L.T. “Butch” Bradt

L.T. “Butch” Bradt is a general practitioner in Sugar Land. Licensed for 38 years and in 23 different courts, he has handled cases throughout the country. Recognized as an experienced trial and appellate attorney, he handles criminal, tax, civil, corporate, probate and § 1983 matters. On the criminal side, he has successfully defended everything from speeding tickets to capital murder.

DNA Evidence—New Tactics to Use in Challenging

Who, in defending a case involving DNA evidence, has not heard testimony from the State’s expert to the effect that there is a one-in-3 billion chance of a match to someone other than the defendant? It does not matter that all 13 alleles do not match; the testimony is essentially the same. Invariably.

Powerful evidence. It instantly creates the impression in the mind of the jury that it would take over 3 billion people being tested before a match occurred. But, as you will see, it can be a false impression. A very false impression.

Or worse, the State’s expert offers testimony to the effect that: “The frequency of an unrelated African American (both appellant and Franklin are African American) having the same DNA pattern as that found on the cigarette butt consistent with the major contributor’s DNA was approximately one in 118 billion.”1

Worse yet, the State’s expert offers testimony to the effect that: “The complainant could not be excluded as a contributor to the bloodstain on the bill. The chances of another contributor are 1 in 30 quintillion Caucasians, 1 in 56 quintillion African-Americans, and 1 in 343 quadrillion Hispanics.” And, “The chances of another contributor are 1 in 191 quintillion Caucasians, 242 quintillion African-Americans, and 1 in 273 quintillion Hispanics.”2

Never mind that some of these chances are “derived” after testing alleles at only 6 of the 13 loci that are normally tested!3,4 Or that European agencies usually use two extra markers, D2 and D19, to make 15 loci (16 if you include AMEL) that are tested.5 Or that Taiwan now tests allelles at 23 markers because of matches at 13 alleles that turned out to be exclusions when 23 markers were tested.6 Or that there is no uniform methodology for determining those chances within the field—not even within the same lab!7 Or that the policies of some agencies requires their employees to testify—when only two alleles match—that the person cannot be excluded.8

So, how do you challenge this testimony?

Before listening to the presentation of Greg Hampikian, PhD, at the National Child Abuse Defense and Resource Center’s seminar last October, we were relegated to using the tried (tired?) tactics to challenge this one-in-however-many billion, trillion, quadrillion, or quintillion chance testimony. These tactics include: (1) challenging the methodology used in testing the sample(s), especially when a mixture of DNA was tested; (2) challenging chain of custody or errors in sampling; (3) challenging the technician on his or her methodology in light of known errors; (4) challenging the degradation of the DNA specimen; (5) challenging the methodology of calculating the chances; (6) challenging the underlying study that is used to calculate these chances; (7) challenging the possibility of contamination of the sample; (8) challenging the lab based on its history of past errors, etc.9 This is not an exhaustive list, but those of us who have challenged DNA know them all.

Wouldn’t it be nice to have some new “bullets” to put into your cross-examination “gun”?10 Or to have some additional aces (bullets) to lay down when playing poker with the State’s experts on DNA?11 Or to be able to force the State’s expert to have to bite the bullet and concede that their opinions are flawed, if not outright wrong?12

Dr. Hampikian gave everyone who attended the NCADRC seminar several new aces (bullets) to use when playing poker with the State’s expert and trying to trump the State’s expert’s testimony on DNA evidence.13

Dr. Hampikian’s First Bullet

The first bullet was to get us lawyers to understand the difference between chance and probabilities (statistics).14

For instance, take the question of what is the number of people you have to have in a room to have a better than 50% probability of two of them sharing the same birthday? Call this the birthday problem. People will guess at anywhere from 366 to 183 and they will be wrong. This is a simple example of how people (jurors) confuse chance with probabilities (statistics).

The birthday problem asks how many people you need to have at a party so that there is a better-than-even chance that two of them will share the same birthday. Most people think the answer is 183, the smallest whole number larger than 365/2. In fact, you need just 23. That’s right, 23.

The answer 183 is the correct answer to a very different question: How many people do you need to have at a party so that there is a better-than-even chance that one of them will share your birthday?

If there is no restriction on which two people will share a birthday, it makes an enormous difference. With 23 people in a room, there are 253 different ways of pairing two people together, and that gives a lot of possibilities of finding a pair with the same birthday.

Here is the precise calculation. To figure out the exact probability of finding two people with the same birthday in a given group, it turns out to be easier to ask the opposite question: what is the probability that no two will share a birthday—i.e., that they will all have different birthdays? With just two people, the probability that they have different birthdays is 364/365, or about .997. If a third person joins them, the probability that this new person has a different birthday from those two (i.e., the probability that all three will have different birthdays) is (364/365) x (363/365), about .992. With a fourth person, the probability that all four have different birthdays is (364/365) x (363/365) x (362/365), which comes out at around .983. And so on. The answers to these multiplications get steadily smaller. When a twenty-third person enters the room, the final fraction that you multiply by is 343/365, and the answer you get drops below .5 for the first time, being approximately .493. This is the probability that all 23 people have a different birthday. So, the probability that at least two people share a birthday is 1 – .493 = .507, just greater than ½.15

Carrying this out to 30 people and the answer you get drops to approximately .293. So the probability that at least two people share a birthday with 30 people in the room is 1 – .293 = .707, or greater than 70%. Carrying this out to 35 people and the answer you get drops to approximately 0.185. So the probability that at least two people share a birthday with 35 people in the room is 1 – .185 = .815, or greater than 80%. Carrying this out to 40 people and the answer you get drops to approximately 0.108. So the probability that at least two people share a birthday with 40 people in the room is 1 – .108 = .892, or almost 90%. Carrying this out to 44 people and the answer you get drops to approximately .007. So the probability that at least two people share a birthday with 44 people in the room is 1 – .007 = .993, or greater than 99%.

Changing the birthday problem slightly, ask how many people you need to have at a party so that there is a virtual certainty that two of them will share the same birthday. The answer to this question is 45, because with 45 people in the room, the probability that at least two people share a birthday is greater than 100%!16

A similar problem is presented by the “Children Puzzle.” I tell you that a couple has two children and that (at least) one of them is a boy. I ask you what is the probability that their other child is a boy. Most people think the answer is 1/2, arguing that it is equally likely that the other child is a boy or a girl.17 But that’s not the right answer for the question I have asked you. Here’s why. In terms of order of birth, there are four possibilities for the couple’s children: BB, BG, GB, GG. When I tell you that at least one child is a boy, I rule out the possibility GG. That leaves three possibilities: BB, BG, GB. With two of these, the other child is a girl; so the probability of the other child being a girl is 2/3. Leaving the probability of the other child being a boy at 1/3.18

A similar problem is presented by these questions: What is the probability of tossing a coin and having it come up heads 10 times in a row versus what is the chance (probability) that on the tenth flip of the coin, it will come up heads? The first probability is (½)10—one-half to the tenth power. The second probability is ½. But most people will answer both questions as ½.

These are just three examples of how people (jurors) confuse chance with probabilities. Getting jurors to understand the difference between chance and probabilities (statistics) is very important. Getting the State’s expert to talk in terms of probabilities (statistics) instead of chances is even more important.

Dr. Hampikian’s Second Bullet

Which brings us back to DNA in the courtroom and the second bullet that Dr. Hampikian gave us. The State’s DNA expert is going to testify that there is a one-in-3 billion chance that there would be a match on the alleles that were tested and which matched.19 Or, as there are fewer than 13 alleles that match, that your client cannot be ruled out.20

What do you do?

First, if it’s a one-in-3 billion chance testimony, we would recommend that you file a Rule 702 challenge to any such testimony. Why? Because chance is not probability.

You need to reframe the question or the expert’s statement. The question or statement is, more properly, Is a coincidental match to the DNA database possible? And if so, what is the probability of that coincidental match?

If a profile has a random match probability of one-in-3 billion, how big does the database have to be before a “random match” is expected (over 50% chance)? The answer is about one and one-half billion. Using the “birthday problem” above, you see that this is the “How many people do you need to have at a party so that there is a better-than-even chance that one of them will share your birthday?” answer.

Second, you need to ask the State’s expert whether he has ever examined the FBI’s DNA database or even the Texas DNA database to see if there were any random matches and, if so, on how many alleles the profiles matched. Being the cynics that we are, we would expect the expert to announce that, in fact, he had done so. Which then leads to how did he get access to the database when no one else has been able to do so, were those results were published in a peer-reviewed scientific article, etc.

Of course, this leads to the fertile ground of cross-examination: How many DNA profiles are in the FBI database? Or the Texas database?

Which brings us back to, what is the chance (probability) that there is a random match somewhere in the DNA database?

If a DNA database has a number of profiles that each has about a one-in-3 billion random match probability, the question becomes: How big does that database have to be before you expect (more than 50% chance) a match between two profiles in the database?

Remember, the FBI has the world’s largest DNA database, but it has never made its database available to independent scientists to examine. The authors have searched online and have been unable to find any definitive answer to even the question of how many DNA profiles it has in its database.21

So, how big does that database have to be before you expect (more than 50% chance) a match between two profiles in the database?

According to Dr. Hampikian, the answer is 65,493. That’s right—65,493. Not one and one-half billion people. Not a billion people. Not five hundred million people. Not a million people. Slightly more that 65,000 people!

So, where did Dr. Hampikian come up with that number? Arizona. That’s right—Arizona.

Well, actually, it was the examination of the Arizona DNA database that was performed by Steven P. Meyers, MS, with the California DOJ Jan Bashinski DNA Lab. Dr. Hampikian showed those slides to the audience at the NCADRC Seminar in October 2014.22

You see, among all of the states that have DNA databases, only Arizona has made its DNA database available to scientists to examine. In that examination, the scientists were able to find the following matches:

  • 122 pairs match at 9 of 13 loci
  • 20 pairs match at 10 of 13 loci
  • 1 pair matches at 11 of 13 loci (full siblings)
  • 1 pair matches at 12 of 13 loci (full siblings)

And that’s in a database of only 65,493 profiles!

Which suggests to the authors that if you are defending someone on a crime where DNA is being used to “finger” your client, it might be time to ask for discovery of the State of Texas’ DNA database, so that your expert can examine it to determine whether Texas has similar matches that have not been disclosed.23 This alone could be critical in showing that the State’s expert’s pontifications as to chances of a match are nothing other than something that the expert has pulled out of an orifice somewhere.

And, in light of what was uncovered in the Arizona database, it could be argued that the prosecutors are withholding Brady material for at least two separate reasons. First, the Texas DNA database is supposedly larger than the Arizona database, so one could presume that there are matches in the database that are similar to those found in Arizona. Second, the Arizona matches will have been submitted to CODIS, which means that those matches are in CODIS. This is impeachment evidence that the prosecutor has access to and it should be turned over under Brady.

Dr. Hampikian’s Third Bullet

Which brings us to the third bullet that Dr. Hampikian gave those in attendance at the NCADRC Seminar last October. It is the case of Chen Long-Qi out of Taiwan.24

The facts of that case are as follows: On March 24, 2009, two escorts were raped between 4 to 6 a.m. in a warehouse that Chen and his friend rented for agricultural products distribution. The victims failed to identify the assailants due to alcohol intoxication.25

Chen always maintained his innocence during the investigation and trial. He claimed that he left before the crime to pick up his wife, Ko, at her workplace. Ko’s timesheet corroborated Chen’s words. An eyewitness also testified that Chen was not at the scene. Despite no testimony linking Chen to the crime, the district court and high court found him guilty of gang rape with the other two co-defendants. The decision was solely based on a DNA test concluding that Chen “cannot be excluded” from the semen stain found on one of the victims’ underwear. Chen was convicted of gang sexual assault and was sentenced to 4 years in March 2013.26

With help from the Taiwan Association for Innocence, Chen filed a motion for retrial in June 2013 seeking to retest the DNA evidence. The court authorized a 23 loci STR test on the original mixture DNA sample. The new test result showed that Chen “can be excluded” from the DNA sample. Based on this new piece of evidence, the court granted his motion in December 2013.27

According to Dr. Hampikian in his presentation at the NCADRC Seminar, Chen was acquitted on April 15, 2014. As Dr. Hampikian explained: “Last year the Taiwan Association for Innocence director showed me the case of a man convicted of gang rape through DNA evidence. While that first DNA test was accurate, it was a complex mixture, and newer testing is more discriminating. Through a court hearing the National Crime Lab agreed to do further testing with newer kits, and they were able to exclude Chen Long-Qi.28

Dr. Hampikian’s Fourth Bullet

Dr. Hampikian’s fourth bullet dealt with the problem with statistics. He used the case of Donny Denman to illustrate.

Who is Donny Denman? Donny Denman is the man who the FBI pronounced dead after they examined the DNA in some bones found in New Mexico. Since Donny Denman had been missing for years and since they did not have Donny’s DNA, they used Donny’s siblings to test the mitochondrial DNA. And the FBI concluded that the DNA matched and the bones were Donny’s.

Donny had a funeral. The Pastor gave the eulogy. A death certificate was issued in Donny’s name. There was only one problem: Donny was still alive.29

Granted that using mitochondrial DNA is not as effective in distinguishing individuals as the more common nuclear DNA process, there was a coincidental match, nonetheless. What’s really interesting to the authors is that the FBI said that Denman’s case was the first time the FBI lab has had a “coincidental match.”

The reason that statement is so interesting is that the Arizona DNA database, supra, would have been submitted to CODIS. Are we to believe that the DNA samples that led to the matches that Steven P. Meyers, MS, found in the Arizona database, supra, somehow did not make it into CODIS?

Or are we to believe that FBI is telling the truth when they state that they have never had a “coincidental match.” Remember, these are the same people who tell us that fingerprints are unique and who incorrectly identified Brandon Mayfield, a lawyer from Portland, Oregon, as the Madrid train station bomber.30

Related to this is that experts say there is no way to tell what the odds are for a coincidental match. But courtesy of the coincidental matches that Steven P. Meyers found in the Arizona DNA database, we know that the odds of a coincidental match at 9 of 13 alleles is 122/65,493. We also know that the odds of a coincidental match at 10 of 13 alleles is 20/65,493. We also know that the odds of a coincidental match at 11 of 13 alleles is 1/65,493. And we know that the odds of a coincidental match at 12 of 13 alleles is 1/65,493.31

That’s nowhere near a one-in-3 billion chance! Not even in the same ballpark. Not even on the same planet.

Dr. Hampikian’s Fifth Bullet

Dr. Hampikian’s fifth bullet dealt with the problem of contamination of the samples in the laboratory.

Dr. Hampikian gave several examples of cases where people were identified as the perpetrator but the identification was flawed by contamination occurring in the laboratory.

One such case was the case of Carlton Gary, the so-called Columbus Stocking Strangler. He spent almost 30 years on death row in Georgia, and in 2009, hours before he was to be executed, the Georgia Supreme Court ordered DNA testing. Ultimately, the Georgia Bureau of Investigation laboratory conducting the tests reported it had tainted the DNA evidence.32

The interesting corollary is that when the DNA was re-tested, it did not match anyone in the CODIS database. Two years later, a gun crime was committed in Georgia and the DNA from the suspect in that gun crime was submitted to CODIS. A match was found, so that suspect was interviewed and he was excluded from the Columbus stocking murder cases due to his age—he couldn’t have committed those crimes back in the ’70s. It turns out that the samples in both cases were contaminated at the Georgia Bureau of Investigation Crime Lab with the same DNA evidence. And it turns out that the DNA that contaminated both samples was from a semen sample produced by someone who works in that lab—a sample produced as a quality control!33

Dr. Hampikian’s Sixth Bullet

Dr. Hampikian’s sixth bullet dealt with the problem of contamination of the samples that occurs outside the laboratory.

In his presentation at the NCADRC Seminar in October 2014, Dr. Hampikian talked about the need for crime scene technicians to change their gloves between each piece of evidence they handle so as to avoid transferring DNA from one piece of evidence to another. This, alone, presents a fertile ground for cross-examination.

Dr. Hampikian also talked about the “phantom of Heilbronn.”34 This is the debacle suffered by the German police when they spent 16 years chasing a woman who never existed. The unnamed woman was suspected of being a serial killer who over 16 years carried out a string of six murders, including strangling a pensioner. It turns out the misidentification was caused by swabs used to collect DNA samples having been contaminated by an innocent woman working in a factory in Bavaria.

Conclusion

The take-away from Dr. Hampikian’s two presentations is this: There are forensic DNA errors; there are statistical and interpretative errors; and there are contamination errors. Now you have six new aces to lay down on the table when you want to trump the State’s expert in your quest for justice for your clients who are being “fingered” by DNA.

Endnotes

1. Brown v. State, 163 S.W.3d 818 (Tex. App.—Dallas 2005, pet. ref’d).

2. Owolabi v. State, 448 S.W.3d 148 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

3. Brown v. State, 163 S.W.3d at 825—826.

4. CODIS identifies genetic markers at 13 STR loci, plus Amelogenin (AMEL) to determine sex. See http://www.dnaconsultants.com/Default.aspx?PageID=5813864&A=SearchResult&SearchID=8611581&ObjectID=5813864&ObjectType=1 (last accessed January 22, 2015).

5. Id.

6. http://wrongfulconvictionsblog.org/2014/02/07/taiwan-association-for-innocence-wins-first-case/ (last accessed January 22, 2015).

7. Presentation by Greg Hampikian, PhD, at TEDx Boise 2015. Dr. Hampikian’s presentation can be found at: http://tedxtalks.ted.com/video/Forensic-DNA-Mixups-|-Greg-Hamp . There’s lots of great information, and this presentation is recommended to all who read this article.

8. Dr. Hampikian notes that the experts from the Georgia Bureau of Investigation will testify, when only two alleles match, that the defendant cannot be ruled out. Using statistics (probabilities), this is an absolute exclusion. You should be aware of similar testimony from the State’s experts in Texas. Never forget that the State’s expert testified that the DNA in the rape kit was an exact match to Josiah Sutton. But only three alleles matched, and that was an absolute exclusion! See http://archive.voiceforthedefenseonline.com/story/taint-question-reliability-not-credibility-or-competence.

9. In his presentation at TEDx Boise 2015, Dr. Hampikian discusses the problems associated with contamination of the samples, including the possible sources of contamination.

10. Two the authors are attorneys, licensed in Texas, proud possessors of a CHL, who can often be found exercising the privileges that come with a CHL. It seemed appropriate to them to use the term “bullet,” in the sense of the metal cartridge that one inserts into a pistol. This term was not suggested by Dr. Hampikian, and to the authors’ knowledge, he has never referred to his points as bullets—not even when he was using a PowerPoint presentation containing what would otherwise be called bullet points.

11. In cards, an ace is referred to as a bullet. Random House Dictionary, Random House Inc., 2015. The NCADRC seminar is usually held in Las Vegas, and the authors have been known to participate in the games of chance offered in the casinos. There has been more than one occasion when they each would have been more than happy to have had one more of these bullets to play.

12. “Bite the bullet”: to force oneself to perform a painful, difficult task or to endure an unpleasant situation. Random House Dictionary, Random House Inc., 2015.

13. The authors are grateful to Dr. Hampikian for his assistance in the prep­a­ra­tion of this paper and his providing the slides referred to in this paper together with the link to his TEDx 2015 presentation. His assistance was limited to check­ing the paper for errors, and he did not have any input into the final draft or its terminology or the words used.

14. Again, the term “bullet” is used in the sense defined in note 11—an ace.

15. http://www.npr.org/templates/story/story.php?storyId=4542341 (last accessed January 3, 2015).

16. As you will see in this paper, this question can be rephrased: How many people’s DNA profiles do you have to have before you are virtually certain to have two people who match at 9, 10, 11, or even 12 loci.

17. That answer is the answer to the question of what is the chance that the other child is a boy.

18. Id.

19. Or in a trillion, a quadrillion, a quintillion, or in a whatever chance. For simplicity, the authors will keep it to a one-in-3 billion chance.

20. As noted by Dr. Hampikian, the experts from the Georgia Bureau of Investigation will testify that when only two alleles match, the defendant cannot be ruled out. Using statistics (probabilities), this is an absolute exclusion. You should be aware of similar testimony from the State’s experts in Texas. Never forget that the State’s expert testified that the DNA in the rape kit was an exact match to Josiah Sutton. But only three alleles matched, and that was an absolute exclusion! See https://www.voiceforthedefenseonline.com/taint-question-reliability-not-credibility-or-competence/.

21. The authors are not, by this statement, claiming to be the absolute best online researchers.

22. The authors have tried to attach Dr. Hampikian’s PowerPoint presentation on this study but have been unable to do so. If you will email L. T. Bradt at , he will be happy to share the PowerPoint presentation that Dr. Hampikian shared with him.

23. This raises an interesting Brady issue. But that is for another time and another article.

24. http://wrongfulconvictionsblog.org/2014/02/07/taiwan-association-for-innocence-wins-first-case/ (last accessed January 22, 2015).

25. Id.

26. Id.

27. Id.

28. See also http://news.boisestate.edu/update/2014/04/21/greg-hampikian-58/ (last accessed January 27, 2015).

29. http://www.abqjournal.com/news/metro/302718metro04-25-08.htm (last accessed January 24, 2015).

30. http://seattletimes.com/html/localnews/2001937794_mayfield25m.html (last accessed January 24, 2015).

31. As to both the 11 of 13 alleles matching and the 12 of 13 alleles matching in the Arizona database, these profiles involved full siblings. Remember, the RMP assumes that people are unrelated, so if you use these examples, the State’s expert may throw it back in your face.

32. http://www.ledger-enquirer.com/2014/02/23/2970172/stocking-strangler-comes-back.html (last accessed January 24, 2015).

33. Greg Hampikian’s presentation at TEDx Boise 2015. Dr. Hampikian’s presentation can be found at http://tedxtalks.ted.com/video/Forensic-DNA-Mixups-|-Greg-Hamp . There’s lots of great information, and this presentation is recommended to all who read this article.

34. See Dr. Hampikian’s presentation at TEDx Boise 2015, found at http://tedxtalks.ted.com/video/Forensic-DNA-Mixups-|-Greg-Hamp . See also http://news.bbc.co.uk/2/hi/europe/7966641.stm (last accessed January 25, 2015).

Rules Are Meant to Be Followed

Rule 3.08 is the Disciplinary Rule relating to when an attorney may be a witness in a case.2 This rule reads as follows:

Rule 3.08. Lawyer as Witness
(a) A lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer’s client, unless:

(1) the testimony relates to an uncontested issue;
(2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony;
(3) the testimony relates to the nature and value of legal services rendered in the case;
(4) the lawyer is a party to the action and is appearing pro se; or
(5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client.

(b) A lawyer shall not continue as an advocate in a pending adjudicatory proceeding if the lawyer believes that the lawyer will be compelled to furnish testimony that will be substantially adverse to the lawyer’s client, unless the client consents after full disclosure.
(c) Without the client’s informed consent, a lawyer may not act as advocate in an adjudicatory proceeding in which another lawyer in the lawyer’s firm is pro­hibited by paragraphs (a) or (b) from serving as ad­vo­cate. If the lawyer to be called as a witness could not also serve as an advocate under this Rule, that lawyer shall not take an active role before the tribunal in the presentation of the matter.

Far too many lawyers ignore the proscriptions of the Rule. And they do so at their own peril.

Never mind that the violation of any Disciplinary Rule is grounds to be disciplined by the State Bar.3 There are potentially far more serious consequences that can be attendant upon a violation of the Rule in the course of rep­resenting a criminal de­fen­dant.

So, how do lawyers representing persons charged with crimes violate the Rule?

There seem to be two primary ways in which criminal defense lawyers violate the Rule. The first way is in interviewing or speaking to witnesses. The second way is in swearing to facts in support of motions. Both are an invitation to potential disaster—potential disaster that is easily avoided.

Why would an attorney interview a witness, or speak directly to a witness? Aside from being cheap and not wanting to spend the money, some lawyers are under the misguided opinion that they are not “permitted to rely solely upon the efforts of an investigator.” That opinion is incorrect because lawyers are entitled to rely upon the efforts of a private investigator.4 However, one must never forget that it is the lawyer’s duty to undertake an independent factual investigation, and this responsibility may not be delegated to an investigator.5

In light of these two related but different opinions, you should be cognizant that this reliance upon the investigator presumes that you, the lawyer, have made sure that the investigator is competent and reliable. And that you have not waited until the last minute to engage the services of the investigator, especially one whom you know to be incompetent or unreliable.

There is a big difference between relying upon your investigator as your “eyes and ears on the street,” versus losing track of your investigator as the lawyer did in Flores. In fact, Flores is a great example of what you cannot do, because not only did the lawyer wait until the eleventh hour to put this PI on the case; the PI had already proven to be unreliable.6

Now, I rely upon investigators and do my very best not to interview witnesses in criminal cases.7 There are two separate reasons for this. The first is having had the unfortunate experience of interviewing a policeman who gave me one version of the facts and then testified to another. Of course, the officer denied having told me “any such thing.” Because of Rule 3.08, I could not take the witness stand and testify against him. Had my investigator gotten the statement from the policeman, he could have taken the stand to impeach the officer.

And while the Ethics Opin­ions have changed so that an at­torney may now ethically record conversations without disclosing the fact of the recording, there remains the problem of proving up the tape if you have to use it during trial. Save yourself the trouble and use a competent investigator.

The second reason that I do not speak to witnesses is that Charles Paternostro and I were subpoenaed before a grand jury in Collin County. Why were we subpoenaed? Because the then-district attorney alleged that we had tampered with a “state” witness by talking to her about our pending case. Never mind that there is no such thing as a “state” witness—there are only witnesses. But far too many district attorneys have this provincial and proprietary view of witnesses. And those district attorneys have no problem in their investigators talking to persons who are or may be defense witnesses; but they absolutely bristle (or worse) when we do our due diligence in preparing for trial.

While nothing ultimately came from that grand jury investigation, I do not ever want to be in that position again. Nor should any attorney ever want to find himself in the position of being subpoenaed to appear in front of a grand jury. Especially when it is so easily avoided through the use of a competent private investigator.

Swearing to facts in an affidavit can be even more dangerous. Just look at the recent indictment against Ana Jimenez in Edna, where it was claimed that she committed aggravated perjury by swearing to facts in support of motions that she filed to take the depositions of witnesses. While the indictment against her was ultimately dismissed, look at the resources it took to accomplish that dismissal. And the grief that she went through in the process.

This is not to suggest that I think that Ana Jimenez deserved to be indicted, or that there was any merit to the indictment. I don’t. And this is not to suggest that I haven’t sworn to facts in an affidavit at times in my career. I have, as we probably all have.

But given the current crop of overzealous prosecutors, why put yourself in the position of being put through what Ana Jimenez was put through? Or given the facility with which some witnesses change their stories, why put yourself in the position of being unable to impeach the witness with a prior inconsistent statement?

According to Greg Willis, Collin County District Attorney, when he was presiding over a trial in County Court in Collin County, “Rules ought to matter.”8 I suggest that one of the Rules that ought to matter is Rule 3.08. Don’t follow it at your own peril.

Notes

1. Grateful acknowledgment is given to M. Michael Mowla for his assistance in drafting the final version of this paper, especially the contribution of the Flores case.

2. Govt. Code T. 2, Subt. G App. A, Art. 10, § 9, Rule 3.08

3. Govt. Code T. 2, Subt. G App. A, Art. 10, § 9, Rule 8.04(a)(1)

4. Callahan v. State, 24 S.W.3d 483, 486 (Tex. App.—Houston [1st Dist.] 2000).

5. Flores v. State, 576 S.W.2d 632 (Tex. Crim. App. 1978).

6. Handling a case in this manner will run you afoul of Govt. Code T. 2, Subt. G App. A, Art. 10, § 9, Rule 1.01(b).

7. While I may sit in during my investigator’s interview of a witness, other than pleasantries, I say nothing to and ask nothing of the witness. Any questions that I have are written down and handed to the investigator to ask. At the end of the interview, I retrieve my questions and put them in my file.

8. This comment was made in reference to Rule 902(1)(a), TRE, and my opposing counsel’s attempt to get business records into evidence when they had not been on file the requisite period of time. Opposing counsel argued the mail-box rule relating to filing with the Court Clerk, but he had used FedEx, not the U.S. Mail, to get the records to the Clerk. The records were properly excluded.

Check That Parachute! Suggestions for Voir Dire on Reasonable Doubt

From experience, it appears that many lawyers’ approach to voir dire is almost as an afterthought. Far too many take the approach that the upcoming trial is just like the last, however many trials dealing with the same crime the lawyer has tried. While that may not be a recipe for disaster, it definitely diminishes the “return on investment” your client should be entitled to expect.

So this article will attempt to give you some pointers on how to be prepared for voir dire, how to deal with an ob­struc­tion­ist judge, and how to address in voir dire, trial, and closing the most important issue in a criminal trial: proof beyond a reasonable doubt.

In Texas, the right to voir dire is part of the right to counsel in order that peremptory challenges may be exercised intelligently.2 And the scope of permissible voir dire examination is necessarily broad to enable litigants to discover bias or prejudice so that they may make challenges for cause or peremptory challenges.3 But the trial court also has broad discretion over the process of selecting a jury. The Court of Criminal Appeals has held:

Without the trial court’s ability to impose reasonable limits, voir dire could go on indefinitely. Thus, we leave to the trial court’s discretion the propriety of a particular question and will not disturb the trial court’s decision absent an abuse of discretion. A trial court abuses its discretion when it prohibits a proper question about a proper area of inquiry. A question is proper if it seeks to discover a juror’s views on an issue applicable to the case. However, an otherwise proper question is impermissible if the question attempts to commit the juror to a particular verdict based on particular facts. In addition, a trial judge may prohibit as improper a voir dire question that is so vague or broad in nature as to constitute a global fishing expedition.4

So, remember that if the judge wants to shut your voir dire down, the threshold that you must overcome (and establish in the record) is an abuse of discretion.

So how do you do that in connection with voir dire? Remember that denial of a proper question cannot be harmless er­ror.5 So, you need to know what your questions are, up front, and they need to be in writing so you can make a bill of exceptions if you are denied the right to ask the questions you intend to ask. You also need to have a trial notebook with copies of all of the cases you will be relying upon (e.g., Fuller, and all cases cited in the Levels of Proof, infra).6

Remember also that the trial court, in its discretion, may place reasonable time limits on the length of voir dire examination, and within such limits the defendant may examine each prospective juror individually and pose questions about any proper area of inquiry.7

What a reasonable amount of time is depends on the situation and how you, as counsel, preserve the error in being limited in your voir dire.

A trial court’s limitation of voir dire examination to approximately 30 minutes in a murder trial was held to not constitute reversible error where defense counsel did not present a list of questions he desired to ask until a hearing on a motion for new trial, and where the reviewing court was presented with no bill of exceptions showing how the defendant was injured or deprived of any valuable right by jury selection.8 As hard as it may be to wrap your head around, our appellate courts have no problem upholding these arbitrary time limitations—if you do not preserve the error.

What Centamore teaches us is that you need to have a list of questions prepared so that you can put them into the record, right then and there, and be prepared to put on a bill of exception as to how your voir dire is being hampered or denied.

The authors suggest that you go through your list of questions to pare out questions that are not absolutely necessary to your voir dire. From our experience, questions about whether anyone knows you, or what the venire’s opinion of defense counsel is, are not the sort of questions that will rise to the level of an abuse of discretion if you are prevented from asking them. Correspondingly, having asked those questions leads you into the judge saying that you wasted the time allotted you by asking those “filler” questions. Work on your list of questions.

In that context, the authors feel there are two areas that must always be addressed in voir dire. The first is a question committing a juror to consider the minimum punishment, and the second is the levels of proof.

In Cardenas, the Court of Criminal Appeals held that a question committing a juror to consider the minimum punishment is both proper and permissible.9 But it is an impermissible commitment question when you attempt to commit a veniremember to consider the minimum sentence based on specific evidentiary facts.10 What the Court of Criminal Appeals held, in that regard, was this:

For example, a party may ask the potential juror if he could consider the minimum of five years’ imprisonment in a murder case, but he may not ask if the juror could consider five years in prison in a case in which the State alleged that the defendant “tortured, garroted, poisoned, and pickled” the victim. The nonstatutory manner in which the defendant was alleged to have committed the offense adds evidentiary facts peculiar to the case on trial. That question, because it goes beyond the statutory elements and statutory manner or means, is improper . . .11

What the defense counsel asked, and that was held proper, was this:

During his voir dire, defense counsel again explained the range of punishment for the crimes charged and the re­quirement that all jurors must be able to consider that full range. His final question asked whether the panel members could “honestly ever fairly consider on an aggravated sexual assault of a child as little as five years in prison and give probation as an appropriate punishment[?]”12

Defense counsel preserved the error in the following manner:

After using all of his peremptory strikes, defense counsel asked for additional peremptories and explained that nine of his strikes had been used on jurors who should have been removed for cause. He stated that he would have stricken three of the empaneled jurors had additional peremptory challenges been granted.13

You should be prepared to do the same.

In Fuller, the defense counsel sought to explain the different burdens of proof and to elicit whether the jury understood that proof beyond a reasonable doubt is the highest burden.14 Specifically what he did:

Immediately before the voir dire commenced at his trial, the appellant requested that he be permitted to ask the members of the venire panel whether they understood that the standard of proof beyond a reasonable doubt constituted a level of confidence under the law that was higher than both the preponderance of the evidence and the clear and convincing evidence standards. When the trial court denied his request, the appellant objected that he was thereby denied the right to ask a “proper” question during voir dire, depriving him of the ability to intelligently exercise challenges for cause and peremptory challenges. . . .

        On the morning that voir dire was to commence, but before the venire panel was brought into the courtroom, the following colloquy transpired.

        THE COURT: Did you want to go on the record about the reasonable doubt?

        [DEFENSE COUNSEL]: Judge, I would request that I be allowed to ask each and every member of the venire panel if they understand that proof beyond a reasonable doubt is the highest burden that we have under the law, that it’s higher than clear and convincing evidence. I would like to explain to them that clear and convincing evidence is the type of burden that might be used when someone is committed to an involuntary health institution or when someone is trying to terminate someone’s parental rights.

        I would like to explain to them that it’s higher than—I probably would have started at the other end—but higher than the preponderance of the evidence, which is just over 50 percent, and that’s the kind of burden that might be used in a civil lawsuit when someone is suing over money.

        I would like to ask them if they understand that proof beyond a reasonable doubt is the highest burden we have anywhere in our legal system.”15

After the court denied his request, defense counsel preserved the error by objecting, as follows:

And we would object to that ruling in that it violates the defendant’s right to ask the proper question for purpose of making an intelligent challenge for cause and pe­remp­tory strike. Under Article 1, Section 10, of the Texas Constitution, Article 35.17(2), of the Texas Code of Criminal Procedure, the Sixth Amendment and due process clause.”16

Now, in addition to teaching us how to preserve the error, what Fuller teaches us is that instructing jurors on the levels of proof in order to find out whether a juror can hold the State to its burden of proof, beyond a reasonable doubt, is proper voir dire.17 Why? Because a prospective juror who cannot or will not hold the State to the standard of proof beyond a reasonable doubt to convict in a criminal case is subject to the defendant’s challenge for cause for harboring “a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely.”18

So how do you instruct the jurors on the levels of proof?

Many successful defense lawyers start educating the jurors about the State’s burden of proof in voir dire. Unfortunately, if they do anything at all, too many lawyers use isolated, hackneyed examples to tell potential jurors what “proof beyond a reasonable doubt” is. And then they do it without explaining the other levels of proof.

In light of the proliferation of NINJA19 loans and the recent bailouts of Fannie Mae and Freddie Mac—the certainty that one wants before buying a house is hardly that certain. To begin with, there are drastic distinctions between judge-conducted voir dire and attorney-conducted voir dire. What follows here is a discussion of what we have successfully used for a number of years in conducting our own voir dire and closing arguments.

It has been our experience that if the presiding judge tells the veniremen anything at all, it will be along the lines of “proof beyond a reasonable doubt is not defined,” and “it is a level of proof that we do not use in everyday life.” Hunh? Helpful? Not at all.

To overcome that lack of guidance from the bench, start by detailing the levels of proof on a blank flip chart. Use of a flip chart forces the veniremen to use at least two senses at the same time. In our experience, this tends to increase their retention of what you are about to tell them—and what they tell you (it allows them to “own it”). Alternatively, purchase and use the Levels of Proof chart from the National College for DUI Defense.20 Whatever PowerPoint® presentations you may use during the trial, the authors suggest that you address the levels of proof with either the flip chart or the Levels of Proof chart and not the PowerPoint presentation.

It is also important to empower the jury to find your client not guilty. One of the ways to do this is to explain to the venire that in Scotland, they have three verdicts in a criminal case: guilty, not guilty, and not proven. In Scotland, not guilty means the defendant had absolutely nothing to do with the crime, that there was no evidence the defendant had anything to do with the crime. A verdict of not guilty in Scotland is a bar to a civil suit on the same facts. Not proven only means that the prosecution did not prove its case beyond a reasonable doubt. Not proven does not mean that the defendant had nothing to do with the crime alleged. In the United States we roll “not guilty” and “not proven” into “not guilty,” and a verdict of not guilty is not a bar to someone being sued in civil court later. This is what happened to O. J. Simpson after the murder of his ex-wife when he was sued in civil court. If he had been found not guilty in Scotland, it would have been a bar to the civil suit.

It is the authors’ opinion that explaining about verdicts in Scotland is a proper subject for voir dire because many jurors operate under the conception that if your client was there, he must have done something. A verdict of not guilty is not saying that your client had nothing to do with what happened; it is only saying that the state did not prove its case beyond a reasonable doubt—Scotland’s “not proven” verdict.

Empowering your jury also means asking the venire who disagrees with the Los Angeles jury’s verdict to find O.J. not guilty of his ex-wife’s murder. Invariably, there will be a number of hands that go up. Then ask whether any of them saw the entire trial, especially the testimony about the preservative that was put in the blood that was found in the Bronco and in O.J.’s room, how the police were unable to explain how that preservative got into the blood that they claimed to have found in those two places, or the many, many other problems with the State’s case. Since the jury in that case heard all of the evidence that was presented, only that jury had the right to decide whether the State did or did not prove its case beyond a reasonable doubt. Ask them, “Do they understand that no one has the right to question the jury’s verdict that the State has not proven its case beyond a reasonable doubt?”

Remember proof beyond a reasonable doubt is the ultimate measure by which a jury will decide your client’s case. For the jurors to better understand what proof beyond a reasonable doubt is, however, it is helpful for them to understand that it is the highest measure of proof required in our law, and how it is distinguished from other measures of proof—“reasonable suspicion,” “probable cause,” “substantial evidence,” “preponderance,” and “clear and convincing.” These measures are defined for the jurors as follows:

No evidence. No trace of evidence whatsoever.

Scintilla of evidence. Any evidence at all. Even the small­est amount of evidence. Whoever did this was alive. Your cli­ent is alive. That is a scintilla.

Reasonable suspicion. A reasonable suspicion is what a police officer must have in order to momentarily detain a per­son to question them about a crime or to do a pat down of their clothing should he believe the person is armed with a weapon. This measure of proof is more than a hunch or a guess. It requires “articulate facts,” i.e., the officer must state the facts that gave rise to his suspicion in order to make it a rea­son­able one.

“Reasonable suspicion” means the officer must be able to articulate something more than an inchoate and un-particularized suspicion or hunch.21 It requires some minimal level of objective justification for making the stop. U.S. v. Sokolow, 490 U.S. 1 (1989). This is the level of proof that a police officer needs to stop someone on the sidewalk and ask for identification.

Probable cause. Probable cause is what a police officer must have in order to make an arrest or search a person’s home or business. It is also the minimum measure of proof in order to allow a judge to issue a search or arrest warrant. Prob­a­ble cause concerns probabilities and is decided on an ob­jec­tive standard based upon the training and experience of the par­tic­u­lar officer making the arrest or search. Said another way, probable cause requires a reasonable person’s standard of proof to justify the officer’s actions in either arresting or searching—i.e., was it objectively reasonable for the officer to do what he did based upon what he actually knew and based upon his experience? The probable cause standard is necessary for a police officer to do a strip search of a person.

“Probable cause” concerns whether the facts available to the officers at the moment of the arrest would warrant a man of reasonable caution (alertness and prudence) in the belief that an offense has been committed. Probable cause also turns on whether, at the moment the arrest was made, the officers had probable cause to make it, and that is defined as whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent (wise in practical affairs) man in believing that the person had committed or was committing an offense. Beck v. State of Ohio, 379 U.S. 89 (1964).

“Probable cause” is also the level of proof required for 9 of 12 grand jurors to return an indictment. This is a good place to remind the veniremen that the indictment process is not unanimous and is on a much lower level of proof than required of them to convict your client. Not to mention the fact that defense counsel is not allowed into the grand jury, so no one is cross-examined.

Substantial Evidence. Substantial evidence does not mean a large or considerable amount of evidence, but rather it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion of fact.” Lauderdale v. Texas Dept. of Agriculture, 923 S.W.2d 834, 836 (Tex.App.—Austin 1996, no writ) (quoting Pierce v. Underwood, 487 U.S. 552, 564–65 (1988)).

Substantial evidence is also more than a scintilla but less than a preponderance. Marker v. Finch, 322 F.Supp. 905 (D.C. Del. 1971) (more than a scintilla but less than a preponderance). Under the substantial evidence standard of review, an administrative decision may be sustained even if the evidence preponderates against it. Mireles v. Texas Dept. of Public Safety, 9 S.W.3d 128 (Tex. 1999). Since this level of proof is less than a preponderance, you might want to leave a blank step and fill it in after you explain preponderance.

The Levels of Proof chart that you can purchase from the National College for DUI Defense does not refer to substantial evidence. Until that is changed, we prefer to use the flip chart so that all levels are addressed. If you use the Levels of Proof chart, make sure you address the missing step with the venire. Make sure you also address proof beyond a reasonable doubt, since the Levels of Proof chart stops at reasonable doubt.

Preponderance. Preponderance is the measure of proof required in most civil court cases. It is sometimes referred to as the “51 percent of the evidence rule,” or the “more likely than not” rule. Here, the party to a lawsuit that convinces the jury by 51 percent of the evidence is the winner. This is the measure that is used to take money from one party of a lawsuit and give it to another.

“Preponderance of the evidence” as a standard of proof in civil cases means the greater weight and degree of credible evidence admitted in the case. The degree of proof that when taken as a whole shows that a fact sought to be proved is more probable than not. Lackey v. State, 819 S.W.2d 111 (Tex. Crim. App. 1991); see also Texas Pattern Jury Charge § 1.03.

For the preponderance of evidence demonstrative, we like to use two new reams of paper—unopened. Unwrap both reams and show them to the venire. Both have 500 sheets of paper and, if placed on the scales of justice, would be evenly balanced—not even proof by a preponderance. Remove one sheet from one ream. Ask the venire to look at both and how close they are. But they know that one stack only has 499 sheets, the other 500. If both stacks of paper were placed on the scales of justice, the 500-sheet stack would be heavier. That is a preponderance.

Clear and convincing. Clear and convincing is the measure of proof required in heirship determinations, termination of parental rights cases, involuntary commitment cases, and guardianship cases—a determination of a fundamental or property right. Also, it is the standard by which a jury’s right to impose punitive damages is measured. Our courts have defined this measure as the tier between the “reasonable doubt” standard and the “preponderance” standard. Here, the law requires that a fact finder be “clearly convinced” before it terminates a parent’s rights in their child, involuntarily commits a person to a mental health institution, determines that a person is an heir, or that a person no longer has the ability to take care of either their estate (business affairs) or their person.

“Clear and convincing” means that measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. This is an intermediate standard, falling between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. State v. Addington, 388 S.W.2d 569 (Tex. 1979); see also Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388 (“clear and convincing” proof standard is constitutionally required in parental termination proceedings); Texas Family Code § 161.001.

Reasonable doubt. Reasonable doubt is the standard/measure of proof in criminal cases. It is such a doubt as would cause a prudent person to hesitate before acting in matters of importance to themselves. This is the threshold above which the proof must rise in order to convict your client.

Proof beyond a reasonable doubt. Do we use this standard of proof in our everyday lives? Well, here’s two exam­ples that say we do.

First, it is the certainty that you would want before you unplugged a loved one from life support. As you raise your hand, ask the potential jurors who among them has ever had to be the person to make that decision. Ask one of the ones who raised their hand how certain they wanted to be when they made that choice. Remind them of the man who was in a coma for 19 years and came out of it.22 Remind them that in that case, the person would have been killed if life support had been discontinued at 18 years and 9 months, or even 18 years and 11 months. You want to be certain beyond a reasonable doubt because you know that if you guess wrong, you will have killed your loved one. That’s proof beyond a reasonable doubt.

Proof beyond a reasonable doubt is also the certainty that someone who is going to parachute needs before jumping out of a perfectly good working airplane.23 That person checks every square inch of the parachute and every inch of all of the lines, beyond a reasonable doubt. Watches the packing of the chute, every fold, every tuck, ever fastener, beyond reasonable doubt. Goes over the packed parachute, beyond a reasonable doubt. Up in the plane, he goes over it again beyond a reasonable doubt, and if there is a single thread out of place, he doesn’t jump. Only when he is confident, beyond a reasonable doubt, does he put the parachute on and jump out of that plane.24 Why? Because he knows, beyond a reasonable doubt, that if the parachute doesn’t work—beyond a reasonable doubt—he is dead.

Ask the jurors if they have any different meanings for what reasonable doubt means to them.25

Make an ascending staircase on a flip chart with these levels. The last stair is the one above reasonable doubt, the one labeled “Beyond a Reasonable Doubt.” Go back with a red highlighter, ask different veniremen what the verdict would be and write “not guilty” by each of the ones up to beyond a reasonable doubt. Do not have them answer what their verdict will be if they find proof beyond a reasonable doubt.

The Levels of Proof chart that you can purchase from the National College for DUI Defense used to have the last step labeled “guilty.” The new chart does not have a step labeled Beyond a Reasonable Doubt. There are lawyers who are still using the old Levels of Proof chart. We disagree with using the old chart or a strategy that writes the word “guilty” anywhere during your voir dire, or in omitting the step of Beyond a Reasonable Doubt. We don’t feel you should do anything in the voir dire to acknowledge guilt, but you should put that highest step before the jury. And if any venireperson asks you what goes on the last step, you know that person is too dumb to be sitting on your jury.

As to this portion of your defense, the levels of proof, whether in voir dire or during trial or in closing, we disagree with using a PowerPoint presentation. Why? Because it takes time to power up the monitor or projector and then you are not near what the jury is looking at. Conversely, if you use the flip chart or the NCDD chart, you are standing right next to it as you point to the level in question. You become the instructor, to whom the jury will come to look for guidance.

Accordingly, using the Levels of Proof, you can graphically and educationally walk the jury panel through the respective ascending levels (steps) of proof. Demonstrating these levels to the jury, we, as defense counsel, can make the jury visually understand that proof beyond a reasonable doubt is indeed the highest burden in our law.

Using these examples of “proof beyond a reasonable doubt” in an aggravated sexual assault case, we once got an assist from the judge during voir dire. To answer a potential juror’s question about the difference between clear and convincing and proof beyond a reasonable doubt, the judge explained the difference between beyond a reasonable doubt, clear and convincing, and scintilla by using our analogies. He said: “Beyond a reasonable doubt is how well you check you parachute before you step out of the plane. Clear and convincing is how well you check your wife’s parachute before you help her out of the plane. Scintilla is how well you check your ex-wife’s backpack before you shove her out of the plane.”

Gary Trichter, in his paper given to the National College for DUI Defense, advised that the Levels of Proof step-ladder chart can also be used during the cross-examination of the arresting officer in DWI cases. His recommendation was for the defense lawyer to use the graphic burdens of reasonable suspicion, probable cause, and reasonable doubt in the cross-examination of the arresting officer—i.e., the officer is asked if he understands those required levels of proof and whether he applied the reasonable suspicion and probable cause burdens in his decision process in your client’s case.

Unfortunately, far too many Texas judges have begun limiting defense counsel’s ability to present these levels of proof to the venire during voir dire, whether through the NCDD’s chart or counsel’s flip chart, Fuller, supra, notwithstanding. The authors’ experience is that these “judicial geniuses” will either ignore Fuller, or try to parse words as to your questions, or try to limit you on time.26 If you have the (mis)fortune of trying a case in front of one of these judicial misers and are unable to go through the levels of proof in voir dire, then use the flip chart during your cross-examination of the police officer and anyone else whom the State has offered as an expert. Of course, make sure you preserve the error in voir dire by asking for more time, presenting the questions you would have asked, asking for additional peremptory strikes, and making the objection as was done in Fuller, supra.

In his paper, Mr. Trichter observed that experience teaches us that in DWI cases, most police officers will testify that they did not form their opinion of probable cause until after they observed the very last intoxication fact, and that it was then they arrested your client. When this happens, leave it alone and don’t ask any more burden of proof questions. By doing so, you can argue in your closing that even accepting all that the officer said was true, by his own words he only had probable cause—a reason to believe, and that is far short of the required proof beyond a reasonable doubt required to convict. Of course, that also dovetails perfectly into arguing that if the police officer was a doctor telling you you need to unplug your loved one from life support, you’d definitely want a second opinion, wouldn’t you?

If the judge has prohibited you from using your flip chart in voir dire, use the flip chart during cross-examination and write down the levels of proof. Again, if you get the police officer to testify he did not form his opinion of probable cause until after he observed the very last intoxication fact and that it was then that he arrested your client, leave it alone and don’t ask any more burden of proof questions.27

If the State objects and the judge sustains the objection to this cross-examination, offer it by way of a bill of exception. If the judge denies you a bill of exception on this, you should have built-in reversible error.28 And if you are allowed to present it by way of bill, you should have preserved the error, assuming the judge does not change his ruling and allow you to cross-examine in this manner.

What if the State’s case rests upon the testimony of a witness who has problems “keeping the facts straight,” or if there are conflicts between the accounts offered by the various State witnesses? In such a situation, in closing, place you hand on your client’s shoulder and ask the jury to imagine that your client is their loved one who is on life support.29 And the witnesses are doctors who are telling them that it is hopeless; life support must be discontinued from their loved one. Remind them that their loved one might be like that man in Poland who was on life support for 19 years and came out of it.

Refer to the witnesses as the doctors who are telling you that you need to unplug your loved one from life support. Point out all of the inconsistencies and contradictions. Write them down on a flip chart for the jury to see. Then ask the rhetorical question, “In light of all of these inconsistencies and if you were the one being asked to pull the plug on your loved one’s life, you’d want to get a second opinion before pulling the plug, wouldn’t you?” Since reasonable doubt is such a doubt as would cause a prudent person to hesitate before acting in matters of importance to themselves, wanting a second medical opinion before deciding to pull the plug is reasonable and prudent. Then tell them: “That is reasonable doubt. The State hasn’t proven its case beyond a reasonable doubt and you must acquit.”

Lastly, using the Levels of Proof stepladder graphic allows you to deal with some of the State’s arguments in closing—even if you are not allowed to voir dire on the levels of proof, you can still use those levels of proof to argue for your client. It doesn’t matter that the evidence was “overwhelming”—that is not a level of proof. It doesn’t matter if there was “substantial evidence”—that is less than a preponderance. And it doesn’t matter if the evidence was “clear” or if it was “convincing” or if it was “clear and convincing.” All are less than reasonable doubt. Obviously, if the DA argues that there is overwhelming evidence of guilt, you should object and request the court to instruct the jury that there is no such level of proof recognized in law: Ask that the jury be instructed and move for a mistrial. If the DA argues that there is substantial evidence of guilt, you should object and request the court to instruct the jury that substantial evidence is a level of proof below a preponderance. Ask that the jury be instructed and move for a mistrial. And if the DA argues that the evidence is clear, or that it is convincing, or even if he argues that the evidence is clear and convincing, you should object and request the court to instruct the jury that clear and convincing is a level of proof below reasonable doubt, and move for a mistrial.

Are these techniques effective? Mr. Trichter’s well-deserved reputation in defending DWIs says that they are. But there’s even better proof available. One of the authors has a co-counsel who practices in Baltimore, Maryland—where the judge does all of the voir dire. After the author gave him the example of unplugging a loved one from life support, he adopted it and incorporated it in all of his closing arguments. Using this example, he was able to put together a run of over one year without any convictions.

You can be a more effective trial attorney. What is laid out in this article should help you reach that goal.

Notes

1. Much of this paper is based on the paper that J. Gary Trichter presented at the 2000 Summer Session of the National College for DUI Defense (NCDD) and on the Levels of Proof chart related to that presentation. Both the paper and the chart are copyrighted by NCDD and are available from it at its website, www.ncdd.com. To the extent that portions of that paper or the chart appear here, they are used with the permission of NCDD, for which grateful acknowledgment is made. Much of what is in this paper was also published in the June 2009 issue of The Defender, the quarterly publication of the Harris County Criminal Lawyers Association.

2. Vernon’s Ann.St.Const. art. 1, § 10; Florio v. State, 568 S.W.2d 132 (Tex. Crim. App. 1978).

3. Zavala v. State, No. 14-10-00286-CR, 2011 WL 5156843 (Tex. App.—Houston [14th Dist.] November 1, 2011), citing Sanchez v. State, 165 S.W.3d 707 (Tex. Crim. App. 2005); Sanchez v. State, 165 S.W.3d 707, 711–12 (Tex. Crim. App. 2005).

4. Fuller v. State, 363 S.W.3d 583, 585 (Tex. Crim. App. 2012).

5. Florio v. State, 568 S.W.2d 132, 133 (Tex. Crim. App. 1978).

6. You need to have copies of the cases, especially the ones set forth in the Levels of Proof, available so you can ask the court to take judicial notice of their holdings in the event the prosecutor objects to you instructing the jury on the law. Seldom is there anything better during a trial than to have the judge have to instruct the jury on a definition of law, especially when the DA has objected to the very definition that you have given them.

7. Florio v. State, 568 S.W.2d 132, 133 (Tex. Crim. App. 1978).

8. Centamore v. State, 632 S.W.2d 778 (Tex.App.—Houston [14th Dist.] 1982).

9. Cardenas v. State, 325 S.W.3d 179 (Tex. Crim. App. 2010).

10. Cardenas v. State, 325 S.W.3d at 184.

11. Id.

12. Cardenas v. State, 325 S.W.3d at 182.

13. Cardenas v. State, 325 S.W.3d at 183.

14. Fuller v. State, 363 S.W.3d 583 (Tex. Crim. App. 2012).

15. Fuller v. State, 363 S.W.3d at 583–584.

16. Fuller v. State, 363 S.W.3d at 584.

17. If you are denied the right to voir dire on the levels of proof, the authors would suggest that counsel also ask for additional peremptory strikes, enough to cover the entire venire, because you don’t know if any of the venire can hold the State to the proper standard.

18. Fuller v. State, 363 S.W.3d 583, 586 (Tex. Crim. App. 2012), citing Tex.Code Crim. Proc. art. 35.16(c)2.

19. A Ninja Loan was a type of subprime loan for housing issued to borrowers with No Income, No Job, and no Assets. No Income No Asset, http://en.wikipedia.org/wiki/Ninja_loan#No_Income_No_Job_no_Assets (last visited December 14, 2012).

20. The chart can be ordered from the NCDD at its website, www.ncdd.com. The artwork for this article is based on that chart, with the modifications suggested here.

21. “Inchoate” is a lawyer word, and it is a word of art. Unfortunately, most people’s eyes will glaze over when they hear it. We suggest that you substitute “not yet completed or fully developed, rudimentary or undeveloped” in its place.

22. The man was Jan Grzebska, in Poland. His case received international attention. http://www.foxnews.com/story/0,2933,277475,00.html (Last accessed December 14, 2012).

23. You may want to ask if any of the venire have ever parachuted, but we do not suggest you raise your hand as someone who has—even if you did it in the military. If one of the venire answers that they parachuted in the military, after thanking them for their service, have them go over all of the steps taken to ensure that the parachutes work perfectly—every time.

24. Yes, the authors know that the parachute is put on while on the ground. But someone else will have done it on board the plane. It is that last check to make sure everything is right.

25. Fuller v. State, 363 S.W.3d 583, 586 (Tex. Crim. App. 2012).

26. One of the motions that you should always go to trial with is a motion for more time for voir dire.

27. One of the hardest things to learn is when to shut up and sit down. Once learned, it is an invaluable resource.

28. Kipp v. State, 876 S.W.2d 330 (Tex. Crim. App. 1994).

29. This is not an improper appeal to sympathy. It is merely a metaphor.

Postscript:

After the article was submitted to TCDLA for consideration, Gary Trichter posted the following on the listserve. It seemed appropriate to include it with the article, so here is what Gary posted (with thanks, again, for his shared brilliance):

Thought I’d share a thought that might be of help in voir dire when discussing one of the Three Rules of Jury Decision making, “The Government’s Burden of Proof.” That said, I suggest you consider framing the issue with the following:

Thomas Sowell, syndicated columnist who writes on economics, philosophy, and politics, wrote, “It’s hard to imagine a more stupid or more dangerous way of making decisions than by putting those decisions in the hands of people who pay no price for being wrong.”

With that in mind, consider the following:

“Some say our law needs to be fair and equal. Our law mandates jurors to follow and apply the law in their decision process. Supposing we had a follow-up law that said where jurors failed to follow the law and wrongfully convicted a person who received the maximum punishment, that the jurors themselves would suffer the same punishment. How would you feel about a fairness law like that?”

Framed this way, the B of P can be defined as that level of mental surety the government must convey to fulfill its proof responsibility so as to convince jurors that they are safe from being harmed by their own decision.

My personal definition of B of P is this:

Burden of Proof—the government’s responsibility to make you feel absolutely certain you have not made a mistake in deciding whether a person should be subject to the worst or most severe consequence of being convicted of a crime and labeled a criminal.

…And the Truth Will Set You Free

Legislators are currently considering changes to our criminal discovery statutes. Better late than never, some would say. Unfortunately, it took the tragic case of Michael Morton to even bring about the Legislature’s look at the criminal discovery statutes.2 The question remains whether there will be changes, and if so, will they be more than window dressing. But before I continue with this article, I want to tell you about a case Leonard Martinez handled in Williamson County. This case happened several years ago while Michael Morton’s lawyers were fighting to get the discovery that would ultimately free him. In this context, the case is striking for its irony. What follows are the details of that case.

Leonard was retained to represent a former client at the last minute. The client was about to take a plea to aggravated robbery. He allegedly robbed a bank. Leonard knew him from having represented him on aggravated assault charges—charges that ultimately got dismissed. Leonard had developed a relationship with him and his family. In other words, it was a good old-fashioned lawyer who had a long-standing relationship with his client, unlike some of the high-volume, quick-turn-around legal services that have come to dominate law practice nowadays. In an article I co-authored with Leonard in the Voice for the Defense that came out a couple of months ago, we expressed our concerns for this new style of “salesmanship” as opposed to “lawyering.” And by the way, every judge and attorney who read that article has been very supportive, with one exception. One lawyer confronted Leonard, accusing us of being ignorant and slanderous. I wonder why this lawyer felt personally attacked.

Back to the case referred to above. You will see the irony, as the county where this case took place was Williamson County. The prosecutor was Williamson County District Attorney John Bradley and the judge was Ken Anderson. (As an aside, Leonard has known Ken Anderson for a long time and feels quite conflicted, angry, and sad over the whole Morton incident.) The style of the case is State v. David Villarreal. David was accused of going into a bank in Cedar Park, handing the teller a threatening note, and fleeing with cash. The robber was caught on surveillance video. The person caught on tape sure looked like David. The officer who viewed the tape immediately “recognized” the perpetrator as David. Why? Probably because he had dealt with David on previous occasions.3

The officer pulled David’s mug shot and assembled a photo array. He showed this photo array to each of the bank employees. They all quickly, and without hesitation, picked David. Why? Probably because of the similarities between David’s features and those of the person who, in fact, robbed the bank. Could there have been an improper presentation of the array by the officer? Anything is possible, what with the problems with eye-witness identification. But, as you will see, there was no need for Leonard to challenge that aspect of the investigation. Why? Because there was a surveillance video with a fairly good image and other evidence that turned out to be compelling as to David’s actual innocence. But the challenge to the array was still there to be made if Leonard found it necessary.

After all of the employees picked David out of the photo array, the officer had the note checked for prints. An iodide fumigation was used and partials were extracted. The officer had the prints compared to those of David, and they matched with a fair number of points. Never mind the many problems inherent in identifying someone from a partial print, with only a fair number of points matching.4

Next, the officer found some notes that David had written while incarcerated on other charges. The handwriting analyst said the handwriting on the note matched David’s handwriting on his previous written letters. Never mind that comparing hand writing is an art, not a science, and the comparison is a very subjective opinion, at best.

And if that was not enough, two of David’s cousins had been charged with a felony hindering, a third-degree felony. Why? Because allegedly after a warrant was put out for David, the cousins gave David and his wife a ride to a motel. These poor cousins were represented by the same lawyer who took them in to Bradley for a debriefing after they had been arrested and posted bond. In exchange for a plea of five years deferred adjudication, they would testify that David admitted to the robbery.

When Leonard walked into court to file his motion to substitute, he did not have all the details. Leonard only knew the charge—and that he was being asked to represent someone whom he had previously represented.

He met with David, who was in custody. David told Leonard that the lawyer he was replacing had gotten a plea agreement. The agreement was that in exchange for a guilty plea, Bradley would recommend 40 years in the Institutional Division of the Texas Department of Criminal Justice. And in addition, Bradley would not charge his wife as an accomplice. David told Leonard he was ready to accept the offer.

Now remember, Leonard knew David. And in Leonard’s mind, this guy was no bank robber. He tended to be manic and even violent at times, but a robber he was not. So Leonard asked him to look him in the eye and tell him whether he robbed the bank or not. He said he did not but he wanted to take the deal to make sure his wife was not charged. Leonard persuaded him to hold off and not take the deal and allow him to substitute in, to which David agreed.

After the substitution order was signed, John Bradley took Leonard into the jury room, shoved two boxes—the type you store files in—at Leonard and said, “Let’s see you do your magic on this one.”

As Leonard was looking through the contents of the boxes, he told Bradley, “Well, I guess we will have to see.”

John started telling him what he had and what was in the box. And as he was being brought up to speed on the case, Leonard would recall that he was thinking: Holy crap! What in the hell have I gotten myself into?

Bradley not only allowed Leonard to look at everything in the two boxes. He told him, “I will get you anything you want or need.”

Leonard, in recounting the story, said: “When John told me this, I knew I was screwed. He must have such a strong case that he was going to violate his own closed-file policy. What hubris! So what was I going to do now?”

After he composed himself, he began to do what lawyers should do—take it one step and one issue at a time and by the numbers, as they say.

John was giving him everything he asked for. The first task was to get a copy of the surveillance video to examine it and, if necessary, have it enhanced by an expert. Second was getting a copy of the fingerprints lifted from the note and have them compared to David’s known prints. A request was made for a copy of the note David was supposed to have handed the teller.

Leonard also began to build his defense team by getting a good investigator. The surveillance tape was not clear enough to really make a definite identification, so the tape was taken to an expert in video enhancements.

The next thing was having the prints compared by an expert. One thing that was seen on David’s prints, and not on the partial from the note, was a line across the center of David’s print. It was determined that the line was caused by a scar from a cut David had on the finger that the print was supposedly matched to.

By this time, Bradley had assigned another prosecutor to handle the case. That prosecutor looked at the discrepancy in the prints but attributed the discrepancy to a copy error. So when David appeared in court, Leonard asked Judge Anderson if they could have David fingerprinted in court by the bailiff. He said okay and prints were taken. Lo and behold! The skin fold anomaly, as Leonard referred to it, appeared. Oops! That was no copying error. It was a scar! A scar that was not on the actual robber’s finger.

While all this was being done, the investigator was checking for anyone who had been arrested for bank robbery with a similar modus operandi (MO). The investigator was able to identify a couple of people who had been arrested for bank robbery with a very similar MO.

One of persons identified by the investigator was a man named Estrada. This Estrada just happened to be in the Williamson County Jail, charged with bank robbery. Bradley was asked if he would please provide Mr. Estrada’s mug shot with profile and his fingerprints. And to everyone’s amazement, Bradley gave them to the defense. Surprise! Mr. Estrada looked very much like the person on the surveillance tape. More so than David, upon close examination.

The enhancement on the tape was done and the image was much clearer. And as Leonard stared and stared at the image of the robber, it hit him like a baseball bat to the forehead. “Damn, this guy does not have a necklace tattoo around his neck and arms!”

The enhanced tape showed the bank robber wearing what looks like a muscle shirt; and it was very clear this man had no tattoos. None. Nothing like those that David had. Because Leonard had a lawyer-client relationship with David, he knew him and knew he had those tattoos long before this robbery occurred. Leonard’s gaze was just fixed on the image, saying over and over again, “Damn, damn, what the hell is going on?” Why would David have told his cousins he had done this when the “overwhelming evidence” showed he had nothing to do with the crime. Bradley’s case was starting to unravel.

And even though Leonard knew David had those tattoos before the robbery, he pulled old booking photos so there could be no argument as to when those tattoos were on David.

While the defense was working on the case, a pastoral counselor called Leonard to tell him he was visiting with David and wanted to offer his support. Leonard—not missing an opportunity for information—asked this counselor whether he was also seeing another inmate by the name of Estrada. The counselor said he was one of his clients.

And then Leonard did something that some might say was on the ethical edge, although that is debatable. To me, it was performing the function in the fullest sense of the Sixth Amendment. Leonard told the counselor that there was reason to believe David may have to be punished for something Mr. Estrada had done. It was left at that, with nothing else said.

A couple of weeks later, Leonard received a call from a very excited counselor. “Mr. Martinez, you will not believe . . .”

After Leonard asked him to calm down, slow down, and to tell him what he was talking about, the counselor told him. For a moment there was the fear that David had confessed to the counselor. That would have been a shot to the heart. No, he told Leonard that Mr. Estrada had not only confessed but had confessed in writing and asked the counselor to have the confession letter given to David’s lawyer. As Leonard recounts, “It took a couple of minutes to gather myself up from the floor. But then I thought, oh hell, his lawyer is going to be pissed!”

But the truth was the truth, and justice would not be served with David, who now was clearly innocent, being convicted of something Mr. Estrada had done.

Mr. Estrada’s handwritten confession was turned over to the prosecutor. No very long after the confession was turned over, the prosecutor handling the case said, “Leonard, I have some Brady material I have to disclose.” And he added, “Leonard it seems you have somehow f—d up my case.”

When David and Leonard appeared before Judge Anderson at jury docket call the State of Texas filed a motion to dismiss.

So what about Mr. Estrada? Well, the lawyer was indeed a bit miffed, but as a result of his expressed displeasure, his client got a better deal for pleading to now two cases concurrent rather than to the offer he had previously for one. And what about the two cousins who a lawyer pled guilty and had gotten to agree to testify against an innocent man? I do not know what ultimately happened, although I hope Bradley would move to dismiss.

The cousins had come to Leonard’s office and asked him if he would represent them. They felt they were pressured by their lawyer to plead, even though they, too, were innocent. They said they did not know that there had been a warrant issued for David’s arrest, and that David never admitted to robbing the bank. It is disgusting what they were “counseled” into doing. Leonard told them that they should consider seeing another lawyer about filing a writ.

Full and complete disclosure and cooperation from a prosecutor that was not known for much, if any, disclosure and cooperation resulted in a complete exoneration before the case went to trial. David’s case illustrates why full and complete discovery is so extremely important.

Of course, we lawyers must carry on our own investigation and must do something with the information acquired. So as the Legislature continues to debate the merits or demerits of full, open, and complete discovery, we must tell them we need real change. We must do so in a loud voice, as an organization and as individual lawyers. It is for the sake of truth and justice. It is for the wrongfully convicted, like Michael Morton. And we need to encourage the legislators to consider the discovery practices of other states, particularly Florida and Missouri, where witnesses and complaining witnesses can be deposed. The experience in those states has been very positive, resulting in more cases being resolved by agreement, whether through pleas or dismissals.

Let us all continue to push for change. We as lawyers have a special calling not only to defend the accused but also to defend our constitutions and improve the administration of justice.

As the title of this article says, the truth will set you free. It certainly did for Michael Morton, just as it did for David.

Notes

1. John 8:32

2. Isn’t it ironic that a civil defendant has far more discovery rights than someone whose liberty, or life, is at stake?

3. This is an example of confirmatory bias—you “find” what you expect to find or what you are looking for. To the police officer, David was a known criminal.

4. Never mind the case of Brandon Mayfield, the Portland, Oregon, lawyer who was incorrectly identified by the FBI as being involved in the Madrid train station bombings. The prints that the FBI used to incorrectly identify Mr. Mayfield had more points than the partial prints that were used to “finger” David.

Taint: A Question of Reliability, Not Credibility or Competence

Isn’t it interesting how the courts recognize taint in so many different contexts?1 We have an illegal search by the police and everything found during the illegal search becomes “fruit of the poisonous tree”—it is said to be tainted. The Houston Police Department’s Crime Lab does not observe proper sterile procedures in handling DNA and the specimens are contaminated—they are said to be tainted. We have a lineup where the crime victim sees one White guy, three Hispanics, and two Blacks. The identification of the White guy is said to be tainted, the product of a suggestive or improper lineup.

A victim of a crime has no conscious recollection of the events or details, is hypnotized and, while hypnotized, is presented with questions that suggest answers. Upon regaining consciousness, the victim “remembers” details of the crime. The courts recognize the problems inherent in this type of enhanced “recollection.” So this “recollection” is subject to being excluded because it is tainted—the product of suggestion.

But how differently the courts in Texas treat the “recollection” of children, even very young children, who are said to have been abused, sexually abused, or even sexually assaulted —especially when there is no evidence of the alleged crime other than the child’s statement and the crime is alleged to have occurred months or even years ago. Children’s memory is deemed to be pristine and incorruptible, no matter how many different people may have discussed their recollection with them and no matter how many different people may have suggested details to the children, in how many different settings, on how many different occasions, or for how long on each occasion.

And it doesn’t matter that none of these conversations or interviews or counseling sessions have been recorded in a neutral media so that improper interview techniques can be identified and the implanted results of those techniques challenged. Again, young children’s memory is deemed to be pristine and incorruptible, even though no such presumption exists with a teenager’s or an adult’s memory. Remember the advertising slogan: “Is it real? Or is it Memorex®?” Well, the same logic applies when it comes to a young child’s supposed recollection.

The corruption of a young child’s recollection affects not only their testimony but also any “outcry” statement2 that the State may try to use. In this article, the authors will attempt to define the problem and suggest ways to deal with the same.

Please understand that for the most part, this concerns the recollection of children who are under the age of 7—in other words, children who are not old enough to really understand the concept of a lie. Consider that a child who learns that Santa Claus is not real, that it was Mommy and Daddy all along, does not understand that Mommy and Daddy lied about Santa Claus existing. Please also understand that the age of seven is an arbitrary break point, created by the authors for the purpose of this article. Some experts will be more exacting with older kids versus younger kids, but there is no clear, bright-line demarcation. The younger the children, the more susceptible they are to the many ways in which memory can be tainted, but the principles apply along a continuum. Research going back to Europe in the late 19th and early 20th centuries shows much the same results and conclusions as today’s research, even though the children then under examination were 10 years old or even older. In fact, in the Salem Witch trials, children as old as 16 were convinced by their interviewers that they saw several women in their community perform acts that were supernatural—e.g., levitating.3

Of course, we will still have “repressed memory” cases from adults like in Sandusky and other cases. Those cases present similar issues as to the reliability of the testimony of young children, but the science and the research are different.4 And the motivation to testify falsely in such a case tends to belong to the “victim” instead of to a third person attempting to get a child to testify falsely. It is easy to conceive how a young adult might be motivated by the prospect of making large sums of money from a civil suit—a motivation that doesn’t exist for the “victim” when the testifying “victim” is 2–7 years old.

For the article to be relevant, the authors felt that they should look at what kind of case comprises the bulk of prosecutions. Usually it is a pre-adolescent child making an outcry about something that happened at some point in the past. Those cases are more numerous than younger children making outcries contemporaneous with the alleged event.

Conversely, children above the age of seven are old enough to understand the concept of a lie, but they may be, or become, active participants in the lie without knowing or comprehending the consequences of the words they say. Children under seven understand neither. So while the science involved with older children is similar to that with young children, it is sufficiently different that you will need to use different experts, depending on the age of the child.

And this article also does not deal with cases where there is unequivocal physical evidence of abuse—e.g., an STD that the defendant also tests positive for. The article presupposes that you, as defense counsel, not only have the evidence that the child has been subjected to multiple conversations/interrogations/interviews/counseling sessions, but that you also have an expert who is competent to present the science to the court.

Under no circumstances should a taint hearing be requested to try to obtain discovery. This will not only damage your expert through trying to give an opinion with an incomplete foundation and cause your expert to become the prosecution’s best witness; it can also lead to the creation of more bad case law. While there may be something worse than your expert having to concede on cross-examination that there is not sufficient evidence to support the defendant’s contention that the child’s memory is tainted, that something does not come to the authors’ mind.5

Remember and understand that when you try to challenge the recollection of a child as being tainted, you will run into several fallacies or flaws that are endemic within the Texas courts.

The first fallacy or flaw is that judges and DAs will attempt to re-frame your argument as going to the competence of the child to testify. You cannot allow yourself to fall into this trap.

Why? First, Rule 601 of the Rules of Evidence creates a presumption that a person is competent to testify.6 The trial court has no duty to conduct a preliminary competency examination on its own motion.7 This means that you have to file a motion challenging the competence of the child to testify. Even if you expect to lose the motion, you should file it.

Once the competency of a child witness is challenged, the trial court must assure itself that the child has (1) the ability to intelligently observe the events in question at the time of the occurrence, (2) the capacity to recollect the events, and (3) the capacity to narrate the events.8 The third element, involving the capacity to narrate, requires that the witness is able to understand the questions asked, frame intelligent answers to those questions, and understand the moral responsibility to tell the truth.9 And the trial court’s determination of whether a child witness is competent to testify and its ruling on the issue will not be disturbed on appeal absent an abuse of discretion.10

But the child witness’ Rule 601 competence to testify is not the issue. The issue is the one of competency as it relates to personal knowledge, not whether the child is capable of testifying and reliability. Let us give you an example to illustrate this point—an example from a deposition taken in a case in Tarrant County.11 The Unauthorized Practice of Law Committee of Tarrant County had sued Joe A. Izen Jr. for assisting in the unauthorized practice of law. During discovery, it turned out that no one on the committee knew where the complaint came from or who was going to testify against Joe Izen—but if anyone did, it was the lawyer who was the head of the committee. His was the last deposition taken. During his deposition, he testified that the source of the information (that Joe A. Izen Jr. had assisted in the unauthorized practice of law) was psychic phenomena. Yes, psychic phenomena!12

Was the head of the committee—again a lawyer—able to intelligently observe the events in question at the time of the occurrence, capable of recalling the events, and capable of narrating the events? The answer to all of these questions was yes.

But the lawyer’s testimony was not reliable. Why? Because not only do the courts not recognize ouija boards as a source of admissible evidence; there is simply no way to cross-examine a ouija board. Or a ghost. Or tarot cards. Or any of the myriad other possible sup­posed manifestations of psy­chic phenomena.

Some might argue that the question presented is a Rule 602, Tex. R. Evid., question and not a reliability question. The authors disagree because the courts recognize ways in which one can remotely acquire information (knowledge). An example of that would be a security guard watching a video monitor when a crime is committed. Say that the recording system malfunctions. In such a situation, would the security guard be allowed to testify as to what he saw on the monitor? Absolutely. That testimony is reliable. And it is not a question of competence.

So when a young child can distinguish between a red card and a blue card, and “knows that you get in trouble” if you tell a lie, that does not end the inquiry. Nor is that the only inquiry. In fact, the authors are only aware of one case where a young child who was allegedly sexually abused was found to be incompetent to testify.13

Why does that not end the inquiry? Well, let’s consider a hypothetical five-year-old who has (1) the ability to intelligently observe the events in question at the time of the occurrence, (2) the capacity to recollect the events, and (3) the capacity to narrate the events. Now, let’s assume that this five-year-old is being asked to testify about who left the presents under the Christmas tree that he found on December 25. He’s got a lot of circumstantial evidence that it was Santa Claus. And he knows all about Santa Claus—what he wears, who makes the toys, how he flies around the world, etc. But will he be allowed to testify that it was Santa Claus who left the presents?

No, he won’t. Because his recollection is not reliable. Now, this is an innocent example of implantation of a false memory. But it shows the difference between competence and reliability of the recollection—a difference we will address in more detail below.

And you need to be aware of the growing body of research regarding the implantation of false memories. Some of this research is set forth in Endnote 14. You need to be familiar with this body of literature.

The second fallacy or flaw is the belief that there must be coercion used to create a false memory in a young child. Well, not only does a child’s “knowledge” that Santa Claus exists dispel that belief; so does all of the scientific literature.14 Indeed, scientific research has shown that a memory can be implanted in a young child in as little as 20 seconds—without coercion!

Unfortunately, most judges and prosecutors think or are under the mistaken belief that coercion must be used in order for a memory to be implanted in a child. They for­get, or ignore, the myriad other factors that can affect what a child tells you.

These factors include the desire of the child to please the adult. Repeating a question after a child answers will make the child assume that it has answered incorrectly, and the child will, therefore, change its answer. A question that suggests an answer will usually elicit that suggested answer. An “or” question that is answered with a “yes,” followed by a specific fact-stated question will usually get the child to adopt the specific fact stated.

And it is precisely because of this effect that you should move to have the Court require that all meetings, interviews, sessions, counseling sessions, etc., with the child be recorded in a neutral media. You should include a request that all meetings with anyone in the DA’s office be recorded in a neutral media.15 Your argument should be that this is Brady material—potentially exculpatory or useable for impeachment.

Expect the State to oppose any such motion and to oppose it vehemently. The DA will announce with great emphasis that he and his employees don’t coerce any child or taint any child’s testimony or recollection. And the DA thereby ignores all of the science in this field.

An example of how easy it is to implant a memory, or to get a child to agree with something stated by an adult, occurred during the one of the authors’ defense of a 17-year-old juvenile who was facing 4 petitions that alleged aggravated sexual assault of 3 girls, aged 2–4 at the time of the alleged sexual assaults and aged 7–9 at the time of trial. The prosecutor repeatedly told the judge, and then the jury, that she and her office had not implanted any memories in these girls, that they had not coerced any testimony, and so on. The prosecutor’s argument ignored the fact that taint can occur without malice, coercion, or evil intent. Taint can occur through otherwise innocent actions or even genuine or mistaken beliefs. It does not have to come from someone who has something to gain, although it can.16

Then, on direct examination of the 7-year-old, the prosecutor asked the following question: “When Bobby walked into the bathroom, were you taking a bath or a shower?” Surprise! A totally new allegation, one not found anywhere in the multiple forensic interviews, in the counseling records, or in the outcry statement of this child. Nowhere!

The child’s answer was, “Yes.” But, yes to what? Bath or shower?

Well, the DA provided that information in the next question. “When you were taking a shower and Bobby walked in to the bathroom, was the shower curtain closed?” “Yes.” “What did Bobby do then?” And she went from there, adding more and more details. On an “event” that had never come up before the DA’s question.

Not surprisingly, every time the DA asked if that was all that Bobby had done, the complainant was able to conjure up more details—details that, when put in the total context, showed how impossible this event was. But all conjured up out of a desire to please the adult who was asking the questions.

Of course, these questions and the “answers” elicited demonstrate why you, as defense counsel, should be prepared to vigorously oppose any request by the DA for a “little leeway” in questioning the child complainant. The “leeway” that the DA is asking for is the ability to lead the child and the right to repeat the questions when the “correct” answer is not elicited.17

Fortunately for Bobby, during the recounting of details, the complainant said that Bobby was holding his penis with both hands. A 12-year-old holding his penis with both hands! On cross-examination, the 7-year-old was asked about how Bobby held his penis with both hands, whether it was one hand over the other or whether it was fingertip to fingertip. “Oh, it was fingertip to fingertip.” That answer was reinforced and then she was asked details about how much of the penis was above Bobby’s hands and how much was below. To say that a horse would have been jealous with envy is an understatement.18

But that is how very easy it is to implant memories in a child, or to get a child to go along with something an adult has stated. And having the court reporter transcribe those few pages so they could be read back to the jury conclusively demonstrated to the jury that coercion and force are not required to implant memories in young children. It was the gift that kept on giving.19

And this case is also an example of having the appropriate experts testify. While both experts were psychologists, one expert was able to testify to the science as related to what was done with and to the girls when the allegations first surfaced, in other words, when they were 2–4 years old. But this expert did not have a clinical practice or deal with children who were 7 years old or older. The other psychologist had a clinical practice, dealing with children as young as 7, and was very familiar with the science relating to corruption of recollection, the suggestibility of these aged children, and factors that could affect the reliability of their recollection. This psychologist was also able to opine how dangerous it was to have children this young on psychotropic medications. The expertise and experience of the two experts dovetailed perfectly to cover the entire time period and all of the factors that could influence the reliability of what the girls were saying. If you have one expert who can cover all of the science and facts involved in your case, then you can get by with one expert. But by all means, make sure that your expert can do so. Otherwise get the right number of experts for your case, making sure they have the appropriate experience and qualifications.

The third fallacy or flaw is that judges and DAs will attempt to re-frame your argument as going to the credibility, and that credibility is for the jury to decide. You cannot allow yourself to fall into this trap, either.

Why? Because credibility20 has nothing to do with the reliability of the testimony. Consider the Houston case of Josiah Sutton. Josiah was convicted of rape and sentenced to 25 years in prison.21 The rape victim was convinced that Josiah Sutton had raped her. She was very credible—so much so that then Harris County DA Chuck Rosenthal threatened to re-try Josiah, because he had the eyewitness’ testimony. But regardless of her credibility (believability), the DNA proved that, as to Josiah Sutton, her testimony was completely unreliable. And ultimately, he was not retried.

Reliability is the issue—the only issue—that is involved when you challenge a child’s recollection. And you must not allow the judge or the DA to shift the focus of your challenge.

Reliability is a threshold issue that must be determined by the judge.22 Reliability is not an issue that can be determined by the jury. Consider all of the cases under Rule 702, Tex. R. Evid., where the expert’s opinion (testimony) is challenged. Every single case holds that it is the court’s (judge’s) duty to determine the reliability of the opinion (testimony).

The court has a responsibility to ensure that evidence admitted at trial is sufficiently reliable so that it may be of use to the finder of fact who will draw the ultimate conclusions of guilt or innocence. That concern implicates principles of constitutional due process and due course of law. Reliability is the linchpin in determining admissibility of evidence under a standard of fairness that is required by the Due Process Clause of the Fourteenth Amendment and by the due course of law guaranteed by the Texas Constitution.23 Competent and reliable evidence remains at the foundation of a fair trial, which seeks ultimately to determine the truth about criminal culpability. If crucial inculpatory evidence is alleged to have been derived from unreliable sources, due process and due course of law interests are at risk.

So, how do you challenge the reliability of a young child’s recollection?

To challenge a child’s recollection, you should first have evidence that will support a finding of taint. If you don’t know what that evidence would consist of, you should become familiar with the case of Margaret Kelly Michaels.24 The Michaels case gives you examples of improper interrogation and quite a bit of the research in the field. If you need a starting point to learn about improper interrogation of children, there is probably no better place to start.

When, and only when, you have the evidence to support a taint motion, file a motion requesting a taint hearing. You might also want to challenge the outcry statement by separate motion. If you do so, you might want to try to have both motions heard at the same time. And consider also having the court hear your challenge to the child’s competence heard at the same time.

In a taint hearing, the court is asked to consider whether the number of people who have spoken to the child, the interview techniques employed by the State, its agents, the people or others involved, as well as other factors could have undermined the reliability of the complainant’s statements and subsequent testimony, to the point where the statements should be excluded.25 This is so because the complainant will probably have been sub­jected to repeated questioning and interrogation about the alleged event that gave rise to the indictment. This questioning may have been innocent and well-intentioned, such a relative’s concern when they believe that something untoward has been done to the child, or a counselor’s “belief” that something has happened so that the child may be continued in counseling.26

Again, remember that you, as movant, have the burden of proving what those factors are, that those factors are present, and that they are sufficient to undermine the trier of fact’s ability to rely upon the testimony.

And in a taint hearing, the court is asked to determine whether the child’s accusations were founded “upon unreliable perceptions, or memory caused by improper investigation procedures,” and thus whether the testimony reflecting those accusations could lead to an unfair trial.27 A pretrial hearing is required to assess the reliability of the statements and testimony to be presented by the child witness to determine their admissibility. This logic also applies to the outcry statement.

Expect the DA to try to limit your inquiry into the admissibility of the outcry statement to the factors set forth in Art. 38.072(2)(a), CCP. The authors suggest that the focus should instead be on the factors set forth in Art. 38.072(2)(b)(2), CCP,28 especially the “circumstances” of the statement. Those circumstances would include how the child came to have the “recollection” that led to the outcry.

Consider a couple of cases that the authors have been involved in. One arose out of a divorce case, where custody of an infant daughter was at issue. That daughter was too young to be verbal, so the mother’s two older daughters made outcries against the stepfather. CPS intervened in the divorce, and during discovery in the divorce, CPS produced a tape recording that the mother had made wherein she was heard telling her daughters that “this is what you need to say that your step-daddy did to you.”29

The other case involved a stepdaughter who accused her stepfather of sexually abusing her at the age of 6. After he had served 10 years of a 30-year sentence, she recanted. During the writ hearing, she detailed how upset she was that her mother had divorced her father, and how her aunt told her that if she said these things about her stepfather, her mother would have to divorce him and get back together with her father.30 Not surprisingly, the aunt had been the outcry witness. Also not sur­prisingly, the girl, who was almost 8 when she testified, had no concept of the consequences of her testimony—that her stepfather would be sentenced to prison for 30 years or that her mother would stick by him and not file for divorce.

This is important to comprehend because there is a constantly broadening body of scholarly scientific authority existing on the question of children’s susceptibility to improper interrogation.31 There is a consistent and recurring concern over the capacity of the interviewer and the interview process to distort a child’s recollection through slanted interrogation techniques. There are certain interview practices that are sufficiently coercive or suggestive to alter irremediably the perceptions of alleged child victims.

There are other scientific and psychological propositions that courts have addressed in analogous contexts, among these being (1) the availability of battered women’s syndrome as self-defense in criminal cases;32 2) the holocaust survivors syndrome;33 (3) the effect of hypnosis on the admissibility of testimony;34 and (4) the consideration of testimony at pretrial hearings regarding tainted identification evidence.35

The “investigative interview” is a crucial, perhaps determinative moment in a child-abuse case.36 That an investigatory interview of a young child can be coercive or suggestive and thus shape the child’s response is generally accepted. If a child’s recollection of events has been molded by interrogation, that influence undermines the reliability of the child’s responses as an accurate recollection of actual events.

A variety of factors bear on the kinds of interrogation that can affect the reliability of a child’s statements concerning abuse. A fairly wide consensus exists among experts, scholars, and practitioners concerning improper interrogation techniques. They argue that among the factors that can undermine the neutrality of an interview and create undue suggestiveness are a lack of investigatory independence, the pursuit by the interviewer of a preconceived notion of what has happened to the child, the use of leading questions, the use of suggestive questions, and a lack of control for outside influences on the child’s statements, such as previous conversations with parents or peers and whether the interviewer was a trusted authority figure.37

In cases with a child complainant, the complainant will often have been interviewed or interrogated by family members, psychologists, caseworkers, physicians, detectives, investigators, and even Assistant District Attorneys. The total number of persons will often be difficult, if not impossible, to determine. Often, a number of these persons will have conducted multiple interviews. The use of incessantly repeated questions also adds a manipulative element to an interview. When a child is asked a question and gives an answer, and the question is immediately asked again, the child’s normal reaction is to assume that the first answer was wrong or displeasing to the adult questioner.38 The insidious effects of repeated questioning are even more pronounced when the questions themselves over time suggest information to the child.39 In fact, memories of abuse that never occurred can be implanted in the mind of a child in just one interview.40

The explicit vilification or criticism of the person charged with wrongdoing is another factor that can induce a child to believe abuse has occurred. Similarly, an interviewer’s bias with respect to a suspected person’s guilt or innocence can have a marked effect on the accuracy of a child’s statements. The transmission of suggestion can also be subtly communicated to children through more obvious things such as the interviewer’s tone of voice, mild threats, praise, cajoling, bribes, and rewards, as well as resorting to peer pressure.

These are factors that are often present in contested divorce/custody cases. In fact, the authors routinely look for a the pendency of divorce case when these type of cases come in the door. That is not a bad thing, since it will often afford a vehicle for discovery—discovery that otherwise would not be available in the criminal case.

There is much authority recognizing the considerable sup­port the deleterious impact improper influence can have on a child’s memory. Other courts have recognized that once tainted, the distortion of a child’s memory is irremediable.41 The debilitating impact of improper interrogation has even more pro­nounced effect among very young children.42

The conclusion that improper influences generate a significant risk of corrupting the memories of young children is confirmed by government and law enforcement agencies, which have adopted standards for conducting interviews designed to overcome the dangers stemming from the improper interrogation of young children. The National Center for the Prosecution of Child Abuse, in cooperation with the National District Attorney’s Associations and the American Prosecutors’ Research Institute, have adopted protocols to serve as standards for the proper interrogation of suspected child-abuse victims. Those interview guidelines require that an interviewer remain “open, neutral and objective”;43 an interviewer should avoid asking leading questions;44 an interviewer should never threaten a child or try to force a reluctant child to talk;45 and multiple interviews with various interviewers should be avoided.46

Courts around the country recognize the very same concerns expressed in the academic literature and addressed by the guidelines established by governmental authorities with respect to improper interrogation of alleged child-abuse victims. The United States Supreme Court noted with approval the conclusion of the Idaho Supreme Court that the failure to videotape interviews with alleged child victims, the use of blatantly leading questions, and the presence of an interviewer with a preconceived idea of what the child should be disclosing, in addition to the children’s susceptibility to suggestive questioning, all indicate the potential for the elicitation of unreliable information.47

So, to conclude, as a matter of judicial economy and, frankly, lawyer economy, the authors believe it is possible to have a hearing that challenges the outcry testimony per Art. 38.072, and as you contest the admissibility requirements of the outcry, you should contest the statutory exception under Crawford. You can also contest the child’s personal knowledge under Rule 602 as well as the reliability of the proposed testimony of the child by virtue of who interviewed the child (parent, social workers, police, forensic interviewers, therapists, doctors, and prosecutors) and how they interviewed the child, while examining how these individuals and the repetition has now made it highly unlikely that the testimony of the child will be reliable (and also whether the child now has personal knowledge—e.g., is it real or is it Memorex®?).

That is why three motions need to be filed and can all be heard at one time by witnesses and experts. And if the judge refuses you, ask to make a bill.48 If the judge refuses to allow you to make your bill, you should make a proffer on the record of what the evidence would show. And then you raise the same objections when the child and outcry witnesses are offered during trial. Hopefully, given the present makeup, this should be held to preserve the error.

Lastly, during trial, make sure to hammer the number of times the child has been talked to, interviewed, counseled, etc. This will at least allow you to argue that the child’s testimony and the child’s outcry are not to be believed.

Notes

1. Taint—1. To imbue with a noxious quality or principle. 2. To contaminate or corrupt. 3. To tinge or affect slightly for the worse. Black’s Law Dictionary (9th ed. 2009)

2. Art. 38.072, CCP

3. See Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony by Stephen J. Ceci and Maggie Bruck (July 1999) for a thorough examination/discussion of the Salem Witch trials.

4. One of the authors attended a CLE presentation by a neuropsychologist from one of the Medical Colleges in the Texas Medical Center. This neuropsychologist opined that repressed memories are real because “you can’t have a memory unless you are in the same chemical state that you were in when the memory was created.” The author looked at the attorney seated next to him and said, “I’m not in the same chemical state as I was when (you fill in the blank) and I distinctly recall it.” The other lawyer laughed and stated that he had the same thought. To say that there are a lot of faulty studies on repressed memories is an understatement.

5. Knowing what your expert can and cannot testify to, and what the expert would have to concede on undisputed facts, is critical to providing effective as­si­stance of counsel. In one of the authors’ cases, the 39-year-old defendant teacher had placed 125 cell phone calls and exchanged 400+ text messages with the 13-year-old student-complainant in a 60-day period. The calls ranged from very short to almost 4½ hours in length, at all times of the day and night. Any competent expert would have to concede that this was consistent with the State’s theory that the teacher was “grooming” the student. As a result, while experts were disclosed, none was ever intended to be called during trial.

6. Tex. R. Evid. 601.

7. McGinn v. State, 961 S.W.2d 161, 165 (Tex.Crim.App.1998).

8. Torres v. State, 33 S.W.3d 252, 255 (Tex.Crim.App.2000) (quoting Watson v. State, 596 S.W.2d 867, 870 (Tex.Crim.App.1980)).

9. Watson, 596 S.W.2d at 870.

10. Broussard v. State, 910 S.W.2d 952, 960 (Tex.Crim.App.1995), cert. denied, 519 U.S. 826, 117 S.Ct. 87, 136 L.Ed.2d 44 (1996)

11. The excerpt from the actual deposition can be found in The Underground Lawyer, © 2001 by Michael Louis Minns.

12. Although the head of the committee read and signed his deposition, he never changed this answer. The specific type of psychic phenomena (spirits, automatic writing, ouija board, tarot cards, crystal ball, tea leaves, etc.) was not identified by the head of the committee.

13. This was in a case in Harris County defended by Mark Ramsey. The three-year-old boy was questioned on videotape by a CPS caseworker. Four times the boy denied that his father had done anything. The caseworker then sat the boy on her lap and proceeded to rub his crotch! The boy was so upset that he wet himself and got away from her. She then repeated the same questions, eliciting different and incriminating answers. At the end of this, she asked whether the answers he had just given were the truth or a lie. The young boy spun around, looked directly at the camera and said, “They’re a lie!” Judge Myron Love found the young boy incompetent to testify, based on the videotape.

14. See, e.g., Investigative Interviews of Children: A Guide for Helping Professionals by Debra A. Poole and Michael E. Lamb (Jan 1, 1998); Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony by Stephen J. Ceci and Maggie Bruck (July 1999); The role of mental imagery in the creation of false childhood memories, Hyman Jr., I. E., & Pentland, J. (1996), Journal of Memory and Language, 35, 101–117; The reality of repressed memories, Loftus, E. F. (1993), American Psychologist, 48, 518–537; The formation of false memories, Loftus, E. F., & Pickrell, J. E. (1995), Psychiatric Annals, 25, 720–725;“A picture is worth a thousand lies: using false photographs to create false childhood memories, Wade, K. A., Garry, M., Read, J. D., & Lindsay, D. S. (2002), Psychonomic Bulletin & Review, 9(3), 597–603.

15. You might even consider including a request that the adults in the child’s family be enjoined from talking to the child about the alleged event.

16. A kid’s statement of opportunity (e.g., “daddy touched my pee-pee and it hurt”) can be taken from what it actually is (a father putting diaper rash cream on a rash) and turned into something far more sinister—if the adult hearing the statement has the motive to do so (e.g., a contested custody case).

17. In this case, counsel had objected to the court allowing this “leeway.” The objection was overruled by the court, so a leading objection was made as to each such question. You should do the same to protect the record.

18. In closing arguments, counsel stood in front of the jury box, put his hands fingertips to fingertips and told the jury, “If this is what little Suzie really thinks that men have, then she is either going to be sorely disappointed or greatly relieved when she becomes a woman.”

19. The DA never wavered from her stated belief that Suzie was to be believed—despite the physical impossibility of what she had described. This demonstrates the position taken by many DAs that everything proves that something happened and nothing proves that something didn’t happen.

20. Credibility—The quality that makes something (as a witness or some evidence) worthy of belief. Black’s Law Dictionary (9th ed. 2009).

21. Josiah Sutton is the poster child for the problems with the Houston Po­lice Department Crime Lab. A crime lab technician testified that the DNA was an exact match even though, with only 3 of 13 alleles matching, it was an absolute exclusion. His writ of habeas corpus was granted, and he was freed af­ter serving 4 years of his sentence.

22. Reliable—Capable of being relied on; dependable. The American Heritage Dictionary of the English Language, Fourth Edition copyright © 2000.

23. Manson v. Brathwaite, 432 U.S. 98 (1977) (regarding the corrupting effect of unreliable identification testimony).

24. State v. Michaels, 642 A.2d 1372 (New Jersey 1994). While Michaels is only persuasive authority, it comes from a “sister court” to the Court of Criminal Appeals. And it is spot-on with the science and resources that it refers to.

25. By interview techniques, the authors include all of the times and ways that the adults in the child’s life have spoken to the child about the alleged event. Conversations with parents or adult relatives, counseling sessions, etc., can all affect a child’s recollection.

26. It is an axiom of counseling that the counselor must not be confrontational but must “believe the patient” for the counseling to work. Of course, this raises the very real economic bias of the counselor, since counseling continues only if the child needs it because something has happened. It also raises the spec­ter of “confirmatory bias”—people tend to find what they are looking for.

27. These investigation procedures include parents or relatives repeatedly asking the child what happened. It can also include therapy sessions.

28. “[T]he trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement” (emphasis added).

29. This shows the importance of trying to get discovery through any ongoing civil case. As a result of the tape-recording, the outcries were suppressed and the cases dismissed.

30. These are the facts underlying the writ of actual innocence in Ex parte Harmon, 116 S.W.3d 778 (Tex. Crim. App. 2002).

31. See Endnote 14, above.

32. Fielder v. State, 756 S.W.2d 309 (Tex. Crim. App. 1988), Pierini v. State, 804 S.W.2d 258 (Tex. App.—Houston [1st Dist.] 1991, review refused), Lane v. State, 957 S.W.2d 584 (Tex. App.—Dallas 1997, no writ).

33. Werner v. State, 711 S.W.2d 639 (Tex. Crim. App. 1986).

34. Zani v. State, 758 S.W.2d 233 (Tex. Crim. App. 1988), Vester v. State, 713 S.W.2d 920 (Tex. Crim. App. 1986, en banc), Spence v. State, 795 S.W.2d 743 (Tex. Crim. App. 1990, en banc), Burnett v. State, 642 S.W.2d 765 (Tex. Crim. App. 1982, en banc).

35. Barley v. State, 906 S.W.2d 27 (Tex. Crim. App. 1995, en banc); Manson v. Brathwaite, 432 U.S. 98 (1977) (regarding the corrupting effect of unreliable identification testimony); Gilbert v. California, 388 U.S. 263 (1967).

36. See Gail S. Goodman and Vicki Helgreson, Child Sexual Assault: Children’s Memory and the Law, 40 U. Miami Law Review, 191, 195 (1985).

37. John E. B. Myers, The Child Witness: Techniques for Direct Examination, Cross-Examination and Impeachment, 18 Pac. L.J. 801, 899 (1987).

38. See Debra A. Poole and Lawrence T. White, Effects of Question Repetition on Eyewitness Testimony of Children and Adults, 27 Developmental Psychology, November (1991) at 975.

39. Goodman and Helgeson, supra, 40 U. Miami L. Rev. at 184–187.

40. See William Bernet, M.D., Case Study: Allegations of Abuse Created in a Single Interview, Journal of the American Academy of Child and Adolescent Psychiatry, 36:7, July 1997, pp. 966–970.

41. See State v. Wright, 775 P.2d 1124, 1128 (1989), aff’d sub nom Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). (“Once this tainting of memory has occurred, the problem is irremediable. That memory, is from then on, as real to the child as any other.”). See also Stephen J. Ceci and Maggie Bruck, Jeopardy in the Courtroom, 1995, pp. 218–220.

42. See Stephen J. Ceci, PhD, and Mary Lynn Crotteau Huffman, PhD, “How Suggestible are Preschool Children? Cognitive and Social Factors,” Journal of the American Academy of Child and Adolescent Psychiatry, 36:7, July 1997, pp. 948–958, as well as Maryann King and John C. Yuille, Suggestibility and the Child Witness in Children’s Eyewitness Memory, 29 (Stephen J. Ceci et al., eds. 1987) and Age Difference in Suggestibility in Children’s Eyewitness Memory 82 (Stephen J. Ceci et al., ed. 1987).

43. American Prosecutors; Research Institute, National Center for Prosecution of Child Abuse, Investigation and Prosecution of Child Abuse at p. II-7 (1987).

44. Id. at II-8.

45. Id. at II-9.

46. Id. at II-5.

47. See Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990).

48. The right to make a bill of exception is absolute. Kipp v. State, 876 S.W.2d 330 (Tex. Crim. App. 1994). Being refused the right to make a bill of exceptions may build in reversible error.

Who and What Are We? Lawyers or Salespeople?

Over the years, I have been cognizant of members of the bar who, while having the piece of plastic in their pocket that says they are members of the State Bar, were not living up to the high ideals of the profession. This gave me a sense of unease, but I could not put my finger on the problem.

Then it came to me. I was finally hit with the realization that many of us are not lawyers in the highest sense or counselors at law but rather just salespeople out to make money. Three experiences made me come to that realization.1 These experiences just seemed to hit me all at once and have an impact on me. And mind you, I have been practicing criminal law for over 30 years.

The first experience that made me think about what our calling is, or should be, was when I was appointed to represent a young Black male charged with drug possession in a drug-free zone. I got to meet the young man and he seemed like so many youths of today, uncertain about what he was going to do with his life. His case was set on the magistrate’s docket, and right off I was given a really good deal. The deal was reduce to a Class A possession of a controlled substance, Zanex, with either time served or a two-year deferred. I would get my voucher paid within two weeks (and like everyone else I need the money), and my client gets out of jail. But is that all I should be doing? Is that what lawyering is?

I will not plead anyone until I have investigated the case as to the facts and all applicable law. I also have to know who my client was and what would be in his best interest—not only now but later in life. So many young people might have been diverted and their lives improved had someone done more than process them quickly through the system and get their quick fee.

In this case, I decided to do all I could to get him out of jail and into some kind of counseling. I also decided that given the stop-and-search issues and the constitutionality of the drug-free zone statute, I would do all I could to get the charges dropped. There were serious issues concerning the officer’s detention of the young man and the subsequent search and interrogation.

These issues merit challenge. I do not know if I will succeed and if this will ultimately have a positive impact on this young man, but a quick plea and a quick fee would not have been “law­yering” in my opinion. I will have invested more time and received less money for my time on this appointed case. But I feel that I will have lived up to my oath of attorney, to “discharge [my] duty to [my] client to the best of [my] ability.”2

The next experience that caused me to rethink our profession was when I was in a county court and saw a young associate of a “firm” with a stack of files a foot high, going through each for about five minutes with a prosecutor who was doling out plea offers. I was thinking how in heaven’s name could these clients be getting the benefit of Padilla,3 Lafler,4 and the Performance Standards for Representation on Non-Capital Offenses? The answer is no darn way!

While that lawyer was going through this quick bargain-basement sale, another came in with a daily docket with 50 peo­ple on it getting reset after reset—all the while I waited in line to reset the 2 cases that I had been working on. I thought wow, intense advertising, in-office sales pitches, cut-rate fees, and a lot of money. But is this lawyering? Does either live up to our Oath of Attorney?

The next experience was one that just made me wonder whether this was an honorable profession, one that I could be proud of and continue to be part of. That experience involved a contract lawyer—for a high-volume firm—cutting a quick but ultimately terrible plea deal. This was a young lawyer hired by a high-volume, heavy-advertising firm to handle a felony driving while intoxicated case.

These contract lawyers get a fee that is capped at a certain amount. They are tasked with working the case out in order to get their fee (and thereby make themselves a profit). These capped fees do not envision taking a case to trial. These capped fees don’t even envision the contract lawyer doing the kind of evaluation envisioned by the Performance Standards. And, in my opinion, these capped fees create an inherent conflict of interest between the lawyer’s financial self-interest and the client’s right to diligent, competent representation.

The problem with lawyers contracting to take these capped fees is that it ultimately results in representation that is questionable, at best. This lawyer did not view the video of the stop or of the field sobriety tests. But he made a quick offer to the prosecutor for a long probation with a long jail sentence as a condition. The client, not knowing any better and rightfully relying upon his lawyer, took the plea.

Fortunately for this defendant, a friend of his who is a lawyer referred him to an attorney who takes lawyering seriously. The client was awaiting sentencing and decided to retain the lawyer he was referred to. The newly retained lawyer undertook an investigation and viewed the video. In doing this, he discovered how weak the case was.

After convincing a prosecutor (who is higher up the chain of command) to view the video with him, that prosecutor also had doubts about the merits of the case. The prosecutor who handled the case was brought in to discuss the case. Both prosecutors and the newly hired lawyer went to the judge with a motion for new trial to set aside the guilty plea. The ultimate result was a reduction to a misdemeanor.

What a difference! An attorney who takes his Oath of Attorney seriously and realizes that his relationship with his client is one of uberrima fides—instead of a lawyer who is only concerned with counting the stools.5

These scenarios play out daily in our courts. But is this abiding by our oaths? Is it really lawyering? Is it fulfilling our obligations to our clients and to the courts? Not in my opinion.

I am very proud of my membership in the Texas Criminal Defense Lawyers Association. I am equally proud of my fellow advocates, those who abide their Oaths of Attorney, those who believe in the values of our United States and Texas Constitutions, and those who fight daily to defend and preserve the Rule of Law. My concerns are not with those of us who are mem­bers of this organization, those who are the true advocates. My concerns are with those lawyers who have lost sight of what lawyering really is, and especially with those who are not members of our group.

But what the lawyers depicted in the above scenarios are doing by putting business models and the bottom line first is having a negative impact on our practices, on us individually, and on how others view us. Is it any wonder that used car salesmen continue to have a more favorable opinion among the general public than lawyers do?

So how do we address the concerns I have raised? I am not sure. One possibility would be for TCDLA to propose some guide­lines of our own and to disseminate those guidelines to lawyers who handle criminal cases. Another would be educating the public about what they should expect from those who take on the responsibility of undertaking their cases. Public Service Announcements (PSAs) work great for this sort of thing.

Another could be a willingness on each of our parts to look at previously pled cases when clients who have priors come to us with new cases—looking more closely at those cases not just in terms of how they affect a client’s liability on a new case and how they can be proven up, but on what was done in securing the plea to those cases in the first place. In looking at those previous convictions, if they were the result of guilty pleas, we should look at Padilla, Lafler, and the Performance Standards to determine if the pleas were intelligently and voluntarily entered. In those cases where the pleas do not appear to have been entered intelligently and voluntarily due to the ineffective assistance of counsel, we need to be willing to file post-conviction habeas ap­pli­cations to set aside those pleas. And perhaps we need to set up a committee within TCDLA to accept and file complaints with the State Bar against attorneys whom we see engaged in these practices.6

We are the first line of defense against governmental excess. We are defenders of our Constitutions and of the Rule of Law. Our decisions and our performance can affect people and their families for years to come if not for the rest of their lives. And given our high calling, we must do all we can to make sure that all of us who undertake this calling remain true to the highest ideals of that calling. Help me address these problems. Be silent no longer.

Notes

1. The experiences detailed in this article are those of Leonard Martinez. While this article is written in the first person, Butch Bradt has had similar experiences and agrees with the views and opinions expressed by Leonard Martinez herein.

2. § 82.037, Tex. Gov’t code.

3. Padilla v. Kentucky, 130 S.Ct. 1473 (2010).

4. Lafler v. Cooper, 132 S.Ct. 1376 (2012).

5. This is an expression from the restaurant business. It refers to the profit that can be made from a given number of chairs. To make a given profit, the res­tau­rateur must either raise prices or increase the turnover, increasing the num­ber of patrons in a given hour. The same logic applies to lawyers who have a “volume practice.”

6. Rule 8.03(a), Texas Disciplinary Rules of Professional Conduct requires us to report lawyers who violate the applicable rules of professional conduct.

Do You Know What You Don’t Know?

Have you ever defended any of the following types of cases?

– Injury to a child?
– Injury to a child resulting in death?
– Aggravated sexual assault of a child?

As a general rule, these cases are guaranteed to get your client a very long sentence if he is convicted—what some lawyers call the “slow death penalty.”

And as a general rule, these cases are among the most complicated cases to defend. This is doubly important in light of the sentences that juries are likely to impose upon conviction. Unfortunately, most lawyers don’t really understand just how complicated they are, or the land mines they are filled with. In other words, they don’t know what they don’t know.

Even well-meaning lawyers who don’t know what they don’t know help create bad case law. And we have an overabundance of bad case law created by lawyers who did not know. These attorneys cannot properly protect the appellate record, and this leads to even more bad case law. Lawyers who do not know there is a special body of science dealing with all aspects of child abuse do not know what they do not know.1

Not knowing what you don’t know often leads to convictions. When only three of thirteen alleles match, it is an absolute exclusion, not an absolute match. But there was testimony in a rape case, which apparently went unchallenged, that the DNA was an exact match when only three alleles matched. The defendant was convicted. The authors suggest that the defense counsel did not know what he did not know.

If you’re honest with yourself, you would probably rather defend a straight-up murder case than an injury to a child or a sexual assault of a child. Why? Because you may be able to sneak in the old “S.O.B. needed killing” defense. But the authors have yet to meet the first juror who ever thought that a child needed injuring, or killing. In other words, your ordinary defenses are missing. That alone is a tremendous hurdle to overcome.

And if you didn’t realize that a straight-up murder case is easier to defend than one of these cases, then you don’t know what you don’t know.

The work-up on these cases is critical. Whether the child is dead or injured or allegedly abused or sexually assaulted, there are going to be volumes of records to go through. Invariably, there are even more records and evidence that will need to be obtained. Do you even know what you are looking at, much less looking for, in the records?

Consider an infant who has died from what the State says is ethylene glycol poisoning? Do you know what to look for in the medical records to see if it could be the result of a genetic defect? Do you know which experts to consult with? Do you know what testing has to be done to confirm the genetic defect? If you don’t, then you don’t know what you don’t know.2

Consider a case involving an allegation of sexual assault of a child where the physical findings are normal, or inconclusive? The alleged assault is said to have occurred years before, and the State is relying upon the “outcry witness” and psychologists who have interviewed, counseled, and treated the child. Who and what are the experts you need to defend this case? If you can’t name them, then you don’t know what you don’t know.3

Consider a case involving scald injuries to a child. Do you know how to look at the photos and tell the difference between accidental and intentional scalds? Do you know who to send the photos to for an expert opinion on same? Again, if you can’t or don’t, you don’t know what you don’t know.

Consider the following hypothetical scenario. A father finds his six-month-old child unresponsive in a crib. He calls 911 and tries CPR. EMTs arrive and the child is still unresponsive. EMT records show periods of anoxia during transport. The child is received in ER, followed by more periods of anoxia. The first CT scan is clear, but the second shows a subdural hematoma and rib fracture. The child ultimately dies. Multiple bleeds are found in and around the brain, and an autopsy finds fractures of the ribs, of different ages—some new and some healing. The case is indicted as injury to a child resulting in death. The DA refers to it as a “shaken-baby” case. Who and what are the experts you need to defend this case? If you can’t name them, then you don’t know what you don’t know.4

In that hypothetical case, what medical records would you need to obtain, other than those of the EMTs and the hospital to which the child was taken? If you can’t name them, then you don’t know what you don’t know.5 And if you can’t say why these particular records are important, then you don’t know what you don’t know.6

Who is the State going to call as its experts? How are you going to deal with each of them?

Did you know that the American Academy of Pediatrics now offers a Board Certification in Child Abuse? Imagine, doctors who are now board certified in diagnosing crimes. And those doctors testify with great conviction (and efficacy) as to the “proof” that they find of the crimes your client has committed. Never mind the very serious flaws in the studies they rely upon—they are board certified, after all, and by the American Academy of Pediatrics, at that. Do you even know the names of the studies that these experts rely upon to say that certain types of retinal hemorrhages are pathognomonic of abuse, much less the research that shows how deeply flawed these studies are? If you didn’t know this, then, again, you don’t know what you don’t know.

The State’s expert (an M.D.) is going to testify that the forces that the child was subjected to are equivalent to the forces that would be experienced in a fall from a third story onto concrete—and that it is this type of force that caused the injuries the child or the child’s brain suffered. Anything wrong with that analysis or analogy? If you said no, or if you cannot articulate what is wrong, then you don’t know what you don’t know.7 Interestingly, there is at least one forensic pathologist who will testify, and who has performed autopsies on persons who committed suicide by jumping off of third-story balconies onto pavement. Needless to say, what he found in his autopsies bears no resemblance to what will have been found on the autopsy of the child in your case. And if you don’t know who this pathologist is, you don’t know what you don’t know.8

Do you know what questions you need to ask the State’s witnesses to try to establish your defense? Do you know what questions you need to ask your experts? If you didn’t know this, then, again, you don’t know what you don’t know.

The voir dire on these cases is critical. What is your expertise in preparing to voir dire for one of these cases? Not what is your experience (read: number of cases) in conducting voir dire, but what is your expertise in preparing to voir dire for one of these cases? If you did not realize that expertise in preparing voir dire for this particular type of case was necessary, then, again, you don’t know what you don’t know.

When is the last time that you attended a seminar dedicated exclusively to the science involved in defending these types of cases? If it is more than a year ago, then, in the authors’ opinion—and in the words of Wolf-brand Chili®—that’s too long. And again, you don’t know what you don’t know.

How many books do you have in your personal library dealing with the issues that arise in these types of cases? How recent are they? If your answer is only a few, and if they are older than ten years, then you probably don’t know what you don’t know.

What do you do to stay current on the latest developments in the science of these cases? What do you do to stay abreast of which experts to use and which experts to avoid (and why) and which experts fall in the middle?9 If you don’t do anything in this regard, then you probably don’t know what you don’t know.

Is there a solution to overcoming not knowing what you don’t know? The authors, who between them have 67 years of experience as attorneys, suggest there is. Interestingly, they came to the same solution independently—one 10+ years ago and the other within the last year. But they write together because they are so convinced of the value of the solution that they each came to.

That solution is this: They have both resolved to never undertake one of these cases without the assistance of Kim Hart. Who, you may ask, is Kim Hart?

Kim Hart is listed on TCDLA’s List of Experts under child abuse. She is a trial consultant living in Toledo, Ohio, and has more than 25 years’ experience assisting attorneys defending these type of cases all over the country—actually, the world.10 During that period of time, she has helped lawyers defend over 2,000 of these types of cases. Does your experience come anywhere near that? The authors’ combined experience is but a fraction of a percentage of that number.

In addition, she is the Executive Director of the National Child Abuse Defense and Resource Center (NCADRC). NCADRC is a 501(c)(3) entity that hosts its own seminar every two years on defending these cases. NCADRC has also co-sponsored CLE seminars with other criminal defense associations on these same topics in various parts of the country.

Because of this work, Ms. Hart deals with the foremost experts in many fields related to defending allegations of child abuse. She also stays current on the most recent developments in the fields, either through reading or in speaking directly to the various experts. Because so many of the very best experts have presented at the NCADRC seminars and hold her in such high regard, Ms. Hart is able to call them and get through to them, especially when time and answers are critical.

The insight she brings to these cases is invaluable. In a case in Toledo, Ohio, one of the state’s experts claimed to have been part of Dr. Ommaya’s team that did the research with rhesus monkeys.11 Ms. Hart located Dr. Ommaya in retirement and got him to come testify that the expert had never been part of the research team. Would you have thought to try to contact Dr. Ommaya? Even if you had, do you think you could have gotten him to come testify?

Kim Hart is a must-have member of any team defending a child abuse case. In one case, Leonard Martinez was brought into the case by another lawyer just days before trial. It was a continuous sexual abuse of a child case. A 13-year-old child was accusing her mother’s former boyfriend of having raped her once a week for 16 or more weeks. It would allegedly happen when her mom left early in the morning to go to a flea mark in San Antonio. And the sister of the complainant, who is a year younger than the complainant, was allegedly an eyewitness to at least one of the rapes.

Leonard contacted Kim Hart, and even though the trial judge refused to give any resources, Kim helped with brainstorming, resources, and strategy. The case was a nightmare from Hell. The trial judge refused to give counsel any additional time to prepare. In a motion for continuance, counsel cited the “Performance Standards for the Representation of Non-Capital Cases.” The judge was not even aware of such standards.12 As a result of some of the judge’s rulings, a motion to recuse was filed, and after a hearing, counsel was given just two additional weeks to prepare. Counsel had a total of three weeks to deal with a case no less complicated than a death penalty case, a case more emotionally charged than a death case, one that carried the potential of life without parole—the slow death penalty.

With the help of Kim Hart’s advice, Leonard’s team was able to have their client acquitted of all charges from continuous sexual abuse of a child all the way down to indecency by exposure. Without her help and advice, there is little doubt in the defense team’s mind that their client would have, in all probability, been convicted.

It is the opinion of the authors13 that you should never take one of these cases without hiring Kim Hart or having her appointed.14 There may be other trial consultants out there who are as competent in this field, but the authors have never heard of any, much less met one. Until they do, they are going to stick with what has been proven time and time again, throughout this country, by other lawyers who have used her services.15

Unfortunately, there are too many lawyers who believe child abuse cases can be handled like any other criminal case. Those who believe that are woefully unprepared to take on such a case. They don’t know what they don’t know.

The issues involved in child death, child injury, and child sex abuse cases are often difficult to identify and very difficult to analyze once identified. Kim can help you not only identify the issues, but also review the records and analyze the issues, bringing in the experts needed to assist the team in effectively representing the accused.

And if you didn’t know about Kim before this article, you now know part of what you didn’t know. For your benefit, the benefit of your clients and the benefit of Texas jurisprudence, please don’t ever handle one of these cases without Kim’s active participation and involvement. You may not be perfect, but you will at least be prepared. And you will no longer be in the position of not knowing what you don’t know.

Notes

1. Some of the “science” is not even worthy of being referred to as junk science. But you need to know which is which.

2. This is the case of Patricia Stallings in Missouri. She was sentenced to prison for life but subsequently exonerated on a writ when it was conclusively established that the laboratory results were misread and the recessive genetic defect that she and her husband both had was conclusively identified, thereby showing the cause of the propionic acid (not ethylene glycol) poisoning. Among the other problems with the case were that one laboratory claimed to find ethylene glycol even though its retention time (the period it takes for a compound to traverse a GC column) was not identical to a standard sample of ethylene glycol. Another laboratory did not even bother to run a standard. One laboratory did not calculate that the child would have had to consume 300 liters of ethylene glycol to account for the results of the chemical analysis. Genetic testing showed that the dead son had MMA, and the compound identified as ethylene glycol was shown to be propionic acid instead.

3. There are at least two: a SANE nurse or a pediatrician with experience in sexual assaults and a psychologist familiar with implantation of memories or corruption of memories.

4. There are at least two: an ME and a biomechanician.

5. You need to obtain the records relating to the birth of the child and any med­ical records of the child, especially those showing any vaccinations ad­min­istered to the child.

6. The birth records will show the child’s health at the time of birth and whether there was any birth trauma that could account for the rib fractures, among other conditions. Vaccinations have been shown to cause severe adverse reactions in young children, including subdural hematomas and even death.

7. A physician is not competent to calculate the forces that the body suffers in any particular situation. That job belongs to a biomechanician. And courtesy of biomechanics, we know that it is impossible to shake a child and generate any­where near those forces.

8. The pathologist is David Posey, M.D. He presented at the 2008 National Child Abuse Defense and Resource Center’s biennial seminar in Las Vegas. From May 1985 to August 1990, while he was Staff Pathologist and Forensic Pathologist at Tripler Army Medical Center, he was locum tenens at City and County of Honolulu Medical Examiner’s Office.

9. There are some physicians who are extremely competent in diagnosing hematomas and explaining their non-criminal causes, but they want to express opinions about the forces involved. If you know that up front, you can use them as experts, so long as they understand that they will not, under any circumstances, opine on the forces involved.

10. Ms. Hart has helped attorneys defend these type of cases in all 50 states, Puerto Rico, Guam, American Samoa, Canada, Australia, and Great Britain.

11. Ayub Ommaya, M.D. Dr. Ommaya’s research with rhesus monkeys provided the experimental data needed to model traumatic brain injury, which was used to come up with the unfounded theory of “shaken baby.”

12. This raises the question, were you?

13. The authors know other attorneys in other states who are of the same opinion when it comes to defending this type of case. Those lawyers will also not defend one of these cases without Ms. Hart’s assistance.

14. In several cases on which he has been appointed, Leonard Martinez has been able to have the trial judge authorize fees for Ms. Hart to be retained to assist in the defense. While it may be difficult, getting Ms. Hart appointed can be accomplished.

15. See Endnote 10, above.

Five Easy Steps to Drafting Better Motions

If you’re reading this article, you practice criminal law. What percentage of your practice encompasses criminal defense is irrelevant for the purpose of this article. What is relevant is that at some point in your practice, you will have to file one or more motions for your client.

So how do you get the most bang for your buck out of the motions that you do file? This article will try to help you do just that while helping you to overcome some of the bad habits that you have labored under since law school.

Welcome to my five-step program to better motion practice.1

First, consider who your initial audience is—the trial judge. How many trial judges do we know or have we practiced in front of whom one could consider to be legal geniuses? If you’re honest, the answer is probably few, if any. Most trial judges do not even have the luxury of having an intern to assist them in researching the law, much less a briefing attorney. So you will have to educate the judge on the law, especially if your motion appertains to something the judge does not deal with on a frequent basis.

In addition to a lack of legal genius, most judges lack time—simply because of the number of cases set on the court’s docket every day. It’s a simple mathematical function: the more cases that are set on any given day, the less time, on average, the judge can devote to any given case.

All of which means, KISS (keep it simple, stupid).

Part of keeping it simple is to limit what you’re requesting the court to rule on to one item or topic per motion. A discovery motion may address separate items, but it is still a discovery motion. My preference is to split out the request for Brady material and not include it in a global discovery motion. If you file a motion to suppress, I suggest you not combine different subjects of suppression into one motion. If you have a case that involves a warrantless search and a statement obtained after your hero was in custody but who was not given the requisite Miranda warning, these should be addressed in two separate motions. If nothing else, this gives you two opportunities to argue the facts and law to the judge.

Another part of keeping it simple is to remove unneeded verbiage from your motions. Because we were taught this in law school, we’ve all drafted a motion that starts off like so:

Comes now the Defendant, [Your Hero (hereinafter “Hero”)], by and through his attorney of record, Tom De­fender, of the firm of Defender, Darrow, Lincoln & Solomon, PLLC, who respectfully moves the Court to entertain and rule upon the following motion, which is supported by the facts and law set forth herein, etc.

Ask yourself, what does that verbiage add to your motion? Nothing. It takes up about a half a page and just dulls or blunts the judge’s attention to what you really want a ruling on. And in the context of criminal cases in state court, have you ever seen an indictment that names more than one defendant? I haven’t. The rule is one indictment (cause number), one defendant.2 The plaintiff is the State of Texas, and you sign the pleading as the attorney for Your Hero. Why do you need to waste more ink identifying who the movant is, while making the judge want to put your motion down and not read it?

Second, your motion should start with a simple recitation of the relief you are requesting and a short recitation of facts that support your position. Remember that you have already given your motion a title—a title that should alert any reader to what the motion is seeking. Consider this hypothetical example.

The caption of the motion would read “Motion to Suppress Videotaped Statement Taken December 4, 2011.”

The body of the motion would start as follows:3

This Court should suppress the videotaped statement made by the Defendant on December 4, 2011, because:

  • Defendant was in custody, as shown in the videotape by him being in a county orange jumpsuit, handcuffed, and surrounded by members of the Sheriff’s and Constable’s Offices;
  • Defendant was not given his Miranda warning before he was walked through the crime scene and ques­tioned, on camera, about his involvement in the alleged crime; and
  • There was no warning given to him as required by Article 38.22, C.C.P. before he gave his oral statement.

How different is that? You’ve told the judge specifically what you’re going to ask him to do and what facts you are going to prove that would entitle your client to the relief sought. This will also give you a step-by-step guide to what you will have to prove during your presentation of the motion.

Third, your motion should follow up with a recitation of facts that entitle you to relief. I put the following in:

Facts That Support Relief Sought:

I put that at the left margin because it provides a break and is easily found by the judge as he goes back and forth through your motion. I then follow with an expanded recitation of the facts. In the hypothetical motion, this would look something like this:

  • On December 4, 2011, at 10:07 a.m., the Defendant was arrested by Sheriff’s Deputy Bob Donutlover on an outstanding traffic warrant. See Offense Report, Exhibit A, attached hereto and incorporated by reference for all intents and purposes.4 There is no reference in the Offense Report to the Defendant having been given his Miranda warning. And there is no record that has been produced by the State that shows that the Defendant was, in fact, given his Miranda warning.
  • Deputy Donutlover took the Defendant to the County Jail and processed him into the jail on his traffic warrant. See Jail Records, Exhibit B, attached hereto and incorporated by reference for all intents and purposes. These records show that two Sheriff’s Investigators checked the Defendant out of the County Jail at 1:07 p.m. The Offense Report shows that the Defendant was taken into an interview room at the Sheriff’s Department at 1:19 p.m. There is no audio or video recording of what transpired in that interview room. There is no signed document showing that the Defendant was read his Miranda warning.
  • The videotape that does exist is of the Defendant at the scene of the alleged crime. A true and correct copy of the videotape is attached hereto, marked Exhibit C, and is incorporated by reference for all intents and purposes. The videotape contains a date and time stamp that is visible on the screen. It starts at 11:53 p.m. While the Investigator identifies himself and the Defendant on the tape, no one gives the Defendant the warning that is required by Article 38.22, C.C.P., before they start walking him through the crime scene, asking him questions and eliciting answers.

I like to number my paragraphs sequentially. This is required in Federal Court and makes it easier to adhere to the idea of one paragraph, one fact or one set of related facts. And it is easier for a judge who is keeping notes to be able to check off the paragraph as proven.

Fourth, follow up with a Memorandum of Law in Support of Motion. Bold that and put it to the left margin on the page, like this:

Memorandum of Law in Support of Motion:

This is not only easy for the eye to follow but it serves al­most as a page break.

The first paragraph of the Memorandum of Law should set forth a recitation of what constitutional provisions the motion is brought under or which are affected by the State’s actions. Always federalize your claims, asserting as many Federal constitutional rights as you can think of. Remember, there is not much worse for an appellate attorney than to realize that all of the claims were asserted under the Texas constitution.

Follow that up with the statutory provisions and case law that support your position. I have become an adherent of the style advocated by Bryan Garner in his book, The Winning Brief.5 Garner advocates putting all case cites into footnotes, so that your paragraphs read more smoothly. Once you become accustomed to putting your case cites into footnotes, you’ll never go back to the old way.

Try to weave in the facts so that the judge is not left with the impression that he is reading a hornbook. Remember that law school scarred many a lawyer, and you wouldn’t want to bring pain­ful memories back for the judge, would you?

Fifth and last, give the judge a conclusion that wraps everything up in such a way as to show that your hero is entitled to relief. Not a “Wherefore, Premises Considered, Defendant prays that this Court grant his motion” conclusion. That requires the judge to remember everything that he has read and heard you argue. Instead, from our hypothetical motion, the Conclusion would look something like this:

CONCLUSION

On December 4, 2011,

  • Defendant was in custody, as shown in the videotape by him being in a county orange jumpsuit, handcuffed and surrounded by members of the Sheriff’s and Constable’s Offices;
  • Even though he was in custody for almost 14 hours, Defendant was not given his Miranda warning before he was walked through the crime scene and questioned, on camera, about his involvement in the alleged crime; and
  • There was no warning given to him as required by Article 38.22, C.C.P., before he gave his oral statement on the videotape.
  • Therefore, this Court should suppress the videotaped statement made by the Defendant on December 4, 2011. This Court should grant Defendant general relief.

In the Conclusion, I still number the paragraphs but I start over with number one. This reminds the judge of what is set out in the very beginning of the motion and allows a few air fingers as demonstrative aids as to why your Hero is entitled to relief.

If you start writing your motions in this manner, you may not be any more successful with the trial judges6 but you will have an easier time presenting your motions while making a cleaner appellate record.

Notes

1. Grateful acknowledgment is given to Bryan Garner and his LawProse seminars, from whom most of these techniques were learned.

2. While an indictment in Federal court can name multiple defendants, the logic is the same.

3. Notice that I do not start off with “To the Honorable Judge of Said Court:” To whom else could the motion be directed? This is needless surplusage that gains you nothing. No rule requires that it be included in pleadings or motions.

4. It is important that you incorporate what you have attached, otherwise it really isn’t part of the motion or pleading. See Street v. Cunningham, 156 S.W.2d 541 (Tex. Civ. App.—Fort Worth 1941, no writ).

5. Bryan Garner, The Winning Brief, 1999. If you don’t own this book, do yourself the favor of purchasing and reading a copy. It is an invaluable aid to your legal writing.

6. Unfortunately, you just can’t fix stupid. You just have to work around it.