13th Annual Jolly Roger Hal Jackson Memorial Criminal Law Course

13th Annual

Jolly Roger Hal Jackson Memorial Criminal Law Course

Course Directors: Hayley Brown and Patty Tress December 11, 2020

Cosponsored by TCDLA and DCDLA

13TH ANNUAL JOLLY ROGER HAL JACKSON MEMORIAL CRIMINAL LAW SEMINAR: BATTLING THE RESISTANCE SEMINAR INFORMATION Date Location Course Director

December 11, 2020 Livestream Event Hayley Brown and Patty Tress

Total CLE Hours 6.0 6.0 Friday, December Ethics: 1.0 11,

Time

Ethics: 1.0

2020

CLE

8:25 am

Daily CLE Hours: 6.0 Topic

Ethics: 1.0

Speaker

Opening Remarks

Hayley Brown and Patty Tress

8:30 am

.75

The More Important the Action, the Greater the Resistance: (Cross Examination)

Laurie Key

9:15 am

1.0

The Battle Must be Fought Anew Every Day: (Pretrial)

Allison Mathis

10:15 am 10:30 am

Break .75

11:15 am 11:30 am

The Resistance is Fueled by Fear: (Opening Statements)

Jessica Canter

Lunch Break 1.0 ETHICS

12:30 pm

The Resistance is Self-Sabotage: (Mental Health)

Robert Sullivan

Break

12:45 pm

.75

Procrastination; the Most Common Resistance and the Easiest to Rationalize: (Voir Dire)

Blakely Mohr

1:30 pm

.75

Controlling the Perceptions: (Experts)

John Fritz

2:15 pm

1.0

When the Finish Line is in Sight: (Jury Instructions and Closing Arguments)

Christie Merchant and Kristin Brown

3:15 pm

0

Local Update and Roundtable

Hayley Brown and Patty Tress

3:30 pm

Adjourn

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

Texas Criminal Defense Lawyers Association

13th Annual Jolly Roger Hal Jackson Memorial Criminal Law Seminar: Battling the Resistance Table of Contents

Speaker

Topic Friday, December 11, 2020

Jessica Canter John Fritz Laurie Key Allison Mathis Christie Merchant Kristin Brown Blakely Mohr Robert Sullivan

The Resistance is Fueled by Fear: Opening Statements Controlling the Perceptions: Experts The More Important the Action, the Greater the Resistance: Cross Examination The Battle Must be Fought Anew Every Day: Pretrial When the Finish Line is in Sight: Jury Instructions and Closing Arguments

Procrastination; the Most Common Resistance and the Easiest to Rationalize: Voir Dire The Resistance is Self-Sabotage: Mental Health

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

Texas Criminal Defense Lawyers Association

13th Annual Jolly Roger Hal Jackson Memorial Criminal Law Seminar: Battling the Resistance Table of Contents

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

Texas Criminal Defense Lawyers Association

13th Annual Jolly Roger Hal Jackson Memorial Criminal Law Seminar: Battling the Resistance December 11, 2020 Livestream

Topic:

The Resistance is Fueled by Fear: (Opening Statements) Speaker:

Jessica Canter

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

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

Jessica Canter Jessica Canter received her JD from the University of New Hampshire in 2014 and has a BA in Political Science from UT at San Antonio. She started her career as a public defender in 2015 with the Bee County Regional Public Defender’s Office, a division of Texas RioGrande Legal Aid (TRLA). She is chief of TRLA’s newest public defender office in Hallettsville, TX, where she represents clients in Lavaca County. Jessica can be reached at jcanter@trla.org .

Updated November 2020

Cross examination In Criminal Cases

13th Annual Jolly Roger - Laurie l. Key – December 11, 2020 With thanks and credit to Heather J. Barbieri, Sarah B. Johnson, and Adam Brzostowski

“Never, never, never, on cross-examination ask a witness a question you don't already know the answer to . . . . do it, and you'll often get an answer you don't want, an answer that might wreck your case.”

• Harper

Lee

2

The Important Question • Should

• Cross

you cross examine at all?

examination is not a one size fits all approach.

Develop Theory

Pretrial Prep

Decision to Cross

3

Theory – That combination of facts and law which in a common sense and emotional way leads the court to conclude a fellow citizen has been wrongfully accused.

DEVELOP THEORY

Pre-Trial • Impeachment Evidence

5

Gathering Evidence Pre-trial

6

Potential Witnesses •

The Claimant

•

Responding Officer

•

Detective/Investigator

•

Expert witnesses

7

Responding Officer • Pre-trial

• Decision to Cross

• Demonstrate

Detective/Investigator • Pre-trial

• Decision to Cross

• Demonstrate

Expert Witness • Pre-trial

• Decision to Cross

• Demonstrate

Examples from State v. Watson How Pre-Trial Preparation Pays Off

11

12

Pre-trial – Defense Exhibits and Demonstratives •

Defense Exhibits: Example from recent trial

13

Pre-trial – Exhibits and Demonstratives

 Other helpful exhibits:  Model of floor plan  Timeline of relationship  Timeline of events  Daily copy of transcript - direct examination

14

15

16

Pre-Trial - Briefs/Motions • Motion

in Limine Regarding Blackmail

• Motion

in Limine Regarding Statutory Definition of Consent

• Motion

to Exclude Pornographic Material

• RULE

412 Admissibility – Past Sexual Behavior

• Constitutionality • Interpretation

of “Perp Walks”

of “deadly weapon”

17

Selective Memory

18

19

Motive Consistent with Theme

Establishing Initiator 20

Text Messages Inconsistent Statements

21

22

Third-Party Statements

23

Impeachment - 911 Call

24

25

Impeachment - Video

26

27

Maintaining Control of Witness

28

29

Impeachment - Omissions in Statements to Police

30

31

Admissibility of Video Evidence

32

33

Tools Made Available at Trial • Courtroom • Damage • Daily

Presence

Control of Prosecution’s Direct

Transcript of Trial Testimony

• Prosecutorial

• KNOW

Objections

When to shut-up 34

Damage control After Direct

35

36

Anticipate Objections

37

38

Know When to Shut Up

39

Questions 40

The Resistance is Fueled by Fear

Opening Statements

Jessica Canter Texas RioGrande Legal Aid Lavaca County Public Defender jcanter@trla.org

1

Writing the Story 1. Opening Statement is a Story People like stories. Since prehistoric times stories have been told. They used to be little more than paintings on cave walls, but eventually storytelling progressed and grew. The Ancient Greeks developed oral storytelling and writing, such as the Epic Poems. Shakespeare pulled people in with dramatic tales of love and fairy tales emerged to teach children lessons. Humans have always connected through storytelling and it is important to remember that your opening is just that: a story. Only it is not just any story, it’s your client’s story and you need to make sure to tell it.

2. Theme and Theory One way to begin developing and drafting your opening is to have your theme and theory of the case at the ready. As a reminder, 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

1 2

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

Id. at 17

2

injustice (betrayal and tyranny), while the theory was focused on a botched investigation and planted evidence. 3 While you begin to draft your client’s story to tell the jury, you must remember to make your case theory clear. The jury should understand your case theory at the beginning of your opening or else they will not understand how the evidence fits into your theory as you continue.

Remember to use facts that support your theory of the case, but do not promise evidence or testimony you may not put on.

3. Organization Although an opening is a story, you want to make sure it is well-organized and easy to follow. Basic organizational structure should include: 1) the hook, which grabs the jury’s attention and related to theory or theme of the case, 2) facts of the case that set forth your case theory, 3), discussion of the facts, 4) discussion of the problems with the evidence the prosecution will rely on, and 5) a strong conclusion.

4. Structure Typically, stories are told in chronological order because that is how events happen in real life. However, this is not the most persuasive way to tell a story. Opening is our chance to catch the jury’s attention and by restructuring your client’s story, you not only capture the jury’s attention, but keep it.

There are different ways to structure a story. For example, you can start with an anachrony: a flashback or a flash forward. Or you can organize your story in a parallel structure, which is

3

Id. at 18

3

moving between events occurring simultaneously. No matter how you structure your story, however, you must choose the beginning of your story carefully; your choice implicitly signals the ending.

Start strong because people tend to remember the first and last things they hear. Do not start with the generic “ladies and gentlemen of the jury” or “may it please the Court”. These words will have the juror’s eyes glazing over. Your hook should catch the jury’s attention and conveys the theory or theme of your case. You can use a quote from a witness you know will come out at trial or begin by telling the jury your client is innocent. Perhaps there is a quote or a lyric that best fits your theme and theory that would be a good opener. Whatever you decide, make sure it is strong and make sure it connects with the theory and theme of your case.

5. Language Drop the lawyer talk. Legalese will put a wall between you and the jury, ruining not only your connection with them, but the story, too. Drop the officer language, too. Our clients do not “exit the vehicle” they “get out of their car.” Talk like a regular person; connect. And when you speak, use some passion. If you do not believe in the story you are telling, the jury will not either.

Be descriptive and use adjectives. Describe the car your client got out of (it was a two door, gray, Honda Civic with chipped paint on the hood). By using adjectives, you can paint your case with words and fill in blanks that jurors would otherwise fill in themselves, which helps ensure that the jury has the same picture in their head as you do and that the story is the one you want to tell.

4

In Latin, the phrase “omne trium perfectum” translates to “everything that comes in threes is perfect, or, every set of three is complete.” There is something to be said about using the rule of three in a story and studies have shown that information presented in groups of threes is understood better. Triads can help a jury retain information, so if your theme or theory allows, throw a triple into your opening or repeat a fact or concept that you want the jury to focus on during the trial three times.

6. Style Often, we tell a story using past tense, but consider using present tense, active voice. For example: “Tim punched Paul” verses “Tim punches Paul”. Changing the tense can help bring your story to life and make the jury feel as though they are active participants.

Consider changing perspective, the point of view, of the narration. We are conditioned to tell a story chronologically and in the third person. Telling the story in first person can be a powerful tool. It allows you to introduce additional evidence and personal information that might otherwise appear extraneous and the jury is encouraged to develop a closer personal relationship with the character whose point of view you are speaking from, encouraging them to create feelings for and empathy with said character. This can be useful when said character may otherwise appear unsympathetic when his or her actions are viewed from another standpoint (sometimes our client). Peter Meyer lays out several other functions of perspective in his book: it can control the flow of information, suggest outcome, endow the listener with responsibility for determining meanings, and affects the listener’s engagement in the story and the listener’s perception of events.

5

7. Good and Bad Facts Make sure you use facts which support and bolster the theory of your case. However, when using good facts, be careful not to promise any evidence or testimony that you may not put on. A jury will remember that you said Joe Blow would testify to Tim’s self-defense claim, and if Joe Blow ends up not testifying a jury may perceive you to be a liar.

Unfortunately, sometimes we have bad facts in our cases, and sometimes these facts need to be addressed in opening. By addressing particularly bad facts, you take some of the wind out of the prosecutor’s sails; the jury won’t see the bad fact as fatal to your theory when it comes out in evidence because you have already spoken on it—it won’t come as a surprise.

8. Be Succinct People tend to have short attention spans, so tell the jury what they need to hear and no more.

Do not waste words, either. Take out excess words that do not help progress your story.

Telling the Story 1. Be Passionate If you do not believe in the story you are telling, the jury will know it. A jury looks to a defense attorney as the one person in the room who really knows whether her client is innocent or guilty. They look for the defense attorney’s opinion, and so if you do not believe in what you are saying, they will not believe it either. Understand that opening is more than the words you speak, that it encompasses the delivery, too, and while most of us are not actors, a little sincerity will go a long way with the jury.

6

2. Performance As mentioned, most of us are not actors, but there are little things lawyers can do to enhance their openings. For example, use silence. A dramatic pause can help drive a point home or leave an emotion you want the jury to feel lingering in the air. Silence is also useful if you forget your train of thought or are prone to using ‘um’s and ‘and’s to fill a void. There is nothing wrong with a pause and a breath to collect your thoughts and the silence can be used to your advantage in progressing the story and the emotion behind it.

Use your voice and play with your tone. When you soften your voice, the listener is forced to lean in and focus. When you raise your voice, it can signal something dramatic is about to happen or has happened. Consider the pacing of your words, too. Perhaps you speak a little faster during a more exciting part of the story, and slower when it is extremely serious.

Do not forget about using up space. Try not to pace or wander as it can be very distracting for a jury, but do block out some purposeful movement. If, for example, you have different witnesses you will be speaking on, walk to the left side of the courtroom for one witness when you speak about her (or from her point of view, first person), then to the right side when you are speaking about a second witness. Using your space can contrast characters, events, and points, which helps the jury visually process.

Pay attention to your body language. The jury will notice if you are crossing your arms or your hands are in your pockets just as they will notice if you are clicking a pen, jingling change in your pocket, or are slouched or rigid. Be in control of your body language and use it to enhance your story. Purposeful movements can convey emotion to the listener.

7

3. Exhibits and Demonstrative Aids We have all heard it, but it bears repeating: a picture is worth a thousand words, and research has shown that most people are visual learners. So, use a few demonstrative aids to help make your opening more vivid, memorable, and persuasive. These visuals will help engage jurors, which increases their ability to recall facts supporting your theory during deliberations. Draw a diagram on a whiteboard, use a PowerPoint presentation to show a map, or hold up the gun that is later to be admitted into evidence. Remember, however, to keep it simple. Demonstrative aids can be used to help make difficult concepts easier to understand, but they should be used to supplement and support what you are saying and not be distracting.

4. Do Not Read Your Opening Although it may be tempting to read the opening that you have drafted, it is best left behind on the table when you approach the jury. The jury needs to focus on what you are saying, and they need to see that you believe what you are saying, too. It is very difficult to project an emotion while reading. It is also difficult to make eye contact with the jury if your own eyes are glued to the paper in your hand. A memorized opening is a powerful opening. However, while I stress memorizing an opening, I would caution against “winging it�. The best openings will be thought out, written, revised, and practiced until it is the way you want it.

8

The Resistance is Fueled by Fear: Opening Statements 1

2

4

5

6

7

8

“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 9

10

Theory ▪ ▪ ▪ ▪

An idea that accounts for a situation Explains something Justifies a course of action Legal: revolves around the facts and law of case ▪ Always explicit 11

12

Theme ▪ Controlling idea ▪ Core insight of a story ▪ Constantly present ▪ But not always explicit 13

14

15

Structure ▪ Parallel structure ▪ Flashback ▪ Flashforward

16

17

18

Types of Hooks ▪ ▪ ▪ ▪ ▪

Strong Statement Fact Lyrics Descriptive Quotation 19

20

21

22

23

24

Style ▪ Consider tense ▪ Active vs passive ▪ Change perspective ▪ First vs third 25

26

27

28

29

Performance ▪ ▪ ▪ ▪ ▪

Silence Tone Pacing Use your space Body language 30

31

Visuals ▪ ▪ ▪ ▪

Charts and diagrams Maps Photos Timelines 32

33

openings

your client’s 34

Questions?

Jessica Canter jcanter@trla.org 361-450-6730 Lavaca County Public Defender 35

Texas Criminal Defense Lawyers Association

13th Annual Jolly Roger Hal Jackson Memorial Criminal Law Seminar: Battling the Resistance December 11, 2020 Livestream

Topic:

Controlling the Perception: (Experts) Speaker:

John L. Fritz 11667 Saxon St Dallas, TX 75218-1837 (214) 557-2780 Phone johnlfritz@gmail.com

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

John L. Fritz John L. Fritz was born in Nebraska and raised in San Antonio, Texas. He graduated from St. Mary’s University in San Antonio with a double major in philosophy and English, then went on to earn his J.D. from St. Mary’s University School of Law. After law school, John worked as a briefing attorney for three different appellate court judges: Chief Justice Paul C. Murphy at the Fourteenth Court of Appeals in Houston, Justice Sarah Duncan at the Fourth Court of Appeals in San Antonio, and Judge Sharon Keller at the Texas Court of Criminal Appeals in Austin.

John worked briefly as a prosecutor at the Bexar County District Attorney’s office, then went on to practice criminal defense in state and federal court. He has always focused on appeals and legal research and writing, and his practice is currently limited exclusively to those areas. He often provides consultation and assistance to other attorneys without the time, resources, or inclination to work on appeals or complex legal research.

In addition to his legal work, John has taught college courses in English, communications, and legal research, writing, and practice. He lives and works in Dallas with his wife and Aloysius, his labrador retreiver.

He may be reached at john@johnfritzlaw.com or at 214-557-2780.

Updated December 2020

CONTROLLING THE PERCEPTIONS EXPERTS

This Photo by Unknown Author is licensed under CC BY

This Photo by Unknown Author is licensed under CC BY

This Photo by Unknown Author is licensed under CC BY-SA

Experts

• What is an Expert?

• Rules and Case Law • Opposing State Experts • Using Defense Experts • Rule 705 Hearings

The Starting Point Testimony by Expert Witnesses If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

T EX . R. E VID . 702

The Starting Point A witness qualified as an expert may testify in the form of an opinion.

T EX . R. E VID . 702

The General Rule “A witness should testify only about the facts she observed and should not give her opinion about those facts. The rule has a truth-seeking foundation; opinion evidence does not assist a jury or judge and might mislead it.”

BRIDGET MCCORMACK, SCIENTIFIC EVIDENCE, SCIENCE BENCH BOOK FOR JUDGES, July 1, 2009, p. 14 (The National Judicial College & the Justice Speakers Institute).

Rule 702 Testimony by Expert Witnesses If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

T EX . R. E VID . 702

Rule 702 •

• • •

scientific, technical, or other specialized knowledge assist the trier of fact to understand the evidence or to determine a fact in issue a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise

Rule 703 Bases of an Expert's Opinion Testimony An expert may base an opinion on facts or data in the case that the expert has been made aware of, reviewed, or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.

Rule 703 Bases of an Expert's Opinion Testimony

[F]acts or data in the case that the expert has • been made aware of • reviewed

• personally observed

Rule 703 Bases of an Expert's Opinion Testimony

• If experts in the particular field • would reasonably rely on those kinds of facts or data • in forming an opinion on the subject • they need not be admissible for the opinion to be admitted

The Old Rule: Frye The “General Acceptance” Test The basis of an expert’s testimony “must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”

Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923)

The New Rule: Kelly • Threshold determination: assisting the jury • Three criteria: • Underlying scientific theory is valid • Technique applying the theory is valid • Technique properly applied on occasion in question Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992) (citing P. GIANELLI & E. IMWINKELRIED, SCIENTIFIC EVIDENCE § 1-1 (1986)).

The New Rule: Daubert • About a year after Kelly; very similar test

• Trial court judge as “gatekeeper” • Like Kelly, required courts to determine reliability of testimony and gave factors • Clarified relevance test alluded to in Kelly •

“‘helpfulness’ standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.”

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591-92 (1993).

“Soft Sciences”: Nenno •

Adapted Kelly test for non-”hard sciences”

•

Three questions: •

Is the field of expertise a legitimate one?

•

Is the subject matter of the expert's testimony within the scope of that field?

•

does the expert's testimony properly rely upon and/or utilize the principles involved in the field?

Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998)

Combining the tests: Rhomer • A test for both hard sciences and other fields • Three requirements for expert testimony:

• Qualification • Reliability • Relevance

Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019).

Combining the tests: Rhomer Qualification:

“The specialized knowledge that qualifies a witness to offer an expert opinion may be derived from specialized education, practical experience, a study of technical works or a combination of these things .�

Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019).

Combining the tests: Rhomer Reliability:

•

"When an expert's testimony is based on a hard science involving precise calculations and the scientific method, the expert must satisfy the test set forth in Kelly”

•

"Nenno set forth a framework for evaluating the reliability of expert testimony in fields of study outside the hard sciences”

Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019).

Combining the tests: Rhomer Relevance:

“[A]dmitting the expert testimony will actually assist the fact-finder in deciding the case [is the test for relevance of expert testimony].�

Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019).

Resisting the State’s Experts • Educate Yourself • Request disclosure of experts under CCP 34.19(b) (Discovery) • Figure out subject matter of State’s experts • Ask experienced attorneys for help • Do your own research • Get your own expert

Right to Court-Appointed Expert Ake v. Oklahoma: “[W]hen a[n indigent] defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.�

Ake v. Oklahoma, 470 U.S. 68, 83 (1985).

Rule 705 Hearing Rule 705(b)

Before 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.

Rule 705 Hearing Rule 705(c)

An expert's opinion is inadmissible if the underlying facts or data do not provide a sufficient basis for the opinion.

Note: Under 705(a), an expert does not have to disclose the facts/data opinion is based on prior to testimony unless the court orders it. (Disclosure may be required on cross.)

Rule 705 Hearing Rule 705(d) If the underlying facts or data would otherwise be inadmissible, the proponent of the opinion may not disclose them to the jury if their probative value in helping the jury evaluate the opinion is outweighed by their prejudicial effect. If the court allows the proponent to disclose those facts or data the court must, upon timely request, restrict the evidence to its proper scope and instruct the jury accordingly .

Rule 705 Hearing Three Questions re: qualifications: 1) Is the expert’s field of expertise complex?

2) How conclusive is the expert’s opinion?

3) How central is the area of expertise to the resolution of the issues in the case?

The proponent bears the burden of demonstrating admissibility of expert testimony.

Rhomer v. State, 569 S.W.3d 664, 669-70 (Tex. Crim. App. 2019).

Rule 705 Hearing Remember the keys to expert admissibility: 1) Qualification 2) Reliability 3) Relevance

Rhomer v. State, 569 S.W.3d 664, 669-70 (Tex. Crim. App. 2019).

Preserving Error If the judge slams the gate on your expert: 1) Object! Grounds: TRE 702,703,705; also, compulsory process/right to put on a defense. Get a ruling.

2) Make a bill of exception : Get everything into the record so the Court of Appeals has something to review.

Finding/Using an Expert To find an expert, keep your ear to the ground: •

Ask other attorneys

•

Pay attention to cases involving experts

•

Expert database on TCDLA website under “Members Only” tab—search by name, area of expertise

•

TCDLA listserv/local criminal bar listservs

Finding/Using an Expert •

Make sure they are qualified in the specific area you need them for

•

Consider poaching State experts when possible

•

Use your experts to become an expert yourself

•

The best experts are excellent teachers

Good luck!

Texas Criminal Defense Lawyers Association

13th Annual Jolly Roger Hal Jackson Memorial Criminal Law Seminar: Battling the Resistance December 11, 2020 Livestream

Topic:

The More Important the Action, the Greater the Resistance: (Cross Examination) Speaker:

Laurie Key

Laurie L. Key 1213 Avenue K Lubbock, TX 79401-4025 (806) 771-3933 Phone (806) 771-3935 Fax lauriekeylaw@gmail.com

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

Cross Examination

Introduction and Acknowledgements Much has been written about Cross Examination by attorneys and experts much smarter than I. Please understand that this is a paper for a CLE and reading this paper will not prepare you to cross examine in trial anymore than reading on Web MD about neurosurgery

will prepare you for the operating room. This is a rudimentary primer, intended to give you some ideas and examples that will guide you toward how to prepare an effective cross examination.

To be a good cross examiner, one must study the "art and the science" of Cross Examination. I have studied under Terry McCarthy numerous times and I have his book. I have studied Posner and Dodd's "Art and Science of Cross Examination." I have listened to their CD's

from Lexis numerous times as I travel across the country. I take every opportunity to listen to a Cross Exam presentation at a CLE. McCarthy, and Posner and Dodd are the rock stars of cross

examination and are all worthy of your time, whether it involves reading their books, attending a live seminar or listening to them on CD. If you do, you will recognize some of what you read here and, if you attended my lecture, you will recognize their influence on me and my approach.

What I hope to do here is provide a synopsis of their work to give you a framework from which to build your cross examination.

Cross is Crucial

"The age-old tool for ferreting out the truth of the trial process is the right to cross-

examination. For two centuries, the policy of the Anglo-American system of evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law." United

States v. DiLapi, 651 F.2d 140, 149-151 (2d Cir. 1981). "[Cross-Examination is] the greatest legal engine ever invented for the discovery of truth." 5J. Wigmore, Evidence ยง 1367 (J. Chadbourn rev. 1974).

"Cross-examination is the principle means by which the believability of a witness and

the truth of his or her testimony are tested." Davis v. Alaska 415 U.S. 308, 316 (1974).

Scope of Cross-Examination Cross-examination should be limited to the subject matter of the direct examination and

matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

"[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to

impose reasonable limits on such cross-examination based on the concerns about, among other

things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. VanArsdall, 475 U.S. 673, 679,106 S. Ct. 1431,1435 (1986).

"Cross-examination should be limited to the subject matter of the direct examination

and matters affecting credibility of the witnesses [limiting the original draft which allowed

cross-examination" ..." on any matter relevant to any issue in the case." H.R. Rep. No. 63-650,

93rd Cong. First Sess. 12-1973. But see Unites States V. Wolfson, 573 F. 2d 216 222 (5th Cir.1978) (emphasizing that the scope of direct is measured by the "subject matter" of the direct examination rather that by specific exhibits that may have been introduced at the time); United

States v. Vasquez 858 F.2d 1387,1392 (9th Cir. 1988) (permitting cross of defendant regarding the contents of his apartment when the defendant simply testified on direct that he had left his apartment at a certain hour prior to his arrest, and noting that the trial court may permit cross

as to "all matters reasonably related" to the issue the defendant put in dispute during his testimony on direct}.

Federal Rule of Evidence 611(b) governs the scope of cross-examination. While the rule specifically limits cross-examination to the subject mater of direct examination and to matters

affecting witness credibility, it also provides: "[t}he court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination." Unites States v. Harbour,

809 F.2d 384 (7th Cir. 1987); Unites States v. Alvarez, 833 F2d 724 (7th Cir. 1987); United States v. Carter, 910 F. 2d 1524 (7th Cir. 1990); United States v. Moore, 936 G. 2f 1508 (7th Cir. 1991).

Ethical Considerations

"In appearing in his professional capacity before a tribunal, a lawyer shall not...[a]sk any question that he or she has no reasonable basis to believe is relevant to the case and that is

intended to degrade a witness or other person." ABA Disciplinary Rule 7-106(C)(2).

"In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person..." ABA Model Rule 4.4.

"The prosecutor should not use the power of cross-examination to discredit or

undermine a witness if the prosecutor knows the witness is testifying truthfully." ABA Prosecution Function Standard 3-5.7(d).

"A lawyer's belief or knowledge that the witness is telling the truth does not preclude cross-examination but should, if possible, be taken into consideration by counsel in conducting the cross-examination. Defense Function Standard 4-7.6(b).

It is unprofessional conduct for a lawyer to ask a question which implies the existence of

a factual predicate for which a good belief is lacking. Defense Function Standard 4-7.6(d).

United States v. Wade, 388 U.S. 218, 257-58, 87 S. Ct. 1962, 1948 (1967) (White, J., dissenting in part and concurring in part.)

[the defendant] "Phillips, complains that the government was not cross-examining Bradach to establish the truth and was therefore acting improperly. The of impeachment, however, is not to vouch for the validity of the impeachment material, rather, it is to suggest that the witness may be mistaken or inconsistent in his testimony and therefore is not a

credible witness." See also: UnitedStates v. Phillips, 914 F. 2d 835, 839 (7th Cir. 1990) The Basics

Cross examination in the words of Wigmore, is "the greatest legal engine ever invented

for the discovery of truth." "In God we trust, all others we cross examine," says

Posner and

Dodd. Cross examination, for a long as trial courts have existed, has provided an effective manner to test evidence of all types. United States Supreme Court cases are legion that

reinforce the need for the defense lawyer to be permitted to perform a complete and effective cross examination on the prosecution's witness, whether it be lay or expert witnesses. [Davis v.

Alaska, 415 U.S. 308; Crawford v. Washington,^! U.S. 36) Although cross examination is most often thought of by defense lawyers as a defensive weapon in their arsenal, we must shift that thinking to begin using cross examination as an

offensive tool. Rare is the case in a criminal defense setting when we are able to tell the full

story of our client in his own words. Even rarer is the time when we would want to. The smartest, most articulate of clients can be reduced to a blithering fool under cross examination

by a good prosecutor. There is also no guarantee that he or she will do well on direct. So, our

narrative, our story, our defensive theory, must be told by other participants, usually prosecution witnesses, particularly where our client may have some unfortunate knowledge of the facts of the case.

Cross Examination, like every other part of the trial, is a storytelling process. From Voir

Dire to verdict, we are in the process of conveying our narrative to the fact finder. A good story teller paints a picture for the listener that the listener can "see" in their minds eye. If the juror

can "see" the story, they will be more likely to follow. Often, we as defense lawyers have to

"change the picture" that the prosecution wants the fact finder to see. We must change the

"Beast" to the "Beauty", or at least someone with whom the juror would not mind riding down the elevator.

Planning is Critical Weeks maybe even months before trial you should begin to think about cross

examination of the State's witnesses. The first question you must ask about every potential witness is "Do you even need to cross the witness?" There are several factors to consider when coming to this conclusion.

1.

Overarching Goals

a.

What information is there to be had, good or bad?

b. What is your theme and theory of the case?

c. What is your story?

d. What exhibits to you want/need 2.

Witness Goals

a.

Does this witness have helpful information?

b. Do they have harmful information that didn't come out on direct? c.

3.

Can they help me tell my story?

Exhibits a.

Can I use them to admit an exhibit?

b. Can I get them to clarify an already admitted exhibit? c.

4.

Can I use them to set the scene for a future exhibit?

Your Story

a.

Can they set the scene for my story?

b. Can they add to my story? c.

Can contextualize or corroborate another witness's testimony?

d.

How will I use this witness's testimony in my closing?

In most instances, the answer will be, "Yes, I am going to cross this witness." As you probably know trial strategy is ever changing. Sometimes you may need to change that to a no

after the State passes their witness. Worse yet, you may need to change a no to a yes after you hear "Pass the witness." Any trial lawyer worth his salt knows the even best planned trial

strategy will likely be ruined early on in trial so the best policy is to prepare to cross every witness on the state's proposed witness list, even if you think they have nothing to offer.

Control is Key The key to a good cross is control. Agood cross examiner is always in control. I personally believe a good trial lawyer would rather have a government witness on cross than to

have his no-prior-convictions client on direct. Ifdone properly, the lawyer is in control when on cross. Even with your own client on direct, even with the best prepared witness, one often has that feeling that he is not in control on direct.

Posner and Dodd posit that to be effective in cross examination, one must have control of four things: 1.

The facts of the case;

2. The theory of the case;

3. The witnesses response to your statements; (You are testifying, not the witness) 4.

The demeanor of the witness;

An understanding of the facts of the case is critical, but how those facts fit into your theory of the case is equally crucial for effective cross examination. The witness' response to your questions, rather statements, must be definite and unequivocal. A good cross examiner is really testifying, not questioning. Because that response of the witness is so critical, his or her

demeanor must be controlled as well. It is important to question a witness in such a way that their most earnest desire is to get off the stand as soon as they can, and that should be reflected in their demeanor.

In a good cross examination, a witness is essentially irrelevant. Since their only purpose is to agree with you, they could descend from the stand, leave the courtroom, cross the street

to Starbucks, order a cappuccino and return only in time for you to pass them to the prosecution.

Three Rules for an Effective Cross

Unless you had Terry McCarthy, Posner, Dodd or one of the other key lecturers on cross examination in law school, you can most likely forget what you learned in your trial advocacy

class about cross examination. Most of you probably saw the great "Sermon on the Mount" by Professor Irving Younger discussing the "10 Commandments Cross Examination." They are as follows:

1.

Be brief.

2. Short questions, plain words.

3. Always ask leading questions.

4. Don't ask a question to which you do not know the answer.

5.

Listen to the witness1 answers.

6. Don't quarrel with the witness.

7. Don't allow the witness to repeat his direct testimony.

8.

Don't permit the witness to explain his answers.

9.

Don't ask the "one question too many."

10. Save the ultimate point of your cross for summation.

Posner and Dodd, however, insist that these Ten Commandments can be reduced to

only three:

1.

Ask Leading Questions Only.1

2.

One New Fact Per Question.

3. Question Toward a Specific Goal.

I agree. Perhaps Younger did what law school professors do-take something simple and make it complicated-but indeed, his formula is workable in the format outlined by Posner and Dodd.

Other Rules to Keep in Mind Anyone listening to any presentation is subject to the rules of primacy and recency.

What we hear first, we remember. What we hear last, we remember. The stuff in the middle, not so much. In a twenty minute presentation, a juror will remember approximately the first 1 It has been pointed out to me by experienced attorneys that there are truly instances where a non-leading question can be asked without any negative consequences. I have agreed with them in those very limited instances. However, those instances are extremely limited and I assert, are generally not necessary to advance the narrative. In other words, you can get where you want to go in a much safer manner by leading them there.

five minutes and the last five minutes of the presentation. This rule requires us in our cross examinations to open big, hit hard in the beginning, and close strong as well. Those are the

parts of your cross (and your voir dire and opening and close)your jurors will remember.

It is also suggested that you never fight or argue with a witness, but if you insist, be sure

to bury it in the middle of a chapter of your cross examination. (Chapters will be explained later in the paper)

But Before We Begin I have seen cross examination used by defense lawyers as a discovery tool to learn their

case as they go. Open ended questions are used to ferret out information that the attorney

should have known before entering the courtroom. This is not they way to properly perform cross-examination. And to be blunt, if this is how you are doing it you should immediately turn in your bar card and find another profession.

Investigation is not an Option, it is a Requirement Any good cross examination begins with extensive pretrial preparation. If you are in a jurisdiction with open file discovery, all the better, if not, then your job is made somewhat harder. Discovery motions with hearings will become necessary and other "back door"

methods of discovery, such as open records requests, freedom of information requests and internet searches can reveal reams of information useful for further investigation and eventual cross examination. Of course, the Michael Morton Act made a huge difference in many jurisdictions. However, we can never assume we have it all.

There is no substitute for a good investigation. "Boots on the ground" can do more than most methods of investigation to give the cross examiner the information to craft a picture of what occurred. "Kicking over rocks" in your case can yield unexpected surprises, often positive ones, that assist in changing the picture. You must look through your case file and first create a "people list" which includes everyone remotely involved with your case. If they are found in

the police reports, they go in the people list. If they are mentioned during an interview with

someone found in the police reports, they go in the people list. Everyone is interviewed and the people list expands until there are no more people related to this offense. Again,

EVERYONE is interviewed concerning their knowledge of the case. The interview may take five minutes or five hours, but they are all interviewed.

While these interviews are being conducted, a chronology of events starts to emerge.

The events that emerge from the police reports, interviews and statements are catalogued in narrative form in a document that can be easily followed to later create a timeline, a visual aid to assist the jury in understanding what happened, when it happened and where a particular event fell in the scheme of the offense and how it relates to other events. These tools are not

only to assist the jury, they will immensely assist you in understanding your case.

You must know your facts better than anyone. There are two individuals in the

courtroom fighting for the attention of the fact finder. The one with the better understanding of the facts and who can best convey those facts, is most likely to win the hearts and minds of the jurors. The worst possible time and place to learn about your case is in the courtroom on direct examination of the prosecution witnesses. Have you ever looked at your client in trial

and said, "You did what?" Then, your pretrial preparation may have been lacking.

What Not to Do

My ability to tell others how to do it, comes from years of doing it wrong. Following is a fairly comprehensive list of things not to do on cross examination.

Don't repeat the direct exam-once is bad enough. I have seen defense lawyers, who,

feeling compelled to ask something of the witness, simply lead them through their own direct examination. One would think that a once-through of your client standing over the body of the deceased with a bloody knife or your client standing behind a goat with his pants down would be enough. Apparently not. One must remember that there is no rule that a lawyer ask any question of a witness. In fact, often, the better part of valor is to not ask any questions of an

adverse witness, particularly if he has not been all that adverse. Avoid the tendency to open unwanted doors by asking unnecessary questions that have already been presented in deadly fashion on direct.

Don't ask complicated or compound questions. Remember, you are seeking one fact

per question. Also, do not use double negatives in your questioning. The shorter, the simpler

the question, the better. For example, if you asked, in leading form, the following question: "Isn't it true that you left the bar and went home?' You have just asked a compound question

that requires two answers, not one. The answer to the question could be "Yes and No." Since there are two questions, there could be two answers. Perhaps the witness left the bar but did not go home.

The better way to pose the question would be to ask it in two distinct

questions: "You left the bar?" "You went home". You are seeking one fact per question. As my friend John Niland says, "You are hitting singles, not homers."

Another reason to ask short questions, or make short statements is research shows

short questions (statements) usually lead to short answers. Since you are the one telling the story and the witness is simply there to agree with us, short answers are your new best friend.

Nothing is as annoying as somebody trying to add to your already perfect story. To help make your statements shorter, eliminate prefixes and suffixes. No more, "Isn't it a fact..." or "... isn't that correct?"

Other things you should not do on cross-examination are: 1. Don't argue with the witness 2. Don't ask the judge for help 3. Don't use "wiggle words" 4.

Don't use "cop talk"

5. Don't ask who, what, when, where, why, or how 6. Don't' lose sight of your goals 7. Don't fidget or let verbal tics slip out 8.

DON'T ask one question too many

Closed Cross-No Open Ended Questions NEVER, ever, ever, ask an open ended question. This is a cardinal sin of cross examination that may (almost) never be broken. I have had practitioners tell me, "I am not

afraid of what he will say because there is no bad answer." The truth is, they have just not thought of a bad answer they could get. But trust me, there is a smart cop out there who can gut an otherwise good cross with a single open ended question.

Don't ask questions that begin with a verb. It is difficult to ask a leading question opening with a verb. Running, walking, fighting;-None of these are good words with which to start a sentence, let alone one that is destined to be a leading question. Avoid them.

NEVER, ever, ever, ask a question that begins with Who, What, When, Where, How,

Why, or Explain. If you have been reading this paper and do not understand why this rule exists, get up, get an envelope, apply the proper postage and mail your law license to the

issuing authority. You need a job with your name on a name tag attached to your shirt. That tag will probably have "McDonalds" or "Burger King" on it and you will be asking leading

questions like "You want fries with that?" Posner and Dodd refer to these as the "Seven deadly sins" Of cross examination, and indeed, they are.

Taglines Avoid repetitious "tag lines" such as "correct" at the end of each question. Nothing will

break you of this habit quicker than having to read your own transcripts where you have committed this offense. It is annoying to read, imagine how it sounds in the courtroom. Such repetitive actions on your part detract from your cross examination and can waste an otherwise

good cross examination. Instead of putting "correct" at the end of each question, consider

beginning a question with "We can agree

you not

" , "You would agree

", "it is a fact

", or "Have

" You may also wish to end the question, not with a "correct" or other tag line, but

simply use voice inflection to punctuate your question.

Leading Lead, lead, lead. No rule in cross examination is more paramount. Cross examining without using leading questions is like sailing a sailboat without a sail and no anchor. You have no control and you can't stop. You are drifting at the whim of the witness and where his or her current or winds desire to take you. And, since you have no anchor, you cannot stop the drift.

On cross examination, you are telling your story, not allowing them to tell theirs. The

witness got to tell their story on direct examination by the prosecutor. Leading questions allow you to tell your story, in your way, at your pace, in your order. Open ended questions require you to give up the control needed to tell your story through a witness. Leading gives you control!

Have a Goal

Have a goal in mind with each witness. Your thorough investigation prior to trial will

reveal what each witness has to contribute to your theme and theory of the case. (You have one of each, do you not?) Have a goal in mind for each witness. More on Posner and Dodd's "Chapters" later, but for now, a goal for your cross is important. If you have no goal, perhaps this is that witness you are better off not crossing.

Your goal could be to establish a time line, a bad eyewitness ID, a bad traffic stop, a bad confession, reveal junk science, improper police procedure or anything that advances your

narrative. The possibilities are literally endless. The only rule here is that you have a goal and question that witness toward that goal.

Nuggets Listen for any "nugget" that may come from the witness unexpectedly. Witnesses,

despite our attempts to control, sometimes blurt out more than a yes or no in a cross examination. We cannot be so wrapped up in the telling of our story that we miss the answer

that can open up a whole new line of questioning that may not have been expected from that witness. Listen for that nugget and be ready to exploit it when it does arise.

Inexpensive Experts Often, we can use the state's experts as our own witnesses. A police officer testifying about processing a crime scene can be confronted with his department's procedures manual that an attorney has sent him prior to trial and informed him that he will be crossed on that

manual and the topics in it. A detective who got a confession can be confronted with his training manuals on getting confessions, a breath test operator can be.confronted with their

operator's manual. Each of these states witnesses can be used as "experts" on the area in which they were involved in the case by using their own materials to establish what the "standard" is in their field, then showing their or someone else's deviations from those standards.

Watch Your Words

Use witness or juror vocabulary. In other words, don't sound like a lawyer. Some would

think we get paid by the word as much as we talk. Others might think it is quality over quantity when they listen to the lofty words we use. Terry McCarthy says to use language like you would use in a bar-a nice bar-but a bar, nonetheless. We, as attorneys, must understand that

most jurors do not use words like "adjudicate" or "transpired." "That case was adjudicated?

"After that, what transpired

?" A better approach for an audience of jurors would be "You

were convicted?" or "What you did after that was

?" We must keep in mind that jurors

cannot act on words and language they do not understand. Keep it simple and do not try to

impress your jury with your voluminous vocabulary. Most likely, they won't think you are

smart, they will just think you're uppity.

Leave Your Emotional Baggage at the Office Be careful to ramp up the jury to your level of emotion. Aggressive litigators like to "go

for the jugular" immediately sometimes. Some jurors may expect this, some may even like it.

However, most may not. If you desire to reach an excited emotional level in your cross examination, you can get there but do it in a measured fashion. Work your way up to that

fever pitch you are headed for, if that is your style, and avoid scaring the hell out of your jurors who may not be expecting you to crawl over counsel table and attack the witness.

Objective vs. Subjective Use objective words in your cross, not subjective words. If someone asked me if a shirt

someone were wearing was "pretty", I might say yes or no, depending on my taste in shirts. I

tend to like solid colors so if the shirt was striped, no matter the color, I would most likely say "No, that shirt is not pretty." It is much easier to disagree with someone using subjective

language. If, however, someone asked me if an individual were wearing a red shirt, assuming I were not colorblind, I would probably have to say "yes". The objective description of a shirt as "red" as opposed to it being "pretty" is much more accurate and harder to dispute. We want our witnesses agreeing with us on cross. Making our questions more objective insures that result.

Chapters Posner and Dodd advocate the "Chapter Method" of cross examination. By chapters, they mean one set of questions designed to accomplish one factual goal. You do this for each witness. Each witness may have several chapters. Take any topic or issue and list everything you can think of that is relevant to that topic or issue. It could be eyewitness ID, self defense,

bad DWI stop or any other topic or issue in your case. Then you have to decide what you want to accomplish with this witness. In doing so, you must decide what you want the jury to hear from this witness and state it in the form of a statement, not a question. Further, it must be a statement with which the witness will agree. The foregoing must be kept in mind while determining how this line of questioning can advance the theory of the case. If it does not advance the theory, then the questions are not asked.

Your progression through your chapters must be logical. If you are not logical in your

progression, then it will be easy to undo your work on a re-direct. If your progression is a

logical progression, then the state will have to defy your logic to win. Investigate, be logical, then plan your questions carefully.

Never end a chapter with a fight. Primacy and recency are discussed elsewhere, but be

aware that a juror will remember what they hear first and last. Bury fights with a witness, if

you feel you must fight, in the middle of a chapter where they are most likely to be forgotten.

Additionally, questions from your chapters should begin with the more general

questions and funnel down to the more specific questions becoming more focused as you proceed through the chapter.

Argue your logical conclusion to the jury, not to the witness. You are unlikely to

convince a witness he or she is wrong about their conclusion. With a jury, you might have a chance.

Use Your Head

Terry McCarthy says we must "Use our Heads." By that he means that as we question a witness, seeking agreement with our statements, we must nod our heads approvingly as we ask

the questions. This nodding sends a message to the witness that they neither understand nor even notice, but it has the effect of getting them to more readily agree with your statement as you question a witness.

Setting the Tone Set the tone of your cross. Use your most comfortable style. What the prosecutor or

others are doing may not be best for you. Use what you are comfortable with. Try in your cross to develop a "rythm" with short, concise, one-fact-per-question statements. A series of thirty short questions with a series of 30 short "yes" answers conditions a witness to be even more responsive. If the cross has been particularly punishing, the witness will answer "yes" to almost anything just to end the misery. Using the short, one-fact-per-question format aids immensely

in this endeavor. Remember, the witness is only there to agree with you.

The Rule of Leading If cross examination had only one rule, it would be that you lead the witness. But since we have established that there are at least three rules, I will proffer that this is the paramount

rule in cross examination. If we do not lead, we lose. It is that simple. And as we think of

leading questions, we must also think about how we might distill a question down to its fundamental elements, seeking to ask for one fact per question.

For example, if we are trying to establish that a witness is a drug user, we could ask:

"How do you feel about drugs"? Or we could ask: "Do you like to use drugs?" Both of these questions are truly questions and are the non-leading, open-ended questions that good cross

examiners abhor. Besides, / like drugs. Everybody likes drugs, especially the kind of drugs licensed physicians dispense to make me feel better. These questions give the witness control

over the answer which is exactly what we do not want. You could even ask the properly leading question of: "You like drugs?" It is simple, concise and leading. However, there is another way.

Assuming you have done your investigation and have learned that this person is on

probation for drugs and has flunked more than one urine test for methamphetamines, another approach might be: "You take Drugs?" "You take methamphetamines?" "You like taking

methamphetamines?" And we can agree that methamphetamines are illegal?"

Breaking questions down in this fashion, one fact per question, advances the narrative

of your case without compromising your control of the witness. Any series of questions can be broken down accordingly. Take a traffic stop for example. Think carefully about every element of a traffic stop.

You turned on your lights; Your flashing lights; Mr. Jones looked in his rear view mirror;

He appeared to see you in his rear view mirror;

He put on his turn signal; He began to pull to the side of the road; In fact, he did pull to the side of the road; He came to an even stop; He was courteous to you;

(Go through all the other clues in the NTHSA Manuel) You asked him for his driver's license;

He took out his wallet;

He took his driver's license out of his wallet;

He handed you his driver's license; He reached into his glove compartment; He found his proof of insurance;

He handed you his proof of insurance;

Observe how such a simple event can be broken down and in such a way that it may look good for you and your client. In most situations, there are some good facts that you can glean from a careful breakdown of the facts. Of course, most stops are going to be this smooth, but some will.

Conclusive Statements You Will Never Get From a Witness

1.

I didn't get a good look at your guy.

2. We screwed up the investigation.

3. Your guy is not really dangerous.

4.

I gotta'deal!

5.

I am a really crappy dresser.

But fret not, because there are ways of getting to these conclusions without getting these admissions.

For example, chapters for a cross on eyewitness ID could be derived from the following non-exhaustive list:

1.

Lighting conditions

2.

Eye problems or sight limitations of the individual

3.

Distance from which the identification was made

4.

Weather conditions

5.

Stress of the moment

6.

Relative positions of the parties

7.

Time available for ID

8.

Possible "Taint"-"Show up" etc.

9.

Other distracters

Rare isthe case in which you cannot throw a few rocks at the crime scene investigator.

You must look for the factors that make for a good investigation. If necessary, do an open records request to the police department for their training manual orf crime scene

investigation. You will have the elements of a good investigation from which to cross. Failing that, there are a number of textbooks on the market that could be used, but it is always best to have the training materials and protocols of the department from which your investigator comes.

I personally believe that it is good to begin the cross examination of any officer, especially detectives, talking about his or her training beginning at the academy. I discuss the training they had as a new recruit on the writing of reports and how the report is written and why it is written. A cross on such topic might be as follows;

Q. Officer, you attended the police academy in 1990?

A. Yes

Q. And as a fresh recruit, in 1990, you were taught how to write a police report?

A. Yes

Q. You were taught why you write reports?

A. Yes

Q. You were taught to write a report to preserve evidence, were you not?

A. Yes

Q. We can agree you were taught to write a report to preserve memory?

A. Yes

Q. Because it sometimes takes a long time to for a case to come to trial?

A. Yes

Q. And you need to remember what you did?

A. Yes

Q. You need to remember what others did?

A. Yes

Q. Sometimes a number of years after you investigated an event?

A. Yes

Q. So you write down what you did so you can remember it?

A. Yes

Q. And you write down what you saw so you can remember it?

A. Yes

Q. You write down who you talked to concerning the case, do you not?

A. Yes.

Q. You write down what these people told you so you can remember it?

A. Yes

Q. Now, others rely on your reports, don't they?

A. Yes

Q. Other officers?

A. Yes

Q. Prosecutors?

A. Yes

Q. Defense Lawyers?

A. Yes

Q. Judges?

A. Yes

Q. Perhaps an expert witness?

A. Yes

Q. You take careful notes while you are investigating, don't you?

A. Yes

Q. And because reports are so important, you take all the time you need to get it right, don't you?

A. Yes

Q. And we can agree that if it is important to the case, you put it in your report?

A. Yes

Q. And we can further agree that if you didn't put it in your report, then it probably wasn't important to the case.

A. Yes

Q. So your report is a detailed report?

A. Yes

Q. On everything you think is important to the case?

A. Yes

Q. It is more than just an overview, isn't it?

A. Yes

Q. And we can agree it is more than just a summary?

A. Yes

Q. I want to show you what I have marked as Defendant's exhibit #1 for identification purposes.

A. Ok

Q. You recognize this as the report you made relevant to this case.

A. Yes

Q. It consists of _?_ pages?

A. Yes

Q. And it is signed by you?

A. Yes

Q. And this is your complete report?

A. Yes

Q. You have made no changes since you signed it?

A. Correct

Q. No additions?

A. No

Q. No deletions?

A. No

Q. No supplements?

A. No

Q. Then this is your complete report?

A. Yes

Of course, there is a lot more you could do to set up an investigating officer, but the above establishes that he was trained on what to do concerning report writing, the importance of it and what should go in it. By accomplishing this, you have cut off any "safe havens" he may

have had about what he did or did not put in a report and what he did or did not think was

important enough to put in a report. A safe haven is a witness' excuse for not doing something she knows she should have or doing what she knows she should not have. You close off those

safe havens by anticipating the excuses and eliminating the excuses before she knows.you have done so, as demonstrated above. You have established that he took all the time he needed to

write a complete, comprehensive report that has everything in it he thought was important and

he has left out everything he thought was not. It will be difficult to say "I didn't have time", "It is only a summary", or "I didn't appreciate that fact at the time." Now that he is tied to his

report, the quality and thoroughness of it, you may begin your chapter on the investigation itself.

You may not get all of the answers noted above, but few officers on the stand are going

to admit they don't know how to write a good report or the purpose of it. You will get most of the answers I outline above.

A non-exhaustive list of topics to discuss with an investigative officer include:

1.

His or her training specifically on crime scene investigation. Cover specific topics such as evidence collection, blood spatter, gunshot trajectory, or any other forensically relevant topic that may have been present at the scene. In Texas, TCLOSE records, indicating how much and what kind of training they

have had, are readily available via open records request.

2.

His or her experience in crime scene investigation. If they have been a cop for 20 years but spent 19 of it on patrol writing tickets, they probably do not

have much experience investigating crime scenes. Subpoena their personnel file to see where they have been assigned.

3.

Discuss avoiding contamination, especially important when DNA is involved.

Discuss the importance of not contaminating a crime scene. Valuable

evidence may be forever lost. Guilty perpetrators (Not your guy) may go free.

4.

Discuss scene preservation, especially with first responders. You should have the log of who entered the scene so you will know how many curious cops came through trampling critical evidence.

5.

Discuss careful evidence collection. You must study evidence collection

procedures yourself so you will know how it should be done. Compare

approved protocols to that agency with what was actually done.

6. Discuss the chain of custody. Again, look at established protocols of that agency and see if they were followed.

7. Discuss timely delivery to the lab. Was it delivered the night of the offense?

Or several days later after it sat in the hot trunk of a Crown Victoria.

8. Consequences of a bad investigation. Scene may be compromised, Evidence

destroyed or lost, chain of custody may be broken and determining the true perpetrator may be impossible.

Crossing Snitches2 You will never get an admission from a snitch that "I got a deal!!" They have spent too much time with the DA being prepped and there is too much at stake for them to allow that to

happen. Nevertheless, with a good investigation underlying your cross, you can still get where you need to go.

You can still, through objective questions, establish an expectation of a benefit to the witness from the DA. Relevant questions include:

1.

Questions about the current pending charges, in all jurisdictions.

(State, Federal, city)

2.

Questions about priors.

3.

Establish they are in jail now.

4.

Establish they don't like jail. (Not difficult)

5. Establish how many years they could spend in jail on the current charges.

6.

Establish that they want out of jail now.

7.

If applicable, establish that they have snitched before.

8.

Establish that they have talked to the prosecutors about the case and how many times and for how long. (Pull their Jail Logs to see if it reflects how many times they were pulled to talk to Law Enforcement.)

9. Establish that they do not know if they are out of trouble until after

they testify. (The better they testify, the sooner they get out.)

You will probably never have a "Perry Mason moment" when a witness openly admits to

lying. "I was lying" will rarely come from the lips of a witness. But we are often faced with a

witness who has given two or more conflicting written statements. You can discuss the

TCDLA has a great "Cheat Sheet" for use in crossing snitches.

statements and their differences and for one of the few times when you can violate the rule of always leading, ask that if one of the statements is the truth, then the other must be a ?

Expert Witnesses Use all available discovery and investigation techniques to learn all you can about a particular expert. Google is a good tool as is Lexis or Westlaw, especially if the witness testifies frequently. Finding the reported cases they have testified in allows you to go to the trial or appellate lawyer and get the record of the testimony. Even better, utilize your listserv

capabilities to seek lawyers who have crossed this expert before or, perhaps, used this expert before. You need any prior testimony, as many CV's as you can gather, (It is sometimes interesting to see how CV's morph over the years.) and any writings the expert has generated.

Newspaper articles relative to the expert are also a good resource to have in your trial notebook. A transcript from their University could be a gold mine.

If the prosecution expert is called to offer an opinion, he or she has to have based their

opinion on some kind of data coupled with peer reviewed scientific research and writings.

Subpoena that data and copies of anything the expert may have used to form their opinion. If it is junk science, or sometimes no science, the expert may be discouraged from coming to trial.

On the other hand, send the expert anything you want them to be familiar with when

they testify. A certified letter, return receipt requested, to an expert expected to testify, containing a treatise or paper standing for a particular premise you wish to cross them on, will

provide good fodder for cross of that expert once he renders his opposite opinion on the stand. He can't say he didn't get it. All he can admit is that he got it and was either disinterested in another view or doesn't care about opposing views. Neither look good from where a jury sits.

When crossing an expert on a treatise, do not call it a treatise. Call it "The Bible" or

"The Manual", words that will resonate more with a juror. I will also be nice to determine if this expert actually owns this Bible or Manual. If he owns it and it really is "The Bible" in his field of expertise, he will have difficulty slithering out from under its dictates without looking foolish as he or she undertakes their mental gymnastics to explain their findings in contrast to

"the Bible's" teachings. Failing going to his office (Which is precluded under our Texas Rules of

Disciplinary Conduct) and looking on his shelf yourself, the 702/705 hearing would be a good time to determine whether he or she possesses the relevant treatise.

Experts have safe havens too, and you have to close them off. Experts want to say it is their "training, experience and education" that allows them to do what they do. Or their opinion is based on the "whole picture" rather than the "narrow set of facts" you want them to consider. Using the hearing outside the presence of the jury, you can sometimes prove that no

course or training they have taken has prepared this expert to render this opinion and nothing

in his experience has prepared him to render the opinion he espouses. Further, there is nothing in the literature that supports the opinion.

Finally, make good use of the 702/705 hearing in your litigation. You are entitled to a hearing outside the presence of the jury on any facts or data underlying an expert opinion.

Although the jury is not present, you are still telling a story, your own narrative, about your theory of the case. A closed cross is still necessary to control the witness and get your narrative before the gatekeeper who is about to determine whether this witness will testify before the jury.

Using Their Witnesses as Your Expert Poor folks have poor ways and more often than not, we represent poor people. They do not have the funds for an expert and often, the judge will not appoint them one. Therefore, we must be creative and use what is at our disposal. Sometimes, that is the state's own witnesses.

Whether it be the cocky investigative officer or the hapless medical examiner, these guys can, on occasion serve as an impromptu expert for you.

For example, a detective can serve as an expert on crime scene preservation, assuming

you have subpoenaed his training materials on the subject and are prepared to learn that

material yourself. An experienced officer can serve as an expert on how reports should be written and their importance in the event you have another officer who has done a poor job of writing a report. Assuming you have a jurisdiction where lineups are executed pursuant to a

protocol approved by the National Academy of Sciences Report, an officer could be questioned on his departments' protocol and a particular officer's deviation from that protocol.

Where there are multiple officers testifying, some old salts, some young pups, it is reasonable to think there will be an opportunity to use one against the other without them being able to do anything about it.

Crossing Lab Technicians Much of the work done in a lab is done with very sophisticated and delicate instruments. Machines, if you will. Machines break and malfunction. Humans misuse

machines and fail to use them properly on occasion. Garbage in, garbage out.

If a lab tech used a machine in your case, you need the manual for that machine and you need the maintenance log on that particular machine. You will also need the written protocols

for the lab. You also need any bench notes taken by the tech during testing. With your expert in the same field, you can review the work of the tech and their machine, thereby develop a cross to reveal any discrepancies in protocols established by the manufacturer of the machine and the lab entity itself.

Controlling the Difficult Witness You will have witnesses who want to control your cross. These usually include cops, experts and snitches who want to put on a show for the prosecutor whom they are trying to impress. They want to control the narrative. You can't let them.

Never let it show that you have lost control. Watch your voice and facial expressions

and never look surprised. If they pop up with a topic you do not wish to discuss, you can simply say, "Well, let's come back to that in a minute", or "We will get to that in a moment." You can tell the witness that you will revisit that (damaging) topic later. If it is clear to the jury the witness is being uncooperative you may also try:

"I'm sorry I confused you. Let me try again.

"Can you try to answer my question?

"You came to tell the truth. If the simple truth is yes, can you just tell us yes?

"What did I ask you?

Never ask the Judge for help. He may step in if the witness becomes too recalcitrant or

obnoxious, but don't ask for help. You can, however, ask the court reporter for help. You can ask them to read back the question and follow up with a statement such as "You understand

the question now, do you not?" The witness and the jury both know who has caused the delay.

You can also repeat the question yourself. Remember when your mother called you by your full name? You knew you were in trouble. Do that with your witness. Lean forward, use

his full name, stating; "Perhaps you didn't understand my question?" You can repeat the question until you get an answer. Eventually, they usually "get it" and answer the question.

MacCarthy refers to his version of this method as "Tweaking the Puppy." To properly tweak the puppy you first repeat the question slowly, using a rising inflection. Next, you repeat the question slowly again, this time using hand gestures. The third time, you use the witness name.

Ifthe witness does not answer your question (or agree with your short statement if you are doing your cross properly) after the third time you move on. It is clear to the jury that the witness does not want to answer your question and the jury can infer why he does not want to answer it, or what the answer should have been.

Mind games can play a role in cross as well. You can have a red file with the name of the

witness on the edge of counsel table, making sure he has an opportunity to see it. Passing of

notes between lawyers during cross can unnerve an already nervous witness.

Some witnesses want to simply "run their mouths" to both show they are in control and

to show how smart they are. For those witnesses, sometimes a handheld up as a traffic cop's will shut them up.

Quibbling witnesses will sometimes ask you to define a term. Caveat: This is one of the few times you can ask an open-ended question. Ask them what definition they use. This may be the only exception to the leading rule and some very good, experienced lawyers use it to

good advantage. Personally, it makes me queasy and I would probably choose to avoid that situation if possible.

For witnesses who have given more than one statement that somehow conflict,

obviously, one must be the truth, the other must be something other than the truth. Most likely, the state and the witness will try to couch the conflict as a "mistake" or "misunderstanding" however, most often, a serial liar (Co-defendant) will give statements that

begin as exculpatory statements but as the evidence mounts on them, they completely change

their story, inculpating themselves to some degree, but more so, your client who is portrayed as the ringleader. Allowing a liar to dub themselves a liar is far superior to you calling them one.

Q: You gave a statement in this case?

A: Yes

Q: You gave a statement in this case on September 11, 2009?

A: Yes

Q: You gave another statement in this case?

A: Yes

Q: You gave your second statement on September 12, 2009?

A: Yes

Q: You later gave a third statement in this case?

A: Yes

Q: You were at the police station when you gave these?

A: Yes

Q: You were given time to proofread the first statement?

A: Yes

Q: You were given time to proofread the second statement?

A: Yes

Q: You were given time to proofread the third statement?

A: Yes

Anywhere around this point in the proceedings, show each statement to the witness

and establish that they are indeed, his/her statements and that there are no additions, changes, deletions, etc. relative to those statements. Close off all safe harbors relative to these statements.

Q: After you read the first statement, you signed it?

A: Yes

Q: And you swore that everything in the statement was true, so help you God? (Do this for each statement)

Point out the glaring differences in at least two of the statements. Point out as many as you can. Remember to do so in a leading fashion. You are testifying, not the witness.

Q: You said it was dark outside when you gave statement one?

A: Yes

Q: You said the sun was shining in statement two?

A: Yes

Q: And both cannot be true, can they?

A: No

Q: One is true?

A: Yes

Q: One is false?

A: Yes

Q: So, if one is the truth, the other one must be a

?

A: A lie.

Of course, the above would be in a perfect world, which we are not. But it gives an idea

of how to structure a cross on a lying co-defendant who has given multiple, conflicting stories

as they are pressured by the police to "come clean" and tell the truth about what happened so they can recommend that the DA give them a probation.

Finally, try to determine whether the one giving the statement against your client can

actually read and write. If they can't, it would be difficult for them to write a statement or read and understand one written for them.

Looping Looping is a technique of speaking and questioning that causes the listener to hear

important facts more than once, allowing for better retention of those facts. In order to loop,

you will, in a leading question, establish a single fact, then use that exact fact or phrase in the next question. A simple example is noted from above:

Q: You gave a statement in this case?

A: Yes

Q: You gave a statement in this case on September 11, 2009?

A: Yes

Always connect the loop to something very safe. Never loop a bad fact. Loop three times maximum.

Adjectives work well for this technique. Most jurors will remember few names except for the Judge and the one on the indictment. This technique of looping with adjectives assists the jury in remembering who the players are. For example: Q: You saw a group of men?

A: Yes

Q: You saw a group of young men?

A: Yes

Q: You saw a group of young Hispanic men.

A: Yes

Q: One of these men was shorter than the rest?

A: Yes

Q: And the short man was yelling?

A: Yes

Q: And the short man who was yelling was yelling obscenities?

A: Yes

Q: And the short man yelling obscenities was directing them at Mr. Niland, my client?

A: Yes

Most Ijkely, after such a cross, the jury will remember the injured or deceased party as the short Hispanic male gang member who was yelling obscenities at your client and not by his name. Trust me, that is a good thing.

Double looping is where you establish two distinct facts in two separate questions, then loop them into a third question. For example:

Charlene and Booger are joined in the bonds of holy matrimony in a beautiful June

wedding ceremony at the local truck stop. (That is also where their selections were) They met at the truck stop as they both worked there. Booger "busted flats" and drives his own truck part time during cattle shipping season. Charlene was the head cashier. Earl, the mechanic at the truck stop married them. Earl was a part-time minister at a small Church of Christ outside town.

It was a lovely and touching ceremony there in the wash bay at the truckstop. It was a little warm and muggy, but the flies weren't too bad 'cause the wind was out of the west,

blowing the feedlot smells away, rather than toward town.

Shortly after the nuptials were over and the honeymoon was completed, (The spent the weekend in Talladega Alabama. Charlene had always wanted to see the NASCAR Hall of Fame.)

Charlene was relaxing at home with an adult beverage. She was perched on the chaise lounge

on the front porch as Booger approached. Charlene had gotten a head start on Booger and had downed about 4 shots of Ceurvo tequila by the time he hit the porch that evening. Booger

joined in. Eventually, the reason for Charlene's prodigious consumption of alcohol became apparent when she blurted out "I heard about you and that truck stop floozy and whut you did

at yer bachelor party!" Apparently, Charlene had heard around the truck stop that Booger had been unfaithful to her on that evening with a comely little waitress at the truck stop. A

perplexed look comes over Booger because, as is custom at a good bachelor party, he doesn't remember what happened. Nevertheless, before Booger could say "Baby, she didn't mean a thing to me" and "I wuz thinkin' about you the whole time," Charlene threw her commemorative NASCAR shot glass at him, and once she was able to get to her feet, rushed

Booger in his chair and commenced to whuppin' Booger's ass. Sheriff Reeves is called to the scene by neighbors at the trailer park and Booger is arrested and charged with assault, domestic violence.

Booger is 5'2" tall and weighs 100 pounds assuming he is holding a tire iron in each hand. Charlene is 6'5" in flats and one cheeseburger away from 375 pounds. Your line of questioning for Sheriff Reeves might look something like this: Q: Sheriff, according to your report, Charlene is 6'5"?

Q: And further, according to your report, Booger is 5'2"?

Q: We can agree that Charlene shows to be 375 pounds?

Q: We can further agree that Booger is 100 lbs?

Q: So, 5'2 Booger was hitting 6'5" Charlene?

Q: And 100-pound Booger was hitting 375-pound Charlene?

As demonstrated above, the facts of Charlene's height and weight are established

independently and then looped into a third question. As noted, part of the purpose of looping is to expose the jury to a fact as many times as you can to enhance their memory of that fact.

Here, it has the added benefit of showing how incredulous the state's theory of the case is.

Trilogies Trilogies have been used for centuries by the greatest of orators to make their words and ideas more lyrical and memorable to the listener. Trilogies have an almost magical effect when used to convey thoughts and ideas. Think of all of the trilogies you have heard that you

can't forget. They are stuck in your RAM and cannot be excised. Take for example, Lincoln's

Gettysburg Address. That short, two-minute dedication speech contains more than one famous trilogy that helped make it one of the greatest speeches of all times. Consider the following: "But, in a larger sense, we cannot dedicate, we cannot consecrate, we cannot hallow this ground"; and: (T)hat this nation, under God, shall have a new birth of freedom—and that

government of the people, by the people, for the people, shall not perish from the earth."

"Duty, Honor, Country," "I came, I saw, I conquered," "See no evil, hear no evil, speak no evil." Trilogies are a part of our everyday language system that allows us to make thoughts, concepts and ideas come alive in the memories of the listener. They are powerful tools not only in cross examination but from voir dire to verdict.

In Closing The "Closed Cross" Method allows you to tell your story, maintain control of the witness, and make a good impression while you are doing it. However, a cross examiner must

never become tied to a script to the degree that he or she fails to listen to answers that a witness will, in spite of your best efforts, volunteer. Listen to the difficult-to-control witness while you are trying to corral them and be ready to ask questions "on the fly." Cross exam, and for that matter, any part of a trial, never goes exactly as planned. It is said that the best strategy never survives first contact with the enemy. Cross exam, like many endeavors, is often

improvisation based on principals. You must be ready to expand your questioning if the opportunity presents itself, being sure that you have adequate information to know the answer

and fit the answer into your theory and narrative of the case. They vital part to this is knowing your case inside and out. You must take the time to memorize the evidence, investigate the unknown so you can know all the facts about your case.

Gone are they days of picking up a client's file for the first time on Sunday and picking a jury on Monday. Cross examination is more than drawing a line down the middle of a yellow pad and writing down cross questions as you hear direct testimony on one side and putting answers to your open-ended questions on the other. Your cross-examination preparation

begins when you get the case, not when you get a jury. It is only by extensive investigation and thorough preparation that a cross examination is converted from a tepid defensive tool into a powerful offensive weapon. Afterall, the best defense is a good offense.

CAUSE NO. CAUSE NO. CAUSE NO. CAUSE NO.

2012-435,164 2012-435,165 2012-435,166 2012-435,167

THE STATE OF TEXAS

IN THE 364TH DISTRIC OF

DAVID RYAN WATSON

LUBBOCK COUNTY, TE *XT

APPLICATION TO TAKE DEPOSITIONS OF WITNESSES AND AFFIDAVIT IN SUPPORT THEREOF

TO THE HONORABLE JUDGE OF SAID COURT:

NOWCOMESDAVID RYAN WATSON, the Defendant, and appliesto take depositionof the following witnesses pursuant to Art. 39.02 Texas Code of Criminal Procedures and in support thereof would show the following: I.

Defendant desires to take the depositions of the following witness: RAVEN WINTERS. RAVEN WINTERS is the primary witnesses against Defendant in this case. She has material information that is necessary to the preparation of the defense.

II.

Counsel for Defendant feelsthat it would be inappropriateto contact this witness directly and

further feels that a formal deposition would be more likely to reveal truthful information than informalconversations. A formal depositionwouldbe advantageousfor all parties involved because of the animosity between the parties.

III.

This application is based on Defendant's right to due process and due course of law and effective assistance of counsel under the United States Constitution, Amendments V, VI, and XTV;

Texas Constitution, article I, sections 10and 19, and Texas Code Criminal Procedure, art. 39.02.

WHEREFORE, PREMISES CONSIDERED, Defendant prays thatthis application to take depositions of witnessesbe granted.

Respectfully submitted,

CHAPPELL, LANEHART & STANGL, P.C. ATTORNEYS AT LAW 1217 AvenueK

Lubbock, Texas 79401-4025

Ph. No. (806) 765-7370

Fax No. (806) 765^

By:

U, Chuck Lanehart State Bar No.: 11891400

CAUSE NO. 2012-435,164 THE STATE OF TEXAS

IN THE 364TH DISTRICT C

VS.

OF

DAVID RYAN WATSON

LUBBOCK COUNTY, TEXAS

DEFENDANT'S NOTICE OF INTENT TO INTRODUCE EVIDENCE OF ALLEGED VICTIM'S PRIOR SEXUAL BEHAVIOR

UNDER TEXAS RULE OF EVIDENCE 412(b) AND REQUEST FOR IN CAMERA HEARING

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW the Defendant, DAVID WATSON, by and through his attorney, Chuck Lanehart, and files this, Defendant's Notice of Intent to Introduce Evidence of Alleged Victim's

Prior Sexual Behavior Under Texas Rule ofEvidence 412(b) and requests the Court to hold an in camera hearing to determine the admissibility of the evidence under Rule 412(c) of the Texas Rules of Evidence.

I.

Pursuant to Rule 412(b), the Defendant intends to introduce evidence of the alleged

victim's past sexual relationship with the accused, which will be offered upon the issue of whether the alleged victim consented to the sexual behavior that is the basis of the offense

charged. Additionally, such evidence may be offered as it relates to the motive or bias of the alleged victim.

II.

Defense counsel has provided the State a summary of the evidence of the alleged victim's past sexual relationship with the accused which will be offered upon the issue of consent.

02900198184076 PTMO - PRETRIAL MOTION Case No: 2012435164

III.

Further, the Defendant asserts that the probative value of such evidence outweighs the danger of unfair prejudice. TRE 403.

WHEREFORE, PREMISES CONSIDERED, the Defendant respectfully prays that this Motion be granted.

Respectfully submitted,

CHAPPELL, LANEHART & STANGL, P.C. ATTORNEYS AT LAW 1217 AvenueK

Lubbock, Texas 79401

Ph. No. (806) 765-7370^

Fax No. (806) 765- "

CHUCK LANEHART SBN: 11891400

Attorney for David Watson

CAUSE NO. 2012-435,164

cP, TA

THE STATE OF TEXAS

ยง

IN THE 364TH DISTRICT COUR^, \ %&

VS.

OF

DAVID RYAN WATSON

LUBBOCK COUNTY, TEXAS

DEFENDANT'S MOTION TO EXCLUDE EVIDENCE OF ALLEGED CHILD PORNOGRAPHY AND ANIMATED CHILD PORNOGRAPHY

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW the Defendant, DAVID WATSON, by and through his attorney, Chuck

Lanehart, and files this, his Motion to Exclude Evidence of Alleged Child Pornography and Animated Child Pornography, and requests the Court to hold a hearing to determine the admissibility of the evidence under Rules 401, 402, 403 and 404(b) of the Texas Rules of Evidence.

I.

Defendant is accused in the above cause of the offense of Aggravated Sexual Assault. In Cause No. 2012-435,166, Defendant is accused of the offense of Possession of Child Pornography.

II.

The State has provided defense counsel and a defense expert an opportunity to view the evidence of alleged child pornography in Cause No. 2012-435,166. Said evidence consists of a video identified as "C:\Documents and Settings\David\My Videos\Debut." Further, the State has provided defense counsel and a defense expert an opportunity to view evidence of alleged animated child pornography identified as "Child Porn Cartoon Character Pictures."

02900198184079

PTMO - PRETRIAL MOTION Case No: 2012435164

III.

Defendant would show that the video "C:\Documents and Settings\David\My VideosVDebut" in fact does not depict child pornography, but does depict an adult female engaged in sexual acts with an adult male. Defendant would show that none of the images identified as "Child Porn Cartoon Character Pictures" depict illegal child pornography.

IV.

Defendant would show that the State's evidence alleging child pornography and animated child pornography are not relevant to the issues in the Defendant's trial alleging aggravated sexual assault, in that said evidence has no "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." TRE 401,402.

V.

Defendant would show that the State's evidence alleging child pornography and animated child pornography are not admissible as evidence of "other crimes, wrongs or acts" because said

evidence does not constitute "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." TRE 404(b).

VI.

Defendant would show that even if the State's evidence alleging child pornography and

animated child pornography are deemed relevant or otherwise admissible under Texas Rule of

Evidence 404(b), said evidence should be excluded because its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or

by considerations of undue delay, or needless presentation of cumulative evidence. TRE 403.

WHEREFORE, PREMISES CONSIDERED, the Defendant respectfully prays that this Motion be granted.

Respectfully submitted,

CHAPPELL, LANEHART & STANGL, P.C. ATTORNEYS AT LAW 1217 AvenueK

Lubbock, Texas 79401

Ph. No. (806) 765-737; Fax No. (806) 765-8.

By:_ CHUCK LANEHART SBN: 11891400

Attorney for David Watson

CAUSE NO. 2012-435,164

*S

STATE OF TEXAS

IN THE 364TH DISTRICT COURT^

vs.

OF

DAVID WATSON

LUBBOCK COUNTY, TEXAS MOTION IN LIMINE REGARDING BLACKMAIL

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES, DAVID WATSON, the Defendant in the above styled and numbered cause, by and through his attorney of record, Chuck Lanehart, and requests the Court to instruct the District Attorney, his staff, and all of the State's witnesses in the cause not to mention, discuss, allude to, interrogate concerning, or in any way suggest to the jury or the venire panel,

eitherdirectly or indirectly, any of the following matters until such time as both (1) a hearing has been held outside the presence of the jury or venire panel as to the admissibility of such matters, and (2) the Court has determined that the matter in question is proper for the jury or venire panel.

I.

Any use or mention of the following terms in the presence of the jury, whether through elicited testimony or argument, to categorize the existence of a quid pro quo arrangement or tradeoff agreement between the defendant and the complainant: A. "blackmail," B. "extortion," C. "exploitation," or D. other similarly derogative phrase

In support of such motion, the Defendant would show: 1. Blackmail, as it exists in this case, is not a criminal offense in Texas.

2.

The Texas Penal code criminalizes blackmail and/or extortion only to the extent that

a threat is made to obtain property or pecuniary value.

The Defendant would further show that such language, if presented before the jury or venire panel without first being tested for admissibility, could irreversibly taint the jury to the extent that:

Tex. Penal Code Ann §§ 31.01; 31.03; See also Paul H. Robinson, CompetingTheories ofBlackmail: An Empirical Research Critique ofCriminal Law Theory, 89 Tex. L. Rev. 291, 308-309 fo.75 (2010).

02900198184172 PTMO

-

PRETRIAL

Case No:

MOTION

2012435164

1. Such derogatory labels would be prejudicial and likely to create bias against the defendant,

2. Such information tends to suggest decision on an improper basis, 3. Such information is likely to confuse or distract the jury from the main issues, 4. No instruction could cure its improper admission, and 5.

It would necessitate a mistrial.

To allow such testimony without prior permission of the Court and objections from the Defendant would prevent the Defendant from obtaining a fair trial in violation of the Fifth and Fourteenth Amendments to the United States Constitution, Article I, Sections 10 and 19 of the Texas Constitution, and Articles 1.04 and 1.05 of the Texas Code of Criminal Procedure.

WHEREFORE, PREMISES CONSIDERED, Defendant prays that the District Attorney, any member of his staff, and any witnesses appearing on behalf of the State be instructed not to refer to or utilize such labels until first approaching the bench and making its intentions known to the Court. In such event, the Defendant further prays that the jury be retired, that the evidence and objections be heard outside the presence of the jury, and that the Court rule on the admissibility thus preventing prejudicial error which no instruction can cure.

Respectfully submitted, CHAPPELL, LANEHART, & STANGL, P.C. ATTORNEYS AT LAW 1217 Avenue K

Lubbock, Texas 7^01 (806) 765(806) 76

CHUOeXANEHART SBN 11891400

CAUSE NO. 2012-435,164 STATE OF TEXAS

IN THE 364TH DISTRICT COU

vs.

OF

DAVID WATSON

LUBBOCK COUNTY, TEXAS

MOTION IN LIMINE REGARDING STATUTORY DEFINITION OF CONSENT TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES, DAVID WATSON, the Defendant in the above styled and numbered cause, by and through his attorney of record, Chuck Lanehart, and requests the Court to instruct the Criminal District Attorney, his staff, and all of the State's witnesses in the cause not to

mention, discuss, allude to, interrogate concerning, or in any way suggest to the jury or the venire panel, either directly or indirectly, any of the following matters until such time as both (1) a hearing has been held outside the presence of the jury or venire panel as to the admissibility of such matters, and (2) the Court has determined that the matter in question is proper for the jury or venire panel.

I.

Any suggestion to the jury, whether through void dire, testimony, or argument, that assent-in-fact, in the context of sexual assault, may be legally nullified by any means not

specifically identified in the eleven statutory definitions of "without consent," enumerated in section 22.011(b) of the Texas Penal Code, including, but not limited to, the following: A. Any statement, implication, evidence, or argument that the existence of a quid pro quo agreement, which may be categorized as "blackmail," "extortion," "exploitation," or other similarly derogative phrase, legally invalidates consent or otherwise serves as a means by which to commit an element of the charged offense of sexual assault.

In support of such motion, the Defendant would show: 1. Lack of consent is an essential element of the charged offense, which the State bears

the burden of proving beyonda reasonable doubt.

2. The only appropriate statutory definitions of "without consent," are enumerated in Texas Penal Code 22.011(b).1 A specific or local statutory definition will control

1Tex. Penal Code 22.021(cX"Anaggravated sexual assault under this section iswithout the consent ofthe other person ifthe aggravated sexual assault occurs under the same circumstances listed in Section 22.011(b)").

02900198184175 PTMO - PRETRIAL MOTION Case No: 2012435164

over a more general one if there is a conflict.2 The eleven statutory definitions of "without consent" found in section 22.011(b) are "exclusive."3

3. None of the eleven statutory definitions of the element, tvwithout consent," encompass non-violent quid pro quo agreements such as blackmail, extortion, or

exploitation. The statutory definitions found in section 22.011(b) contemplate situations where there is assent-in-fact but consent is legally nullified. Three of the statutory definitions deal with the use or threat of physical force or violence.4 Four

others contemplate situations where the victim is mentally impaired by disease or substance, and unaware of the assault or incapable of resisting it.5 The final four enumerated statutory definitions anticipate an abuse of authority or similar disparity in relationship.6 The Defendant would further show that such evidence, if presented before the jury or venire panel without first being tested for admissibility, could irreversibly taint the jury to the extent that:

1. Any alleged probative value would be substantially outweighed by the danger of unfair prejudice,

2. Such information tends to suggest decision on an improperbasis, 3. Such information is likely to confuse or distract the jury from the main issues, 4. No instruction could cure its improper admission, and 5.

It would necessitate a mistrial.

To allow such testimony without prior permission of the Court and objections from the Defendant would prevent the Defendant from obtaining a fair trial in violation of the Fifth and Fourteenth Amendments to the United States Constitution, Article I, Sections 10 and 19 of the Texas Constitution, and Articles 1.04 and 1.05 of the Texas Code of Criminal Procedure.

WHEREFORE, PREMISES CONSIDERED, Defendant prays that the District

Attorney, any member of his staff, and any witnesses appearing on behalfof the State be instructed not to refer to or discuss such matters until first approaching the bench and

making its intentions known to the Court. In such event, the Defendant further prays that the jury be retired, that the evidence and objections be heard outside the presence of the

jury, and that the Court rule on the admissibility thus preventing prejudicial error which no instruction can cure.

1Tex. Gov'tCode Ann. §311.026(a), (b) (Vernon 2009). See also Johnson v.State, 227 S.W.3d 180.183 (Tex.App —Houston [l*\2007) (The general definition ofconsent found in Section 1.07(a) (11) has been rejected for sexual assault offenses because itis"broader and less specific.. and could thus allow for conviction upon a wider rangeof facts.")

3Elliottv. State,858 S.W.2d 478,480 Fn. 1 (Tex.Crim.App. 1993).

4Tex. PenalCode 22.011(b) (1), (2), (7). *Tex. Penal Code 22.011(b) (3-6). *Tex. PenalCode 22.011(b) (8-11).

Laurie Key Laurie L. Key is from Lubbock, Texas. She has been a solo practitioner for over 19 years. focuses solely on criminal defense with an emphasis on drug related offenses in both State and Federal Courts. Laurie is a Past President of the Lubbock County Young Lawyers Association, Past President of the Lubbock Criminal Defense Lawyers Association, a Founding member of the Board of Directors for the Lubbock County MAC (Private Defender’s Office), past member of the Board of Directors of the Texas Criminal Defense Lawyers Association, past Chair of CDLP and current Chair of TCDLEI. She currently serves as a Mentor for the Future Indigent Defense Lawyers. Laurie was named a Texas Super Lawyers Rising Star 2011 -2014. She has spoken on various subjects throughout the State for both the State Bar of Texas and TCDLA.

Updated November, 2020

Cross examination In Criminal Cases 13th Annual Jolly Roger - Laurie l. Key – December 11, 2020 With thanks and credit to Heather J. Barbieri, Sarah B. Johnson, and Adam Brzostowski

JR1

Slide 1 JR1

Let me know what to fill in here Jordan Rhodes, 10/19/2020

“Never, never, never, on cross-examination ask a witness a question you don't already know the answer to . . . . do it, and you'll often get an answer you don't want, an answer that might wreck your case.”

• Harper

Lee

2

The Important Question • Should • Cross

you cross examine at all?

examination is not a one size fits all approach.

Develop Theory

Pretrial Prep

Decision to Cross

3

Theory – That combination of facts and law which in a common sense and emotional way leads the court to conclude a fellow citizen has been wrongfully accused.

DEVELOP THEORY

Pre-Trial • Impeachment Evidence

5

Gathering Evidence Pre-trial

6

Potential Witnesses •

The Claimant

•

Responding Officer

•

Detective/Investigator

•

Expert witnesses

7

Responding Officer • Pre-trial

• Decision to Cross

• Demonstrate

JR2

Slide 8 JR2

Is there anything that should be added here. I just copied over from detective Jordan Rhodes, 10/19/2020

Detective/Investigator • Pre-trial

• Decision to Cross

• Demonstrate

JR3

Slide 9 JR3

If youve seen True Detective. McConaughey's character has a large disciplinary record for drug use. Thought it might be a good example.

Jordan Rhodes, 10/19/2020

Expert Witness • Pre-trial

• Decision to Cross

• Demonstrate

Examples from State v. Watson How Pre-Trial Preparation Pays Off

11

JR5

12

Slide 12 JR5

I think we should delete this slide but its an attention getter.

Jordan Rhodes, 10/19/2020

Pre-trial – Defense Exhibits and Demonstratives •

Defense Exhibits: Example from recent trial

13

Pre-trial – Exhibits and Demonstratives

 Other helpful exhibits:  Model of floor plan  Timeline of relationship  Timeline of events  Daily copy of transcript - direct examination

14

15

16

Pre-Trial - Briefs/Motions • Motion

in Limine Regarding Blackmail

• Motion

in Limine Regarding Statutory Definition of Consent

• Motion

to Exclude Pornographic Material

• RULE

412 Admissibility – Past Sexual Behavior

• Constitutionality • Interpretation

of “Perp Walks”

of “deadly weapon”

17

Selective Memory

18

19

Motive Consistent with Theme

Establishing Initiator 20

Text Messages Inconsistent Statements

21

22

Third-Party Statements

23

Impeachment - 911 Call

24

25

Impeachment - Video

26

27

Maintaining Control of Witness

28

29

Impeachment - Omissions in Statements to Police

30

31

Admissibility of Video Evidence

32

33

Tools Made Available at Trial • Courtroom • Damage • Daily

Presence

Control of Prosecution’s Direct

Transcript of Trial Testimony

• Prosecutorial • KNOW

Objections

When to shut-up 34

Damage control After Direct

35

36

Anticipate Objections

37

38

Know When to Shut Up

39

Questions 40

Texas Criminal Defense Lawyers Association

13th Annual Jolly Roger Hal Jackson Memorial Criminal Law Seminar: Battling the Resistance December 11, 2020 Livestream

Topic:

The Battle Must be Fought Anew Every Day: (Pretrial) Speaker:

Allison Mathis

1201 Franklin, 13th Floor Houston, TX 77002 (832) 269-6050 Phone allison.mathis@pdo.hctx.net

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

Allison Mathis Allison Mathis is a criminal defense attorney in the post-conviction writs division of the Harris County Public Defender’s Office in Houston, Texas. She has defended the public from the spurious claims of the government in various places, including Aztec, New Mexico, the Swinomish Indian Tribal Community in LaConner, Washington, and the Republic of Palau. She serves on TCDLA’s board of directors and is a founding member of her office’s extraordinary Knit Club.

Before she was a lawyer, she was a superlative late-night diner waitress and an aspiring literary critic, but mostly she drank wine. You can reach her at allison.mathis@pdo.hctx.net.

Updated October 2020

TCDLA: Battling the Resistance 2020

Negotiations and Love Songs Or: The Art of the Deal; Or: How to Talk to a Prosecutor If You Really Have To

Allison Mathis October 16, 2020

Table of Contents Introduction...........................................................................................................2 Bond Hearing Questionnaire/Habeas Writ Affidavit .........................................3 Letter to In-Custody Client After Meeting in Court.............................................7 Letter to In-Custody Client When No News to Report .......................................8 SUPPORT LETTER INSTRUCTIONS: ............................................................9 Sample of a Support Letter ................................................................................. 11 ASSERTION OF SPEEDY TRIAL RIGHTS ................................................... 12 MOTION TO COMPEL THE PRESERVATION OF FIELD AND/OR ROUGH NOTES OF INVESTIGATIVE PERSONNEL ............................... 14 CLIENT DISCOVERY MEMORANDUM ...................................................... 18

1

Introduction

DEAR CLE ATTENDEE: In lieu of a traditional CLE paper, I am submitting to you a small but valuable (to me at least) collection of materials I have drafted over the years. I hope you will find them to be helpful in your practices.

One of the things I think is most important about this job is to remember that we have to wear a lot of different hats. We have to be able to gain the trust of a stranger going through one of the most stressful times of their life, then we have to obtain enough information, emotional, legal, and historical, to try to figure out how to get this stranger the best possible option. We also have to be able to convince someone else, be it judge, jury, prosecutor, or combination thereof, that this stranger deserves something better than what they’re being handed. This is especially tricky because often the person we have to convince has very different values and priorities than we do.

I have found that the thicker I can make a file, the better my outcome generally is both in terms of resolution of the case and satisfaction of the client, with some exceptions. If the prosecutor is the one who made the file thick, we’re probably in trouble. Many of the things I have included in this packet are things designed to be helpful to you as the attorney, but also helpful to the client. One thing I have noticed in my practice is that a) clients love paperwork and b) people want to feel like they have some control over their uncontrollable circumstances. I think this is where asking clients to fill out forms and have their family gather support letters comes in.

This presentation will focus on some of the ethical concerns and soft skills of negotiations, as well as review the materials in this packet. I strongly believe that there is too much emphasis on trial skills in most lawyer training programs. While trial is sexy and stressful, it is a very small part of even the most trial-dog lawyer’s job. Trial is always a gamble, and with the ability to negotiate persuasively and effectively, many times it is unnecessary to go to trial to get a just result from an unjust system.

2

HARRIS COUNTY PUBLIC DEFENDER’S OFFICE HABEAS DIVISION

Bond Hearing Questionnaire/Habeas Writ Affidavit

Applicant Name:______________________________________SPN:___________________ Date of Birth:__________________ Date and Approximate Time of Arrest:_______________ Charge(s) Filed:______________________________ Bond requested:___________________ Bond set at:______________________ Magistrate name:_____________________________ Attorney at Bond Hearing:_____________________________________________________ Assigned to Court:________________ Next Court Appearance:________________________ Personal and Family Experiencing homelessness? Yes/No Length of time homeless:_________________________ Citizenship:__________________Address:________________________________________ Length of time at address:______________________ Time in Houston area:_____________ Other members of household:___________________________________________________ ___________________________________________________________________________ Minor Children (incl. ages):______________________________________________________ Ways you care/provide for children (court-ordered child support, informal financial assistance, childcare, etc.) _________________________________________________________________ _____________________________________________________________________________ Other people you care/provide for and specifics about the assistance you provide:_____________ _____________________________________________________________________________ 3

Other ties to the community (religious community/church involvement, volunteer organizations, informal mentoring or adoption, other things that make you want to stay in Houston):___________ ______________________________________________________________________________ ______________________________________________________________________________

Income and Employment Place of Employment:______________________________ Length of employment:___________ Hours/week:____________ Take-home Pay:_____________________ If you are not released from jail today, will you lose your job?______________________________ How would losing your job affect you and your family?___________________________________

If you are unemployed, length of time unemployed:_____________________________________ If you are unemployed, who supports you financially?___________________________________ Are you trying to find work? How?_________________________________________________ Government Benefits:____________________________________________________________ Other income:_________________________________________________________________ Total income per month:_____________________ Total Rent and Bills:___________________ Total cash available and where? (ex: $100 in bank account, $20 in wallet)____________________ Would you, personally, be able to post ANY amount of bond? Yes/No Amount:____________

Medical Issues: You may choose not to answer about any medical issues you have. By including information on this form about medical issues, you are giving permission for your lawyer to tell the court about your medical issues if your lawyer thinks it will help you.

Diagnosed mental or physical illnesses requiring treatment? Yes/No Diagnosis/Date of Diagnosis:____________________________________________________ ___________________________________________________________________________ Are you currently prescribed any medications?_______________________________________ When did you last have access to your prescriptions?__________________________ Doctor/Clinic Name:________________________ 4

How will staying in jail make this illness worse?_______________________________________ ___________________________________________________________________________

Do you have a diagnosis of any of the following conditions: diabetes, cancer, heart problems, lung/respiratory problems, asthma, COPD (Chronic Obstructive Pulmonary Disorder),obesity, chronic bronchitis, or any immune-system related disorder (lupus, HIV/AIDS, etc.)? Yes/No Diagnosis/Date of Diagnosis:___________________________________________________ Treatment:__________________________________________________________________

Are there any other reasons you can think of why you would be especially high risk for infections or diseases, such as Coronavirus, caught in the jail?_____________________________________ ___________________________________________________________________________

Education/Training Education: ___________________________________________________________________ Training/Certificates/Degrees:____________________________________________________ Military Service(dates & type of discharge):___________________________________________ Currently in school/classes? Yes/No If yes, what type and where:_________________________

Criminal History Prior “violent� criminal convictions- misdemeanor or felony (county/state, approx. date)_______ ____________________________________________________________________________ Prior non-violent felony convictions (county/state, approx. date)__________________________ ____________________________________________________________________________ Prior Community Supervision violations or failures to appear (include bond, probation, or parole and approximate date)______________________________________________________ _____________________________________________________________________________ Future Planning If released, how will you get to court?_______________________________________________

5

If released, how should we contact you (phone, email, etc)? ____________________________________________________________________________

If you are not released, how will staying in jail affect you and your family:____________________ _____________________________________________________________________________

In order for your lawyer to use this information to try and help you get out of jail, you may need to swear that the information you have written in this application is true, to the best of your knowledge.

If someone later determines that you were lying on purpose in this application, you could face criminal charges (perjury) for those lies, so it is really, really important to be honest.

By signing this form, you are giving your lawyer permission to use any of the information you have given here however they think is in your best interest. That means that if you have written down anything personal or private on this application, you are trusting your lawyer to decide if sharing that information might help you. For example, they might think it would help your case to share this information with a court, judge, prosecutor, another defense attorney, or an investigator. You do not have to consent to share this information. An attorney will still represent you at your bond hearing if you do not consent to share information.

If EVERYTHING you have written so far is true to the best of your knowledge AND you agree to let your lawyer use this information how they think will benefit you, please fill out the next section:

“I intend for this document to be an unsworn declaration made by an inmate of the Harris County Jail, pursuant to Texas Civil Practice and Remedies Code §132.001.

My name is ___________________________ and my date of birth is _________________. My SPN is ___________________. I am presently incarcerated in the Harris County Jail in Houston, Harris County, Texas, 77002. I declare under penalty of perjury that the foregoing information in this document is true and correct to the best of my knowledge.”

Executed on the ______day of ____________, 2020.

_______________________________ Applicant’s Signature

6

Letter to In-Custody Client After Meeting in Court

Allison Mathis ASSISTANT PUBLIC DEFENDER 1201 FRANKLIN ST., 13TH FLOOR HOUSTON, TEXAS 77002

713-274-6700

AUGUST 14, 2019 MR. JOHN SMITH SPN xxxxxx 1A1 03C 1200 BAKER ST. HOUSTON, TEXAS 77002 DEAR MR. SMITH, It was nice to meet you in court today. I am writing to give you a little more information than I was able to give you in the noisy holdover tank in court.

I’d like to introduce myself briefly: I am from Houston, born and raised here, and I graduated with honors from South Texas College of Law. I also have a bachelor’s and master’s degree from University of Houston.

As long as I have been a lawyer, I have only been a criminal defense lawyer. I love my job and care a lot about my clients. I write for the American Bar Association’s Criminal Justice magazine, and I also really enjoy learning about ancient history, and I collect teapots.

I know that being your lawyer is a position of trust and respect, and I take my position as your attorney very seriously. I would like to give you some legal advice right off the bat: Most importantly, do not talk to anyone, other than me, about your case right now. Your phone calls and mail to everyone other than me are being monitored by the jail staff. It is also fairly common for other people in jail to provide information to the State. If anyone tries to pressure you into talking about your case, you can say, “Sorry, my lawyer told me I can’t.”

Do your best to avoid any kind of conflict in the jail. Your disciplinary record during your time in custody may become an issue later.

If you have an urgent issue (such as not getting necessary medication or treatment, physical danger, or other pressing issues that can’t wait), you can call my office toll-free from the jail at: 713-229-xxxx. This phone number is ONLY for clients. I am often in court or investigating cases, so I may not be there to pick up your call, but you can at least get a message through to me quickly. You are also welcome to send me letters to the above address.

I look forward to speaking with you soon.

Yours, 7

Allison Mathis

Letter to In-Custody Client When No News to Report

Allison Mathis ASSISTANT PUBLIC DEFENDER 1201 FRANKLIN ST., 13TH FLOOR HOUSTON, TEXAS 77002

713-274-6700

JUNE 27, 2019 M R. X 701 SAN JACINTO 6E1HOUSTON, TX 77002 DEAR MR. SMITH, I am writing to let you know that there have not been any significant developments on your case since we last spoke. I am still reviewing and receiving evidence in your case and working to secure you the most options moving forward. I wanted to touch base with you and just let you know that I haven’t forgotten about you and am working on your case, even if there’s not much to report.

Your next court date is Tuesday, August 6, 2019.

I am glad to take any questions or concerns you have via mail or you can call my office toll-free from the jail at: 713-229-xxxx. I make every effort to be in my office on Thursday afternoons to receive calls from jail, so that is the best time to contact me.

Yours,

Allison Mathis

8

Allison Mathis ASSISTANT PUBLIC DEFENDER 1201 FRANKLIN ST., 13TH FLOOR HOUSTON, TEXAS 77002

713-274-6700 allison.mathis@pdo.hctx.net

SUPPORT LETTER INSTRUCTIONS:

Thank you for helping write a letter to support Firstname Lastname.

Your letter can be very important in helping to decide what happens in the case.

Your letter should be typed on a computer or typewriter if possible. If not, handwritten is ok.

Your letter should start by introducing yourself. You should say your name and what you do for a living.

You should also say how you know Firstname and how long you’ve known them. It would be great if you could think of a short story or memory involving Firstname.

This letter is not meant to discuss what you think about the charges or what happened to cause Firstname to be arrested. At this time, we are not talking about the truth or falseness of the charges, other than that you know that he has been charged. Right now, we are trying to show people that there is more to Firstname than just his criminal record.

Include reasons, if you know any, why it would be hard for Firstname and Firstname ’s family for Firstname to stay in jail or prison. What are Firstname ’s plans for the future? What do you think you will be able to do to help Firstname if they get released? How would you be able to provide help and support to them? Some ideas might be: lend them a car, help them find a job, listen to their problems, bring them to church with you, etc. Be as specific as you can be.

9

Make sure to put in your contact information in case someone wants to call and make sure you really believe the things in the letter.

The whole idea of the letter is to give the judge or prosecutor a chance to get to know Firstname , aside from just the pieces of paper they have in front of them.

On the next page is an example of a letter. Be sure that yours is in your own words and tells your own story about Larry !

When you are finished, you can send the letter back to me via email, snail-mail, or drop it off at the front desk at my office. We are trying to get all the letters together by NEXT THURSDAY, July 18, 2019, so that I have time to review them and put them together before Firstname ’s next court-date.

Thank you!

Allison Mathis

10

Sample of a Support Letter

January 25, 2014

To Whom It May Concern:

My name is John Jones and I am a cashier at Walmart. I have worked there for ten years. I have known Mark Smith for the past five years because he is a member of my church, Holy Light.

I know that Mark is in a lot of trouble right now. I take the charges very seriously, but I want you to know that Mark is a really great guy. There is a lot more to him than just his criminal record. When Mark first joined our church, he started volunteering immediately. He is a marvelous landscaper and has improved the appearance of our grounds dramatically. He is actively involved in bible study and the music ministry. He’s a great guitar player, and the kids all love to hear him sing.

Mark has two kids who are really young, both of them are under five, and his wife is not working right now because she has to take care of her mother, who is old and sick. Mark being in jail has caused his family to suffer emotionally and financially a lot. I have been visiting him, and I have seen him working really hard to overcome his alcohol dependence. I know he’s been going to AA meetings and he’s been trying to stay busy taking classes and being productive.

I hope you are able to see Mark like I am- a good person who is trying his best to overcome his addiction, but needs help. If he is released, our church family plans on being there to support him. I will personally make sure I go and check on him at least once a week, and we are planning on taking up an offering to help pay for rehabilitation expenses if he’s allowed to go to rehab.

Please let me know if you have any questions, or if I can tell you anything else about Mark. You can call me at 779-5555.

11

Thank you,

John Jones CAUSE NO. xxxxxxx

STATE OF TEXAS

ยง

IN THE

ยง vs.

ยง

xxx DISTRICT COURT

ยง XXXXXXXX

ยง

HARRIS COUNTY, TEXAS

DEFENDANT'S NOTICE OF

ASSERTION OF SPEEDY TRIAL RIGHTS

TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, XXXXXXX, Defendant, in the above-styled and numbered cause and respectfully gives notice of his assertion of his right to a speedy trial, as he is so entitled under the 6th Amendment of the US Constitution, and Art I, Sec 10 of the Texas Constitution. In support thereof he would show: I. Defendant was arrested on the xx day of xxxx, 201x, and committed to the Harris County Jail, where he remains incarcerated awaiting trial; II. The indictment voted against Defendant in the above entitled and numbered cause was returned on the xx day of xxxx, 201x;

12

III. Defendant makes notice that delay has and will continue to prejudice him and his right to due process and a fair trial in various ways, including the dimming of witness memories, the potential unavailability and/or loss of exculpatory evidence, continued oppressive incarceration prior to trial, the anxiety and concern of a pending felony indictment, and potentially other prejudices yet unknown.

WHEREFORE, PREMISES CONSIDERED, Defendant hereby gives notice of his assertion of his right to a speedy trial.

Respectfully submitted,

ALEXANDER BUNIN Chief Public Defender Harris County, Texas

/s/Allison Mathis ____________________ ALLISON MATHIS Assistant Public Defendrix SBOT 24080430/ SPN 02674945 1201 Franklin, 13th Floor Houston, Texas 77002 Tel: 713-274-6700 allison.mathis@pdo.hctx.net Certificate of Service I hereby certify that a copy of the foregoing instrument was served upon Counsel for the State on the abovestamped date via electronic service.

/s/ Allison Mathis _______________ Allison Mathis 13

NO. XXXXXXX STATE OF TEXAS vs.

XXXXXXXXX

§ § § § §

IN THE XXX DISTRICT COURT

OF HARRIS COUNTY, TEXAS

MOTION TO COMPEL THE PRESERVATION OF FIELD AND/OR ROUGH NOTES OF INVESTIGATIVE PERSONNEL

To the Honorable Judge of Said Court: Comes now XXX, Defendant in the above-numbered cause, by and through his attorney of record, Allison Mathis, and sufficiently in advance of trial moves this Court to order the State to maintain any field and or rough notes which employees of any investigative authority made during the investigation of this case. In support thereof, Defendant would show: I. During a criminal investigation, the investigating law enforcement officers and criminalists typically prepare field or rough notes, which are later summarized in an offense report. Such officers often maintain personal files or notebooks in which they record ongoing data related to the investigation, in addition to data placed in the official offense report. Law enforcement agencies commonly retain an “office copy” of the offense report which contains personal notes and interoffice memoranda relating to the investigation. The prosecutor’s file often contains only a “sanitized” offense report.

II. The filed or rough notes and memoranda of the investigators should be preserved because they might contain evidence favorable to the Defendant pursuant to Brady v. Maryland, 373 US 83 (1963).

Additionally, pursuant to Rule 613 (a) Texas Rules of Criminal Evidence, the rough notes must be 14

available for cross-examination since they might contain information inconsistent with trial testimony or the official offense report; pursuant to Rule 613 (b) of the Rules of Criminal Evidence, the rough notes should be available to show bias or interest of the law enforcement witness. Rule 615 of the Texas Rules of Criminal Evidence requires that these writings be maintained and made available upon request to defense counsel for purposes of cross-examination following the direct examination of each prosecution witness. Finally, Rule 612 entitles the defense to trial discovery of any writing including rough notes, used by the witness to refresh his recollection prior to testifying.

III. An order from this Court mandating preservation of these notes is necessary to prevent their destruction before trial and to prevent any undue delay during trial. Time is of the essence. The prosecution must be required to immediately notify its investigators to preserve their rough notes and bring them to court.

IV. In the alternative and without waiving its primary request, Defendant request that the Court examine these filed and/or rough notes in camera before trial to determine whether they contain favorable evidence discoverable pursuant to Brady v. Maryland.

WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays that the Court grant this motion.

Respectfully submitted,

______________________ ALLISON MATHIS SBOT 24080430 Assistant Public Defendrix Harris County Public Defender’s Office 1201 Franklin, 12th Floor Houston, Texas 77002 Tel: (713) 274-6700 Allison.Mathis@pdo.hctx.net

15

CERTIFICATE OF SERVICE This is to certify that on the above-stamped date and time, a true and correct copy of the above and foregoing document was served on counsel for the State via electronic service. ____________________________________ Allison Mathis

16

NO. XXXXXXX STATE OF TEXAS vs.

XXXXXXXXXX

§ § § § §

IN THE XXX DISTRICT COURT OF HARRIS COUNTY, TEXAS

ORDER ON DEFENDANT’S MOTION TO COMPEL PRESERVATION OF FIELD/ROUGH NOTES

BEFORE ME on this ____ day of_________, 2017, the foregoing motion was heard and, good cause appearing, such motion is hereby GRANTED in full. The State is ORDERED to correspond with the law enforcement officers or agencies that participated in the investigation of this case within ten days of entry of this order, alerting them to preserve all rough notes, memoranda, and writings made during the investigation. The State is ordered to obtain these documents before trial and to confirm, in writing, to the Court, of the State’s compliance with this order.

__________________ Judge Presiding

17

CAUSE NO. STATE OF TEXAS vs.

FIRSTNAME LASTNAME

§ § § § § §

IN THE XXX DISTRICT COURT OF HARRIS COUNTY, TEXAS

CLIENT DISCOVERY MEMORANDUM

PRIVILEGED ATTORNEY-CLIENT COMMUNICATION

Charge & Degree:

Date and Location of Alleged Offense:

Responding Officers:

Offense Report Summary:

Video/Audio Evidence:

Potential Motions/Issues:

18

19

Texas Criminal Defense Lawyers Association

13th Annual Jolly Roger Hal Jackson Memorial Criminal Law Seminar: Battling the Resistance December 11, 2020 Livestream

Topic:

When the Finish line is in Sight: (Jury Instructions and Closing Arguments) Speaker:

Kristin R. Brown

17304 Preston Rd Ste 1250 Dallas, TX 75252-6007 (214) 446-3909 (214) 481-4868 kbrown@idefenddfw.com

Christie Merchant

4317 Cedar Springs Rd. Apt. F Dallas, TX 75219 (214) 538-7393 christie@merchlaw.com

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

Kristin Brown Kristin maintains a solo full-time Criminal Defense practice in Dallas, focusing on trials, appeals, and writs of habeas corpus. She graduated magna cum laude from Texas Wesleyan School of Law in 2013; received her LL.M. from Temple University Beasley School of Law in Philadelphia in 2014. She is a 2014 graduate of Trial Lawyer’s College in Dubois, Wyoming. She is licensed to practice in Texas and is admitted to practice in front of the Northern and Eastern District of Texas, the Fifth Circuit Court of Appeals, and the United States Supreme Court. Kristin regularly presents at CLE courses around the region and has spoken on topics such as Appellate Preservation, DNA Evidence, Eyewitness Testimony, and more.

Kristin has been a TDCLA member since licensure. She was named an associate director of the TCDLA board in 2016-17 and has been a director on the TCDLA board since 2017. Kristin has been named as a Super Lawyers Rising Star from 2017 through 2020; a top-ten appellate attorney by Dallas’s Best Criminal Defense Attorneys; and maintains an AV Preeminent Rating from Martindale Hubbell.

Updated July 2020

Christie Merchant Christie Merchant graduated from the University of Tulsa College of Law in 2009.

In her first job as an attorney, Christie served as a prosecutor for the Upshur County District Attorney’s Office in Gilmer, Texas where she managed a misdemeanor, CPS, and appellate docket. In 2011, Christie presented her first oral argument before the Texas Court of Criminal Appeals in Clinton v. State, 354 S.W.3d 795 (Tex. Crim. App. 2011). In 2012, Christie left her position at the district attorney’s office and began working as a staff attorney for the Twelfth Court of Appeals in Tyler, Texas until she moved to Dallas in 2016 where she has been working as a criminal defense attorney ever since. Christie has offices in both Dallas and Tyler, Texas. She has been named as one of D Magazine’s Best Lawyers and Best Lawyers Under 40 in Appellate Law, has argued numerous times before the Fifth Court of Appeals in Dallas, and has served on the Board of Directors for the Dallas Criminal Defense Lawyers Association.

Updated December 2020

When the Finish Line is in Sight: Jury Instructions and Closing Arguments Kristin R. Brown and Christie M. Merchant

i.

Introduction

Once both sides have presented all of their evidence and rested their case, the defense attorney still has two primary objectives before the case is left to the jury to render its verdict: (1) ensuring that the jury is provided with a proper charge, and (2) preparing and responding to closing arguments. In this paper, we will discuss the major points of error in jury instructions and closing arguments which will allow you to be better prepared in preserving error in the unfortunate event that an appeal is necessary.

ii. Jury Instructions

a. Governing Law

Article 36.14 of the Texas Code of Criminal Procedure sets forth the trial court’s obligation to deliver to the jury a written charge setting forth the law applicable to the case. As defense counsel, it is your job to review the court’s charge for any errors or omissions in the charge and raise an objection to those errors or omissions.

Counsel for the defendant, shall have a reasonable time to examine the charge and present objections “in writing, distinctly specifying each ground of objection” which can include errors committed by omissions in the charge, including failures to charge on issues arising from the facts. Tex. Code Crim.

Proc. Art. 36.14.

Article 36.14 requires that objections to the court’s charge be “in writing,” but further explains that the writing requirement is satisfied upon counsel’s dictating the objections to the court reporter in the presence of the court and state’s counsel. All objections must be made before the court’s charge is read to the jury to be timely made and preserved for appeal. A ruling must be made on the objection(s). Id.; see also McCloud v. State, 527 S.W.2d 885, 887 (Tex. Crim. App. 1975); Chapman v. State, 921 S.W.2d 694 (Tex. Crim. App. 1996) (holding that requested charge need not be in perfect form but must call the court’s attention to the omission in the charge).

When the Finish Line is in Sight: Jury Instructions & Closing Arguments Kristin R. Brown & Christie M. Merchant

1

If the charge objection is sustained, the change must be incorporated into the charge itself; an attachment to the back of the previous charge is insufficient. Perkins v. State, 528 S.W.2d 598, 600 (Tex. Crim. App. 1975).

Once a requested instruction or an objection is tendered to the trial court and a ruling given, no further objection is required. Vazquez v. State, 919 S.W.2d 433, 435 (Tex. Crim. App. 1996).

b. How Important is Error Preservation?

Jury charge error is always reviewable on appeal. Nevertheless, objecting to errors is important because the appellate courts will apply a different harm analysis depending on whether error was preserved or not. Preserved jury charge error is reviewed for “some harm” while unpreserved jury charge error is reviewed for “egregious harm.” See Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1984).

Egregious harm is the kind of harm that denies the defendant of a fair and impartial trial, deprives the defendant of a valuable right or vitally affects the defensive theory. Riley v. State, 447 S.W.3d 918, 922 (Tex. App.—Texarkana 2014, no pet.) (citing Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994); Almanza, 686 S.W.2d at 171.

In determining the existence of harm, reviewing courts will consider the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant information in the record. Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006); Riley, 447 S.W.3d at 925.

Where the error is preserved by a timely objection and ruling on the objection, the “some harm” standard applies. Under this standard, an appellate court is required to reverse the trial court's judgment for any nonstructural error unless the appellate court is convinced, beyond a reasonable doubt, that the error did not contribute to the appellant's conviction or punishment.

Jimenez v. State, 32 S.W.3d 233, 237 (Tex. Crim. App. 2000).

As you can see, the “some harm” standard is significantly more favorable to an appellant and egregious harm is rarely shown.

When the Finish Line is in Sight: Jury Instructions & Closing Arguments Kristin R. Brown & Christie M. Merchant

2

c. Lesser-included Offense Instructions

A reviewing court may reform a judgment of conviction and convict an appellant of a lesser-included offense even if: (1) the jury was not instructed on the lesser-included offense, and (2) neither of the parties asked for such an instruction. Bowen v. State, 374 S.W.3d 427, 432 (Tex. Crim. App. 2012).

There is a two-pronged test to determine if a lesser-included instruction is proper: 1. The requested offense instruction is for a “lesser offense included within the charged offense; and 2. There is some evidence in the record tending to show that if the defendant is guilty, he is guilty only of the lesser offense. Arevalo v.

State, 943 S.W.2d 887, 889 (Tex. Crim. App. 1997).

Under Tex. Code Crim. Proc. Art 37.09, an offense is a lesser included of the charged offense if: • The lesser-included offense is established by proof of the same, or less than all the facts required to establish the commission of the offense charged. See Walker v. State, 761 S.W.2d 572, 575 (Tex. App. San Antonio 1988), pet. dism’d, 811 S.W.2d 131 (Tex. Crim. App. 1991); or • The lesser-included offense differs from the offense charged only in the respect that a less-serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission. See Sanders v. State, 664 S.W.2d 705, 708 (Tex. Crim. App. 1984) (op. on reh’g); or • It differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or • It consists of an attempt to commit the offense charged or an otherwise included offense.

While the decision is a strategic one, the best practice is often to request the lesser included instruction. Objecting to its omission, by itself, is not enough.

When the Finish Line is in Sight: Jury Instructions & Closing Arguments Kristin R. Brown & Christie M. Merchant

3

iii.

Closing Arguments

a. Proper Argument

There are four permissible areas of jury argument: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) responses to argument of opposing counsel; and (4) plea for law enforcement. Wilson v.

State, 938 S.W.2d 57, 59 (Tex. Crim. App. 1996). Below are some examples of what the courts have deemed proper argument in each of these four areas.

(1) Summation of the Evidence

Summation of the evidence is closely related to the other permissible jury argument pertaining to reasonable deductions from the evidence. However, as its name suggests, summation of the evidence involves the summary of the evidence that was introduced or failed to be introduced at trial. See, e.g., Ex parte Scott, 541 S.W.3d 104, 120 (Tex. Crim. App. 2017) (holding that prosecutor’s closing statement that defendant who moved from state to state, worked as a teacher, and had tapes of himself having sex with other men constituted permissible summation of the evidence but prosecutor’s implication that defendant may have left a “trail of victims” when he moved was improper); Jackson v. State, 17 S.W.3d 664, 676-77 (Tex. Crim. App. 2000) (categorizing prosecutor’s argument that expert “is tremendously concerned about that kind of individual if they ever got out of the penitentiary . . . . And the person that did this scares the hell out of her” qualified as a summation of the evidence where the expert confirmed on cross-examination that she would not want someone capable of committing capital murder as depicted in photos back on the streets and agreed that she would be scared of a person who had “just committed these various crimes.”).

(2) Reasonable Deductions from the Evidence:

Counsel is allowed wide latitude without limitation in drawing inferences from the evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith. Gaddis v. State, 753 S.W.2d 398, 398 (Tex. Crim. App. 1988); Denison v. State, 651 S.W.2d 754, 761-62 (Tex. Crim. App. 1983); see generally Vaughn v. State, 607 S.W.2d 914 (Tex. Crim. App. 1980); Antwine v. State, 572 S.W.2d 541 (Tex. Crim. App. 1978); Wyatt v. State, 566 S.W.2d 597 (Tex. Crim. App. 1978); Griffin v. State, 554 S.W.2d 688 (Tex. Crim.

When the Finish Line is in Sight: Jury Instructions & Closing Arguments Kristin R. Brown & Christie M. Merchant

4

App. 1977). To constitute reversible error, the jury argument must be extreme or manifestly improper, or inject new and harmful facts into evidence. Denison, supra; Kerns v. State, 550 S.W.2d 91 (Tex. Crim. App. 1977).

A prosecuting attorney’s argument may draw all inferences which are reasonable, fair, and legitimate from the facts in evidence; but he may not use jury argument to get before the jury, either directly or indirectly, evidence which is outside the record. A prosecuting attorney, although free to strike hard blows, is not at liberty to strike foul ones, whether directly or indirectly. Jordan v. State, 646 S.W.2d 946, 948 (Tex. Crim. App. 1983); see, e.g., Flowers v. State, 133 S.W.3d 853, 858 (Tex. App.—Beaumont 2004, no pet.) (prosecutor’s argument that victim was afraid defendant was going to kill her was reasonable deduction from the evidence where the victim testified that the defendant asked her, “Have you ever wondered what it would feel like to be shot in the chest,” held a knife against the victim’s nose, and upon getting ready to leave told the victim, “It ain’t over yet, Bitch. You’re still breathing.”).

(3) Responses to Argument of Opposing Counsel:

The invited argument rule permits prosecutorial argument outside the record in response to defense argument which goes outside the record. Johnson v. State, 611 S.W.2d 649, 650 (Tex. Crim. App. 1981); Franks v. State, 574 S.W.2d 124, 126 (Tex. Crim. App. 1978). “It is well settled that the prosecutor may answer jury argument by opposing counsel so long as the response does not exceed the scope of the invitation.” Andujo v. State, 755 S.W.2d 138, 144 (Tex. Crim. App. 1988); see, e.g., Moreno v. State, No. 04-19-00280-CR, 2020 Tex. App. LEXIS 4645 (Tex. App.—San Antonio June 24, 2020, pet. ref’d) (vouching by the state found to be in response to opposing counsel’s argument that the allegation was fabricated.).

(4) Plea for Law Enforcement:

The fourth permissible area of argument relating to pleas for law enforcement are primarily devoted to arguments by the prosecution and will be deemed proper argument when paired with a reasonable deduction of the evidence. See, e.g., LaHood v. State, 171 S.W.3d 613, 623-24 Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (citing Starvaggi v. State, 593 S.W.2d 323, 328 (Tex. Crim. App. 1979) (“I just say this, that I hope he doesn’t come knocking on one of your doors at eight o’clock one evening.”); Moyer v. State, 948 S.W.2d 525, 531 (Tex. App.—Fort Worth 1997, pet. ref’d) (“How could any of you go to sleep When the Finish Line is in Sight: Jury Instructions & Closing Arguments Kristin R. Brown & Christie M. Merchant

5

at night wondering whether he was on the street?”); Fields v. State, 932 S.W.2d 97, 111 (Tex. App.—Tyler 1996, pet. ref’d) (“If years from now or thirty years from now . . . you know what you need to do.”); Lopez v. State, 860 S.W.2d 938, 942-43 (Tex. App.—San Antonio 1993, no pet.) (“You know what he can do. And you decide what to do with him. Does he walk out with you? . . . Or does he go to [prison] for as long as you can possibly put him away?”).

Argument relating to jury service and reaching a verdict can also be considered a plea for law enforcement. See Bell v. State, 724 S.W.2d 780, 80102 (Tex. Crim. App. 1986) (Urging jury to "remember and think about how [friends and neighbors] will ask you at the end of case when it's all over" did not "assert or imply that the community demands or expects a conviction."); Whittington v. State, 580 S.W.2d 845, 847 (Tex. Crim. App. 1979) ("You will want to give them an answer you can be proud of, that your friends and neighbors can be proud of" constituted a proper plea for law enforcement); Goff v. State, 794 S.W.2d 126, 127-28 (Tex. App.--Austin 1990, pet. ref'd) (argument to jury, "If you want to find somebody like this innocent of the charge, you may do it, but you will have to explain your actions to the community" was proper plea for law enforcement). However, argument relating to a jury’s decision based on community expectations is improper. But see Sellers v. State, No. 0503-01719-CR, 2005 Tex. App. Lexis 1181, at *2-3 (Tex. App.--Dallas Feb. 15, 2005, pet. ref'd) (not designated for publication) (State’s question to jury, “What do you want the newspaper to say tomorrow? Jury gives man who rapes 89-year-old lady probation?" not an improper appeal to community expectations).

b. Improper Argument

Where the argument of counsel does not fall within these four areas, defense counsel must make a timely and specific objection. The “Texas 3-step” rule applies to all parts of trial, including closing argument:

1. Object. If sustained, 2. Ask Court instruct jury to disregard. If instructed, 3. Request mistrial.

Mathis v. State, 67 S.W.3d 918, 927 (Tex. Crim. App. 2002); Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). Even if the State’s improper argument cannot be cured by an instruction to disregard, the defendant is required to

When the Finish Line is in Sight: Jury Instructions & Closing Arguments Kristin R. Brown & Christie M. Merchant

6

"object and request a mistrial" to preserve error. Mathis, 67 S.W.3d at 927; Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).

Improper argument is often snuck in with proper argument, so we must be vigilant and object quickly. A non-exhaustive list of improper argument includes the following areas/subject matter:

(1) Defendant’s Failure to Testify

While this may seem like a given, a prosecutor may not comment on a defendant’s failure to testify during closing argument. The test for determining whether prosecutorial argument is a comment on a defendant’s failure to testify “is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant’s failure to testify.” Busby v. State, 253 S.W.3d 661, 666 (Tex. Crim. App. 2008).

There are no magic or “trigger” words that automatically make a jury argument improper. However, you must be ready to object if the prosecution begins arguing the defendant failed to display remorse or accept responsibility.

Depending on the circumstances of your case, argument pertaining to lack of remorse or acceptance of responsibility may constitute improper argument.

See generally, Koller v. State, 518 S.W.2d 373 (Tex. Crim. App. 1975); Anderson v. State, 525 S.W.2d 20 (Tex. Crim. App. 1975); Johnson v. State, 611 S.W.2d 649 (Tex. Crim. App. 1981); Elkins v. State, 647 S.W.2d 663 (Tex. Crim. App. 1983); Dickinson v. State, 685 S.W.2d 320 (Tex. Crim. App. 1984).

In he said/she said cases, pay particularly close attention to a prosecutor’s argument in the event she begins to argue about the State’s and Defense’s equal subpoena power. In this situation, any comment relating to the jury’s hearing only from the State’s witnesses amounts to an indirect comment on the defendant’s failure to testify. See Crocker v. State, 248 S.W.3d 299, 30405 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d); see also Dubose v. State, 531 S.W.2d 330 (Tex. Crim. App. 1975); Pollard v. State, 552 S.W.2d 475 (Tex. Crim.

App. 1977).

(2) Striking at Defendant over the Shoulder of Counsel

“[T]he public [does] not, generally understand that a defense attorney must follow an ethical obligation to undertake the defense of a person regardless of his personal opinion as to the guilt of an accused.” Gomez v. State, 704 S.W.2d 770, 771 (Tex. Crim. App. 1985). “This general misunderstanding When the Finish Line is in Sight: Jury Instructions & Closing Arguments Kristin R. Brown & Christie M. Merchant

7

by the public serves to contribute to the prejudicial effect of an argument by a prosecutor which strikes at a member of the bar for representing a person accused of crime." Boyde v. State, 513 S.W.2d 588, 592 (Tex. Crim. App. 1974).

When the effect of the prosecutor's argument is to instruct the jury that only prosecuting attorneys seek to uphold truth and justice whereas defense counsel have a license to use any means to mislead the jury, an instruction to disregard is not sufficient to remove the prejudice it creates. Bell v. State, 614 S.W.2d 122, 123 (Tex. Crim. App. 1981).

Examples of such “Striking” include: i. “I am going to sit down here in a minute and after me the Defense is going to argue. I would caution you, ladies and gentlemen, that they are both very experienced defense lawyers. They know how to argue to get people off the charges they are charged with.”

Orona v. State, 791 S.W.2d 125 (Tex. Crim. App. 1990).

ii. PROSECUTOR]: May it please the Court, Mr. Abeyta, and ladies and gentlemen of the Jury: I don't know, it is kind of an unusual thing. I don't know. I don't recall how many of you have been on jury service before.

But I don't think there were many. And I don't know which of you we got on here actually that have served before. But I can't wait for a day when I am prosecuting a case where a defense lawyer will get up and say, 'Jury, they did a bang-up job. My man is guilty as homemade sin. Go in there and convict him.' Now, if you all hold your breath until that happens, you will turn a real pretty blue. It will never happen. We are not paid to satisfy Pat Abeyta, or anyone else that he drags down here from Lubbock to manufacture evidence. And you are not ….

MR. ABEYTA [defense attorney]: I object to that in terms of 'manufacture.'

"THE COURT: Sustained.

"MR. ABEYTA: May we have an instruction to the Jury to disregard?

"THE COURT: Jury so instructed.

When the Finish Line is in Sight: Jury Instructions & Closing Arguments Kristin R. Brown & Christie M. Merchant

8

"MR. ABEYTA: Not withstanding the Court's ruling, and in all due respect to the Court's ruling, we respectfully move for a mistrial then, based on the fact the statement is prejudicial and inflammatory, and designed to inflame the minds of the Jury.

"THE COURT: Motion denied.

"MR. ABEYTA: Note our exception.

"[PROSECUTOR]: It was designed to make you not lose sight of the fact that Mr. Abeyta is paid to get this defendant off the hook. And if you can't get him off the hook, get him a little lesser included offense of some kind.

Let's get this down to where this Jury is so stupid, that they will believe that this was an improper back-scratching technique employed by his client. Let's give him a speeding ticket. Let's give him some minor offense.

That's what he is paid for. Don't forget that.

"MR. ABEYTA: I object to the entire line of statement, as a personal affront to me, in terms of ethical obligation, on his part to present any defense on behalf of my client, that is strictly money-motivated. I object to the entire line of argument. It is a personal affront to my own character, Your Honor.

He is slapping at the defendant over my shoulder, is what it amounts to.

"THE COURT: Objection overruled.

Gomez v. State, 704 S.W.2d 770, 771 (Tex. Crim. App. 1985)

iii. STATE: "My dear fellow, you needn't have worried one minute because Dusty Miller [the defense attorney] will take care of everything and furnish the evidence."

Jones v. State, 151 Tex. Crim. 115, 205 S.W.2d 590 (Tex. Crim. App. 1947).

iv. STATE: Mr. Scheve [defendant's counsel] is a criminal defense lawyer. He doesn't have the same duty I do. He represents the criminal. His duty is to see that his client gets off even if it means putting on witnesses who are lying.

"MR. SCHEVE: Your Honor, we object to that.

When the Finish Line is in Sight: Jury Instructions & Closing Arguments Kristin R. Brown & Christie M. Merchant

9

"THE COURT: I sustain the objection. That is not his duty. It is not his duty to put on any witness that he knows is lying.

"MR. SCHEVE: And furthermore, I would ask for a mistrial.

"THE COURT: I'll deny the mistrial. I have instructed the jury that that's not a correct statement of the law."

Bell v. State, 614 S.W.2d at 123 (Tex. Crim. App. 1981) (holding argument was improper and the trial court's instruction to disregard was not sufficient to have removed the prejudice it created.)

v. “We are met at the outset with a question of improper jury argument at the guilt stage of the trial. There were two prosecutors and two defense counsel involved in the trial.

Prosecutor Whaley argued, "John Ovard [the other prosecutor] and I have taken a solemn oath to God to seek justice. You judge whether or not we have done it. No such oath bears on either one of these attorneys [defense counsel]." (Emphasis added)

After the court had sustained appellant's objection, the prosecutor continued, "All right. I would ask you to believe this: If, assuming this man is guilty, do they [defense counsel] want the truth in here before you?"

When defense counsel objected and stated that they were officers of the court under the same obligation, Whaley replied, "That is not so, Your Honor."

Lewis v. State, 529 S.W.2d 533, 534 (Tex. Crim. App. 1975) (reversing/finding “[t]he effect of this argument was to instruct the jury that only the prosecutors seek to uphold truth and justice, whereas defense counsel have a license to use any means at their command to mislead the jury).

(3) Community Expectations

This is the improper side of the proper argument area pertaining to “pleas for law enforcement.” 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 When the Finish Line is in Sight: Jury Instructions & Closing Arguments Kristin R. Brown & Christie M. Merchant

10

into the trial proceedings. Borjan v. State, 787 S.W.2d 53, 56–57 (Tex. Crim. App. 1990). It is difficult to show such argument is not a proper plea for law enforcement, the differences are extremely subtle (and objective). See id. (the prosecutor's statements to the jury to consider victims that do not come forward when deciding punishment for Borjan constituted a proper plea for law enforcement).

Examples of improper argument falling under this category include statements that people in the community are asking the jury to convict the defendant; that the community would want to send the defendant to prison if they knew what he did; and that any particular punishment was required to satisfy the community. See Cox v. State, 247 S.W.2d 262 (Tex. Crim. App. 1952); Prado v. State, 626 S.W.2d 775 (Tex. Crim. App. 1982); Cortez v. State, 683 S.W.2d 419 (Tex. Crim. App. 1984).

(4) Personal Opinion and Vouching

This category covers statements of the government outside of facts in evidence and argument in response to that of opposing counsel. See McKenzie v. State, 617 S.W.2d 211, 220-21 (Tex. Crim. App. 1981) (prosecutor’s sarcastic closing argument that detailed who he “thought” the defendant would have called during punishment phase of trial and what he believed their testimony would have been was improper and prejudicial where he argued, among other things, that he thought defendant would have called a parent to testify and make a little girl available to molest).

Other examples of improper argument based on personal opinion and/or vouching include: Villalobos v. State, 568 S.W.2d 134 (Tex. Crim. App. 1978) (prosecutor believes defendant is guilty); Elizondo v. State, 545 S.W.2d 453 (Tex. Crim. App. 1976) (prosecutor not paid enough to try to convict innocent man); Robillard v. State, 641 S.W.2d 910 (Tex. Crim. App. 1982) (prosecutor does not introduce evidence unless believed to be true); Hickerson v. State, 286 S.W.2d 437 (Tex. Crim. App. 1956) (prosecutor would not prosecute unless State’s witnesses were truthful and defendant was guilty); Tinker v. State, 93 S.W.2d 441 (Tex. Crim. App. 1936) (prosecutor has personal knowledge regarding witness credibility); Menefee v. State, 614 S.W.2d 167 (Tex. Crim.

App. 1981) (prosecutor believed that particular witness was honest/told truth); Caka v. State, 302 S.W.2d 939 (Tex. Crim. App. 1957) (police officers entitled to greater belief than defendant because defendant has interest in acquittal whereas officers are impartial and only arrest people whom are believed to have committed offense); Woodard v. State, 368 S.W.2d 623 (Tex. When the Finish Line is in Sight: Jury Instructions & Closing Arguments Kristin R. Brown & Christie M. Merchant

11

Crim. App. 1963) (city must have confidence in officer honesty and integrity because jurors are paying police through taxes and because the city retained the officers on the payroll); Puckett v. State, 330 S.W.2d 465 (Tex. Crim. App. 1959) (officers are sworn to tell the truth and told the truth); Arnold v. State, 256 S.W. 919, 215 (Tex. Crim. App. 1923) (race, creed or color of any witness is a factor in assessing credibility); Washington v. State, 668 S.W.2d 715 (Tex. App.—Houston [14th Dist.] 1983, pet. ref’d) (improper for prosecutor to attempt to bolster/rehabilitate victim’s character under the guise of reading imaginary letter from victim to third person reflecting what victim would say/do if given the opportunity).

Kristin R. Brown The Law Office of Kristin R. Brown 17304 Preston Road, Suite 1250 Dallas, Texas 75252 O: 214-446-3909 E: kbrown@idefenddfw.com

Christie M. Merchant 100 E. Ferguson, #813, Tyler, Texas O: 903-747-0784; C: 214-538-7393 E: christie@merchlaw.com

When the Finish Line is in Sight: Jury Instructions & Closing Arguments Kristin R. Brown & Christie M. Merchant

12

WHEN THE FINISH LINE IS IN SIGHT: JURY INSTRUCTIONS & CLOSING ARGUMENTS

This Photo by Unknown Author is licensed under CC BY

Jury Charge •

Begin with the END in mind

HOW IMPORTANT IS ERROR PRESERVATION?

LESSERINCLUDED OFFENSES

PROPER ARGUMENT

1. SUMMATION

2. REASONABLE DEDUCTIONS

This Photo by Unknown Author is licensed under CC BY-SA

3. ANSWERING THE ARGUMENT OF OPPOSING COUNSEL

4. PLEA FOR LAW ENFORCEMENT

IMPROPER ARGUMENT

TEXAS THREE-STEP RULE ON OBJECTIONS

DEFENDANT’S FAILURE TO TESTIFY

STRIKING AT DEFENDANT OVER COUNSEL’S SHOULDER

COMMUNITY EXPECTATIONS

PERSONAL OPINION & VOUCHING

Thank you for allowing us this hour of your valuable time. We hope you found it worthwhile.

Kristin Brown, J.D., LL.M. 17304 Preston Road, Ste 1250 Dallas, Texas 75252 214-446-3909 kbrown@idefendDFW.com

Christie Merchant 100 E. Ferguson, #813, Tyler, Texas O: 903-747-0784; C: 214-538-7393 E: christie@merchlaw.com

Texas Criminal Defense Lawyers Association

13th Annual Jolly Roger Hal Jackson Memorial Criminal Law Seminar: Battling the Resistance December 11, 2020 Livestream

Topic:

Procrastination; the Most Common Resistance and the Easiest to Rationalize: (Voir Dire) Speaker:

Blakely Ian Mohr 950 E State Highway 114 Ste 160 Southlake, TX 76092-5261 (817) 345-3637 Phone (817) 345-3637 Fax blakely@themohrlawfirm.com

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

Blakely Mohr Blakely I. Mohr is the managing partner of The Mohr Law Firm, PLLC, with offices located in the San Antonio and Dallas-Fort Worth metroplexes. Blakely received his Juris Doctor from Texas Wesleyan University School of Law (now Texas A&M School of Law), Bachelor of Arts from the University of Texas-Austin and is admitted to practice law in the State of Texas, the Western, Northern and Eastern Federal District Courts of Texas, the Fifth Circuit Court of Appeals and the United States Supreme Court. Blakely is a Fellow with the College of the State Bar of Texas, a former board of director for the San Antonio Criminal Defense Lawyers Association, a former CLE Program Director for the Monthly Best Practices Seminar for SACDLA, and a member of Tarrant County Criminal Defense Lawyers Association, Texas Criminal Defense Lawyers Association, National Association of Criminal Defense Lawyer’s, and Federal Bar Association. Blakely has been nominated by his peers as a top criminal defense attorney in Thomson Reuters Super Lawyers, San Antonio Scene Magazine, Fort Worth Magazine and National Trial Lawyer’s Top 100. Blakely is an advocate for the legalization and decriminalization of Marijuana laws in Texas, serving on the legal committee for the National Organization for the Reform of Marijuana Laws and the Texas Association for Cannabis Lawyers. Blakely resides in Keller, Texas with his wife Sam and sons Dylan and Levi.

Updated December 2020

VOIRE DIRE

Procrastination – The Most Common Resistance and the Easiest to Rationalize BLAKELY I. MOHR State & Federal Criminal Defense Dallas-Fort Worth & San Antonio, TX

REMEMBER… ▪ PRIMARY GOAL IS TO ADVANCE YOUR THEME AND

THEORY AT ALL TIMES ▪ BEGIN WITH THE END IN MIND ▪ Primacy and Recency

JURY SELECTION IS ▪ #1: A CONVERSATION!!! → BE YOU .

▪ #2: AN OPPORTUNITY TO LISTEN AND ▪ TO ▪ TO ▪ TO ▪ TO ▪ TO ▪ TO ▪ TO

DISCOVER BIAS & PREJUDICE REWARD HONESTY DISCREDIT STATE’S CASE INFLUENCE JUROR’S THOUGHTS CREATE CAMPS BUILD DEFENDANT’S CREDIBILITY WIN YOUR CASE

JURY SELECTION IS NOT ▪ A TIME TO ARGUE

▪ A TIME TO CHANGE MINDS ▪ A TIME TO BE ANGRY

▪ A TIME TO BE EMOTIONAL ▪ A TIME TO EMBARASS ▪ A TIME TO CROSS EXAMINE ▪ A TIME TO NARRATE

VOIRE DIRE ▪ PREPARATION ▪ 6 P’S

▪ ASSISTANCE ▪ PERFORMANCE

PREPARATION

MOTIONS

▪ #1: MOTION IN LIMINE

▪ #2: MOTION PRETRIAL HEARING TO SIMPLIFY

ISSUES ▪ #3: MOTION TO EXTEND TIME FOR V.D. ▪ #4: MOTION FOR ADDITIONAL TIME ▪ #5: MOTION FOR ADDITIONAL PREEMPTORY CHALLENGES

PREPARATION

COMMON OBJECTIONS ▪ #1: RIGHT TO CROSS-SECTION OF COMMUNITY

▪ #2: RIGHT TO SHUFFLE ▪ #3: POWERPOINT ▪ #4: LIMINE ▪ #5: OPEN THE DOOR ▪ #6: OPEN COURTROOM POLICY

▪ #7: BATSON CHALLENGE (TCCP 35.261) ▪ #8: COVID ISSUES

PREPARATION

PRESERVATION OF ERROR ▪ #1: Objections – Obtain Ruling ▪ Overruled – Done.

▪ Sustained – Must ask for instruction & mistrial.

▪ #2: Bill of Exceptions ▪ Constitutional Errors ▪ Trial Court prohibiting specific questions in Voire Dire.

PREPARATION

KNOW RECENT CASES ▪ Trial Court prohibiting specific questions in Voire Dire → must show

VD limitation rendered Defendant’s trial fundamentally unfair. Jacobs v. State, 560 S.W.3d 205 (Tx. Crim. App. 2018) ▪ Juror who flip flops on answers regarding for-cause strike → Deference to TC. Tracy v. State, 597 S.W.3d 502 (Tx. Crim. App. 2020) ▪ Proof required to show TC improperly denied FC challenge → Deference to TC especially if juror’s answers are vacillating, unclear or contradictory. Calvert v. State, 2019 WL 505768 (Tx. Crim. App. 2019) ▪ Batson upheld → one preemptory strike used towards a juror for a racially motivated reason is one too many. Flowers v. Mississippi, 139 S.Ct. 2228 (2019)

PREPARATION

KNOW RECENT CASES ▪ MTS heard on the day of trial in favor of Defendant, but

before VD and not at a pretrial hearing → Article 28, Sec. 1 does not require the judge to give advance notice to the parties of his intentions in this regard. State v.

Velasquez, 539 S.W.3d 289 (Tx. Crim. App. 2018).

▪ A defendant’s failure to exhaust his peremptory strikes mitigates any harm from disallowing a proper question on voir dire because the leftover strikes domeonstrate that the Defendant was NOT forced to waste needed strikes before the jury was seated. Gonzalez v. State, 2020 WL 6482409 (Tx. Crim. App. 2020)

PREPARATION

KNOW RECENT CASES ▪ When the trial judge denies a Defendant’s valid challenge

for cause forcing him to use a peremptory strike on a venire member who should have been removed, the defendant is harmed IF HE WOULD HAVE USED THAT PREMPTORY STRIKE ON ANOTHER OBJECTIONABLE JUROR. Comeaux v. State, 445 SW 3d 745 (Tx. Crim. App. 2014)

PREPARATION

JURY QUESTIONAIRES

PREPARATION

EFFECTIVE POWER POINT ▪ #1: ALWAYS ADVANCE YOUR THEME & THEORY

▪ #2: TEST YOUR TECHNOLOGY (WIFI, PC, CABLES) ▪ #3: LESS WORDS; MORE HIGH-QUALITY IMAGES

▪ #4: EASY TO READ LARGE FONT (MIN. 30 FONT) ▪ #5: EASY TO READ COLOR (PREF. RED ON WHITE)

▪ #6: BE PARTICULAR (LESS IS MORE)

VOIRE DIRE EFFECTIVE TRIAL SLIDES Oath & Affirmation

VOIRE DIRE EFFECTIVE TRIAL SLIDES SCALED QUESTIONS

VOIRE DIRE EFFECTIVE TRIAL SLIDES INDIVIDUAL CONSCIENCE

VOIRE DIRE EFFECTIVE TRIAL SLIDES Burden of Proof

VOIRE DIRE EFFECTIVE TRIAL SLIDES Bias & Prejudice

VOIRE DIRE EFFECTIVE TRIAL SLIDES Weight & Credibility of Evidence

VOIRE DIRE EFFECTIVE TRIAL SLIDES Weaving Closing Theme into VD

VOIRE DIRE EFFECTIVE TRIAL SLIDES Right to Effective Counsel

PREPARATION THE LAW ▪ Read Ch. 35 TCCP “FORMATION OF THE JURY”

▪ UNDERSTAND ▪ EXCUSES ▪ EXEMPTIONS ▪ CHALLENGES ▪ FOR CAUSE

▪ PEREMPTORY

▪ DISQUALIFICATIONS

PREPARATION

▪ THE HUMAN EXPERIENCE ▪ BIAS? ▪ Disproportionate weight in favor of or against an idea or thing, usually in a way that is closed-minded, prejudicial, or unfair.

Biases can be innate or learned. People may develop biases for or against an individual, a group, or a belief.

▪ PREJUDICE? ▪ Preconceived Judgment or Opinion

PREPARATION ▪ MANY TYPES OF BIAS INCLUDING: ▪ BELIEF BIAS ▪ RACIAL BIAS ▪ IMPLICIT BIAS

▪ CONFIRMATION BIAS ▪ TENDENCY TO SEARCH FOR, INTERPRET,

FOCUS ON AND REMEMBER INFORMATION IN A WAY THAT CONFIRM’S ONE’S PRECONCEPTIONS.

PREPARATION SCORING

PREPARATION SCORING

VOIRE DIRE ASSISTANCE ▪#1: RECORD ▪ STATE’S Q & A ▪ FOR CAUSE STRIKE GUIDE ▪ SCALED QUESTION GUIDE ▪ OBJECTIONS LIST – OVERRULED / SUSTAINED ▪ EXHIBIT LIST

VOIRE DIRE ASSISTANCE ▪#2: OBSERVE ▪ NUANCE ▪ NONVERBAL CUES / BODY LANGUAGE ▪ VIOLATIONS

OF LIMINE

VOIRE DIRE ASSISTANCE â–ª#3: CONTROL CLIENT

VOIRE DIRE ASSISTANCE ▪#4: ROLEPLAY (not the funny stuff) ▪Prospective Jurors ▪District Attorney

VOIRE DIRE PERFORMANCE ▪ BE YOURSELF & INTRODUCE YOURSELF

▪ BEGIN WITH THE OATH & AFFIRMATION ▪ CREATE THE IMPORTANCE

▪ EXPLAIN THE RULES FOR SCALED Q’S EARLY ▪ TEACH THE JURY WE ARE HERE ABOUT FEELINGS ▪ THE RIGHT ANSWER VS. JUROR’S FEELING

▪ NO WRONG ANSWER; ONLY HONEST ANSWERS

VOIRE DIRE PERFORMANCE ▪ PREEMPTORY CHALLENGE

▪ # OF PEREMPTORY CHALLENGES ▪ Capital: 15 ▪ Non-Capital Felony: 10

▪ Misdemeanor: 5

VOIRE DIRE PERFORMANCE ▪ FOR CAUSE CHALLENGE ▪ TCCP 35.16 – 11+ FOR CAUSE CHALLENGES ▪ Most important - TCCP 35.16(a)(10): That from hearsay, or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence the juror in finding a verdict. To ascertain whether this cause of challenge exists, the juror shall first be asked whether, in the juror's opinion, the conclusion so established will influence the juror's verdict. If the juror answers in the affirmative, the juror shall be discharged without further interrogation by either party or the court. If the juror answers in the negative, the juror shall be further examined as to how the juror's conclusion was formed, and the extent to which it will affect the juror's action; and, if it appears to have been formed from reading newspaper accounts, communications, statements or reports or mere rumor or hearsay, and if the juror states that the juror feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that the juror is impartial and will render such verdict, may, in its discretion, admit the juror as competent to serve in such case. If the court, in its discretion, is not satisfied that the juror is impartial, the juror shall be discharged;

VOIRE DIRE PERFORMANCE ▪ REHABILITATION ▪ Preserve Record ▪ Establish FC Strike → If denied, TEST: ▪ (1) Make a record showing clear and specific challenge for cause; ▪ (2) Establish that a peremptory strike had to be used on Juror; ▪ (3) Show peremptory strikes have been exhausted; and ▪ (4) Obtain ruling on additional peremptory strikes; and ▪ (5) Show objectionable juror was sat on jury.

▪ Return of the Judge – Judge will try to save his panel!

▪ Venire person: Due to a personal experience I do not think I could follow the law and I have already established a conclusion as to guilt.

▪ Foghorn Leghorn Voice: “Well now…if I instruct you to follow the law, can you follow the law and put those little ole teeny tiny biases and prejudices away?

Well, that’s great. For Cause Challenge Denied.

VOIRE DIRE PERFORMANCE ▪ Individual Voire Dire ▪ Method to not embarrass somebody ▪ Allows you to interrogate a venire person without looking

like an A-hole in front of the whole panel and possibly turning jurors against you.

VOIRE DIRE PERFORMANCE ▪ LOOPING ▪ TRILOGIES ▪ “SHOW OF CARDS” IN SUPPORT OR AGAINST

▪ EFFECTIVE SCALED Q’S – MAKE SURE THEY

KNOW THE RULES ▪ FINDING BELIEVERS AND CYNICS

VOIRE DIRE PERFORMANCE ▪ OTHER PRACTICE POINTERS ▪ BE LOUD ▪ BE CONFIDENT ▪ MAINTAIN EYE CONTACT

▪ DO NOT HOLD ANYTHING ▪ LISTEN, LISTEN, LISTEN ▪ DON’T STIR A BEE-HIVE ▪ HONESTY IS THE GOAL

Presented by‌ Blakely I. Mohr, Managing Partner Robert Steve Wilson, Managing Partner Jonathan Stewart, Paralegal Ainsley Dorsey, Legal Assistant Ashley Fletcher, Law Clerk Kim Weber, Legal Secretary The Mohr Law Firm, PLLC 950 E. State Highway 114 Suite 160 Southlake, Texas 76092 8173453637 3030 Nacogdoches Rd. Suite 222C, San Antonio, Texas 78217 2102127589 www.themohrlawfirm.com

Texas Criminal Defense Lawyers Association

13th Annual Jolly Roger Hal Jackson Memorial Criminal Law Seminar: Battling the Resistance December 11, 2020 Livestream

Topic:

The Resistance is Self-Sabotage: (Mental Health) Speaker:

Robert P. Sullivan 1217 Avenue K Lubbock, TX 79401-4025 (806) 741-0000 Phone sullivan.law@live.com

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

Robert Sullivan Robert Sullivan grew up in Arizona but moved to Texas the day he turned eighteen. He attended Texas Tech University for his undergraduate degree and the Texas Tech School of Law for his juris doctorate.

All he has ever wanted to be is a Criminal Defense Attorney.

While in law school, he was one of twelve students accepted in the inaugural class of the Caprock Public Defender’s Office. Robert received a temporary law license and began his career by representing indigent clients in the rural communities around Lubbock. During this time, he also participated in numerous state- and nation-wide mock trial competitions.

Upon graduating in 2012, he went into private practice and has spent his entire professional career in Lubbock, with a focus on criminal defense; first working for a small private firm before opening up his own business, The Law Offices of Robert Sullivan, PLLC. Currently he has handled over 750 clients, with over 1,500 charges, ranging from speeding tickets to attempted capital murder of a police officer. He is one of only thirteen attorneys in Lubbock currently qualified to handle court-appointed mental health cases and that accounts for approximately half of his caseload.

Robert is member of TCDLA and the Treasurer of the local Lubbock Criminal Defense Lawyer’s Association, a position he has been re-elected to for the past four years now.

This spring, he ran for Judge of the 140th District Court, a position he was emphatically not elected to.

Updated December 2020

THE RESISTANCE IS SELF-SABOTAGE A P R I M E R O N M E N TA L H EA LT H D I S O R D E RS

A N D T H E L AW

PLEASE FEEL FREE TO CONTACT ME! THE LAW OFFICES OF ROBERT SULLIVAN, P.L.L.C. 1217 AVENUE K, LUBBOCK, TEXAS. 79401

PHONE # (806)-741-0000 FAX # (806)-765-8150 SULLIVAN.LAW@LIVE.COM

Back to Story Time….

Why Discuss Mental Health and the Law?

Why Discuss Mental Health and the Law?

BECAUSE YOU ALREADY PRACTICE IT!

Why Discuss Mental Health and the Law?

BECAUSE YOU ALREADY PRACTICE IT!

If you Have Ever Represented more than Three People in Jail‌

If you Have Ever Represented more than Three People in Jail‌

If you Have Ever Represented more than Three People in Jail‌

If you Have Ever Represented more than Three People in Jail‌

Then Statistically you have Represented Someone with a Mental Illness!

Then Statistically you have Represented Someone with a Mental Illness!

Then Statistically you have Represented Someone with a Mental Illness!

The Numbers are Staggering‌.

The Numbers are Staggering‌. ◌45% of all Federal Inmates have a Mental Illness

The Numbers are Staggering…. ◦45% of all Federal Inmates have a Mental Illness

◦Up to 65% of State Prison or County Jail Inmates have one

The Largest Hospital in the State of Texas

The Largest Hospital in the State of Texas

THE HARRIS COUNTY JAIL HOUSTON, TEXAS

THE HARRIS COUNTY JAIL HOUSTON, TEXAS On June 12th, 2020, the Houston Chronicle Reported the Jail had an Inmate Population of 8,117.

Meanwhile….

Has less than 2,500 beds under their direct control

THE HARRIS COUNTY JAIL HOUSTON, TEXAS

Psychiatry Through the Years

Psychiatry Through the Years â—ŚFirst Diagnostic and Statistical Manual of Mental Disorders (Volume 1) Published in 1952

Psychiatry Through the Years ◦First Diagnostic and Statistical Manual of Mental Disorders (Volume 1) Published in 1952 ◦“DSM”

Psychiatry Through the Years ◦First Diagnostic and Statistical Manual of Mental Disorders (Volume 1) Published in 1952 ◦“DSM”

Mental Health in America

Mental Health in America â—Ś 1 in 5 Americans have a Mental Illness

Mental Health in America â—Ś 1 in 5 Americans have a Mental Illness â—Ś 1 in 6 Americans is on Mental Health Medication

Mental Health in America ◦ 1 in 5 Americans have a Mental Illness ◦ 1 in 6 Americans is on Mental Health Medication ◦ 11.2 Million Americans have a Serious Mental Illness (4.5 % of the Adult Population)

So….

So‌.

What is a Mental Illness?

So‌.

What is a Mental Illness? â—Ś Mental Health is the Ability of an Individual

to Effectively Function in the Daily Activities of Personal and Public life

So‌.

What is a Mental Illness? â—ŚMental Illness is a Diagnosable Disorder that causes Significant Changes in Thinking, Emotion, or Behavior with those changes Interfering with the Activities that make up Normal Personal and Public life

What Causes Mental Illness?

What Causes Mental Illness?

Biological Factors (ex: Genetics)

What Causes Mental Illness?

Biological Factors (ex: Genetics) Psychological Factors (ex: Trauma, Neglect)

What Causes Mental Illness?

Biological Factors (ex: Genetics) Psychological Factors (ex: Trauma, Neglect) Environmental Factors (ex: Abuse)

What Causes Mental Illness?

Biological Factors (ex: Genetics) Psychological Factors (ex: Trauma, Neglect) Environmental Factors (ex: Abuse) Brain Injuries

What Causes Mental Illness?

Biological Factors (ex: Genetics) Psychological Factors (ex: Trauma, Neglect) Environmental Factors (ex: Abuse) Brain Injuries Other Toxins

What Causes Mental Illness?

Biological Factors (ex: Genetics) Psychological Factors (ex: Trauma, Neglect) Environmental Factors (ex: Abuse) Brain Injuries Other Toxins Substance Abuse

When Does Mental Illness Begin?

When Does Mental Illness Begin? â—Ś Depends on the Disorder

When Does Mental Illness Begin? â—Ś Depends on the Disorder â—Ś Some Develop Almost Exclusively in Childhood (AD/HD, Most Phobias)

When Does Mental Illness Begin? ◦ Depends on the Disorder ◦ Some Develop Almost Exclusively in Childhood (AD/HD, Most Phobias) ◦ Others Do Not Appear Until Adulthood (Psychosis, Most Mood Disorders)

The Most Important Thing You Can Do to Tell Your Client’s Story to the Prosecutor, Judge, or Jury is…

The Most Important Thing You Can Do to Tell Your Client’s Story to the Prosecutor, Judge, or Jury is…

Correct all the Misinformation Out There!

The Most Important Thing You Can Do to Tell Your Client’s Story to the Prosecutor, Judge, or Jury is…

Correct all the Misinformation Out There!

(A.K.A. CUT OUT THE BULL****!)

This is Dennis

This is Dennis Dennis cannot sit still, he has trouble concentrating, he interrupts and talks constantly in class.

This is Dennis Dennis cannot sit still, he has trouble concentrating, he interrupts and talks constantly in class.

Dennis has AD/HD.

This is Steve.

This is Steve.

Steve is a veteran. He always seems on edge and has trouble sleeping at night. It seems silly, but he won’t drive under an underpass.

This is Steve.

Steve is a veteran. He always seems on edge and has trouble sleeping at night. It seems silly, but he won’t drive under an underpass.

Steve has PTSD.

This is Robert.

This is Robert.

Robert is sexy.

This is Robert.

This is Robert.

Robert worries about his friends and family constantly, even when he has no reason to.

Sometimes, he worries so much he gets stomach aches.

This is Robert.

Robert worries about his friends and family constantly, even when he has no reason to.

Sometimes, he worries so much he gets stomach aches.

Robert has GAD.

People with Mental Disorders ARE NOT Violent!

People with Mental Disorders ARE NOT Violent! â—ŚA person who is mentally ill is 30% more likely to be a victim of a crime, over another similarly situated person, over a six-month period of time.

Psychosis

IS NOT Psychopathy.

Psychosis is a defect of the mind that causes it to lose contact with reality in some way

Psychosis is a defect of the mind that causes it to lose contact with reality in some way â—ŚThis can be through hallucinations (either auditory or visual).

Psychosis is a defect of the mind that causes it to lose contact with reality in some way â—ŚThis can be through hallucinations (either auditory or visual).

â—ŚThis can be through delusions.

Psychosis is a defect of the mind that causes it to lose contact with reality in some way â—ŚThis can be through hallucinations (either auditory or visual).

â—ŚThis can be through delusions.

(The delusions are often of grandeur or persecution.)

5 Selected Disorders

5 Selected Disorders ◌ All disorders showcase a change in the patient’s day-to-day to functioning.

5 Selected Disorders ◦ All disorders showcase a change in the patient’s day-to-day to functioning.

◦ Cannot be attributable to medication or other substances.

Bipolar Disorder

Bipolar Disorder â—Ś Persistent Symptoms are a manic mood episode followed by a depressive mood episode.

Bipolar Disorder â—Ś Persistent Symptoms are a manic mood episode followed by a depressive mood episode. â—Ś Mania leads to an abnormal and elevated mood, increased goal-directed activity, and/or energy.

Bipolar Disorder â—Ś Persistent Symptoms are a manic mood episode followed by a depressive mood episode. â—Ś Mania leads to an abnormal and elevated mood, increased goal-directed activity, and/or energy. â—Ś Depression is overwhelming sadness or feeling emptiness inside.

Bipolar Disorder Think of this like a roller coaster.

Bipolar Disorder Think of this like a roller coaster.

Constantly going from very high to very low.

Major Depressive Disorder

Major Depressive Disorder â—Ś Five or more of the following symptoms, for two weeks or more, for most if not all of the day:

Major Depressive Disorder â—Ś Five or more of the following symptoms, for two weeks or more, for most if not all of the day: a depressed mood; noticeably diminished interest or pleasure in daily activities; significant weight gains or losses not attributable to a diet; insomnia; objectively rapid movements (such as pacing or rapid speech) or objectively slowed

down movements; fatigue; feelings of worthlessness or inappropriate guilt; diminished thinking or concentration; and recurring thoughts of death, to include thoughts of suicide, with or without a plan, all the way to actual suicide attempts.

Major Depressive Disorder

This is a deep and unabating sadness.

Schizophrenia

Schizophrenia â—Ś Symptoms so severe they cause a marked decline in the level of functioning.

Schizophrenia ◦ Symptoms so severe they cause a marked decline in the level of functioning. delusions; hallucinations; incoherent or disorganized speech; grossly disorganized or catatonic behavior; and “negative symptoms” such as diminished motivation or reduced feelings of pleasure.

Schizophrenia

This is the persistent psychosis.

Schizoaffective Disorder

Schizoaffective Disorder ◦ All the symptoms of Schizophrenia during the period of illness…

Schizoaffective Disorder ◌ All the symptoms of Schizophrenia during the period of illness‌ With either a manic or depressive major mood episode as well.

Schizoaffective Disorder â—Ś Rarest of all the disorders discussed today.

Schizoaffective Disorder â—Ś Rarest of all the disorders discussed today. â—Ś Often times first misdiagnosed as Bipolar.

Intellectual Deficiency Disorder

Intellectual Deficiency Disorder â—Ś Sometimes called IDD, Intellectual Disability (ID), or Mental Retardation (MR).

Intellectual Deficiency Disorder â—Ś Sometimes called IDD, Intellectual Disability (ID), or Mental Retardation (MR). â—Ś Must have deficits in intellectual functions, fail to meet developmental or social standards for independence, and an onset during the developmental period.

Intellectual Deficiency Disorder â—Ś Four Different Levels

Intellectual Deficiency Disorder ◦ Four Different Levels ◦ Mild

IQ 69-50

Intellectual Deficiency Disorder ◦ Four Different Levels ◦ Mild ◦ Moderate

IQ 69-50 IQ 49-36

Intellectual Deficiency Disorder ◦ Four Different Levels ◦ Mild ◦ Moderate ◦ Severe

IQ 69-50 IQ 49-36 IQ 35-20

Intellectual Deficiency Disorder ◦ Four Different Levels ◦ Mild ◦ Moderate ◦ Severe ◦ Profound

IQ 69-50 IQ 49-36 IQ 35-20 IQ 20 or less

Intellectual Deficiency Disorder

Intellectual Deficiency Disorder

Intellectual Deficiency Disorder

Intellectual Deficiency Disorder

There is no “look” for somebody with IDD.

A Selection of CCP 46B and 46C

46B INCOMPETENCY

46B INCOMPETENCY â—¦ 46B.003

46B INCOMPETENCY â—¦ 46B.003

Everyone is Competent!*

46B INCOMPETENCY ◦ 46B.003

Everyone is Competent!*

*Unless they aren’t.

46B INCOMPETENCY ◦ 46B.003

Everyone is Competent!*

*Unless they aren’t. (ex: Prior Court Order)

46B INCOMPETENCY â—¦ 46B.003

46B INCOMPETENCY â—Ś 46B.003

Defendant must have two things to be competent. And they must be competent at all stages of the proceedings.

46B INCOMPETENCY â—Ś 1. Sufficient present ability to talk with their lawyer, with a reasonable degree of rational understanding

46B INCOMPETENCY â—Ś 1. Sufficient present ability to talk with their lawyer, with a reasonable degree of rational understanding OR

46B INCOMPETENCY â—Ś 1. Sufficient present ability to talk with their lawyer, with a reasonable degree of rational understanding OR â—Ś 2. Rational and factual understanding of the proceedings.

46B INCOMPETENCY â—¦ 46B.004

A Prosecutor, Judge, or Defense Attorney can file a motion suggesting incompetency

46B INCOMPETENCY ◦ 46B.004

A Prosecutor, Judge, or Defense Attorney can file a motion suggesting incompetency

◦ A.K.A. You will file

46B INCOMPETENCY â—¦ 46B.004

Merely raising the issue triggers an informal inquiry

46B INCOMPETENCY ◦ 46B.004

Merely raising the issue triggers an informal inquiry

◦ “Is there evidence, from any credible source, that would support a finding of incompetency?”

46B INCOMPETENCY ◦ “Is there evidence, from any credible source, that would support a finding of incompetency?”

If the answer is YES, and the Judge does not appoint an expert to examine…

46B INCOMPETENCY AUTOMATIC DUE PROCESS VIOLATION! (both State and Federal)

46B INCOMPETENCY â—¦ 46B.021

Process of Doctor Appointment

46B INCOMPETENCY ◦ 46B.021

Process of Doctor Appointment

◦ 46B.022

Mandatory Doctor Qualifications

46B INCOMPETENCY ◦ 46B.021

Process of Doctor Appointment

◦ 46B.022

Mandatory Doctor Qualifications

◦ 46B.024

Factors Reviewed by Doctor during the Examination

46B INCOMPETENCY 1) the capacity of the defendant during criminal proceedings to: (A)

rationally understand the charges against the defendant and the potential

consequences of the pending criminal proceedings; (B) disclose to counsel pertinent facts, events, and states of mind; (C) engage in a reasoned choice of legal strategies and options; (D) understand the adversarial nature of criminal proceedings; (E) exhibit appropriate courtroom behavior; and (F) testify;

46B INCOMPETENCY (2)

as supported by current indications and the defendant's personal history, whether the

defendant: (A) is a person with mental illness; or (B) is a person with an intellectual disability;

(3) whether the identified condition has lasted or is expected to last continuously for at least one

year;

46B INCOMPETENCY (4) the degree of impairment resulting from the mental illness or intellectual disability, if existent, and the specific impact on the defendant's capacity to engage with counsel in a reasonable and rational manner; and (5) if the defendant is taking psychoactive or other medication: (A) whether the medication is necessary to maintain the defendant's competency; and (B) the effect, if any, of the medication on the defendant's appearance, demeanor, or ability to participate in the proceedings.

46B INCOMPETENCY ◦ 46B.026

Doctor’s Report Due in 30 Days

46B INCOMPETENCY ◦ 46B.026

Doctor’s Report Due in 30 Days

◦ 46B.071

Options How to Proceed Forward if the Defendant is Incompetent but Restorable

46B INCOMPETENCY ◦ 46B.026

Doctor’s Report Due in 30 Days

◦ 46B.071

Options How to Proceed Forward if the Defendant is Not Competent but Restorable

◦ 46B.0711/.072

Possible Bond Provisions

46B INCOMPETENCY â—¦ 46B.073(c)

Those Cases that Require Restoration in a Maximum-Security Facility

46B INCOMPETENCY ◦ 46B.073(c)

Those Cases that Require Restoration in a Maximum-Security Facility

◦ This Transfer is MANDATORY

46B INCOMPETENCY â—¦ 46B.073

Timeline for Restoration is 60-Days for a Misdemeanor. Felony it is 120Days.

46B INCOMPETENCY ◦ 46B.073

Timeline for Restoration is 60-Days for a Misdemeanor. Felony it is 120Days.

◦ 46B.080

A One-Time Extension can be ordered for an additional 60-Days

46B INCOMPETENCY ◦ 46B.073

Timeline for Restoration is 60-Days for a Misdemeanor. Felony it is 120-Days.

◦ 46B.080

A One-Time Extension can be ordered for an additional 60-Days

◦ 46B.085

Only One Restoration Per Offense Allowed!

46B INCOMPETENCY ◦ 46B.084

Timeline Upon Client’s “Return to Court”

46B INCOMPETENCY ◦ 46B.084

Timeline Upon Client’s “Return to Court”

◦ Court Shall Notify You of Defendant’s Return Within One Business Day

46B INCOMPETENCY ◦ 46B.084

Timeline Upon Client’s “Return to Court”

◦ You then have Three Business Days to Go and See Them Again

46B INCOMPETENCY ◦ 46B.084

Timeline Upon Client’s “Return to Court”

◦ If You are Contesting the Doctor’s Report…

46B INCOMPETENCY ◦ 46B.084

Timeline Upon Client’s “Return to Court”

◦ If You are Contesting the Doctor’s Report… You Must File a Written Objection, Within 15-Days…

46B INCOMPETENCY ◦ 46B.084

Timeline Upon Client’s “Return to Court”

◦ If You are Contesting the Doctor’s Report… You Must File a Written Objection, Within 15-Days…

Of the Report Itself!

46B INCOMPETENCY ◦ 46B.084

Timeline Upon Client’s “Return to Court”

◦ The Court Itself is Under a Deadline

46B INCOMPETENCY ◦ 46B.084

Timeline Upon Client’s “Return to Court”

◦ Court Must Enter an Adjudication of Competency Within 20-Days of Report or 5-Days upon Defendant’s Return to Court…

46B INCOMPETENCY ◦ 46B.084

Timeline Upon Client’s “Return to Court”

◦ Court Must Enter an Adjudication of Competency Within 20-Days of Report or 5-Days upon Defendant’s Return to Court… WHICHEVER IS SOONER!

46C INSANITY DEFENSE

46C INSANITY DEFENSE ◦ Texas Uses the M’Naghten Rule

46C INSANITY DEFENSE ◦ Texas Uses the M’Naghten Rule ◦ “…At the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.”

Texas Penal Code, Article 8.01.

46C INSANITY DEFENSE ◦ “…At the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.”

Texas Penal Code, Article 8.01.

This Means They Have to Know It Was Illegal.

46C INSANITY DEFENSE â—¦ 46C.051

Must Give Notice to State at least 20-Days Prior to Trial

46C INSANITY DEFENSE ◦ 46C.051

Must Give Notice to State at least 20-Days Prior to Trial

◦ 46C.101

Likely Court Appoints an Expert

46C INSANITY DEFENSE ◦ 46C.051

Must Give Notice to State at least 20-Days Prior to Trial

◦ 46C.101

Likely Court Appoints an Expert

◦ Defendant Must be Competent Before They can be Examined

46C INSANITY DEFENSE ◦ 46C.151

During Trial, Must be “Competent Evidence” to Support the Defense

46C INSANITY DEFENSE ◦ 46C.151

During Trial, Must be “Competent Evidence” to Support the Defense

◦ 46C.154

Cannot Tell A Prospective Juror or Actual Juror what Happens with a “Not Guilty by Reason of Insanity Verdict”

AGAIN, FEEL FREE TO CONTACT ME! THE LAW OFFICES OF ROBERT SULLIVAN, P.L.L.C. 1217 AVENUE K, LUBBOCK, TEXAS. 79401

PHONE # (806)-741-0000 FAX # (806)-765-8150 SULLIVAN.LAW@LIVE.COM

©2020 TCDLA. All rights reserved.

6808 Hill Meadow Dr. Austin, TX