Getting Game Day Ready in Edinburg

Edinburg, TX November 17, 2021

CDLP Chair:

Adam Kobs - San Antonio

CDLP Vice Chair:

Monique Sparks - Houston

GAME DAY! HOW TO TACKLE ANY COURTROOM SITUATION SEMINAR INFORMATION Date Location Course Director Total CLE Hours

November 17, 2021 Edinburg, Texas | Echo Hotel Conference Center 1903 South Closner Blvd. Edinburg, TX Lawrence Esparza and Monique Sparks 6.0 Ethics: 1.0

Wednesday, November 17, 2021 Time

CLE

Daily CLE Hours: 6.0 Ethics: 1.0

Topic

Speaker

7:45 am

Registration and Continental Breakfast

8:15 am

Opening Remarks

Lawrence Esparza and Monique Sparks

8:30 am

1.0

Kick-Off & Red Zone | Opening & Closing Arguments

Joseph Esparza

9:30 am

.75

Scouting | Voir Dire

Jessica Canter

10:15 am 10:30 am

Break .75

11:15 am 11:30 pm

Amanda Hernandez

Lunch Line 1.0

12:30 pm 12:45 pm

Scrimmaging | Pre-Trial Investigations

Lunch Presentation: Keep Your Head in Game | Mental Health

David Ryan

Break .75

1:30 pm

Instant Replay | Technology in the Courtroom

Monique Sparks

Break

1:45 pm

.75

Special Teams | Experts & Witnesses

Sarah Roland

2:30 pm

1.0

Rules of the Game/Penalties | Client Relationships & Communications

Dustin Nimz

3:30 pm

Ethics

Adjourn

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

Texas Criminal Defense Lawyers Association

Game Day! How to Tackle Any Courtroom Situation Table of Contents

-Speaker

Topic November 17, 2021

Joseph Esparza Jessica Canter Amanda Hernandez David Ryan Monique Sparks Sarah Roland Dustin Nimz

Kick-Off & Red Zone | Open and Closing Arguments Scouting | Voir Dire Scrimmaging | Pre-Trial Investigations Lunch Presentation: Keep Your Head in Game | Mental Health Instant Replay | Technology in the Courtroom Special Teams | Experts & Witnesses Rules of the Game/Penalties | Client Relationships & Communications

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

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation November 17, 2021 Echo Hotel Conference Center 1903 South Closner Blvd.

Edinburg, TX 78539

Topic: Kick-Off & Red Zone | Open & Closing Arguments

Speaker:

Joseph Esparza 1524 N Alamo St San Antonio, TX 78215-1205 (210) 354-1919 phone (210) 354-1920 fax josephesparzalaw@gmail.com www.txmilitarylaw.com

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

GETTING GAME DAY READY: OPENING STATEMENT AND CLOSING ARGUMENT

JOSEPH A. ESPARZA GROSS & ESPARZA, P.L.L.C. 1524 N. ALAMO ST. SAN ANTONIO, TEXAS 78215 (210) 354-1919 / tel josephesparzalaw@gmail.com www.txmilitarylaw.com

GETTING GAME DAY READY TEXAS CRIMINAL DEFENSE LAWYER’S ASSOCIATION COLLEGE STATION, TEXAS OCTOBER 29, 2021

This article in the Code gives limitations to the opening statement for a defendant. The defense opening statement is limited to “[t]he nature of the defenses relied upon and the facts expected to be proved in their support shall be stated by defendant’s counsel...The testimony on the part of the defendant shall be offered...”

See Tex. Code Crim. Proc. art.

36.01(a)[Remainder omitted].

OPENING STATEMENT AND CLOSING ARGUMENT (KICK OFF TO END ZONE) OPENING STATEMENT THE LAW GENERALLY: (THE RULES OF THE GAME) I.

The Code of Criminal Procedure This right to an opening statement may be waived absent a timely request to make an opening statement. Robles v.

State, 104 S.W.3d 649, 652 (Tex. App. – Houston [1st Dist.] 2003, no pet.). It can be reversible error for a trial court to deny a defendant the right to make an opening statement if a timely request was made.

See Norton v. State, 564 S.W.2d 714, 718 (Tex. Crim. App. 1978); Twine v. State, 929 S.W.2d 685, 686 (Tex. App. – Eastland 1996, pet. dism’d.

Article 36.01, Order of Proceeding in Trial, states, “(a): (1) - (8) omitted; (b) The defendant’s counsel may make the opening statement for the defendant immediately after the attorney representing the State makes the opening statement for the State. After the defendant’s attorney concludes the defendant’s opening statement, the State’s testimony shall be offered....[Remainder omitted].”

The reading of the indictment by the prosecutor does not constitute an opening statement. Parra v. State, 935 S.W.2d 862 (Tex. App. — Texarkana 1996, no pet.).

Article 36.01 allows a defendant to make their opening statement prior to presentation of the State’s case only when the State first makes one. See Penry v.

State, 903 S.W.2d 715, 760 (Tex. Crim.

App. 1985); also Sanders v. State, 688 S.W.2d 676, 678 (Tex. App. – Dallas 1985, pet. ref’d). A defendant is not entitled to make an opening statement before the introduction of the State’s evidence unless the prosecution has made an opening statement. Boston v. State, 871 S.W.2d 752 (Tex. Crim. App. 1994).

The defense opening statement may be made immediately after the State’s opening statement. See Love v. State, 69 S.W.3d 678 (Tex. App. – Texarkana 2002, pet. ref’d). OR If the State has not made an opening statement, the defendant is entitled to make an opening statement upon the conclusion of the State’s evidence. Moore v. State, 868 S.W.2d 787 (Tex. Crim. App. 1993).

1

The defendant has no right to make an opening where he will present no witnesses or evidence and is merely arguing he is relying on his plea of Not Guilty. Donnell v. State, 191 S.W.3d 864 (Tex. App. – Waco 2006, no pet.).

waiting for rebuttal. See Bass v. State, 270 S.W.3d 557 (Tex. Crim. App, 2008)(deciding that Defense opened the door to presentation of extraneous offenses).

As the Court in Bass noted, “Our case law supports a decision that a defense opening statement, like that made in this case, opens the door to the admission of extraneous-offense evidence, like that admitted in this case, to rebut the defensive theory presented in the defense opening statement. See Powell v. State, 63 S.W.3d 435, 438-40 (Tex. Crim. App. 2001) (in prosecution for indecency with a child, defendant's opening statement that he lacked opportunity to molest the complainant under the circumstances of the charged offense opened the door to admission of extraneous-offense evidence that defendant molested others under almost identical circumstances to rebut defendant's lack of opportunity defensive theory); see also Daggett v. State, 187 S.W.3d 444, 453-54 (Tex. Crim. App. 2005) (in prosecution for sexual assault of child under seventeen, defendant's sweeping direct-examination testimony disavowing any sexual misconduct with minors opened the door to admission of extraneous-offense evidence of defendant's sexual misconduct with another minor to rebut this sweeping testimony). This case law makes no categorical distinctions between fabrication defenses and frame-up or retaliation defenses.” Id. at 563.

The requirements of Chapter 36, CCP, do not apply to punishment proceedings. Penry v. State, 903 S.W.2d 715 (Tex. Crim. App. 1995); Love v.

State, supra. A trial court does not err if it does not allow opening statements in the punishment phase because Art. 37.07 makes no provision for opening statements in punishment. Id. WARNING: BE VERY CAREFUL You can open the door to rebuttal evidence in opening statements if you’re not careful.

Consider your trial strategy carefully before you give an opening that allows in evidence you’d rather the keep out!

This is especially true when defending sexual assault or child sex cases.

As the Court of Criminal Appeals has made clear on many occasions.

When the defense chooses to make an opening statement immediately after the State’s opening, the State may reasonably rely on this defense statement as to what evidence the defense intends to present and rebut this anticipated defense evidence during its case in chief as opposed to

***

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13.

TIPS FOR AN EFFECTIVE OPENING STATEMENT: 1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

TELL A STORY. Have a theme that is simple and clear. Should last no longer than necessary to keep the jury’s attention. It should not be so long as you run afoul of any allotted time set by the court.

Be sincere and respectful to the trial court, jury, to everyone in court.

Don’t try to be the smartest person in the room, don’t talk down to the jury or use “legalese” if you can avoid it.

Get your point across early in the case to counter the government’s theme.

A memorable theme can help the jury understand and view the evidence in a defense-friendly light. For all themes, K.I.S.S. (Keep It Simple, Stupid) Find a way to connect with the jury allowing them to identify with your client as you tell his/her story.

Don’t thank the jurors or make lengthy introductions or talk about the purpose of the opening statement Consider losing gender specific references should any find it offensive such as “Ladies and Gentlemen of the jury.” It’s a little old-fashioned and you may annoy some with these labels.

Should you use pronouns or not?

Should you waive your opening statement or not? (I wouldn’t) Don’t hide bad facts, get in front and explain them away best you can, but don’t hide from them You can cover the evidence, testimony, matters expected to be admitted into evidence so long as you there is a good faith basis to support it in OS.

14.

15.

Don’t have to say repeatedly “The evidence will show” in your opening statement although we have been taught to do so. If you absolutely need to say it, say it a couple of times and be done with it. It’s not a mantra.

Always humanize your client. Always refer to your client by her first name, or her last name, such as Ms. Jones.

Make sure that your theme for your OS is the same theme for your closing argument. The two should be consistent and not at odds.

Can you appeal opening statement error?

Yes, but whether the refusal to allow the defense to make an opening statement is reversible error is decided by applying harm analysis under Rule 44.2(b) of the Texas Rules of Appellate Procedure, which states that any non-constitutional error that does not effect a substantial right must be disregarded. See Espinoza v.

State, 29 S.W.3d 257 (Tex. App. – Houston [14th Dist.] 2000, pet. ref’d).

The purpose of opening is to communicate your theory of the case in order to help the jury evaluate the evidence. Fisher v. State, 220 S.W.3d 599 (Tex. App. – Texarkana 2007, no pet.).

The character and extent of opening statements is subject to the trial court’s discretion. See Donnell, supra.

Regarding opening, a trial court abuses its discretion only if its ruling falls outside zone of reasonable disagreement.

Id. 3

When a defendant makes a timely request to make an opening statement and is denied one by the Court, he has preserved error. Arriaga v. State, 804 S.W.2d 271 (Tex. App. – San Antonio 1991, pet. ref’d). This error is not waived if the defendant does not make an opening statement at the conclusion of the State’s evidence before the beginning of its own case in chief. Id. BE WARNED: If you have preserved error and you decide to given an opening statement at the conclusion of the State’s case, you could waive the error by making a defense opening before the defense case in chief.

See Twine v. State, 929 S.W.2d 685(Tex. App. – Eastland 1996, pet. dism’d as improvidently granted).

THE END ZONE CLOSING ARGUMENT THE LAW GENERALLY: I.

The Code of Criminal Procedure Article 36.07, Order of Argument,

states, “The order of argument may be regulated by the presiding judge, but the State’s counsel shall have the right to make the concluding address to the jury.”

This article (36.07) applies to noncapital and capital cases. See Masterson v.

State, 155 S.W.3d 167, 175 (Tex. Crim.

App. 2005). The trial court has broad discretion regarding order of argument, and the court assumes the legislature meant there to be an implicit right to closing argument since they presented the order in which it is to be done. See Dang v. State, 154 S.W.3d 616, 620 (Tex. Crim.

App. 2005).

***

Article 36.08, Arguments, states,

Number

of

“The court shall never restrict the argument in felony cases to a number of addresses less than two on each side.”

The Court of Criminal Appeals has held that, despite the seemingly mandatory language of this statute, the trial court has 4

discretion about whether to allow a defendant to present two arguments when he is represented by only one attorney. See Varela v. State, 561 S.W.2d 186, 192 (Tex. Crim. App. 1978); Pryor v. State, 449 S.W.2d 482, 485 (Tex. Crim. App. 1969).

Article 36.13, Jury is Judge of Facts, states in part, “Unless otherwise provided in this Code, the jury is the exclusive judge of the facts, but it is bound to receive the law from the court and be governed thereby.”

Even if an accused has more than one attorney, “[a]rticle 36.08 ... does not give the accused the right to rebut the closing argument of the State.” See Varela, supra at 192. Texas courts have always rejected contentions that an appellant was denied the opportunity to rebut the State's closing argument. See, e.g., Martinez v.

State, 501 S.W.2d 130, 132 (Tex. Crim.

App. 1973); Rankin v. State, 872 S.W.2d 279, 286 (Tex. App.– Houston [14th Dist.]

1994), rev’d on other grounds, 974 S.W.2d 707 (Tex. Crim. App. 1998).

Article 36.14, Charge of Court, states in part, “Subject to the provisions of Article 36.07 in each felony case and in each misdemeanor case tried in a court of record, the judge shall, before the argument begins, deliver to the jury, except in pleas of guilty, where a jury has been waived, a written charge distinctly setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury. Before said charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same...” [Remainder omitted, emphasis added]

Article 36.08 affords a defendant the right to address the jury twice in argument. See Burnett v. State, 959 S.W.2d 652, 660 (Tex. App. – Houston [1st Dist.] 1997, pet. ref'd).

When read together with article 36.07's requirement that the State shall always present the final argument, appellate courts have concluded that article 36.08 requires a trial court to permit a defendant represented by more than one attorney to address the jury at least twice before the State presents its concluding argument. See Medford v. State, 13 S.W.3d 769, 773 (Tex. Crim. App. 2000) (statutes in pari materia must be construed to give effect to both if possible)[Emphasis added].

II.

Permissible areas of argument

The law provides for, and presumes a fair trial, free from improper argument by the prosecuting attorney. Borjan v.State, 787 S.W.2d 53, 56 (Tex. Crim.

App. 1990).

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The Texas Court of Criminal Appeals has long held that there are four proper areas of permissible argument:

and legitimate and offered in good faith.

Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997). However, argument stating law contrary to the court's charge is improper. Error in jury argument does not lie in going beyond the court's charge, but in stating law contrary to the same. State v. Renteria, 977 S.W.2d 606 (Tex. Crim.

App. 1998).

(1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to an argument of opposing counsel, and (4) plea for law enforcement.

Either side may make arguments that are reasonable deductions from the evidence.

Lucero v. State, 246 S.W.3d 86 (Tex. Crim. App. 2008).

See Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App.1999). Known originally as the Alejandro factors, they have been followed since the 1970's.

In summarizing and analyzing the evidence, an attorney has the right to explain evidentiary problems, issues, and circumstances in the case. Pittman v. State, 9 S.W.3d 432 (Tex. App. — Houston [14th Dist.] 1999, no pet.).

As the Court of Criminal Appeals has stated, “It is the duty of trial counsel to confine their arguments to the record; reference to facts that are neither in evidence nor inferable from the evidence is therefore improper.” Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973). Thus, proper jury argument generally falls within one of four general areas...Arguments that go beyond these areas too often place before the jury unsworn, and most times believable, testimony of the attorney.” See Alejandro, supra, at 231. Consequently, error exists when facts not supported by the record are interjected in the argument, but such error is not reversible unless, in light of the record, the argument is extreme or manifestly improper. Allridge v. State, 762 S.W.2d 146, 155 (Tex. Crim. App. 1988).

Wide latitude is afforded counsel in jury argument as long as the argument is supported by the evidence and good faith.

Jimenez v. State, 240 S.W.3d 384 (Tex. App. — Austin 2007, pet. ref’d).

An attorney can argue matters of common knowledge without express support in the evidence. See Wright v. State, 178 S.W.3d 905 (Tex. App. — Houston [14th Dist.]

2005, pet. ref’d)(prosecutor argued that parents love their children) A prosecutor is allowed to accurately restate the law contained in the court’s charge. Taylor v. State, 233 S.W.3d 356 (Tex. Crim. App. 2007). A prosecutor can comment on the failure on the defendant’s

In making jury argument, counsel may draw all reasonable inferences from the facts in evidence that are reasonable, fair, 6

part to call certain witnesses. Bible v.

State, 162 S.W.3d 234 (Tex. Crim. App. 2005)(failure to produce documents/ sponsoring witnesses in capital punishment phase).

the certainty of conviction absent the misconduct. See Martinez, supra, at 692-93; also Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).

Jury argument made in response to opposing counsel’s argument is proper.

Cole v. State, 194 S.W.3d 538 (Tex. App. — Houston [1st Dist.] 2006, pet. ref’d).

III.

Prohibited Arguments, a.k.a., What should I object to?

A.

Can’t Go Outside the Record

Usually any harm resulting from an improper jury argument by the prosecutor is obviated when the objection to the instruction is sustained and the jury instructed to disregard the argument.

DeBolt v. State, 604 S.W.2d 164, 170 (Tex. Crim. App. 1980). An instruction to disregard will generally cure error if a prosecutor mentions facts outside the record. See Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009). An improper argument constitutes reversible error when in light of the record as a whole it was extreme or manifestly improper, violative of a mandatory statute, or injected new facts harmful to the accused into the trial proceedings. Borjan, supra, at 56-57.

•

It is error to argue outside the record where the argument injects new and harmful facts. Baker v.

State, 177 S.W.3d 113 (Tex. App. — Houston [1st Dist.] 2005, no pet.)(prosecutor argued that officer followed standards that were not part of the record).

•

Injecting new facts that imply to the jury that the Defendant has been involved in criminal proceedings as a juvenile and emphasizing that the prosecution can only show in evidence adult convictions is error.

See Parson v. State, 652 S.W.2d 616 (Tex. App. — Dallas 1983, no pet.).

Improper-argument error can be non-constitutional error, which is error “that does not affect substantial rights and must be disregarded.” Tex. R. App. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692-93 (Tex. Crim. App. 2000). To determine whether substantial rights were affected, the appellate courts balance the severity of the misconduct/prejudicial effect, any curative measures taken, and

•

Comparing a defendant or his actions to those of a notorious criminal is considered improper injection of facts not in the record and harmful to the defendant.

Gonzalez v. State, 115 S.W.3d 278 (Tex. App. — Corpus Christi 2003, pet. ref’d)(prosecutor compared the defendant to Osama bin Laden).

7

•

Racially prejudicial remarks or appeals to racial prejudice are harmful and are error. Bryant v.

State, 25 S.W.3d 924 (Tex. App. — Austin 2000, pet. ref’d).

•

Incorrect explanations of the law inject new and improper material into trial and are thus improper.

Arnold v. State, 234 S.W.3d 664 (Tex. App. — Houston [14th Dist.]

2007, no pet.).

•

•

his case. In re JBC, 233 S.W.3d 88 (Tex. App. – Fort Worth 2007, rev. denied)(prosecutor argued that “we have the best darn circumstantial case that I’ve ever seen.” Improper argument cured by instruction in this case though.)

Improper for prosecutor to argue to jury that defendant was responsible for crimes outside the indictment and to convict him on that basis.

Melton v. State, 713 S.W.2d 107 (Tex. Crim. App. 1986).

Improper to use hypotheticals or rhetorical questions to imply that other evidence exists which was not admitted into the record and inviting the jury to speculate on what that evidence may be.

See Berryhill v. State, 501 S.W.2d 86 (Tex. Crim. App. 1973) (“Logical deductions from evidence do not permit within the rule logical deductions from non-evidence;” prosecutor argued denials from defendant’s CX and invited jury to speculate as to what else defendant may have done).

B.

Personal Opinion of Attorney

•

Improper for prosecutor to inject personal opinion as to strength of 8

•

Improper for prosecutor to attach personal belief to credibility of witness, because it bolsters the witness with unsworn testimony.

See Lange v. State, 57 S.W.3d 458 (Tex. App. — Amarillo 2001, pet. ref’d).

•

Improper for prosecutor to state their opinion as to truthfulness of witness testimony. See Flores v.

State, 778 S.W.2d 526 (Tex. App. — Corpus Christi 1989, no pet.).

•

Improper for prosecutor to convey to jury that they possess specialized knowledge or expertise about contested issue of fact in case. See Jackson v. State, 17 S.W.3d 664, 675 (Tex. Crim. App. 2000).

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Improper for prosecutor to argue they believe the Defendant is guilty. See Villalobos v. State, 568 S.W.2d 134 (Tex. Crim. App. 1978).

•

Improper for prosecutor to argue they don’t introduce evidence unless they believe it to be true.

Robilland v. State, 641 S.W.2d 910 (Tex. Crim. App. 1982).

•

Improper to argue that law enforcement witnesses are entitled to greater belief than Defendant because Defendant interested in an acquittal. See Caka v. State, 302 S.W.2d 939 (Tex. Crim. App. 1957).

D.

Attacking Defense Counsel

•

Improper to make argument that strikes at the defendant over the shoulders of counsel. Dinkins v.

State, 894 S.W.2d 330 (Tex. Crim.

App. 1995).

•

Improper for prosecutor to argue that they would not prosecute defendant unless the State’s witnesses were telling the truth and the defendant was guilty. Hickerson v. State, 286 S.W.2d 437 (Tex. Crim. App. 1956).

•

Unsubstantiated accusations of misconduct directed at defense counsel are manifestly improper because they serve to inflame the minds of the jury to the defendant’s prejudice. Harris v. State, 122 S.W.3d 871 (Tex. App. – Fort Worth 2003, pet. ref’d).

C.

Community Expectations •

Improper to contrast ethical obligations of prosecutors against those of defense counsel in argument. Harris, supra

•

Personal explicit impugning of defense counsel’s character is improper argument. Mosley v.

State, 983 S.W.2d 249 (Tex. Crim.

App. 1998). Improper to argue Defense counsel is a mouthpiece for criminals whereas prosecutor is public servant for the people.

Dykes v. State, 325 S.W.2d 135 (Tex. Crim. App. 1959).

E.

Failure of Defendant to Testify

•

Improper to argue that the only person that knows the motive did not offer one in the trial. Koller v.

State, 518 S.W.2d 373 (Tex. Crim.

App. 1975).

•

•

Improper for prosecutor to argue for a verdict based upon the demands, desires, or expectations of the community. See Harris v.

State, 122 S.W.3d 871 (Tex. App. – Fort Worth 2003, pet. ref’d).

• BUT NOTE: A proper plea for law enforcement may include argument to send a message that violations of the law will be punished.

Wilson v. State, 179 S.W.3d 2 4 0 ( T e x . App. — Texarkana 2005, no pet.)

Improper to argue to jury that the community would want the defendant in prison if the people knew what he had done. White v.

State, 699 S.W.2d 607, 611 (Tex. App. — Dallas 1985).

9

•

Improper to argue that it has not been contested that the Defendant committed the offense. Angel v.

State, 627 S.W.2d 424 (Tex. Crim.

App. 1982)

•

Improper to argue that there has been no explanation for the offenses (if Defendant only one who could explain). See Myers v.

State, 573 S.W.2d 19 (Tex. Crim.

App. 1978).

to them, you begin to confuse and lose the jury. Remember that the jury has been watching and listening to the evidence and they expect you to go over it (even if you’re going to spin it). They want to hear from you and hear why they should vote for your side.

If there is damaging evidence, tell them how they should look at it, why it’s not as damaging as it appears. If you have damaging testimony that the jury will be deliberating on, your closing argument needs to neutralize it or explain it away if possible. You always need to provide the members of the jury with a different way of looking at the evidence, i.e., in a way favorable to the defense. You want to empower the jury so that they will view and argue the evidence back in the jury room the way you want them to. Of course, you will argue the court’s charge as well and emphasize all that is helpful to you in that document.

*** SOME THOUGHTS ON EFFECTIVE CLOSING ARGUMENT Closing argument is supposed to be a persuasive summation of your case or your thoughts on the State’s case. It is literally your last word with your fellow citizens who hold your client’s fate in their hands. Your closing argument should be logical, easy to follow, and persuasive.

Regardless of your theme, you should emphasize it and drive it home here. Not all attorneys do this and one can always tell when the closing argument is from the hip and not from prepared talking points.

Juries can tell when a lawyer is just talking and throwing up words without a structured case — it’s the reason the jurors look confused sometimes. Jurors expect to hear tight, structured closings like they see on TV or in movies. They expect to hear speeches that have passion or perhaps discuss and distill complex concepts into everyday speech. When you don’t give it

Remind them of the presumption of innocence. Don’t cynically assume no one believes in it anymore, these jurors took an oath to follow the law, remind them of the law that helps your case.

From what I’ve seen in my experience (and perhaps yours as well), when the case gets towards the finish line, we find ourselves facing arguably 3 sets of jurors: (1) Jurors who are with us (preaching to the choir),

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(2) Jurors who are against us (Haters gonna hate, the frowners, the ones that won’t meet your eyes), and

movies, and thus evoke a familiar feeling that you as the lawyer are doing everything right.

(3) Jurors who are on the fence (the inquisitive looks, the conflicted ones).

Remember, you are trying to persuade the jury at all times. They have to feel good about going your way, so the more familiar you can make your arguments feel, the more they will “ring true.” Since we’re running with a football metaphor for this CLE, let’s call this a tried and true “play book” with seven (7) plays for you to use to help you advance your team to the end zone for that hard earned victory! _________________________________ Theme/Play 1:

Our job as defense counsel at closing is to keep the ones that are with us, keep the ones currently against us contained, and persuade the ones on the fence that the defense is correct.

To that end, I submit to you that there are a finite number of classic themes (READ: “plays” from a play book) for closing argument that criminal defense lawyers should argue. Rethink your case themes if they sound complex or too long or require too much introspection or drama.

The General Denial, a.k.a., “Everything that guy just said is bullshit. Thank you.”

Bounce your closing argument themes off lay persons in your life, not just other lawyers. Get honest feedback. If you do this, I promise you these classic “plays” will be more successful according to your lay person friends and family (i.e., future jurors). This is because they will be easier to understand for them and they will feel “familiar.” It will be like they’ve already heard these before. And they have, that’s the point of familiarity. That is the strength of your theme or argument. It sounds right, it “makes sense.”

– Vincent LaGuardia Gambini, My Cousin Vinny _________________________________ This is a basic, “bread and butter” theme that, unless done convincingly, is not very interesting, and people/juries will let you persuade them with this theme only if you have actual flaws to argue about the evidence or the elements, as was the case in “My Cousin Vinny.” But you have to give the jury something to hang their hats on! All defense lawyers start with the GD.

These classic themes/plays are good to use because they already make sense to juries and because they mimic what many jurors have seen before on TV or in the

If you are not careful, the general denial can be where good arguments go to die. If all you are arguing is general denial, 11

you’re behind the eight ball, as it were.

Because if you’re here, you didn’t find any other classic theme to fit your facts or case suitably. Maybe your case is not a triable one in your professional judgment and you’re looking at a slow guilty plea with a jury to see you go down in flames. It’s not your fault, some cases are just terrible and you have to try them because your client would not see reason and accept any reasonable offer. We’ve all been there.

You frankly don’t have much to work with if you’re going the general denial route, or do you?

the prosecution case apart in a way that the jury agrees with your views about the case.

General Denial closings should have a liberal use of PowerPoint, demonstrative evidence, time lines, etc.

Anything that draws the eye and keeps the focus on the flaws in the evidence. The State can’t argue that your client didn’t testify, but they will argue their evidence, so you have to attack it. It’s your only play.

Even though general denial is generally a mediocre theme (or a lack of a theme depending on how you look at it), it does have the benefit of being anchored completely to the evidence and, depending on how cross examination went, and how tight the State’s witness testimony was, you can get acquittals with general denial.

All you need is 1 juror to throw a monkey wrench into the State’s case. Find your 1 juror and you can hang that trial or perhaps (if your 1 is persuasive), you can “12 Angry Men” that whole situation and have the one slowly bring the other 11 around. It’s not likely, but as we as defense counsel love to say, “It’s possible.”

And if you’re one of those lawyers who doesn’t believe in themes and claims never to use them, that YOU just argue the evidence: Congratulations! You’re using the General Denial theme!!

Taking a cue for Vincent Gambini, your entire case is really a vigorous CX of the State’s case where you poke as many holes into the evidence as possible, maybe using your expert witness to assist you (assuming you have one), and argue, argue, argue. You list what’s missing from the evidence and hammer that, what should be there, but isn’t. Vinny found his evidentiary gold during trial and gutted the prosecution’s case so well, they dropped charges and he never got to give closing argument. Could that happen to you?

Never in a million years. That was a movie. The best you can hope for is a strong closing argument where you take

My law partner and I once won a capital murder trial years ago with only a general denial defense that was peppered with another classic theme variation mentioned later, so I know it’s possible.

Some variations on General Denial are: 1.

2.

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The State hasn’t proven their case BRD The State hasn’t proven all the elements of the crime

3.

4.

5.

The State’s investigation was shoddy, a “Rush to judgment” Even circumstantial evidence can lie The evidence just isn’t there

The beauty of this theme is also that you don’t have to prove up the “real killer” or catch the actual bad guy. You just have to argue and persuade at least 1 juror that the State has the wrong guy. That is a position that every one serving jury duty can get behind. No one wants to convict the wrong person or an innocent person.

Give a juror the ammunition to argue to others in the jury room that they will do the right thing if they vote Not Guilty and they are not likely to budge from their position.

_________________________________ Theme/Play 2: S.O.D.D.I. a.k.a., Some Other Dude Did It. _________________________________

It is helpful for this theme that your client testify, but not required. So long as alternate suspects are brought out on CX from the Detective on the case or other witnesses, this defense theme works. The jurors will want and expect to hear how your client was mistakenly arrested and they need possible alternates to consider.

This is a classic theme as old as time itself. It’s the ultimate law enforcement mistake, blaming the wrong person for something they didn’t do. Jurors love this theme because it could happen to them, their loved ones, their friends or coworkers, or maybe it already has in some lesser capacity. Everyone at one time or another has been blamed for something they didn’t do. This theme resonates.

This theme has an advantage in that it allows the jurors to wear the White hat and actually fight for your client in the jury room. It’s a win-win if this theme is workable for your case.

The police arrested the wrong person, your client is innocent of the charge(s), and the prosecution refuses to see the plain truth: somebody else committed this crime. The only chance your client has for real justice, you argue, is the jury. You tell the jury they have the power to make things right and show the DA’s office what this trial has shown us all: They have the wrong man/woman (and by extension, have wasted everyone’s time and county resources trying to “fit a square peg into a round hole.”)

Variations of this theme: 1.

2.

3.

4.

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My client was set up/law enforcement mistake This is a case of mistaken ID Wrong place, wrong time Look at the co-defendant(s)

_________________________________ Theme/Play 3:

them of the alibi prior to trial and yet, here we find ourselves. In trial. The possible arguments one can make from an Alibi defense theme are numerous and they are all compelling.

The Alibi, a.k.a., It couldn’t have been me, Detective, I was somewhere else at the time of the [Insert Crime Here].

Usually this defense comes from the Accused taking the stand, or family and friends of the Accused, and so can be minimized or viewed with some scrutiny by a jury. Without more to back it up, the State may very well pursue the case against your client and it becomes a triable case dependent on witness credibility.

__________________________________ I should confess that I have never had occasion to argue this theme in all my years of practice because anytime I had an alibi defense or possible alibi theme, I made it known to the prosecution ahead of time. It’s always a calculated risk to expose one’s hand ahead of trial, but the more ironclad the alibi, the less I cared because there was no danger I was wrong or that the State could change the outcome of this theme. In the few cases where I had an actual alibi, the State always dismissed the case prior to trial.

But in an age of cell phone location services and a digital existence, that testimony can be strengthened with social media posts, pictures, texts, receipts, even video from businesses or the place frequented with a time stamp showing your client was not at any crime scene but was in fact out on a date, or having lunch, or online and in his home, and therefore couldn’t have been across town committing whatever crime was charged against him. Check your client’s cell phone and pray he left his location services tracking “on” and you have a listing of places the phone has been and his alibi is even stronger.

Still, this classic theme is shown in movies, TV, mystery novels, it is a great storytelling twist and people like it because it continues the story rather than ends it. If it’s not your client and you as defense counsel can prove it was not, then that means the State has it wrong...and it leads back to S.O.D.D.I. and the jurors can wear the White hat again and fight for your client behind closed doors and feel good about it in the process.

Again, the overarching theme in an alibi case is that of an innocent person being held to account, only this time the innocent person has some proof they are innocent and the machinery of the State still doesn’t care. That is something that resonates with jurors. They like seeing the defense attorney put on a case like this,

You can argue, and rightfully so, that the State cares so little about actual justice and your client’s constitutional rights, they pursued a prosecution they knew was bogus, because you informed 14

because it reminds them of the movies.

that these actions would not be criminal and in fact would be allowed to act as a legal shield should the government ever attempt prosecution. Tie this in with another classic theme as needed (general denial, etc.).

This is a primal fear of every citizen, the fear of false accusation and being wrongfully convicted. By its very nature, a false accusation can happen to anyone. Emphasize that, because that is the scariest part of this theme. To a lesser extent, this same fear is in the S.O.D.D.I. theme, but that theme doesn’t have you proving you were somewhere else, etc., just you casting reasonable doubt on the State’s case.

Variations of this theme: 1.

2.

3.

__________________________________ Theme/Play 4:

4.

We have the right to live/defend ourselves My client wasn’t looking for a fight He/She was protecting (insert beloved person/place) Dude needed killing (my fav!)

_________________________________ Theme/Play 5:

Yeah, I did it, but it’s not a crime a.k.a., Justification, b*itch!

An Innocent Man/Woman Took the Stand and told you the truth.

_________________________________ _________________________________ This is where you usually find your legal defenses: self defense, defense of another, duress, necessity, insanity, etc.

Your client testifies and admits to the conduct usually or somehow you get some evidence into the record that supports the jury instruction and argument that there was legal justification for the crime charged.

If you have a client that presents well, is articulate, and has no criminal record (or a modest one with some honest years between the charged offense and past crimes), and they testified in their own defense, use that! Always argue their testimony and the fact that they took the stand in their own defense when they didn’t have to, when they knew they’d be cross-examined, etc. Never let the jury forget the important fact that they were not afraid to speak up, that they in fact demanded it — as would any innocent person. This theme is similar to alibi, but alibi does not require that your defendant be squeaky clean; he could still be a crook,

You argue the law allows for your client’s actions and, indeed, has even anticipated your client’s actions precisely because the legislature created this legal justification.

This justification was intended so 15

just a crook with an alibi. In this classic theme, you have an actual innocent, so you have to make the most of it.

belief. She cited parts of my client’s testimony she took issue with and argued their likely falsity.

An innocent man/woman taking the stand is a powerful flex of a theme with little downside. If she testifies well, you argue she did so well because she’s innocent, not even the skilled district attorney could rattle her under CX. If she testifies and was shaky on some points, argue the stress of the charge hanging over her head for so long, and testifying, period, something she’s never had to do before, was greater than the jury can imagine, but not so great she was afraid. Your innocent client may not have the prosecutor’s comfort in a courtroom, you will argue, but that’s only because she’s never been accused of a crime before. She’s a lawabiding citizen.

I made no objections, I just waited for my turn and instead of starting my closing where I’d planned, I started instead with some questions. I walked straight to the witness stand, didn’t say a word, and turned to face the jurors and I waited quietly until every juror looked at me. I was angry and I let it show in my face and I asked them:

I once won a sexual assault trial when my client took the stand in his own defense, testified effectively (I believed), and the prosecutor tried to use the fact that he took the stand against him, arguing in effect that this trial was about the victim’s suffering and her pain, and not the place for the defendant to defend himself, to take the stand and essentially deny the victim’s truth, blah, blah, blah. The prosecutor even walked to the witness stand and pointed at it and instead of talking about her victim and how brave she had been to come forward (the sort of argument one might expect), she argued that the witness stand was not for liars or those who dodged the truth, it was for evidence so that the jury can see for themselves who is worthy of

Where can he go? The prosecutor just argued this was not the place for an innocent man to come to defend himself, that this courtroom was for alleged victims and “their truths,” whatever that means.

My client is not interested in “their truths,” he’s only interested in “the truth.” He thought this was where you went to tell the truth. You saw him. You heard him. He swore an oath, he told you what happened that night and took a vicious cross examination in return for telling the truth.

And now he’s just heard argument from the government’s representative that this wasn’t the place to defend himself. In America, no less, a man can’t defend himself any more perhaps, not in a sexual assault case. But if that’s true (and it isn’t),

Where can a man go to defend himself when he’s innocent?

Where can he go to tell a jury that he’s innocent, if he can’t come here?

[Gestured to courtroom and I put my hand on the witness stand]

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it begs the question...If this isn’t the place, then where is it? Tell me, where is it?

When is a man permitted to defend himself in this day and time, If. Not. Here? [Hand back on the witness stand]

_________________________________ Theme/Play 6:

[At this point in the argument, I had at least half of the jurors, all men, nodding their heads with me on every rhetorical question. I hadn’t even talked about any of the evidence yet. I was still angry and you could probably hear it in my voice. I recall taking a breath and calming myself a bit before I moved on. Two jurors actually shot a quick glare at the prosecution table before I moved on in my argument and eventually to the evidence.]

_________________________________

The Innocent Man/Woman theme is the classic theme that lets you steal away the “victim” status from the complainant and drape it all over your client instead.

Liars are generally frowned upon, if not despised, because we all have experience with people like this. Those folks who will say anything to get something for themselves, the kind that will tell you one thing on Monday and a different thing on Tuesday, depending on their mood or what they think you can do for them. They don’t need grand reasons to lie either: they may lie with a purpose, to obtain a benefit; or they may lie out of spite, just trying to hurt another; or just because it’s fun or habit, who knows?

Who cares? You just have to show and argue they lied in this case about your client.

Nobody likes a liar/snitch/Judas/rat/tattle-tale...etc.

This is the theme you will use (or touch upon) if the State uses a witness that lacks credibility for various reasons: a jail house snitch, accomplice witness testimony, younger witnesses, or witnesses with a testified to “poor character for truthfulness.” Use it on anyone whose testimony doesn’t add up or make sense, for whatever reason.

Who is more a victim if not the innocent person falsely accused, regardless of their gender? This theme resonates so long as it’s the truth. Jurors recognize this theme and you will always find a sympathetic ear to this theme if you have it to argue in your case. But your client has to take the stand with this theme. “If he wants to walk, he has to talk,” as the saying goes.

All you have to argue is that they are lying and have reasonable argument and evidence to back it up. In a case where you have younger alleged victims and you want to soften the argument, you argue 17

they may sincerely believe what they say, but that doesn’t make it true or real, etc.

This classic theme resonates because we all have experience with lies — because we lie too sometimes and we all have definitely lied about something to someone at some point in our lives. If you deny that, you’re lying now.

_________________________________ Theme/Play 7:

Some variations on this theme:

This classic theme is more of a catch-all, but it almost always works because we as lawyers know tons of axioms or TV or movie references that can form the basis for case themes. And what we don’t know, the internet can help us find. Examples like, “Misery loves company,” or “Love is blind,” or “Hell hath no fury like a woman scorned.” We know these sayings because we grew up with them, heard them in bedtime stories (“Slow and steady wins the race”), or conversation (“That dog won’t hunt”).

They are the ultimate in familiar and, if your evidence supports an axiom, consider this theme for closing.

1.

2.

3.

4.

5.

6.

7.

8.

The Axiom Closing, a.k.a., My theme is a saying/reference that everyone knows _________________________________

I’m not saying he/she is lying, just that they’re mistaken/wrong [child cases, sympathetic complainants] Sincere belief does not equal truth Tears do not equal truth Complainant was coached, not their fault they’re trying to please Mom/Dad/Grandma, etc.

State made a deal with the devil State wants you to trust a snitch they locked up All accomplices will point the finger at someone else to get out of trouble No Honor among thieves.

An older attorney I admire recently described an upcoming trial he was going to have in a complex federal case. White collar, tons of records, alleged fraud, etc. I asked him out of curiosity what the case theme was and he immediately replied, “No good deed goes unpunished.” I nodded and he nodded and I knew, the case was going to be packaged in a way so that any juror would understand it and “get it.” The defense was going to evoke a familiar feeling with the jury because everyone at some point in our lives has helped someone out of the goodness of 18

their hearts, even if it was inconvenient for them, and later paid an unknown and unforeseeable price for it. Sometimes you’ve even been betrayed by the very person or entity that took your help gladly when they needed it. “No good deed goes unpunished” indeed. A classic axiom and one that everyone instinctively “gets.”

An Axiom closing can be a strong one and like many of the others, can be supplemented with the other classic closing themes. It all depends on your case and the evidence.

Never forget as part of your closing to list all the evidence the State should have been able to provide if they had the right defendant (and they didn’t). The longer the list, the more RD you have to work with (as does the jury)!

Always argue the unlikelihood of the State’s case if you can. People like things that track with their own life experiences. I’ve argued in the past, “What rings true is what makes sense,” over and over again, while pointing out the things that didn’t ring true/make sense in the State’s case and obtained many “Not Guilty” verdicts doing so.

(And these were closings without PowerPoint or many props at all, just words.) Jurors are reluctant to believe that which they regard as improbable, never forget that.

Always use good character evidence if you are lucky enough to have some and your client has no record. People act in accordance with their habits. Character is nothing more than habitual behavior learned from early on and repeated again and again, until it is instilled in the person such that it forms their character. How likely is it that someone with excellent character will depart from a lifetime of sound and prudent habits and commit a felony “just out of the blue?” In violation of

***** Miscellaneous Tips for Closing

Don’t forget that all these classic themes are not necessarily stand alones – you can mix and match as needed for your arguments and should do so. The inviolate rule is this: The more familiar you can make your argument feel, the more likely it will be accepted.

Be yourself and don’t try to copy others. It’s good to know other styles, but if something does not feel right to you, don’t do it, even if trial schools or certain methods of argument are promoted. Treat closing argument tips like a buffet and put on your plate only that which you know you will work for you. Try new things, but don’t be insincere, you and your client will pay for it in the end if you are.

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their character and all of their ingrained habits? That’s not who they are. Certainly not who your client is. It’s not very likely at all.

Use that evidence and argue it along with everything else you have.

Always try to evoke an emotional response with your closing.

Emotions trump logic, so make the jurors feel that your case is the right way to go. If you make your case strictly rational and use logic alone, you are walking a tightrope.

If silence works in your closing argument, use it. There’s no law that says you have to fill the void constantly, always arguing. Collect yourself and your thoughts and use dramatic silence if it will help you.

Conversely, while arguing – don’t forget to project. Now is not the time to be a low talker, unless you’re right up at the bar and doing so makes sense. But remember the jury has to hear your words in order to be persuaded.

If your closing arguments feel like a one trick pony and you do the same thing over and over again — and you win doing it, don’t change a thing! You have found the perfect combo that works for you. It would be foolish to mess up the recipe for success now.

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Never be afraid to adjust your theme during trial, but before closing, if an unforeseen trial gift falls in your lap and the jury loves it. You argue the gift and keep hammering at it and incorporate it into your theme.

Never use conflicting defenses.

Example, in a sex case, the DNA isn’t there, it’s not my guy, but if it is there, it was consensual. If you try this tactic, you tell your client to enjoy prison because you will lose.

Never use conflicting defenses!

Never put your morality or personal code of behavior as part of your argument (the sex by the road fiasco example).

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation November 17, 2021 Echo Hotel Conference Center 1903 South Closner Blvd.

Edinburg, TX 78539

Topic: Scouting | Voir Dire

Speaker:

Jessica Canter 1000 W Court St Box 3503 Seguin, TX 78155 (361) 450-6730 phone jcanter@trla.org

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

Voir Dire Storytelling through Voir Dire, Challenges for Cause, Batson Challenges, and Connecting with the Jury

Getting Game Day Ready!

Victoria, TX September 17, 2021

Presented by: Jessica Canter Lavaca County Public Defender 200 W 4th St. Hallettsville, TX 77964 361-450-6730

“Good fiction always begins with a story and progresses to theme; it almost never begins with theme and progresses to story.”

– Stephen King, On Writing: A Memoir of the Craft

Tell your client’s story. This has become a common principle in many CLEs. It is an old art form coming back to life. As technology takes over our lives, as we grow more accustomed to visuals and quick, sexy headlines, defense attorneys must find ways to connect with the jury and they can do that by telling a story. It is said people do not remember facts, people remember experiences.

This paper will address how to weave the theme of your case into voir dire (where I will briefly touch on challenges for cause and Batson challenges) and how to connect with the venire panel to get a fair and impartial 12 in the box. This paper will not go into detail on how to develop a theme, however I highly recommend the book that I will be referencing titled Storytelling for Lawyers by Philip N. Meyer. The book is a fantastic resource for anyone wanting to get down and dirty and really break down what a story is from plot, characterization, to the different perspectives a story can be told from.

Theme vs. Theory A theme is a controlling idea or core insight of a story. It “provides a unique and unstated quality that sparks in the audience a sense that the story will develop in a certain way.” 1 A theme announces itself over and over although is not often made explicit. A theory revolves around the facts and law of your case. It’s always present and always explicit. 2 Storytelling for Lawyers uses the OJ Simpson trial as an example of the difference between theme and theory. Boiled down, the theme of the OJ story was centered around justice and injustice (betrayal and tyranny), while the theory was focused on a botched investigation and planted evidence. 3

Peter N. Meyer, Storytelling for Lawyers 16 (2014).

Id. at 17 3 Id. at 18 1 2

Once you have your theory and theme of the case set for trial, you can begin weaving it into your voir dire.

Voir Dire The goal of voir dire is not to find the perfect six or 12 people to sit in the box for your trial, but to find the jurors who will not be fair and get them off your jury. There truly isn’t time for much else, so how do you develop a rapport with jurors and get them to open up to a complete stranger in a limited amount of time?

First Words Set the stage for an honest discussion with the venire. Explain to them why it is important that you hear from them, the importance of the role of a juror, and the importance of their honesty. Tell them it is okay to believe what they believe, and that we all have personal experiences that color the way we view the world and certain issues. Remind them that there are no right or wrong answers. I like to open up to them about myself and I don’t mean my career (remember the case is about your client, not you), but about my own experiences. For example, I tell a story of a colleague of mine who is a defense attorney and how she would make a terrible juror for a case that involved alleged animal cruelty, that she cannot separate her own beliefs and emotions to be fair and impartial, but that does not mean she could not be fair and impartial in a different matter. I find that when you open up to the jurors with personal stories (real or made up but genuine sounding) they are more likely to open up to you. Self-disclosure can go a long way and it shows you are not asking them to do something that you are not willing to do yourself.

Respect and Empathy One key piece of advice is to never argue or belittle a potential juror who has answered a question honestly. You will get much further with the venire if you show a level of respect and empathy towards that person, and embrace their beliefs as perfectly reasonable. By acknowledging the belief, you are normalizing their bias and opening the conversation for other jurors who feel the same way. You want to have an honest discussion with them, to find out what they believe, the reasons for those beliefs, and how those beliefs operate in the context of your case. There is truly no such thing as a bad answer. If a juror reveals something that is painful or embarrassing, be sure to acknowledge their pain and thank them for speaking so honestly, “thank

you Juror X for your honesty, I know that was difficult for you. Does anyone else here feel the same way that he does?”

The Questions Keep your voir dire questions short, simple, and to the point. The longer the question the more you risk confusion. Make sure you are as open-ended questions and if the panel is quiet, pick a person to ask and then loop their answer. Using that juror’s words, move to another juror and say, “what is your reaction to what Juror X said? Do you agree or disagree?”

But what sort of questions should we ask? Ensure that you have questions centered around the law and legal principles applicable to your case (and every voir dire should always include questions centered around the burden of proof and the right to testify), but ask questions that relate to your theory and theme of your case. What do you need a juror to believe or understand in order to win the case? What do you need to know about the juror to decide whether s/he is a person you want on your jury? What life experiences would you like your jurors to have that are analogous to your theme?

For instance, you are going to trial on a case where your theory is self-defense while your theme is centered on anger or fear. You can ask questions like: •

Has anyone here experienced fear before? What did it feel like?

•

Tell us about the craziest thing you, or someone close to you, ever did out of fear.

•

Tell us about the most serious situation you have ever seen where someone had no choice but to use violence to defend themselves (or someone else).

•

Tell us about the most out-of-character thing you or someone you know ever did out of anger/fear/desperation/etc.

Another good way of getting your theory and theme into voir dire is not just through the questions you ask, but through visuals via PowerPoint or similar program. A picture is worth a thousand words. If possible, find images that convey an emotion. You do not need a lot on a slide, often a photo is enough, one that can remain up while you speak on the topic. Pictures can also be used to explain the burden of proof or who the key witnesses are.

And remember to listen. Listening is an active skill, not a passive one and takes some focus, but the jury is far more likely to connect with you if they believe you are listening to them.

Challenges for Cause and Batson Challenges 1. Challenges for Cause A challenge for cause is “an objection made to a particular juror, alleging some fact which renders the juror incapable or unfit to service on the jury.” Article 35.16 of the Texas Code of Criminal Procedure.

A challenge for cause may be for any one of the following reasons: 1. The juror is not a qualified voter in the state and county 2. The juror has been convicted of a misdemeanor theft or a felony 3. The juror is under indictment for misdemeanor theft or felony 4. The juror is insane 5. The juror has a defect in the organs of feeling or hearing, or such bodily or mental defect or disease as to render the juror unfit for jury service 6. The juror is a witness in the case 7. The juror served on the grand jury which found the indictment 8. The juror served on a petit jury in a former trial of same case 9. The juror has a bias or prejudice in favor of or against the defendant 10. The juror has established a conclusion as to guilt or innocence of the defendant 11. The juror cannot read or write Some examples of topics for challenges for cause include: 1. Type of case 2. Police officer credibility 3. Child witness credibility 4. Defendant’s failure to testify 5. Ability to consider full range of punishment

To get a challenge for cause, a defense attorney must ask the cause question. You can begin with, “some people feel…” Ask a specific juror how they feel and why, and do not forget to thank them for their honesty. Now it is time to lock in the challenge. When doing the challenge for cause, always ask a closed-ended question. For example, “Juror Number 6 (or Juror’s name), given the opinions you’ve shared with us, would it be fair to say to say that if this were a race, we would not be starting off even with the other side, that we would be starting behind?” (a Robert Hirschhorn example), “Juror number 6, given what you’ve shared, would it be fair to say that your feelings would affect your verdict in this case?”, “Juror number 6, given what you’ve shared, could you be fair and impartial in this case?”

2. Batson Challenges Article 35.261 of the Texas Code of Criminal Procedure reads reads: (a) After the parties have delivered their lists to the clerk under Article 35.26 of this code and before the court has impanelled the jury, the defendant may request the court to dismiss the array and call a new array in the case. The court shall grant the motion of a defendant for dismissal of the array if the court determines that the defendant is a member of an identifiable racial group, that the attorney representing the state exercised peremptory challenges for the purpose of excluding persons from the jury on the basis of their race, and that the defendant has offered evidence of relevant facts that tend to show that challenges made by the attorney representing the state were made for reasons based on race. If the defendant establishes a prima facie case, the burden then shifts to the attorney representing the state to give a racially neutral explanation for the challenges.

The burden of persuasion remains with the defendant to establish purposeful discrimination. (b) If the court determines that the attorney representing the state challenged prospective jurors on the basis of race, the court shall call a new array in the case.

To develop a Batson claim, the defense must make a prima facie case of that the prosecutor has excluded a juror based on race or gender. Fritz v. State, 946 S.W.2d 844 (Tex. Crim. App. 1997). The objection must be reasonably specific and on the record. The record must be clear concerning the race and/or gender of the jurors peremptorily struck by the State as well as the race and/or gender of the rest of the jury panel. Once the prima facie case has been established, the State must make a race-neutral explanation for the strike. Pondexter v. State, 942 S.W.2d 577 (Tex. Crim. App. 1996). The burden then shifts back to the defense for rebuttal of the State’s explanation(s). The trial judge will then make a determination of whether the defense

has shown purposeful discrimination on the part of the state, considering strength of the case, credibility of the party’s racially neutral explanation, the strike history of the lawyer, and the totality of the explanations given by the State.

Conclusion Voir dire is your first and only opportunity to have a conversation with your potential 12.

It sets the tone for the rest of trial. So, remember to scope out the courtroom where the “deselection” will take place, have a seating chart ready, and if possible, a second chair who can assist you in taking notes. You’ve prepared for voir dire during the work up of your case if you realize it or not and with a theory and theme, questions prepared, and a touch of genuineness, you’re game day ready. For more resources, please see the TCDLA Trial Notebook, which has important and necessary caselaw and a sample seating chart, as well as Robert Hirshorn’s materials from TCDLA’s Rusty Duncan Seminar 2021

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation November 17, 2021 Echo Hotel Conference Center 1903 South Closner Blvd.

Edinburg, TX 78539

Topic: Scrimmaging | Pre-Trial Investigations

Speaker:

Amanda Hernandez 214 E Ashby Pl. San Antonio, TX 78212-5836 (210) 738-8383 phone (210) 728-3438 fax amanda@flanarylawfirm.com www.flanarylawfirm.com

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

Scrimmaging: Pretrial Investigations By: Amanda I. Hernandez

FLANARY LAW FIRM, PLLC Amanda@flanarylawfirm.com; 956-371-8606

I. The Pregame Show: Introduction Everyone who has played sports knows that winning a scrimmage feels just as important as winning the real game. To play your best, you need to prepare your body and mind and practice with your team. Preparing for criminal trial is like preparing for a game, you must put in a lot of work beforehand if you’re going to perform your best. Before preparing for trial, it is critical that you have a complete understanding of your client’s case including the facts and the law. This paper will address the basics of how you can make the most of your pretrial investigation and prepare to win your next criminal trial.

II. The Most Basic Rules of the Game The preamble to the Texas Rules of Disciplinary Conduct tells us what we already know: all lawyers wear many hats when representing their clients. Among other responsibilities, lawyers must act as advisors, advocates, and negotiators for their clients. For us criminal lawyers, the most important obligation is to provide zealous and quality representation to our clients at all stages of the case within the bounds of the law.

In Strickland v. Washington, 466 US 668 (1984), the U.S. Supreme Court established a twopart test for deciding whether an attorney provided “effective” or “ineffective” assistance to a criminal defendant who is found guilty. First, the court evaluates the attorney’s performance and determines whether it is deficient. Second, if it is deemed deficient, the court evaluates whether the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. If both elements are met, the attorney will be considered to have been ineffective. Common examples of deficient assistance by counsel include not investigating the prosecution’s witnesses and the failure to investigate alibis or alibi witnesses. This means that in order for a criminal defense attorney to be effective, they must investigate their case.

III. Practice: Where to Start – the Interview A. Prepare for the Initial Interview Before you take a deep dive into the facts of the case with a client or potential client, you should prepare for the initial interview where possible. Upfront, get the basic information of the client’s name, location of charges, charges, and relevant dates of arrest or law enforcement contact and what stage of the criminal process they are in. Before the meeting or conversation, pull the relevant statute and be familiar with the elements of the offense and the potential punishment range. Next, obtain any copies of relevant documents that may be available, such as

the charging instrument, bond conditions, and any law enforcement reports that might be available.

B. The Initial Interview If possible, have the initial interview in-person or via zoom so that you can evaluate the client’s demeanor. During this interview, the goal is not only to provide the client with information concerning the case and legal process but to gather important information, hopefully while it is fresh in their mind.

Get information about who the accused is. What is their family like? What are their ties to the community? What do they do? Do they have any past criminal history? What is their medical history? All of this information will help you determine what will be in the client’s best interest throughout the criminal process.

Ask about what happened on the day or night in question to gather additional information that will be helpful in preparing the client’s defense. Prompt the client with open-ended questions and have them start with the beginning of their day. Don’t be afraid to ask tough questions, if something doesn’t make sense- ask for clarifications. Ask the tough questions just like a prosecutor would if they were under cross-examination. Learn about the facts surrounding the charges and ask about law enforcement’s contact with the client. Ask the right questions to determine whether any improper conduct occurred to identify potential suppression issues. Ask about any witness who can be located or any evidence that should be preserved. Get information about who their friends and family are and their contact information, this will help give you what you need for any potential sentencings. *TIP* An important thing to remember when talking to clients, however, is the attorneyclient privilege. The attorney-client privilege is a rule of evidence that preserves the confidentiality of communications between lawyers and clients and prevents lawyers from disclosing the client’s communications to others (and prevents others forcing them to) unless they are a member of the defense team or if the client gives them permission. See Tex. R. Evid.

503. The privilege belongs to the client. This means the client can waive it, but the lawyer cannot.

The privilege generally stays in effect even after the attorney-client relationship ends, and even after the client dies. Unless some exception applies, lawyers cannot divulge the client's secrets without the client's permission. See Swidler & Berlin v. United States, 524 U.S. 399 (1998). Of course, lawyers also have a duty to keep information confidential. See Tex. Disciplinary R. Prof.

Conduct 1.05. But what happens if a third-party wants to sit in on the meeting?

Generally, if the accused allows a third party to be present for a lawyer-client conversation, the defendant waives the attorney-client privilege. This usually means that the prosecution can force the third party to reveal the contents of the conversation if they find out about it and if they subpoena them to testify. The client can also waive the privilege by repeating a conversation they had with the attorney to someone else or by talking about it in a public place where it is overheard.

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Also note, however, that members of the defensive team can be present without the client waiving the privilege (i.e., investigators, interpreters, your office staff). When determining whether the attorney-client privilege applies to a conversation involving a third person, courts generally consider: (1) whether the defendant intended the communications to remain secret, and (2) the specific role of the third person in the conversation.

IV. Practice – the Discovery Request Lawyers have a duty to promptly conduct an independent investigation of the accused’s case regardless of their admissions or statements to the lawyer of facts constituting guilt. Sources of the investigation, include, but are not limited to, the following.

A. Understanding Michael Morton Upon getting hired in a criminal case, you should send the State a request for discovery and keep proof of service or file the request. You need not file a motion, a request is all that is required (so long as it is “timely”).

The Morton Act, now codified in Article 39.14 of the Texas Code of Criminal Procedure, mandates discovery in criminal cases. Subsection (a) requires the State to produce and permit the inspection and the electronic duplication, copying of, and photographing of listed evidence as soon as practicable after receiving a timely request from the defendant. The items listed as discoverable are: 1. any offense reports; 2. any documents, papers, and written or recorded statements of the defendant or a witness (including witness statements of law enforcement officers); and 3. any books, accounts, letters, photographs, objects, or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the State or any person under contract with the State.

See Tex. Code Crim. Pro. Ann. art. 39.14 Recently, in Watkins v. State, the Texas Court of Criminal Appeals held that concerning 39.14, the Court “interpret[s] the word ‘material’ as it appears in context to mean ‘having some logical connection to a fact of consequence.’” Watkins v. State, 619 S.W.3d 265, 291 (Tex. Crim.

App. 2021), reh'g denied (Apr. 14, 2021).

Excluded from this discovery are written communications between the State and an agent of the State. It also does not authorize the removal of the documents, items, or information from the State’s possession, and any inspection shall be in the presence of a representative of the State.

Subsection (b) of the Act pertains to both defense attorneys and the State. The section states that if either party requests the disclosure (no later than the 30th day before trial) of the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, of the Texas Rules of Evidence, disclosure must be made in writing in hard copy form or by electronic means not later than the 20th day before trial. Keep in mind, though, the Act allows for a court order designating an earlier time at which one or more of the parties must make disclosure on motion of a party and on notice to the other party. See Tex. Code. Crim. Proc. Art. 39.14. *TIP* Some courts have held that 39.14 doesn’t cover a list of State witnesses and experts, unless a specific request and order has been obtained. See Harris v. State, 287 S.W.3d 785 (Tex. App.—Houston [1st Dist.] 2009, no pet.), abrogated on other grounds by Barrios v. State, 283 S.W.3d 348 (Tex. Crim. App. 2009) (holding that the statute permitting court to order state to disclose its expert witnesses is not self-executing; rather, it allows a trial court to order the state to list expert witnesses upon request). Therefore, you should timely file a request for notice of the State’s witnesses and experts.

Subsection (c) Subsection (c) allows the State to withhold discovery if a portion of the requested document or thing is subject to discovery and a portion is not. The statues specifies, however, that the State must give the defense the discoverable parts and inform the defense that a portion is not discoverable. Upon request of the defendant, the Court shall hold a hearing to determine whether the withholding is justified. See id.

Subsection (e) prohibits defendants and the defensive team from disclosure of provided discovery to any third party. However, two exceptions allow such disclosure if: 1) a court orders the disclosure upon a showing of good cause after notice and a hearing considering the security and privacy interests of any victim or witness;, or 2) the materials have already been publicly disclosed. See id.

Subsection (f) adds additional exceptions to the non-disclosure to any third parties provided by (e). It includes the attorney representing the defendant or an investigator, expert, consulting legal counsel, or agent for the attorney representing the defendant. The section allows aallows a defendant, witness, or prospective witness to view the information provided but does not permit that person to have copies of the information, other than a copy of the witness’s own statement. Before allowing that person to view a document or the witness statement of another, the person possessing the information shall redact the address, telephone number, driver’s license number, Social Security number, date of birth, and any other identifying numbers contained in the document. Furthermore, the defendant may not be the agent for the attorney representing the defendant. This prevents the defendant from gaining a copy of anything other than his own statement unless one of the exceptions applies from (e). See id.

Subsection (g) tells us that the Act doesn’t limit the attorney’s ability to communicate regarding his or her case within the Texas Disciplinary Rules of Professional Conduct, except for the disclosure identifying any victim or witness. See id.

Subsection (h) orders the State to disclose to the defendant any exculpatory, impeaching, or mitigating document, item, or information in the possession, custody, or control of the State that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged. This portion of the statute is derived from Brady v. Maryland and its progeny.

Subsection (k) also requires continuing disclosure of said material before, during, or after trial to the defendant OR the court. See id. *TIP* Under (h), it is important to request the criminal history record of the Victim and the witnesses that the State intends to call at trial. The State has access to the FBI background checks, which we cannot access. Furthermore, deferred adjudications don’t often show up on some background checks.

The State is required to document any document, item, or other information provided to the defendant under the Act pursuant to subsection (i). Subsection (il) allows the Court to order defendant to pay any costs associated with the discovery, provided that costs may not exceed the charges prescribed by Subchapter F, Chapter 552, Government Code. See id.

The Morton Act’s disclosure requirements are triggered only upon request. If the defendant fails to request discovery under Article 39.14, the State has no statutory obligation to disclose incriminating evidence not in the offense report. Glover v. State, 496 S.W.3d 812 (Tex. App. Houston 14th Dist. 2016). Without a proper request, the trial court did not abuse its discretion in allowing the introduction of a pen packet that had not been disclosed. Davy v. State, 525 S.W.3d 745 (Tex. App.— Amarillo 2017).

Discovery under the Act is subject only to the exceptions contained in the language of the statute itself (i.e., exceptions for work product, written communications between prosecutors and other agents of the state).

Ethics Rule 646 issued in November 2014 by the Professional Ethics Committee of the State Bar of Texas held that it would violate disciplinary rule 8.04(a)(12) Texas Disciplinary Rules of Professional Conduct for a prosecutor to impose conditions on discovery that are not found in Article 39.14 of the Texas Code of Criminal Procedure. The question presented was whether a prosecutor could require a criminal defense attorney to agree to not show the copies of the information to their clients and also agree to waive any court ordered discovery. The Committee held that a prosecutor may not, as a condition for providing information in their files that they are obligated to disclose, require the criminal defense attorney to agree to such precondition and limitation to discovery.

Concerning the disclosure of work product, the Court of Criminal Appeals of Texas has held that the Court the work product exception did not exempt police offense report from disclosure if it contained Brady material. See Ex Parte Miles, 359 S.W.3d 647 (Tex. Crim. App. 2012).

B. Limitations of Texas Code of Criminal Procedure Article 39.14 The first line of the Art. 39.14 lets us know that the statute is subject to the limitations of both (1) Section 264.408 of the Texas Family Code and (2) Article 39.15 of the Texas Code of Criminal Procedure.

Section 264.408 of the Texas Family Code is entitled “Use of Information and Records; Confidentiality and Ownership” and is found in Subchapter E of Chapter 264: Child Welfare Services. See Tex. Fam. Code § 264.408. The statute provides restrictions to child abuse videotape interviews. It includes files, records, communications, and working papers used or developed by various “agencies that provide services to family and children,”, including Child Protective Services (DFPS) or Court-Appointed Special Advocates (CASA) as well as any videotaped interview of a child made at a children’s advocacy center. See id.

Article 39.15 of the Texas Code of Criminal Procedure also limits the Michael Morton Act and is titled “Discovery of Evidence Depicting or Describing Abuse of or Sexual Conduct By Child or Minor”. The Article therefore addresses discovery of child pornography and provides that such evidence must remain in the care, custody, or control of the court or the State. See Tex. Code Crim Proc. § 39.15.

Under both statutes, a court “shall deny any request by a defendant to copy, photograph, duplicate, or otherwise reproduce any property or material described [in the statute]” provided that the prosecuting attorney makes the electronic recording reasonably available to the defendant in the same manner as property or material may be made available to defendants, attorneys, and expert witnesses under Article 39.15(d) of the Texas Code of Criminal Procedure.

Said statute defines “reasonably available” to mean “if, at a facility under the control of the state, the state provides ample opportunity for the inspection, viewing, and examination of the property or material by the defendant, the defendant's attorney, and any individual the defendant seeks to qualify to provide expert testimony at trial.” See Tex. Code Crim. Proc. Art. 39.15.

The language of the Article implies that if the court finds that the electronic recording is not being made “reasonably available” to the defendant, they can permit a defendant to copy the recording. This means one thing: it can’t hurt to ask. If the State agrees to a protective order, the request for duplication would be being made by the State, not the defendant.

C. Other Limitations Another limitation is found in Texas Code of Criminal Procedure Article 56A.155, cConcerning victim impact statements, which holds that a victim impact statement is subject to discovery under Article 39.14 before the testimony of the victim is taken only if the court determines that the statement contains exculpatory material.

Likewise, Texas Family Code Section 261. provides that reports of abuse are confidential along with interviews, videotapes, files and reports developed in the investigation. It does set out, though, a procedure to obtain these confidential records. It specifies that the court can order disclosure under that section if (1) a motion has been filed with the court requesting the release of the information; (2) a notice of hearing has been served on the investigating agency and all other interested parties; and (3) after hearing and an in camera review of the requested information, the court determines that the disclosure of the requested information is: (A) essential to the administration of justice; and (B) not likely to endanger the life or safety of (i) a child who is the subject of the report of alleged or suspected abuse or neglect; (ii) a person who makes a report of alleged or suspected abuse or neglect; or (iii) any other person who participates in an investigation of reported abuse or neglect or who provides care for the child. See Tex. Fam. Code Ann. § 261.201.

D. Specific Request – Extraneous Offenses In every case, you should file a request for the State to provide notice of extraneous offenses, convictions, or acts pursuant to the Texas Rules of Evidence and Article 37.07(g) of the Texas Code of Criminal Procedure. The duty of the State to provide this information only applies when the defendant REQUESTS the information.

Texas Rule of Evidence 404(b) provides that evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith but that it can be admissible for other purposes (such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State’s case-in-chief such evidence other than that arising in the same transaction. See Tex. R. Evid. 404.

Likewise, Article 37.07 (g) of the Texas Code of Criminal Procedure holds that upon a timely request of the defendant, notice of intent to introduce evidence under that article shall be given in the same manner required by Rule 404(b) of the Texas Rules of Evidence .Evidence.

If the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act. See Tex. Code Crim. Proc. Art. 37.07(g).

F. Specific Request – Child Porn/Invasive Child Recording Evidence Because of the limitations mentioned above, it may be beneficial to file a motion for discovery pursuant to Texas Code of Criminal Procedure Article 39.15: Discovery of Evidence Depicting or Describing Abuse of or Sexual Conduct By Child or Minor or Article 39.151: Discovery of Evidence Depicting Invasive Visual Recording of Child. An order granting discovery will allow the defendant access to the state’s evidence in child pornography and invasion recording cases.

G. Specific Request – Protected Materials A motion and order may be required to get records from Child Protective Services. Talk to the State and see if they’ll agree to release the records with a protective order. You can also issue a subpoena to the custodian of the records to be returnable on the date of a hearing prior to trial. Their attorney may file a motion to quash, but the records can be provided to the trial court to make an in camera inspection of the records. Most courts will turn over the records to the defense if they feel they contain Brady material.

H. State Practice Learning the discovery procedures for each county you practice in is essential. TCDLA and its sister organizations are a great place to reach out if you’re practicing in an area you haven’t practiced in before. For example, pre-indictment discovery is handled differently in each county.

In some counties, no discovery will be given pre-indictment, aside from an affidavit in support of arrest or search warrant. In other counties, the filing of a notice of appearance triggers ediscovery.

Unfortunately, there is no enforcement mechanism to force the DA’s office to provide discovery prior to indictment. See In re State ex rel. Munk, 494 S.W.3d 370 (Tex. App.— Eastland 2015). Just because there is no enforcement mechanism, though, doesn’t mean you shouldn’t ask.

In sum, call other lawyers and/or the court to find out how to get listed as the attorney of record as quickly as possible and whether the county uses an online portal to provide discovery.

E-file Texas will allow an attorney to e-serve a document on the State of Texas without filing it in the court papers, if the attorney wishes to use this to file a letter demanding discovery pursuant to 39.14. Discovery request letters can be faxed, emailed, or mailed, but it is important to document how it is served.

I. New Law – Texas Code SB 111, now codified as Article 2.1397 of the Texas Code of Criminal Procedure, requires law enforcement agencies to submit a written statement when filing a criminal case with a state attorney acknowledging that they have transmitted all items to the state attorney that are required by law to be disclosed to the defendant. If any such item is discovered after the case has been filed, the agency is required to promptly transmit it to the state attorney. This law took effect September 1, 2021. See Tex. Code. Crim. Proc. Art. 2.1397.

V. Practice - The investigation

A good investigation requires knowledge of the State’s case. Thoroughly review the discovery you receive from the State and follow up on leads for any other potential witnesses after speaking with your client.

A. Have an investigator conduct interviews and collect documents Once you know who the important potential witnesses are, contact them for an interview.

In most cases, especially those involving hostile witnesses, it is best to have an investigator handle the interview so that you don’t become a potential witness in the case yourself. If your client is unable to afford an investigator, ask the Court to appoint one. In the event that your client is unable to hire an investigator and you are unable to have one appointed, you will want to have a third party witness the interview so that they, and not you, can testify at trial if necessary. It is best to record the conversation with the witness for later transcription as well as for your own protection. You should also record your recollection of any interviews immediately.

If a witness refuses to speak with a member of the defense team, send them a carefully drafted letter by certified mail explaining that you are only trying to “learn the truth” and that you only wish to have them speak to your investigator (or you and a third party) for just a few minutes. You can also use the witness’s refusal to speak with you during cross-examination as evidence of evasiveness when comparing the witness’s preparation with the government.

It is important to remember that it is the duty of the defense lawyer to conduct an independent investigation. In Andrus v. Texas, the Supreme Court held that failure to investigate and present compelling mitigating evidence of defendant’s family background was a constitutionally deficient performance and the Texas Court of Criminal Appeals had failed to properly consider whether the performance prejudiced him. See Andrus v. Texas 140 S.Ct. 1875 (2020).

B. Use public information requests or Subpoenas, where necessary You can also submit public information requests for important information, which may be beneficial if you don’t want the prosecution to know you’re gathering certain records. For example, through a public information request, you can get a law enforcement officer’s training records if they work as a peace officer in Texas.

Likewise, as mentioned above, subpoenas can be used to gather sensitive information such as child protective services records. Subpoenas can help you gain understanding about a witness which you would otherwise not have access to, such as medical records, bank records, insurance company investigations, cell phone records, and location data.

Recently, in In Re State, the defendant issued a subpoena duces tecum for the complainant’s cell phone in order to inspect and copy data. The State filed a motion to quash the subpoena. The Appeals Court of El Paso stated the State had standing to enforce the victim’s right and held that a subpoena to obtain and inspect complainant's cell phone outside context of a

hearing exceeded scope of subpoena statute. In re State, 599 S.W.3d 577 (Tex. App.— El Paso 2020). *TIP* On the subpoena duces tecum, note your contact information and ask the custodian to contact you upon issuance of the subpoena. Once they do, you can let them know that they can just send you the records with a business records affidavit in lieu of appearing in court with the records. Always let them know that if they prefer, they can appear in court with the documents or file a Motion to Quash if they do not wish to comply.

C. Visit the Crime Scene It is important to visit the crime scene, where possible, to gain an understanding of what the physical scene was like at the time of the alleged offense. While a private residence may be difficult to access, all efforts should be made, to include a motion and order requesting access to the scene. If the complainant refuses access to the defensive team, this can be used in crossexamination or they can be held in contempt if they violate a court order. If access is gained, take pictures, make notes and take measurements of the entire home. If outdoors, look for cameras that the police might have missed and request the owners to review their recordings and subpoena the recordings, if necessary.

D. Use the Internet In today’s society, the internet makes it easy to conduct some investigations. Use the tools available online to investigate both your witnesses and the State’s potential witnesses.

You can learn a lot about witnesses by utilizing what is already available to you.

1. Google While you are likely already using google, you may not be using it to its full potential. For example, did you know that you can search a name six different ways? See below.

(1) “John Doe” – The quote marks tell Google to search the exact phrase. If you Google a person’s name without the quotes, Google assumes that you want the words to be close together, but it doesn’t force the words to be together, which would give you more pointed results.

(2) “John” “Doe” – This may seem repetitive of the above search, but the above results won’t provide results with John William Doe or John W. Doe. Searching with each word in quotes will return any results containing the two quoted words or phrases.

(3) “Doe, John” – In some cases, the name may appear last name, first name.

(4) “J. Doe” – In some cases, the name may appear first initial, last name.

(5) “Doe, J.” – This will also capture cases in which the first initial, last name format is used.

(6) “John * Doe” – An asterisk is like using a wildcard, so this will produce results that contain, for example, John Michael Doe. Other examples of Google “tricks” are as follows: Excluded Words. You can use a hyphen (functioning as a minus sign) to exclude words from your search. If you are searching for a defendant named Robert Smith and there is an actor named Robert Smith, you can enter: “Robert Smith” –“actor” to try and filter the results.

Site-specific Search. The site-specific Google search allows you to search a specific website for the existence of a particular term. For example, entering: site: sacurrent.com "Chief Justice" searches only the website sacurrent.com for that search term.

Or Search. The OR search is used if you are trying to search with more than one term and would like for one or both of the terms to be found. The OR must be capitalized for the search to work correctly. So, if you want to search multiple name variations, you would enter something like: “John Doe” OR “John * Doe”.

File Type. Utilizing the filetype search, you can avoid searching web pages and isolate your research to certain types of files, such as PDFs, spreadsheets, Microsoft Word documents and others. Therefore, if you enter “John Doe” filetype:pdf, the search will yield only pdf documents containing the search term.

Around Search. With this tool, you can search for terms near each other within a certain number of words. In other words, you can force Google to have two words near each other. For example, if you were trying to link John Doe to the Jeffrey Epstein scandal, you might try something like this: “Jeffrey Epstein” AROUND(20) “John Doe” indicating you want results containing “Jeffrey Epstein” within 20 words of “John Doe”. The AROUND must be capitalized, and the 20 referenced above can be any number you want.

INURL. This tool will find results in which the searched word only appears in the actual URL, not in the body of the text. This can be useful for finding social media profiles. For example, if you have determined that Mr. Doe uses the apt handle “johndoe” on social media, you may do something like this: inurl:johndoe.

Or if you have figured out that Mr. Doe really goes by the user handle “gang_memeber_john” you would enter: inurl:gang_member_john.

Combination. You can combine the above-referenced techniques into one advanced search on Google. For example, if you wanted to find pdfs on the Texas District & County Attorney’s website, you’d search: site:tdcaa.com filetype:pdf.

These are just some of the examples of how you can be even more effective with google searches. There are a variety of other advanced operators you can “google” to find out.

2. Google Earth/Maps Use Google Earth to learn about crime scenes, scenes of accidents, and even what type of neighborhood and home witnesses live in. If you want to see what a particular street currently looks like, while in Google Maps, grab the orange person icon in the left handleft-hand corner; if the streets become outlined in blue, you can place the person into the street and you will get a current “street view” of the street. Also, with Google Maps, you can easily create a diagram that shows the incident of a location. Google Maps allows you to type in any address in the U.S. and most of the world to reveal a well-drawn map of that area. You can also toggle to a satellite view and have a photograph of that same location (outside of major cities, the resolution may not be great).

3. DPS Criminal History For a fee, you can search DPS’s database. The Conviction Database is public record information extracted from the DPS Computerized Criminal History System (CCH). The information contained in CCH is only public if a conviction or deferred adjudication has been reported to the Department on an offense.

See https://publicsite.dps.texas.gov/DpsWebsite/CriminalHistory/.

E. Know your experts Juries pay close attention to the government’s expert, and you should, too. You should always hire your own defensive expert if the State intends to call one to testify. Having your own expert will help you understand the field and develop the right questions to ask the government’s expert on cross-examination.

A consulting expert is an expert who has been consulted, retained, or specially employed by a party in anticipation of litigation or in preparation for trial, but who is not a testifying expert.

The identity, mental impressions, and opinions of testifying experts are discoverable but the identity, mental impressions, and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert are generally privileged and are not discoverable. For a look at the right to consult with an expert, without having to disclose the identity and the point where an expert becomes a designated testifying expert, see Pope v. State, 207 S.W.3d 352 (Tex. Crim. App. 2006).

F. Transcribe any relevant Pre-Trial Hearings

Field Code Changed

If your case required any preliminary hearings, such as an examining trial or a motion to suppress, be sure you have all testimony or occurrences preserved for future use. Defense counsel should use the examining trial to extensively cross-examine all witnesses called on behalf of the State in order to obtain information to be used in impeachment and for discovery of the exact nature of the State’s evidence.

VII. CONCLUSION – GAME DAY In short, practice makes perfect and a good pretrial investigation will help you be ready to win in the courtroom. Be sure and utilize the tools already available to you, don’t be afraid to ask for more discovery, hire an investigator and expert if you can or have them appointed, and do you best to be the best prepared lawyer in the room come game day.

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation November 17, 2021 Echo Hotel Conference Center 1903 South Closner Blvd.

Edinburg, TX 78539

Topic: Keep Your Head in Game | Mental Health

Speaker:

David Ryan

6161 Savoy Dr Ste 1116 Houston, TX 77036-3326 (713) 223-9898 phone (713) 223-8448 fax david@davidmryan.com www.davidmryan.com

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

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation November 17, 2021 Echo Hotel Conference Center 1903 South Closner Blvd.

Edinburg, TX 78539

Topic: Instant Replay | Technology in the Courtroom

Speaker:

Monique Sparks

1923 Blodgett St Houston, TX 77004-5111 (713) 520-7000 phone (713) 520-7013 fax monique@thesparkslawfirm.com www.thesparkslawfirm.com

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

Technology in the Courtroom in Criminal Cases Cynthia Eva Hujar Orr Goldstein & Orr 310 S. St. Mary’s Street, 29th Floor Tower Life Building San Antonio, Texas78205 210-865-4222 Criminal cases will typically involve technology under three circumstances. The alleged offense involves technology (conduct conducted on the Internet or using electronic devices). The investigation involves the use of technology to discover evidence in support of charging a person with crime. And the third area where it will arise is when one must understand technology to master the evidence and present it in court. No matter the area, however the Texas Disciplinary Rules of Professional Conduct require us to have competence in technology in order to provide competent legal representation. Comment 8, to Rule 1.01of the Rules of Professional Conduct specifically set out that a competent lawyer is up-to-date on current technology.” i Crimes that can be committed using technology include obtaining and processing child pornography, soliciting children for the purpose of sex trafficking or producing child pornography, submitting fraudulent claims to a healthcare benefit program, executing a ransom ware attack, identity and information theft committed through phishing, bank fraud, crypto-currency offenses, virus attacks, online gambling, fraudulent credit card transactions, stalking, revenge porn, stored evidence of criminal activity on an electronic device, and the mere generation of fraudulent documents or currency using a computer.

Therefore, counsel must be familiar with the way that computers, smart phones, tablets, and other electronic storage devices store and maintain information. The basic idea that and electronic device cannot indicate who its user is it’s important. The portability of our electronic devices in the ability of persons even without sophisticated skills to gain access to them cannot be forgotten. For example, a recent television ad wireless 1

Internet services makes the point. Without good security practices in place a home wireless Internet access to another device is using it can be explored for information or can be used to commit criminal offenses. In the ad a father walks into his home and invite some questionable characters inside with him who he said we’re hanging around outside the home. One of the scruffy visitors slips an item from a drawer in his pocket while another asks one of the children the name of their first pet, and yet another asks the father for his pass code to the alarm system for the home. The mother then pushes a setting on her telephone and all the undesirable people disappear. The tagline is that wireless Internet security in the home is important to maintain. Otherwise, it's just like you are inviting undesirables inside your home. The government has also recently warned its employees to stay off of public Wi-Fi in hotels, airports, and coffee shops where viruses can spread to their devices or hackers can launch ransom where attack’s or steal financial information.

If a client is charged with a crime committed using a computer and or the internet, it is important to know how many other persons could access that electronic storage device directly or remotely. It is not just using a public Wi-Fi system that will allow access to harvest information or use the device. Enabling Bluetooth connections or even the capability to make a purchase by tapping a reader with the phone can invite persons to access non-encrypted data. Nefarious persons can also spoof hotel, coffee shop, airport, and other free Wi-Fi networks. Through these means a person can harvest passwords and the entire contents of passing cell phones, for example. ii This knowledge provides potential defenses to accusations that your client was using an electronic device to commit crimes. So, there is no excuse for failing to employ a forensic analyst to determine when data was placed on a particular electronic device, to determine whether files on these devices were even opened, where the data was stored (whether in a visible place or a non-visible location), and when they were last accessed. One would think that law-enforcement would no longer tamper with electronic evidence. But I have a case today where law enforcement accessed the internet and place thousands of artifacts on a computer after it was seized and after they took it to the police station. Whoever did this, changed the time setting on the computer to help cover their tracks.

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Offenses that incidentally utilize a computer do not present a sophisticated technology challenge when dealing with law-enforcement investigation of the offense. One needs basic computer storage and forensics knowledge for such a case. However, there are cyber-crimes that make sophisticated use of the Internet and computers and also involve much more sophisticated investigation techniques. Internet crimes may involve an investigation into how particular software works. It may involve very sophisticated investigation into means to identify those persons using phishing emails or conducting the ransom ware attack using the dark web.

It is also critical to know what investigative techniques are used to search electronic devices. In recent days, private commercial service providers have formed partnerships with law-enforcement, which is taking the position that this commercial information is not private and can be accessed without a search warrant. However, this not the case. It is clear from the privacy protection afforded to our emails, that not all information we provide to private commercial endeavors is available to law enforcement without a warrant. The contents of ours cell phones is stored on commercial service providers, but a unanimous US Supreme Court says we have the right to privacy in the contents of our cell phones under the Riley iiicase. And, the Court established that the doctrine of plain view does not apply in a digital search. The Court of Criminal Appeals followed suit in Love. iv Just because we use commercial entities for services does not mean we have abandoned or forfeited our rights to privacy to our information. So, every type of information that an investigation attempts to access should be questioned; even when it’s stored on service providers clouds or a commercial provider’s equipment.

Further, it’s important to keep in mind that a search warrant for a computer, a cell phone, or email account that alleges one will find evidence of specific offenses for which the warrant affidavit establishes probable cause, does not authorize the search of the entire computer, the entire phone, or every email in a person’s email account. Just as a search warrant doesn’t authorize the search of every nook and cranny of a home;v a search warrant for a telephone that contains all the details of life does not authorize the search of all those details. For example, a search for evidence of drug distribution communications on a phone 3

belonging to a person charged with a drug offense, does not authorize the search of the photos on that phone.

Also, web-based sting operations are based on programs and pre-warrant searches that are illegal and provide fertile grounds for suppression. But you have to do your homework about the proprietary software being used in conjunction with law-enforcement to conduct these searches. The Child Protection System, software developed by the Child Rescue Coalition in Florida, is proprietary. It likely conducts warrantless searches to identify persons’ file sharing through non-Child Protection System programs. First, counsel must consider whether those sharing programs have features that operate to perform functions that the user is not aware of; like file sharing. This can combat the suggestion that an accused is knowingly or intentionally distributing child pornography.

Second, counsel should subpoena the agent for service of process in Texas for the Child Rescue Coalition for the proprietary information about the software.vi This information should be provided to a forensic expert to advise you whether a warrantless search has taken place by discovering how the Child Protection System software functions. In addition, counsel must examine and deal with the fact that child porn exists among legal images and may only be images of virtual children. The contraband pictures may be on a client’s device without their knowledge. The images may never have been seen by the client, or even opened by the client. The Child Protection System is not the only software used in such investigations. So, research the investigative means used and challenge each in a sophisticated way, with technical competence. If law enforcement does obtain a search warrant for electronic evidence; defense counsel must ask two questions. First, in a physical search was the physical search for electronic evidence authorized by a warrant to stating probable cause that the device contained evidence of crime? Second did was a second electronic search authorized by a warrant providing probable cause to seize the electronic data that was seized?vii Next, counsel should consider whether the electronic evidence will be admissible in court. Many data production processes, particularly concerning cell phone records and cell tower location data is not stored according to verified and accurate processes. Often, this digital information is provided in a spread sheet that can be altered. The Judge 4

in the Markel American Insurance Company viii case wrote that electronic evidence can be subject: “to far greater levels of scrutiny than applied to non-digital evidence when deciding whether to admit it. …If you identify the digital evidence you want to use prior to trial, learn as much as possible about how it works (using the Internet can be an inexpensive and helpful way to do so), carefully select which authentication method you want to use, and (if it involves using an expert or subpoenaing records) make arrangements sufficiently far in advance to be prepared at trial, you will greatly enhance your chances of success.” ix Computer forensics also must be examined carefully to make sure that the software tools employed are valid and reliable. x “At what point should a mess of ones and zeros be trusted either as evidence, or to provide it?” xi There is a lack of information on error rates using digital forensic techniques and a lack of transparency by the software developers and purveyors of the programs. xii Take for example, the software programs used by law-enforcement to plot cell phone location tower information on geographic maps of towns and locations. The software used produces pie shaped icons to indicate the location where a cell phone must be located if it has utilized a particular tower. However, if counsel employs real drive time testing of the coverage area of a tower, the coverage area turns out not to be pie shaped at all and are not the distances indicated in the software plotted maps. The plotting software is not reliable, not even close. If counsel is educated, then they can cross examine the witness offering such plotted maps to show that the pie shaped icons actually overlap, that direction is not a given, that if the signal relayed is a text message or an app update it does not use the closest tower at all, and there’s not a good indication of even general location. And further, it is only voice calls that are connected, not voice mail, that will indicate a general area a person is located if the tower is fully functioning and does not have heavy traffic at the time.

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Further, Counsel should know that bodies of water, buildings, and other natural and man-made structures will cause significant anomalies on the cell signal and the tower used. In one case, I had a signal from a phone use a tower on both sides of a a bay within milliseconds of each signal.

The body of water created the appearance that the phone user flew like Superman, at super speed, across a great body of water in no time. But, of course the phenomena observed was that water affects cell tower signals.

Lawyer should also know more about law-enforcement tools used to collect information. GPS Geo fencing that is typically stored in Google, GPS tracking, use of stingrays and false cell phone towers, body worn camera videos and audio and facial recognition programs each have fatal flaws or limitations that can be leveraged to the defense advantage.

Technical competency also requires counsel to be familiar with joint law enforcement task forces, centralized databases, and national clearinghouses that law enforcement use. xiii Further, counsel must have some basic knowledge about the dark web, its servers, and the ability to track information and crypto-currency; is necessary today when defending cases of identity theft, money laundering, ransomware attacks, and the like. In many investigations, law enforcement is not able to identify activity down to an individual.xiv Many search warrants issued and served on internet service providers do not comply with state search warrant laws for their issuance and service.

Law enforcement tends to serve these by fax to a commercial service provider directly, instead of the person on whom Texas law requires such warrants to be served. A little reading of the statutes authorizing such warrants will reveal the basis to suppress the evidence obtained this way.

Further, in fraud cases law enforcement has made more expensive use of statistical data and it has equated certain statistics with criminality. For example, if too much of a particular prescription drug is being prescribed in a geographic location or by a particular doctor, instead of recognizing the doctor’s competency or the actual medical need for the medication; the presumption is that medications are being prescribed outside of proper medical use. This is entirely without an examination of the patient 6

file or the need for the treatment. Counsel must challenge these invalid statistical assumptions and require proof beyond a reasonable doubt with regard to each and every allegation that the doctor has committed a controlled substance distribution offence rather than provided legitimate medical treatment.

In the court room counsel must marshal every advantage through technical competency. A good understanding of PowerPoint or Keynote and adult learning and retention of information is important. But, counsel should also know how to use Trial Director to show scrolling transcripts of audio or video recordings. This gives counsel a superior command of the information with which to cross examine the speaker to challenge what they are now saying. There’s nothing more powerful than the witnesses’ own words to the contrary that will grab a jury and turn a case in your favor. Use of case preparation programs like Case map or other data bases is important to build a command of the facts and how they relate to your case. Once in the courtroom, you should already know how to operate the Elmo projection device or computer interface hardware. Visit the courtroom, sit in the witness chair, sit in the jury box or gallery, and use the hardware. Most importantly, make sure it is available and ready for you to use, or make alternate arrangements that you have practiced in that courtroom in advance. Also, it would be beneficial for you and your firm to have Clio (a cloud-based management software) to access your files.

People say that there is no longer a simple case since electronic data makes discovery in cases so overwhelming. When counsel has a terabyte or a multi - terabyte case, they must employ some forensic tools to consume and use evidence. The in the January 6 protest/insurrection in Washington DC this year, had to reach out to two private vendors to help gather, catalog, and examine the evidence taken on cell phones, cameras, and close circuit television cameras at the Capitol. And, still one doubts whether they will fully gain control of all the information. This gives me great fear that substantial amounts of Brady information will be missed.

Just imagine that some person among the thousands present may have videotaped, on their telephone, my client leaving before the Capitol doors were breached; or before any violent action was taken against law-

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enforcement. How can I gain access to that information, even if it is in the government’s possession in the telephone owner’s case?

Since we are in a world that continues to rely more and more on massive quantities of information and rapidly developing technology, we as counsel must keep up with technology and maintain competence. This is whether through it is through our own knowledge or through relying on each other and experts who have developed forensic software that’s valid and reliable. I hope this paper has given me food for thought and along with my presentation and idea about next steps when confronted with technology involved in the commission of offenses, and the investigation of them, and in the courtroom.

“Because of the vital role of lawyers in the legal process, each lawyer should strive to become and remain professional and competent in the practice of law, including the benefits and risks associated with relevant technology.” ii David E. Sanger and Julian E. Barnes, Beware Free Wi-Fi: Government Urges Workers to Avoid Public Networks, The New York Times, August 5, 2021. iii Riley v, California, 134 S.Ct 2473 (2014). iv Love v State, 543 A.W.3d 835 (Tex Crim. App 2016). v If one is searching for a stolen car, they cannot look in the drawers, cabinets, and closets of a home. vi Olivia Solon, Inside the surveillance software tracking child porn offenders across the globe; The Child Protection System helps police triage child pornography cases.

But as the system expands, it’s facing growing privacy concerns, NBC News, July 17, 2020.

Nbcnews.com/tch/internet/inside-surveillance-software-tracing-child-pornoffenders-across-globe-n1234019. vii Martin Novak, Digital Evidence in Criminal Cases Before the U.S. Courts of Appeal: Trends and Issues for Consideration. 14 Journal of Digital Forensics, Security and Law, number 4 (April 2020). viii Lorraine v. Markel American Insurance Company, 241 F.R.D. 534 (D. Md. May 4, 2007) providing guidance on admissibility of electronic evidence. ix Quoted in Martin Novak, Digital Evidence in Criminal Cases Before the U.S. Courts of Appeal: Trends and Issues for Consideration. 14 Journal of Digital Forensics, Security and Law, number 4 at page 7 (April 2020). x Id. xi Id. xii Id. at pages 7-8. xiii Dan Koenig, Investigation of Cybercrime and Technology-Related Crime (Neiassociates.org/cybercrime-and technology) last viewed October 14, 2021. i

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Recognizing that no standards for gathering and maintaining digital forensics and databases exist. xiv Dan Koenig, Investigation of Cybercrime and Technology-Related Crime (Neiassociates.org/cybercrime-and technology) last viewed October 14, 2021.

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Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation November 17, 2021 Echo Hotel Conference Center 1903 South Closner Blvd.

Edinburg, TX 78539

Topic: Special Teams | Experts & Witnesses

Speaker:

Sarah Roland 903 N Elm St Ste 101 Denton, TX 76201-6926 (940) 323-9305 phone (940) 312-6830 fax sarah@sarahroland.com www.sarahroland.com

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

______________________________

Special Teams: Experts & Other Witnesses ______________________________ Texas Criminal Defense Lawyers Association Getting Game Day Ready CDLP 2021-2022 Sarah Roland 903 N. Elm Street Denton, Texas 76201 (940) 323-9305 sarah@sarahroland.com sarahroland.com

“He falls, and is lame; he coughs, he has a stitch in his side, he has a fever and chills: when he is hungry, he cannot always kill and eat a bear;—chances of war,— sometimes the bear eats him.”

Farming 1870 Ralph Waldo Emerson The Stranger: “Sometimes you eat the bear, and sometimes, well, he eats you.”

The Big Lebowski 1998

Introduction Preparation – and luck – is the key to success in a trial – to avoid being eaten by the bear. The best lawyers in the courtroom are the lawyers who have prepared the most – the ones who have a mastery of the facts of their case and the law and really know their client and the witnesses in the case. Preparation is also the thing allows the lawyer to capitalize on those little breaks that inevitably only happen after the announcement of “ready.” Being ready for any witness that may take the stand is part of good preparation. This paper concentrates on preparation for two unique categories of witnesses: experts and snitches.

Experts 1. How do I find a good expert?

Ask around. TCDLA is a valuable resource for finding experts. Always do your homework on a potential new expert, though. Ask other lawyers who have used the expert. Read books and articles. Search online and use advanced google search or other advanced search engines. Contact the authors of the articles or books. You’d be surprised how willing many of them are to talk about their subject matter. Visit your

local medical school library. Ask other experts you have used before for referrals. Ask your investigator. Typically, experts are more than happy to help advance their area of expertise.

2. What’s the difference between a consulting expert and a testifying expert?

Pope v. State, 207 S.W.3d 352 (Tex. Crim. App. 2006) is the leading case on the distinction between consulting and testifying experts. The difference is major, and it matters.

Everyone should read Pope.

The identity, mental impressions, and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert are not discoverable. A consulting expert is not designated as a defense expert witness under Article 39.14 of the Texas Code of Criminal Procedure. Pope v. State, 207 S.W.3d 352 (Tex. Crim. App. 2006). Information regarding a consulting expert is subject to the attorney-client privilege and work product privilege. Id. If you designate a consulting expert as an expert under Article 39.14, the expert’s identity and qualifications are not protected by the work product privilege and the State may comment on your failure to call this witness to testify at trial. Id. “If a party might call an expert whom he has consulted as a witness at trial and the opposing side has requested designation of any potential experts, the party must designate that person as a testifying expert. A party who has designated a person as a potential testifying expert must be willing to divulge his name, address, telephone number, resume, and the subject matter on which he will testify.” Pope v. State, supra.

3. What if my court appointed client doesn’t have any money to hire an expert, and we need one?

Ask the court for money. Do not be timid to ask for the money necessary to defend the case. Always make the requests ex parte and sealed and always include it in the record. See Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997). The State cannot get a copy of your ex parte sealed request for expert assistance, nor can the State be at any hearing for requested assistance. Also, there is no canned request for expert assistance. Each request should be appropriately tailored to the specific facts of the case.

The authority for requesting necessary expert (investigative and/or mental health) assistance comes directly from the Code of Criminal Procedure, case law, the State Bar Guidelines, and the American Bar Association Guidelines for representation.

Article 26.05 and 26.052 of the Code of Criminal Procedure. Article 26.05(d) provides that in non-capital cases counsel: “shall be reimbursed for reasonable and necessary expenses, including expenses for investigation and for mental health and other experts.

Expenses incurred with prior court approval shall be reimbursed in the same manner provided for capital cases by Article 26.052(f) and (g), and expenses incurred without prior court approval shall be reimbursed in the manner provided for capital cases by Article 26.052(h).”

Article 26.052(f) indicates that: “[a]ppointed counsel may file with the trial court a pretrial ex parte confidential request for advance payment of expenses to investigate potential defenses.

The request for expenses must state: (1)

The type of investigation to be conducted; (2) Specific facts that suggest the investigation will result in admissible evidence; and (3) An itemized list of anticipated expenses for each investigation.”

Article 26.052(h) states that: “[t]he court shall grant the request for advance payment of expense in whole or in part if the request is reasonable.

If the court denies in whole or in part the request for expenses, the court shall: (1) State the reasons for denial in writing; (2) Attach the denial to confidential request; and (3) Submit the request denial as a sealed exhibit to record.

the the and the

Article 26.052(h) provides that: “[c]ounsel may incur expenses without prior approval of the court.

On presentation of a claim for reimbursement, the court shall order reimbursement of counsel for the expenses, if the expenses are reasonably necessary and reasonably incurred.”

Thus, the Code makes clear that it is permissible to hire experts without first obtaining court approval. It is arguably better to obtain prior court approval, though, for a few reasons. For starters, you will have an order in advance for payment. Also, if a correct, credible showing is made that the expert is necessary and the Court denies the request, there is already potential error built in the case.

Additionally, case law is well-established and clear that the trial court must provide sufficient funding for necessary defense expert assistance. The defense expert must “play a partisan role in the defense, providing defense counsel with the ‘tools’ to challenge the State’s case.” Taylor v. State, 939 S.W.2d 148 (Tex. Crim. App. 1996) (citing DeFreece v. State, 848 S.W.2d 150 (1993)). “In this context, due process, at a minimum, requires expert aid in an evaluation of a defendant’s case in an effort to present it in the best possible light to the jury.” Id. The seminal case for expert assistance, of course, is Ake v. Oklahoma, 470 U.S. 68 (1985) which held that indigent defendants in criminal cases have a due process right to stateprovided expert assistance when an ex parte showing is made to the trial judge. Ake involved a psychiatric expert. However, according to the Court of Criminal Appeals, Ake also applies to non-psychiatric experts. Rey v. State, 897 S.W.2d 333 (Tex. Crim.

App. 1995). If an indigent defendant establishes a substantial need for an expert,

without which the fundamental fairness of the trial will be called into question, Ake requires the appointment of an expert, regardless of the field of expertise. Id. Furthermore, on January 28, 2011, the Texas State Bar Board of Directors adopted the “Performance Guidelines for Non-Capital Criminal Defense Representation” (hereinafter “Guidelines”).1 Performance Guidelines for Non-Capital Criminal Defense Representation, available at https://www.texasbar.com/AM/Template.cfm?Section=Texas_Bar_Journal&Template=/CM/ ContentDisplay.cfm&ContentID=14703. “The guidelines were drafted by the State Bar Committee on Legal Service to the Poor in Criminal Matters to encourage defense attorneys to perform to a high standard of representation and to promote professionalism in the representation of citizens accused of crime.” Blackburn, J., and Marsh, A., The New Performance Guidelines in Criminal Cases: A Step Forward for Texas Criminal Justice, 74 Texas Bar Journal 7 (July 2011). “They represent an effort to ‘hold the line’ for criminal defense practitioners against a host of financial and political pressures.” Id. According to Guideline 4.1, B.9 “Counsel should consider whether expert or investigative assistance, including consultation and testimony, is necessary or appropriate.

Counsel should utilize ex parte and in camera procedures to secure the assistance of experts when it is necessary or appropriate to: a. b.

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The preparation of the defense; Adequate understanding of the prosecution’s case; c. Rebut the prosecution’s case or provide evidence to establish an available defense; d. Investigate the client’s competence to proceed, mental state at the time of the offense, or capacity to make a knowing and intelligent waiver of constitutional rights; and e. Mitigate any punishment that may be assessed after a verdict or plea of guilty to the alleged offense.”

There are updated performance guidelines forthcoming.

Additionally, Guideline 7.1, C.3 provides the following: “Counsel should complete investigation, discovery, and research in advance of trial, such that counsel is confident that the most viable defense theory has been fully developed, pursued, and refined. This preparation should include consideration of: Obtaining funds and arranging for defense experts to consult or testify on evidentiary issues that are potentially helpful (e.g., testing of physical evidence, opinion testimony, etc.).”

4. What if I run out of money from the court for my expert?

We have all been in situations like this – where, for example, we ask for $2,500 for expert assistance, and the court authorizes $500 in funds. Ask for more money. Ask even after you’ve been told no or given insufficient funds. Keep asking. Do another ex parte, sealed motion. Do not use your same motion from before. Make this a second request. (Then when you get another $500 and use it, make a third request, and so on.)

Outline for the court that the previously allocated funds have been depleted, how they were depleted, that more work needs to be done, that you have no expertise in the field, what that specific work entails, and more money is necessary to perform the additional work.

Hinton v. Alabama, 134 S.Ct. 1081 (2014), is an ineffective assistance of counsel case based on the lawyer’s failure to obtain sufficient funding for a qualified expert who was necessary to rebut the State’s case.

Hinton was a death penalty case. The physical evidence consisted solely of a revolver and six bullets. The State's case turned on whether its expert witnesses could convince the jury that the six recovered bullets had indeed been fired from the Hinton revolver. Id. at 1084. Recognizing that Hinton's defense called for an effective rebuttal of the State's expert witnesses, Hinton's attorney filed a motion for funding to hire an expert witness of his own. In response, the trial judge granted $1,000 with this statement:

"`I don't know as to what my limitations are as for how much I can grant, but I can grant up to $500.00 in each case [that is, for each of the two murder charges, which were tried together] as far as I know right now and I'm granting up to $500.00 in each of these two cases for this. So if you need additional experts I would go ahead and file on a separate form and I'll have to see if I can grant additional experts, but I am granting up to $500.00, which is the statutory maximum as far as I know on this and if it's necessary that we go beyond that then I may check to see if we can, but this one's granted.'" ___ So.2d ___, ___, 2006 WL 1125605, *59 (Ala.Crim.App., Apr. 28, 2006) (Cobb, J., dissenting) (quoting Tr. 10).

Hinton's attorney did not take the judge up on his invitation to file a request for more funding. Id. With the limited funding provided by the court, Hinton’s lawyer found a woefully underqualified expert who testified at trial. The United States Supreme Court ultimately held that “[t]he trial attorney's failure to request additional funding in order to replace an expert he knew to be inadequate because he mistakenly believed that he had received all he could get under Alabama law constituted deficient performance.” Id. at 1088.

5. What if I am retained and we need an expert but my client doesn’t have any more money?

The Court of Criminal Appeals answered this very question in Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005), a child death case. Quite simply, as retained counsel, you may not put off investigating medical issues or put off consulting with necessary experts until your client pays you money for experts. Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005). In Briggs, the Court of Criminal Appeals spelled out three options if your client cannot afford experts:

“ (1)Subpoena to testify at trial the experts who treated your client, introduce at trial the records through these experts, and have these experts provide their expert opinions; (2)Withdraw from the case after proving to the judge your client’s indigence; or (3) Remain on the case and take a reduced fee but request an investigator and experts from the trial judge for a now-indigent client pursuant to Ake.” Id. at 468.

Importantly, the Court of Criminal Appeals further recognized that: “If any reasonable attorney appointed to represent an indigent defendant would be expected to investigate and request expert assistance to determine a deceased infant's cause of death, a privately retained attorney should be held to no lower standard.

As the Supreme Court has explained, "The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant's entitlement to constitutional protection.. . . [W]e see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers.” Id. at 468469 (internal citations omitted).

6. What do I need to give my expert?

Communication with your expert is key. Prior to obtaining funding or paying for expert assistance you will have already talked preliminarily with your expert. Begin to set expectations at that time.

Once the expert is officially hired or appointed, he or she becomes part of the defense team. Send an engagement letter to your expert so that the expert will know what is expected. Also, in the engagement letter, make sure the expert knows that he or she is part of the defense team and that all information the expert receives is privileged and confidential. Finally, let the expert know that he or she is being retained (at least initially) as a consulting expert. As a practice point, wait until the expert has done all the necessary work in the case before designating the expert as a testifying expert.

Make certain your expert has as much information as possible to form a credible and reliable opinion. The expert needs to know the worst facts of the case. Providing the expert a copy of the discovery that is provided to you by the State is a must. The expert must have a working knowledge of the facts of the case. Obviously, the type of expert dictates what information is necessary. For instance, a false confession expert needs to have reviewed in detail every statement the accused has made whether that be in writing or recorded. Likewise, in a case where psychological testimony about your client is anticipated, you do not want an MMPI conducted by your expert because this could result in a finding that your client is antisocial. The State will undoubtedly use this against your client at trial if your expert testifies. You do not want to put your expert, your client or yourself in the position where your expert learns about crucial information for the first time on cross-examination.

7. Do I have to provide notice to the State that I have an expert?

Yes, if notice is requested by the State or ordered by the trial court. If neither of those conditions precedent are met, then we are not obligated to provide such notice and should not do so. However, we should always request notification of experts in our Article 39.14 requests regardless of whether we think the State may have an expert. Be sure to request copies of the expert’s report, curriculum vitae, underlying facts or data relied upon, bench notes, diagrams, etc. Subpoena a copy of the expert’s entire file. It is often different than what the State may have provided.

Article 39.14(b) of the Texas Code of Criminal Procedure states, “On a party’s request made not later than the 30th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin, the party receiving the request shall disclose to the requesting party the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of evidence. Except as otherwise provided

by this subsection, the disclosure must be made in writing in hard copy form or by electronic means not later than the 20th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin. On motion of a party and on notice to the other parties, the court may order an earlier time at which one or more of the other parties must make the disclosure to the requesting party.”

8. Do I need to have my expert make a report?

Not necessarily. There is no requirement for a written report. In some cases, it is better to have a report and others it is not. There is no right or wrong answer for this question.

It just depends on the facts of the case.

The key to answering this question in your specific case is communication with your expert. Find out what the expert would include in the report before you request a report.

Ask your expert – after he/she has reviewed everything, met with the client, etc. – what the worst thing is about the case. We have to know the answer to the “worst” question so that we can address it at trial or plan a way around it, if possible. Also, that will normally dictate whether you want a written report or not.

9. Do I have to give the State a copy of my expert’s report?

No. Article 39.14 requires notice of the expert’s name and address. However, if your expert has prepared a solid report it may be a good strategic move to provide the report to the State and/or its expert right before trial as such would provide ample ammunition for cross examination.

10. Can I talk to the State’s expert?

Rule 4.02(b) of the Texas Disciplinary Rules of Professional Conduct discusses “Communication with One Represented by Counsel” and states as follows: “In representing a client a lawyer shall not communicate or cause another to communicate about the subject of representation with a person or organization a lawyer knows to be employed or retained for the purpose of conferring with or advising another lawyer about the subject of the representation, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” Comment 3 to this rule states as follows: “Paragraph (b) of this Rule provides that unless authorized by law, experts employed

or retained by a lawyer for a particular matter should not be contacted by opposing counsel regarding that matter without the consent of the lawyer who retained them. However, certain governmental agents or employees such as police may be contacted due to their obligations to the public at large .” (emphasis

added). The medical examiner and State crime lab scientist also fall under the umbrella of having an obligation to the public at large so may be contacted. However, if the State’s expert doesn’t fall within this umbrella, then be sure to get permission to speak to the expert ahead of time.

Talk to the State’s expert every time. There is no reason not to talk to the State’s expert.

Remember it’s a time to gather information and share information only if it is necessary or helpful. Take someone with you when you talk to the State’s expert. You will be surprised what you learn. Remember, real scientists are advocates for the science not the side.

11. Should I request a hearing on the State’s expert prior to the expert’s testimony?

Yes. Rule 705(b) of the Texas Rules of Evidence provides that “[b]efore an expert states an opinion or discloses the underlying facts or data, an adverse party in a civil case may – or in a criminal case must – be permitted to examine the expert about the underlying facts or data. This examination must take place outside the jury’s hearing.” With exceptionally limited circumstances, we should be requesting hearings on every expert every time. Those limited circumstances are case, witness, and strategy dependent. The hearing is conducted to test the admissibility of the expert’s opinion, obtain discovery, ensure you have copies of everything the expert has used to form the opinion, to get a record of what the expert has to say, and gain knowledge about fruitful grounds for cross-examination.

Texas Rules of Evidence 104, 401, 402, and 702 provide the basic conditions precedent for expert testimony. See Vela v. State, 209 S.W.3d 128 (Tex. Crim. App. 2006). Rule 104 requires that “[t]he court must decide any preliminary question about whether a witness is qualified…” and that “[t]he court must conduct any hearing on a preliminary question so that the jury cannot hear it if…justice so requires.” Rules 401 and 402 render testimony admissible only if it “tends 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. Rule 702 permits expert testimony only “if the expert’s

scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Accordingly, expert testimony that would only serve to confuse the issue or evidence for the trier of fact should not be admitted. The expert should be able to clearly explain the scientific, technical, or other specialized knowledge in a manner that lay, non-experts, i.e. the jury or the judge, can understand, and it must in some way be relevant to the case.

According to the Court of Criminal Appeals, “[t]hese rules require a trial judge to make three separate inquiries all of which must be satisfied before admitting expert testimony: (1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the factfinder in deciding the case. Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App. 2006); see also Malone v. State, 163 S.W.3d 785 (Tex. App. – Texarkana 2005, pet. ref’d) and TRE 702. “These conditions are commonly referred to as (1) qualification, (2) reliability, and (3) relevance.” Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006); Escamilla v.

State, 334 S.W.3d 263 (Tex. App. – San Antonio 2010, pet. ref’d).

Qualification There is not a tremendous amount of guidance on the qualification prong of the analysis. Daubert tells us that the inquiry regarding whether or not an expert qualifies is “a flexible one.” 509 U.S. 594 (1993). “It is almost impossible to lay down any definite guidelines for determining knowledge, skill or experience required in a particular case or of a particular witness.” Rogers v. Gonzales, 654 S.W.2d 509, 513 (Tex. App. – Corpus Christi 1983, writ ref’d n.r.e.) While the proponent of the testimony has the burden of establishing the expert’s qualifications, the trial court has the responsibility to ensure that the experts truly have expertise concerning the actual subject about which they are offering an opinion. Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996). A degree alone is not enough to qualify a purported expert to give an opinion, as the case may be, on every conceivable medical question, legal question, or psychological question. Rosie v. State, 7 S.W.3d 225 (Tex. App. – Austin 1999, pet. ref’d).

“The inquiry must be into the actual qualification. That is, there must be a fit between the subject matter at issue and the expert’s familiarity therewith.” Broders, 924 S.W.2d at 153.

The proponent of scientific evidence must show, by clear and convincing proof, that the evidence is sufficiently reliable and relevant to assist the jury in understanding other evidence or in determining a fact issue. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). To be considered reliable, evidence based on a scientific theory must satisfy three criteria: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. Hartman v. State, 946 S.W.2d 60, 62 (Tex. Crim.

App. 1997) (citing Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992); see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

With nonscientific expert testimony involving technical or other specialized knowledge, experience, or training, the expert may testify if three criterion are met: (1) whether the field of expertise is a legitimate one; (2) whether the subject matter of the expert’s testimony is within the scope of that field; and (3) whether the expert’s testimony properly relies on or utilizes the principles involved in the field. Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998), overruled in part on other grounds, State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999).

A list of nonexclusive Kelly factors for “hard science” that should be addressed with every expert during a qualification hearing is as follows: • The extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such community can be ascertained • The qualifications of the expert testifying • The existence of literature supporting or rejecting the underlying scientific theory or technique • The potential rate of error of the technique • The availability of other experts to test and evaluate the technique • The clarity with which the underlying scientific theory and technique can be explained to the court • The experience and skill of the person who applied the technique on the occasion in question Keep this checklist with you. Use it as your outline for your expert hearings. And, importantly, make certain that you physically inspect everything the expert brings with

them to court. Find out what the expert reviewed but didn’t bring. Make the expert list out everything that he/she reviewed prior to testifying in the case. There is typically always something significant that the expert hasn’t reviewed and/or been provided.

A trial judge’s gate keeping obligation under Rule 702 – to insure that the expert witness’s testimony rests upon a reliable foundation and is relevant to the task at hand applies to all expert testimony not just scientific expert testimony. Roise, 7 S.W.3d at 235-36 (citing Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999)); see also Jackson v.

State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000).” Harnett v. State, 38 S.W.3d 650 (Tex. App. - Austin 2000, pet. ref’d). Before an expert may give an opinion in a case, three criteria must be met: (1) the witness must be competent and qualified to testify; (2) the subject must be one upon which the aid of an expert’s opinion will be of assistance to the jury; and (3) his testimony may not state a legal conclusion. Sattiewhite v. State, 786 S.W.2d 271 (Tex. Crim. App. 1989). To be admissible, expert testimony must assist the jury on a matter in which the jury is not qualified to intelligently determine the matter without the help of the expert. Schutz v. State, 957 S.W.2d 52 (Tex. Crim. App. 1997).

The expert testimony, however, must aid – not supplant – the jury’s decision. Id. It is worthwhile to remind the trial court consistently of its gatekeeping function and that it shouldn’t operate as a rubber stamp. It is common knowledge that junk science is a leading cause of wrongful convictions. After all, “[e]xpert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under [FRE] 403 of the present rules exercises more control over experts than over lay witnesses.

Daubert, 509 U.S. 579, 592-93.; see also Emerson v. State, 880 S.W.2d 759, 763 (Tex. Crim.

App. 1994).

12. Do I need to have my expert testify at trial?

Not necessarily. Just because you have an expert and have even designated an expert doesn’t mean you have to call the expert. Sometimes you know going in that your expert will need to testify. Other times, it’s not so clear, and you must gauge whether it’s worth it – a judgment call. As with every witness there are points to be gained and points to lose. It’s always a question of whether the net will be positive. However, be sure to prepare your expert for the possibility that he/she may not actually testify depending on the ebb and flow of trial.

As a practice point, though, don’t promise or mention your expert in jury selection or in opening. On the other hand, if you promise expert testimony in opening be sure to deliver in order to maintain credibility with the jury. Also, always be on guard for any argument or question(s) that may (attempt to) shift the burden of proof or undermine the presumption of innocence as such seems to be a default argument from the State when the defense has an expert. Prepare the jury for any such attempt by the State in jury selection. Be sure to educate the jury on the presumption of innocence, get everyone on “team innocent,” and indoctrinate them to the “take a knee” philosophy – stop when you are ahead. Then, to bring it full circle, when it is time to rest confidently say, “Your honor, based on the law and the state of evidence we rest.”

13. Can an expert testify that the complainant was abused?

The court in United States v. Charley, 189 F.3d 1251 (10th Cir. 1999), gave an excellent breakdown of how courts have handled the issue of whether or not a doctor may testify that, in the doctor’s opinion, the child complainant was abused. In Charley, the doctor testified that, based solely upon the statements of the children to the doctor and to other people, the doctor concluded that the children had been abused. There was no physical evidence of sexual abuse found by the doctor. The court held that this testimony was inadmissible.

“Here, no reliability determination was made at all with respect to Dr. Ornelas’ unconditional opinion that D.J. and J.J. were sexually abused. As a practical matter, that issue might have been disposed of simply by sustaining the objection, on foundation grounds, to the question seeking to elicit Dr. Ornelas’s opinion. At that point, government counsel might have approached the subject in a more acceptable way, and if not, a bench conference could have ended the line of questioning. Or, the subject could have been explored and passed on prior to trial, in the sound discretion of the trial judge. See Kumho Tire, 119 S. Ct. at 1176. But, as it happened, nothing was adduced here which demonstrates that the testimony had an adequate foundation. The record does not disclose, for example, what data would support ruling out all causes except sexual abuse for the girls’ physical complaints, or to what degree Dr. Ornelas relied on her purely subjective views. Cf. id. at 1177. Indeed, Dr. Ornelas herself, as indicated above, ordered a work-up to determine if an anatomical problem (rather than sexual abuse, presumably) was causing the girls to wet the bed. III R. at 324-25. Thus, if Dr. Ornelas’s unqualified opinion was based on the girls’ medical history, there is insufficient support in this record for the district court’s decision to admit it. See Gier v.

Educational Serv. Unit No. 16, 845 F. Supp. 1342 (D. Neb. 1994) (conducting a reliability inquiry and determining that expert opinion testimony that sexual abuse in fact occurred

was, in that particular case, not reliable), aff’d, 66 F.3d 940 (8th Cir. 1995).” “On the other hand, if Dr. Ornelas’ opinion was largely based on crediting the girls’ account, whether disclosed to her or others, she was essentially vouching for their truthfulness.

In general, expert testimony which does nothing but vouch for the credibility of another witness encroaches upon the jury’s vital and exclusive function to make credibility determinations, and therefore does not “assist the trier of fact” as required by Rule 702.

See United States v. Azure, 801 F.2d 336, 339-40 (8th Cir. 1986); see also United States v.

Shay, 57 F.3d 126, 131 (1st Cir. 1995); Whitted, 11 F.3d at 785-86; Weinstein’s Federal Evidence § 702.03[5] (1998). Indeed, the government concedes that, in this case, testimony to the effect that D.J. and J.J. were ‘telling the truth . . . would be impermissible.’ Appellee’s Br. at 26. Most courts that have considered the issue have concluded that expert testimony, based on the statements of the alleged victim, that sexual abuse in fact occurred is inadmissible under Fed. R. Evid. 702 (or similar military or state evidentiary rules) because, in such cases, the expert offering the opinion is merely vouching for the credibility of the alleged victim. Thus, if Dr. Ornelas largely based her opinion on the statements of the girls, then under the foundation (or lack thereof) presented in this case, we consider it inadmissible. Therefore, regardless of whether Dr. Ornelas’s conclusion was based on the girls’ medical history or on their allegations of abuse, its admission was erroneous.”

14. Can an expert comment on truthfulness?

The short answer is no. This is a hard issue to determine or recognize in the middle of trial at times. If you think you should object, object. You can usually assume in a child abuse case that the State may have the expert do exactly that, though. Therefore, it is advisable to litigate this issue pretrial through a motion in limine. Remember, though, to object during trial because motions in limine do not preserve anything for appeal.

In Salinas v. State, 166 S.W.3d 368 (Tex. App. - Fort Worth 2005, pet. ref’d), a pediatrician testified she diagnosed sexual abuse based solely upon the history provided by the child-complainant. The appellant claimed that such evidence was improperly admitted expert testimony that directly commented on the credibility of the complainant. The appellate court held that because there was no physical evidence of digital penetration, the doctor’s “testimony could only be seen as an attempt to directly bolster the credibility of the complainant and a direct comment on the complainant’s truthfulness.” “The trial court abused its discretion in admitting the pediatrician’s testimony that she had diagnosed sexual abuse based on the child’s medical history.”

Pediatricians have been recognized as expert witnesses in sexual abuse cases, provided they do not testify that such children are truthful. Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993).

Rape crisis counselors have been recognized as expert witnesses in sexual abuse cases, provided they do not testify that the child is telling the truth. Black v. State, 634 S.W.2d 356 (Tex. App. - Dallas 1982, no pet.); Miller v. State, 757 S.W.2d 880 (Tex. App. – Dallas 1988, pet. ref’d).

15. How do I know what to ask my expert?

Communication with your expert is key. You must talk to your expert long before he or she testifies. Know what information you need to get out of your expert. Make sure your expert can adequately and clearly explain the scientific – whether hard or soft science – issues to you. Ask your expert questions. If you do not understand what the expert is telling you there is no way the jury will understand what the expert is saying.

In Ex parte Ard, No. AP-75,704 (Tex. Crim. App. 2009) (per curiam) (not designated for publication), an aggravated sexual assault of a child case, the Court of Criminal Appeals held that trial counsel’s performance was deficient in that counsel failed to adequately prepare and present expert testimony concerning memory implantation.

The applicant's defensive theory at trial was that the complainant’s accusations were a result of suggestion and coaching which tainted the complainant’s memory. Trial counsel even had an expert witness – psychologist – testify. However, the Court of Criminal Appeals noted: “Though Dr. Michael Gottlieb, an expert on the subject, was ready and able to explain how false memory may be implanted by repetitious suggestion, trial counsel failed to adequately elicit testimony from the doctor that the theory is the subject of many treatises and is widely accepted by the scientific community, to explain how

and why it can occur, and to enumerate those facts which, in his opinion, made the testimony of the alleged victim in the case suspect and unreliable. This failure on the attorney's part fell below any objective standard of reasonableness, and there is a reasonable probability that, but for it, the result of the trial would have been different. This court finds that the inadequate presentation of such evidence, crucial to Applicant's defense, was, under the standard of Strickland v. Washington, 466 U.S. 668 (1984), ineffective assistance of counsel. Considering the deficiencies in the presentation of Dr. Gottlieb's testimony, based on a comparison of his trial testimony and his writ hearing testimony, it is the opinion of this court that there can be no confidence in the outcome of the trial.” Id. …

Dr. Gottlieb's trial testimony before the jury differed markedly from his writ-hearing testimony, not only in scope but in substance as well. In general, Dr. Gottlieb's writ testimony was far more comprehensive than his trial testimony.

The differences between the two cannot be attributed to counsel's trial strategy.” Id.

The moral of the case then is communication with your expert such that allows you to elicit necessary defensive expert testimony. Clearly, the opinion indicates that Dr. Gottlieb provided testimony at trial and at the habeas hearing on the same subject.

Remember, the witness can only answer the questions that are asked. It is not enough to just have an expert witness. Be prepared to fully use the expert witness to the greatest extent possible.

16. Can an expert testify about diminished capacity due to mental illness or disease?

No. There is no diminished capacity defense in Texas. “The Texas Legislature has not enacted any affirmative defenses, other than insanity, based on mental disease, defect, or abnormality. Thus, they do not exist in Texas.” Ruffin v. State, 270 S.W.3d 586, 594 (Tex. Crim. App. 2008).

However, “such expert evidence might be relevant, reliable, and admissible to rebut proof of the defendant's mens rea.” Id. at 595. The leading case on this topic is Ruffin v.

State, 270 S.W.3d 586. Be sure to read, study and have this case on hand for any trial in which your client has a mental illness, disease, or defect that is just shy of insanity. In Ruffin, the Court of Criminal Appeals “repeat[ed] and reaffirm[ed] our holding in Jackson that ‘relevant evidence may be presented which the jury may consider to negate the mens rea element. And this evidence may sometimes include evidence of a defendant's history of mental illness.’” Id. at 596.

As a cautionary tale, the State will typically try to keep expert testimony about mental illness out if it falls short of insanity. This is obviously because the nature of this evidence tends to mitigate. Again, this is where it is key to have an open line of communication with your expert. Knowing there is no diminished capacity defense in Texas and that the State will inevitably try to limit the expert’s testimony, just means that you and your expert have to game plan and prepare proper questions in advance.

Confidential Informants, Jailhouse Informants, and Accomplices (a.k.a. Snitches, Rats) 1. Confidential Informants

While the snitch is usually someone the defendant knows or suspects, this is not always the case. Even if the accused believes he knows the identity of the snitch, it is incumbent upon the defense lawyer to file a motion to disclose the identity of the confidential informant. (Note: parrot the name used by law enforcement in your motion…that name is never “snitch”).

Law enforcement routinely misinforms their confidential informants/sources that the informant’s identity will be kept privileged in order to get the informant to play ball. However, a cursory look at Rule 508 of the Texas Rules of Evidence provides that such a privilege is indeed limited. In full, Rule 508 provides as follows: “(a)General Rule. The United States, a state, or a subdivision of either has a privilege to refuse to disclose a person’s identity if: (1) the person has furnished information to a law enforcement officer or a member of a legislative committee or its staff conducting an investigation of a possible violation of law; and (2) the information relates to or assists in the investigation. (b) Who May Claim. The privilege may be claimed by an appropriate representative of the public entity to which the informer furnished the information. The court in a criminal case must reject the privilege claim if the state objects. (c) Exceptions.

(1) Voluntary Disclosure; Informer a Witness. This privilege does not apply if: (A) the informer’s identity or the informer’s interest in the communication’s subject matter has been disclosed—by a privilege holder or the informer’s own action—to a person

who would have cause to resent the communication; or (B) the informer appears as a witness for the public entity.

(2) Testimony About the Merits.

(A) Criminal Case. In a criminal case, this privilege does not apply if the court finds a reasonable probability exists that the informer can give testimony necessary to a fair determination of guilt or innocence. If the court so finds and the public entity elects not to disclose the informer’s identity: (i) on the defendant’s motion, the court must dismiss the charges to which the testimony would relate; or (ii) on its own motion, the court may dismiss the charges to which the testimony would relate.

(B) Certain Civil Cases. In a civil case in which the public entity is a party, this privilege does not apply if the court finds a reasonable probability exists that the informer can give testimony necessary to a fair determination of a material issue on the merits.

If the court so finds and the public entity elects not to disclose the informer’s identity, the court may make any order that justice requires.

(C) Procedures. (i) If it appears that an informer may be able to give the testimony required to invoke this exception and the public entity claims the privilege, the court must give the public entity an opportunity to show in camera facts relevant to determining whether this exception is met.

The showing should ordinarily be made by affidavits, but the court may take testimony if

it finds the matter cannot be satisfactorily resolved by affidavits. (ii) No counsel or party may attend the in camera showing. (iii) If the informer’s identity is disclosed in camera, the court must seal and preserve for appeal the record of the in camera proceeding. The record of the in camera proceeding must not otherwise be revealed without the public entity’s consent.” (emphasis added). Clearly, the privilege is not absolute. And, like all privileges, the State can choose whether to exercise the privilege or not – meaning, the State is not required to keep the informant’s name confidential to begin with.

In Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) the Supreme Court of the United States held that the identity of the informant (as you might expect, the Supreme Court prefers “confidential informant” to “snitch”) must be revealed where the informant: (1) participated in the offense; (2) was present at the time of the offense or arrest; (3) or is a material witness as to the culpable mental state of the defendant.

Think this over for a second: how many times do you think snitches in drug cases conduct hand-to-hands for police? Are present when the accused is arrested, or is present when the accused is (allegedly, of course) buying, cooking, or selling drugs; is negotiating drug transactions; etc.? This happens all the time.

In addition to Roviaro, Rule 508(c)(2) of the Texas Rules of Criminal Evidence provides that the identity of the informant must be revealed when “the informant

may be able to give testimony necessary to a fair determination of the issue of guilt, innocence.”

Rule 508’s mandate has been held to be broader than Roviaro. See Bodin v. State, 807 S.W.2d 313 (Tex.Cr.App.1991). So now we have four situations where the identity of the informant must be revealed; when the informant: (1) participated in the offense; or (2) was present at the time of the offense or arrest; or (3) is a material witness as to the culpable mental state of the defendant; or (4) may be able to give testimony necessary to a fair determination of the issue of guilt/innocence.

A few points are notable about the fourth exception.

First, note that the identity of the snitch must be revealed where the snitch may be able to give testimony as to guilt/innocence. There is no requirement that the defense be able to definitively prove that the snitch can absolutely give such testimony—only that the defense show it may be necessary. This makes sense: if the defense does not know what the informant would/would not be able to testify to, how could the defense definitively prove that the informant’s testimony would be absolutely necessary towards a fair determination of guilt or innocence? We couldn’t. And, that’s why the defense is only required to make a “plausible showing of how the informant’s information may be important.” Bodin, 807 S.W.2d at 318.

Second, note that for this exception, the snitch doesn’t have to have participated directly; be present at the time of the arrest or offense; or be a material witness to the

culpable mental state of the defendant. See Bodin, 807 S.W.2d, for example. In this way, it is broader than the three stated Supreme Court exceptions.

So, what happens if the Court determines that the Government does have to give up the name of the snitch? The State may elect whether or not it will disclose the informant’s identity—but there is a catch: if the State refuses to name the snitch, the Court must dismiss the charges upon motion of the defense.

So, it’s either give up the name of a snitch (who is likely snitching to work off their own charge(s)) who the police couldn’t, quite frankly, care less about, or give up the name of the snitch and nail a big(ger)-time drug player…which do you think the Government is inclined to do?

In addition to Rule 508 of the Rules of Evidence, the defense should always request the State to disclose the identity of the informant on relevant federal and state constitutional guarantees, too: right to present a defense rooted in the Due Process guarantees; right to effective assistance of counsel; and the right to compulsory process of witnesses.

It is also a good practice to request all information related to any informant in the initial request under Article 39.14 of the Code of Criminal Procedure.

2. The Jailhouse Rat, a.k.a. The Jailhouse Informant In 2009, the legislature added a requirement of corroboration to testimony often called jailhouse snitch testimony. Article 38.075 of the Code of Criminal Procedure provides:

“(a) A defendant may not be convicted of an offense on the testimony of a person to whom the defendant made a statement against the defendant’s interest during a time when the person was imprisoned or confined in the same correctional facility as the defendant unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed. (b)Corroboration is not sufficient for the purposes of this article if the corroboration only shows that offense was committed.”

Article 38.075 was enacted in recognition that incarcerated individuals have an incentive to provide information against other incarcerated individuals and that this testimony should be corroborated. Senate Comm. On Criminal Justice, Bill Analysis, Tex. S.B. 1681, 81st Leg., R.S. (2009). Article 38.075’s legislative history recognizes that “[t]he veracity of an in-custody informant’s statement can be highly suspect,” and that “[t]he testimony of [an] in-custody informant” should be corroborated by at least one other piece of evidence. Id.; See also, House Research Organization, Bill Analysis, Tex. S.B. 1681, 81st Leg., R.S. 17 (2009) (“Supporters say [that] . . . because jailhouse informants have a strong incentive to fabricate confessions or incriminating evidence in exchange for lighter sentences or the goodwill of the criminal justice system, it is important to make sure that their testimony is corroborated by at least one additional piece of evidence.”). Consider that: the jailhouse informant is so inherently untrustworthy that the word of the jailhouse informant alone is without any evidentiary value; corroborating evidence is required.

At best, “jailhouse-witness testimony is inherently unreliable due to the inmate’s incentive to better his circumstances.” Phillips v. State, 463 S.W.3d 59, 66 (Tex. Crim.

App. 2015).

3. The Accomplice The definition of accomplice witness is one who is a “party” to the offense as defined in Sections 7.01 and 7.02 of the Penal Code. Section 7.01 provides: “(a) A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. (b) Each party to an offense may be charged with commission of the offense.

(c) All traditional distinctions between accomplices and principals are abolished by this section, and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice.”

Similarly, Section 7.02 provides “(a) A person is criminally responsible for an offense committed by the conduct of another if:

(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or non-responsible person to engage in conduct prohibited by the definition of the offense; (2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or

(3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.

(b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.”

The accomplice witness rule is contained in Article 38.14 of the Code of Criminal Procedure: “A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”

As noted by Dix and Schmolesky, “the rule is one of evidence sufficiency.” 43A Texas Practice: Criminal Practice and Procedure 51:66 (3d. 2011) (emphasis in original).

Admissibility of accomplice testimony is not addressed by Article 38.14. Id. (internal citations omitted). There is also, of course, no requirement of corroboration of accomplice testimony tending to exculpate the accused.

Regarding the accomplice witness rule, the Court of Criminal Appeals has observed:

“The underlying premise behind the accomplice witness rule is the idea that an accomplice witness is a ‘discredited witness’ and that the ‘testimony of an accomplice witness is to be carefully scrutinized not only because of any interest he or she might have, but because her or his testimony is evidence from a corrupt source.’”

Beathard v. State, 767 S.W.2d 423, 429 (Tex. Crim. App. 1989), quoting from Paulus v. State, 633 S.W.2d 827, 843 (Tex. Crim. App. 1981) (dissenting opinion on original submission adopted as majority opinion on rehearing). The same sentiment obviously applies to jailhouse snitches, see supra, too. Furthermore: “No matter how complete a case may be made out by an accomplice witness or witnesses, a conviction is not permitted unless he or they are corroborated.”

Walker v. State, 615 S.W.2d 728, 731 (Tex. Cr. App. 1981).

Accordingly, the Court of Criminal Appeals has determined there is only a single standard for determining the sufficiency of the corroborating evidence in the accomplice witness context. Id. at 51:98 (citing Munoz v. State, 853 S.W.2d 558, 559-60 (Tex. Crim. App. 1993)). The Court described the standard as follows: “The test as to the sufficiency of the corroboration is to eliminate from consideration the evidence of the accomplice witness and then to examine the evidence of other witnesses with the view to ascertain if there be inculpatory evidence, that is evidence of incriminating

character which tends to connect the defendant with the commission of the offense.”

Id. (citing Reed v. State, 744 S.W.2d 112, 125 (Tex. Crim. App. 1988)). The critical question, then, in ascertaining the sufficiency of the non-accomplice witness evidence is whether that evidence tends to connect the defendant to the commission of the crime.

Such always involves a fact intensive analysis.

A witness is an accomplice witness within the meaning of the accomplice witness rule only if that witness is called by the State at trial. Dix and Schmolesky 43A Texas Practice: Criminal Practice and Procedure 51:85 (3d. 2011). So, watch out: this means that if the defense calls an accomplice witness who provides some inculpatory testimony there need not be any corroboration of that testimony and the jury need not be instructed in accordance with Article 38.14.

Jury charge error is still a fertile area on appeal. This is especially true regarding charging the jury on accomplice witnesses. For purposes of the jury charge, an accomplice witness is either an accomplice as a matter of law or an accomplice as a matter of fact. Case law suggests that, as a general rule, this is the case only when uncontradicted evidence, or evidence so persuasive a jury could not reasonably disregard it, shows facts that unquestionably make the witness guilty of the crime, i.e., an accomplice. Undoubtedly, a witness is an accomplice as a matter of law if the witness is a codefendant or the witness’s own testimony acknowledges participation in the offense with which the defendant is charged. If the evidence clearly shows, that a

witness is an accomplice witness the court is under a duty to so instruct the jury. Dix and Schmolesky 43A Texas Practice: Criminal Practice and Procedure 51:88 (3d. 2011).

If the evidence raises a question as to whether a state witness is an accomplice witness but does not establish that the witness is an accomplice as a matter of law – i.e., the witness is an accomplice as a matter of fact – the trial court errs in failing to submit the issue of the witness’s status to the jury. Harris v. State, 645 S.W.2d 447, 459 (Tex. Crim. App. 1983). Always request the trial court to instruct the jury that the witness is an accomplice as a matter of law. That request preserves the error for appeal. If a witness for the state is an accomplice as a matter of law, the trial court errs in submitting the witness’ status to the jury. Rather, it must instruct the jury that the witness is an accomplice as a matter of law and therefore, the jury must find that the state’s evidence provides corroboration in order to convict on the witness’s testimony. Dix and Schmolesky 43A Texas Practice: Criminal Practice and Procedure 51:90 (3d. 2011).

Specifically, if an accomplice as a matter of law, the jury charge should identify the witness by name and inform the jury that the witness is an accomplice if an offense was committed.

The need for corroboration under the accomplice witness rule is independent of the need for the jury to evaluate the ultimate credibility of an accomplice witness.

An instruction that obscures this is a prohibited comment on the weight of the testimony of the accomplice witness. Dix and Schmolesky 43A Texas Practice: Criminal Practice and Procedure 51:93 (3d. 2011). A correct accomplice witness instruction

generally first informs the jurors that they must find the accomplice’s testimony to be true and to show the accused’s guilt. Only if and when they reach those conclusions, instructions generally continue, are the jurors to address whether corroboration has been presented. Id. citing Campbell v. State, 57 Tex. Crim. 301, 123 S.W. 583, 584 (1909) (opinion on motion for rehearing) (approving “as a correct charge” an instruction that so provides); see also Farris v. State, 819 S.W.2d 490, 507 (Tex. Crim. App. 1990); Holladay v. State, 709 S.W.2d 194, 202 (Tex. Crim. App. 1986).

Jury charge issues about accomplices are confusing. Bottom line: if in doubt about whether the charge is correct, object! This creates a jury charge issue on appeal where a showing of only some harm is required.

Conclusion Being prepared for and correctly handling expert witnesses and snitches significantly increases the likelihood of success in trial. May you eat the bear.

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation November 17, 2021 Echo Hotel Conference Center 1903 South Closner Blvd.

Edinburg, TX 78539

Topic: Rules of the Game/Penalties | Client Relationships & Communications

Speaker:

Dustin Nimz

900 8th St. Ste 1230 Wichita Falls, TX 76301-6814 (940) 766-5335 phone (940) 403-2525 fax dustin@nimzlaw.com www.nimzlaw.com

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

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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.

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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

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