Frank Sellers

Based in Fort Worth, Texas, Frank Sellers is a partner at Westfall Sellers. His practice includes both trial and postconviction cases. Frank is AV Rated by Martindale, a 5-time SuperLawyers Rising Star, and has been voted twice to the list of Top 100 Rising Stars in Texas. He is a TCDLA Board member, co-chair of the DWI Resource Committee, and past president of the Lubbock Criminal Defense Lawyers Association. Frank graduated from Texas A&M and then Texas Tech Law School, where he was an editor on the Law Review, on the Board of Barristers, and selected for numerous national mock trial teams. He began his career under the mentorship of well-known West Texas defense attorneys Dan Hurley and David Guinn. He can be contacted at and 817-928-4222.

How to Fix a Blood Warrant Scandal

If you haven’t seen the Netflix docuseries How to Fix a Drug Scandal, stop what you are doing.  Go invest four hours of your life.  Prepare to be blown away.  Director, Erin Lee Carr, explores how far government employees (attorneys, judges, and lab personnel) are willing to go to prevent mass decriminalization.  While the cases in the docuseries involved two drug lab analysts compromising drug testing in Massachusetts, a similar battle is raging in Texas involving blood labs and the way blood warrants are written.  Since the Court of Criminal Appeals landmark decision in Martinez, which declared that the seizure of one’s blood and the subsequent testing of one’s blood are two distinct searches under the Fourth Amendment, various Courts of Appeal are trying to distinguish the language to avoid suppressing blood results in Driving While Intoxicated (DWI) related cases and accidents.  The fix is in, and courts seem more concerned with protecting convictions than following the law.  Until our courts force the government to follow basic Fourth Amendment Law, the fix may be in, but the problem remains.

Massachusetts’ Scandal

In 2013, Massachusetts State Police arrested 35-year old Amherst crime lab chemist, Sonja Farak, for tampering with evidence: and that was only the beginning.1  Over time and once Farak had been given immunity, details emerged that Farak had been in fact using the drugs that she was tasked with testing—for nearly a decade.  The scope of Farak’s addiction and the number of people convicted as a result of her drug testing came to light despite repeated efforts to hide the scope of Farak’s wrongdoing.2  The docuseries How to Fix a Drug Scandal examines the lengths to which some actors in the criminal justice system will go to protect convictions, cover up a scandal, and affect 35,000 lives in the process.

Farak was not the only one.  Just six months before Farak’s arrest, another Massachusetts lab chemist, Annie Dookhan, was caught dry labbing her results.3  Dry labbing is simply plucking a result out of thin air and reporting it—without ever testing a sample.  Dookhan’s work affected thousands of cases.  Whereas Farak was literally high for most of her Amherst lab career, she actually tested the samples.  Dookhan, on the other hand, lied about testing every sample.4

Together, Farak and Dookhan were responsible for compromising over 35,000 drug cases which helped land thousands of people in prison.5

But in April 2017, 21,587 cases were dismissed because of Dookhan’s involvement, according to Bustle.6  In 2019, the Boston Globe reported that over 24,000 charges from around 16,000 cases were dismissed due to Farak’s involvement.7

Texas’ Growing Scandal

When analyzing the atrocities that occurred in Massachusetts and the nature of the scandal, one realizes the limitless potential for abuse by lab employees with little or no oversight.8  It starts with the police who are tasked with getting crime off the streets.  Any evidence collected should be analyzed and reported by an independent lab.  An independent lab is critical for accurate, reliable and credible results since it is such powerful evidence.  As we know, all labs make mistakes. However, very few labs or analysts will ever admit making mistakes.9  The accused then hires a criminal defense attorney to essentially audit the lab results and ensure that any search and seizure was in accordance with the Constitution.  Ultimately, the trial judge should then act as “Gate Keeper,” refusing evidence when the testing does not clearly and convincingly show reliable, accurate results.

As Massachusetts showed us, the desire to keep convictions and prevent a scandal far outweigh following the law, being open and honest with juries about all of the issues, and requiring proper policy and procedure checks and balances.  When a mistake is made, Judges should encourage dissemination of all faulty evidence and demand corrective action.  But in reality, Massachusetts fought tooth and nail to keep the public at large—and those affected and on trial—in the dark about the evidence at the heart of the scandal.

These lab issues are not unique to Massachusetts.  Already in Texas, private chemist Amanda Culbertson discovered dry labbing (28 of 32 people in a sample batch run) by Texas Department of Public Safety crime lab El Paso analyst Ana Romero.  Culbertson found Romero had essentially copied and pasted the data from one subject to another.  And those electronic data files were “magically erased.”  In two complaints, Culbertson reported her findings to the Texas Forensic Science Commission (TFSC), which investigated the claim.10  The TFSC found evidence Romero may have dry labbed or may just have been negligent for the lab not to have procedural safeguards in place protect against dry labbing.11

The TFSC abandoned the 28 blood tests and enacted preventative measures but never talked to Romero.12  To date, Romero has not been charged or properly investigated and granted immunity to disclose how far her dry labbing goes back to determine how many cases were truly affected over her tenure in the crime laboratory. 

Just like Massachusetts and any science lab run by human beings, Texas has crime lab evidence issues.  The next wave to fix a blood warrant scandal is making its way through the judiciary—fighting the mass suppression of results and failure to demand narrowly drawn warrants and searches of the “informational dimension” of blood evidence.

Judges Fighting Martinez

Martinez requires the government to obtain an additional search warrant to authorize the testing and analysis of blood separate from seizing the blood for medical purposes.13  After a traffic accident, Martinez was taken to the hospital where medical personnel drew his blood for medical purposes.14  Martinez voluntarily left the hospital after informing nurses he could not afford any tests.15  Subsequently, upon the State’s presentation of a grand jury subpoena, the hospital released Martinez’s blood to a Department of Public Safety agent; the State sent the blood to a crime laboratory for testing.16 Martinez moved to suppress the blood test results, and the trial court granted the motion.17  Affirming the trial court, the Court of Criminal Appeals held “there is a Fourth Amendment privacy interest in blood that has already been drawn for medical purposes.”18  Martinez had a subjective expectation of privacy in his blood drawn for medical purposes, and the State’s warrantless testing of the blood “was a Fourth Amendment search separate and apart from the [initial] seizure of the blood by the State.”19  Because no exception to the warrant requirement applied, the State was require to obtain a warrant before testing Martinez’s blood.20

Some trial courts are properly suppressing blood in accordance with the Fourth Amendment and Martinez—finding that a blood warrant was obtained to draw the subject’s blood (seizure), but a subsequent search warrant for the testing and analysis (searching) was never obtained.21  However, various Courts of Appeal are refusing to follow Martinez and are narrowly construing the facts in order to avoid proper suppression.22  In CriderHyland, and Staton, the courts mistakenly relied on the fact that in Martinez the blood was drawn by a hospital for medical purposes.23

How to Prevent a Scandal

It may seem like a rhetorical question, but how can the Judicial Branch (Judges) and the Executive Branch (State attorneys) remain distinct to prevent this growing scandal?  

  1. Seize the Blood Legally

There are really only three ways that the people of Texas can have their blood drawn legally.  The first is by consent.  But consent to a blood draw must be freely and voluntarily given.24   Or they are unconscious and have deemed to consent via Texas’s Implied Consent statute.25  The second way is that a hospital is allowed to draw someone’s blood for medical purposes and not at the direction of the police.  HIPAA governs and protects the person’s privacy.  But the State may then go get a grand jury subpoena and ask for the person’s records or evidence.26  This is what happened in Martinez—the State used a grand jury subpoena for evidence obtained for medical purposes.27  And third, as is custom around Texas, a Judge signs a blood warrant to draw the blood from the person and authorizes a variety of people to help in that extraction. 

The Court of Criminal Appeals already acknowledged there are two distinct triggering events implicating Fourth Amendment protection: 1) the initial extraction of the blood from the arm, and 2) the subsequent search of the “informational dimension” of the blood.28

Various Courts of Appeal are fighting Martinez and using the hospital draw as the distinguishing factor.  However, no one is arguing that a valid blood draw warrant doesn’t grant the police agency authority to properly seize the blood from the arm. Martinez’s blood was drawn in a valid manner just as a valid blood draw warrant would allow.  What’s missing is the subsequent authority or power to violate a person’s Fourth Amendment privacy concerns and conduct a search on the information contained within the blood.

  1. Search the Blood Legally

Blood draws and warrants really began to be the normal policy and procedure around 12 years ago.  Since that time, many counties are able to get blood warrants 24 hours a day, seven days a week.  And somewhere about 7 years ago, the State began drafting form affidavits for blood warrants and form blood warrants for judges or magistrates to sign.  These forms were undoubtedly written to make the State more efficient and reduce the number of mistakes that could invalidate a warrant.  But, importantly, these pre-Martinez form warrants only authorized an extraction of blood—not subsequent testing. 

Remember, if properly drawn in a grey top tube as required by Texas DPS procedure, these tubes should contain a preservative and an anti-coagulant and be properly refrigerated.  Numerous State analysts testify that the blood was properly drawn, stored and available to the defense to retest at any time.  If that’s the case, what is stopping the State from retesting the blood with a proper search warrant?  

  1. No Common-Sense Exception to the Fourth Amendment

The Crider and Staton courts boldly claim “common sense dictates that blood drawn for a specific purpose will be analyzed for that purpose and no other.”29  But a neutral, detached magistrate’s “common sense” reading all depends on what the affiant-officer is qualified to opine about.  Most blood warrant affidavits are signed by an officer who was certified only in Standard Field Sobriety Tests, which are exclusive to determining intoxication by alcohol.  Most of these affidavits only show signs of alcohol intoxication and ultimately opine only alcohol as the intoxicating substance.  And then, the results come back under the legal limit, or it involves a death or serious injury and the State then tests the blood for drugs or medications.

What if the officer is not a Drug Recognition Expert? What qualifications does he possess even to speculate on what substance the person is intoxicated?  And did he conduct an examination?  The magistrate or judge signing the warrant must first determine the scope of the search based on the facts and qualifications of the officer swearing to the information in the affidavit.

While the Courts of Appeals suggest using “common sense” in order to determine what the State of Texas will want to search for, they obviously underestimate the zeal of the State of Texas and overlook the constitutional purpose behind the Fourth Amendment.  

Our current practice violates the most fundamental tenant of Fourth Amendment law—preventing the government from conducting limitless, general searches.30  Presumptions should be in favor of citizens, not the government.  Drafting warrants to cover these situations is nothing new, and courts should not worry about testing other seized evidence: “Because biological evidence is sui generis, this practice need not be replicated under circumstances when the object of the warrant is nonbiological[.]”31  The State can, moreover, streamline the process by drafting a single warrant properly tailored to authorize both drawing and testing.  Professor LaFave’s treatise explains:

When a magistrate is faced with a petition for a search warrant attempting to seize biological evidence (such as blood) from a criminal suspect, the warrant that issues should explicitly incorporate the scope of testing authorized on that sample. To obviate the general warrant problem, such restrictions need to be narrowly tailored in light of the supporting affidavit of probable cause presented.32

The State routinely searches for alcohol, medication, and/or illegal drugs on their own request all without a warrant specifically allowing the search.  The State must be required to rewrite the pre-Martinez warrants to expressly authorize what the blood is to be searched for, using what type of analysis, and for what length of time, just like a warrant to search a house, which contains less sensitive information than a person’s blood.

Easy Fix to Prevent a Scandal

It’s now in the hands of the Court of Criminal Appeals. Some trial courts have followed Martinez by properly suppressing evidence, but various courts have tried to distinguish or interpret the intentions of the Court of Criminal Appeals in Martinez to avoid suppression.  What if the State of Texas just did it right?  The State has been relying on pre-Martinez forms to get what are now insufficient blood warrants.  First, the State should be required to rewrite all the blood warrant forms to accurately reflect Martinez.  This would require specifically stating the blood is to be tested and analyzed, how it will be analyzed, for what substances and within what period of time.  Second, for all current cases with this outdated paperwork, the State needs to go get a new warrant and retest all of their samples.

Yes, Martinez may require more paperwork.  It is not busy work, though.  Justice favors protecting our Constitutional rights more than potentially suppressing blood, reopening cases, and decriminalizing some people.  Massachusetts learned the hard way by trying to cover up a drug lab scandal.  Texas is in the midst of a blood warrant scandal.  The Courts can remain unbiased and detached and not feel any guilt by trying to cover up the State’s outdated paperwork or desire not to back log the crime labs.  Let’s not trample our Fourth Amendment to prevent suppression of illegally searched evidence.  Get the State to do their job and not aid in covering up this injustice.

* The authors would like to thank Dustin Hoffman, Law Clerk at Westfall Sellers and 2020 Texas A&M School of Law J.D. Candidate, for helping write this paper.

Back to Basics: Attack SFSTs, Not the Officer

In the heat of trial, all trial attorneys fight vigorously for their DWI clients. In that fight, it’s understandable that you want to destroy the officer, destroy the Standard Field Sobriety Tests (SFSTs), and vindicate your client. Oftentimes, however, juries end up feeling sorry for the bumbling police officer and will hold it against the client if the attorney berates or embarrasses the officer. This article will explore a trial-tested, proven method that educates a jury on the complexities and meticulous grading system of the SFSTs rather than attacking the officer. Attack the system, not the officer. In the end, if done properly, the jury will empathize with the client. This empathy will assist the jury in finding the client not guilty—without leaving jurors feeling guilty for voting against law enforcement.

The Officer Is a Human Being

We can all agree there are good and bad officers. Just like attorneys. And contrary to popular belief, even “bad” officers are people too. Just because officers may be “bad” or incompetent at their jobs doesn’t mean they are evil. Somewhere, to someone, they are human with all the emotions, positive attributes, negative attributes, good days, bad days, highs and lows that we all enjoy and suffer. Someone out there loves them. They are someone’s family member. Once upon a time, they took an oath to protect and serve the community we live in. Most of the time, they may still be trying to do their best, but their best is sub-par. Remember this—seriously.

You must think like an average juror. How many clients are shocked that the officer “is bold-faced lying” on the stand? We can’t let our daily experiences jade and warp us. Put yourself in the shoes of your family or friends who have minimal police contact. Most respect police and admire their sacrifice. Growing up we were all probably taught to respect and trust the police. And honestly, most of us still do, for the most part. Hell, even criminal defense lawyers introduce their kids to their police friends and teach their kids to respect and honor the police. Most of our jurors were raised the same and probably raise their own kids this way.

Only in roughly the last seven years did police misconduct and abuse of power really start making the news. In the past couple years, the pendulum has swung—giving jurors cause to be wary or even scared of the police in certain situations. The world is slowly recognizing the magnitude of the problem and the catastrophic consequences when police lie, hide or destroy evidence, collude, or make “honest” mistakes.

To conclude this paean to the humanity of police officers, just try your best to remember the jury starts out thinking they are good cops. Being one of the biggest offenders of the scorched-earth cross-examination, we understand the eye rolls. But it’s not about what we know, it’s how we convey it to the jury. In the famous words of Dalton from “Road House”: “Be nice. I want you to be nice, until it’s time not to be nice.”

Standard Field Sobriety Test Hard Truths

The Standard Field Sobriety tests were developed around 1975 when National Highway Traffic and Safety Administration (NHTSA) performed research with South California Research Institute (SCRI) to determine which roadside field sobriety tests were the most accurate.1 SCRI published three reports:

  1. California 1977 (Lab);
  2. California 1981 (Lab and Field); and
  3. Maryland, D.C., V.A., N.C. 1983 (Field).

SCRI originally travelled around the United States with six tests, but narrowed it to the three tests we know today: Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT), and the One Leg Stand (OLS).

Twenty years later, three validation tests were undertaken between 1995 and 1998:

  1. Colorado 1995;
  2. Florida 1997;
  3. San Diego 1998.2

Many other articles examine the pitfalls and biases of these validation studies. Concocted in the ’70s and validated in the ’90s, these tests are now 40+ years old and haven’t been revalidated in the last 20 years. SFSTs are not a law of physics or science—meaning they are not indisputable. These are simply coordination exercises created by police and “scientists” in the ’70s.3

How the Officer Is Trained to Administer the SFSTs

Before we dive into the actual SFSTs, it’s important to educate the jury on just how this officer was trained and who trained them. Set the stage to illustrate the difference between how they were graded on their SFST proficiency test and how they now grade people on the SFSTs. “Before we get into the tests, can we just explore how you learned to give these tests?” Officers are usually happy to boast about their training. Start by establishing when the officer was first certified to administer the tests. It’s usually in the academy.4

  • And how long was your course (usually 24–40 hours, around a week)?
  • Who trained you (other officers)?
  • When you were trained, did your teacher tell you how to administer the tests and then just grade you on administering them?
  • No, you were provided a textbook— the SFST manual? You still have it? Did you bring it today?

At this point, if not done prior, establish that the NHTSA student SFST manual is a learned treatise under Texas Rules of Evidence 803(18). Rule 803(18) clearly states that a learned treatise may be read into evidence, but not received as an exhibit.

Be ready for the State’s objections when you begin reading from the manual. Many untrained prosecutors will try to prohibit you from reading a document not in evidence or try to admit the manual. “Your honor, I would love to admit this manual, but unfortunately under TRE 803(18) it’s specifically prohibited.” The prosecutor may also object to defense counsel reading it into evidence and not the officer. Nowhere in 803(18) does it say who is allowed to read the learned treatise. And who do you think puts more inflection and importance in reading the necessary language? The defense attorney should read it and is absolutely allowed to—once it’s established as a learned treatise.

  • Officer, you were trained according to the NHTSA student manual? And you agree it’s authoritative on how to administer these tests? BAM! 803(18)

If the officer gets shifty with what year manual, all of the manuals can be found online and you can find most on the TCDLA app. Prior to trial, it helps to establish either with the State or the officer on which edition of the manual they were trained and on whether they accept that it is authoritative. If the officer is really difficult and wants to use his manual, ask for a continuance so the officer can go get his manual—or send the officer a subpoena duces tecum to bring their SFST manual prior to trial. Most judges are very familiar with the NHTSA SFST manual and will not tolerate the officer’s games.

Back to examining their training:

  • When you were trained, you got to practice administering these tests?
  • You were allowed to study the entire week? You were allowed to practice the entire week?
  • You knew at the end of the week you would be tested?
  • You knew that you would be tested on the clues, the definitions, and administration?
  • And you had to get a 70, 75, 80% grade to pass? (Most don’t know the actual passing percentage.)
  • Now when graded, you got credit for the answers you got right?
  • Just like in school and every test you’ve ever taken?
  • On a 100-question multiple-choice test, you miss 6, what’s your grade (94)?
  • That’s because you get credit for every answer you got right?
  • If your kid came home from school, missed six, and had an F written next to that 94, what would you do? (Most say march down to that school. Agree. And welcome the sidebar objection.)

“Officer, I’m Not Here to Bust Your Chops”

Say it 10 times during your cross. Do not attack the officer—attack the tests. “Officer, I know these aren’t your tests. You didn’t design them. You are just following what you were trained to do. So, I’m not busting your chops.” Repeat this over and over. Let the jury know we are not attacking this officer. We are not complaining about the officer. We don’t hate the player; we hate the game.

“But, Officer, if someone admits to drinking or you think they might be intoxicated, you are going to give them these tests in this same standard way.” Start putting the jurors’ minds in the shoes of the client. Many times, I’ve even gestured around the entire courtroom and stated: “So everyone in this entire courtroom, as long as they are not intoxicated, should be able to pass these tests? Judge, reporter, bailiffs, people in the gallery, everyone in this whole courtroom?”

Purposefully leave out the jurors to avoid any potential objection. Some officers may pause because they know there are certain limitations on the SFSTs. “Well, I mean there are certain people that may have difficulty with these tests naturally, right? Those over 65 years old, 50 pounds or more overweight, leg, back, or neck injuries, head injuries or trauma, and lots of other ailments?”

Remind the jury the officer has no medical training and wasn’t trained by any doctors or nurses. Most officers were told to just take the client’s age, weight, or injuries “into consideration” when determining intoxication. Yeah, right! “But again, officer, I’m not here to bust your chops. Let’s examine these tests so that if anyone wanted to try them out, they could know what to look for and how to grade them.” What’s the officer going to say?

Before examining the SFSTs, it’s helpful for the jury to visually understand the tests and clues. Whether you bring an easel and butcher paper, your tablet on the screen, or even a dry-erase board, make sure it’s a large and colorful demonstration. Imagine a CLE with no PowerPoint versus one with colorful displays. Like us, jurors appreciate, learn better from, and remember colorful presentations.

Horizontal Gaze Nystagmus (HGN)

Most jurors have seen some sort of advertisement or illustration of an officer waiving a pen in front of the eyes. Before getting into the HGN, dive a little deeper into their training. Explore their range of knowledge. “Officer, you know there are many different types of nystagmus—88 actually?” It’s unimportant how many types of nystagmus the officer knows, but he will always agree there are many. Only a few are listed in the NHTSA student manual. Most officers have only read about these other types, or maybe seen them on video. Very few have actually seen them in person or done testing and seen these. It’s important to educate the jury that there are so many different ways the eyes can jerk and for a variety of medical, environmental, or natural conditions. Additionally, the jury needs to know who trained the police officer to distinguish the minute jerks of the eye.

  • Now, officer, I’m not busting your chops, but were you trained by an ophthalmologist?
  • Optometrist?
  • Nurse?
  • Person who worked for Lens Crafters?
  • Anyone wearing a white lab coat?
  • The police officer that trained you, he didn’t show you the other types?
  • Have you ever heard of Bruns, latent, pendular, vestibulo ocular, spasmus, or rebound nystagmus?
  • Has anyone showed you the difference between those and horizontal gaze nystagmus?
  • In your manual, you have optokinetic, rotational, post rotational, caloric, and positional alcohol?
  • Have you ever even seen those?
  • And those look just like horizontal gaze, but for non-intoxicated reasons?

Now start demonstrating the HGN main points for the jury to see. Write HGN in black on the top of the pad on your easel. “How far do the eyes have to jerk in order to be counted as a jerk?” Most officers get confused and hesitate. “If we wanted to put a ruler underneath the human eye, the jerk of the eye is millimeters, right? Maybe a centimeter? Maybe 1/32 of an inch? So how far does the NHTSA manual say the eye must jerk in order to be counted as a jerk? How many millimeters?” If the officer continues to hesitate, rescue him: “Sorry, Officer, I’m not busting your chops. There is no definition, right?” Write: No Def. of How Far Jerk (mm).

“How many times does the NHTSA manual say the eye must jerk in order to be counted as a clue of intoxication?” Write: No Def # of Jerks. Some officers may get cheeky and say it just has to be distinct and sustained. Break it down for the officer, gently. “Distinct means you clearly see it. And sustained means it must be continual. And that’s just for the second pass when you are holding it out for at least four seconds. What about in the first clue—lack of smooth pursuit? How many times does it have to jerk when you are just going side to side? And then in the third clue—onset prior to 45 degrees—how many times does it have to jerk before 45 degrees for you to stop your pen before you get to their shoulder?” Most officers will state just once. If they are still being evasive, refer back to the learned treatise NHTSA manual. “Show me in this manual where it says once, twice, three times a lady that it had to jerk?” Even writing this type of evasive answering makes me want to destroy this officer. Repeat to yourself: This officer is human, he is loved by someone, somewhere. Get back to your center. “Officer, I’m not trying to bust your chops, this is not your test, you did not design these tests. Nowhere in this manual did anyone ever state how far or how many times the eyes had to jerk?”

Most prosecutors have already bored the judge and jury to death with the timing of the HGN. Usually the officer has been properly woodshedded by the state and knows the HGN timing. If he doesn’t, or did it grossly wrong on the video, you may want to show the jury the difference between NHTSA standards and how the officer administered it.

But this article suggests a different tactic in attacking the HGN, one that is not based on breaking down the timing. The HGN is not a divided-attention test like the Walk and Turn (WAT) or the One Leg Stand (OLS). The officer will agree. If not, the NHTSA manual defines the WAT and OLS as divided-attention tests. The manual defines HGN as an involuntary jerking of the eyes as they gaze toward the side. Nothing about HGN or Nystagmus says divided attention. Remember to be careful with your words here: “Nystagmus does not measure mental or physical faculties?” No, it doesn’t. Inexperienced officers will try to argue that it does. To combat this, simply illustrate that nystagmus is an “involuntary” jerking and cannot be controlled by our eye muscles, as much as we may want to. And we cannot make our brains, through the neurons, control this involuntary jerking, as much as we want to. Some persistent officers will continue to argue, at which point you may need to distinguish where the loss of mental or physical faculties comes into the WAT and OLS, and how that’s not possible in the HGN. Nowhere in the NHTSA manual does it say loss of mental or physical faculties for HGN. Depending on the remarks in the video, if the officer just will not agree nystagmus doesn’t measure mental or physical, ask them about the client’s performance, like this:

  • He had no problem following your stimulus?
  • You never had to tell him not to move his head?
  • So, he displayed good mental faculties in following your instructions?
  • He displayed good physical faculties in watching your stimulus and not moving his head?

The jury will be turned off and the officer will damage credibility by continuing to argue.

Under your HGN heading, write: Does Not Measure Mental or Physical Faculties. After this amount of cross, the officer has already established a reputation with the jury. Discuss the findings on the HGN. “You found six out of six clues on my client? That’s all of them, maxed out?” Write: 6/6 on the board in the top left in red. We will come back to this at the end of all the SFSTs.5

“There is no way that I can prove you didn’t see those little jerks? Stimulus is 12–15 inches from their face, your face is about another 12–15 inches from your hand. That’s 24–30 inches from his eye, at night, looking for millimeters of jerks.” The jury gets it.

“You never stated out loud when you saw these clues on camera? You never said lack of smooth pursuit, maximum, onset into your mic while you were doing them? In fact, you wrote down how many clues you saw when writing you report? You wrote your report after you had determined he was intoxicated? After you had arrested him? After you towed his car?”

Some officers may say they are prohibited from stating the clues on the video by law, which is correct under Fischer. “Well you could have said them and then we just would have muted it. But it could serve to remind you which clues you actually saw? But you remembered later, you saw all of them? We just have to trust you?” Write: Trust Me in big red letters on the top right of the board.

“You didn’t arrest him after the HGN test, did you? Even though you got all six out of six clues? The next test you administered was the Walk and Turn?”6

The Walk and Turn (WAT)

The WAT is a divided-attention test meaning that it is supposed to measure your mental and physical faculties. In plain English, they want to see how well you can listen to instructions (mental) and then perform what you just heard (physical). The WAT is a test where the video will actually show us the client’s performance. There is no “trust me” in the WAT. The overall intent in dissecting this test is honestly for the jury to go home, try it, and realize how absolutely ridiculous this test is and how strictly it’s graded. Slowly break down this test to the jury using the officer and the NHTSA manual.

Turn to a new page on your easel and write WAT in big black letters at the top of your display. Then lay out the eight clues of intoxication NHTSA established. Know them by heart; it’s your profession. Start writing them down on the board as you recite them. “The first two clues come in the Instruction Phase, meaning they have to stand like this while you give the instructions and demonstrate. 1. Can’t Maintain Balance; 2. Starts Too Soon. The next six come during the Walking Phase. 3. Steps Off Line. 4. Misses Heel to Toe. 5. Raises Arms. 6. Stops While Walking. 7. Incorrect Number of Steps. 8. Improper Turn.” Now the jury can clearly see what the test is graded on.7

Next, show the jury how the test is really administered. Ask the judge to stand up and demonstrate portions.

  • “Officer, this test has 18 unique instructions? Don’t worry, I’m not quizzing you. Let’s go through them together (count these out on your fingers as you go so that the jury can follow along):
      1. Place your feet on a line
      2. In a heel-to-toe manner
      3. Left foot behind right foot
      4. With arms at sides and give a demonstration, tell subject
      5. Not to begin until instructed to so do and ask if subject understands. Tell subject to take
      6. Nine
      7. Heel-to-toe steps
      8. On the line and demonstrates. Explain and demonstrate the turning procedure:
      9. Lead foot planted
      10. Take a series of small steps
      11. To the left direction. Tell the subject to
      12. Return on the line
      13. Taking nine
      14. Heel-to-toe steps
      15. Count out loud
      16. Look at feet while walking
      17. Don’t raise arms from sides. And
      18. Do not stop once they have started. Do they understand?8

Write: 18 Instructions on the board top left in red. “How many times did you demonstrate the test?” Write: 1x Demo or whatever they say. “How many times did you allow him to practice this test before grading him?” Write: 0 Practice. “Did you tell him the clues you would be grading him on?” Write: 0 Clues Given. “Did you give him credit for all the good stuff he did right?” Some may argue or be confused. Circle back to their training and their testing and how they were given credit for all the answers they got right. Hell, every test anyone has ever taken they got credit for the stuff done right! “You agree age, weight, leg, back, or neck injuries may affect an individual’s performance on this test?” Write: [whatever issue your client has]. “Now tell the jury how many clues equals failure or the decision point?” Write: 2 = Intox.

Next show the jury how meticulous the test is scored. Go through each of the clues and define them. When you get to heel-to-toe, ask the officer to show the jury with his fingers just how far someone has to miss heel-to-toe in order to be counted as a clue of intoxication. And make sure to ask if that half inch is between his fingernails or finger beds, on just one step. Write: the measurements of ½ inch and >6 inches next to heel-to-toe and raises arms. Be sure to put green check marks next to all the clues your client didn’t exhibit. When you get to improper turn, you should slow down and explain to the jury that there are three ways you can get that clue: series of small steps, leave the lead foot planted, and turn to the left. Let the jury see all of the ways there are to get a clue of intoxication.9

Bring it home for the jury. Ask the officer how many clues your client exhibited. Write 4/8 or whatever it was. “So, you’re telling me that every single sober person in here has to get a zero or one on this test? Because two equals intoxication?” Look at the jury after the officer admits this. Share that common ground with them. “So you’re telling me, if someone were to go home and try this test, not that anyone would, but now knowing all of the clues and how it’s graded [optional sidebar: which is something my client didn’t know], they should be able to get a zero or a one on it?” You have to love the zealous officer who will not only agree but add that the tests are easy, or that he sees plenty of people pass them.

Finish off the cross with a final blow. “Officer, is this a normal or abnormal way to walk?” Most officers will never admit it’s “abnormal.” Ask them: “Who else walks like that?” Most either can’t think of it or don’t want to say it—gymnasts on a balance beam (but they get to balance with their arms to the side) and tight rope walkers (but they get that long bar). Write: Abnormal in the top left in red. “Now, I’m not busting your chops, these aren’t your tests, but you’re supposed to judge whether someone has lost the normal use of their mental and physical faculties on an abnormal test? And you still didn’t arrest my client after this test?”

The One Leg Stand (OLS)

Very similar to the WAT, lay out the OLS. Start with the clues: 1. Sways; 2. Hops; 3. Drops; and 4. Raises Arms. Count out the instructions: 1. Stand straight; 2. Place feet together; 3. Hold arms at sides; 4. Tell subject not to begin until instructed to do so and ask if they understand; 5. Raise one leg, either leg; 6. Approximately 6 inches off the ground; 7. Keeping the raised foot parallel to the ground (and give a demonstration), tell subject: 8. Keep both legs straight; and 9. Look at the elevated foot; 10. Count out loud, in the following manner: 11. One thousand and one, one thousand and two, one thousand and three 12. Until told to stop. And give demonstration.

Follow the pattern in the WAT and write: 12 instructions, 1x demo, 0 practice, 0 clues given, 0 credit given, age, weight, back, leg, or neck injuries may affect, 2 = intoxicated.

When examining each clue, be sure to establish there is no distance for sway as defined by NHTSA.10 No definition of how many inches or how long someone must sway. Write: ? You don’t need to save the abnormal surprise; the jury gets it. “Is this a normal or abnormal way to stand? Even the Karate Kid got to raise his arms for balance.” And then bring it home: “So everyone in this room better be able to get a zero or one on this test? And all humans have a natural sway when standing on one leg? So that’s one clue already with no definition of how far or how long one must sway? That means everyone should be able to stand on one leg for 30 seconds without dropping it, and not raise their arms or hop the entire time? Not that anyone would ever try that at home.”

Before you wrap up your cross, come back around to the HGN. “My client got 4/8 on the WAT and 2/4 on the OLS, right? Never maxed out any of these tests as we can clearly see on video. But after you arrested him, towed his car, and got to write your report, you wrote 6/6 on the HGN?” The jury sees where you are going. The officer sees where you are going. It’s a rhetorical question. Let the jury ask and answer it in their heads. “So, we just have to trust you that he failed that miserably, but on the video, he looked good (we probably are not in trial if he doesn’t look good)?”

Lastly, bring the fear home. “Not to bust your chops officer, because these aren’t your tests, but if someone is pulled over on the way home from dinner and smells like alcohol or admits to drinking at dinner, they could have to do these tests? And then if they do these tests, you will have to administer it in the standardized manner only and grade it just like we saw? Zero or one to go home?”

This will resonate with everyone. As you can tell from breaking down these tests, they are next-to impossible. We as defense lawyers know these tests, and on any given day with the weather, nerves, and our conditioning, we couldn’t pass these. To assume regular, everyday people who don’t know these tests are capable of passing . . . Let’s be honest: It’s whether the officer wants to arrest you or not. They are purely subjective.

Conclusion

This article is not suggesting that no tests should be given to suspected drunk drivers. Rather, it breaks down the simple reality of how stringently and subjectively these tests are graded. Unfortunately, many people who “fail” these tests will not have the ability to fight these tests—be it for financial reasons, time constraints, or by hiring an attorney who doesn’t want or care to fight it.

We as trial lawyers must know these tests better than the officers. Only once you truly understand these tests can you simplify their basic elements and effectively communicate their unfairness to a jury. Many times, at the end of a trial, jurors will remark how they are never drinking and driving again because there is no way they can pass these tests. These are normal people, just like our clients. And it’s not about the officer; don’t bust his chops. It’s an unfair testing system. Jurors can feel confident in a not-guilty verdict for standing up for natural human error in coordination exercises. Break the SFSTs down to the basics—make it about the tests, not the officer. Jurors can still respect law enforcement while finding the client not guilty, even after “failing” these unfair “tests.”

2019’s Need-to-Know Changes to DWI Law

1

Together, House Bills 20482 and 35823 refashioned Texas DWI law and punishment—and finally abolished surcharges. Kind of.

Now, a person “finally convicted” of DWI “shall” pay a fine of $3,000 for a first conviction, $4,500 for a second, and $6,000 for all DWI convictions over 0.15. Presumably, a person is not finally convicted if they receive a newly created “deferred ad­judication” on their DWI. The legislature also slightly altered and expanded nondisclosure eligibility. This paper overviews the changes to the new DWI laws.

New Interlock Bond Requirements

For the following DWI accusations, the judge or magistrate shall order both 1) that defendant’s vehicle be equipped with an interlock device, and 2) that defendant not operate any motor vehicle unless equipped with an interlock device:4

Subsequent offenses under

  • 49.04 [Driving While Intoxicated];
  • 49.05 [Flying While Intoxicated]; or
  • 49.06 [Boating While Intoxicated].

Any offense under

  • 49.045 [DWI w/ Child Passenger],
  • 49.07 [Intoxication Assault], or
  • 49.08 [Intoxication Manslaughter].

If ordered, the defendant must have the interlock installed within 30 days.5

If the magistrate finds, however, that an interlock device is not in the best interest of justice, the magistrate “may not” order one installed.6

“Deferred Adjudication”

Dubbed “DINO” (deferred in name only), HB 3582 creates deferred adjudication for qualifying DWIs. Specifically, it amends Article 42A.102(b) of the Code of Criminal Procedure to allow judges to grant deferred adjudication.7

A person is eligible for deferred unless the person:

(1) is charged with an offense under 49.04 or 49.06 [DWI or BWI], and at the time of the offense either:

  • Held a commercial driver’s license or learner’s permit; or
  • The defendant’s alcohol concentration was 0.15 or more;

(2) is charged with an offense under

  • 49.045 [DWI w/ Child Passenger];
  • 49.05 [Flying While Intoxicated];
  • 49.065 [Assembling/Operating Amusement Ride While Intoxicated];
  • 49.07 [Intoxication Assault]; or
  • 49.08 [Intoxication Manslaughter];

(3) is charged with an offense for which punishment may be in­creased under Section 49.09 [Enhancements for Prior Intoxication Convictions]; or

(4) is charged with an offense for which punishment may be increased under Section 481.134(c), (d), (e), or (f) [School Zone Enhancements], Health and Safety Code, if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any one of those subsections[.]

But, like in family violence cases, this is not a true deferred. Now, under Penal Code section 49.09(g), “a person is considered to have been convicted of [DWI or BWI] if the person was placed on deferred adjudication community supervision for the offense[.]” In other words, the deferred may still be used for enhancement purposes.

Under disqualification three above, a person is not eligible for deferred on a DWI second. But—as some on the listserve have noted—if a prosecutor would be willing, a person could potentially obtain a deferred by pleading a second DWI as another DWI-First—i.e., by striking the enhancement language under Tex. Penal Code § 49.09 at the time of the plea.

Deferred Adjudication Interlock Requirements

HB 3582 also amended Article 42A.408, which requires ignition interlock devices as a condition of supervision.8 The new law makes three additions.

First, new subsection (e-1) makes ignition interlock devices a mandatory condition (subject to a financial exception, discussed below) when the judge grants a defendant deferred adjudication community supervision for an offense under 49.04 or 49.06 [DWI or BWI].

  • The device must be “installed on the motor vehicle owned by . . . or . . . most regularly driven by the defendant”; and
  • “the defendant [must] not operate any motor vehicle that is not equipped with that device.”

Second, (e-1) discounts interlock costs to indigent defendants. Upon a proper showing, the judge may find indigence and reduce interlock costs by:

  • waiving the installation fee; and
  • reducing monthly monitoring fees by half.

These discounts do not apply if your client blows hot. Any additional fees incurred if the device detects alcohol on the breath of the person attempting to operate the vehicle will not be reduced.9

Third, (e-2) provides an exception to the mandatory interlock condition. This exception applies if the judge:

  • based on a controlled substance and alcohol evaluation of the defendant,
  • finds and enters in the record,
  • that restricting the defendant to the use of an interlock is not necessary for the safety of the community.

Deferred Adjudication Nondisclosure Eligibility

HB 3582 amended the nondisclosure statutes to make a separate section governing deferred adjudications for certain intoxication offenses.10 The new statute, Government Code § 411.0726, applies exclusively to DWI and BWI deferred adjudications—without an affirmative finding described in Article 42A.105(f).11

Now, to receive a DWI or BWI nondisclosure, a person must

  • receive a discharge and dismissal under Article 42A.111, Code of Criminal Procedure;
  • satisfy the requirements of Section 411.074 [basic qualifications for all nondisclosures];
  • have zero prior convictions or deferred adjudications (except for traffic offenses punishable by fine only);12
  • wait two years from the date of completion of the deferred adjudication community supervision and the discharge and dismissal of the case;13 and
  • not have evidence presented “sufficient to the court demonstrating that the commission of the offense for which the order is sought resulted in a motor vehicle accident involving another person, including a passenger in a motor vehicle operated by the person seeking the order.”14

Mandatory Fines for Those “Finally Convicted”

Described as a “superfine,” HB 2048 adds new § 709.001 to the Transportation Code (Traffic Fine for Conviction of Certain Intoxicated Driver Offenses), which financially disincentivizes people “finally convicted” of an “offense relating to the operating of a motor vehicle while intoxicated”:15

  • $3,000 for the first conviction within a 36-month period;
  • $4,500 for a second or subsequent conviction within a 36-month period; and
  • $6,000 for a first or subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed.

What “finally convicted” means is less clear. According to the TCDLA Legislative Committee, both TDCLA and TDCAA agree the superfine only applies to final convictions—adjudicated jail sentences only.

But the actual language of the new statute suggests otherwise. Unlike other sentencing enhancements, simply probated—but not deferred—sentences still mean final convictions.16 Your client will still be assessed the fine on a straight probation. In short, if you plead your client guilty or a jury finds your client guilty of DWI, they could be facing a minimum mandatory fine of $3,000—at least until the “finally convicted” issue is settled.

Interestingly, the counties now responsible for enforcing these impressive fines keep only 4% of the money.17

Upon Showing of Indigence, Court Shall Waive Fines and Costs

Upon a finding of indigence, under § 709.001, the court shall waive all these new fines and costs.18 The statute specifically provides that the following documents can support a finding of indigence:19

  • Most recent federal income tax return showing the person’s household income does not exceed 125 percent of the applicable income level established by federal poverty guidelines;
  • Most recent pay stub showing the person’s household income does not exceed 125 percent of the applicable income level established by federal poverty guidelines; or
  • Proof of state, federal, or school assistance, including:
    • Food stamp program;
    • Special supplemental nutrition program for women, infants, and children;
    • Medical assistance program under Tex. Hum. Res. Code ch. 32;
    • Child health plan program under Tex. Health. Saf. Code ch. 62; and
    • National free or reduced lunch program.

Sayonara Surcharges (and Related Suspensions)

HB 2048 deletes the driver responsibility program from the Transportation Code.20 It both forgives all unpaid surcharges and reinstates licenses suspended due to unpaid sur­charges.

  • The repeal by this Act of Chapter 708, Transportation Code, applies to any surcharge pending on the effective date of this Act, regardless of whether the surcharge was imposed before that date.21
  • The Department of Public Safety shall reinstate any driver’s license that is suspended under Section 708.152, Transportation Code, as of the effective date of this Act if the only reason the driver’s license was suspended is a failure to pay a surcharge under Chapter 708, Transportation Code.22

Effective Dates

Both HB 3582 and 2048 took effect on September 1, 2019.23 The punishment amendments apply only to offenses committed on or after that date.24 Because the nondisclosure amendments are silent about their operation, unfortunately they are “presumed to be prospective in operation.”25

Important Takeaways

  • Interlock now required on all felony DWI-related offenses, and subsequent DWIs, but magistrates may not require if not in the interest of justice;
  • Deferred adjudication available only on DWI-first and under 0.15 offenses (plus numerous other disqualifying factors);
  • Changes to nondisclosure eligibility;
  • Mandatory massive fines upon “final convictions” for DWI; and
  • Surcharges and related suspensions are eliminated.

Social Media Evidence

I. Introduction

On October 17, 2009, at 11:49 a.m., Rodney Bradford posted “ON THE PHONE WITH THIS FAT CHICK . . . WHERER MY IHOP” on Facebook.2 At the same time, a few miles away, an armed robbery was happening. Bradford’s post, intended for his pregnant girlfriend, ended up saving him when it proved his whereabouts at the time of the robbery.3

Social media evidence is coming to a courtroom near you. A study done by the Pew Research Center (PRC) revealed that 85% of adults are internet users and 67% are smartphone users.4 Of those, 72% of online adults use Facebook, representing 62% of all American adults.5 And just when you thought social media could not possibly get any more popular, PRC reports, “the proportion of Instagram, Pinterest, and LinkedIn users who use each respective site daily has increased significantly since September 2014.”6 Consequently, we as criminal lawyers must know how to capture, admit, and challenge social media evidence in our cases.

II. How to Obtain Social Media Evidence

A. The Stored Communications Act

The biggest obstacle for litigants trying to obtain social media evidence is the Stored Communications Act (SCA) of 1986.7 The SCA prohibits:

1. “electronic communication service[s]”—like Facebook, MySpace, Twitter, and Snapchat8— from
2. knowingly divulging
3. “the contents of a communication”
4. “to any person or entity.”9

As an issue of first impression, a California federal district court held private messages, comments, and wall postings were protected by the SCA.10 Consistent with this holding, Facebook says the “contents of a communication” includes “messages, timeline posts, comments, photos, and videos.”11 So Facebook refuses to provide them except when required.

Due to its age, courts have complained about the inapplicability of the SCA.12 Because it was written prior to the arrival of the internet and the World Wide Web, courts have struggled to analyze problems involving modern technology like Facebook, Instagram, and Snapchat.

This may soon change. In February 2017, the House of Representatives passed the Email Privacy Act.13 It would amend 18 U.S.C. 2702, 2703, 2705 to eliminate unnecessary distinctions between companies that transmit electronic communications versus companies that only store it. More importantly, however, it would require a finding of probable cause before a warrant or court order could issue for a subscriber’s content.14 Until the Senate and president approve the amendments, we are stuck with the SCA in its current form. As explained below, this current form allows law enforcement to obtain content without a warrant or probable cause.15

1. SCA Exceptions for Non-Governmental Entities

In a typical criminal case, only when a subscriber consents will a non-governmental litigant be entitled to the subscriber’s communication content. Courts have gone as far as compelling parties to give consent in order to provide litigants access to their private Facebook content.16

But Facebook no longer provides user content, even with user consent. In 2009, Facebook published a guide explaining that it would provide user content with “the voluntary consent of the user,” consistent with the provisions of § 2702.17 But now, even with subscriber consent, Facebook may still refuse to comply. The current version of Facebook’s Information for Law Enforcement Authorities explains its operational guidelines for law enforcement officials seeking records.18 Facebook will disclose account records solely in accordance with their terms of service and applicable law, including the SCA and 18 U.S.C. 2701–2712. However, the “User Consent” section states: “[T]he user should be directed to obtain that information on their own from their account. For account content, such as messages, photos, videos, and timeline posts, users can access Facebook’s ‘Download Your Information’ feature from their account settings.”19

In short, the best way to obtain content of communications is to bypass the provider altogether and go directly to the subscriber.

2. SCA Exceptions for Law Enforcement

The SCA provides two avenues for law enforcement to obtain easier access to the content of communications—required disclosure pursuant to a valid warrant or a court order.

The SCA requires a social media provider to disclose the contents of a communication (A) without notice to the subscriber if the request is pursuant to a valid state or federal search warrant, or (B) with notice if the request is pursuant to a valid administrative, grand jury, or trial subpoena.20 But often law enforcement seeks delayed notice under 18 U.S.C. § 2705.

Alternatively, a state or federal court may order release of the content of communications when “the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”21 This is something more than reasonable suspicion but less than probable cause.22

To accommodate, each of the major social media providers has compiled a law enforcement guide on how to obtain the content of communications:

• Facebook: https://www.facebook.com/safety/groups/law/guidelines/
• Twitter: https://support.twitter.com/articles/41949
• Instagram: https://help.instagram.com/494561080557017/
• Snapchat: https://storage.googleapis.com/snap-inc/privacy/lawenforcement.pdf

B. Other Ways to Obtain Content

Subpoena the Social Media Provider

As explained above, the SCA hamstrings the ability of a non-governmental entity to obtain social media communication content. If you attempt to subpoena a social media provider, you will receive a letter from the provider detailing objections to your subpoena.23

Nevertheless, you may attempt to subpoena a social media provider using the steps below.24 Because the main social media providers are all located in California, you must comply with both Texas and California subpoena laws to “domesticate” your subpoena in California completing this checklist Michael Mowla put together:

1. Create a valid Texas subpoena duces tecum for the requested information
2. Complete Form SUBP-030, Application for a Discovery Subpoena for an Action25
3. Attach your Texas subpoena duces tecum to Form SUBP-030
4. Complete Form SUBP-035, Subpoena for Production of Business Records in Action Pending Outside California26
5. Prepare and enclose payment for the fee. Under Cal. Gov. Code § 70626(b)(5), the fee for Form SUBP-030 is $30
6. File the documents in the appropriate California superior court:

• Facebook: San Mateo County
• Instagram: San Mateo County
• Twitter: San Francisco County
• Snapchat: Los Angeles County

7. Once you receive the documents from the Santa Clara Superior Court, send to the appropriate social media provider:27

Facebook: 1601 Willow Road, Menlo Park, CA 94025, or by email to:
Instagram: Mail: Attn: Law Enforcement Response Team, 1601 Willow Road, Menlo Park, CA 94025, or by email to:
Twitter: Twitter, Inc., c/o Trust & Safety—Legal Policy, 1355 Market Street, Suite 900, San Francisco, CA 94103, or by fax: 1-415-222-9958 (attn: Trust & Safety—Legal Policy)
Snapchat: Custodian of Records Snapchat, Inc. 63 Market Street Venice, CA 90291, or by email to .

If you are seeking content (messages, comments, likes, postings, and tweets), the social media provider will most likely object in writing and disregard your subpoena. If your subpoena seeks “non-content information” about the account holder, the social media provider will most likely comply, assuming you properly domesticated your subpoena. But no one really cares that much about the non-content information. The best way—and the method preferred by providers—to obtain content is to subpoena the subscriber directly.

1. Issue a Subpoena Duces Tecum to the Subscriber

Most providers prefer non-governmental litigants seeking communication content to subpoena the subscriber directly. Even when law enforcement has obtained consent from a user, social media providers prefer law enforcement use that consent to direct the user to download and provide the content sought rather than requesting it from the provider itself:

Facebook: “If a law enforcement official is seeking information about a Facebook user who has provided consent . . . , the user should be directed to obtain that information on their own from their account.”28
Instagram: “If law enforcement seeks information about an Instagram user who has provided consent for the official to access or obtain the user’s account information, the user should be directed to obtain that information on their own from their account.”29
Twitter: “Registered Twitter users can obtain a download of Tweets posted to his or her Twitter account.”30

Each provider’s law enforcement guide provides steps on how to direct a user to download their own content.31 Because this download contains your profile information, you should keep it secure and be careful when storing, sending, or uploading it to any other services.

But if you are looking for likes, comments, and searches, that information may only be available by compelling the person to download their “Activity Log.” This is apparently only accessible by the actual user while signed into the account.32

2. Take Screenshots

By far the easiest way to capture social media evidence is to take a screenshot. Known by different names, “[a] screenshot, screen capture, screen cap, cap, screen dump, or screengrab is an image taken by a person to record the visible items displayed on the monitor, television, or other visual output device in use.”33 By taking a screenshot, you can see exactly what was posted, by whom, and typically when it was posted. You can then print the screenshot, take it to court, and mark it with an exhibit sticker. All that’s left is to overcome hearsay issues and authenticate the evidence, which is explained in Part VIII.B.

C. Identifying Information Required and What to Request From Social Media Provider

Each social media provider varies in the type of information available. Facebook, for example, collects all kinds of data. By contrast, Snapchat really does not save the data (“snaps”) transmitted over its airwaves. The most Snapchat can provide is a log of previous snaps that have been sent and received by a user. Conveniently, each provider delineates between what content is protected by the SCA and what data may be obtained by a proper subpoena. Below are examples of what to request from each provider and what information the provider will need from you to find the specific subscriber’s account content.34

1. Facebook

Information Required: The email address, user ID number (e.g., www.facebook.com/profile.php?id=1000000XXXXXXXX) or username (e.g., www.facebook.com/username) of the Facebook profile.35

What to Request: Basic Account Information—may be obtained through a valid subpoena or court order:

Name,
Length of service,
Credit card information,
Email address(es), and
Login/logout IP address(es).36

Non-content Account Information—may be obtained through “court order issued under 18 U.S.C. Section 2703(d)[:]”

Message Headers and
All login/logout IP address(es).37

Stored Account Content (Communications)—may only be ob­tained through a “search warrant issued under the procedures described in the Federal Rules of Criminal Procedure or equiva­lent state warrant procedures upon a showing of proba­ble cause[:]”

Messages,
Photos,
Videos,
Timeline posts,
Likes,
Comments, and
Location information.38

2. Twitter

Information Required: The @username and URL of the subject Twitter account in question (e.g., @safety and https://twitter.com/safety).39

What to Request: Basic Account Information—“A Twitter account profile contains a profile photo, header photo, background image, and status updates, called Tweets. In addition, the account holder has the option to fill out a location (e.g., San Francisco), a URL (e.g., twitter.com), and a short ‘bio’ section about the account for display on their public profile.”40

Non-content Private Account Information—“Non-public information about Twitter users will not be released to law enforcement except in response to appropriate legal process such as a subpoena, court order, or other valid legal process – or in response to a valid emergency request[:]”

Payment Information,
Log Data,
Location Information, and
Commerce Services.41

Stored Account Content— “Requests for the contents of communications . . . require a valid search warrant or equivalent from an agency with proper jurisdiction over Twitter[:]”

Tweets,
Direct Messages, and
Photos.42

3. Instagram

Information Required: “The username of the Instagram account in question on the date you viewed the account and details regarding specific information requested and its relationship to your investigation. Usernames are not static and we are unable to process requests that do not include the date viewed combined with the username. If you have access to an image’s short URL, you can go to the link and find the username at the top right next to the image. If you have access to the Instagram app, you can locate the username at the top of the account’s profile.”43

What to Request: Basic Subscriber Information—may be obtained through “a valid subpoena issued in connection with an official criminal investigation[:]”

“subscriber name,
account creation date,
email address, and
a signup IP address, if available.”44

Non-content Account Information—may be obtained through a valid state or federal warrant, or a proper court order:

photographs,
photo captions, and
other electronic communication information.45

Stored Content of Account— may only be obtained through a valid state or federal warrant issued upon probable cause:

Messages,
Photos,
Comments, and
Location information.46

4. Snapchat

Information Required: “Before sending a legal request to Snapchat, you must first identify the username of the account. If you are unable to locate a username, Snapchat can try—with varying degrees of success—to locate the account with a phone number or email address.”47

What to Request: Basic Subscriber Information—may be obtained through subpoena (including administrative or grand jury), civil investigative demand, court order, or federal or state search warrant:

Snapchat username,
Email address,
Phone number,
Snapchat account creation date, and
Timestamp and IP address of account logins and logouts.48

Log of Previous Snaps—may be obtained by court order or federal or state search warrant. Snapchat only retains logs of previous messages sent and received (does not include content, i.e., the actual picture or message sent).49

Message Content—only provided pursuant to federal or state search warrant. Most likely, Snapchat will not be able to provide actual “snaps” because “Snapchat deletes each Snap . . . once all recipients have viewed it. And even when a Snap remains unopened, it will be deleted 30 days after it was first sent.”50

D. Requests Must Be Narrowly Tailored

Discovery requests for content from a social media site must still comply with applicable discovery rules.51 In Mailhoit v. Home Depot, the defendant moved the court to compel the plaintiffs to produce a laundry list of social media evidence, including profiles, postings, messages, status updates, wall comments, causes joined, groups joined, and pictures posted or tagged with the defendant. The Mailhoit court concluded that nearly all of the requests failed the “reasonable particularity” requirement and therefore were not “reasonably calculated to lead to the discovery of admissible evidence,” as required by Fed. R. Civ. P. 34.52

No Texas criminal cases have touched on discovery of social media evidence. As explained above, this fight will most likely occur when a social media user is subpoenaed by a party to bring his or her entire social media identity in response to a sub­poena. Under Tex. Code Crim. P. art. 24.02, a witness can be required by a subpoena duces tecum to bring certain items to a scheduled trial or hearing. If either party files a motion to quash, the non-moving party must show that the testimony and documents or items subpoenaed are material, meaning “the testimony[, documents, and items] would be admissible and logically relevant to some matter at issue in the proceeding.”53

E. Do Not Advise Clients or Witnesses to Delete Data

Whatever you do, do not advise a potential witness to “clean up” their social media accounts before turning over properly requested discovery. In Allied Concrete Co. v. Lester, a Virginia personal injury case following a truck wreck that injured a husband and killed his wife, the husband’s lawyer, through his paralegal, advised his client to delete 16 pictures from his Facebook page before responding to discovery requests from the defense.54 One of the deleted photos depicted the grieving husband “holding a beer can while wearing a T-shirt emblazoned with “I ª hot moms.”55 The paralegal emailed the husband multiple times, saying things like, “We do NOT want blow-ups of other pics at trial so please, please clean up your facebook and myspace!” After a sizeable verdict—and the trial court ordered, at the defendant’s request, sanctions of $542,000 against the lawyer and $180,000 against the husband for attorney’s fees in discovering and proving the misconduct—the trial court further ordered remittitur of $4,127,000 of the husband’s $6,227,000 wrongful-death award.56

Although the remittitur was reversed on appeal, this case serves as a cautionary tale for all lawyers advising clients about requested social media evidence.57

For his part, Lester’s lawyer, Matthew B. Murray, resigned from the Allen, Allen, Allen & Allen law firm, and the Virginia Bar suspended his law license for five years.58

III. How to Admit Social Media Evidence

A. Must Be Relevant & Authentic

The initial question of whether the proponent of the evidence “has supplied facts that are sufficient to support a reasonable jury determination that the evidence he proffered is authentic,” is answered by the trial court.59 But the trial court itself “need not be persuaded that the proffered evidence is authentic.”60 Rather, after the trial court makes an initial determination that the proponent “has supplied facts that are sufficient to support a reasonable jury determination that the [proffered evidence] is authentic,” the jury (in a jury trial) answers the “ultimate question [of] whether an item of evidence is what its proponent claims” it to be.61

B. Ways to Authenticate Social Media Evidence

Texas’ leading case on authentication of social media evidence is Tienda v. State.62 The Court recognized “there is no single approach to authentication that will work in all instances.”63 So what will work?

Social media evidence is most commonly authenticated in three different ways:

1. By direct testimony from a witness with personal knowledge of the account and account holder;
2. By comparison with other authenticated evidence; or
3. By circumstantial evidence.64

Importantly, however, “the fact that an electronic communication on its face purports to originate from a certain person’s social networking account is generally insufficient, standing alone, to authenticate that person as the author of the communication.”65 The concern is two-fold: (1) Anyone can create a fake profile, and anyone viewing that profile would have “no way of knowing whether the profile is legitimate[;]” and (2) A person’s account can be accessed by anyone who obtains the user’s name and password.66

Because of the various types of social media evidence, the “best or most appropriate method of authenticating electronic evidence will often depend upon the nature of the evidence and the circumstances of the particular case.”67

C. Must Have More Than Just the Post

In Dering v. State, the trial court refused to admit Facebook posts offered by Dering on the grounds that the posts were not authenticated.68 Dering was charged with sexual assault of an el­derly person in Jones County, Texas.69 He moved to transfer venue due to negative publicity, including numerous inflammatory remarks from community members about Dering and his case on Facebook. The posts in questions were neither made by Dering nor posted to his account and were sponsored by Dering’s friend, who was neither the author nor recipient of the posts.70 The original post was created by a third party and commented on by other third parties, none of whom testified during any of the proceedings.71 The witness who sponsored the posts did recognize the original author and some of the subsequent commenters.72 The only evidence offered to authenticate the posts was the names and photos of the posters as shown on their accounts.73

The court held that the circumstantial evidence was insufficient to authenticate the Facebook posts, noting that this case is distinguished from the previous line of cases in that the party offering the evidence was neither the author nor recipient of the post.74 “The fact that an electronic communication on its face purports to originate from a certain person’s social networking account is generally insufficient, standing alone, to authenticate that person as the author of the communication.”75

There are at least two ways to fix the Dering problem. First, the original posts are usually by some news/media outlet. You could subpoena the news reporter who posted the information on the news site’s social media account. Today, news stations keep track of what is trending and can likely comment on whether or not this was a “hot” story in the particular jurisdiction. Second, you could subpoena each of the named users. If you’re not sure who they are or only have a username, you could subpoena their non-content information—i.e., name, email address, credit card information, and login IP address(es) with a properly domesticated Texas subpoena to the provider.76 Using the information you receive, you or an investigator can likely track down good contact information for the subscriber. Then, subpoena them to testify and ask them enough questions to establish whether they are responsible for the particular post. This should satisfy Tienda and overcome Dering.

IV. Challenges to the SCA & Social Media Evidence

If the SCA seems one-sided in favor of the government, it is. It only allows governmental entities to obtain user content by warrant or probable-cause court order.77 The Federal Rules of Criminal Procedure specifically allow only the government to seek a warrant.78 The Texas rules are silent, but it is unlikely a judge would issue a warrant requested by the defense. This leaves defendants needing subscriber content to prove a defensive theory in a tough place. There are a few challenges that can, and need to be, made to the SCA in its current form.

First, object that the SCA violates your client’s procedural and substantive due process rights. By allowing the government unilateral access to content evidence, this seems to violate the Fifth and Fourteenth amendments—especially if the content of the communications contain evidence of your client’s innocence.79

Second, object that your client is being denied the effective assistance of counsel. The Sixth Amendment imposes a duty on counsel to investigate and, when necessary, present defensive evidence.80 The federal statutory restriction on the defense’s access to the evidence prohibits defense counsel from fulfilling this constitutional duty.

Third, object that the SCA violates your client’s right to confrontation and compulsory process.81

Finally, object that the SCA violates the separation of powers provisions of the Federal Constitution.82 Courts have the inherent power to issue orders necessary to affect their jurisdiction.83 The legislature is not permitted to interfere with a court’s exercise of its jurisdiction.84

Fortunately but infrequently, courts started recognizing the sweeping nature of the scope of warrants and court orders for user data.85 Commonly, if the state or federal government obtained evidence from your client’s social media, they did it pursuant to an “any and all” warrant or court order.86 Undoubtedly this data contains all types of private communication, most of which will not be relevant to whatever law enforcement was initially after.

Watch out for “any and all” social media evidence warrants. You must object that the warrant or court order was overbroad and did not limit its request to the particular data it sought. For example, the government should limit message content to messages between specific users and times it has probable cause of evidence of wrongdoing.87 Social media providers already segregate data, so limiting requests is not difficult.

Interestingly, providers are starting to fight back. All providers post “transparency” reports for their users to show how many requests they receive, for what types of data.88 They all boast about how many government requests they refuse or narrow before fulfilling.89 Big corporations are banding together to assert the privacy rights of their users, hopefully reinvigorating the Fourth Amendment in the increasingly digital world.90

V. Conclusion

As long as social media continues to saturate our everyday lives, it will continue to play a huge role in our courtrooms. When a Rodney Bradford walks into your office, you must know how to obtain and authenticate social media evidence.91 The best ways to obtain social media content are to get a search warrant, subpoena the user directly, or have someone screenshot the particular post, tweet, message, or snap you want to use as evidence. By presenting sufficient evidence for a reasonable jury to link the accountholder to the account, and the particular social media, you have satisfied Tienda’s authentication test. On the other hand, constitutional challenges need to be made to the SCA in its current form. If the prosecution has social media evidence in its discovery, you must scrutinize the authorizing affidavit, specifically looking for overbroad requests lacking particularity.

Endnotes

1. Special thanks to Rudy Moisiuc, a third-year law student at Texas Tech University School of Law, for his help writing and editing this article.

2. Vanessa Juarez, Facebook Status Update Provides Alibi, CNN (Nov. 13, 2009), https://www.cnn.com/2009/CRIME/11/12/facebook.alibi/index.html?eref=rss_us.

3. Id.

4. Maev Duggan, Mobile Messaging and Social Media, Pew Research Center (Aug. 19, 2015), https://www.pewinternet.org/2015/08/19/mobile-messaging-and-social-media-2015/. An update of the study found Facebook continues to be America’s most popular social networking platform by a substantial margin: Nearly eight in ten online Americans (79%) now use Facebook, more than double the share that uses Twitter (24%), Pinterest (31%), Instagram (32%), or LinkedIn (29%). Shannon Greenwood, Andrew Perrin, & Maeve Duggan, Social Media Update 2016, Pew Research Center (Nov. 11, 2016), https://www.pewinternet.org/2016/11/11/social-media-update-2016/.

5. Id.

6. Id.

7. 18 U.S.C. §§ 2701–12

8. “The SCA defines an ECS [Electronic Communication Service] provider as ‘any service which provides to users thereof the ability to send or receive wire or electronic communications.’” Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 972 (C.D. Cal. 2010) (quoting 18 U.S.C. § 2510(15)). The Crispin court also drew a distinction between whether entities qualified as ECSs or Remote Computing Services (RCS), concluding that an entity providing messaging services is an ECS for messages that were unopened and unread by the recipient, but the same entity transforms to an RCS after the messages were opened, read, and retained by the recipient. Id. at 987. The opinion has been widely criticized as “applying outdated law to new technology.” Rick E. Kubler & Holly A. Miller, Recent Developments in Discovery of Social Media Content, at 7, available at https://goo.gl/jGEZkb (last visited Feb. 24, 2017) (citing Joshua Briones and Ana Tagvoryan, Social Media as Evidence 40 (2013)).

9. 18 U.S.C. § 2702(a)(1) (emphasis added). Separately, the SCA also prohibits: 1. electronic communications services from 2. knowingly divulging, 3. “a record or other information pertaining to a subscriber to or customer of such service,” 4. “to any governmental entity.” Id. § 2702(a)(3) (emphasis added).

10. Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 991 (C.D. Cal. 2010).

11. Letter from Facebook Security to author (Oct. 9, 2013) (on file with author) [hereinafter Facebook Objections].

12. See, e.g., Konop v. Hawaiian Airlines, 302 F.3d 868 (9th Cir. 2002).

13. Email Privacy Act, H.R. 387 115th Cong. (2017), available at https://www.congress.gov/bill/115th-congress/house-bill/387/text. The bill has not yet been voted on by the Senate.

14. Id.

15. See Part II.A.2 infra.

16. See, e.g., Romano v. Steelcase, 907 N.Y.S.2d 650, 654 (N.Y. Sup. Ct. 2010); Kubler & Miller, Recent Developments in Discovery of Social Media Content, at *8.

17. Facebook Law Enforcement Guidelines, Facebook (2009), available at https://www.eff.org/files/filenode/social_network/facebook2009_sn_leg-doj.pdf (last visited Apr. 17, 2017).

18. Information for Law Enforcement Authorities, Facebook, https://www.facebook.com/safety/groups/law/guidelines/ (last visited Apr. 17, 2017).

19. See https://www.facebook.com/help/131112897028467. Users can also view recent IP addresses in their Account Settings under Security Settings/Active Sessions. Id. Users do not have access to historical IP information without legal process. Id.

20. 18 U.S.C. § 2703(b).

21. Id. § 2703(d).

22. The phrase “reasonable belief” first appeared in Payton v. New York, 445 U.S. 573, 576 (1980) (discussing police entry into home to make a warrantless arrest). Since Payton, legal scholars have debated its meaning but, at bottom, it is at least the amount of proof required for a detention under Terry v. Ohio, and “may require something more than an investigative stop based on reasonable suspicion.” Duran v. Indiana, 930 N.E.2d 10, 16 (Ind. 2010).

23. See Facebook Objections, supra note 14.

24. Special thanks to Michael Mowla of Cedar Hill for researching and compiling this list of steps to domesticate a Texas subpoena in California.

25. https://www.courts.ca.gov/documents/subp030.pdf.

26. https://www.courts.ca.gov/documents/subp035.pdf.

27. Each of the providers listed includes a caveat on their guides that they will accept service for “convenience,” but that they do not waive objections to jurisdiction or proper service.

28. Information for Law Enforcement Authorities, Facebook, https://www.facebook.com/safety/groups/law/guidelines/ (last visited Apr. 17, 2017).

29. Information for Law Enforcement, Instagram, https://help.instagram.com/494561080557017/ (last visited Apr. 17, 2017).

30. Twitter, however, “does not currently offer users a self-serve method to obtain other, non-public information (e.g., IP logs) about their Twitter accounts. If a Twitter user requires his or her non-public account information, please direct the user to send a request to Twitter via our privacy form. We will respond with further instructions.” Guidelines for Law Enforcement, Twitter, https://support.twitter.com/articles/41949#8 (last visited Apr. 17, 2017).

31. EInformation for Law Enforcement Authorities, Facebook, https://www.facebook.com/safety/groups/law/guidelines/ (last visited Apr. 17, 2017).

32. Accessing Your Facebook Data, Facebook, https://www.facebook.com/help/405183566203254?helpref=faq_content (last visited April 17, 2017). For more information about how to download data, and what is included, see Id.

33. Screenshot, Wikipedia, https://en.wikipedia.org/wiki/Screenshot (last visited April 17, 2017).

34. To find out what is actually collected, however, you should take a look at the privacy policies of the specific social media service for the information you seek.

35. Information for Law Enforcement Authorities, Facebook, https://www.facebook.com/safety/groups/law/guidelines/ (last visited April 17, 2017).

36. Id.

37. Id.

38. Id.

39. Guidelines for Law Enforcement, Twitter, https://support.twitter.com/articles/41949 (last visited April 17, 2017).

40. Id.

41. Id.

42. Id. For other information to request, see Twitter Privacy Policy, Twitter https://twitter.com/privacy?lang=en.

43. Information for Law Enforcement, Instagram, https://help.instagram.com/494561080557017 (last visited April 17, 2017).

44. Id.

45. Id.

46. Id.

47. Snapchat Law Enforcement Guide at 5, Snapchat, https://www.snapchat.com/static_files/lawenforcement.pdf?version=20150604 (last visited April 17, 2017).

48. Id.

49. Id. at 6.

50. Id.

51. Mailhoit v. Home Depot, 285 F.R.D. 566 (C.D. Cal. 2012).

52. Id.

53. George E. Dix & John M. Schmolesky, 43 Tex. Prac., Criminal Practice & Procedure § 32:26 (3d ed.) (citing various cases on materiality).

54. Allied Concrete Co. v. Lester, 736 S.E.2d 699, 702 (Va. 2013).

55. Id. at 703.

56. Id.

57. Id. at 708–09.

58. Agreed Disposition Memorandum Order, In the Matter of Matthew B. Murray, No. 11-070-088405 and 11-070-088422 (Va. State Bar Disciplinary Board filed July, 2013), available at www.vsb.org/docs/Murray-092513.pdf.

59. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012) (discussing Tex.R. Evid. 401, 402, 901).

60. Id.

61. Id.

62. Id. at 633. In Tienda v. State, three MySpace pages, their accompanying subscriber reports, and affidavits subpoenaed from MySpace were offered as evidence against a defendant who was a suspect in a drive-by shooting. Id. at 635. The court looked at four specific sets of facts involving the account in determining whether a rational jury could find that the MySpace page was created and posted to by the defendant: (1) that the accounts had pictures posted to them displaying the defendant’s unique tattoos, eyeglasses, and earring; (2) that at least one account referenced music played at a victim’s funeral; (3) that the accounts made references to the defendant’s associated gang; and (4) messages sent from the account referring to (a) specific shootings involved, (b) a party the defendant believed was a ‘‘snitch’’, and (c) the ankle monitor defendant had been wearing for the past year, all of which were sent from accounts of users with defendant’s name or nickname, and sent from an email address of defendant’s name. Id. at 645. The court held that there was “ample circumstantial evidence . . . to support a finding that the MySpace pages belonged to the appellant and that he created and maintained them.” Id. See also United States v. Barnes, 803 F.3d 209, 215 (5th Cir. 2015).

63. Tienda, 358 S.W.2d at 640 (citation omitted).

64. Id. at 638.

65. Dering v. State, 465 S.W.3d 668, 671 (Tex. App.—Eastland 2015, no pet.) (citing Tienda, 358 S.W.3d at 642).

66. Id.

67. Tienda, 358 S.W.3d at 639.

68. Dering v. State, 465 S.W.3d 668, 670 (Tex. App.—Eastland 2015, no pet.).

69. Id.

70. Id.

71. Id.

72. Id.

73. Id. at 673.

74. Id.

75. Id.

76. See supra, Part II.B.1.

77. 18 U.S.C. §§ 2703 Required Disclosure of Customer Communications or Records.

78. Fed. R. Crim. P. 41(b).

79. Cf. Brady v. Maryland, 373 U.S. 83, 87 (1963).

80. Strickland v. Washington, 466 U.S. 668, 680 (1984).

81. Cf. Davis v. Alaska, 415 U.S. 308, 320, 94 S. Ct. 1105, 1112, 39 L. Ed. 2d 347 (1974) (“The State could have protected Green from exposure of his juvenile adjudication in these circumstances by refraining from using him to make out its case; the State cannot, consistent with the right of confrontation, require the petitioner to bear the full burden of vindicating the State’s interest in the secrecy of juvenile criminal records.”); Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 1923, 18 L. Ed. 2d 1019 (1967) (“Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.”).

82. Stern v. Marshall, 131 S. Ct. 2594, 2620 (2011) (“A statute may no more lawfully chip away at the authority of the Judicial Branch than it may eliminate it entirely.”).

83. See Heckers v. Fowler, 69 U.S. 123, 128, 17 L.Ed. 759 (1864) (explaining that federal courts have authority to make all necessary rules for orderly conduct of their business provided such rules are not repugnant to the laws of the United States); see also Degen v. United States, 517 U.S. 820, 827, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996) (“A federal court has at its disposal an array of means to enforce its orders, including dismissal in appropriate case; its powers include those furnished by federal rule, and by inherent authority”); see, e.g., Fed. R. Civ. Proc. 37, 41(b); Tex. Gov’t Code § 21.00l(a).

84. Id.; cf. Williams v. State, 707 S.W.2d 40, 45–46 (Tex. Crim. App. 1986) (citing Tex. Const. art. V) (“[T]he Legislature may not interfere with the functions and powers of the judicial branch so as to usurp those functions and powers.”).

85. United State v. Comprehensive Drug Inc., 621 F.3d 1162, 1176 (9th Cir. 2010) (“This pressing need of law enforcement for broad authorization to examine electronic records, so persuasively demonstrated in the introduction to the original warrant in this case [] creates a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant.”).

86. See generally, Adam M. Gershowitz, The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches, 69 Vand. L. Rev. 585 (2016).

87. See Id. at 633, “If there is probable cause for incriminating text messages, but not for photos, videos, or any other data on the phone, then magistrates should limit the search warrant to the text messaging application, rather than the whole phone.”

88. E.g., United States Law Enforcement Requests for Data, Facebook, https://govtrequests.facebook.com/country/United%20States/2016-H1/.

89. E.g., 2016 Transparency Report: January to June 2016, Dropbox, https://www.dropbox.com/transparency.

90. See Microsoft Corp. v. United States, 829 F.3d 197 (2d Cir. 2016); see also Brief of Amici Curiae Amazon.com, Box, Cisco Systems, Dropbox, Evernote, Facebook, Google, Microsoft, Mozilla, Nest, Pinterest, Slack, Snapchat, Whatsapp, and Yahoo in Support of Apple, Inc. In the Matter of the Search of an Apple iPhone, No. CM 16-10 (SP) (C.D. Cal. 2016), available at http://images.apple.com/pr/pdf/Amazon_Cisco_Dropbox_Evernote_Facebook_Google_Microsoft_Mozilla_Nest_Pinterest_Slack_Snapchat_WhatsApp_and_Yahoo.pdf.

91. Juarez, Facebook Status Update Provides Alibi, supra note 5.

Winning Opening Statements

You can have the greatest close in the world, but if you haven’t won the case by the time that you get to the close, it’s too late. The opening statement is where you win the trial.

—Gerry Spence

Is an opening statement really necessary?

In varying degrees, social scientists assert that 65 to 90 percent of jurors make up their minds after hearing the opening statement.1 It does not take a rocket scientist to figure out that if, empirically speaking, this many jurors are deciding a case based in large part on the opening statement, the chances of a first-place finish are drastically, even fatally, reduced by not giving one. After the prosecutor has told the jury all of the terrible things your client has done, this is your first opportunity to show there is another side to the story. As Paul Harvey said, it is your chance to tell “the rest of the story.” In short, not only must you give one, but it also must be better than the prosecutor’s.

So how does this article help me?

Taking tidbits from famous cases tried by legendary lawyers, this article seeks to provide some insight into how the lions of the trial bar give opening statements. Those cases, the charges, and the lawyers are as follows:

 New York v. Sean Combs (aka Puff Daddy) | Unlawful Gun Possession and Bribery | Benjamin Brafman2
Texas v. Robert Durst
| Murder | Dick DeGuerin and Mike Ramsey3
United States v. Terry Nichols
| Conspiracy to Use a Weapon of Mass Destruction and Murder | Michael Tigar4
Oregon v. Sandy Jones
| Murder | Gerry Spence5
Virginia v. Marv Albert
| Sexual Assault | Roy Black6

Drawing on concepts from these legends, and various other resources, what follows is a synthesis of how to give a powerful, effective, and (hopefully) winning opening statement.

How do I structure my opening statement?

Like many things, getting started can be the most difficult task. I find myself with so much to say, but I am unsure how to say it, usually resulting in a self-imposed writer’s block. This formula helps me get my thoughts down into an understandable, cohesive format:

 Power Statement/Sound Bite/Why My Client Wins: Typically between one and three gripping, powerful sentences getting to the heart of your case.
 The Big Picture: Ten sentences or less tying in your power statement and providing a little more detail about your theory and giving context to your power statement.
 Cast of Characters: Introduce the main players and provide any relevant background.
 Tell the Story: Fill in all of the details that illuminate your power statement and theory.
 Conclude: Call the jury to action and empower them to say “Not Guilty.”

The opening statement you ultimately give may or may not end up being in this format. This just helps me organize my thoughts. After getting my thoughts out in this format, a natural adjustment usually occurs. The story does not have to be linear or in chronological order. In fact, different parts of the story may be better told in another format. For example, a circular story—one that begins and ends in the same place—may be most effective. After organizing your thoughts in this way, a natural structure will emerge. For almost any case, though, the above format will work.

Write it out, but do not read it. I type almost everything, but for some reason when I make my first outline and write my first draft, I am more creative if I handwrite my opening. From there, I will type it on the computer. Then, I will type a final one- or two-page list of bullet points. Much of what I end up saying at trial is what I wrote originally, but with bullet points—as opposed to reading word for word—the delivery is much more genuine.

Power Statement/Sound Bite/Why your client wins

You must be able to distill your case down to one to three sentences that tell the jury why you win. A wealth of research reveals that jurors will remember best what they hear first and last—i.e., primacy and recency.7 Powerful opening lines are critical. Two examples illustrate this concept.

First, in Puff Daddy’s trial, one of the major issues was dealing with Puff Daddy’s celebrity. Brafman began his opening like this:

Ladies and gentlemen, this is Sean “Puff Daddy.” You can call him Sean, you can call him Mr. Combs, you can call him Puff Daddy, or even just plain call him Puffy, but what you cannot do in this case, you cannot call him guilty, because from the facts, from the evidence, from the law, you will conclude that he is not guilty. It’s that simple.8

The jury ultimately agreed and acquitted.

Second, in Terry Nichols’ trial, the obvious goal was to save his life. Tigar’s opening statement was brilliant in playing on the fact that Nichols was not present for the bombing because he was at home with his family, tying in this one-sentence phrase throughout: “Terry Nichols was building a life, not a bomb.”9 Nichols ultimately received a life sentence.10

Hopefully it goes without saying that knock-knock jokes are not a good way to start your opening statement.11 But however you do it, make sure to say something that will grab the jury’s attention.

Elaborate: Give the big picture

At this point, you have the jury’s attention, but to keep it, you must provide context and give a little more detail about a critical moment in the case—one that if understood in any other way may cause you to end up with a second-place finish. You should tie it in to your power statement, if possible. Here is an excellent example from DeGuerin’s opening in the Durst trial:

[Power Statement:] May it please the court. Self-defense/ accident, and no motive whatsoever. Why did Morris Black die? How he died will not be an issue. Morris Black died as a result of a life-and-death strug­gle over a gun that Morris Black had threatened Bob Durst with. And as they struggled, the gun went off and shot Morris Black in the face.

[Big Picture Elaboration:] Bob had arrived unexpectedly at the apartment that he had rented in Galveston, a rundown $300-a-month apartment that he rented, dressed as a woman named Dorothy Ciner, a name from his past. He arrived unexpectedly. He caught Morris Black in his apartment. And he knew, because he knew Morris Black, that Morris Black likely had a gun. And he felt both fear and anger because he had kicked Morris Black out of his apartment. He knew Morris Black was dangerous.12

But do not go too far. You want the jury to hunger for more of the story. Keep them on the edge of their seats. Fill in the details after you introduce your client and the parties—in the best light possible for you.

Introduce the cast of characters

Only introduce the main players. Obviously your client will be the main focus in most cases, so we will start there.

Humanize your client, but be careful. As Gerry Spence says, let them be real people; real people have faults. No matter who your client is or what they may have done, he or she possesses some qualities that people will identify with. Explore how to get these good character traits before the jury, without opening unwanted doors. Again, borrowing from Spence with a few additions, here are some examples:

 Hard-working
 Honest
 Simple
 Not the type to be on welfare
 Worked with kids
 Cared about the poor
 Involved in church

But beware of Bass v. State, 270 S.W.3d 557 (Tex. Crim. App. 2008). In Bass, the defendant was a pastor at a church accused of indecency with a young girl on church property. During opening statement, his attorney characterized Mr. Bass as a “genuine,” “real deal” pastor, saying the allegations were “contrary to his character” and “not worthy of belief.” Id. at 557. The attorney went on to say the allegations were “pure fantasy” and “pure fabrication,” among other things. The trial court then allowed evidence of two extraneous uncharged offenses of extremely similar character, and the Court of Criminal Appeals ultimately upheld this type of evidence during the State’s case-in-chief. Id. at 563 (“Our case law supports a decision that a defense opening statement, like that made in this case, opens the door to the admission of extraneous-offense evidence, like that admitted in this case, to rebut the defensive theory presented in the defense opening statement”). Moral of the story: If you have extraneous offenses, be extremely careful.

For the other major players, try to theme the witnesses. Sometimes it is as simple as calling them by their title. For example, in a DWI, very rarely will you need to help jurors remember multiple officers; calling the lone officer by his or her name works just fine. But in multiple-officer scenarios, or for non-law enforcement, jurors are not going to remember names at the outset, but they will remember titles:

 He was the detective who never made a mistake;
 She was the witness with incredible vision;
 He was the patrol officer who always went by the book.

After setting up the critical issues and introducing the characters, you are ready to give the jury what they have been waiting for on the edge of their seats—the “rest” of your story.

Tell your story

To do this, according to Spence, you must first figure out where the injustice is in the case—what is it that turns you on as a human being?13 Where do you get passionate about the case?14 Because, “if you don’t care, and if you’re not passionate about your client and your case, how can you expect a jury to care and be compassionate about your case?”15 Put simply, caring is contagious. Once you figure out what turns you on, a theme will emerge.

And you must have a theme. Trials are story battles. Everyone loves a good story—one with any of these types of overarching themes:

 Heroes vs. Villains
 Good vs. Evil
 Abusive vs. Fair
 Tough vs. Terrorized
 Greedy vs. Sharing
 Manipulative vs. Trusting

We all know that sometimes it is hard to find good things to say about the facts of your case. In that scenario, tell the jury what it will not hear. In other words, contrast the facts of your case with just how bad it could really be. For example, in a plain vanilla traffic stop DWI, tell the jury about all of the drunk driving they expect to see but will not:

You will not hear about a car that was weaving and serving all over the road; you will not hear about a car that spent more time on the sidewalk than on the street; you will not hear about a driver so drunk that he wrapped his car around a tree. None of that. Instead, you will hear about John, who drove perfectly normally but stopped too far over the line at a stop sign—according to the officer who arrested him. That’s it.

Word choice is important. Opening statements that impress lawyers will be misunderstood by jurors. So use ABCs, not legalese—or KISS, Keep It Simple Stupid. Speak in language the jurors will understand—no lawyer talk.

Similarly, lose the “I believe the evidence will show,” or “I think you will hear,” or “we hope to bring you.” If you believe, think, and hope you will prove something, the jury is going to give you less credibility—probably the most important thing the lawyer has going. You will also probably end up believing, thinking, and hoping you win your appeal. Of course, if the prosecutor objects and the judge forces you, you can use these phrases, but do it somewhat cynically. The jurors will think it is just as stupid as you should. Finally, do not tell the jurors that what you say is not evidence; this is another thing that makes jurors wonder why they are listening anyway.

Use trilogies to drive the point home. Some powerful three-word combos:

 Describing interactions between police and our clients: abused, taken advantage of, violated;
 No loss of faculties: reacted normally, walked normally, talked normally;
 Discrediting state’s science: inaccurate, unreliable, and unscientific;
 Reasonable doubt: wavering, unsettled, unsatisfied.

As an example, in describing Durst having Asperger’s as a reason for why he continuously “retreated” from and “returned” to Galveston after throwing the deceased’s body into the bay, Ramsey said:

And those people who are weak to begin with, who are broken to begin with, who are troubled to begin with, are much more likely to drift into that kind of state of reaction, an attempt to retreat.16

Use “devil words” to describe the state’s evidence. This concept comes from Dr. Sunwolf’s book Practical Jury Dynamics.17 Some examples of devil words you can use:

 Contaminated
 Compromised
 Corrupted
 Infected
 Sloppy
 Dirty
 Garbage
 Invalid
 Rules were Violated, Trampled, Disregarded, and Ignored.18

Whatever you do, in the opening and throughout the trial, do not use police words.19 Figure out their lingo, and adjust it to your liking. For example, in a DWI, how many times do you read reports using words that make things sound much worse than they really are, or that are completely misleading? Here are some alternative words and phrases you can use:

 Standardized Field Sobriety Tests: Roadside Exercises, Coordination Exercises, Stupid Human Tricks;
 Refuse: Conscious, thoughtful decision;
 Intoxilyzer 5000 / Instrument: Breath box or government breath machine;
 Horizontal Gaze Nystagmus Test: Eye Test or the Trust-me Test;20
 Walk-and-Turn Test: Walk the fake balance beam on the side of the road;
 One-leg-stand Test: Balance on one leg.

Sometimes, it is as easy as adding the word “government.” Calling a blood test the government blood test adds a level of skepticism, especially if you set it up properly during your voir dire.

Use those new words, and paint a word picture. Like Disney says, be an “Imagineer.”21 Use descriptive adjectives, action verbs, and colorful phrases. Take the jury to the moment, as if they were there themselves. In the Durst trial, for instance, one of the major themes was separating the shooting, which was self-defense (the jury agreed and acquitted), from what happened after, Durst dismembering and discarding the body in Gal­veston Bay. To drive this point home, the lawyers split the opening—DeGuerin telling what happened before the shooting, and Ramsey telling what happened after. In concluding his portion of the opening, DeGuerin described Durst’s desperation after realizing what he had just done:

And he went down to Morris [the deceased], and he knelt down, and he said, “Morris, Morris.” And Morris didn’t move. And he could tell Morris was dead. And he thought, “Morris is dead. He’s shot with my gun. He’s shot in my apartment that I rented as a mute woman wearing a wig because I was hiding from an investigation in New York. They are never going to believe me.” He went to his bed, and he sat down and put his head in his hands and he descended into the depths of despair.22

In doing this, sometimes it is difficult to invite visualization of a scene where you were not—and would rather not be—present. To help me, I think about the five senses and what would stick out: What did the witness see? What did the witness hear? What did the witness smell? What did the witness touch (and what did it feel like)? What did the witness taste (probably the least likely to help, but sometimes can). I have found that this technique helps me come up with a much more descriptive version of the scene.

Embrace your weaknesses. If the case you are trying were perfect, you would not be trying it. You cannot run from your weaknesses; you have to confront them head on. Our brother defense attorney in Fort Worth, Wm. Reagan Wynn, calls it “hugging the turd.” If facts are in dispute, tell the jury. Tell the jury your position and your opponent’s, and explain why your position is better. If you have facts that cannot be explained, tell the jury that too. According to Spence, “There may be regrets that need be expressed, apologies made and shared with the jurors. But the overriding justice of the case still rests with our side.”23

If you suspect disputes will arise due to changing or evolving stories, you could handle it like Brafman in the Puff Daddy trial. There, the state’s star witness was the driver of Puff’s Lincoln Navigator. He had sued Puff Daddy already, and the prosecution claimed that Puff had tried to bribe him not to testify that Puff threw the gun out of the car window. Brafman primed the jurors for his impeachment:

And [Mr. Fenderson, the prosecution’s star witness,] will tell you, because now he’s stuck with this statement, and if he deviates from it I’m going to put it in his face, and [remind him that] when he previously testified under oath, [he testified differently than we expect him to now].24

As is commonly the case when someone is falsely accused of child sexual abuse, you must confront the fact that a convincing child will come to the witness stand and testify. Here is one way:

When Abigail [the complaining witness] testifies, you’re going to hear a child that is committed to her story. You’re going to hear a very intelligent, articulate young lady that, in her own mind, has convinced herself that these terrible things really happened to her. But what you’re also going to hear is how she has told this story over, and over, and over again. And the State’s expert forensic interviewer will tell you is that repeatedly telling a story causes a child, especially a young one with an impressionable memory, to begin believing things that are not true. The state’s expert will also explain to you how children come up with these terrible stories in the first place—a concept called suggestibility. When repeatedly questioned by a parent, young, impressionable children will pick up on cues that they are not giving the right answers. When Mom suggests an action and a person, like, “Did Ted (the person) touch your private parts (the action)?”—instead of asking open-ended questions so the child can tell the story—children begin to integrate these things into their own minds, and begin thinking this really happened. Even when nothing inappropriate ever occurred, and even when Ted is totally innocent.

Finally, consider telling the story from a perspective other than your client’s, and always tell it in the first person. Identify which critical witness the jury would most identify with, and tell the story from that witness’ perspective. Either way you tell the story, however, try to tell it in first person. Transition by saying at the beginning, “Imagine I am Joe.” And then speak as if you were Joe and tell what you saw, felt, touched, smelled, etc., or transition by saying, “If you were in Joe’s shoes, you would hear him say . . .” Differing perspectives and first-person point of view are much more effective in taking the jury to the moment.

Be the most credible person in the courtroom

This deserves its own section because it is so critical. Your credibility is the most important thing you have. Tell a compelling, convincing story, but do not overdo it. Make sure your story is true—and that you can prove it. If not, and the prosecutor capitalizes on exposing the defense lawyer’s questionable credibility, the case is lost. Whatever you do, do not overpromise and underdeliver.

Conclude, empower, and call the jury to action

There are many different ways to conclude. Remember the recency effect—jurors will recall most what you tell them at the end of your opening. As you will see from the final three examples, impassioning and empowering the jurors works best.

Brafman concluded his opening in Puff Daddy’s trial this way:

We have an awesome responsibility. Yours is more awesome. You are sitting in judgment in a case where, at the end of the trial, you will conclude that a man has been falsely accused of a serious felony. You asked for it. You could have been excused. You said you would be fair. We trusted you then, and at the end of the case we will trust in your verdict. We trust that your verdict will be a verdict of not guilty.25

And Roy Black finished his opening in Marv Albert’s trial by suggesting the only way the jury would convict him would be because of his celebrity:

You will see that Marv Albert did nothing with Vanessa Perhach other than what had been done many, many times before and [in] many, many different places. It was all consensual. There was no forcible sodomy. There was no forcing of oral sex. Any type of biting was done voluntarily and consensually. And it was simply not a crime. And hopefully in this country, being successful and being a celebrity and being well known is not enough to convict you of a crime.26

Finally, Gerry Spence shows exactly how to empower the jury to do justice:

At the conclusion of this trial, I am going to ask you to do what no one else in this case has done for Mrs. Jones. I am going to ask you to protect her—to protect her as a citizen under the constitution. I am going to ask you at the conclusion of this case not to leave her any longer at the mercy of the state. I am going to ask you to rescue her from the mercy of the prosecution. That, ladies and gentlemen, is the great calling and the great function of an American jury. That’s what we’re here to do today—to do justice. Thank you very much.27

One final note on resources and borrowing

Nearly none of the material in this paper is my original thought. Take a look at the books and materials in notes 3 through 7, supra, for the full context of the things I have cited in this paper. More importantly, figure out who the best lawyers are and “borrow” ideas, concepts, or word-for-word phrases from them. Every lawyer I have ever told that I stole something from them has been anything but offended; in fact, most are flattered to hear this—because they have done it themselves. We are all in this together, and we need to help each other. With that frame of mind, our clients and criminal justice system will be better off.

I would like to thank my partner and outstanding trial lawyer, Dan Hurley, who put together the original presentation from which most of the material for this paper was taken.

Endnotes

1. Gerry Spence, Win Your Case: How to Present, Persuade, and Prevail—Every Place, Every Time (St. Martin’s Griffin 2006), at 128; Dr. Donald E. Vinson, “How to Persuade Jurors,” ABA Journal, The Lawyer’s Magazine (2014), http://vinsoncompany.com/pdf/How_to_Persuade_Jurors.pdf; Robert B. Hirschhorn, “Opening Statements: You Never Get a Second Chance to Make a First Impression,” 42 Mercer L. Rev. 605 (1991), http://www.kearneywynn.com/Articles/Opening-Statements.pdf at 3.

2. Joel J. Seidemann, In the Interest of Justice: Great Opening and Closing Arguments of the Last 100 Years (HarperCollins Publishers, Inc. 2004), at 92.

3. Ray Moses, “Defense Opening Statement: Robert Durst Murder Case,” Criminal Defense Homestead (Jul. 1, 2014, 4:37 PM), available at http://criminaldefense.homestead.com/Durst.html.

4. http://www.uchastings.edu/academics/faculty/adjunct/sotorosen/classwebsite/docs/Rosen-Great-OpeningStatements-Fall2011.pdf.

5. Videotape: “Spence in Trial: How to Win with Your Opening Statement” (produced, edited, and directed by Michael Shinn, Gerry Spence 1993).

6. Seidemann, supra note 2, at 68.

7. See, e.g., http://en.wikipedia.org/wiki/Serial_position_effect.

8. Seidemann, supra note 2, at 92.

9. http://www.uchastings.edu/academics/faculty/adjunct/sotorosen/classwebsite/docs/Rosen-Great-OpeningStatements-Fall2011.pdf.

10. http://www.cnn.com/2013/03/25/us/terry-nichols-fast-facts/.

11. Adam Goldberg, “George Zimmerman’s Lawyer Tells ‘Knock-Knock Joke’ at Trial,” Huffington Post (Jul. 7, 2014, 2:17 pm), http://www.huffingtonpost.com/2013/06/24/george-zimmerman-knock-knock_n_3491367.html.

12. Moses, supra note 4, http://criminaldefense.homestead.com/Durst.html.

13. Videotape: “Spence in Trial: How to Win with Your Opening Statement” (produced, edited, and directed by Michael Shinn, Gerry Spence 1993).

14. Id.

15. Id.

16. Moses, supra note 4, http://criminaldefense.homestead.com/Durst.html (emphasis added).

17. Dr. SunWolf, Practical Jury Dynamics 2: From One Juror’s Trial Perceptions to the Group’s Decision-Making Processes (Matthew Bender & Company, Inc. 2007), at 174, 242.

18. Thank you, Deandra Grant, for teaching me about this concept.

19. Thank you, Lewis Dickson, for teaching me about how not to fall into this trap.

20. Thank you, Mark Thiessen, for teaching me about this gem.

21. http://en.wikipedia.org/wiki/Walt_Disney_Imagineering.

22. Ray Moses, “Defense Opening Statement: Robert Durst Murder Case,” Criminal Defense Homestead (Jul. 1, 2014, 4:37 pm), http://criminaldefense.homestead.com/Durst.html.

23. Joel J. Seidemann, In the Interest of Justice: Great Opening and Closing Arguments of the Last 100 Years (HarperCollins Publishers, Inc. 2004), at 130.

24. Id. at 103.

25. Seidemann, supra note 3, at 75.

26. Id. at 108.

27. Id.