened. (2) An analogy can challenge the jury to test your defensive theory against the circumstances and evidence as the case progresses. The jury then can test your version of events, as reference in your client’s story against the analogy you present. Analogies Can Bridge Communication Gaps/Lapses: A well-timed analogy during your opening statement can assist you in solving any communication problems that may come up during the case, regarding your arguments or contentions, concerning a complicated
piece of evidence or testimony. Specifically, by using an analogy in your opening statement you can sometimes make a rather complicated issue, seem much easier for the jury to understand as the case progresses. A good example of this is how we deal with and explain circumstantial evidence during trial. Circumstantial evidence can be a complicated issue to explain to a jury.
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Effective Use of Opening and Closing Statements in Trial At the beginning of this paper, I suggested that there were two especially important, but different questions you needed to ask yourself in preparing your opening statement.
1. What is your objective or goal in preparing an opening, and eventually what will be your closing statement? 2. What should be your objective or goal in preparing an opening, and eventually what will be your closing statement? The only way you can start to answer these questions, is to know your case and the State’s case, better than the State knows their case. This requires: (1) great attention to detail, and (2) conducting a thorough investigation of the facts. Some trial strategies and themes are easier to develop, based upon case facts and the witnesses involved. Your objective and goal, when we start out in preparing your case, is to tell a story the jury can follow, and for the jury to recognize the importance, or in some cases the unimportance, of the issues and facts, which make up the case. Note: Think about this fact, twelve randomly selected people, have several days or weeks to get to know your client, and the facts and circumstances surrounding his case, and make a decision which can 12 | P a g e
affect the rest of his life. Not only is that a situation which normally would scare and worry any defendant, it is responsibility which should weigh heavily on our minds, as well. Example: We have a small window of opportunity during trial, to cram in all the necessary information, which would not fit through a fifty-foot window of knowledge. This is sometimes a distraction, and can hinder our ability to make a point, but it is what makes this a human process, and allows us to further develop that personal connection between our client and the jury. Checklist for Creating an Effective Opening Know and investigate your case. Develop a theme and strategy that is consistent between your opening and closing statements. Tell a story the jury can recognize and follow. In your opening it is imperative you are honest with the jury and can establish your client’s vulnerability in this process. This is a human process, and not a cookie cutter approach to jurisprudence. Tell a story, given the circumstances of the case, the jury can and will accept.
Basic Concepts of Developing an Opening
Breathing Life Into Your Client’s Story
All Stories ---------
You must ----------
Have a beginning and ending. The story will start in the opening statement and will conclude in the closing statement. There must be a connection throughout the trial process that ties together the opening statement, the evidence, and the closing statement.
Believe
There is always a setting for our story, which involves a location, and time and place. During your opening you need to paint this picture for the jury and illustrate how the setting may influence their interpretation of the facts and ultimate outcome. There are characters. This is a human process, and there will always be a cast of characters. During your opening it is your job to define and explain the role the various characters play, their importance to the facts surrounding the case, and whether they can be trusted. An event has taken place. Recognize that if you are in trial, something has occurred, which has placed your client in this set of circumstances. Whether it is a case of mistaken identity, false accusation, misunderstanding, or some other situation, something has occurred. When you are making your opening statement, the transition and connection between the how and the why, as it concerns your client and his involvement, is critical to the beginning of their story, and a story the jury can follow and accept.
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You must believe in what you are arguing during opening. If you do not believe in your opening and the story being told about your client, the jury certainly will not believe and accept your client’s story. Stress Reliability You must infuse the jury with confidence in you and your client’s story, by creating a personal connection between the jury and your client. The jury needs to have a sense of reliability about your client, and that factor has everything to do with being able to relate and connect with your client and his life experiences on a personal level. Have the Jury Identify With Your Client In your opening the jury needs to be able to identify with your client. Remember, you are telling your client’s story, and as such, the story must be told so that a jury can interpret and consider the evidence from your client’s perspective. Perception is everything in a trial, and if the jury can identify with your client and his situation, they will likely perceive the circumstances surrounding the case from his point of view. This makes it that much easier for the jury to follow and recognize the story and accept the defendant’s version of events.
12 Quick Tips for a Better Opening 1. Be sincere, and respectful to the trial court and jury. 2. Make eye contact with the jury. 3. Find a way to connect with the jury allowing them to identify with your client as you tell his/her story. 4. Always refer to your client by his first name, or his last name, such as, Mr. Smith. This allows you to personalize your client with the jury. The State will almost always refer to your client as the perpetrator, defendant, or the accused, so it is imperative that you refer to him by name. 5. Realize the importance of being honest, and make sure the jury understands that your client is here today facing these false allegations head on, and offering his explanation, not an excuse, of his involvement, if any, and the circumstances of the case. 6. Focus on Who, What, Where, When, How and Why when developing your opening statement, and weave this argument throughout your defensive strategy. This focus will allow you to make a consistent statement that the jury will Recognize, Follow and Accept. 7. It is okay to use notes or an outline, especially in a complicated case. However, you should never just read from your notes or outline because you lose eye contact with the jury, and you do not want to do anything which may diminish your standing with the jury. A credible and reliable person makes and maintains eye contact, and good body posture. 8. Focus on what you expect to be revealed during the trial of the case, reminding the jurors to look for the strengths of your defensive strategy. 9. Leave a clear path and logical connection from your opening statement to your closing statement, so the jury will follow your argument. 10. The State will go first, so do not react to the State’s story, explain, and tell your client’s story. Be respectful to the State, to the extent possible. Do not roll your eyes or get flamboyant with your body language. Jurors are not going to appreciate or like what they consider a sign of disrespect to the tribunal/court. 11. In a punishment case, it is often necessary to accept responsibility for the committed act, during your opening statement. This can often be a difficult set of circumstances, because there is usually a clear victim, and someone that has suffered at the hands of your client. Honesty is of paramount importance at this juncture, as the jury must understand your client’s set of circumstances and what has led him or her to this point, in their life. 12. Admit your fears and your client’s fears regarding this process. The jury should appreciate your candid nature and your client will hopefully come across as a genuine individual. The premise of this argument and the story to be told, is that the jury is here today to seek and find the truth.
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The Resistance is Fueled by Fear
OPENING STATEMENTS Presented by Clay Steadman Law Offices of Jesko & Steadman 612 Earl Garrett Kerrville, Texas 78028 Phone:
(830) 257-5005
Fax:
(830) 896-1563
Email:
jesksted@ktc.com
FIRST OPPORTUNITY TO CONVEY YOUR CLIENT’S MESSAGE [Sowing the Seeds of Doubt]
BECOME THE STORYTELLER 1. 2. 3. 4. 5.
Be Consistent Identify Case Strengths Identify State’s Weaknesses Explain Defense Weaknesses Who, What, Where, When, How and Why 6. Establish a Smooth and Effortless Connection
PROBLEMS WE FACE IMPOSSIBLE FACTS
NOT THE BEST STORYTELLER
BE CONFIDENT It’s Contagious
Never Talk Down To The Jury
Starts in Voir Dire BURDEN OF PROOF How does jury process this burden? NOT JURY’S JOB TO INVESTIGATE CASE Who here believes they need to solve this case? CREDIBILITY OF WITNESSES/ALLEGED VICTIM Why do people lie? Have you ever lied? BAD INVESTIGATION = RUSH TO JUDGMENT
Are Police capable taking a shortcut? Are they any more credible than you or me? Do they make mistakes?
REMIND THE JURY
THE PROCESS IS A CAUTIONARY TALE
FACTS MATTER
EXPLANATION VS. EXCUSE
ESTABLISH A CONNECTION
EMPHASIZE THIS CONNECTION
• VISUAL AIDS • YOUR VOICE • SET THE SCENE • USING AN ANALOGY
THE DILEMA In Trial We Have to Articulate and Fit a Fifty Foot Window of Knowledge Through a Five Foot Window of Opportunity
THE SOLUTION Using a Common Theme, Analogies, and Trilogies Will Assist You in Balancing Opportunity versus Knowledge Makes You a Better Storyteller
EACH STORY SHOULD HAVE THREE PARTS
PROTAGONIST
NO ONE SAW IT HAPPEN NO ONE HEARD IT HAPPEN NO ONE ELSE SAID IT HAPPENED
ANTAGONIST
STORY – PLOT
IDENTIFYING WITH JURY Example: The False Accusation • Most jurors can relate to this situation • Tell Them • -That story • -That explanation • -Leads to jury’s acceptance
• The Story Becomes • -The accused • -The accuser
• -Their relationship
BAR FIGHT Known: -There was a fight between two men (Joe & Mike) -One got whipped -One was injured Joe
Mike
Story Over a Woman
Nobody saw who started it [See No Evil] Nobody heard who started it [Hear No Evil] Nobody else can say who started it [Speak No Evil]
The Analogy • An analogy resonates with the jury
• Allows them to test your client’s story against the evidence • An analogy can bridge a communication gap
• Examples: • Circumstantial Evidence • DNA Evidence
• Eyewitness Testimony • Witness Bias • Flawed Investigation
Analogy & Trilogy Telling Your Client’s Story Don’t Bring a Knife to a Gun Fight: Knife vs. Gun = Result Educational System: School You Expect Government Problems School You Get
•
Factors to Consider
• • • • •
Don’t Waste Time Simplify = Better Jury Comprehension Establish Credibility Establish Jury Support Make an Impact Leave an Impression
Story Will Have a Beginning and an Ending A Good Story Logically Connects the Two People Love to Discuss a Good Story
I DIDN’T DO IT
I DID IT I AM SORRY I DID IT, BUT I HAD A GOOD REASON
Define the Characters/Roles
Friend or Foe
Set the Scene Involves Time, Place, Date, and Circumstances
DON’T IGNORE THE OBVIOUS
Whether it involves a:
• False Accusation • Misidentification • Misunderstanding Something has Happened You Must Get Out In Front of the Issue • Believe Your Client’s Story • Stress Reliability of Your Client’s Story • Jury Must Identify With Your Client • Perception is Everything
HE CONFESSED -How long was the interrogation -Understand Reid Technique (9 Steps of Interrogation)
I.D. HIM AS PERPETRATOR -I.D. not always reliable -Bias = Motive to lie -Circumstances of I.D.
DID NOT NEED TO KILL HIM -Self defense -Parties’ relationship -Injuries/Apprehension and fear
Location – Location - Location Themes Which Reflect Community Values & Beliefs
Their Community – Their Values – Their Concerns Their Choice
OPENING SHOULD BE: CLEAR SIMPLE HONEST/TRUSTWORTHY VISCERAL SINCERE & VISCERAL CONTROLS THE NARRATIVE FAMILIAR THEMES FOCUS ON WHO, WHAT, WHEN, WHERE, HOW AND WHY TAKE RESPONSIBILITY TAKE CONTROL A STORY THEY RECOGNIZE A STORY THEY FOLLOW A STORY THEY ACCEPT
Delicate Balance Between Trust and Persuasion
Article 36 TCCP Moore v. State If State does not make opening statement Defendant still entitled to make an opening statement at conclusion of State’s case
Espinosa v. State It is error to deny Defendant right to make an opening statement if requested
Boston v. State Defendant not entitled to include in any opening statement those matters which are not legal defenses
Article 36 Does not Apply to Punishment Bass v. State State may rely on Defendant’s opening statement as to what evidence Defendant intends to present. Therefore, Defendant’s opening can “open the door” to extraneous offenses.
A GOOD STORY YOUR CLIENT’S STORY
WILL ENPOWER THE JURY ONE JUROR – ONE VOTE
YOU NEED LEADERS NOT SHEEP
Texas Criminal Defense Lawyers Association
Battling the Resistance-Tyler January 15, 2021 Livestream
Topic: The Resistance is Self-Sabotage: Mental Health Speaker:
Dustin Nimz
900 8th St. Ste 1230 Wichita Falls, TX 76301-6814 (940) 766-5335 (940) 403-2525 dustin@nimzlaw.com
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Battling the Resistance navigating insanity, competency, and other mental health issues
a. Medical records b. Psychological records c. Psychiatric records d. Educational and Special Educational records e. Social Security Disability records f. Employment records g. Personnel records h. Social Security Earnings records i. Military records j. Child Protective Services and other community agency records k. Foster care and other placement records l. Arrest, conviction, correctional, and probation records m. Juvenile arrest, conviction, TJJD, and probation records n. Police Department calls for service records re: client
Case Study A Client has been reviewed by a forensic psychologist. The client lives independently, understands the charges against him, knows the parties and roles of the members of the justice system, but has a series of delusions that the forensic psychologist believes could affect his ability to make a rational decision in the case.
Battling the Resistance January 15, 2021 Tyler, Texas
THE RESISTANCE IS SELF-SABOTAGE: MENTAL HEALTH
Speaker:
Dustin Nimz Nimz Law, PLLC 900 8th Street #1230 Wichita Falls, Texas 76301 (940) 766-5335 NimzLaw.com Dustin@NimzLaw.com
The Resistance is Self-Sabotage: (Mental Health) By Dustin Nimz
Introduction Mental illness affects approximately 20% of Texans while over 40% of citizens encountering the justice system have been treated for a mental illness by a reporting provider and over a third of the inmates in state correctional facilities have a history of mental illness. Services are frequently left to the justice system due to undiagnosed and untreated mental illness. The Harris County jail is the largest provider of mental health services in the State of Texas and the Dallas County jail is the second largest provider. Many defendants an attorney will encounter have a mental illness that places ethical and legal requirements on Counsel. A mental illness affects various components of the case such as the voluntariness of statements and waivers of rights by the client, his ability to accurately communicate details of the alleged offense and provide input into the case, his competency to stand trial, or even sanity at the time of the offense. A thorough investigation into the client’s present mental state is necessary to gain a full view of his needs for representation. Duties in Representation Each county in Texas is required to have an indigent defense plan in place to handle the appointment of counsel for indigent clients. The Fair Defense Act makes recommendations that those attorneys appointed to represent clients with a mental illness should have knowledge of the Mental Health Code and have completed CLE which speaks to mental health issues.
The Texas Disciplinary Rules of Professional Conduct do not impose a specific requirement for the handling of cases involving a client with mental illness but a lawyer has a duty to investigate a case “as promptly as possible”1 to determine the legal and factual defenses available for the client and to retain expert assistance as necessary.2 The attorney is also responsible for interviewing the client to determine if the client suffers from a mental illness that may have resulted in the commission of the offense, may be used as mitigating evidence, or may indicate the client’s lack of competency to stand trial.3 The duty to investigate the case has been incorporated into the case law for claims of ineffective assistance of counsel4 and it has been determined that an attorney’s failure to investigate and present appropriate mitigating evidence of a mental illness may meet the standard in Strickland for IAC.5
1
State Bar of Texas Performance Guidelines for Non-Capital Criminal Defense Representation [Guideline 4.1: Investigation – Generally] 2 American Bar Association Standards for Investigation and Preparation Standard 4-4. 3 American Bar Association Standards for Investigation and Preparation Standard 7-1.4. 4 Ex parte Martinez, 195 SW 3d 713 (Tex. Crim. App – 2006) “A defendant claiming ineffective assistance of counsel under the Sixth Amendment to the United States Constitution must demonstrate that (1) counsel's conduct "fell below an objective standard of reasonableness," and (2) this incompetence caused the defendant prejudice. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). When assessing the reasonableness of an attorney's investigation, a reviewing court must consider the quantum of evidence already known to counsel and whether the known evidence would lead a reasonable attorney to investigate further. Wiggins v. Smith, 539 U.S. 510, 527, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. [A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id. at 522-23, 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052). Ex parte Martinez, 195 SW 3d 713 (Tex. Crim. App. – 2006)” 5
Williams v. Taylor, 529 U.S. 362, 362 (2000) “ In state habeas corpus proceedings, the same trial judge found, on the evidence adduced after hearings, that Williams' conviction was valid, but that his counsel's failure to discover and present significant mitigating evidence violated his right to the effective assistance of counsel under Strickland v. Washington, 466 U. S. 668.”
Client Contact Whether the client is appointed or retained it is important to make contact with him as soon as possible to gather necessary information for the defense of the case. When working with a retained it may be possible to meet with the client before an arrest is made. The initial client meeting can be used to develop insight into mental health issues early on that may be helpful in diverting the case from the criminal courts. Information gained in the pre-arrest interviews can be used as points of discussion with the officer or detective investigating the case for the purpose of sending the case over to the District Attorney as a Grand Jury Referral rather than closing the case by law enforcement case by arrest. If an arrest is made the information is still valuable when appearing for the initial magistration of the client. Presenting evidence of mental illness at the initial magistration may result in the magistrate ordering a decreased bond, personal bond, or an option for outpatient treatment in lieu of jail confinement at the onset of the case. It is generally the case that an attorney will not have the opportunity to contact an appointed client until after the initial magistration has already occurred. The Texas Fair Defense Act requires that an appointed attorney “make every reasonable effort to contact the defendant not later than the end of the first working day after the date on which the attorney is appointed and to interview the defendant as soon as practicable after the attorney is appointed.� In order to meet our requirement for same-day contact my office will send a letter to every client immediately to let them know that I have been appointed to their case. It states that I will come visit them if they are in jail or requests that they contact my office for an appointment if they are out on bond. In addition to the letter, we send a Criminal Intake form to each client in
jail. The form is two pages, front and back, and provides me with all the basic information that I will need to start on the case; biographical information, personal contacts, written permission to discuss the case with others, witnesses, criminal history, and mental and physical illness information. The letter, a SASE, and the form are under an ounce in the mail, require only one stamp, and provide me with a way to start working on the case immediately. It also gives my client important advice to not talk to law enforcement nor to discuss the case on the monitored jail phones. Client contact is not only required but is essential to getting the information that the attorney will need for the case. Following the letter the lawyer must talk to the defendant face-toface as soon as possible. Phone and video meetings are convenient for clients in jail custody but are limited as they present a barrier between lawyer and defendant. This may present a particular problem with clients with a mental illness who may not trust the electronic devices. It is hard for the defendant to trust someone on a screen and reveal important details about the case and his life. Nothing beats a face-to-face meeting where your client can look you in the eyes and discuss his needs. This also allows the attorney an opportunity to see any physical affectations that may indicate a mental illness. When lawyers meet with clients for the first time it is common to focus on the events surrounding the offense, however, “crime doesn’t happen in a vacuum”6. The lawyer must go further than the offense at hand to understand this defendant’s history so they can develop an understanding of how the offense came to be committed, as well as important information that will be useful for further investigation and during negotiations. This means that it is appropriate to begin the inquiry into the client’s mental health history at the initial meeting. 6
Lindsey Laneheart-Craig – Craig Trial Consultants – Lubbock, TX
Communicating with a client with mental illness can be difficult not only because of the mental illness itself but because incarceration frequently exacerbates the symptoms of mental illness such as paranoia and anxiety. The Texas Disciplinary Rules of Professional Conduct recognize that attorneys may not have the ability to a normal attorney-client relationship with someone who has a mental disability but requires regular contact as far as possible.7 Even if a client suffers from a mental disability or is incompetent he still may be able to understand and give direction regarding important decisions in his case. Best practice is to keep the conversation client-focused and to try and get as much information from the client that may be used for follow-up. Family Interviews Family interviews provide background information that the defendant may not be aware of, may be unwilling to share, or does not understand the importance of. It is common for parents and relatives to divulge concerns about mental or physical health, addiction, past trauma, victim and codefendant dynamics, and other important facts.
Collecting Records for the Investigation The following is a list of records a mitigation specialist, psychologist, or forensic psychologist will likely need, depending on the specific needs of your case. The list is by no means exhaustive, but it gives an idea of the common records that are needed in an investigation: a. Medical records b. Psychological records c. Psychiatric records d. Educational and Special Educational records 7
Texas Disciplinary Rules of Professional Conduct, Rule1.3, Comment 5
e. Social Security Disability records f. Employment records g. Personnel records h. Social Security Earnings records i. Military records j. Child Protective Services and other community agency records k. Foster care and other placement records l. Arrest, conviction, correctional, and probation records m. Juvenile arrest, conviction, correctional, and probation records n. Police Department calls for service records to client’s residences A number of counties now have resources available to attorneys representing clients with mental illness in the form of caseworkers and mental health professionals. Even if you do not have a case in one of these counties I have found that they are excellent resources to ask questions and get recommendations for expert assistance. These offices are currently located at the Bee County Regional Public Defender, the Bexar County Public Defender’s Office, Dallas County Public Defender’s Office, El Paso County Public Defender, Ft. Bend County Public Defender’s Office, Harris County Public Defender’s Office, Kaufman County Public Defender’s Office, Travis County Mental Health Public Defender Office, and the Wichita County Public Defender’s Office. Pretrial Matters The growing recognition of the impact that metal heath has on the criminal justice system has led to increased pretrial options for clients with mental illness. At his initial booking the jail will perform a basic mental health screening by having the client fill out the Texas Uniform
Health Status Update form.8 If the client exhibits signs of mental illness the attorney has the option of notifying the Sheriff.9 The Sheriff is required to have an assessment of the client completed by the mental health contractor for the County and to send the assessment to the magistrate. The requirement for an assessment under this statute is mandatory regardless of whether the client is in jail, however, a refusal to participate may result in the client being detained for the purpose of administering the assessment if he has been previously released on bond. The magistrate is required to forward copies of the written report to the prosecutor, the defense attorney, and the trial court. This assessment is different than the Texas Uniform Health Status Update form and should contain information that is valuable to the attorney including previous diagnosis, previous recommended treatment, and current status of the client. The written report is required to make findings regarding whether the client has a mental illness or intellectual disability, state an opinion regarding evidence of incompetency to stand trial, and to recommend treatment if necessary.10 Upon receiving the written report from the magistrate the trial court has the option to resume proceedings, initiate competency proceedings, use the assessment in sentencing as part of the presentence investigation report or in determining conditions of community supervision, refer the case to a specialty court, or transfer the case to the probate court for civil proceedings for commitment to outpatient treatment.11 The written order can provide valuable information for the attorney to investigate further by identifying providers that may have records or previous treatment for use in the mitigation of the case, to focus the attorney in hi search for the appropriate experts to use in the case, and to provide the necessary evidence for a suggestion of incompetency. It is important to note that the 8
37 Tex. Admin. Code ยง273.4 Tex. Code Crim. Pro. ยง16.22(a)(1) 10 Tex. Code Crim. Pro. ยง16.22(b-1) 11 Tex. Code Crim. Pro. ยง16.22(c) 9
written report is not confidential and will be sent to the prosecutor through this process so it may not be wise to use the provisions of 16.22 if the attorney knows of a diagnosis that could be harmful for the client when dealing with the prosecutor. Additionally, if the trial court opts to order outpatient mental treatment and the client fails to comply with the order, the proceedings may be resumed, now with the stigma that the client is unwilling or unable to participate in treatment available for use at sentencing. The written order may also be used to seek a personal bond seeking release of the client from custody.12 In order to be eligible for the personal bond under this section the client cannot be charged with or previously convicted of a violent offense as defined by this section. The written report must find that the client has a mental illness and recommend treatment. The magistrate may review other relevant evidence and determine that the personal bond would ensure appearance at court as well as the safety of the alleged victim and community. As a condition of the personal bond the magistrate shall order the client to inpatient or outpatient treatment if the client’s mental illness is chronic or his ability to function independently would continue to deteriorate without treatment, unless good cause is shown. Competency A defendant is presumed to be competent to stand trial.13 A suggestion of incompetency may be made by either party or the trial court. A suggestion of incompetency may be made at any time in the proceedings. If the attorney representing the defendant believes that the defendant is incompetent he should notify the trial court, generally through a motion which should allege the basis for the suggestion and may include affidavits as proof of the suggestion. 12 13
Tex. Code Crim. Pro. §17.032 Tex. Code Crim. Pro. §46B.003
The suggestion need only include a representation from a credible source that the defendant may be incompetent. Unlike prior versions of the statute the trial court is not required to have a bona fide doubt about the competency of the defendant. The decision to make a suggestion of incompetency can be a difficult one for the attorney because defendants often do not want to be found incompetent. Further compounding this is the concern that a finding of incompetency could result in the defendant being required to participate in inpatient or outpatient treatment or competency restoration for a period which would exceed his likely punishment, particularly in regards to a misdemeanor case. The attorney has a duty to the trial court to file for an examination when he has a good faith doubt regarding the defendant’s competency, even over the defendant’s objection.14 Upon a proper suggestion of incompetency the trial court shall conduct an informal inquiry to determine if there is evidence to support a finding of incompetency of the defendant. If the trial court determines that supporting evidence exists then the trial court shall appoint an expert to conduct an examination into the defendant’s competency to stand for trial. The defendant may choose to be examined by an expert of his own by a timely petition the trial court.15 The period before the examination by the expert provides an opportunity for the attorney to prepare the defendant for the examination. It is appropriate to explain what the process for the examination will be as well as how the information may be disclosed or used. The expert’s report will be provided to the prosecutor and the trial court and may be used for the purpose of a trial on the defendant’s competency, but cannot be used in a hearing for the purpose of establishing guilt unless the defendant first introduces it.16 This is also a good time to educate the defendant on
14
American Bar Association Criminal Justice Standards on Mental Health 7-4.3(c) Tex. Code Crim. Pro. §46B.021(f) 16 Tex. Code Crim. Pro. §46B.007 15
how a finding of incompetence may subject him to competency restoration in the State Hospital or a civil commitment. After the completion of the examination reports the trial court may make a finding of incompetency without a trial or the parties may dispense with a trial by an agreement on defendant’s competency. If no agreement is made the trial court will preside over a trial, which may be heard by a jury where the prosecutor must prove the defendant’s competency by a preponderance of the evidence. The defendant’s incompetency is presumed for the purpose of the trial and the burden is on the State. 17 One of the main considerations in preparation for trial is that the jury may believe that they are sitting in a trial for sanity. This misconception could lead jurors to make a finding that the defendant is competent despite evidence otherwise because they believe that they will be acquitting the defendant of the underlying offense. Similarly, jurors may not be aware of the options available to the trial if the defendant is found incompetent and believe that their verdict will release him without treatment or consequence. It is important to make the jury aware of the process and what can happen to the defendant based on their verdict. If the trial verdict finds that the defendant is incompetent to stand trial then the trial court shall commit the defendant to a competency restoration program. If the offense is a class B misdemeanor the trial court either may grant bail and order the defendant to outpatient competency restoration or order the defendant to competency restoration in a jail-based competency restoration program. If a jail based competency restoration program is not available then the defendant may be committed to a mental health or residential facility for a 17
Tex. Code Crim. Pro. §46B.0755(d)
competency restoration program.18 The initial commitment may not exceed 60 days, though a 60 day extension may be ordered. If the offense is a class A misdemeanor the trial court either may grant bail and order the defendant to outpatient competency restoration or order the defendant to competency restoration in a jail-based, mental health facility, or residential facility competency restoration program. If a defendant is charged with a violent offense under Tex. Code Crim. Pro 17.032 the commitment must be to a mental health facility or a residential facility. The initial commitment may not exceed 60 days. A 60 day extension may be ordered. If the offense is a felony the trial court either may grant bail and order the defendant to outpatient competency restoration or order the defendant to competency restoration in a jailbased, mental health facility, or residential facility competency restoration program. If a defendant is charged with a violent offense under Tex. Code Crim. Pro 17.032 the commitment must be to a mental health facility or a residential facility. The initial commitment may not exceed 120 days. A 60 day extension may be ordered. The wait time for competency restoration at a State Hospital is frequently long. The recent averages are 43 days for a nonviolent defendant and 228 days for a violent offender requiring commitment at the Vernon or Rusk State Hospitals. The head of the facility or program will notify the trial court, file a final report, and return the defendant to court. The final report will indicate if the defendant is unlikely to be restored to competency, has had competency restored, or has not had competency restored but may be transferred to a competency restoration program for education services. When the defendant is 18
Tex. Code Crim. Pro. ยง46B.071
returned to court the trial court will make a ruling on defendant’s competency. This ruling may be based solely on the most recent report received by the court. If the defendant is deemed to be competent, the upon defendant’s objection to the finding, the trial court will hold another hearing to determine if the defendant is competent. This determination may again be made by the jury in a procedure similar to the initial competency trial. If the defendant is found competent then proceedings will resume. If the defendant is found incompetent then the trial court will transfer the case for proceedings for a civil commitment not to exceed the maximum term of sentence in the case, except that a defendant charged with a class B misdemeanor may be committed to up to two years of outpatient treatment. Caseloads Studies by the Texas Indigent Defense Council have concluded that large caseloads may result in substandard representation that is not consistent with Gideon and Strickland. Particularly when accounting for the additional work necessary for a caseload which may include as many as 40% of defendants with mental illnesses or developmental disabilities, defendants may not receive adequate representation to address their needs and to ensure that proper investigation into the charges, exploration into mitigation, and reviews into competency are completed. The current recommended caseload a maximum of 226 misdemeanors or 128 felonies. Conclusion We are bound as lawyers to the same ethical duties to our clients with mental illness as we are with any other client. We owe the same duty to investigate, to seek mitigation, and to employ experts. We owe a duty to the court to honestly speak out when issues of competency
arise and to our client to keep them from entering a plea that isn’t knowing and voluntary. Most, importantly we owe the same duty of respect to difficult clients that are struggling that we do to clients that are not dealing with the difficulties of mental illness.
Office of Court Administration Current through 9/1/2017
Screening/Assessment for Arrested Defendant with MI/ID Sheriff/Jailer receives information that defendant has MI or ID (Class B or higher). Ex. CCQ check or jail screening form.
Arrest
Does the magistrate find reasonable cause of defendant MI or ID?
Sheriff/Jailer provides written/electronic notice to magistrate within 12 hours or receipt of information.
Does defendant refuse assessment?
Defendant on bond?
Report due within 96 hours of order
Report due within 30 days of order
TCCP 16.22(b)
TCCP 16.22(b)
TCCP 16.22(b-1), 16.22(e)
N
Magistrate orders LMHA, LIDD, or other QMH/ID assessment.
N
Y
STOP
No assessment required.
Magistrate may order defendant to jail or another place for up to 72 hours for assessment. TCCP 16.22(a)(3)
Defendant in jail?
Copies of report to prosecutor, defense attorney, and court. Number of reports monthly to OCA.
Y
Y
TCCP 16.22(a)(1), 16.22(a)(2)
TCCP 16.22(a)(1)
QMH/ID assesses defendant for MI or ID and provides report to magistrate.
Has defendant previously been assessed in past year?
MI: MH: ID: LMHA: LIDD: QMH/ID: TCCP:
Does report show defendant has MI or ID? TCCP 17.032(b)(2)-(3)
Y
Is defendant charged with or convicted of violent offense? TCCP 17.032(a)
N
Does magistrate determine communitybased MH/ID services are appropriate and available?
Mental Illness Mental Health Intellectual Disability Local Mental Health Authority Local Intellectual and Behavioral Disability Authority Quality Mental Health/Intellectual Disability Texas Code of Criminal Procedure
Y
Does magistrate determine defendant can be safely released? TCCP 17.032(b)(5)
TCCP 17.032(b)(4)
N
Y
Y N
STOP
Magistrate shall release defendant on personal bond and require treatment and any other reasonable condition of bond. TCCP 17.032(b)(5), (c), and (d)
Office of Court Administration Current through 9/1/2017
Competency Restoration Process Note: Applicable to criminal trial procedures as defined in Article 46B.001 for defendants charged with a felony or with a misdemeanor punishable by confinement. Suggestion of incompetency at any stage of proceedings by either party or trial court
Presumption of competency
Y
After informal inquiry, evidence from any source supports finding of incompetency
Y
Experts appointed to conduct exam and testify
Expert examination, report due in 30 days, but at a later date on good cause (Number of reports submitted to OCA).
Expert able to state opinion
N
N
Continue proceedings
N
1. Reset 2. Appoint 2nd examiner 3. Reschedule Y
Expert Opines competent
N
Found competent
Y Proceedings continue
N
Is defendant charged with Class B misdemeanor?
N
Release on Bail – to OCR – up to 120 days. TCCP 46B.072
Maximum time committed is maximum term of sentence, except that defendant charged with misdemeanor in outpatient is 2 years. If exceeded, mandatory dismissal and potential civil commitment.
Y
Commit to JBCR TCCP 46B.073
Proceedings continue
Commit to state MH or residential facility. TCCP 46B.073
3G Offense
Y
MH: CR: OCR: JBCR: TCCP:
Mental Health Competency restoration Outpatient competency restoration Jail-based competency restoration Texas Code of Criminal Procedure
Competency restoration = Mental Health treatment and education services to restore competency
Competency: 1) Sufficient ability to consult with lawyer with reasonable degree of rational understanding; or 2) rational and factual understanding of proceedings against.
Release on Bail – to OCR – up to 60 days. TCCP 46B.0711
N Commit to State Hospital (as determined by DSHS Clearinghouse) Y
Commit to JBCR TCCP 46B.073(e)
Commit to state MH or residential facility if OCR and JBCR not available or appropriate. TCCP 46B.073(f)
(To Vernon)
Go to Next page
Competency Restoration Process Page 2
From p.1
Spontaneous restoration
N
Person transferred and treated.
Can defendant be safely transferred to CR program for education services but not competent?
Y
Y
Re-examination of defendant.
Court orders defendant to receive CR education in JBCR or OCR, if appropriate and available.
N
Not less than 15 days prior to expiration of commitment, facility/OCA/ JBCR notifies court of defendant’s status, and possible need for extension of time.
Facility requests 60 day extension.
N
Facility/OCR/JBCR submits final report on CR and lists medication regimen.
Defendant returned
Y
Competent
Defendant transferred for CR education
60 days additional
Person returned for disposition, competent?
Y
Sheriff continues medication regimen prescribed.
Y Proceedings continue
Court finds defendant restored?
N Y
Y
N
Proceedings dismissed?
N Civil commitment under Subchapter E.
Proceedings resumed Proceedings on return from restoration facility prioritized
Civil commitment under Subchapter F.
Likely to be restored?
Y
N
Texas Criminal Defense Lawyers Association
Battling the Resistance-Tyler January 15, 2021 Livestream
Topic: Procrastination: The Most Common Resistance and the Easiest to Rationalize: Voir Dire Speaker:
Clifford Duke
133 N Riverfront Blvd, LB2 Dallas, TX 75207-4339 (214) 875-2319 Phone (214) 653-3539 Fax cliff.duke@dallascounty.org
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
The Law of Jury Selection Qualification & Disqualification in the Art of Voir Dire. Clifford P. W. Duke Assistant Public Defender, Dallas County 133 N. Riverfront Blvd. LB2 Dallas, TX 75207 (214)-875-2319 cduke@dallacsounty.org
“The Right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency.” -
Texas Constitution Article I Section 15
It goes without saying that the right to trial by jury is a cornerstone of fundamental rights in this country. It was among the grievances cited in the Declaration of Independence, ensconced in the Sixth Amendment to the United States Constitution and Article I of the Texas Constitution. But how is that jury selected? There are as many opinions on the correct style and art to conduct voir dire (I won’t insult you by pointing out this is French for “To Speak the Truth”) as there are attorneys selecting juries. There are however specific rules on the qualification and disqualification of the persons who will be deciding our client’s fate. “The voir dire process is designed to insure – to the fullest extent possible – that an intelligent, alert and impartial jury will perform the duty assigned to it by our judicial system.” DeLaRosa vs. State, 414 S.W.2d 668, 671 (Tex. Crim. App. 1967).
No matter how you decide to talk to your venire, the attorney that knows the rules has the upper hand. I.
Qualifying the Juror
Qualifications for jurors are governed both by the Texas Government Code Chapter 62 as well as the Texas Code of Criminal Procedure Chapter 35. While the two can appear redundant, look back at the Government Code qualifications in conjunction with the Code of Criminal Procedure for additional authority to support your arguments. A. Basic Qualifications The goal of jury selection is to select a jury of twelve persons in a felony case and six persons in a misdemeanor. TEX. CODE CRIM. PRO. §33.01. The Government Code lays out the general qualifications for a juror, while the Code of Criminal Procedure provides the mechanism to reject a juror who does not meet those qualifications. TEX. GOV’T. CODE §62.102 & TEX CODE CRIM. PROC. §35.16. General requirements for a juror are (1) At least 18 years of age; (2) A citizen of the United States; (3) Is a resident of this state and the county in which the person is to serve as a juror; (4) Is qualified under the constitution and laws to vote in the county in which the person is to serve as a juror; (5) is of sound mind and good moral character; (6) is able to read and write;
-
(7) Has not served as a juror for six days during the preceding three months in the county court or during the preceding six months in the district court; (8) Has not been convicted of a misdemeanor theft or of a felony; and (9) Is not under indictment or other legal accusation for a misdemeanor theft or felony. TEX. GOV’T. CODE §62.102
Three of those standards are absolute: if convicted of or under indictment for a misdemeanor theft or felony, or if they are insane they cannot serve. TEX. CODE CRIM. PROC. §35.19. Every other qualification can be waived by the parties. Id. Yup, if everyone agreed you could have a six-yearold on your jury. B. Disqualifications Some things which you would assume would disqualify a juror are actually not disqualifications. A juror is not required to be registered to vote. TEX. GOV’T. CODE §62.1031 Blindness and deafness are not a bar to jury service, unless a judge finds specifically that the disability renders them unfit to serve. TEX. GOV’T. CODE §62.104 & §62.1041 Section 1041 even specifically requires reasonable accommodation for a deaf or hard of hearing juror, allowing an interpreter to accompany a juror during all proceedings and deliberations in a case. Id. Other disqualifications to a specific case include if the potential juror: (1) Is a witness in the case;
(2) Is interested, directly or indirectly, in the subject matter of the case; (3) Is related by consanguinity or affinity within the third degree, as determined by Texas Government Code Section 573, to a party in the case; (4) Has a bias or prejudice in favor of or against a party in the case; or (5) Has served as a petit juror in a former trial of the same case or in another case involving the same questions of fact. - TEX. GOV’T. CODE §62.105 C. Exemptions Aside from disqualifications, there are also exemptions from serving on a jury. A person who is otherwise qualified may establish an exemption if the person is: (1) over 70 years of age; (2) has legal custody of a child younger than 12 that cannot find adequate supervision of; (3) is a student at a public or private secondary school; (4) is enrolled in and in attendance at an institution of higher education; (5) is elected to or employed by the legislative branch of state government; (6) has served on a jury in the last 24 months in a county with a population of at least 200,0000; (7) is the primary caretaker of a person unable to care for themselves; (8) has served on a jury in the last three years in a county with a population over 250,000; or
(9) is a member of the US Military on active duty and deployed out of their county of residence - TEX. GOV’T. CODE §62.106 A person can also establish a temporary or permanent exemption based on physical or mental impairment or an inability to understand English. TEX. GOV’T. CODE §62.109 D. Excuses Everyone wants to do jury service, right? No. And if you haven’t already you will hear some amazing excuses at times. The court is allowed to excuse a juror with a sufficient excuse. TEX. GOV’T. CODE §62.110. While these can be claims of exemption or lack of qualification discussed previously, they don’t have to. The court or their designee may, for any reason except an economic reason, excuse or reschedule any juror who submits a statement of the exemption, lack of qualification, or excuse. Id. Prospective jurors can be excused for economic reasons, but only if each party of record is present and approves the release. TEX. GOV’T. CODE §62.110(c) E. Challenging the Array What do you do if the entire panel was summoned against your client? “Either party may challenge the array only on the ground that the officer summoning the jury has willfully summoned jurors with a view to securing a conviction or an acquittal.” A TEX. CODE CRIM. PROC. §35.06. challenge to the array must be in writing and, if filed by the Defendant, must be supported by affidavit. Id. A challenge to
the array is heard before any other qualification determinations. TEX. CODE CRIM. PROC. §35.06. If sustained, a new array is summoned. TEX. CODE CRIM. PROC. §35.09. F. Seating & Shuffling your Venire All of these qualification determinations are before we even get to talk to our venire. The disqualifications or exemptions are filed with the court or their designee or tested under oath by the court or their designee. TEX. GOV’T. CODE §62.110 & TEX. CODE CRIM. PROC. §35.10. Depending on how your jurisdiction manages their jury summons these qualifications may be done in the courtroom by the judge, in a central jury room, or even online before your potential juror even reports to the courthouse. TEX. CODE CRIM. PROC. §35.03. After qualification questions by the Judge, but before the attorney’s questioning of the venire, either party can request that the jury panel be “shuffled”. The “Jury Shuffle” is not clear from the statute, but very well established in Texas jurisprudence. See TEX. CODE CRIM. PROC. §35.11; Alexander v. State, 523 S.W.2d 720, 721 (Tex. Crim. App. 1975) citing Woerner v. State, 523 S.W.2d 717 (Tex. Crim. App. 1975) “The right to have a jury panel assigned to a case redrawn is clearly provided for in Art. 35.11.” A “Jury Shuffle” may be demanded by either the State or Defense, but only one shuffle is required. Jones v. State, 833 S.W.2d 146, 148 (Tex. Crim. App. 1992 En Banc.). Failure to grant a motion to shuffle
is reversible error, and no harm need be found. Id. Once the venire is qualified, the disqualifications, exemptions, and excuses filed, your jury shuffled and is seated and assuming there is no challenge to array, you may now begin your voir dire. II.
Conducting the Voir Dire
“The paramount concerns of jury selection and the laws governing is the ability for a defendant to exercise their preemptory challenges intelligently.” See Wappler v. State, 183 S.W.3d 765, 772 (Court of Appeals of Texas, Houston 1st Dist.) citing Smith v. State, 703 S.W.2d 641, 643 (Tex.Crim.App. 1985). “The right to question venire members to exercise preemptory challenges intelligently is an essential part of that Sixth Amendment guarantee.” Id. citing Franklin v. State, 138 S.W.3d 351, 354 (Tex. Crim. App. 2004); see also Gonzales v. State, 994 S.W.2d 170, 171 (Tex.Crim.App. 1999) (“[T]he right to pose proper questions during voir-dire examination is included within the right counsel under Article I §10 of the Texas Constitution”). That does not mean there are no limitations on how voir dire is conducted. “Texas trial courts have broad discretion over the jury-selection process. Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App 2002). Both the trial court’s discretion and established case law will limit what and how you can question your venire. A. Time Limitations
The first hurdle you may have to get over is how much time you have to question your venire. Although it is unclear why anyone would need more than thirty minutes to question eighty-five people regarding guilt and innocence and punishment in a case involving sexual abuse, DNA, codefendants, and police misconduct some attorneys may find they want more time. Time limits on jury selection deal with two competing rights: the constitutional right to question prospective jurors and a trial judge’s right to impose reasonable restrictions. McCarter v. State, 837 S.W.2d 117 (Tex.Crim.App. 1992) citing Naugle v. State, 40 S.W.2d 92, 94 (Tex.Cr.App 1931); McManus v. State, 591 S.W.2d 505, 520 (Tex.Crim.App. 1979). It’s well established that a trial court can impose reasonable limits on questioning and time. Id. citing McManus v. State, 591 S.W.2d 505, 520 (Tex.Crim.App 1980) (not abuse of discretion to disallow duplicitous question); Clark v. State¸608 S.W.2d 667, 669 (Tex. Crim. App. 1980) (trial court can set reasonable time limits); Abron v. State, 523 S.W.2d 405, 408 (Tex.Crim.App. 1975) (trial court can set reasonable time limits, restrict repetitious or vexatious questions, restrict questions asked in improper form, restrict questions directed at personal habits of jurors). Because it is a balancing of two rights, a trial court’s decision to limit voir dire is reviewed for abuse of discretion. Id. citing Smith, 703 S.W.2d 641, 643 (Tex.Crim.App. 1985). Some time limits are too much. See Eg. Morris v. State, 1 S.W.3d 336 (Tex.App –
Austin 1999) (45 minute time limit in Aggravated Assault case inappropriate); Cartmell v. State, 784 S.W.2d 183 (Tex.App – Fort Worth 1990) (20 minute time limit in DWI unreasonable). The central question is did counsel have enough time to intelligently question the venire? Look a little later in the paper for how to preserve error if your time is cut short. B. Question Limitations In addition to the trial court’s discretion, the Court of Criminal Appeals has defined limits of what questions may be asked during Voir Dire. “A question is proper if it seeks to discover a juror’s views on an issue applicable to a case.” Barajas, at 39 citing Smith v. State, 703 S.W.2d 641, 643 (Tex.Crim.App. 1987) Questions which would be appropriate can become objectionable when they are either too vague or too specific. 1. Overly Broad With the touchstone of attempting to intelligently strike jurors, either preemptively or for cause, we need to make our voir dire questions specific enough to touch the issues of our case. “[A] trial judge can exercise his discretion to prevent an improperly phrased question from being asked when it threatens to duplicate earlier questions, or presents so broad a question as to constitute a global fishing expedition.” Smith v. State, 703 S.W.2d 641 (Tex.Crim.App. 1985 overruled on other grounds). The Smith case provides great examples of asking too broad or too narrow of questions.
Mr. Smith’s attorney was relying entirely on the insanity defense at trial. Counsel’s question of the jurors about “their thoughts” on the insanity defense was found to be too broad. The Court found that to be a “general topic for discussion” and did not attempt a more restrictive question or direct the question to specific jurors based on prior answers. Id However, counsel’s question to the jury panel of “their idea of punishment” and “what they think its purpose should be” where his client was charged with murder and had filed for probation was proper. Id. Unfortunately Smith was overruled by Easley v. State, which relegated limitations on juror questioning to non-constitutional harm analysis. Easley v. State, 424 S.W.3d 535 (Tex.Crim.App. 2014). Nonetheless craft your questions to the theme and points in your case, and object when the other side does not. 2. Commitment Questions Too tight of a scope of question can draw and objection just as quickly as one that is too broad. Trying to nail a juror down to a specific answer may draw that terrible and confusing objection: a commitment question. What is a commitment question? “Commitment questions are those that commit a prospective juror to resolve, or refrain from resolving, an issue a certain way after learning a particular fact.” Standfer v. State, 59 S.W.3d 177 (Tex.Crim.App. 2001). Not all commitment questions are objectionable. Id. at 182. To be objectionable a commitment question
must either (1) ask a commitment where the law does not require one or (2) provide facts in addition to what is needed to establish a challenge for cause. Id. a. The Inappropriate Commitment In the first scenario the problem is asking the juror to commit when it’s not appropriate. The question “Can you consider the entire punishment range in a murder case?” is a proper commitment question. However, the question “Can you consider my clients age in mitigation?” is not. A juror cannot be challenged for cause for failure to consider specific mitigation evidence. Raby v. State, 970 S.W.2d 1, 3 (Tex.Crim.App.), cert. denied, U.S., 525 U.S. 1003, 119 S.Ct. 515, 142 L.Ed.2d 427 (1998). The key is does a possible answer to the question lead to a valid challenge for cause? Id. In the example above, no matter what the answer is considering your clients age, you cannot challenge the juror for cause. Remember that as long as you’re not seeking commitment, you are not prohibited from exploring any number of issues. Consider these two questions: “Do you believe age can influences a person’s choices and actions?” vs. “Can you consider my client’s age when looking at his actions?” The first question is a information gathering question. It does not demand a commitment. Question two however… b. Committing To Too Much
The second scenario is when the question adds too much to your commitment question. Look at a permutation of our appropriate commitment question on a range of punishment: “Can you consider the entire range of punishment in a murder case when the victim was a clown?” Now we have an additional fact: the identity of the victim. “To be proper, then, a commitment question must contain only those facts necessary to test whether a prospective juror is challengeable for cause.” Standfer, 59 S.W.3d at 182 The Court in Standfer uses the example of the decision in Atkins v. State. There the prosecutor asked prospective jurors if they could convict a person of possession of a controlled substance if the crack pipe in their pocket during arrest had residual amount of cocaine in it. Atkins v. State, 951 S.W.2d 787, 789 (Tex.Crim.App.1997). The additional facts of the arrest, the crack pipe, and the fact that it was in defendant’s pocket “rendered improper what otherwise would have been a proper question designated to assess whether a prospective juror was challengeable for cause. Id. To keep it in perspective then remember it’s ok to ask a juror to commit, as long as the law requires them to. C. Juror Questionnaire Not all examination of the venire has to be done orally. A well-crafted juror questionnaire can not only help with identifying specific jurors you want to zero in on and challenge for cause, but frequently will give you some information on that juror in the back you never got to while you’re doing your strikes.
There is no requirement that a judge allow or include the use of any questionnaire or a specific questionnaire. Remember that the trial court has very broad discretion in conducting voir dire that trial courts are given. Barajas, at 38 (Tex.Crim.App 2002). If you get shut down, make your record as to how your inability to use a questionnaire inhibits your ability to effectively question the venire and exercise your preemptory challenges. Also make the case to your judge that the questionnaire will make voir dire go faster, since you’ll have to ask all those questions in person if you can’t do it on paper. Even if a questionnaire is allowed BEWARE! You cannot rely on a questionnaire alone to challenge for cause. Gonzales v. State, 3 S.W.3d 915 (Tex. Crim. App. 1999). You must follow up with oral questions to establish a jurors answer. “[W]ritten questionnaires, while often helpful tools in conducting voir dire, do not constitute a formal part of the voir dire proceeding.” Gzarza v. State, 7 S.W.3d 164, 166 (Tex. Crim. App. 1999). A questionnaire can be an amazing tool for jury selection but can only go so far. D. Preserving Error What do you do if you feel like your questions were inappropriately excluded, either by time or direct objection? To preserve error concerning the manner of voir dire, the record must reflect a question which the trial court has not allowed to be answered. Caldwell v. State, 818 S.W. 29d 790, 794 (Tex.Crim.App. 1991). It has to more than just a general question. “A
question that is so vague or broad as to constitute a global fishing expedition is not proper, and fails to preserve error because it is impossible for a reviewing court to determine if the question is relevant and property phrased.” Id. The abuse of discretion test for voir dire is three pronged: (1) whether the party attempted to prolong the voir dire; (2) whether the questions that the party was not permitted to ask were proper voir dire questions, and; (3) whether the party was not permitted to examine prospective jurors who actually served on the jury. Ratfill v. State, 690 S.W.2d 597, 600 (Tex.Crim.App. 1985). To preserve the error the reviewing court will need enough information to answer those questions. As a practical matter to do this you will need to identify the person or persons you were unable to question, the specific questions that would have been asked, and that these persons actually served on the jury. This can done either by dictating that information to the court reporter or by filling a bill of exceptions. But be careful! The timeliness requirement of objections requires that the trial court is made aware of objections or complaints at a time when there is an opportunity to cure or respond to the complaints. The “contemporaneous objection rule” is that an objection must be made at the first opportunity to do so. TEX. R. APP.P. 33.1; Lagrone v. State, 942 S.W.2d 602, 618 (Tex.Crim.App. 1997). Filing your bill of exception or dictating objections after a Jury is sworn will probably be to late. Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App. 1991)
III.
Challenging the Juror
Let’s step back and remember why we are asking these questions: to intelligently exercise our peremptory challenges. Smith supra. There are three ways a prospective juror may be dismissed. The first is by agreement of the parties. TEX CODE CRIM. PROC. §35.05. Second is to establish for the court that a potential juror is not qualified. TEX CODE CRIM. PROC. §35.16. Finally, is to use one of the limited number of preemptory challenges afforded each side. A. Challenges for Cause A challenge for cause is established from a juror not meeting the basic qualifications discussed above or by showing some objectionable level of bias or prejudice. The sole finder of fact on the disqualification of jurors is the Judge. “The court is the judge, after proper examination, of the qualifications of a juror, and shall decide all challenges without delay and without argument thereupon.” TEX CODE CRIM. PROC. §35.21 1. Basic Qualifications Any juror may be dismissed for failing to meet one or more of the basic qualifications from the Texas Government Code or Code of Criminal Procedure noted above. “A challenge for cause is an objection made to a particular juror, alleging some fact which renders the juror incapable or unfit to serve on the jury.” TEX CODE CRIM. PROC. §35.16(a). Additionally, the State may dismiss any juror within the third degree of consanguinity or affinity of the Defendant. TEX CODE CRIM. PROC. §35.16(b). The
Defendant may do the same for any person injured by the alleged offense, or to any prosecutor in the case. TEX CODE CRIM. PROC. §35.16(c). Remember that with the exception of having a pending misdemeanor theft or felony, being convicted for one, or being insane any juror disqualification can be waived. TEX CODE CRIM. PROC. §35.19; Mayo v. State, 4 S.W.3d 9, 12 (Tex.Crim.App. 1999). And even past insanity may not be enough! See Carter v. State 278 S.W.840 (Tex.Crim.App. 1925). In Carter the Defendant found out after the trial that one of his jurors “had been duly adjudged a lunatic and confined in the insane asylum at Terrell…” Id. However, because there was no objection, and because the court did not clearly abuse its discretion in judging the juror sound of mind, there was no error. Id. You must lodge an objection to preserve an error for appeal. 2. Bias or Prejudice In addition to the qualification issues for each juror “a prospective juror is challengeable for cause if he or she has a bias or prejudice against the defendant or against the law upon which either the State or the defense is entitled to rely. Buntion v. State, 382 S.W.3d 58, 83 (Tex.Crim.App 2016) citing TEX CODE CRIM. PROC. §35.16(a)(9) & (c)(2); Gardrner v. State, 306 S.W.3d 274, 295 (Tex.Crim.App. 2009) A prospective juror is disqualified if their bias or prejudice would substantially impair their ability to follow their oath to uphold the law. Id. citing Wainwright v. Witt, 469 U.S.412, 424 (1985).
Bias does not have to be proven with unmistakable clarity. Id. For a prospective juror to be excused for cause the law must be explained to them, they must understand the requirements of the law, and they cannot overcome their prejudice well enough to follow the law. Davis v. State, 329 S.W.3d 789, 807 (Tex.Crim.App. 2010). The proponent for the challenge for cause has the burden to show their challenge is proper. See, e.g., Howard v. state, 941 S.W.2d 102, 128 (Tex.Crim.App. 1996); Harris v. State, 784 S.W.2d 5, 25 (Tex.Crim.App. 1989). The flip side of a direct answer establishing bias is an evasive or vacillating venireman. Getting different answers, or having a juror who is unable or unwilling to say that they can follow the law is a basis for cause. Riley v. State, 889 S.W.2d 290, 300 (Tex.Crim.App. 1993). The central test for juror bias isn’t whether a person is influenced by their background or pre-conceived notions. If a prospective juror is consistent that they can put aside bias, even if it would be difficult or “violate their moral conscious”’, they are not challengeable for cause. Id. The test if they are unwilling or unable to follow the law. Id. Remember the foundation of who is making the final decision. The trial court is given extreme deference since they are “in the best position to evaluate a venire member’s demeanor and responses.” Colburn v. State, 966 S.W.2d 511, 517 (Tex.Crim.App. 1998). An appeals court will review all the evidence for a challenge for cause, and only reverse on a clear abuse of discretion. Davis, 329 S.W.3d at 808.
3. Rehabilitating Jurors Once a potential juror reveals a bias or prejudice can they be brought back from being caused? The answer is maybe. The general rule is that once a bias or prejudice is established, the juror must be dismissed. TEX. GOV’T. CODE §62.105(4); TEX CODE CRIM. PROC. §35.16(a)(9). It is not discretionary. The previous rule was once established, a juror could not be rehabilitated. Sullemon v. US Fidelity & Guaranty Co., 734 S.W.2d 10, 14 (Tex.App – Dallas 1987, no writ). Even if a juror is “rehabilitated through the efforts of counsel or the court by stating that he would decide the case on the evidence and could be fair to both sides, the trial court must excuse the juror.” White v. Dennison, 752 S.W.2d 714 (Tex.App. – Dallas 1988) citing Gum v. Schaefer, 683 S.W.2d 803, 808 (Tex.App. – Corpus Christi 1984, no writ). While not specifically overruling that standard, the Texas Supreme Court in 2005 essentially left the determination with the trial court’s discretion. Cortez ex rel. Estate of Puentes v. HCCI – San Antonio, Inc. 159 S.W3d 87 (Tex. 2005). In disapproving of the hard and fast rule of no rehabilitation, the Supreme Court in Cortez held that “trial courts exercise discretion in deciding whether to strike venire members for cause when bias or prejudice is not established as a mater of law, and there is error only if that discretion is abused.” Id. at 92. “If the initial apparent bias is genuine, further questioning should only reinforce that perception…” Id. at 93.
4. Preserving Error So what to do if the Judge denies your perfect challenge for cause? “To establish harm for an erroneous denial of a challenge for cause, the defendant must show on the record that he used a preemptory strike to remove the venireperson and thereafter suffered a detriment from the loss of the strike.” Buntion v. State, 482 S.W.3d 58 (Tex.Crim.App. 2016). Preserving error in jury selection is a five step process: 1) make a clear and specific challenge for cause; (2) use a preemptory challenge on the complained of venire; (3) exhaust your preemptory challenges; (4) request and be denied additional strikes; and (5) identify an objectionable juror you were forced to accept. Id. citing Chambers v. State, 866 S.W.2d 9, 22 (Tex.Crim.App. 1993). Make a cheat sheet. Check your list. Don’t skip your steps. B. Peremptory Challenges Juror number twelve is giving your client the stink eye, but knows how to answer all of your brilliant cause questions and not get kicked. What to do? Bring out the peremptory challenge. “A peremptory challenge is made to a juror without assigning any reason therefor.” TEX CODE CRIM. PROC. §35.14. These are your strikes to dismiss jurors who are not otherwise disqualified. 1. How Many You Get and How To Get More The number of challenges given to each side is governed by level of offense being tried. A capital case receives fifteen strikes,
non-capital felonies ten, misdemeanors tried in District Court five, and misdemeanors tried in the County Court, or County Court at Law, three. TEX CODE CRIM. PROC. §35.15. If two or more co-defendants are tried together a capital defendant receives eight strikes, non-capital felony six, and misdemeanors three each. Id. The State then receives equal strikes (eg. two defendants with three strikes each equals six strikes for the State). Id. If alternate jurors are to be used, both the State and Defense get one additional peremptory challenge if one or two alternates are to be used, two additional peremptory challenges if three or four alternates are used. TEX CODE CRIM. PROC. §35.15(d). Those additional strikes can only be used on alternates, and your other strikes cannot be used on alternates. Id. Additional peremptory strikes are discussed above with challenges for cause. An additional peremptory strike is granted to allow the judge “the opportunity to correct his error by granting additional peremptory strike to make up for the one that was wrongfully denied.” Comeaux v. State, 445 S.W.3d 745, 751 (Tex.Crim.App. 2014). Rule of thumb, you’ll never get more if you don’t ask. 2.
Discriminatory Use (Batson)
Peremptory challenges are used any way one wants to, within limits. Either party “may strike any member of the venire panel for any reason (except a prohibited reason such as race or sex) or no reason at all.” Id. at 749. Strikes based on gender or race violate the equal protection clause of the
fourteenth amendment. Batson v. Kentucky, 476 U.S. 79 (1986); Ladd v. State, 3. S.W.3d 547, 563 (Tex.Crim.App. 1999 overruled on other grounds). To establish a Batson challenge the party objecting must make a prima facie showing of discriminatory motives behind peremptory strikes. Herron v. State, 86, S.W.3d 621, 630 (Tex.Crim.App. 2002). Strikes in a pattern against a specific race or gender, along with statements during voir dire may support or refute the inference of a discriminatory purpose. Batson, at 97. If the court determines a prima facie showing of discriminatory use of peremptory challenges the burden shifts to the other party to provide a discriminatory neutral explanation for the use of their challenge. Id. The trial court will then make a determination if intentional discrimination has been shown. Id. The trial court must consider the entire record. Watkins v. State, 245 S.W3d 444 (Tex.Crim.App. 2008). The final determination is a fact question, and the trial court is given extreme deference in their findings. Id. In addition to race, gender cannot be the basis for exclusion from jury service. JEB v. Alabama, 511 US 127 (1994); Fritz v. State, 946 S.W.2d 844 (Tex. Crim. App. 1997). Not all classes are protected from a biased peremptory strike. Batson’s foundation is equal protection analysis. Harkening back to law school days, some classes and groups receive more protection than others. “A violation of the Equal Protection Clause may occur when the government discriminates
against the members of a class of individuals who have historically suffered discrimination, i.e., a “suspect” class, or when the government impairs the members of a class from exercising a fundamental right.” Casarez v. State, 913 S.W.2d 468, 473 (Tex.Crim.App. 1995). Equal protection analysis does not apply to peremptory challenges of prospective jurors on the basis of religion. Id. at 472-74. Striking a juror for age is not prohibited. See Gerber v. State, 845 S.W.2d 460, 465 Tex. App.—Houston [14th Dist.] 1993, pet. ref’d.) While a juror may not be dismissible simply because of their disability, a rational explanation stemming from a disability is not prohibited. US v. Harris, 197 F.3d 870 (7th Cir. 1999) (Dismissal of a juror with multiple sclerosis was proper due to medication making her tired). The prohibition against peremptory challenges based on race is codified at TEX. CODE CRIM. PROC. §35.261. But don’t stop just at race. Batson does not apply to a challenge for cause. When a potential juror cannot follow they law, they can be precluded from jury service. See Staley v. State, 887 S.W.2d 885 (Tex. Crim. App. 1994). If however there is a discriminatory purpose behind the use of preemptory challenges it must be rationally related to a legitimate governmental interest. Casarez, at 474. Watch how voir dire is conducted and preserve that discriminatory challenge if it appears to be harming your client. IV.
Conclusion
So how do you do this? That is a question of style and far beyond my area to lecture
on. If by the Colorado Method or psychodrama, rhetorical or scaled questions, lecture or looping every person has their own style. If I have learned anything it’s that while you can learn from every attorney you watch you cannot be any of them. You need to find your style. But while you’re doing that keep the central tenants in mind: 1) The trial court is going to make the ultimate determination with wide deference. 2) The exclusion of a juror isn’t because they have a bias or prejudice, but because they cannot put it aside and 3) harm for appeal only comes about if you have an objectionable juror on your case either because you had to waste a peremptory on anther, or got cut off and didn’t get to question that objectionable juror. The rules of voir dire are not short and sweet. And every voir dire should be different for every case. Set your theme, convey your foundations, and seek out the jurors sympathetic to your case. It is the court’s job to find a neutral and unbiased jury. It is ours to advocate for our clients.
Clifford P. W. Duke
Dallas County Public Defenders Office
cduke@dallascounty.org
What Are We Going To Talk About Today
BASIC QUALIFICATIONS
PROCEDURAL LIMITATIONS
QUESTION LIMITATIONS
CHALLENGING & REHABILITATING JURORS
PREEMPTORY CHALLENGES
i
Texas Government Code Chapter 62 Texas Code of Criminal Procedure Chapter 35
EXEMPTIONS &Â EXCUSES
TEX. GOV’T. CODE §62.105
TEX.CODE.CRIM. § PRO 35.16
Waiver of Objections
The Shuffle
TEX. CODE CRIM. PROC. §35.11
Time Limits “Time limits on jury selection deal with two competing rights: the constitutional right to question prospective jurors and a trial judge’s right to impose reasonable restrictions.” McCarter v. State, 837 S.W.2d 117 (Tex.Crim.App. 1992)
QuestionnairesÂ
Not to Broad Not to Specific
Commitment Questions
Preservation of Error
Challenges For Cause
‐ Basic Qualifications
‐ Bias or Prejudice
RehabilitationÂ
Peremptory Challenges
Obtaining More Challenges
Limits on Peremptory Strikes – Batson v. Kentucky
Thank You! Clifford P. W. Duke 133 N. Riverfront, LB2 Dallas, TX 75247 214‐875‐2319 cduke@dallascounty.org
Texas Criminal Defense Lawyers Association
Battling the Resistance-Tyler January15, 2021 Livestream
Topic: Controlling the Perceptions: Experts Speaker:
JoLissa Jones
1923 Blodgett St Houston, TX 77004 (346) 571-1852 Phone (713) 520-7000 Fax jolissa@thesparkslawfirm.com
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
IS THERE A DOCTOR IN THE HOUSE? How the Use of Experts Helps Shape Your Story JoLissa Jones INTRODUCTION We have all seen the dramatic moments on TV and in movies where someone faints in the food court, has an episode on a plane, or gets inured in a crowd. Inevitably, a bystander will yell, “IS ANYONE A DOCTOR?” And, of course, it makes perfect sense. When there is an emergency, we look to those who are learned, qualified, and trained to make better and more informed observations and decisions than we would be able to. In the instance of a criminal case, this is also true. A criminal prosecution is an emergency that can lead to the loss of life and liberty of our clients. Often, it is the most severe emergency that some of our clients have ever faced. Luckily, our clients have us. Eager, competent, and dedicated attorneys who know the law. However, a criminal prosecution is a complicated matter. Rarely is the journey from arrest to disposition a straight line with no bumps in the road. Criminal defendants are often complex humans who find themselves in complex situations. An extra set of eyes and multiplied brain power can often be the key to a better resolution for our clients. That’s where experts come in. In our representation of our clients, we should seek to leave no stone unturned when it comes to crafting the right defense or compelling mitigation. An expert gives us an opportunity to discover issues we didn’t know were there or widen the lens focused on a defendant that results in compassion and justice in sentencing. The use of experts has value that cannot be overstated. WHY DO I NEED AN EXPERT?
Of course, you’re great at what you do. Many a case has been resolved without the use of an expert! That’s true! On the other hand, what might have happened in some of those more difficult cases if you had an investigator to find more witnesses or collect affidavits? What if a cellular data expert could show how incredibly flawed the state’s evidence was? There are countless situations in which an expert can be helpful, both in the background and foreground of your case. When a client walks into your office or when you first meet them after being appointed, they often tell you their most polished version of their story. The one that has enough truth to convey the general sequence of events and makes them look like they have the least culpability possible. It is human nature to put our best foot forward. As time goes on, the walls start to come down and hopefully we build relationships with our clients that allow for us to get a fuller picture of the facts. In this case, an investigator can be helpful in speaking to complainants, witnesses, and law enforcement. Experts can also help in obtaining security footage, affidavits, and securing records. Of course, investigators aren’t the only experts that are helpful. There are countless types of experts who can assist in the early stages of a case that will set the path of the litigation. Consider a defendant charged with Driving While Intoxicated. The prosecutor sees the offense report and the results of the breath or blood sample taken from the defendant and makes their decisions based on that information. Here, an independent scientist may be able to look at the records from the lab, calibrations of the breath testing machine, whether the nurse who drew the blood used the proper procedures to open pathways to challenge the results before the case is anywhere close to being before a jury. This is especially true in a time where many District Attorney’s offices are understaffed and overworked and prosecutors do not have the time to
evaluate each of their cases thoroughly. They miss things. Hiring experts helps ensure that the defense does not miss those mistakes. Even if the use of an expert cannot help you avoid trial, enlisting the help of an expert can ensure that you get to trial knowing every weapon you have in your cache to secure justice for your client. Consider a situation where the prosecutor will not listen to reason or negotiate with you regarding an offer for your client. Experts who specialize in the particular details of your case can ensure that when it comes to cross-examining the state’s witnesses or making motions regarding the evidence, you are prepared and educated in how to handle them. Once the case is going to trial, the assistance of experts cannot be understated. It is one thing to prepare reports or advise on strategy and quite another to testify to the judge or jury about the work behind the opinions. Think of popular shows like Law & Order, CSI, Bones, or House. The rise of shows like these have tremendously influenced how the people that make up juries process information. Watching the process play out in these media, no matter how different it is from reality, also changes what kind of evidence people expect to see presented and who they trust. When someone’s behavior needs to be explained, a congenial and knowledgeable psychiatrist can humanize your client and make the behavior at the center of the case understandable if not excusable. When challenging the plausibility of the state’s facts, scene reconstruction experts can physically show that your client could not have done what the state says they did. When there is a guilty verdict, a mitigation expert can run down the litany of factors that makes your client human, not a monster, worthy of mercy and justice in regard to their own trauma. Experts assist with big picture of criminal defense. They are often a big part of the heart and soul of a defendant’s case.
WHAT KIND OF EXPERT DO I NEED? If you seek, you shall find. There is an expert for everything. From blood spatter to street gangs to eyewitness identification, if you need it, it’s out there. If there is a niche issue you need explored, it is almost guaranteed that someone has made that particular thing their area of expertise. That being said, the most basic experts integral to any case are investigators and mitigators. Investigators are the “boots on the ground� when it comes to working up a case. Investigators spot potential witnesses in offense reports, visit scenes, interview necessary parties, and can even testify. Finding an investigator that aids your preparation and understands your methods is incredibly important. Investigators also often have connection and contacts within organizations to aid in getting access to records or media that would otherwise be cumbersome. In regard to mitigation, finding someone to gather and conglomerate mitigating evidence is of the utmost importance. Mitigation is important in any case, but whether an expert is needed is a matter of preference and judgment. A misdemeanor possession of marijuana case may not require an expert; character letters and other mitigation items provided by your client or his or her family may be enough to negotiate with the state. In any case that may be heading to trial or sentencing by way of Pre-Sentence Investigation or plea agreement, mitigation experts are trained to gather all of the records and documentation needed to paint the full and colorful picture that represents your client. Their assistance is invaluable and undoubtedly saves lives. Complicated issues necessitate more complex solutions. As a result of review of the case or the investigation done by your investigator, issues may arise with fundamental evidentiary elements in the case. Bullet trajectory, blood spatter, cell data dumps, or drug analysis may
become issues. While a good attorney may be prepared to fight fourth amendment violations or raise Daubert challenges, an expert is required to explain the more minute details of the evidence. Consider the case of Noel Dean. In 2007, Mr. Dean’s wife was found dead in the bathroom of their home. Mr. Dean was immediately the primary suspect in her killing, and the medical examiner subsequently ruled the death of Mr. Dean’s wife, Shannon, a homicide.1 After a mistrial in his first case, Harris county tried him again. This time, defense counsel retained an expert to review the evidence and assist in Mr. Dean’s defense. The expert found that the bruising and “tattooing” left behind at the entry wound was consistent with a self-inflicted wound. An officer had attended the autopsy and told the medical examiner his theory of the case and what the officer hoped the autopsy would show. As a result of this excellent work, Harris County’s Medical Examiner changed his testimony while on the stand, and the District Attorney’s Office dismissed the case against Mr. Dean, finally freeing him to properly mourn his wife. Mr. Dean got his life back thanks to the hard, keen-eyed work of defense counsel and a team of experts. The issue of tattooing as a result of a gunshot wound is something that could easily be missed by someone who simply doesn’t know what they don’t know. This is why experts are so incredibly important to the resolution of cases where the literal lives of defendant’s are on the line. Our life experience, training, and connections cause all of us to see the world slightly differently. Just as we often consult our colleagues on novel issues or have them proofread our briefs to find mistakes we cannot see; experts provide that in a way that cannot be quantified.
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Dean v. Phatak, No. 16‐02650, http://www.ca5.uscourts.gov/opinions/pub/16/16‐20650‐CV0.pdf.
Failure to employ the proper expert leaves cards on the table and our clients insufficiently represented.
HOW DO I FIND EXPERTS? Google it. No, really. Google is the easiest way to find people who have the particular credentials you are looking for in a case. Notably, a Google search will show thousands of results of varying relevance, but if starting from scratch it is a relatively easy way to come up with a list of experts to investigate further. This is a simple method, but it is by no means the most efficient method. Use your resources! Word of mouth serves so many purposes in our profession. From informing us about the judges in our courthouses to finding an attorney to sponsor your pro hac vice, lawyers like to share the wealth. If you belong to social media groups for attorneys, ask there. If you hear of any interesting cases in the courthouse, talk to the attorneys to see what experts they used and if they’d recommend them going forward. Finally, make use of the resources afforded to you by your professional membership organizations. TCDLA’s listserv is teeming with wonderful advice and recommendations. Occasionally, an attorney will post with their results and the name of the expert that secured victory for them. Other times, attorneys will ask colleagues for help in finding an expert for a particular issue and TCDLA members are always willing to help. This is also another avenue in which your investigators or mitigation experts can assist with. As the “generalist” experts typically on a case, many investigators and mediators have worked with other experts in more specialized fields on cases and can make recommendations.
So, you have your list of potential experts. Now how do you choose one? Choosing an expert depends on the delicate balance of scope & quality of the work done and the communication skills of the expert. If the expert will need to testify at trial, it may be prudent to choose an expert who is more limited in scope but can convey the most relevant issues to the jury better. Where the expert is merely preparing a report for presentation to the judge, charisma and likeability is less of a factor. Of course, more than likeability or charisma, your expert must be trustworthy. The jury needs to buy-in and follow what the expert is trying to tell them. The last thing you need when fighting for your client’s life is an expert who is too professorial and drones on like the adults in a Peanuts cartoon. Meet with the expert and see how they might be perceived. When making initial contact, ask if they have any trials approaching and do your best to observe them in their element. Make sure that they are the best person for the job before you hire them.
HOW DO THE EXPERTS GET PAID? There is no doubt about it, experts and expert testimony is expensive. It often costs money that clients simply do not have, but it is clear from the facts of the case that an expert is necessary for the just resolution of your client’s case. This is a difficult part of being an attorney, realizing that there may be a way to preserve your client’s freedom, but they do not have the funds to pay for it. In cases like these, there is Ake v. Oklahoma.2 In Ake, the Supreme Court held that indigent defendants are entitled to the same experts employed by the state and, like attorneys, if the defendant cannot afford to hire an expert one can be provided to them. Even if the attorney
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Ake v. Oklahoma, 470 U.S. 68 (1985).
on the case is hired, this does not prevent the court from providing funds to hire an expert on the case if it can be shown that the defendant has exhausted all of his or her resources and cannot afford to pay for expert assistance our of pocket. Ake practice can be tricky. A significant factor in whether your motion is granted or denied is where you’re practicing and the presiding judge. Smaller counties tend to have tighter purse strings, some judges will grant these motions liberally, others will make you jump through hoops. Though it can be difficult, the challenge is worth it to attempt to secure an expert for your client. As an important note, some counties will grant these motions and appoint a particular expert. Fight this to the best of your ability to ensure that the expert chosen for your case is as detached from the state if possible. If a motion for funds is not an option where you practice, make sure the client knows that there is an extra cost incurred if experts are needed. You could also take the potential need for expert testimony into consideration when setting fees and taking consultations. Clients don’t often like to hear that the things they need to get their case handled will cost them extra money, but it is important that they know the right expert could be the difference between living in freedom and losing their liberty to the government. CONCLUSION Proficient experts can be the difference between a conviction and dismissal. Competent expert testimony can be enough to create reasonable doubt. Making sure to hire competent experts is an investment that pays incredible dividends when used effectively. The stories of our clients are of the utmost importance. Always be sure to use the best tools to tell it.
Texas Criminal Defense Lawyers Association
Battling the Resistance-Tyler January 15, 2021 Livestream
Topic: When the Finish Line is in Sight: Closing Arguments Speaker:
Matthew Allen 310 S. St. Mary's St. #965 San Antonio, TX 78205 (210) 413-0195 Phone (210) 209-8143 Fax mtallenlaw@gmail.com
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
CLOSING ARGUMENTS: THE BEGINNING OF THE END
MATTHEW T. ALLEN, San Antonio Law Office of Matthew Allen
Texas Criminal Defense Lawyer’s Association BATTLING THE RESISTANCE October 16, 2020 Corpus Christi
MATTHEW T. ALLEN LAW OFFICE OF MATTHEW T. ALLEN 310 S. ST. MARY’S ST. #965 SAN ANTONIO, TEXAS 78205 TEL. 210-413-0195 / FAX 210-209-8143 MTALLENLAW@GMAIL.COM My name is Matthew Allen. I was born in California but raised in San Antonio, Texas where I went to UTSA and St. Mary’s. I participated in the criminal clinic in law school and graduated Magna Cum Laude. I went straight in defense work after school. I started practicing in 2013 and have tried over 50 cases and done about 20 appeals as a defense attorney. I’m the Treasurer and Editor of the Defender Magazine for the San Antonio Criminal Defense Lawyer’s Association. I am married to a wonderful woman, Abby, who allows me to basically live at the office during trial. We have a three-year-old son nicknamed Whomper and are expecting our second child, Maizy, any day now.
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TABLE OF CONTENTS THE BEGINNING OF THE END……………………………………………………………………………………………………..4 THE STATUTORY AUTHORITY….………………………………………………………………………………………………….4 HOW TO PRESERVE ERROR…….………………………………………………………………………………………………….4 PROPERLY OBJECTING DOES NOT MEAN AUTOMATIC REVERSAL……………………..……………………….4 OBJECTIONS TO MAKE AND AVOID…………………………………………………………………………………………….4 ARGUING OUTSIDE THE RECORD…………..………………………………………………………….……………5 NO UNSWORN TESTIMONY…………………..………………………………………………………….……………5 COMMENT ON DEFENDANT’S FAILURE TO TESTIFY…………….…………………………….……………5 PUTTING JURY IN SHOES OF VICTIM……………………………………………………………………………….5 BURDEN SHIFTING………………………………………………………………………………………………………5-6 NONTESTIMONIAL BEHAVIOR……….……………………………………………………………………………….6 STRIKE AT DEFENDANT OVER COUNSEL’S SHOULDERS……………………….………………………….6 COMMUNITY EXPECTATIONS………..……………………………………………………………………………….6 PUTTING IT ALL TOGETHER…….………………………………………………………………………………………………….6 FAIL TO PREPARE AND PREAPRE TO FAIL……………….………………………………………….………..6-7 CONNECT WITH THE JURY………..…………..………………………………………………………….……………7 MAKE YOUR CLOSING UNIQUE TO YOUR CASE…………..…………………………………….……………7 TELL A CAPTIVATING STORY AND GRAB A SECOND CHAIR…………..…..……………….……………7 YOU ARE A LONE RENEGADE…EMBRACE IT…………..……………………………………….……………7-8
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CLOSING ARGUMENTS
THE BEGINNING OF THE END You have made it to the end of your case. Your focus is on: what was proven; what was not proven; and how to best present a compelling summary of the trial to your jury. Of course, these are important things to consider but we must not forget the legal rules of closing arguments whether it is statutory or via case law. This paper will focus mostly on these sometimes forgotten aspects of closing arguments. THE STATUTORY AUTHORITY The United States Supreme Court was clear that you have a Constitutional right to a closing argument, even in a bench trial.1 This is granted by the Sixth and Fourteenth Amendments to the United States Constitution. HOW TO PRESESRVE ERROR As with every case and every objection, we have to think quickly whether to object and preserve the error or simply let something go to avoid bringing undue attention to it. But if you want to object properly and preserve error, follow these two rules: 1. Make a specific objection. An objection of “improper argument” is too general.2 2. AND pursue that an objection until you receive an adverse ruling.3 PROPERLY OBJECTING DOES NOT MEAN AUTOMATIC REVERSAL After you have made your proper objection, the Courts of Appeals will review if the improper argument(s) by the prosecutor affected the substantial rights of the defendant.4 Courts have continually held that even a properly preserved error does not affect a defendant’s substantial right when there is a "fair assurance that the error did not influence the jury, or had but a slight effect."5 Courts will review ‘the entire record including testimony and physical evidence, the nature of evidence supporting the verdict, the character of the error and how it is considered in conjunction of other evidence, the jury instructions, the State’s theory and any defensive theories, voir dire, and closing arguments.’6 OBJECTIONS TO MAKE AND AVOID This next section will focus on objections you can make against and things you may hear from the prosecutor and things for you to consider when crafting your closing as to avoid being objected to in your closing argument. 1. Arguing outside of the record: You must keep your closing argument condensed to the following or else you open yourself up to an objection: a. Summarize the evidence from the trial; 1
Herring v. New York, 422 U.S. 853, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975). See Hougham v. State, 659 S.W.2d 410 (Tex. Crim. App. 1983). 3 Tex. R. App. 33.1. 4 King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). 5 Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). 6 Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002). 2
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b. Make reasonable deductions from the evidence at trial; c. Answer argument of opposing counsel; AND d. Plea for law enforcement.7 2. No unsworn testimony: Neither side can argue their personal opinion as it is unsworn testimony. a. State personal opinion about a topic or subject. i. This is usually done to talk about the veracity of a witness such as “Ms. Smith was the most honest witness.” ii. Another example is when a prosecutor stated Defendant states or alludes that a witness was scared of the defendant, absent evidence, or that the defendant is “scary.”8 This was held to be harmless error because the prosecutor didn’t emphasize the comment or elaborate on it and the verdict was much more likely based on the strength of the case of than the comment by the prosecutor. 3. Comment on Defendant’s failure to testify – As defense attorneys, we have to listen carefully to everything but especially to a prosecutor who crosses the line and violates a Defendant’s 5th Amendment right against self-incrimination and the right to remain silent. a. This is not only a statement such as “he didn’t testify.” It can include arguing that the Defendant did not express any sympathy or remorse.9 Even when the Defendant has invoked their 5th Amendment privilege during the investigation, a prosecutor will argue that by “not saying” a response, that is evidence of guilt such as when a Defendant was asked consuming alcohol and had no response.10 4. Putting jury in shoes of victim – It can be a powerful tool to be able to have the jury put themselves in the shoes of a party such as when we ask them to put themselves in the shoes of the defendant during a self-defense argument. But this type of argument is improper when the prosecutor does this such as asking how the jury would feel if this happened to them.11 5. Burden Shifting – Another area ripe for objections is when the Prosecutor attempts to shift the burden to the defense. a. This typically happens when implying or saying the defense has a burden to prove anything, other than the exception for affirmative defenses. You should be careful that you can open yourself up to a proper argument about shifting the burden to produce evidence such as if you make an argument but fail to produce 7
Tex. R. App. 44.2(b); See Milton v. State, 572 S.W.3d 234, 239 (Tex. Crim. App. 2019). See Johnson v. State, 662 S.W.2d 368, 369 (Tex. Crim. App. 1984); Kelly v. State 463 S.W.3d 256 (Tex.App.— Beaumont, 2015). 9 Caldwell v. State, 818 S.W.2d 790, 800 (Tex. Crim. App. 1991) 10 Friend v. State, 473 S.W.3d 470 (Tex.App.—Houston 1st, 2015) (pet. ref’d). 11 Brandley v. State, 691 S.W.2d 699, 712 (Tex. Crim. App. 1985). 8
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any evidence to back up that argument that could have been made other than with testimony from the defendant. For instance, the defense argued the defendant was a model prisoner and the prosecutor argued they failed to produce “a shred of documents” that would support that theory.12 This argument was proper as it could have been produced from evidence outside of testimony from a defendant. Id. 6. Nontestimonial behavior – It can be proper or improper to argue nontestimonial behavior depending on where that nontestimonial behavior comes from during the trial. a. If it is from the witness stand then it is proper argument as you are allowed to argue the credibility of witnesses, even if it is the Defendant who testified. b. If it is from the Defendant’s seat and not when he testifies, this is improper argument about nontestimonial behavior.13 7. Strike at defendant over counsel’s shoulders – Sometimes a prosecutor argues outside of the record and attacks not only the Defendant, but attacks defense counsel. Although the classic line of ‘if you don’t have the law, argue the facts and if you don’t have the facts, argue the law and if you don’t have either, argue everything.’ Although that example is not objectionable14, here are some examples of objectionable attacks are: a. He gets paid to defend him or think he’s innocent. b. They want to divert from the truth.15 c. Defense counsel stood up here and lied to you.16 d. Argue law or facts or if you don’t have either, argue anything 8. Community expectations – Although a prosecutor can argue and plea for our community to enforce laws, they cannot tell the jury that the community demands a certain sentence or verdict.17 ‘ PUTTING IT ALL TOGETHER Now that you are prepared to make and meet objections, you need to actually prepare and make an effective closing argument. 1. FAIL TO PREPARE AND PREPARE TO FAIL If you are waiting until the end of your case to start preparing your close, you are behind. At the beginning of your case, take a sheet of paper just for points or statements made that you can use during your closing argument. This can be the very first thing said by the State in voir dire until their last statement in closing.
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Bible v. State, 162 S.W.3d 234, 249 (Tex. Crim. App. 2005). Cole v. State, 2014 Tex. Crim. App. Unpub. LEXIS 607; Good v. State, 723 S.W.2d 734, 736 (Tex. Crim. App. 1986). 14 Coble v. State, 871 S.W.2d 192, 203-204 (Tex. Crim. App. 1993). 15 Mosley v. State, 983 S.W.2d 249, 248-59 (Tex. Crim. App. 1998). 16 Brown v. State, 270 S.W.3d 564, 571-72 (Tex. Crim. App. 2008). 17 Porter v. State, 154 Tex. Crim. 252, 226 S.W.2d 435 (Tex.Cr.App.1950). 13
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2. CONNECT WITH THE JURY Hopefully you have started forming a connection in voir dire. Review those notes from voir dire to help tailor your closing argument to reintroduce and remind the jury what they thought was important. For instance, if a juror stated that an intoxicated person would be “swaying” or “slurring,” you should circle back to that; “Mr. Jones, you stated that an intoxicated person would be swaying and slurring but you did not hear any testimony about that or see it in the video.” It shows that you were listening and makes the juror feel empowered that they are correct to say your client is not-guilty. 3. MAKE YOUR CLOSING UNIQUE TO YOUR CASE Of course, you will reuse the same concepts and ideas but create a new closing argument for each case. This is especially true if you are using powerpoint. It’s critical you go through the powerpoint presentation and tailor it to your facts. You cannot take someone else’s closing argument and copy it exactly. You need to create a closing argument that you truly believe and fits your case or else the jury is not going to believe it. 4. TELL A CAPTIVATING STORY AND GRAB A SECOND CHAIR Steven Spielberg once said, “The most amazing thing for me is that every single person who sees a movie, not necessarily one of my movies, brings a whole set of unique experiences, but through careful manipulation and good storytelling, you can get everybody to clap at the same time, to hopefully laugh at the same time, and to be afraid at the same time.” Each of your jurors has their own unique point of view and circumstances that will affect how they view your case. But if you can tell a compelling, provocative, and succinct story, your jury will be captivated and can truly feel what your client is feeling. Personally, I like to break up my closing argument into two segments; one to focus on the fine points using reason and logic with the second to end my closing with an emotionally compelling story. If possible, I would try to break-up the closing between you and your trial partner. I typically try and get a person who has a different style than myself. I prefer to use powerpoint and take it step-by-step or point-by-point with my partner telling the story to finish it up. If this isn’t possible or you prefer to do it yourself, I would suggest using powerpoint for the first part and then you put that powerpoint away so the jury focuses and hangs on every word of your provocative story. I had a partner give a short closing argument that told the story from our clients perspective in a self-defense case; the jury was captivated and they reported they could see themselves from the eyes of our client. 5. YOU ARE A LONE RENEGADE…EMBRACE IT “To be an effective criminal defense counsel, an attorney must be prepared to be demanding, outrageous, irreverent, blasphemous, a rogue, a renegade, and a hated, isolated, and lonely person – few love a spokesman for the despised and the damned.” Clarence Darrow spoke those words and it is easy to feel like this when defending your client against the State of Texas or United States of America. Make sure the jury knows your client is a human being with a name. Refer to them as Joe or Marcy, not “my client” or “the defendant.”
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Embrace this challenge! Embrace your fear! And know that if your hand trembles in front of the jury or you take a moment to gather yourself, the jury is going to see that you care and that you’re human.
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