Prairie Pups Nuts & Bolts E-Book

January 5, 2022 • Lubbock, Texas

Texas Criminal Defense Lawyers Association

Prairie Pup Nuts N’ Bolts Co-Sponsored with LCDLA Table of Contents

Speaker

Topic Complete Date of Seminar

Grant Scheiner Fred Stangl Rick Wardroup Eldon Whitworth Philip Wischkaemper

Cross Examination Pre-Trial Motions Evidence Criminal Investigations LPDO

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

PRAIRIE PUP NUTS N’ BOLTS CO-SPONSORED WITH LCDLA SEMINAR INFORMATION Date Location Course Director Total CLE Hours

January 5, 2022 Texas Tech School of Law, 1802 Hartford Avenue, Lubbock, TX 79409 Philip Wischkaemper and Chuck Lanehart 3.75

Ethics: 0

Wednesday, January 5, 2022 Time

CLE

Daily CLE Hours: 3.75 Topic

Ethics: 0

Speaker

11:30 am

Registration

12:00 pm

Lunch Line

12:15 pm

Welcoming Remarks

Philip Wischkaemper and Chuck Lanehart

Cross Examination

Grant Scheiner

12:30 pm

.75

1:15 pm

Break

2:00 pm

.75

Pre-Trial Motions

Fred Stangl

2:45 pm

.75

Evidence

Rick Wardroup

3:30 pm

Break

3:45 pm

.75

Criminal Investigations

Eldon Whitworth

4:30 pm

.75

LPDO

Philip Wischkaemper

5:15 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

Prairie Pup Nuts N’ Bolts Co-Sponsored with LCDLA January 5, 2022

Topic: Cross Examination Speaker:

Grant Scheiner 2211 Norfolk St Ste 735 Houston, TX 77098-4062 (713) 783-8998 Phone (713) 882-0022 mobile (866) 798-9854 Fax scheinerlaw@gmail.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Art and War of Cross-Examination©

Grant Scheiner Scheiner Law Group, P.C. 2211 Norfolk, Suite 735 Houston, Texas 77098 www.scheinerlaw.com (713) 783-8998 grant@scheinerlaw.com

Macie Alcoser

Scheiner Law Group, P.C. 2211 Norfolk, Suite 735 Houston, Texas 77098 (713) 783-8998 macie.alcoser@scheinerlaw.com

Lecture & Materials Prepared for Lubbock County Criminal Defense Lawyers Association © Scheiner Law Group, P.C. January 5, 2022

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Biographies Grant Scheiner is the Immediate Past President of the Texas Criminal Defense Lawyers Association (TCDLA). He is Managing Attorney for Scheiner Law Group, P.C. in Houston. Grant practices in state and federal courts. He is Board Certified in Criminal Law and currently serves on the Board of the Texas Board of Legal Specialization. Grant is a Life Member of the National Association of Criminal Defense Lawyers and a Life Fellow of the Texas Bar Foundation. He is a Past Chair of the Computer & Technology Section of the State Bar of Texas. Grant earned his J.D. at the University of Houston Law Center and a B.A. in Communication from Trinity University.

Macie Alcoser is the newest Associate Attorney to Scheiner Law Group, P.C. She is a member of the Texas Criminal Defense Lawyers Association and the Harris County Criminal Lawyers Association.

Macie earned her J.D. at Texas Tech University School of Law and a B.A. in Political Science from Texas Tech University. Upon graduating from law school, Macie immediately moved to Houston, Texas, to start her journey as a criminal defense attorney.

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Art and War of Cross-Examination © By: Grant M. Scheiner and Macie Alcoser

Getting Organized with the “Chapter Method” Your first task in preparing for cross-examination is to get organized. It can be daunting.

Every state witness presents a unique challenge. Most state witnesses (whether you are dealing with an arresting officer, or some non-lay witness) will have at least some expertise in a specific area. Many of the state’s witnesses will have more courtroom experience than you. That is particularly true if you are dealing with a “task force” case in which officers specialize in topics ranging from crimes against children, to DWI, to financial transactions, to narcotics, to violent offenses and more.

It is important for you to be well-prepared, organized and ready to present your theory of the case in a logical and interesting way. You should view every state witness as an opportunity to prove your theory of the case.

The best way to organize cross-examination material is topically. Think of every topic as a separate “chapter” in a story that you are telling to the jury. For example, if you’re trying a DWI and your theory of the case is the police confused or misinterpreted your client’s innocent behavior with symptoms of intoxication, your goal should be showing how each behavioral symptom was consistent with something other than being intoxicated. (At the end of this paper you will find several examples of how to promote common DWI defenses through cross-examination. The basic tactics can be used in most types of cross-examination.)

You should begin by selecting three to seven chapters for each witness. Avoid “waiving” crossexamination and asking no questions of a state witness unless it is absolutely clear the witness hasn’t helped the state’s case. Minor witnesses (such as those whose sole purpose is to lay a foundation 3

for non-objectional evidence) should be cross examined lightly, unless you have reason to believe the witness might somehow contradict the testimony of an important state witness. You should cross examine the state’s “star” witnesses most aggressively. In many instances you can destroy the state’s case by toppling one or two arresting officers.

Each cross-examination chapter should be listed on a separate page with your questions underneath the heading. It is OK if you can’t fit all of your questions on a single page. Just make sure the last question in any given chapter is the last question on the page. Keeping your chapters separate from one another will keep things organized and allow you to easily add new material during the prosecutor’s direct examination. The last thing you want is to have to draw “insert arrows” or make notes in the margins when you are 30 seconds away from beginning your cross-examination.

Hit each adverse witness with a strong opening chapter. Do not begin by addressing things the prosecutor just covered during direct examination. Your first chapter should be planned, scripted and a sure-fire winner that will capture the jury’s attention.

Finish each cross-examination with a strong chapter, as well. Just as with your first chapter, the final chapter should be planned, scripted and a topic that you know will go over well with the jury. Using a DWI case example, if your theory is that the police never gave your client a fair chance to prove he was innocent, end with how they never told him he had a right to a blood test.

If your theory is that the field sobriety tests were “designed for failure,” end with a hypothetical about how a suspect might perform the tests nearly perfectly, yet still “fail” under the peculiar scoring system of the National Highway and Traffic Safety Administration (NHTSA). You will find an example of this method at the end of the paper.

Whenever you have three or more cross-examination chapters for a witness, select a chapter that you consider strong but do not plan to start or finish with. Label this chapter “the cork.” In fact you should write “cork” at the top of your page so that you will not forget what or where it is. The 4

cork, quite simply, is your go-to chapter. It is the chapter you will use in the event you run into trouble during cross-examination and want to quickly re-establish command over the witness. If you do not get into trouble and end up without needing to use the cork, instead use it as the secondto-last chapter in your planned sequence. Keep in mind that jurors usually remember what they hear first and last. The cork, followed by a strong and scripted final chapter, can make for a very powerful finish.

Deciding which chapters should go first, last or somewhere in the middle will depend upon your theory of the case and how comfortable you are with the material. Some defense lawyers are comfortable with written materials, like scholarly articles or the NHTSA manual in a DWI case. They prefer to start or finish with these. Others like to bury that same material in the middle of their crossexamination sequence, if they use it all. If you view material as potentially risky, your options are to bury it in the middle of your cross-examination (and you can even decide which witness might be the easiest to deal with) or you might introduce it in direct-examination of your own witness. In any event, you should pick a logical sequence that flows from one chapter to the next but avoids being chronological. Prosecutors usually direct their witnesses with a chronological recitation of what they claim are the important facts. Do not go chronologically in your crossexamination as it tends to reinforce the state’s version of the case.

Be Polite, Patient and Persistent Try to maintain your composure during cross-examination. Even when the prosecutor is nagging you with groundless objections and the judge appears to be on the state’s side, you should remain polite and professional. The jury will lose your message if you appear to be rattled or, worse, become rude with a state witness.

In addition to maintaining professional decorum, you should be patient and persistent in your 5

cross-examination. If a witness is evasive, you will probably get what you want if you follow a few simple tips. First, if the witness refuses to answer your question right away do not go to the judge for help. Try asking the question a second time: Lawyer: Cigarette smoke can cause bloodshot eyes, correct?

Cop: That’s not why your client had bloodshot eyes.

Lawyer (repeating with emphasis): Cigarette smoke can cause bloodshot eyes, correct?

Cop: I suppose.

A witness that fights you on obvious points will soon lose credibility with the jury. If a witness has the audacity to duck your question after you’ve repeated it with emphasis, go ahead and suggest the answer. Nod or shake your head as appropriate. This will make the witness squirm and usually results in a direct response to your question: Lawyer: Cigarette smoke can cause bloodshot eyes, correct?

Cop: That’s not why your client had bloodshot eyes.

Lawyer (repeating with emphasis): Cigarette smoke can cause bloodshot eyes, correct?

Cop: A lot of things can cause bloodshot eyes. Intoxication can cause bloodshot eyes.

Lawyer (repeating with emphasis and nodding head): So your answer is yes. Cigarette smoke can cause bloodshot eyes?

Cop: Yes. Very few witnesses will continue to refuse to answer your question. If a witness repeatedly refuses to answer obvious questions, the court will usually intervene and instruct the witness to answer. Even the most state-oriented judge doesn’t want to sit through a three-week criminal trial.

In some instances, a witness may evade your question without trying to do so. Listen carefully to each response. Don’t settle for vague answers such as “uh-huh” or a non-verbal response such as 6

a head nod. Court reporters sometimes sit with their backs to the witnesses and don’t take down nonverbal responses. Even when you get a verbal response, listen carefully to see if you need to follow up. A witness might give you an implausible answer that needs to be explored with a “mirrored” follow-up: Lawyer: Standing on a broken ankle could be painful, wouldn’t you agree?

Cop: I guess.

Lawyer (mirroring the witness’ answer): You guess?

Cop: Well, yes. I suppose that could be painful.

If you are patient and persistent, you will usually get the answers you need. Once you have “trained” a witness to give you yes and no answers, you will find it easier and easier to cross examine the witness. In fact you might encounter witnesses who give up early on because they correctly conclude that it is futile to resist you.

Preview Each Topic Always let the jury know when you are changing topics and beginning a new chapter in your cross-examination. There are several ways to do this. One common method is to simply tell the witness and jury where you are headed next: Lawyer: Officer, I’m going to ask you some questions about Mr. Client’s driving. Do you understand?

Cop: Yes. Another method to preview a new topic is to announce it to the witness and follow up with a question. You might say, “OK, let’s move on to something else. You offered Mr. Client a breath test, correct?” Previewing topics will keep your jury awake and (hopefully) interested even during the most methodical portions of your cross-examination.

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Ask Short Questions (i.e., Make Statements) Jurors absorb information better in small bits. You should ask short questions whenever possible. The shorter your questions, the shorter the witness’ responses will be.

In reality, most of your questions will resemble declarative statements rather than questions.

You don’t have to end every single declarative statement with “correct” or “isn’t that true” in order to ask a leading question. Sprinkle in a few “corrects?” and then slip into a pattern of making declarative statements to which a witness must either agree or disagree. For example: Lawyer: You claim you smelled alcohol on Mr. Client’s breath, correct?

Cop: Yes. Lawyer: The smell of alcohol doesn’t tell you what type of alcohol was consumed?

Cop: No, sir.

Lawyer: The smell of alcohol doesn’t tell you when it was consumed?

Cop: No, sir.

Lawyer: Doesn’t tell you where it was consumed?

Cop: No, sir.

Lawyer: Whether it was mixed with food?

Cop: No, sir.

Lawyer: How much food?

Cop: No, sir.

Lawyer: What kind of food?

Cop: No, sir.

Lawyer: It certainly doesn’t tell you what a person’s tolerance is for alcohol?

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Cop: No. If the prosecutor objects, tell the court that you are asking questions by setting forth propositions to which the witness may agree or disagree. If the court sustains the objection on the basis of Texas Rules of Evidence 611, Control by the Court, add a few more “correct” and “isn’t that true” appendages to your questions and then gradually slip back into the pattern of making declarative statements. The best cross-examinations are essentially arguments to the jury, as it "helps assure the 'accuracy of the truth-determining process.'" Chambers v.

Mississippi, 410 U.S. 284, 295 (1973). The witness’ job is to get on board, get out of the way or get run over.

Ask Leading Questions!

The most common mistakes that trial lawyers make include asking too many leading questions during direct examination, which is generally prohibited by Texas Rules of Evidence 611(c), and too few leading questions during cross-examination. There is no excuse for asking open-ended questions to an adverse witness. Even when you do know the answer to a question, asking it in a non-leading form is likely to generate a lengthy explanation that could hurt your case or derail your momentum.

Get in the habit of asking leading questions on cross-examination so that it becomes second nature to you. As the late Johnnie Cochran might have said, “if you don’t lead, you won’t succeed.”

Following are some specific examples of DWI cross-examination using the concepts discussed above. Feel free to use these in trial and let me hear from you when those acquittals begin tumbling in! If you have a war story or a new “chapter” that relies on the concepts discussed above, please let me know at grant@scheinerlaw.com 9

DWI Cross-examination Examples 1. One Leg Stand {Visual cross-examination using easel pad or chalkboard to illustrate key points.} Lawyer: I’m going to ask you some questions about the one leg stand test. Do you understand?

Cop: Certainly.

Lawyer: You have a suspect stand on one leg, for 30 seconds, correct?

Cop: That’s correct.

Lawyer: And you look for clues of intoxication?

Cop: Yes. Lawyer: A total of four possible clues?

Cop: Correct.

Lawyer (enumerating with fingers): Swaying?

Cop: Yes. Lawyer: Using arms for balance?

Cop: Yes. Lawyer: Hopping?

Cop: Yes. Lawyer: Dropping foot?

Cop: Yes. Lawyer: When you see one of these things happen, you count that as a clue?

Cop: That’s correct.

Lawyer {very nicely}: And if you notice two or more of these so-called clues, it’s your belief the

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person is probably intoxicated?

Cop: To me that would indicate he had lost his faculties.

Lawyer: That he had failed the test?

Cop: Yes, sir.

Lawyer: So, if a person drops his foot once during a 30-second test, that’s a clue?

Cop: Yes, that’s correct.

Lawyer: And if a person raises his arms just once during a 30-second test, that’s a clue?

Cop: Yes, sir.

Lawyer: In fact he doesn’t even need to raise his arms all the way. Just six inches away from his body, correct?

Cop: Yes, sir.

Lawyer: That’s a clue?

Cop: Yes, sir.

Lawyer (using easel pad): So let me see if I understand this correctly ...

Perform

Seconds

Sway

30

30

Drop Foot

29

30

Use Arms for Balance

29

30

Hop

30

30

118

120

Total:

Equals an “F” !!

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Lawyer: According to your scoring, that person would get an “F.” Cop: To me that indicates a loss of faculties.

Lawyer: Officer, where did you go to high school?

Cop: Pasadena High School in Pasadena.

Lawyer: In high school, did you take any tests in which 118 out of 120 was considered a failure?

Cop: Well, no ...

Lawyer: But that’s the scoring system you use in your DWI arrests, correct?

Cop: That’s the way I was trained to score it.

Lawyer (suggesting an answer, after witness is non-responsive): Yes? Cop: Yes. Lawyer: And that’s the scoring system that you used the night Mr. Client was arrested?

Cop: Yes.

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2. Good Driving {Emphasize client’s good driving in cases where the only traffic infraction is speeding, expired inspection sticker or some other “non-drunk” driving.} Lawyer: I’m going to ask you some questions about Mr. Client’s driving. Do you understand?

Cop: Yes. Lawyer: You have been trained to look for certain types of driving that might indicate a person is intoxicated, correct?

Cop: Yes, that’s correct.

Lawyer: These are called driving cues?

Cop: Correct Lawyer: They’re covered in Chapter 5 of your NHTSA Student Manual, entitled, Vehicle in Motion?

Cop: I believe so.

Lawyer: Among other things, you look to see if a vehicle is swerving, drifting or weaving, correct?

Cop: Correct.

Lawyer: Because those are some of the typical cues that a driver might be intoxicated, correct?

Cop: Correct.

Lawyer: Mr. Client wasn’t swerving, was he?

Cop: Not that I noticed.

Lawyer: He wasn’t drifting?

Cop: Not that I noticed.

Lawyer: Wasn’t weaving?

Cop: No, sir.

Lawyer: Wasn’t straddling the center or any lane marker?

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Cop: {Shakes head}.

Lawyer (following up, after witness gives a non-verbal response): No? Cop: No. Lawyer: Mr. Client didn’t strike or almost strike another vehicle, did he?

Cop: No. Lawyer: He didn’t follow any other vehicle too closely?

Cop: Not that I noticed.

Lawyer: He didn’t brake erratically, as intoxicated drivers sometimes do?

Cop: No. Lawyer: Didn’t drive into opposing traffic?

Cop: No. Lawyer: Didn’t drive with his headlights off?

Cop: No. Lawyer: Because, driving with your headlights off can be considered a cue of intoxication?

Cop: Sometimes.

Lawyer: That’s one of the things you’re trained to look for?

Cop: Yes. Lawyer: But Mr. Client ’s headlights were on and his equipment seemed OK? Cop: As I recall, yes.

Lawyer: And when you put on your overhead flashers, he pulled over as he was supposed to?

Cop: I suppose.

Lawyer: He didn’t try and run from you?

Cop: No, sir.

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Lawyer: Never attempted to flee?

Cop: No, sir.

3. Symptom Elimination {Explain client’s alleged symptoms of intoxication.} Lawyer: I’m going to ask you some questions about the things that caused you to believe Mr. Client was intoxicated. Do you understand?

Cop: Yes, certainly.

Lawyer: You claim you smelled alcohol on Mr. Client’s breath?

Cop: A strong odor.

Lawyer (“Looping” the witness’ non-responsive answer into next question): Well, the smell of alcohol – regardless of whether you believe it was strong or moderate – doesn’t tell you what type of alcohol was consumed?

Cop: What specific type? No, sir.

Lawyer: The smell of alcohol doesn’t tell you when it was consumed?

Cop: No, sir.

Lawyer: Doesn’t tell you where it was consumed?

Cop: No, sir.

Lawyer: Whether it was mixed with food?

Cop: No, sir.

Lawyer: How much food?

Cop: No, sir.

Lawyer: What kind of food?

Cop: No, sir.

Lawyer: It doesn’t tell you what a person’s tolerance is for alcohol?

Cop: No. 15

Lawyer: It doesn’t even tell you whether a person is intoxicated?

Cop: By itself, no.

Lawyer: All it tells is the person had something to drink.

Cop: That’s correct.

Lawyer: Now, you also claim that Mr. Client had bloodshot eyes?

Cop: Yes. Lawyer: Bloodshot eyes could be caused by things other than intoxication?

Cop: Absolutely.

Lawyer: A person could be tired?

Cop: Yes. Lawyer: Being tired can cause a person to have bloodshot eyes?

Cop: Yes. Lawyer: And I think you mentioned that you pulled Mr. Client over at 2:20 a.m., correct?

Cop: Yes. Lawyer: You would expect some people to be tired at 2:20 a.m., wouldn’t you?

Cop: I suppose.

Lawyer: A person could also have bloodshot eyes because of cigarette smoke, correct?

Cop: Correct.

Lawyer: Bars, clubs and restaurants often have cigarette smoke, don’t they?

Cop: Of course.

Lawyer: And if I am not mistaken, Mr. Client told you that he had just left his house, correct?

Cop: Yes. Lawyer: A lot of things can cause bloodshot eyes, isn’t that true?

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Cop: Yes, that’s true.

Lawyer: A person living in {name of city or town} could suffer from allergies, correct?

Cop: Correct.

Lawyer: Allergies can cause a person’s eyes to be bloodshot and even watery, correct?

Cop: Correct.

Lawyer: And I think you mentioned that Mr. Client’s eyes were bloodshot as well as glassy, correct?

Cop: That’s correct.

Lawyer (enumerating with fingers): Allergies, cigarette smoke and some of these things we are talking about can all make a person’s eyes bloodshot and watery?

Cop: Correct.

4. Evidence of sobriety (assuming you can prove via police report, video tape, ALR audio tape or ALR transcript).

Lawyer: Officer, I’m going to ask you some questions about Mr. Client ’s appearance and behavior. Do you understand?

Cop: Sure.

Lawyer: When you pulled Mr. Client over, he stopped on the shoulder of the road, correct?

Cop: Correct.

Lawyer: You got out of your patrol car?

Cop: Yes. Lawyer: You walked over to Mr. Client ’s truck?

Cop: Yes. Lawyer: He kept his hands on the steering wheel?

Cop: Yes. Lawyer: Didn’t make any sudden movements? 17

Cop: No, sir.

Lawyer: And you asked him to roll down his window?

Cop: Yes, sir.

Lawyer: He complied?

Cop: Yes, sir.

Lawyer: He rolled down his window for you?

Cop: Yes, sir.

Lawyer: You asked him for driver’s license and proof of insurance?

Cop: That’s what I usually do.

Lawyer (repeating question when the answer is non-responsive): You asked him for his driver’s license and proof of insurance?

Cop: Yes, sir.

Lawyer: Sometimes an intoxicated driver will have difficulty finding a driver’s license or proof of insurance?

Cop: Sometimes.

Lawyer: Sometimes they’ll fumble with it or drop it?

Cop: That can happen, yes.

Lawyer: But Mr. Client was able to give you those things without any fumbling or difficulty, correct?

Cop: That’s correct.

Lawyer: You asked Mr. Client to step out of his truck?

Cop: Yes. Lawyer: Sometimes an intoxicated driver will stumble getting out his vehicle?

Cop: Sometimes.

Lawyer: But Mr. Client didn’t stumble?

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Cop: No, sir.

Lawyer: He got out of his truck with absolutely no difficulty?

Cop: I think so.

Lawyer (“mirroring” witness’ non-committal answer): You think so?

Cop: I didn’t notice any difficulty.

Lawyer: Then you asked him to walk to the back of his truck?

Cop: Yes, sir.

Lawyer: And he did it?

Cop: Yes. Lawyer: Without difficulty?

Cop: I didn’t notice any problem.

Lawyer: He didn’t hold onto the side of the truck for balance?

Cop: No, sir.

Lawyer: Intoxicated drivers sometimes hold onto their trucks or cars for balance?

Cop: Sometimes.

Lawyer: But Mr. Client didn’t do that?

Cop: No, sir.

Lawyer: He just walked to the back of his truck in a normal way?

Cop: Yes.

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5. Roadside versus Station Video. (Distinguish between a bad roadside video and a good station video).

Lawyer: I’m going to ask you some questions about the conditions where you gave Mr. Client his field sobriety tests. Do you understand?

Cop: Yes. Lawyer: As a general rule, you want your tests to happen under the best, possible conditions?

Cop: Whenever possible.

Lawyer: Good conditions are fairer to the person who has to do the tests?

Cop: I would think so.

Lawyer: And good conditions probably give you the best chance of getting an accurate result?

Cop: I would think so.

Lawyer: In this case there were two sets of field sobriety tests given to Mr. Client, correct?

Cop: Correct.

Lawyer: One set of tests was given on the roadside?

Cop: Correct.

Lawyer: And another set was given at the police station?

Cop: Correct.

Lawyer: Now, if we were looking for a level surface to do these tests, you would be more likely to find it at the police station than on the side of the road, correct?

Cop: In general, yes.

Lawyer: And if we were looking for the most constant lighting, you would be more likely to find it at the police station than on the side of the road?

Cop: Correct.

Lawyer: The temperature would probably be more constant at the police station?

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Cop: I would think.

Lawyer: And you wouldn’t expect to have any wind [if applicable] or precipitation at the police station?

Cop: No, sir.

Lawyer: You wouldn’t expect there to be any traffic noise at the police station?

Cop: No, sir.

6. “Normal” faculties. (Emphasize that the arresting officer doesn’t know what’s normal for client).

Lawyer: Officer, I’m going to ask you some questions about your belief that Mr. Client had lost his normal mental and physical faculties. Do you understand?

Cop: Yes. Lawyer: As we’ve talked about, you asked Mr. Client to perform certain tasks, correct?

Cop: Correct.

Lawyer: Some of the tasks were mental?

Cop: Yes. Lawyer: Some were physical?

Cop: Yes. Lawyer: Several of the tasks were both mental and physical at the same time?

Cop: Yes. Lawyer: For example, tilting your head back and estimating 30 seconds is both a mental and physical task?

Cop: That’s correct.

Lawyer: There are plenty of innocent reasons why a person might not perform well on a mental or physical task?

Cop: I don’t understand what you mean by “innocent.”

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Lawyer: Reasons other than being intoxicated.

Cop: I suppose.

Lawyer (mirroring the witness’ evasive answer): You suppose?

Cop: It’s possible.

Lawyer: Well, for example, a person could be nervous?

Cop: He didn’t seem nervous to me.

Lawyer (pinning witness down after a non-responsive answer): A person could be nervous?

Cop: Yes. Lawyer: A person could be clumsy or uncoordinated?

Cop: I suppose.

Lawyer: A person could have poor balance?

Cop: I suppose.

Lawyer: A person could have difficulty understanding instructions?

Cop: Yes. Lawyer: A person could get confused in a stressful situation?

Cop: Yes. Lawyer: Anxious?

Cop: Yes. Lawyer: Might not perform well under pressure?

Cop: Yes. Lawyer: Some people might even have difficulty remembering things when they’re under pressure?

Cop: I suppose.

Lawyer (if applicable): You mentioned that Mr. Client couldn’t remember the name of the 22

restaurant he had been to that evening?

Cop: Yes. Lawyer: Now, you believed Mr. Client had lost his normal faculties, correct?

Cop: Yes. Lawyer: Because of alcohol?

Cop: Yes, sir.

Lawyer: But the truth is, you had never met Mr. Client before the night you arrested him?

Cop: No, I never met him before.

Lawyer: You don’t know what he’s normally like in a physical task?

Cop: No. Lawyer: You don’t know what he’s normally like in a mental task?

Cop: No. Lawyer: You don’t know what he’s normally like at 2:30 a.m.?

Cop: No. Lawyer: And you don’t know what Mr. Client is normally like when he’s stressed out or under pressure?

Cop: No. Lawyer: Getting pulled over by the police can be a stressful situation for some people, can’t it?

Cop: Certainly.

Lawyer (Optional question): And you are aware Mr. Client had never been in that type of situation before?

Cop: No, I wasn’t aware.

Lawyer (Optional question - possibly objectionable): You are aware that Mr. Client has never been arrested before?

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Resources In addition to my own experience, I borrowed heavily from three (3) resources in putting together this paper and presentation. I found these resources enormously helpful and recommend them to anyone who wishes to master the art and science of criminal cross-examination:

MacCarthy, Terry, “MacCarthy on Cross Examination,” American Bar Association (ABA), 2007. https://www.amazon.com/MacCarthy-Cross-Examination-Terence/dp/1590318862 Pozner, Larry, Dodd, Roger J., “Cross-Examination: Science and Techniques,” LexisNexis, 3rd Ed. https://www.amazon.com/Cross-Examination-Science-TechniquesLarry-Pozner-dp-1632843919/dp/1632843919/ref=dp_ob_image_bk Taylor, Lawrence, Oberman, Steven, “Drunk Driving Defense,” 7th Ed. https://www.amazon.com/Driving-Defense-SeventhLawrence-Taylor/dp/0735592977

Grant M. Scheiner Cell: (713) 882-0022 grant@scheinerlaw.com © Scheiner Law Group, P.C. 2022 Macie Alcoser Cell: (210) 589-1503 macie.alcoser@scheinerlaw.com © Scheiner Law Group, P.C. 2022

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Texas Criminal Defense Lawyers Association

Prairie Pup Nuts N’ Bolts Co-Sponsored with LCDLA January 5, 2022

Topic: Pre-Trial Motions Speaker:

Fred Stangl 1217 Avenue K Lubbock, TX 79401-4025 (806) 765-7370 Phone (806) 441-3615 Mobile (806) 765-8150 Fax fredstangl@gmail.com email WEB.COM website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

WHAT’S UP FRONT COUNTS: PRETRIAL MOTIONS LCDLA PRAIRIE PUP NUTS & BOLTS January 5, 2022 Fred Stangl Chappell, Lanehart & Stangl, P.C. 1217 Avenue K Lubbock, TX 79401 806/765-7370 (office) 806/765-8150 (fax) fredstangl@gmail.com

Why do you file pretrial motions?

To make sure the DA follows the rules and to protect your client’s rights To prepare for trial To try to avoid trial by ambush To learn more about the case

Why do you file pretrial motions?

To CYA To develop a relationship with your client To make the prosecutor WORK

Making the prosecutor WORK Makes the prosecutor actually evaluate the case Takes up more time than prosecutor would like Prosecutor knows nothing about the case will be easy Is it worth it??

Will help you down the road

SO WHAT DO YOU FILE? Notice of Appearance of Counsel and Formal Request for Compliance with Article 39.14 of the Texas Code of Criminal Procedure – Pre-empts Chapter 552, Texas Government Code

SO WHAT DO YOU FILE? Pre-release motions – Motion for Personal Bond (delay) – Writ of Habeas Corpus – Motion for Examining Trial – Motion to Reduce Bond

SO WHAT DO YOU FILE? Standard pretrial motions – Acknowledgment of Plea Bargain Offer – Discovery and Inspection of Evidence, First Motion (special motion for drug cases) – Motion for Discovery of Criminal Records of Witnesses – Hearing on Voluntariness of any Admission or Confession Whether Written or Oral

SO WHAT DO YOU FILE? Standard pretrial motions – Motion in Limine re: Extraneous Offenses – Motion to List Witnesses – Reveal Any Agreement Between the State and Any Witness that Could Influence Testimony – Motion for Disclosure of All Evidence Favorable to the Defendant Under Brady v. Maryland and Kyles v. Whitley

SO WHAT DO YOU FILE? Standard pretrial motions – Request Pursuant to Rule 404(b), Texas Rules of Evidence – Request Pursuant to Article 37.07, sec. 3(g), Texas Code of Criminal Procedure – Defendant’s Motion for Disclosure of Rule 702 Witnesses

SO WHAT DO YOU FILE? Standard pretrial motions – Application for community supervision (if you’re lucky) – Motion for an Investigator (or LPDO form) – Election as to punishment

SO WHAT DO YOU FILE? Standard DWI pretrial motions – Same basic motions – Motion to Prohibit Police Officer Testimony on Reliability, Accuracy and Results of Standardized Field Sobriety Tests Under R. 702, Tex.R.Evid.

– Defendant’s Motion in Limine Regarding HGN and DRE Evidence

SO WHAT DO YOU FILE? Standard DWI pretrial motions – Motion in Limine to Preclude the State from Offering any Testimony Concerning the National Highway & Traffic Safety Admin. Methods, Procedures, Training & Scoring on Standardized Field Sobriety Tests in the State’s Case Regarding its Theory on Loss of Normal Use of Mental & Physical Faculties

– Motion for Discovery Relating to Blood Test

SO WHAT DO YOU FILE? Standard DWI pretrial motions – Motion in Limine to Preclude HGN Testing Officers from Providing Hearsay Testimony as to Matters that Might Be Contained in Printed Materials From the National Highway and Traffic Safety Administration as Well as Other Printed Materials – Motion to Suppress HGN Results

DWI BRIEFS Anonymous tip Bad stop Blood test Brief-Motion to Quash for vagueness Breath test consent

DWI BRIEFS State of Texas v. Larry Rodriguez – DWI 2nd – Stopped for almost hitting a car as well as a DPS trooper – Poorly on SFSTs – Motion re: Admissibility of HGN – Case dismissed that day

MOTIONS RE: SEX ASSAULT Motion to Suppress Outcry Motion to Suppress Hearsay Statements of Child Witness Motion for Additional Voir Dire Motion for Notice of Extraneous Offenses

MOTIONS RE: SEX ASSAULT Motion for Exemption from Sex Offender Registration Motion for Affirmative Findings Pursuant to Art. 42.017 & 42A.105 of the Texas Code of Criminal Procedure MIL Regarding Recovered Memories Motion to Require Election by State

MOTIONS RE: SEX ASSAULT State of Texas v. Roy Merimon – Charged with Agg Sex Assault of a Child – Prior pen trip – Evidence obtained from his phone – Taken by V without his permission – LEO couldn’t do it, so she couldn’t do it – Essentially led to time served – Back out on parole

MOTIONS RE: SEX ASSAULT State of Texas v. David Watson – Date rape case (Agg Sex Assault, Agg Kidnapping, Child Pornography) – Videotaped the alleged kidnapping/rape – No offer made – David received 10 years TDCJ-ID on Sexual Assault

MOTIONS RE: DRUG CASES Motion for Discovery and Inspection Motion for Independent Examination of Evidence Motion to Suppress (stop or warrantless search) Motion to Suppress Evidence (search warrant) Motion to Require Snitch ID

BRIEFS RE: DRUG CASES Illegal entry Invalid permission / Motion to reconsider Bad stop Invalid search warrant

BRIEFS RE: DRUG CASES Statement Illegal detention and search Search and Statement Search of Person

BRIEFS RE: DRUG CASES State of Texas v. Candido Rodriguez – search warrant case – Large amount of dope found – Motion to Suppress filed – one day in jail on LIO Attempted Possession CS <1 g

BRIEFS RE: DRUG CASES State of Texas v. Jeffrey Bunch – LEO enter property without permission and determine VIN on possibly stolen car – LEO then search client and find drugs – Search warrant obtained-large amount of dope – 5 years deferred on smaller case

MISCELLANEOUS MOTIONS Ex parte motion for expert assistance (Ake motion) Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005)

MISCELLANEOUS MOTIONS Exclude gang affiliations MIL Regarding App. For Community Supervision MIL (Trial Conduct) Motion to examine the scene ID hearing outside presence of jury

MISCELLANEOUS MOTIONS Motion to make DA behave after trial Motion to discover corroborative evidence to accomplice testimony Motion to exclude prejudicial terms In camera inspection of State’s file HIPAA Order for Medical Records Motion to Suppress (statement)

MOTION TO SUPPRESS STATEMENT State of Texas vs. Joseph Nunez – Capital murder – Client gave incriminating statement – Suppression hearing held – Client received LWOP – Case reversed on appeal

STATE V. PRESTON WHITE Client charged with capital murder Bad facts Death penalty case Worked the prosecutor Pled to life on Injury to a Child

STATE V. FRANCISCO FERNANDEZ Murder charge pending Motion to Suppress Two day hearing Judge suppressed statement Affirmed by 7th COA Made a deal 3rd day of trial

STATE V. HECTOR MARTINEZ On parole Traffic stop: Felon in Possession and Theft of a Firearm Motion to Suppress – bad stop DA gave up; didn’t even have a hearing

CONCLUSION Take every opportunity to make the prosecutor work Try to get an evidentiary hearing whenever possible Make sure the prosecutor understands nothing will be easy fredstangl@gmail.com

Texas Criminal Defense Lawyers Association

Prairie Pup Nuts N’ Bolts Co-Sponsored with LCDLA January 5, 2022

Topic: Evidence Speaker:

Rick Wardroup 915 Texas Ave Lubbock, TX 79401-2725 (806) 763-9900 Phone (806) 283-1469 Mobile (806) 762-1699 Fax rwardroup@tcdla.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Rejiggering the Rules of Evidence Prairie Pup Seminar 2022 January 5. 2022

Richard L. Wardroup Texas Criminal Defense Lawyers Association Curriculum Director/Staff Attorney rwardroup@tcdla.com

The goal of this training is to “Rejigger” the way we look at evidence as we prepare to try our cases. The way we were taught evidence in law school, by starting with Rule 1 and working our way through authentication, doesn’t lend itself with trial preparation. Too often criminal defense trial lawyers feel that the rules of evidence don’t really matter because the State is going to get whatever evidence it wants admitted and the court is going to exclude anything we have to offer. Too often, the latter proposition proves true because we haven’t done the proper work to build the predicate necessary for the admission of the evidence.

The prosecutors, too, prepare with the same attitude, the State’s comes in and the defense’s is to be excluded. Most prosecutors haven’t spent ten minutes thinking about the Rules of Evidence since they took the Bar Exam and for many of them, that was a long time ago.

Prosecutors aren’t called to respond to objections which aren’t made, and judges don’t rule on objections unmade objections. That, after all, would constitute a comment on the weight of the evidence!

Jerry Howeth, a recently deceased Austin criminal defense trial lawyer, spent a good deal of time thinking about the Rules of Evidence. He held meetings at his office and later at his home, where local trial lawyers would come with their questions on evidence so they could brainstorm resolutions which would favor their clients. Jerry started to write an evidence manual in which he “Rejiggered” the Texas Rules of Evidence in an attempt to create a paradigm shift in the use of the Rules by trial lawyers. He presented his paradigm at trainings at the Center for American and International Law for the last few years of his life. I was privileged to participate in the trainings as a small group leader, helping participants apply his rejiggering to hypothetical cases. Jerry required that each of his small group leaders come to Plano a day before the program started so that he could be sure that we “carried the message.” I learned more evidence in the three day-long preparation sessions in the years his program was taught than I ever learned in law school or after!

Jerry envisioned four uses for the Rules of evidence in the trial of a criminal case, they comprised: Excluding Government’s Proposed Court Evidence; Discrediting Evidence Admitted at the Instance of the Prosecution; Gaining Admission of Proposed Defense Evidence; Protecting Defense Witnesses from Illicit Cross-examination by the prosecution.

Jerry’s method requires thorough investigation, starting with the first information about the investigation, the police report. The method also encourages review of the evidence to be offered by contemplating the probable testimony of every witness likely to be called by either party from an evidentiary point of view. This is what I call “Evidence Coming and Going.”

I had no idea that so many rules, useful for accomplishing the first of Howeth’s goals, were hidden in the Rules of Evidence. The rules, listed in order of the likelihood of their use and effectiveness, are: Rules of Exclusion If It’s Not Relevant, It’s Inadmissible - Rule 402 It May Be Relevant But Still Inadmissible - Rule 402 It May Be Relevant, But Too Much Downside - Rule 403 The State May Not Initiate Evidence of a Character Trait of the Accused – Rules 404(a)(1) and

404(a)(2)(A) The State May Not Initiate Evidence of a Character Trait of the Alleged Victim - Rules 404(a)(1) and 404(a)(3) General (Character Conformity) - Rule 404(b) No Reasonable Notice - Rule 404(b) Bad Act Not Proved Beyond Reasonable Doubt - Harrell v. State, 884 S.W.2d 154 (Tex. Crim.

App. 1992 - Rule 404(b) Not Relevant to Any Exception - Rule 404(b) Relevant to an Exception, but Rule 403 as to that Exception - Rule 404(b) Reputation Testimony Inadmissible - Rule 405(a) Opinion Testimony Inadmissible - Rule 405(a) Evidence of Specific Instance of Conduct Inadmissible to Show Character Trait - Rule 405(b) Lack of Personal Knowledge - Rule 602 Prior Consistent Statement - Rule 613[c] Lay Opinion Testimony Not Rationally Based - Rule 701 Not Helpful to the Jury - Rule 701 Insufficient Basis for Expert Opinion - Rule 705[c] Hearsay - Rule 802 Backdoor Hearsay - Rule 802 Hearsay but Hearsay-Excepted [“Excited Utterance” Exception] - Rule 802 and Not 803(2) Hearsay Within Hearsay - Rule 805 Hearsay-Excepted but Otherwise Inadmissible - 805 [and Rules 802, 803, Other] Summaries - Rule 1006 When the state puts on its case-in-chief, your primary objective from an evidentiary point of view will be to exclude the prosecutor’s proposed evidence.

When the state passes the prosecution witness to you, one of your objectives is to discredit the witness with respect to his testimony on direct. Also, in an effort to establish the existence of additional facts, facts favorable to the defense, to gain admission of testimony which favors the defense from the State’s witness.

After the state rests and you begin to put on defense evidence, your major objective is to get the proposed evidence admitted.

When you pass your witness for cross-examination, our major objective becomes protecting your defense witness from illicit cross-examination.

It is easy to become discouraged and come to believe that there are only two types of trial error, harmless and waived. With that mindset, we may not prepare to use the Rules as a sword,

relying on them only as a shield. I propose that proper preparation and the aggressive use of the Rules of Evidence can result in winning cases that could be lost even when “perfecting the appeal” may not benefit our client.

In the beginning: Exclude the evidence: Review the police reports which comprise discovery produced by the State to determine what evidence you will want to exclude if possible.

List the evidence to be excluded and the objection which might be used.

Anticipate the State’s response to the objection and prepare a response thereto.

By litigating the admissibility of the evidence outside the presence of the jury, M/Limine, Harrell Motion By being prepared with specific objections to the evidence to be made when the evidence is offered Limit the use of the evidence: By drafting instructions that will accompany the admission By developing evidence to impeach the witness who sponsors the admission of the evidence Procedure for Requests, Objections and Motions If you are to be successful in your effort to exclude Government’s proposed evidence, there must be some pertinent substantive basis for excluding it. In addition, there are matters involving procedure which you must tend to. Important considerations in that regard include the following: Rule 103[c], Texas Rules of Evidence – Offer of Proof Rule 103[a][1], Texas Rules of Evidence – Requirement of Timely and Specific Objection Rule 33.1[a], Texas Rules of Appellate Procedure – Preservation of Evidence.

Whenever possible, rather than raise objections in the presence and hearing of the jury, it’s a good idea to raise objections in a proceeding conducted outside their hearing and presence.

The rulemakers provided for such a proceeding at Rule 103[c].

Why a Motion in Limine?

Not infrequently, the content of a prosecutor’s statements or questions in the presence of the jury conveys to them conceptually inadmissible information. After a statement has been made or a question has been asked, even if you object and the trial court sustains your objection, the jury has been provided, directly or indirectly, with the conceptually inadmissible information contained in the statement or question.

If you are able to present your objection(s) to the trial court without the jury hearing or inferring the substance of the information the prosecutor seeks to convey to them from the prosecutor’s statement or question or from the substance of your objections, such is likely to be to the advantage of the defendant.

One way of accomplishing this goal is by filing a Motion in Limine. If the trial court grants the Motion, your chances of bringing about the objectives contemplated by the rulemakers at Rule 103(c), making a timely and specific objection, are significantly enhanced. Further, there is no need

to renew the objections when the evidence is offered before the jury at the trial, Rule 103(b).

In order to have a chance to prevail at trial or on appeal, it is necessary that you raise your objections timely and specifically. The rulemakers so provided at Rule 103[a][1] and elsewhere.

When you object timely and specifically, the trial court has an opportunity to correct evidentiary errors that could be the basis for appellate review. Let the trial court know precisely what your complaint is at a time when the court can fix it.

In the event the court conducts a proceeding outside the presence and hearing of the jury per Rule 103[c] and your Motion in Limine, perhaps - and considers Government’s proposed evidence and your objection(s) thereto, and rules on your objection(s), error, if any, is preserved, and you need not raise the objection(s) again when the jury returns to the jury box and the trial proceeds. An objection must be made because a Motion in Limine does not preserve any error.

The granting of the motion is only an instruction by the court, to approach the bench before offering evidence which you anticipate being objectionable.

Your objection is “timely” if it is made at the earliest possible opportunity, i.e., as soon as a ground for the objection becomes apparent. Your objection is sufficiently “specific” only if you identify the evidentiary rule you rely on and its application to the proposed evidence, unless your specific objection is apparent from the context.

Motion to Strike with Respect to Statements Volunteered by Prosecution Witnesses When prosecution witnesses volunteer testimony, it is virtually impossible to interpose a timely and specific objection. Under such circumstances, in order to preserve error for appellate review, it is necessary that you immediately make a motion to strike the witness’s testimony, stating the basis for your motion. If you fail to timely raise a motion to strike, stating the basis for your motion, error is not preserved for appellate review. It’s virtually always a good idea to file a Motion in Limine with respect to volunteered statements.

Due to a series of circumstances in a Driving While Intoxicated case, a trial judge once suppressed testimony that the defendant had refused a breath test. During the course of the trial, the arresting police officer blurted out that the defendant had refused a breath test. A motion to strike was made by defense counsel. The trial court granted the motion. A request was made by defense counsel that the trial court instruct the jury members to disregard the testimony. The trial court instructed the jury to disregard the testimony. A motion for a mistrial was made by defense counsel. The trial court denied the motion for mistrial. Ultimately, the defendant was convicted. A deal was struck with respect to punishment such that the defendant received a significantly lighter sentence than would normally have been the case. Had the defendant appealed complaining that the trial court had erred in denying the motion for a mistrial, the probable outcome would have been that the appellate court would have found that the trial court had instructed the jury members to disregard the volunteered testimony and that the jury members had, by damn, disregarded it. Almost surely, the appellate court would have overruled the point of error on appeal.

The rules of evidence and the rules of appellate procedure overlap to some degree. At Rule 103[a][1], Texas Rules of Evidence and at Rule 33.1[a], Texas Rules of Appellate Procedure, some of the same principles are addressed. At Rule 33.1[a], the rulemakers address the notion of “requests” along with notions of “objections” and “motions.

In conjunction with Rule 33.1[a], which, according to the Court of Criminal Appeals is a “judge protecting” rule, the Court of Criminal Appeals writes of “party responsibility.” Unless the party presenting a complaint to an appellate court first fully presented the matter to the trial court,

the appellate court will not address it on the merits. It is the responsibility of the party presenting a complaint to the appellate court to have first presented the complaint to the trial court.

When you make a request of the trial court, you must state the basis for your request at the same time you make the request, T.R.Ev. 103(a)(1) and Rule of Appellate Procedure 33.1.

Substance of Requests, Objections and Motions Exclusion of the State’s Evidence Taking into account all of the evidence concepts addressed in the Texas Rules of Evidence, probably the most rational place to begin a consideration of possible bases for the exclusion of Government’s proposed evidence is at Rule 402. If the proposed evidence is not relevant, it is conceptually inadmissible, and if you raise a timely and specific objection on the ground of relevance, the trial court does not have the discretion to admit it. Even if State’s proposed evidence is relevant, it may be inadmissible under authority of one or more of the principles of law set forth in one of the four categories of law set forth at Rule 402, the State or Federal Constitution, a statute, other rules or other rules prescribed under statutory authority.

A thorough understanding of Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) and Rankin v. State, 974 S.W.3d 707 (Tex. Crim. App. 1998), both relatively old cases, decided shortly after the adoption of the Texas Rules of Evidence, will clarify how the courts treat attempts to deal with evidence in the face of relevance objections by the defense. Both cases bounced around in the appellate courts, generating multiple opinions. The changes in the opinions and the response by the Courts of Appeals .

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) * In Montgomery, the Court of Criminal Appeals instructed that “facts of consequence to the determination of the action” include elemental facts and evidentiary facts from which an elemental fact may be inferred. Elemental Facts include elements of the offense(s) charged and elements of the defensive theory. Evidentiary facts are all facts which tend to suggest the existence of an elemental fact.

On original submission and throughout the appeal, the Court of Criminal Appeals referred to the definition of "relevant evidence,” finding that it meant “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."

Rankin v. State, 974 S.W.2d 707 (Tex. Crim. App. 1998) Note 1995 Addition of CCP Art. 38.37 Montgomery and Rankin are cited herein for the court’s treatment of relevance and 403 considerations. Both Montgomery and Rankin were decided before the effective date of Art. 38.37, September 1, 1995. Art. 37.38(a) now controls admission of character evidence if sexual assault Excluder #1 -- If It’s Not Relevant, It’s Inadmissible - Rule 402 From your perspective as a criminal defense lawyer trying to exclude the Government’s proposed evidence on the ground that it is not relevant, it is essential that the “fact of consequence” at issue be identified. According to the Court of Criminal Appeals in Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991), if the Government’s proposed evidence provides even a “small nudge” toward establishing the existence of an elemental fact or an

evidentiary fact from which an elemental fact may be inferred, that proposed evidence is relevant. The evidence may be inadmissible under authority of some other principal of law, but not inadmissible for lack of relevancy under authority of Rule 402.

Although Government’s proposed evidence is relevant and therefore not barred for lack of relevancy, it may yet be barred by some other principal of law, e.g., some constitutional provision, some statutory provision, some rule of evidence, or some other rule prescribed pursuant to statutory authority. If it is conceptually inadmissible under authority of any principle of law and you raise timely and specific objection, it is excluded. It should be anyway.

In raising objections to the admission of Government’s proposed evidence, the order in which you cite various principles of law as bases for exclusion is usually of little import. Just run the table - in your mind, anyway - whether you actually raise all of the possible objections at trial or not. If you really want the proposed evidence excluded, raise an objection to its admission. If that objection doesn’t fly, raise another objection. If Government’s proposed evidence is inadmissible under authority of any principle of law, it is inadmissible.

When the prosecutor seeks admission of proposed evidence which is not relevant, i.e., which does not tend to prove or disprove the existence of any fact that is of consequence to the determination of the action, that proposed evidence is conceptually inadmissible. So, you object to its admission under authority of Rule 402.

Excluder #2 -- It May Be Relevant But Still Excludable - Rule 402 When the prosecutor seeks admission of proposed evidence which is relevant, you may yet be able to exclude it if it is conceptually inadmissible under authority of some principle of law not directly addressed in the Rules of Evidence. Specifically, TREv. 402 lists the United States Constitution, a statute, the Rules of Evidence or other rules prescribed under statutory authority and being sources of support for the exclusion of otherwise admissible evidence.

Evidence which is obtained via a violation of the Fourth Amendment would probably be very relevant, but still excludable. The result would be the same for evidence obtained in violation of the Health Insurance Portability and Accountability Act of 1996, a violation of the privilege described in TREv. 503.

Excluder #3 -- It May Be Relevant, But Too Much Downside - Rule 403 If proposed evidence doesn’t tend to establish the existence of some fact that is of consequence to the determination of the action, i.e., is not relevant, it is conceptually inadmissible. Even if it is relevant, it’s probative value may be substantially outweighed by the danger of some downside consideration set forth at Rule 403, in which case it is inadmissible. It may be that the probative value of the proposed evidence is marginal at best such that its probative value is substantially outweighed by the danger of unfair prejudice.

The extent of the probative value of proposed evidence, if any, varies from fact scenario to fact scenario. If the weight properly accorded proposed evidence is not great, that probative value may well be substantially outweighed by the danger of unfair prejudice inherent in some

downside consideration and, therefore, inadmissible under authority of Rule 403. On a scale of 1 to 100, some proposed evidence has great probative value, maybe an 80, say. If so, it’s unlikely such proposed evidence is conceptually inadmissible under authority of Rule 403. It takes a whole lot of unfair prejudice to substantially outweigh probative value of 80 or so on a scale of 100.

Excluder #4 -- The State May Not Initiate Evidence of a Character Trait of the Accused – Rules 404(a)(1) and 404(a)(2)(A) Propensity evidence (character evidence) is properly admitted (if at all) only when offered in the form of opinion testimony or reputation testimony. TREv. 405.

The prosecution may not, for the purpose of demonstrating character conformity, initiate evidence of a propensity of the defendant. The general rule is that this type of evidence is conceptually inadmissible. In other words, if the State seeks to show that on a particular occasion, an accused engaged in specified conduct, it is not permitted to do so using evidence of the person’s character or by using evidence of a character trait of the person to show that he probably acted in conformity with that character on the occasion in question.

The defense may adduce evidence of a character trait of the defendant in order to show that on a particular occasion the defendant engaged in specified conduct. The prosecution may seek to rebut such evidence initiated by the defense with evidence of that character trait of the defendant.

However, there are exceptions to that general rule. The defense may adduce evidence of a character trait of the defendant in order to show that on a particular occasion the defendant engaged in specified conduct.

Excluder #5 -- The State May Not Initiate Evidence of a Character Trait of the Alleged Victim – Rules 404(a)(1) and 404(a)(3) The defense may offer evidence of a relevant character trait of the complainant, subject to Rule 412 (sex assault cases).

The prosecution may not properly initiate evidence of a character trait of the complainant.

The prosecution may respond in kind to character evidence of the complainant initiated by the defense, of course, but the prosecution may not initiate such evidence.

Additionally, if the defense in a homicide case raises a claim that the complainant was the first aggressor, the prosecution may then adduce reputation or opinion testimony that the complainant had a propensity to be peaceable. That proposed character evidence is not inadmissible under authority of Rule 404(a). Otherwise, if from the proposed evidence (be it in the form of reputation testimony, opinion testimony, or evidence of some specific instance of conduct), an inference may be drawn with respect to the existence of a propensity on the part of the complainant, that proposed evidence is conceptually inadmissible under authority of Rule 404(a).

Excluder #6 -- General (Character Conformity) - Rule 404(b) To the extent evidence of a crime, wrong, or other act of the defendant tends to demonstrate the

existence of a propensity on the part of the defendant to engage in bad acts and, therefore, that he probably engaged in the bad act charged, it is inadmissible. To the extent it tends to establish the existence of some fact of consequence other than such propensity, it is not inadmissible under authority of Rule 404(b). It may be inadmissible under authority of some other rule of law, but it is not inadmissible under authority of Rule 404(b).

Rule 404(b) is a rule of inadmissibility. To the extent evidence of another crime, wrong, or act of the defendant tends to demonstrate the existence of a propensity on the part of the defendant to engage in bad acts (and, therefore, probably engaged in the bad act charged), the evidence is conceptually inadmissible under authority of this Rule. To the extent it tends to establish the existence of some fact of consequence other than such propensity, it is not conceptually inadmissible under authority of Rule 404(b). It may be conceptually inadmissible under authority of some principal of law other than Rule 404(b), but it is not conceptually inadmissible under authority of Rule 404(b). The prosecutor may offer extraneous misconduct evidence for the limited purpose of establishing the existence of some identified fact of consequence other than the existence of a character trait of the defendant and argue to the trial court that it is not barred by Rule 404(b) for the reason that from the evidence, due to its being offered for the limited purpose of demonstrating the existence of some other fact of consequence, the jury may not properly infer the existence of any propensity on the part of the defendant.

Excluder #7 -- No Reasonable Notice - Rule 404(b) You might be able to exclude proposed evidence of another crime, wrong, or act of the defendant irrespective of the fact that the prosecutor offers it to help establish the existence of some fact of consequence other than a pertinent propensity on the part of the defendant to engage in bad acts (and therefore, probably engaged in the bad act(s) charged) if you timely seek reasonable notice from the prosecution of evidence the state intends to introduce in the presentation of its case-inchief and you get no notice. You have to request the notice if you are to benefit from Rule 404(b) in this way, but when you request it properly, you set up the potential for exclusion under authority of Rule 404(b) on the ground that reasonable notice was requested but not given.

It is clear from the language of the rule, “other than that arising in the same transaction,” that the prosecution is not required to provide you with notice of other crimes, wrongs, or acts which constitute “same transaction contextual evidence.”

The basic notion in this context is that to the extent evidence of another crime, wrong, or act of the defendant tends to demonstrate the existence of a propensity on the part of the defendant to engage in bad acts and, therefore, probably engaged in the bad act charged, it is inadmissible. To the extent it tends to establish the existence of some fact of consequence other than such propensity, it is not barred under authority of Rule 404(b). It may be inadmissible under authority of some other rule of law, but it is not inadmissible under authority of Rule 404(b).

Excluder #8 -- Bad Act Not Proved Beyond Reasonable Doubt - Harrell v. State, 884 S.W.2d 154 (Tex. Crim. App. 1992) - Rule 404(b) You may object that the state has not offered sufficient “admissible” evidence to support a determination by the court that the jury could reasonably find beyond a reasonable doubt that the defendant did, indeed, actually “commit” the other crime, wrong, or act and that, therefore, it is

inadmissible under authority of Harrell v. State, 884 S.W.2d 154 (Tex. Crim. App. 1992). After a proceeding conducted outside the presence and hearing of the jury wherein the prosecution makes a proffer, unless the trial judge believes the prosecution has presented “admissible” evidence from which the jury could reasonably find beyond a reasonable doubt that the defendant actually “committed” the other crime, wrong, or act, the trial court should not let the evidence be presented to the jury. The critical language from Harrell: “We therefore hold that in deciding whether to admit extraneous offense evidence in the guilt/innocence phase of trial, the trial court must, under Rule 104(b), make an initial determination at the proffer of the evidence, that [the] jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense.” p. 160.

Excluder #9 -- Not Relevant to Any Exception - Rule 404(b) Prosecutor seeks admission of proposed evidence of some other crime, wrong, or act of the defendant for the limited purpose of establishing the existence of some fact of consequence other than the existence of a propensity on the part of the defendant to engage in the conduct charged, but the proposed evidence does not tend to establish the existence of that identified fact of consequence.

The same kind of analysis applies here as it does in other “relevancy” scenarios. If Government’s proposed extraneous misconduct evidence doesn’t tend to establish the existence of the fact of consequence identified, it is not relevant to that fact of consequence and, on timely and specific objection that the proposed evidence is not relevant to the fact of consequence identified, it should be excluded - not admitted for the limited purpose for which it is offered.

The fact that it is offered for some limited purpose, i.e., for the purpose of establishing the existence of an identified fact of consequence, is not the same as establishing that, in logic and common experience, the proposed evidence does, indeed, tend to establish the existence of that fact of consequence.

Excluder #10 -- Relevant to an Exception, but Rule 403 as to that Exception - Rule 404(b) You may be able to exclude proposed evidence does not, in logic and common experience tend to demonstrate the existence of the fact of consequence identified other than a propensity on the part of the defendant to engage in bad acts and that, to the extent it does tend to establish the existence of the fact of consequence identified by the prosecution, the probative value thereof in that regard is substantially outweighed by the danger of unfair prejudice or some other downside consideration set forth at Rule 403 even if it is admitted for a limited purpose and with a limiting instruction.

Excluder #11 -- Reputation Testimony Inadmissible - Rule 405(a) If the objective of the prosecution is to show that on a particular occasion, an identified person engaged in specified conduct, and the state’s effort is to prove that the person engaged in such conduct by showing that the person had a propensity to engage in such conduct and that on the occasion in question, he merely conducted himself in conformity with his propensity or character trait, evidence of such propensity must be in the form of opinion or reputation testimony.

Clearly, when the prosecution seeks admission of evidence of a character trait of a person and the proposed evidence is in the form of reputation testimony, the proposed evidence is

inadmissible unless the prosecution first establishes that prior to the day of the offense, the witness was familiar with the person’s reputation.

You might want to take the prosecution witness on voir dire and question him concerning his information with respect to the person’s reputation. -- Or just object that the prosecution has not introduced evidence or produced information that their character witness was qualified to testify to the reputation of the defendant. If the witness was not familiar with the reputation prior to the day of the offense, the proposed evidence is inadmissible under authority of Rule 405(a). If after the day of the alleged offense, the prosecution witness went out and familiarized himself with the pertinent reputation of the defendant or the complainant and then sought to testify thereto, that proposed evidence would be inadmissible under authority of Rule 405(a).

Excluder #12 -- Opinion Testimony Inadmissible - Rule 405(a) If the objective of the prosecution is to show that on a particular occasion, an identified person engaged in specified conduct, and the state’s effort is to prove that the person engaged in such conduct by showing that the person had a propensity to engage in such conduct and that on the occasion in question, he merely conducted himself in conformity with his propensity or character trait, evidence of such propensity must be in the form of opinion or reputation testimony.

Clearly, when the prosecution seeks admission of evidence of a character trait of a person and the proposed evidence is in the form of opinion testimony, the proposed evidence is inadmissible unless the prosecution first establishes that prior to the day of the offense, the witness was familiar with the underlying facts or information upon which his opinion rests.

You will probably want to take the prosecution witness on voir dire in an effort to determine whether the witness, prior to the day of the offense, was, indeed, familiar with the underlying facts or information upon which his opinion is based.

Excluder #13 -- Evidence of Specific Instance of Conduct Inadmissible to Show Character Trait - Rule 405(b) If, in a criminal proceeding, a character trait of a person - or, for that matter, the character-atlarge of a person - is an essential element of a charge, claim or defense, use of evidence of some specific instance of that person’s conduct to show the existence of a particular character trait would not be prohibited under authority of this rule segment. However, I know of no such scenario in a criminal case.

The rule deals only with allowable methods of proving character, not with the admissibility of character evidence, which is covered in Rule 404. Advisory Committee notes FREv. 405.

Excluder #14 -- Lack of Personal Knowledge - Rule 602 A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.

One has “personal knowledge” of that about which one has gained knowledge directly through the senses or one or more of them. If the witness did not personally see it, hear it, feel it, taste it, or smell it, he doesn’t have personal knowledge of it.

With respect to hearsay statements, the witness may have personal knowledge that an out-ofcourt declarant made the statement yet have no personal knowledge of the truth of the matter asserted in the out-of-court statement. The prosecution witness-on-the-witness stand need not have personal knowledge of the truth-or-not of the out-of-court statement, but the out-of-court witness for the prosecution, i.e., the declarant of the out-of-court statement, must have had personal knowledge thereof when he made it, or the out-of-court statement is inadmissible under authority of Rule 602.

Excluder #15 -- Prior Consistent Statement - Rule 613[c] When the prosecution has already adduced testimony from a witness and then seeks admission of some out-of-court statement of that witness in which the witness made the same assertion, as a general rule, that proposed evidence, (evidence of a prior consistent statement of the witness) is inadmissible under authority of Rule 613[c].

The prior consistent statement may not be excludable under authority of Rule 613[c] if, under Rule 801(e)(1)(B), it is offered for the limited purpose of rebutting a charge that the witness recently fabricated his testimony or that he testified pursuant to some improper influence or motive.

Here’s how you might be able to use Rule 613[c].

In a child sex case, the complainant testifies first. Subsequently, the prosecutor calls the outcry witness to repeat on the witness stand out-of-court statements of the complainant, statements which fall within the conceptual parameters of the outcry statement, Art. 38.072, V.A.C.C.P., an exception to the hearsay rule.

If you object on the ground of hearsay, the prosecution will likely argue that the proposed statements are hearsay-excepted under authority of Art. 38.072, V.A.C.C.P., and that will probably result in the demise of your hearsay objection.

In addition to or instead of a hearsay objection, you might want to raise an objection under authority of Rule 613[c].

In a capital murder case, prosecution witness number one testifies to that about which he has personal knowledge. Subsequently, the prosecutor calls witness number two to repeat on the witness stand the “excited utterances” purportedly made by prosecution witness number one in the presence of or to prosecution witness number two.

Assume the out-of-court statements at issue involve the same assertions as those made on the witness stand by prosecution witness number one. Assume also that the out-of-court statements fall within the conceptual parameters of Rule 803(2), the “excited utterance” exception to the

hearsay rule.

If you object on the ground of hearsay, the prosecutor will contend that the statements are hearsay-excepted under authority of Rule 803(2) and, if they are, that’s the end of that. They come in over your hearsay objection.

But suppose you object under authority of Rule 613[c]; you object that the proposed testimony of prosecution witness number two consists of the prior consistent statements of prosecution witness number one. The “bolstering” effort of the prosecution in this regard should fail and your objection should be sustained.

In that same capital murder case, prosecution witness number three, a witness who was wounded in the same transaction which gave rise to the capital murder charge against your client, testifies to his injuries. Subsequently, the prosecutor calls prosecution witness number four, a physician, to repeat on the witness stand the “statements made for the purpose of medical diagnosis or treatment” purportedly made by prosecution witness number one to the physician.

Assume the out-of-court statements at issue are the same as those made on the witness stand by prosecution witness number three. Assume also that the out-of-court statements fall within the conceptual parameters of Rule 803(4), the “statements-made-for-purposes-of-medical diagnosisor-treatment” exception to the hearsay rule.

If you object on the ground of hearsay, the prosecutor will contend that the statements are hearsay-excepted under authority of Rule 803(4), and if they are, that’s the end of that. They come in over your hearsay objection.

But suppose you object under authority of Rule 613[c]; you object that the proposed testimony of prosecution witness number four consists of the prior consistent statements of prosecution witness number three. In other words, prosecution witness number four seeks to repeat on the witness stand statements purportedly made out-of-court by witness number three. The “bolstering’ effort of the prosecution in this regard should fail. You got nothing to lose by taking a run at it.

The Court of Criminal Appeals may have eviscerated Rule 613[c] with its decision in Hammons v. State, 239 S.W.3d 798 (Tex. Crim. App. 2007). Post-Hammons, if in cross-examining a prosecution witness, you even “insinuate” that he fabricated his testimony and subsequently the prosecutor elicits evidence of a prior consistent statement of the witness, offered for the limited purpose of rebutting a claim of recent fabrication or improper motive to testify, and the trial court admits evidence of a prior consistent statement of the prosecution witness for the limited purpose of rebutting a claim of recent fabrication, an appellate court is totally unlikely to find an abuse of discretion on the part of the trial court.

Excluder #16 -- Lay Opinion Testimony Not Rationally Based - Rule 701 Opinion testimony by a lay witness is conceptually inadmissible unless evidence is first introduced sufficient to support a finding that the opinion is rationally based on the perception of the witness and on his perception only. “Perception” in Rule 701 means “personal knowledge,”

i.e., knowledge which the prosecution witness has acquired directly through the senses or one or more of them.

There are three distinct “elements” with respect to lay opinion testimony: • The underlying data pool upon which the lay opinion is based.

• The opinion formed or conclusion reached by the witness.

• The inferring processes.

To determine whether the proposed lay opinion is inadmissible under authority of Rule 701, inquiry must be made into each of these “elements”- preferably on voir dire examination and outside the presence and hearing of the jury.

The underlying data pool upon which the lay opinion is based.

• If the data pool upon which the lay opinion rests contains any data not acquired by the witness directly through his senses, i.e., if the data pool contains data other than such data - second hand information, perhaps - the lay opinion is conceptually inadmissible.

If the opinion is not “rationally based” on the data pool, i.e., if the inferring process is flawed, the proposed lay opinion is conceptually inadmissible.

The opinion formed or conclusion reached by the witness.

• You must determine precisely what the witness’s opinion is; otherwise, it will not be possible to know whether it is rationally based upon the witness’s data pool.

The inferring processes.

• The quality of the inferring process is assessed in light of the data contained in the witness’s data pool and the opinion itself.

It is desirable that you take the prosecution witness on voir dire, outside the presence and hearing of the jury and that in examining the witness, you carefully ascertain the content of the data pool and precise opinion to which the witness seeks to testify.

When a prosecution witness, testifying as a layman, seeks to testify to his opinion on some issue and his opinion has not been shown to be rationally based on his perception (personal knowledge), you may want to raise an objection under authority of Rule 701. Of course, from your perspective, there may be an upside to admission of the opinion and therefore, you may not want to try to exclude it. You may be able to gain some advantage from its being admitted. On the other hand, you want to know of bases for exclusion in the event you want to exclude it.

Opinion testimony by a lay witness is not inadmissible on the ground that it “invades the province of the jury,” i.e., on the ground that it “embraces an ultimate issue to be decided by the trier of fact.”

Not Helpful to the Jury - Rule 701 Lay opinion testimony is generally inadmissible. However, if it is rationally based on the witness’ perception and it will assist the jury members understand the witness’ testimony or determine a fact of consequence to the determination of the action, it is not inadmissible under authority of Rule 701. It may be inadmissible under authority of some other principal of law, but not by virtue of being lay opinion testimony.

If jury members are capable of understanding the witness’ testimony without benefit of the proposed lay opinion, i.e., if the proposed lay opinion testimony would not help them understand it, and if they are able to determine facts of consequence to the determination of the action without benefit of the proposed lay opinion testimony, the proposed testimony would not assist the jury as that notion is contemplated by the rule-makers.

Sometimes the only real weight associated with lay opinion testimony is that weight which comes with the identity of the opiner. It seems especially important that this kind of proposed evidence be excluded if possible.

Insufficient Basis for Expert Opinion - Rule 705[c] Evidence is excludable if there is an insufficient basis for the opinion of the prosecution’s expert witness. To get to the basis of the expert’s testimony, you will probably need to take the witness on voir dire and get the witness to identify the underlying facts or data upon which his opinion rests. Also, you’ll want to get him to be clear as to precisely what his opinion is. In the process, you’ll want to determine what his areas of expertise are and whether his opinion falls within one or more of those areas. You will also have engaged your own expert to assist the evaluation of the opponent’s’ as few attorneys have the knowledge in diverse fields to effectively contest the opinions of one educated in a qualifying field. Then you’re in a position to point to the underlying facts or data upon which his opinion rests and to his opinion and contend that the underlying facts or data do not provide a sufficient basis for the opinion.

Hearsay - Rule 802 The word “hearsay” functions as a noun and as an adjective. At times, scholars write of “hearsay” and at other times they write of “hearsay statements.” Understanding of hearsayrelated concepts is enhanced when efforts are focused on the word “statement,” which is defined at Rule 801(a), " a person's oral or written verbal expression, or nonverbal conduct that a person intended as a substitute for verbal expression,” rather than on the word “hearsay.” Some statements are hearsay statements; some statements are hearsay-excepted statements; some statements do not qualify as “hearsay statements” for the reason that they do not meet the definition set forth by the rule-makers at Rule 801(d); some statements, even though they meet the definition of “hearsay” are defined by the rule-makers at “not hearsay.”

Hearsay statements are inherently unreliable. Therefore, as a general rule, they are conceptually inadmissible.

Though inherently unreliable and as a general rule inadmissible, in certain rule-makerdesignated scenarios, due primarily to the existence of rule-maker approved predicate facts, statements may be hearsay excepted. The presence of rule-maker exceptions raises the level of reliability of the hearsay statement above the threshold below which hearsay statements are conceptually inadmissible and they are not excluded by the hearsay rule. Twenty-four such

scenarios are set forth by the rule-makers at Rule 803 of the Texas Rules of Evidence, another four at Rule 804 of the Texas Rules of Evidence, and more in other Texas statutes. Examples: Art. 38.071, V.A.C.C.P., and Art. 38.072, V.A.C.C.P. Understanding pertinent concepts in this regard can be a bit challenging, particularly in light of unfortunate language sometimes used by appellate courts in addressing these matters.

When your objective is to exclude the prosecution’s proposed hearsay evidence, and your inquiry is whether or not the evidence at issue is excluded by the hearsay rule, it may be, for example, that the proposed evidence consists of hearsay-excepted hearsay such that it is not excluded by the hearsay rule, but that it may be excluded by some other rule.

Backdoor Hearsay - Rule 802 Many prosecutors are adept at gaining admission of conceptually inadmissible hearsay statements by means of the use of “artful questioning.” They sneak hearsay past defense lawyers, drawing no hearsay objection, on an almost-regular basis. “Officer, without telling us what the eyewitness said to you when you interviewed him, what did you do after you spoke with him?” That’s objectionable on the ground that it constitutes “backdoor” hearsay. See Schaffer v. State, 777 S.W.2d 111 (Tex. Crim. App. 1989).

In Schaffer a law enforcement officer was called back to the witness stand to rebut defendant’s allegation that he was an informant. The witness was not asked what the cop who arrested the defendant said to testify that the other officer didn’t release the defendant from custody. Schaffer was decided while the harm determination was made pursuant to old Appellate Rule 81 but the result might well be the same today so long as the objection also included a reference to the Sixth Amendment and Crawford v. Washington, 541 U.S. 36 (2003) and its progeny.

Additionally, in many instances the proposed evidence may be irrelevant and, therefore, inadmissible under authority of Rule 402. And, of course, depending upon the circumstances, it might be inadmissible under authority of the Confrontation Clause of the 6th Amendment to the United States Constitution. If it’s inadmissible under authority of any principle of law, it should be excluded.

Excluder #21 -- Hearsay but Hearsay-Excepted [“Excited Utterance” Exception] - Rule 802 and Not 803(2) As a general rule, hearsay statements are inherently unreliable and, therefore, conceptually inadmissible. However, hearsay-excepted hearsay statements are deemed to be sufficiently reliable that they are not excluded by the hearsay rule. So, what is it about hearsayexcepted hearsay statements which results in their not being excluded by the hearsay rule? A major contributing factor, if not the contributing factor is that the existence of the rule-makerprescribed predicate facts for each of the recognized hearsay exceptions raises the level of reliability of a particular hearsay statement above the threshold below which the hearsay statement would otherwise be conceptually inadmissible. A second contributing factor in many instances, is that, all things considered, there is no practicable way to get designated types of hearsay statements admitted in evidence if they are not hearsay-excepted and the thrust of evidence law, as reflected in the Rules, favors admissibility.

In Apolinar v. State, 155 S.W.3d 184 (Tex. Crim. App. 2005), the Court of Criminal Appeals provided, in effect, that a hearsay statement is not hearsay-excepted under authority of

Rule 803(2) unless the proponent demonstrates by a preponderance of evidence or information that at the time the declarant made the statement, he had not had a meaningful opportunity to reflect and fabricate.

In Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998), the Court of Criminal Appeals provided, in effect, that unless the proponent of a hearsay statement, claiming the statement is hearsay-excepted under authority of some designated hearsay exception, demonstrates the existence of all of the predicate facts for said exception, the statement is not hearsay-excepted under authority of that designated exception. This is Michael Gross’ capital murder case. State failed to offer evidence of all predicate facts for past recollection recorded exception to hearsay rule.

Excluder #22 -- Hearsay Within Hearsay - Rule 805 Not infrequently, prosecutors seek admission of exhibits which consist of multiple writings or packets of writings. When you object to admission of an exhibit in its entirety on the ground that it consists of hearsay, the prosecution may demonstrate to the satisfaction of the trial court that the exhibit in its entirety is hearsay-excepted under authority of Rule 803(6), the Business Records exception to the hearsay rule, or under authority of Rule 803(8), the Public Records exception to the hearsay rule. One or more of the documents may contain hearsay within hearsay, in which case you will want to object to identified statements (written or verbal expressions) contained within the hearsay document on the ground that the particular hearsay statements constitute hearsay within hearsay.

First, object to admission of the document in its entirety and if that fails, object to each and every inadmissible hearsay statement contained within the document. Additionally, if applicable and called for, object on the ground that the exhibit has not been properly authenticated. See Rules 901 and 902. If that doesn’t work, object under authority of Rule 1002, the best evidence rule. That a hearsay statement is hearsay-excepted does not render it “admissible,” does not save it from being inadmissible under authority of some rule of law other than the hearsay rule.

Assuming you’re not successful in your effort to exclude the exhibit in its entirety, make additional objections to the admission of various written verbal expressions contained within the exhibit. Unless you object specifically to the targeted statement or statements contained within the hearsay-excepted document, those statements are sure to be admitted.

Excluder #23 -- Hearsay-Excepted but Otherwise Inadmissible - 805 [and Rules 802, 803, Other] That a hearsay statement is hearsay-excepted does not render it “admissible,” does not save it from being inadmissible under authority of some rule of law other than the hearsay rule.

Were you to object to admission of the hearsay statement only under authority of the Hearsay Rule, the prosecutor’s response might be that the hearsay-statement is hearsay-excepted under authority of some recognized hearsay exception. Should the prosecutor establish the existence of the predicate facts for such hearsay exception, the trial court should overrule your hearsay objection.

On the other hand, should it appear that the prosecution had made no showing that the declarant of the hearsay statement had personal knowledge of the matter asserted in the out-of-court statement, you might be able to exclude the proposed evidence under authority of Rule 602 with an objection that evidence had not been introduced sufficient to support a finding that the declarant of

the hearsay statement had personal knowledge of the matter asserted.

Should it appear that the out-of-court statement constituted an opinion of the declarant and that there had been no showing that the declarant’s lay opinion was rationally based on the perception of the declarant, you might be able to exclude the proposed evidence under authority of Rule 701 with an objection that evidence had not been introduced sufficient to support a finding that the declarant’s opinion was not shown to be rationally based on his perception.

Excluder #24 -- Summaries - Rule 1006 The prosecution may seek to adduce evidence in the form of a summary of a document or documents. For example, the prosecution may seek to introduce evidence of a summary of the defendant’s criminal history as provided by the Department of Public Safety. If the document(s) summarized are inadmissible, a summary thereof is also inadmissible. Each item in the exhibit may constitute a summary.

Not infrequently, prosecutors seek admission of summaries of documents which are not voluminous. If the documents summarized by the exhibit are not so voluminous that they “cannot be conveniently examined in court” they are excludable.

Additionally, prosecutors fail to make available to the defense, the actual documents summarized, it is the duty of the prosecution to produce them whether you request it or not.

ON DISCREDITING EVIDENCE ADMITTED AT THE INSTANCE OF GOVERNMENT Fact is that you won’t be able to exclude all of Government’s proposed evidence. When prosecution evidence is admitted, you may want to seek to discredit it - by eliciting evidence from a prosecution witness or otherwise.

Evidence that the Prosecution Witness has a Propensity to be Untruthful - Testimony in the form of Opinion or Reputation You may seek to show that the prosecution witness has a generalized propensity to be untruthful and that, therefore, the jury should not believe his testimony. You may want to demonstrate same with a showing that the witness has a reputation for being untruthful or that in the opinion of some defense witness, the prosecution witness has a propensity to be untruthful.

Should you take this approach, Rule 405 may come into play.

Evidence that the Prosecution Witness has been Finally Convicted of a Felony or Misdemeanor Involving Moral Turpitude Evidence that a Prosecution Witness Made a Prior Inconsistent Statement.

Evidence that a Prosecution Witness has a Bias or Interest - Rules of Evidence.

Evidence that a Prosecution Witness has a Bias or Interest - U. S. Constitution, Amend VI ON GAINING ADMISSION OF PROPOSED DEFENSE EVIDENCE ON PROTECTING DEFENSE WITNESSES FROM ILLICIT CROSS-EXAMINATION BY THE PROSECUTION

The Prosecution May Offer Evidence for the Limited Purpose of Impeaching Your Defense Witness The Prosecution May Offer Evidence in Contradiction to the Testimony of Your Defense Witness on Direct Examination

The State May Not Use Evidence of a Specific Instance of Conduct to Show Character Conformity The only fact of consequence proposed evidence of a specific instance of conduct of the defendant offered by the prosecution tends to demonstrate is the existence of a propensity (a character trait) of the complainant. It is impermissible for a proponent to seek to demonstrate the existence of a pertinent character trait by means of the use of evidence of a specific instance of conduct.

If the objective of the prosecution is to show that on a particular occasion, an identified person engaged in specified conduct, and the state’s effort is to prove that the person engaged in such conduct by showing that the person had a propensity to engage in such conduct and that on the occasion in question, he merely conducted himself in conformity with his propensity or character trait, evidence of such propensity must be in the form of opinion or reputation testimony.

Clearly, when the prosecution seeks admission of evidence of a character trait of a person and the proposed evidence is in the form of reputation testimony, the proposed evidence is inadmissible unless the prosecution first establishes that prior to the day of the offense, the witness was familiar with the person’s reputation.

Often, when the prosecution calls a witness, you have no way of knowing what the witness is to testify to and if he is to testify with respect to the existence of a propensity on the part of a person, you don’t know until it is too late, if he is to testify to the existence of a character trait on the part of the person, whether he will be asked by the prosecution to testify to the reputation of the person with respect to a particular character trait or whether he will be asked to testify to his opinion with respect to a particular character trait of the person. It’s dangerous to let him testify and then, after the fact, try to deal with the issue. So, it’s important that you take the prosecution witness on voir dire, out of the presence and hearing of the jury members, to determine whether he seeks to testify to the reputation of the person or the witness’s opinion concerning a character trait of the person and whether the prosecution witness is qualified to testify to either.

On voir dire, try to establish whether the character witness was familiar with the reputation prior to the day of the offense. Or just object that the prosecution has not introduced evidence or produced information that their character witness was qualified to testify to the reputation of the defendant. If the witness was not familiar with the reputation prior to the day of the offense, the proposed evidence is inadmissible under authority of Rule 405(a). If after the day of the alleged offense, the prosecution witness went out and familiarized himself with the pertinent reputation of the defendant or the complainant and then sought to testify thereto, that proposed evidence

would be inadmissible under authority of Rule 405(a).

If, in a criminal proceeding, a character trait of a person - or, for that matter, the character-at-large of a person - is an essential element of a charge, claim or defense, use of evidence of some specific instance of that person’s conduct to show the existence of a particular character trait would not be verboten under authority of this rule segment. I don’t know of any scenario in which a character trait of the defendant or the complainant is an essential element of a charge, claim or defense in a criminal proceeding.

Character of a Witness A witness’s character for truthfulness may be attacked by evidence of a bad reputation for truthfulness or by another witness’s opinion of their reputation, Rule 608 or by evidence of a conviction Rule 609.

When the prosecution has already adduced testimony from a witness and then subsequently seeks admission of some out-of-court statement of that witness in which the witness made the same assertion, as a general rule, that proposed evidence, (evidence of a prior consistent statement of the witness) is inadmissible under authority of Rule 613[c].

The prior consistent statement may not be excludable under authority of Rule 613[c] if, under authority of Rule 801(e)(1)(B), it is offered for the limited purpose of rebutting a charge that the witness recently fabricated his testimony or that he testified pursuant to some improper influence or motive A statement is not hearsay if ... [t]he declarant testified at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is: consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

The word “hearsay” functions as a noun and as an adjective. At times, scholars write of “hearsay” and at other times they write of “hearsay statements.” Understanding of hearsayrelated concepts is enhanced when the focus of your efforts to understand the concepts is on the word “statement,” which is defined at Rule 801(a)1 rather than on the word “hearsay.” Some statements are hearsay statements; some statements are hearsay-excepted statements; some statements do not qualify as “hearsay statements” for the reason that they do not meet the definition set forth by the rule-makers at Rule 801(d); some statements, even though they meet the definition of “hearsay” are defined by the rulemakers at “not hearsay.”

Hearsay statements are inherently unreliable. Therefore, as a general rule, they are conceptually inadmissible.

The foregoing emphasized language-of-the-rule suggests, in effect, that hearsay may be “admissible” as provided by law. Truth is, it is not provided anywhere that hearsay is per se “admissible.” Rather, at Rule 803, 804 and elsewhere in the statutes, it is provided that hearsay-excepted hearsay is “not excluded by the hearsay rule.”

So, what if the out-of-court statement falls within one of the recognized hearsay exceptions set forth in the rules of evidence or in some other statutes? It’s still “hearsay,” isn’t it? Does it become “not hearsay” if it falls within one of the hearsay exceptions? Of course, it is. It’s still hearsay! But, as a general rule, “hearsay” statements are excluded by the hearsay rule. Why aren’t hearsay-excepted hearsay statements excluded by the hearsay rule? Thinking of the rulemakers includes the notion that the existence of the rulemaker-designated predicate facts for any given recognized hearsay exception raises the level of the statement’s reliability above the threshold below which hearsay statements are generally excluded solely on the basis that they are hearsay statements.

In order to enhance the probability that when you seek to exclude Government’s proposed hearsay evidence you will be successful, it is necessary, of course, that you have a pretty good handle on the nature of hearsay statements, hearsay-excepted statements, and hearsay-exempted statements.

Texas Criminal Defense Lawyers Association

Prairie Pup Nuts N’ Bolts Co-Sponsored with LCDLA January 5, 2022

Topic: Criminal Investigations Speaker:

Eldon Whitworth 1401 Crickets Ave Lubbock, TX 79401 (806) 749-0007 Phone (806) 543-6570 Mobile ewhitworth@lpdo.org email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Effective use of a Fact Investigator Why? What to expect….

Fact Investigatio n It ’s an ar t, not a science.

Memegenerator.net

Police focus on closing the case

Memecreator.org

Jason rockwell @ IAMrockwell

Fact Investigation solving the case, exposing the evidence

Defense Attorney You can’t be case attorney & case witness Texas Disciplinary Rules of P rofessional Conduct- Rule 3.08

TEAMWORK

TRYING TO DO IT ALL

Clipartguise.com

Imgflip.com

Texas Disciplinary Rules of Professional Conduct- Rule 3.08 Rule 3.08. Lawyer as Witness (a) A lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer's client, unless: (1) the testimony relates to an uncontested issue; (2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; (3) the testimony relates to the nature and value of legal services rendered in the case; (4) the lawyer is a party to the action and is appearing pro se; or (5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client. (b) A lawyer shall not continue as an advocate in a pending adjudicatory proceeding if the lawyer believes that the lawyer will be compelled to furnish testimony that will be substantially adverse to the lawyer's client, unless the client consents after full disclosure. (c) Without the client's informed consent, a lawyer may not act as advocate in an adjudicatory proceeding 71 in which another lawyer in the lawyer's firm is prohibited by paragraphs (a) or (b) from serving as advocate. If the lawyer to be called as a witness could not also serve as an advocate under this Rule, that lawyer shall not take an active role before the tribunal in the presentation of the matter.

Case Investigation approaches Police investigation vs Fact Investigation

Police Field Investigations

1. Identify the suspect 2. Locate the suspect 3. Provide evidence to prove suspect's guilt.

Poppartysupply.com

Fact Investigation

1. Expose evidence 2. Identify probable suspect/witnesses 3. Identify additional circumstances leading to incident.

Seekpng.com

Dfwpersonalinjurylawyer.com

Differences in Police & Fact Investigator approaches POLICE I n ve s t i g a t e i n c i d e n t Document witness identities /statements Id e n t i f y c r i m e / l o s s No planning, spontaneous Conducts crowded, at scene interviews Places assumptions in reports Can become caught up in the emotions of the victims and witnesses.

FACT INVESTIGATOR Fo c u s e d I n t e r v i e w s (who /what /where /when /why)

Ob t a in s in - d e pt h i n fo M o de ra t e p l an n i n g C o n t r o lle d e nvi r on m en t f o r in t e r vi ew s D e t e c t d e c e p t i o n & e lic it r e s p o n s e s Tes t i n f o a lr e a d y o b t a in e d Va li da t e s / d i s p e l s r u m o r s Re ve a l m o t i ve s & p r e j u d ic e s A n a ly z e w it n e s s t e s t i m o ny

Interviews are used in an investigation to gather information- objective facts- by asking open ended questions and allowing the witness to supply the evidence…. Interrogations, on the other hand, are designed to extract confessions where police already have other concrete evidence connecting the suspect to the crime. (innocenceproject.org)

Any investigative tool can be destructive if misused or successful if used properly. It all depends on the intent of the use of the tool.

A seasoned investigator learns how to use his tools to accomplish the job with the least amount of damage.

Ifunny.com

Police investigator objectives Focus is on closing the case, securing a confession Reid Techniques can create false confessions Use behavior symptom analysis Convince suspect of guilt Make false allegations of evidence /witnesses Facilitates acceptance of culpability Create an “out” to accept & admit guilt

Pikpng.com

Fact Investigator objectives Goal is to provide a quality, ethical and effective defense

Fa ct exp os ur e- foc us on fac t in teg rit y E m p ow er witn es ses- cr eat e rela t ion s hip of t ru st Prot ect wit n ess id en tit y Crea t e a sen se of in teg r ity Pu t wit n ess in clien t ’s s h oes A llow w itn ess t o d ivu lg e t ru t h a n d fa ct (n ot sa m e) G at h er a ny m it ig a tin g fact s th at m ay h ave releva n ce t owa rd s g u ilt /in n ocen ce or d is m is sal

Ewn.co.za

@9GAG twitter.com

Cognizantsoftvision.com Me.me @reality_truth twitter.com

Truth or Facts?

FACTS DON’T LIE OR CHANGE

Must be exposed to validate

TRUTHS ARE OBJECTIVE Can be passed as fact if not

the stated truths

verif ied.

Facts never change

Often inserted in reports as fact.

May change over time

Imgflip.com

FACTS- Your Ammo in court Undisputable facts are ammo in the court system.

Facts will expose the smokescreen of a false testimony.

Those with the most bullets win!

Don’ t let the prosecution outshoot you in cour t!

Don’ t rely on the prosecution to turn over all the facts.

Thestreet.com

Background Checks

Shutterstock.com

Cartoonink.com

Challenges Distrust: witnesses & suspects have a natural distrust of police.

They will be evasive and diver t facts out of animosity, perceived or real, or to diver t attention to their role. This blurs the facts in the case. In turn, victims and their families of ten have a belief that the defense attorney and investigator is “just trying to get the guy off ”.

Solution: explain I am there to collect facts, whatever they may be, good, bad or otherwise. I am not affiliated with the police nor do I share my findings with them. My job is to uncover the facts of the case for presentation in legal proceedings.

Challenges P o l ic e r e p o r t s : O f t e n h ave er r on e o u s in f o r m a t io n , s p e c u l at i o n s an d a c c u s a t io n s . F r eq u e n t ly, p e r t in e n t de t a il s a r e l ef t o u t . W it n e s s es g ive s t a t e m e n ts w h ile in t h e h e a t of t h e m om en t , a c c om p a n i e d b y o t h e r s w h o o f t e n g ive th e ir i n p ut a n d ef f e c t t h e e ven t u a l o u t c o m e o f t h e ir v ie w of t h e i n c i de n t .

S o m e wi t n es s e s a r e in f lu e n c e b y s t r es s , c h e m i c a ls or p hy s ic a l d u r es s a t t h e t im e t h e y g ive t he i r f i r s t s t a t e m e n t. Po li c e c a n be a f fe c te d b y t h e em ot i o na l s t a t e o f w it n e s s es .

S o l ut i o n: Fo llo w - u p r e c o r d ed i n t er v ie w s . T i m e & s p a c e fr e q u e nt l y a l lo w t h e w it n e s s t o r e e va lu a t e th e in c id e n t i n a c le a r t h o u g h t- ou t p r o c e s s . T h is a ll o ws fo r r e le van t in f o r m a t io n t o be d is c ove r e d a nd d is c l os e d. T h e s e m o r e t ho u g h t ou t , ra t io n a l s t a t e m e nt s h el p th e a t to r n e y un d e r s t a n d t h e c om pl e t e d y n am ic s o f t h e c a s e a n d of t e n pr ov id e e vi d en c e f o r f ut u r e le g a l p r o c e e di n g s .

Follow up interviews I have of ten found through follow-up interviews with witnesses and victims, that what is presented in the police report is far from factual.

Witnesses of ten say: I didn’ t say that. This re-visiting the incident allows the witness to give a more clear, precise Quickmeme.com

statement.

Victim Statements Fol lo w u p i n t er v ie w s w it h v ic t im s in fa m i ly v io le n c e c as e o f t e n e n d u p w it h t h e m t el li ng m e : I d id n’ t wa nt h im ar r e s t ed , I j u s t wa n t ed t h e p o li c e t o m a ke it s t o p.

I h ave ex p la in e d t o s o m any f a m ili e s t h a t o n c e t h e p o li c e a r e i nvo lve d , s o m e on e is g oi n g t o j a i l.

T h e y d o n’ t h ave t im e t o p l ay f a m il y c ou n s el or.

A s a Fa c t I nve s t ig a t o r, I h e lp t he m d i ge s t t h i s p r o c e s s a n d o f t en t h e y c om e t o t h e d e c i s io n t h a t s ig n in g a No n P r o s i s in t h e ir f a m il y' s b e s t in t e r e s t . S o m e ti m e s n o t …

T h e s e in t e r vi ew s of t e n h el p m it ig a t e t he c a s e i f n o t g e t it d is m is s e d al t o ge t h e r.

VOIR DIRE

Freakonomics.com

Daniel W. McKay & Assc, PLLC

What to expect from a Fact Investigator“The rest of the story” E x po s e d e t ai ls of t h e c a s e fo r p r e s e n t at i o n i n pr o c ee d i n g s Id e nt i fy c r ed i bl e wi t n es s e s E x po s e f ra u du l en t w it n e s s e s w it h u lt e r io r m o t i ve s L ay o u t d e t a ile d e xp l a n a t io n o f w h a t t o ex p ec t f r om ea c h w it n e s s du r i n g t e s t im ony E x po s e c r ed i b le an d r e le va n t e vi d en c e n o t p r e vi ou s ly r e le a s e d b y p r o s e c u t i on He l p f a c i lit a t e m it i g a t i on i s s ue s F r e e u p yo u r t im e f o r ot h e r a c t iv it i e s

Fineartamerica.com

Texas Criminal Defense Lawyers Association

Prairie Pup Nuts N’ Bolts Co-Sponsored with LCDLA January 5, 2022

Topic: LPDO Speaker:

Philip Wischkaemper 1401 Crickets Ave Lubbock, TX 79401 (806) 749-0007 Phone (806) 438-0437 Mobile (806) 749-0009 Fax pwischkaemper@lpdo.org email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

“It’s About the Client” You do it because you have to, not because you want to.

What We Expect From Every Panel Attorney • • • • • • • •

Contact Client Immediately Treat Client With Respect Get Releases Signed Check for Conflicts Visit or Correspond Regularly Evaluate Client’s Communications Skills Get Discovery Research The Law

What We Expect From Every Panel Attorney (Cont.)

• • • • • • • •

Review and Analyze Discovery Investigate the Case Investigate the Cops File Necessary Motions Litigate Necessary Motions When Appropriate, Be Aggressive Perfect the Record Bill Accurately

11 things I have learned in 30 years of practice • We don’t have a justice system, we have a legal system.

• 99 times out of 100, your client will have some unfortunate familiarity of the facts of the alleged offense.

• If you follow an ugly kid home from school, you’re gonna find ugly parents.

• If you have a female client with a name that sounds like it belongs in a weather report, e.g. Windy, Sandy, Stormy, Dusty or Sunny, she probably has some passing familiarity with meth and a pole.

11 Things…..

• Never piss off the petty functionaries at the Courthouse.

• Be creative in plea bargaining. You may not get the dismissal, apology and a free toaster you ask for, but you won’t get anything you don’t ask for.

• Play for the fumble.

• It is not advisable to try to maintain your calm in a crisis by not knowing all of the facts.

11 Things…..

• An expert was someone who was not there, but for a fee, will gladly tell you what it was like.

• Being a criminal defense lawyer is like being an oncologist.

• No battle plan ever survives first contact with the enemy.

2021–2022 TCDLA Committee Expression of Interest TCDLA is seeking enthusiastic and motivated individuals for upcoming openings to its 2021–2022 committees. Committee descriptions and mission statements are listed on the website. Complete the form below and check one or more of the committees that you would be interested in serving on.

Responsibilities of a TCDLA Committee Member: 1. Member of TCDLA. 2. Committees will provide advice, guidance and recommendations to the TCDLA President and/or Board of Directors on relevant matters related to their particular committee.

3. Committees will have assigned responsibilities associated with TCDLA’s strategic plan and objectives.

4. Meet throughout the year via conference call and/or at quarterly board meetings.

5. Members are expected to review and respond to email requests in a timely fashion.

6. Committee Chairs are expected to prepare a written report for inclusion in the board packets for each board meeting. Any items requiring a decision of the Board should be included on agenda.

Committee members will assist chairs in the preparation of reports.

Your information Last name

First name

Law school

Years in practice

Primary areas of practice

Contact information Work phone

Cell phone

Email

Committee preference: Select up to three committees. Place a “1” next to your first choice, followed by “2”and “3,” if desired. ❏ Amicus (Brief) Curiae ❏ Bylaws ❏ Cannabis ❏ Capital Assistance ❏ Client Mental Health ❏ Corrections & Parole ❏ Diversity & Inclusion ❏ DWI Resource ❏ Ethics ❏ Indigent Client Defense

❏ Judicial Conduct ❏ Juvenile ❏ Law School Students ❏ Listserve ❏ Long-Range Planning ❏ Media Relations ❏ Membership ❏ Memo Bank ❏ New Lawyers ❏ Prosecutorial Conduct

❏ Public Defender ❏ Rural Practice ❏ Strike Force ❏ Technology & Communications ❏ Veterans Assistance ❏ Women’s Caucus ❏ Wellness

Email this completed form with a brief resume. Form may include a personal statement describing your interest in serving on the committee to ksteen@tcdla.com no later than July 1, 2021.

TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA

OUR HISTORY

Since 1971, Texas Criminal Defense Lawyers Association has provided a statewide forum for criminal defense lawyers. TCDLA is the only voice in the legislature interested in basic fairness in criminal cases.

From its beginning as a small association of 260 members, to today with a full staff, officers, board members and more than 2,500 members, TCDLA has played an important role among criminal defense lawyers, providing assistance, support and continuing education.

TCDLA has developed a number of affiliations over the last few years which provided a presence and eagerness to help criminal defense lawyers across the state of Texas.

TCDLA continues to foster these relationships and develop additional affiliations.

As part of this association you share a voice with 2,500 like mind individuals in more than 150 counties across the state.

The Texas Criminal Defense Lawyers Association strives to protect and ensure by rule of law those individual rights guaranteed by the Texas and Federal Constitutions in criminal cases; to resist the constant efforts which are being made to curtail these rights; to encourage cooperation between lawyers engaged in the furtherance of these objectives through educational programs and other assistance; and through this cooperation, education and assistance, to promote justice and the common good.

The Criminal Defense Lawyers Project strives to improve the competency of defense lawyers through designing and promoting a series of continuing legal education seminars and producing legal publications available at low cost to attorneys throughout the state.

The Texas Criminal Defense Lawyers Educational Institute is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staffs.

For more information about the association, or to learn about upcoming CLE seminars and events, please visit www.tcdla.com.

WWW.TCDLA.COM

TEXAS INDIGENT DEFENSE COMMISSION – ATTORNEY CASELOAD REPORTING & WEIGHTED CASELOAD STUDY HB 1318 was the most significant bill related to indigent defense passed by the 83rd Texas Legislature. It includes significant new reporting requirements related to caseloads handled by attorneys providing representation to indigent defendants. Commission staff met with a variety of stakeholders, including court and county officials, criminal defense practitioners, legislative staff, national authorities, and others to find ways to effectively implement HB 1318 in a seamless manner while providing meaningful information to policymakers.

New Attorney Reporting – HB 1318 included the following provision in Article 26.04, Code of Criminal Procedure: An attorney appointed under this article shall: … not later than October 15 of each year and on a form prescribed by the Texas Indigent Defense Commission, submit to the county information, for the preceding fiscal year, that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in the county under this article and Title 3, Family Code.

Beginning October 15, 2014, the bill requires all attorneys handling indigent defense cases to annually report to the county for the preceding fiscal year (October 1st - September 30th) the percentage of the attorney's practice time that was dedicated to appointed 1) criminal cases (trial and appeals) and 2) juvenile work (trial and appeals) in the county. This report should not include work on other types of appointed work such as CPS or guardianship cases, nor should it include practice time devoted to federal criminal appointments. Attorneys must submit this report to each county in which they accept appointments.

With significant input from TCDLA leadership, the Commission adopted this form and reporting instructions. The Commission is working with our partners at Texas A&M’s Public Policy Research Institute (PPRI) to create an electronic attorney reporting portal. This will permit attorneys to report their work in all counties at the same time directly to the Commission, with the report viewable by the counties. The judges in each county may specify through their indigent defense plan the method for attorneys to use for submitting their report (online or paper form).

Attorneys are not required to use a particular methodology to complete the practice time report. Some may do so by using time records, if they keep such records. Other attorneys may use a case counting methodology. The reporting form will ask the attorney to note what method(s) they used to calculate the percentage figures reported.

The Commission is working with TCDLA to develop a worksheet(s) that attorneys may use to help calculate the practice time percentages. The worksheet will help an attorney allocate their practice time among various case types and counties. Use of the worksheet is strictly voluntary and will not be submitted to the county or Commission.

Penalties for failing to submit a required practice time report by the October 15th due date may be prescribed by the judges handling criminal or juvenile cases in each county. Many judges have already chosen to amend their indigent defense plans to provide for an attorney’s removal from the list of attorneys eligible to receive future court appointments until they complete the report. This is similar to current enforcement of the annual CLE requirements.

Please review your local plan available at: http://tidc.tamu.edu/public.net/Reports/IDPlanNarrative.aspx

New County Reporting of Attorney Caseloads – HB 1318 included the following provision in Section 79.036, Government Code: Not later than November 1 of each year and in the form and manner prescribed by the commission, each county shall prepare and provide to the commission information that describes for the preceding fiscal year the number of appointments under Article 26.04, Code of Criminal Procedure, and Title 3, Family Code, made to each attorney accepting appointments in the county, and information provided to the county by those attorneys under Article 26.04(j)(4), Code of Criminal Procedure.

In addition to the attorney reporting requirements above, starting November 1, 2014 the bill requires each county to submit to the Commission annually the information provided to the county by the attorneys described above, along with information that describes for the preceding fiscal year the number of appointments made to each attorney accepting appointments in the county.

As to the new county reporting of case and fee data by attorney, the Commission decided based on its consultation with stakeholders to build on the existing reporting infrastructure in the annual Indigent Defense Expenditure Report (IDER). The IDER already requires county auditors (or treasurers) to report the aggregate number of cases paid by case type (Juvenile, Capital Murder, Adult Felony, Adult Misdemeanor, Juvenile Appeals, Felony Appeals, and Misdemeanor Appeals) and by court along with the amount paid each year by November 1st (the same date as the new reporting requirement). The new report will require this information to be broken down by attorney. County auditors have indicated that they already collect this information as part of the attorney payment process.

Weighted Caseload Study – HB 1318 included the following provision: Not later than January 1, 2015, the Texas Indigent Defense Commission shall conduct and publish a study for the purpose of determining guidelines for establishing a maximum allowable caseload for a criminal defense attorney that, when the attorney's total caseload, including appointments made under Article 26.04, Code of Criminal Procedure, appointments made under Title 3, Family Code, and other work, is considered, allows the attorney to give each indigent defendant the time and effort necessary to ensure effective representation. The study must be based on relevant policies, performance guidelines, and best practices. In conducting the study … the commission shall consult with criminal defense attorneys, criminal defense attorney associations, the judiciary, and any other organization engaged in the development of criminal indigent defense policy that the commission considers appropriate.

The goal is to provide policymakers with an objective analysis of the time required to represent different types of court-appointed cases. This kind of study has not been done in Texas before, but jurisdictions around the country have undertaken similar research because they have recognized the value of understanding data and its power to help improve their justice systems. The Commission is working with PPRI to conduct the weighted caseload study.

Attorneys have been recruited to document and categorize their time spent on cases for twelve weeks using simple timekeeping software developed by JusticeWorks. At the conclusion of the data collection phase, a panel of experts will review the time data together with survey data and make recommendations regarding the time demands of various types of cases.

While this study will not be the last word on indigent defense needs in Texas, it will be an evidence informed starting point to demonstrate what is necessary to provide appropriate representation in various types of cases.

The information learned through the study may serve as a management tool to guide decision making for public defenders and managed assigned counsel systems. For assigned counsel systems, the study will provide objective information to the courts about the resources different types of cases typically demand. This study will also provide policymakers at the state and local level with objective information upon which to base funding decisions.

To learn more about this research please visit the study website at http://texaswcl.tamu.edu.

WWW.TIDC.TEXAS.GOV

MARCH 2014

WWW.TCDLA.COM

Texas Criminal Defense Lawyers Educational Institute Make a Difference Support an Attorney The Texas Criminal Defense Lawyers Education Institute (TCDLEI) is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staff. Your generous tax-deductible contribution to the Texas Criminal Defense Lawyers Educational Institute can be applied in several ways to fund a variety of legal and educational services for our membership.

Deserving members without the wherewithal to attend our seminars can get financial aid to help in their continuing legal education.

Pledge Options Choose a fund that’s near and dear to you: For the q ASSOCIATE FELLOWS FUND ($750)

q FELLOWS FUND ($1500) q SUPER FELLOWS FUND ($3000)

q In one lump sum q Quarterly q Monthly q In ____ payments of $________.

I would like to designate this donation for use on these specific funds: q

CHARLES BUTTS Law Student Scholarship in the amount of $_________

q

Financial CLE SCHOLARSHIPS $___________

q

For the COMANCHE CLUB in the amount of $_________ q For CHRISTINE S. CHENG MEMORIAL Asian-American Scholarship & Travel fund in the amount of $___________

q BERTHA MARTINEZ TRIAL COLLEGE Travel Scholarship in the amount of $___________ q KELLY PACE MEMORIAL NEW LAWYER TRAVEL FUND in the amount of $___________ q CLIFTON "SCRAPPY" HOLMES MEMORIAL INDIGENT DEFENSE SCHOLARSHIP FUND in the amount of $___________

Contact Information _________________________________________________________________ Name

__________________________________________________________________ Bar Card Number/Date

_________________________________________________________________ Street

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__________________________________________________________________ Email

Payment Method q Check payable to TCDLEI

q Credit Card (Visa, Mastercard, Amex, or Discover)

_________________________________________________________________ Credit Card Number

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__________________________________________________________________ Signature

Mail completed pledge form with payment to TCDLA • 6808 Hill Meadow Drive • Austin, Texas 78736 TCDLA Office Use Only Amount:_____________________________ Check/cc: _______________________________ Entered By: _____________________________ Date: __________________________

You can also return by email to mrendon@tcdla.com or fax to 512.469.9107.

Texas Criminal Defense Lawyers Association Membership Application (Effective 4/2019)

Contact Information Your membership is effective upon approval of application and receipt of annual membership dues. q Mr. q Ms. q Mrs.

______________________________________________________

__________________________ __________________________

______________________________________________________

______________________________________________________

Name (first, middle, last) Address

Date of Birth*

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City, State, Zip

___________________________ ___________________________ ___________________________ ___________________________ County

Phone

Cell phone

Fax

_____________________________________ ____________________________________ ____________________________________ Business Email Website

______________________________________________________ Bar Card Number/Date Licensed

______________________________________________________ Member of Local Bar

New-Member Endorsement (must be completed for new members) As a current member of TCDLA, I believe this applicant to be a person of professional competency, integrity and good moral character.

______________________________________________________ Printed Name of Endorser

______________________________________________________ Signature of Endorser

* These questions are optional and for internal statistics only. The information provided will not be distributed at any time.

Membership Fees Membership Category and Yearly Fees: $_______ $100 First-time ($100 for each of the first two years) $_______ $180 Regular member $_______ $60 Public defender (must be a PD employee) $_______ $330 Voluntary sustaining (required for TCDLA officers and directors) $_______ $100 TCDLA past president $_______ $80 Distinguished member (70+ years old) $_______ $20 Law student (not auto-renew) $_______ $80 Affiliate (: q Paralegal q Investigator q Expert q Other (law professors & others

approved by board) I prefer not to participate in auto-renewal

$_______ Total

Get Involved: Committees/Lawyer Locator q I’m interested in serving on a committee—send information. q Send me a Board application. q Yes! Include me in the online Lawyer Locator.** You may list up to three areas of specialty in criminal defense law for public access (example: DWI, sexual assault, appeals).

_________________ __________________ ________________

**Disclaimer: Provider makes no promises, guarantees, or warranties regarding the attorneys listed on its Lawyer Locator. Said attorneys are TCDLA members who have requested inclusion on provider’s website to provide the public with choices for possible legal services. Provider expressly disclaims all warranties, including the warranties of merchantability, fitness for a particular purpose, and non-infringement. Moreover, content contained on or made available through this website is not intended to and does not constitute legal advice, and no attorney-client relationship is formed. The accuracy, completeness, adequacy, or currency of the content is not warranted or guaranteed. Your use of information on the website or materials linked from the website is at your own risk.

q I would like to donate to the TCDLEI scholarship fund, 501(c)(3) organization, in the amount of $__________________________________.

Payment Method For your convenience, TCDLA uses AUTO RENEWAL for all membership dues, using your checking account or credit card. You will be automatically enrolled in the autorenewal program so you do not have to do anything while continuing to enjoy membership benefits every year! You can always opt out of auto-renewal anytime by simply contacting TCDLA by emailing mrendon@tcdla.com or by checking the opt-out option above.

As the account holder at the financial institution I have designated for Automatic Draft, I authorize TCDLA to automatically draft the account I have designated and I authorize my financial institution to debit my payments automatically from the Draft Account on the date the payment is due. I further understand and agree as follows: • This authorization will remain in effect until TCDLA receives a written notification of cancellation at least 10 business days in advance of the next payment due date.

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Tax Notice: $36 of your annual dues ($19 if a student member) is for a one-year subscription to the Voice for the Defense. Dues to TCDLA are not deductible as a charitable contribution but may be deducted as an ordinary business expense. The non-deductible portion of regular and initial membership dues is $39 in accordance with IRC sec. 6033.

Information will be used for TCDLA communication (legislative, SDRs, seminars, events, and other announcements related to criminal defense). Contact office to opt out. For refunds please note credit cards may take 2-5 business days, checks may take longer. Contact mrendon@tcdla.com for any questions or concerns.

2021–2022 TCDLA Committee Expression of Interest TCDLA is seeking enthusiastic and motivated individuals for upcoming openings to its 2021–2022 committees. Committee descriptions and mission statements are listed on the website. Complete the form below and check one or more of the committees that you would be interested in serving on.

Responsibilities of a TCDLA Committee Member: 1. Member of TCDLA. 2. Committees will provide advice, guidance and recommendations to the TCDLA President and/or Board of Directors on relevant matters related to their particular committee.

3. Committees will have assigned responsibilities associated with TCDLA’s strategic plan and objectives.

4. Meet throughout the year via conference call and/or at quarterly board meetings.

5. Members are expected to review and respond to email requests in a timely fashion.

6. Committee Chairs are expected to prepare a written report for inclusion in the board packets for each board meeting. Any items requiring a decision of the Board should be included on agenda.

Committee members will assist chairs in the preparation of reports.

Your information Last name

First name

Law school

Years in practice

Primary areas of practice

Contact information Work phone

Cell phone

Email

Committee preference: Select up to three committees. Place a “1” next to your first choice, followed by “2”and “3,” if desired. ❏ Amicus (Brief) Curiae ❏ Bylaws ❏ Cannabis ❏ Capital Assistance ❏ Client Mental Health ❏ Corrections & Parole ❏ Diversity & Inclusion ❏ DWI Resource ❏ Ethics ❏ Indigent Client Defense

❏ Judicial Conduct ❏ Juvenile ❏ Law School Students ❏ Listserve ❏ Long-Range Planning ❏ Media Relations ❏ Membership ❏ Memo Bank ❏ New Lawyers ❏ Prosecutorial Conduct

❏ Public Defender ❏ Rural Practice ❏ Strike Force ❏ Technology & Communications ❏ Veterans Assistance ❏ Women’s Caucus ❏ Wellness

Email this completed form with a brief resume. Form may include a personal statement describing your interest in serving on the committee to ksteen@tcdla.com no later than July 1, 2021.