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Characters – By Judge Larry Gist

Nobody who has been in any type of business or profession for any length of time hasn’t run into some “characters.” I am certainly no exception, and after working in the criminal justice system for over 36 years, I had some unforgettable people cross my path.

So I thought I might take a moment and reminisce about some of the offenders I’ve dealt with over the years. Unfortunately in so many cases, their lights were on but nobody was home.

Let’s start with Little Joe. When I first became an Assistant District Attorney, I was assigned like most new prosecutors to work in Justice of the Peace Courts. That’s where I first met Little Joe.

I was a young prosecutor and he was a young thief. I prosecuted him several times for Class C misdemeanors. Then I got promoted to County Court at Law cases, and sure enough, here came Little Joe, now stealing in Class A & B amounts.

As my career advanced, I was assigned to felony court. Who do I see there but Little Joe, now committing Third Degree Felonies. I later became the Chief of the Trial Division, and Little Joe moved up to Second Degree offenses. And as a newly elected judge, I got to sentence Little Joe to life in prison under the then-mandatory habitual offender statute.

Our careers paralleled each other. As I went up a notch, so did Little Joe.

And then there was Frank. I was prosecuting misdemeanor offenses when I first ran into him. Way back then, our jail was on the top of the courthouse building. The sheriff didn’t have funds to hire professional cooks for the jail kitchen, so inmates had to handle all of the food preparation. And an inmate who knew how to cook was very valuable.

Frank was a seaman and cooked on ships when he wasn’t in jail. And he had been in almost every jail and prison in the country at one time or another. He was at the time in our jail charged with felony forgery. Frank was so valuable to the sheriff that he asked to have the charges handled as misdemeanors so Frank could serve all of his time in our jail—and do the cooking. The judge agreed, a deal was struck, and Frank got sentences totaling several years in our jail.

About two years later and during the Vietnam War, Frank wrote the judge. He indicated that he had a chance to become a seaman on a ship under contract to the government of Vietnam. If he could get on that ship, he would be in Vietnamese waters for more than three years. He promised that if he wasn’t killed, he would never enter our jurisdiction again for the rest of his life.

All of the county criminal justice officials finally agreed to give Frank some trustee credit and cut him loose early. The ship was to leave the Port of Beaumont at 3 p.m. on Saturday. The Port is exactly one block from the jail, and the judge ordered the sheriff to release Frank at 2:50 p.m., drive him to the ship, watch him board, and watch the ship sail away.

At precisely 2:50 p.m. Frank got in the sheriff’s car for the one-block ride. Next to the only red light at that time was a small building known as “Smokey the Bar.” Frank asked the deputy sheriff if he could go in and get some cigarettes, as the ship wouldn’t get to Vietnam for three months. In a few moments Frank was back in the car, rode to the ship, and the deputy watched it sail away.

The next week I received a forgery complaint from Smokey the Bar. Seems Frank went in there·and forged a check for the cigarettes. Now that’s a criminal. Not only did he commit a new crime; he used a deputy sheriff as the get-away driver! They don’t make many like Frank anymore. By now Frank is certainly deceased and probably residing in an exceptionally hot environment. I’ll bet anything that he’s figured out a way to steal gasoline from the devil!

And finally, there was the Old Gray Fox. He was called that because he had a full head of thick gray hair, and he could break into almost anything. His specialty was safe jobs, and he was a recognized expert. Unfortunately from his standpoint, he got caught fairly often and spent a considerable portion of his life in prison.

But his reputation as a safe burglar remained strong. Let me tell you just how strong. Our police once caught two burglars and were interrogating them about other crimes they had committed. The police told them they would only file one charge against them but wanted to clear the books regarding their other offenses.

And this is the story they told. They had entered a local business one night by cutting a hole in the roof. Once inside, they attempted unsuccessfully to open the safe. Nothing they tried worked. So in desperation they picked up the phone and called the Old Gray Fox, who was at home asleep.

They described their problem, and he told them to put their punch in a particular location. But that didn’t work. So he told them to place their drill in another spot on the safe. Again, their attempts failed.

So the Old Gray Fox got dressed, drove down to the building, climbed on the roof, dropped down to the office, and opened the safe for them. Seems there was almost $40,000 in the vault, and the grateful burglars asked him what part he wanted as his share.

The Old Gray Fox told them that this was their job and he didn’t want anything, but in the future if they couldn’t handle the job, don’t call him at home when he was sleeping! Now that’s a professional.

Way back then, so many criminals were professionals in the sense that when they were caught they knew it. And all they tried to do was lower their business expense and get as little pen time as they could. None of them would think of physically hurting an officer or anybody else for that matter.

In their minds, they were crooks—but besides being thieves, not really bad people.

Things have gotten so much more dangerous throughout the years. Violence has become the overwhelming focus of our modern-day criminal justice system. So in a strange way, it’s refreshing to remember a time when most of the crooks were characters. Not killers.

Senior District Judge Larry Gist of Beaumont, a Presiding Judge at the Drug Impact Court, is also a member of the Judicial Advisory Council (JAC), which advises the director of the Community Justice Assistance Division and the Texas Board of Criminal Justice on matters of interest to the judiciary. He received his undergraduate degree from Notre Dame and graduated from the University of Texas Law School, serving initially as an assistant state’s attorney before the Texas Court of Criminal Appeals. He is a member of the adjunct faculty at South Texas College Law, Houston, teaching criminal law and criminal trial advocacy. Larry previously served as an adjunct professor in the criminal justice department and of psychology and law in the College of Graduate Studies at Lamar University, Beaumont, Texas. Besides writing for the Voice for the Defense, he is a regular contributor to the Texas Prosecutor and the Texas State Trooper.

Confrontation & Blood Tests: A Bull is Coming

“No refusal” weekends are spreading throughout Texas like a wild prairie fire. In several Texas cities, “no refusal” weekends will be conducted every weekend for the next three years due to grant money. In light of these “no refusal” weekends (and the five mandatory blood draw scenarios that do not require a warrant), there will be an even greater demand and backlog on Texas crime laboratories analyzing the blood specimens obtained in these cases. This demand and backlog will create problems as to who the State presents at trial to testify about the blood test analysis. A Bull[is]coming to answer the question of whether criminal defense lawyers are entitled to confront at trial the actual analyst who conducted the testing on the blood specimens, or any other specimen analyzed in any criminal case.

On March 2, 2011, the Supreme Court will hear oral arguments in a case styled Donald Bullcoming v. New Mexico, No. 09-10876 (below: 2010-NMSC-007, Docket No. 31,186 (NM Sup. Ct., Feb. 12, 2010))(set for argument on Tuesday, February 22, 2011). At issue is whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a non-testifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.

Bullcoming was prosecuted for DWI in the State of New Mexico. During trial, the state introduced a forensic report asserting that gas chromatograph testing had determined his blood alcohol level to have been 0.21. The State did not present live testimony from the lab analyst who conducted the blood test and wrote the report. Instead, the State presented the laboratory supervisor, a “surrogate witness,” who did not witness the testing. The State did not show that the analyst was unavailable to testify, and Bullcoming never had a prior opportunity to cross-examine the analyst. Bullcoming objected on the basis that it violated his right to confront the actual witness who performed the analysis. Bullcoming was convicted and he appealed.

While Bullcoming’s appeal was pending in the New Mexico Supreme Court, the U.S. Supreme Court held in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), that authors of forensic reports are “witnesses” under the Sixth Amendment and “are therefore subject to confrontation.” Id. at 2531–32, 2537. The New Mexico Supreme Court nonetheless rejected Bullcoming’s Confrontation Clause claim and affirmed his conviction. The U.S. Supreme Court granted certiorari.

Bullcoming’s counsel, Jeffrey Fisher of Stanford Law School Supreme Court Litigation Clinic, filed an outstanding brief. It is a must-read. A brief summary of his argument is that allowing a surrogate witness to take the stand in the place of the analyst violates the Confrontation Clause’s bar against surrogate testimony and denies an accused a meaningful opportunity to cross-examine the surrogate about the non-testifying witness’s testimonial statements. A surrogate witness who lacks personal knowledge regarding whether the analyst skipped or botched important steps in the forensic process stymies all of these inquiries. In Bullcoming, the surrogate witness conceded that “you don’t know unless you actually observe the analysis that someone else conducts, whether they followed the protocol in every instance.” A surrogate may not know anything about the analyst who wrote the report. Even if he does, the surrogate would likely be unable to speak from personal knowledge about the analyst’s training, skill, or attention to detail—or to demonstrate the analyst’s professionalism or knowledge of laboratory procedures. And the jury would be unable to observe the analyst in order to gauge those attributes for itself.

The Bullcoming case illustrates the importance of having live testimony from the analyst who wrote the report in order to probe his credibility. During the trial, the surrogate witness admitted on cross-examination that the actual analyst did not testify because the State had “very recently put [him] on unpaid leave.” These statements of the surrogate describe past events and human actions, not machine-generated data. What is more, these statements constituted powerful evidence against Bullcoming. Among the leading reasons for forensic errors are contamination of samples, switching samples, and running the wrong kinds of tests. The assertions of the surrogate witness that none of these things occurred here thus provided fodder for potentially important cross-examination. Yet because the State put a surrogate witness on the stand, the witness’ testimonial assertions were insulated from adversarial testing. This violated the Confrontation Clause under any reasonable interpretation of the provision.

Jeff Fisher summed up the confrontation problem presented in Bullcoming with a terrific analogy: “Just as substitute counsel cannot satisfy the Sixth Amendment, neither can confrontation of a substitute witness.”

The National Association of Criminal Defense Lawyers and the National College for DUI Defense joined together and filed an Amicus Curiae Brief in support of the right to confront the actual analyst. The Amicus Curiae Brief was written by Leonard Stamm of Greenbelt, Maryland; Justin McShane of Harrisburg, Pennsylvania; and Ronald Moore of Irvine, California. These lawyers did an outstanding job of simplifying the complicated methodology of gas chromatography. The Amicus Curiae Brief is also a must-read.

If the Supreme Court’s recent confrontation decisions in Crawford v. Washington, 541 U.S. 36 (2004), Davis v. Washington, 547 U.S. 813 (2006), Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), and Briscoe v. Virginia, 130 S. Ct. 1316 (2010), are any indication, the right to confront the actual analyst who performed the blood analysis should prevail. Melendez-Diaz was decided by a 5–4 vote, with Justice Scalia leading the way. Justice Scalia suggested during oral argument in Briscoe v. Virginia that the only reason certiorari was granted in that case was due to an attempt to undermine the right to confront the ac­tual analyst created in Melendez-Diaz. There is no reason to doubt that certiorari was granted in Bullcoming for any other rea­son. The justices leading the charge against confrontation will try once again with the two new justices on the Supreme Court. The outcome in Bullcoming will affect any criminal case where forensic chemical tests are conducted. Stay tuned, and re­mem­ber to wear all white and a red sash on March 2, 2011: We want to make sure that our clients do not get gored a second time.

Doug Murphy is a partner with Trichter & Murphy, P.C., based in Houston, Texas. Doug is a nationally recognized legal seminar lecturer and author of numerous published legal articles. Doug is a Regent with the National College for DUI Defense. He is a co-chair of the DWI program with the Texas Criminal Defense Lawyers Association (TCDLA), in addition to serving his second term on the Board of Directors. Doug is board certified in DUI/DWI Defense by the National College for DUI Defense, and is also board certified in criminal law by the Texas Board of Legal Specialization. Doug has been recognized as a Texas Super Lawyer Rising Star by Texas Monthly magazine every year since the recognition began in 2004, and as a Texas Super Lawyer in 2009. Doug was also recognized as a Top Lawyer for the People for being one of the best DWI lawyers in Texas by H-Texas magazine. Frequently sought after as a news commentator on DWI and other criminal law issues, Doug was referred to as the “Drinking Driver’s Best Friend” by the Houston Press.

 

And Now for Something Different?


Recently, I tried an aggravated sexual abuse of a child case out here in West Texas. I came across some interesting case law that allowed a tactic during the guilt innocence phase of the trial, and used it successfully to gain a “not true” verdict in a juvenile case. However, I honestly believe that you could use this tactic in the trial of an adult. I believe that in the proper case, it is a very effective tactic. This would be especially true where the alleged victim is the only witness other than the “outcry” witness.

In talking with numerous other attorneys, and from the reaction of the prosecutor, I found that not many people were familiar with this tactic. The major “caveat” here is that you have to first have “full and complete disclosure” by the prosecution under a 404(b) request. The second part to this tactic is that your client must be absolutely “squeaky clean.” If either of these issues are not resolved in your favor, then I would not advise using the tactic. If you do not heed this warning, and your client has anything that the prosecutor may use, then you have “opened the door” for all of it to come in during the guilt-innocence phase of the trial. But it appears that most prosecutors are not prepared for your introduction of this type of evidence at the guilt-innocence phase of the trial.

I used different character and reputation witnesses from each phase of my client’s life (i.e., family, school, employment, extracurricular activities, church, etc.). The key is not to reveal this tactic until the guilt-innocence phase of trial.

I have outlined the underlying Rules as well as case law for your use.

Issue

What character evidence can be introduced through Texas Rule of Evidence 404(a) at the guilt and punishment stages of trial in juvenile cases. What are the advantages and disadvantages to introducing this character evidence at the guilt and punishment phases of trial in juvenile cases

Rules

Rule 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes

(a) Character Evidence Generally—Evidence of a person’s character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1)
Character of Accused—Evidence of a pertinent character trait offered:

(A) by an accused in a criminal case, or by the prosecution to rebut the same, or

(B)
by a party accused in a civil case of conduct involving moral turpitude, or by the accusing party to rebut the same;

(2)
Character of Victim—In a criminal case and subject to Rule 412, evidence of a pertinent character trait of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of peaceable character of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor; or in a civil case, evidence of character for violence of the alleged victim of assaultive conduct offered on the issue of self-defense by a party accused of the assaultive conduct, or evidence of peaceable character to rebut the same;

(3)
Character of Witness—Evidence of the character of a witness, as provided in rules 607, 608, and 609.

(b) Other Crimes, Wrongs or Acts—Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State’s case-in-chief such evidence other than that arising in the same transaction.

Rule 405. Methods of Proving Character

(a) Reputation or Opinion—In all cases in which evidence of a person’s character or character trait is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. In a criminal case, to be qualified to testify at the guilt stage of trial concerning the character or character trait of an accused, a witness must have been familiar with the reputation, or with the underlying facts or information upon which the opinion is based, prior to the day of the offense. In all cases where testimony is admitted under this rule, on cross-examination inquiry is allowable into relevant specific instances of conduct.

(b) Specific Instances of Conduct—In cases in which a person’s character or character trait is an essential element of a charge, claim or defense, proof may also be made of specific instances of that person’s conduct.

FAMILY CODE §51.17. Procedure and Evidence

(a) Except as provided by Section 56.01(b-1) and except for the burden of proof to be borne by the state in adjudicating a child to be delinquent or in need of supervision under Section 54.03(f) or otherwise when in conflict with a provision of this title, the Texas Rules of Civil Procedure govern proceedings under this title.

(b) Discovery in a proceeding under this title is governed by the Code of Criminal Procedure and by case decisions in criminal cases.

(c) Except as otherwise provided by this title, the Texas Rules of Evidence apply to criminal cases and Articles 33.03 and 37.07 and Chapter 38, Code of Criminal Procedure, apply in a judicial proceeding under this title.

Application

Under the Texas Rules of Evidence, evidence of a person’s char­acter or character trait is generally inadmissible to prove a person’s actions were in conformity with that character on a particular occasion.1 One exception to this rule applies when an accused offers evidence of his own pertinent character trait to show conformity.2 This exception applies to both criminal and civil cases; however, in a civil case, the defendant must be accused of conduct involving moral turpitude.3 Where character evidence is allowed, it must be proved through either reputation or through opinion testimony.4 Reputation and opinion questions must be about pertinent character traits.5 Generally, character evidence, if admissible and in the right form, is allowed at both the guilt state and the punishment phase; however, in a criminal case, the witness at the guilt-innocence state of the trial must be familiar with the reputation or facts that form the opinion prior to the day of the offense.6

These seemingly straightforward rules bring about many subtle questions. Also, there are dangers to bringing this type of evidence because it may or may not open a door for the prosecutor to bring in its own character evidence and even specific instances on cross-examination.7 This article will discuss the subtleties of these rules through the context of juvenile sexual assault case.

Moral Turpitude

To offer character evidence under Texas Rule of Evidence 404(1)(a), a party must first answer two questions: whether the case is criminal or civil, and if civil, whether the accusation involves moral turpitude. The first question should be easy enough, but a juvenile case takes on aspects of both a criminal and civil pro­ceeding.8 For example, the Texas Rules of Civil Procedure apply to juvenile proceedings, but the standard of proof required by the state is beyond a reasonable doubt.9 When it comes to Texas Rule of Evidence 404 and whether it falls into the “primarily civil [. . .] nature”10 of juvenile proceedings or into its “quasi-criminal nature,”11 it seems the answer is clearly civil.12 In the Matter of G.M.P. holds that where a juvenile is charged with sexual assault, the accusation involves moral turpitude, and he is therefore entitled to offer character evidence.13 The very fact that a holding is necessary on whether this juvenile crime involves moral turpitude implies that when it comes to issues under Rule 404, a juvenile proceeding is civil.

Once it is decided that the case is civil or is at least governed by civil law, the next question to ask is whether the defendant is accused of conduct involving moral turpitude. G.M.P. reminds us that there is “no clear cut criteria” for determining what crimes and conduct involve moral turpitude.14 Also, the case law determining which conduct involving moral turpitude seems to truly determine which crimes involve moral turpitude.15 The major two areas of civil law on the subject are disciplinary actions regarding attorneys and insurance agents and juvenile cases.16 Both areas are tied to crimes that involve moral turpitude. The typical case of license suspensions connected with moral turpitude is one where the licensee is suspended for committing a crime involving moral turpitude, and the juvenile proceeding is a civil proceeding to adjudicate the crime of a minor.

As for crimes that involve moral turpitude, G.M.P. tells us that they are those that involve “dishonesty, fraud, deceit, misrepresentation, or deliberate violence.”17 This includes sexual assault of a child.18 This does not include a misdemeanor driving while intoxicated conviction.19 This also does not include an issuance of a bad check so long as it does not involve intent to defraud.20

Character Traits

The next issue in introducing character evidence by the accused is the classification of that evidence as a character trait. There have been some established character traits such as sobriety, honesty and fair dealing, and peacefulness and law-abiding.21 Courts have also found, however, that some proffered evidence does not fit in the category of character traits.22 In Valdez v. State, the court held that proffered evidence of the defendant being a “non-pedophile” was not evidence of a character trait but rather an attempt to put on inadmissible evidence of specific instances.23 So, while “good character of a defendant may be shown by negative testimony”24 (that the witness has not heard of the defendant having a reputation for a trait and that the witness would be in a position to know of any reputation for it), generally character evidence cannot be the lack of specific acts.25

Pertinent Character Traits

Character traits must be pertinent to the offense charged.26 The test seems to be just that: whether the trait is relevant to the offense charged;27 however, there have been specific traits traditionally matched with specific charges throughout the rule’s history. For example, a reputation for sobriety is paired with a DWI charge and a reputation for honesty and fair dealing is paired with a charge like embezzlement or fraud.28 Although a list of corresponding traits to charges seems to be growing, again the test seems only to require pertinence. As Moody v. State shows, appellate courts have time and again reversed trial courts that have excluded proffered evidence relevant to the offense charged.29 In Moody—an indecency with a child case—the trial court allowed evidence of the defendant’s reputation for law-abiding and peacefulness, but refused evidence of the defendant’s reputation for the ethical treatment of children.30 The court of appeals held that the trial court erred and that a “defendant charged with sexual assault of a child is entitled to prof­fer evidence of his good character for ‘moral and safe relations with small children.’”31

Reputation and Opinion

When character evidence is admissible (offered by accused, moral turpitude involved where required, fits within character trait definition, and pertinent to offense charged), a party must offer the character evidence in one of two ways: through testimony of the accused’s reputation or through testimony in the form of an opinion.32 But “different predicates are required for” the different methods.33 First, to be qualified to testify as to an accused’s reputation, the person must be familiar with the accused’s reputation based on “discussions with others” or “on hearing others discuss the defendant’s reputation.”34 In contrast to opinion testimony, reputation testimony cannot be based solely on personal knowledge.35 Next, in a criminal case, the witness must have been familiar with the accused’s reputation prior to the date of the offense to be qualified at the guilt stage of the trial.36

The predicate for opinion testimony requires that the witness be familiar with the underlying facts or information upon which the opinion is based.37 Here, the witness’ testimony does not need to be based on “community observation or by talking to people in the community,”38 but rather on personal knowledge of the underlying facts serving as a basis for the opinion.39 The underlying facts must be specific to the opinion offered.40 So, for example, asking a witness about their personal knowledge of interactions between the accused and small children does not establish a proper predicate for asking the witness of his opinion on whether the accused is a law-abiding citizen.41 Instead, those underlying facts would establish a basis for an opinion on whether the accused acts appropriately with small children.42 Character evidence in the form of opinion testimony is also subject to the 405(a) caveat that requires a witness in a criminal case at the guilt stage to be familiar with the underlying facts upon which the opinion is based before the date of the offense.43

Opening the Door

When an accused offers evidence of his own good character trait, he opens the door for the accusing party to offer its own character evidence.44 The State can do this in two different ways. First, it can offer its own character evidence—in reputation or opinion form—to rebut the character evidence put on by the accused.45 The second and more intriguing option for the State is to inquire into relevant specific instances on cross-examination to test the knowledge of the witness or show that the witness has a low standard of what she considers good character.46

While the accuser’s predicate for reputation and opinion testimony remains the same as it was for the accused, a separate predicate exists for the cross-examination of the accused’s witness to inquire into specific instances.47 “First, there must be some factual basis for the incidents inquired about.”48 This foundation of a factual basis must be laid outside the presence of the jury.49 The function of this factual basis requirement is to “provide trial and appellate courts with a test for determining whether a prosecutor’s [. . .] question was asked in good faith.”50 This is important because the factual foundation for the act may be based on evidence that would be inadmissible at trial.51 For example, offense reports, investigation reports, and arrest records may serve as the factual basis.52 The second part of the “two-part predicate” for inquiries on cross-examination, is that the specific incident inquired into “must be relevant to the character trait at issue.”53

Once the predicate has been established, the accusing party is then allowed to inquire into relevant instances of conduct.54 These inquiries are limited, however, to “do you know” or “have you heard” questions.55 Unlike Texas Rule of Evidence 609—where actual evidence of a crime of moral turpitude may be introduced to impeach the witness’ character—Rule 405 allows only inquiry questions and not extrinsic evidence.56

These inquiry questions traditionally come in the form of “have you heard” when attempting to impeach reputation witnesses and “did you know” when impeaching opinion witnesses.57 The language of the rule itself, however, does not require these forms or provide any distinction between opinion and reputation.58 The theory behind the two separate questions is that a witness who has testified to an accused’s reputation should be impeached as to her knowledge of that reputation and any inconsistent conduct that community may have heard. An opinion on the other hand should not be discredited by rumors circulated in the community.59 While the courts have maintained that using these “magic words”60 is the preferable approach,61 they are hypertechnical62 and the ultimate purpose is to “determine whether the witnesses really know what they are talking about when they offer either opinion or reputation tes­timony about another person.”63 The failure to use them inappropriately, therefore, will often not lead to a reversal.64

Introducing character evidence of a good character trait of an accused opens the door to allow the accusing party to rebut that evidence in the form of reputation testimony, opinion testimony, and inquiries of specific instances to test the witness’ knowledge or standard of good character. This can be done at guilt-innocence or punishment. Although in a criminal proceeding, a witness at the guilt-innocence phase of the trial must be familiar with the defendant’s reputation or to the underlying facts upon which an opinion is based prior to the date of the of­fense. Because juvenile sexual assault cases are considered civil in nature, I would argue then that at a juvenile proceeding the witness is not required to have this knowledge prior to the offense). The decision to introduce this character evidence at the guilt or punishment phase is one of strategy.

Guilt vs. Punishment Stage

In the text of Texas Rules of Evidence 404 and 405, the only restriction placed on admissible character evidence regarding the guilt versus punishment stages of trial, is found in subsection 405 (a).65 For a witness to testify to a defendant’s character “at the guilt stage of trial” in a criminal case, she must have been familiar with that defendant’s reputation or to the facts supporting their opinion prior to the date of the offense.66 Seemingly then, admissible evidence of an accused character trait is allowed in both the guilt and punishment stages with 405(a)’s caveat.67 The decision to enter character evidence—whether at the guilt-innocence stage of the trial, the punishment phase of the trial, or to enter it at all—is a decision made by the accused.68

This decision should be weighed carefully, especially during the guilt stage. The benefit of character evidence is often essential to the accused’s case. Many times, the lack of physical evidence presents a defendant with the task of proving a negative.69 Against the testimony of the child victims, an accused may be relying only on “his own testimony and the testimony of others as to his character and reputation.”70 Although the accused may heavily rely on this reputation evidence, offering it opens the door for the prosecution to enter its own reputation testimony and sometimes more importantly to inquiries of separate acts.71 Also, these separate acts cannot be matched by the accused with specific instances of good conduct72 or even the lack of bad conduct.73 To be a positive benefit, therefore, the defendant must have a clean record. In other words, if the accused has damning specific instances that can be inquired into, it may be better strategy to not enter character evidence and open the door for the prosecution.

In a criminal proceeding at the punishment phase of the trial, the decision may, depending on the case, have less of an impact. The State may be able to offer evidence of these specific instances regardless of whether the accused enters its own character evidence under article 37.07 of the Texas Code of Criminal Procedure.74 Under article 37.07, the State may offer relevant bad acts shown to be committed by the accused beyond a reasonable doubt.75 Therefore, if the specific instances the accused is trying to keep out can be proven, there is little if any disadvantage to offering his own character evidence and thereby opening the door. In a juvenile case, the same rule applies.76 In 2007, section 51.17 of the Texas Family Code added article 37.07 of the Texas Code of Criminal Procedure, which allows for the admission of extraneous acts.77

While the accused has the power in limited circumstances to introduce character evidence in support of his case, using this power hands over the keys to the prosecution to open the door for its own character evidence. The decision to use this power should be made only after a careful study of both the applicable law and the facts of the case.

I would like to thank Mark Briley, a TCDLA member from Abilene, who helped me write this article. His tireless work in assisting me, was a major factor in my “not true” verdict. I thought that it would be something that would give “food for thought” in a proper case.

Table of Authorities

Statutes

Tex. R. Evid. 404

Tex. R. Evid. 405

Tex. Code Crim. Proc. Ann. Art. 37.07 §3(a)(1)

Tex. Fam. Code Ann. §51.17

Cases

Barajas v. State, 2003 Tex. App. LEXIS 6226 (Tex. App.—El Paso 2003)

Brazelton v. State, 947 S.W.2d 644 (Tex. App.—Fort Worth 1997, no pet.)

Brown v. Tex. Dep’t of Ins., 34 S.W.3d 683 (Tex. App.—Austin 2000, no pet.)

Dallas County Bail Bond Bd. v. Mason, 773 S.W.2d 586 (Tex. App.—Dallas 1989, no writ)

Duncan v. Board of Disciplinary Appeals, 898 S.W.2d 759 (Tex. 1995)

Hollingsworth v. State, 15 S.W.3d 586 (Tex. App.—Austin 2000)

In the Matter of G.M.P., 909 S.W.2d 198 (Tex. App.—Houston [14th Dist.] 1995, no pet.)

Kemp v. State, 2009 Tex. App. LEXIS 9213 (Tex. App.—Houston [14th Dist.] 2009)

Lopez v. State, 990 S.W.2d 770 (Tex. App.—Austin 1999, no pet.)

Melgar v. State, 236 S.W.3d 302 (Tex. App.—Houston [1st Dist.] 2007)

Monarrez v. State, 2003 Tex. App. LEXIS 997 (Tex. App.—Dallas 2003)

Moody v. State, 2006 Tex. App. LEXIS 9788 (Tex. App.—Houston [1st Dist.] 2006)

Murphy v. State, 4 S.W.3d 926 (Tex. App.—Waco 1999)

Reynolds v. State, 848 S.W.2d 785 (Tex. App.—Houston [14th Dist.] 1993)

Robertson v. State, 685 S.W.2d 488, 492 (Tex. App.—Fort Worth 1985, no pet.)

Smith v. State, 2005 Tex. App. LEXIS 6567 (Tex. App.—Texarkana 2005)

Thomas v. State, 669 S.W.2d 420 (Tex. App.—Houston [1st Dist.] 1984, pet. ref’d)

Townsend v. State, 776 S.W.2d 316 (Tex. App.—Houston [1st Dist.] 1989)

Turner v. State, 805 S.W.2d 423, 429 (Tex. Crim. App. 1991)

Valdez v. State, 2 S.W.3d 518 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d)

Wheeler v. State, 67 S.W.3d 879 (Tex. Crim. App. 2002)

Wilson v. State, 71 S.W.3d 346 (Tex. Crim. App. 2002)

Notes

1. Tex. R. Evid. 404(a).

2. Tex. R. Evid. 404(a)(1).

3. Tex. R. Evid. 404(a)(1)(B). In G.M.P., the court reminds us that “there is no clear cut criteria” for defining moral turpitude, and the case law seems to involve mostly crimes rather than civil conduct. See In the Matter of G.M.P., 909 S.W.2d 198, 207–208 (Tex. App.—Houston [14th Dist.] 1995, no pet.)(citing Robertson v. State, 685 S.W.2d 488, 492 (Tex. App.—Forth Worth 1985, no pet.). Also, even the few examples of civil conduct involving moral turpitude are closely related to criminal conduct. See id. (pointing to examples of attorney disciplinary actions which in essence require crimes of moral turpitude and later holding that sexual assault of a child by a juvenile involves moral turpitude).

4. Tex. R. Evid. 405(a).

5. Tex. R. Evid. 404(a)(1); Monarrez v. State, 2003 Tex. App. LEXIS 997 (Tex. App. Dallas Jan. 31, 2003).

6. See Tex. R. Evid. 404, 405(a)(distinguishing the guilt from punishment phase of the trial only in that to testify at the guilt state of trial in a criminal proceeding, the witness must be familiar with the reputation or facts upon which an opinion is based prior to the date of the offense).

7. See Tex. R. Evid. 404, 405(a)(stating that character evidence is allowed by the prosecution or accusing part to rebut evidence offered by the accused and that on cross-examination, “inquiry is allowable into relevant specific instances”).

8. See In the Matter of G.M.P., 909 S.W.2d 198, 201 (Tex. App.—Houston [14th Dist.] 1995, no pet.)(“The legislature has deemed that a juvenile adjudication proceeding is primarily civil in nature, although certain aspects of an adjudication proceeding are criminal in nature”).

9. Id. at 201–202.

10. In the Matter of G.M.P., 909 S.W.2d 198, 201 (Tex. App.—Houston [14th Dist.] 1995, no pet.).

11. In the Matter of G.M.P., 909 S.W.2d 198, 202 (Tex. App.—Houston [14th Dist.] 1995, no pet.).

12. See In the Matter of G.M.P., 909 S.W.2d 198, 208 (Tex. App.—Houston [14th Dist.] 1995, no pet.)(holding that because the defendant was charged with sexual assault of a child, the accusation involved moral turpitude and therefore the defendant was entitled to offer character evidence). This court also mentions twice in its footnotes that it looks to criminal law concerning Texas Rule of Evidence 405 in a juvenile case only when the case law is “bereft of cases construing the civil rule.” Id. at 209.

13. In the Matter of G.M.P., 909 S.W.2d 198, 208 (Tex. App.—Houston [14th Dist.] 1995, no pet.).

14. See In the Matter of G.M.P., 909 S.W.2d 198, 208 (Tex. App.—Houston [14th Dist.] 1995, no pet.)(citing Robertson v. State, 685 S.W.2d 488, 492 (Tex. App.—Forth Worth 1985, no pet.)).

15. See footnote 12 (noting that the courts often look to criminal cases where the civil case law is deficient).

16. See Duncan v. Board of Disciplinary Appeals, 898 S.W.2d 759, 761 (Tex. 1995)(stating that “the determination of whether a particular crime involves moral turpitude is a question of law” and deciding whether the crime for which an attorney was suspended involves moral turpitude); Brown v. Tex. Dep’t of Ins., 34 S.W.3d 683 (Tex. App.—Austin 2000, no pet.)(affirming the revocation of an insurance license where guidelines provided for the revocation if the licensee was convicted of a felony involving moral turpitude).

17. In the Matter of G.M.P., 909 S.W.2d 198, 208 (Tex. App.—Houston [14th Dist.] 1995, no pet.).

18. In the Matter of G.M.P., 909 S.W.2d 198, 208 (Tex. App.—Houston [14th Dist.] 1995, no pet.).

19. Lopez v. State, 990 S.W.2d 770, 777 (Tex. App.—Austin 1999, no pet.).

20. Dallas County Bail Bond Bd. v. Mason, 773 S.W.2d 586, 586, 588 (Tex. App.—Dallas 1989, no writ).

21. Valdez v. State, 2 S.W.3d 518, 520 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).

22. See Valdez v. State, 2 S.W.3d 518, 520 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d)(holding that “being a ‘non-pedophile’ is not evidence of a person’s character or character trait,” rather it is impermissible evidence of specific instances (or lack of instances)).

23. See Valdez v. State, 2 S.W.3d 518, 520–21 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d)(citing Schmidt v. State, 449 S.W.2d 39 (Tex. Crim. App. 1969) and comparing evidence of a person being a non-pedophile to evidence that a person had not been in trouble with the law).

24. Valdez v. State, 2 S.W.3d 518, 520 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).

25. See Valdez v. State, 2 S.W.3d 518, 520–21 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d)(holding that the question of whether the defendant was a non-pedophile was improper, not because it was in the negative, but because it referenced specific acts or the lack of acts rather than reputation or an opinion of defendant’s character); but see Brazelton v. State, 947 S.W.2d 644 (Tex. App.—Fort Worth 1997, no pet.)(allowing character evidence that the defendant did not use or sell drugs).

26. Tex. R. Evid. 404(a)(1); Monarrez v. State, 2003 Tex. App. LEXIS 997 (Tex. App.—Dallas 2003).

27. See Thomas v. State, 669 S.W.2d 420, 423 (Tex. App.—Houston [1st Dist.] 1984, pet. ref’d)(reversing the trial court for excluding proffered evidence because the trait was relevant to show the improbability of the crime charged).

28. See Valdez v. State, 2 S.W.3d 518, 520–21 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d)(footnote 1);Thomas v. State, 669 S.W.2d 420, 423 (Tex. App.—Houston [1st Dist.] 1984, pet. ref’d)(noting that in other cases sobriety questions have been allowed for DWI cases and honesty and fair dealing questions have been allowed in embezzlement cases).

29. See Moody v. State, 2006 Tex. App. LEXIS 9788 (Tex. App.—Houston [1st Dist.] 2006)(citing Wheeler v. State, 67 S.W.3d 879 (Tex. Crim. App. 2002), Thomas v. State, 669 S.W.2d 420 (Tex. App.—Houston [1st Dist.] 1984, pet. ref’d), and In the Matter of G.M.P., 909 S.W.2d 198 (Tex. App.—Houston [14th Dist.] 1995, no pet.), as courts along with itself which have upheld the defendant’s right to present character evidence in reputation form which is pertinent to the offense charged).

30. Moody v. State, 2006 Tex. App. LEXIS 9788, 4–5 (Tex. App.—Houston [1st Dist.] 2006).

31. Id. at 9.

32. Tex. R. Evid. 405.

33. Barajas v. State, 2003 Tex. App. LEXIS 6226, 26 (Tex. App.—El Paso 2003); Hollingsworth v. State, 15 S.W.3d 586, 598 (Tex. App.—Austin 2000); but see Melgar v. State, 236 S.W.3d 302, 308 (Tex. App.—Houston [1st Dist.] 2007)(stating that the common-law distinction between opinion and reputation had been relaxed).

34. Barajas v. State, 2003 Tex. App. LEXIS 6226, 26 (Tex. App.—El Paso 2003).

35. Smith v. State, 2005 Tex. App. LEXIS 6567, 11 (Tex. App.—Texarkana 2005). Be careful though; while reputation testimony cannot be based solely on personal knowledge, the requirement for discussions with others about the reputation of the accused is easily met. See Turner v. State, 805 S.W.2d 423, 429 (Tex. Crim. App. 1991)(stating that knowledge of an accused reputation is sufficient when based on discussions with other police officers and also when “partially based on discussions concerning the offense for which the defendant is being tried”).

36. Tex. R. Evid. 405.

37. Tex. R. Evid. 405(a); Barajas v. State, 2003 Tex. App. LEXIS 6226, 26–27 (Tex. App.—El Paso 2003); Smith v. State, 2005 Tex. App. LEXIS 6567, 10 (Tex. App.—Texarkana 2005).

38. Smith v. State, 2005 Tex. App. LEXIS 6567, 10 (Tex. App.—Texarkana 2005).

39. See Smith v. State, 2005 Tex. App. LEXIS 6567, 10–11 (Tex. App.—Texarkana 2005)(stating that a witness could have been familiar with the underlying facts based upon interviews and experiences with the accused).

40. See Barajas v. State, 2003 Tex. App. LEXIS 6226, 28–35 (Tex. App.—El Paso 2003)(holding that the defense did not lay the proper predicate for asking for an opinion on whether the accused was a law-abiding citizen where the witness said only that he had known the accused for years, had had an opportunity to see the accused interact with children , and that he had never seen the accused act inappropriate with the children).

41. Id.

42. See Barajas v. State, 2003 Tex. App. LEXIS 6226, 34 (Tex. App.—El Paso 2003)(stating that the defense witness was allowed to testify to his opinion on whether the accused acted appropriately with small children).

43. Tex. R. Evid. 405(a).

44. See Tex. R. Evid. 404(a)(1), 405(a) (allowing the accusing party to rebut the accused character evidence and to inquire into specific instances).

45. Tex. R. Evid. 404(a)(1).

46. Tex. R. Evid. 405(a); see In the Matter of G.M.P., 909 S.W.2d 198, 209–210 (Tex. App.—Houston [14th Dist.] 1995, no pet.)(analyzing the 405(a) rule which allows cross-examination into relevant specific instances of conduct and the predicates for such cross-examination).

47. Compare Murphy v. State, 4 S.W.3d 926, 930–31(Tex. App.—Waco 1999)(explaining the two-part predicate for “have you heard” questions); with Barajas v. State, 2003 Tex. App. LEXIS 6226, 26 (Tex. App.—El Paso 2003)(explaining the two different predicates for reputation and opinion testimony).

48. In the Matter of G.M.P., 909 S.W.2d 198, 210 (Tex. App.—Houston [14th Dist.] 1995, no pet.).

49. Id.

50. Reynolds v. State, 848 S.W.2d 785, 789 (Tex. App.—Houston [14th Dist.] 1993).

51. See Murphy v. State, 4 S.W.3d 926, 931(Tex. App.—Waco 1999)(stating that the Court of Criminal Appeals has made it clear that the “good-faith basis may rest on evidence that would not necessarily be admissible at trial”).

52. Id. Also, the factual basis for inquiries in the punishment phase of the trial may be laid earlier in the guilt-innocence phase of the trial. See Reynolds v. State, 848 S.W.2d 785, 788–89 (Tex. App.—Houston [14th Dist.] 1993)(holding that a factual basis was made for inquiries at the punishment phase of the trial during the guilt-innocence phase).

53. Murphy v. State, 4 S.W.3d 926, 930–31(Tex. App.—Waco 1999).

54. Tex. R. Evid. 405(a).

55. See Wilson v. State, 71 S.W.3d 346, 351 (Tex. Crim. App. 2002)(“While a party may cross-examine a character witness with relevant specific acts, the party may not prove that these acts occurred, if the only purpose is to test the character witness”).

56. See Wilson v. State, 71 S.W.3d 346, 351 (Tex. Crim. App. 2002)(stating that Rule 405(a) does not provide for admitting “extrinsic proof of the conduct”); In the Matter of G.M.P., 909 S.W.2d 198, 210 (Tex. App.—Houston [14th Dist.] 1995, no pet.)(comparing Texas Rule of Evidence 609 and 405(a)); but see Townsend v. State, 776 S.W.2d 316 (Tex. App.—Houston [1st Dist.] 1989)(allowing, seemingly under Rule 404(a), evidence to rebut good character evidence offered by the accused—not in reputation or opinion form or through inquiry on cross-examination of specific instances, but in the form of extraneous evidence offered through rebuttal witnesses).

57. See Wilson v. State, 71 S.W.3d 346, 350 (Tex. Crim. App. 2002)(stating that the better practice is to follow the traditional method); Kemp v. State, 2009 Tex. App. LEXIS 9213, 13-14 (Tex. App.—Houston [14th Dist.] 2009).

58. See Tex. R. Evid. 405(a)(stating only that proof may be made through reputation or opinion testimony and that where testimony is admitted, inquiry is allowable on cross into relevant instances of conduct); Wilson v. State, 71 S.W.3d 346, 350 (Tex. Crim. App. 2002)(noting that while the rule does not distinguish, the better practice is to follow the traditional method); Kemp v. State, 2009 Tex. App. LEXIS 9213, 13–14 (Tex. App.—Houston [14th Dist.] 2009)(stating that 405(a) “does not draw a distinction between ‘reputation’ witnesses and ‘opinion’ witnesses and does not limit cross-examination to any particular form”).

59. Murphy v. State, 4 S.W.3d 926, 932 (Tex. App.—Waco 1999).

60. In the Matter of G.M.P., 909 S.W.2d 198, 209 (Tex. App.—Houston [14th Dist.] 1995, no pet.)(footnote 7).

61. Murphy v. State, 4 S.W.3d 926, 933(Tex. App.—Waco 1999).

62. In the Matter of G.M.P., 909 S.W.2d 198, 209 (Tex. App.—Houston [14th Dist.] 1995, no pet.)(footnote 7).

63. Murphy v. State, 4 S.W.3d 926, 933(Tex. App.—Waco 1999).

64. See In the Matter of G.M.P., 909 S.W.2d 198, 209 (Tex. App.—Houston [14th Dist.] 1995, no pet.)(footnote 7)(holding that it does not base error on the failure to use magic words); Murphy v. State, 4 S.W.3d 926, 933 (Tex. App.—Waco 1999)(stating that while imprecise language was used, the record made clear that the prosecutor was probing the opinion witness about her personal knowledge and not her knowledge of reputation).

65. Tex. R. Evid. 404–05.

66. Tex. R. Evid. 405(a).

67. Compare Thomas v. State, 669 S.W.2d 420, 423 (Tex. App.—Houston [1st Dist.] 1984, pet. ref’d)(holding it was proper to introduce character evidence at the guilt-innocence phase as to both the accused’s reputation for being peaceful and law-abiding and for having a good reputation for being a moral person and for the safe and proper treatment of children); with Wilson v. State, 71 S.W.3d 346, 348 (Tex. Crim. App. 2002)(showing where an accused entered character evidence during the punishment phase of trial).

68. See Tex. R. Evid. 404(a)(1)(allowing the accused to enter character evidence or the accusing party to rebut the same).

69. Valdez v. State, 2 S.W.3d 518, 522 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d)(dissenting opinion).

70. Id.

71. Tex. R. Evid. 404(a)(1), 405(a); see In the Matter of G.M.P., 909 S.W.2d 198, 209–210 (Tex. App.—Houston [14th Dist.] 1995, no pet.)(analyzing the 405(a) rule which allows cross-examination into relevant specific instances of conduct and the predicates for such cross-examination).

72. See Monarrez v. State, 2003 Tex. App. LEXIS 997, 11 (Tex. App.—Dallas 2003)(stating that the accused is not allowed to admit specific instances of conduct).

73. See Valdez v. State, 2 S.W.3d 518, 520–21 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d)(holding that the question of whether the defendant was a non-pedophile was improper, not because it was in the negative, but because it referenced specific acts or the lack of acts rather than reputation or an opinion of defendant’s character); but see Brazelton v. State, 947 S.W.2d 644 (Tex. App.—Fort Worth 1997, no pet.)(allowing character evidence that the defendant did not use or sell drugs).

74. Tex. Code Crim. Proc. Ann. Art. 37.07 §3(a)(1)(allowing relevant past crimes and bad acts notwithstanding Texas Rule of Evidence 404 and 405 when shown beyond a reasonable doubt).

75. Id.

76. See Tex. Fam. Code Ann. §51.17(c)(stating that Article 37.07 of the Code of Criminal Procedure applies in a judicial proceeding).

77. See id. (Comment)(discussing the importance of the 2007 amendment).

 

 

Randy Wilson has been a sole practitioner in Abilene for more than 39 years, handling cases ranging from capital murder to DWI. He has handled eight capital cases, and none of his clients have received the death penalty. He is immediate past chair of Texas Criminal Defense Lawyers Educational Institute. Other offices held by Randy Wilson include chair of the Criminal Justice Section of the State Bar of Texas, president of Texas Criminal Defense Lawyers Association, secretary-treasurer of the Abilene Bar Association, and charter member of Big Country Criminal Defense Lawyers Association. He is a frequent speaker at seminars on a variety of topics and has been on the faculty of the Criminal Trial Advocacy Institute for 17 years. In addition, Randy has hosted a radio show in Abilene for 14 years called “You and the Law,” which allows members of the general public to receive free legal advice. Randy has been married to Jo Ann for 44 years and has two children and two grandchildren.

Personality Disorders, or Why Is My Client Such a Jerk?

The interpersonal relationship between lawyer and client is colored by the lawyer’s as well as the client’s personality. Clients with personality disorders present a unique challenge. Although not a physical disorder, personality disorders alter the way people interact in the world. Two common personality disorders encountered in the criminal justice system are borderline personality disorder and antisocial personality disorder. To best serve clients diagnosed or expressing traits of either disorder, criminal defense lawyers must develop special skills to communicate effectively.

Coping with everyday stresses and maintaining meaningful interpersonal relationships is dependent upon a healthy personality.1 Personality makes up who we are as individuals; it colors our experiences, feelings, and thoughts, and it determines our perception of the world. Those diagnosed with personality disorders struggle to adapt to new situations and are often unable to form long-lasting personal relationships.2 People with personality disorders are inflexible, allow their personalities to drive their cases, and often end up sabotaging themselves—a precarious situation for both attorney and client involved in the criminal justice system. The presence of a personality disorder in a client may make it difficult for an attorney to feel comfortable and capable of serving the client’s best interest. For attorneys encountering clients with personality disorders, it is important to recognize the intricacies of each particular diagnosis while at the same time emphasizing the importance of creating a professional alliance, much like that between physician and patient.

There is little information aimed at attorneys dealing with this special population. William A. Eddy, an attorney and a psychotherapist, writes in his book, High Conflict Personalities, that “personalities drive conflict.”3 Eddy considers “high conflict personalities” to be Cluster B Personality Disorders in the Diagnostic and Statistical Manual of the American Psychiatric Association (DSM-IV-TR). There are a variety of personality disorders in the DSM-IV-TR, and to explore possible methods for working with every possible personality disorder is beyond the scope of this article. The two types of personality disorders most typically encountered in the criminal justice system are borderline personality disorder and antisocial personality disorder. Eddy goes as far as to argue that the litigation process itself encourages people with particular personality disorders because the structure of the adversarial process rewards conflict and exacerbates certain qualities of personality disorders.4

The DSM-IV-TR categorizes personality disorders as Axis II diagnoses, which identify “underlying personality disorders or maladaptive personality traits,”5 and then groups them together according to common traits shared among them. There are three lettered clusters of personality disorders: A, B, and C. Both antisocial personality disorder and borderline personality disorder are categorized in the DSM-IV-TR as Category B personality disorders, which are characterized as overly emotional or unstable personalities. The diagnostic criteria for a personality disorder require a prevalent history of particular symptoms occurring in the patient before adolescence; namely, one must express traits and symptoms in a non-transitory manner and reflect an “enduring pattern” of recognizable symptoms.6 General symptoms, according to the Mayo Clinic, include “frequent mood swings, stormy relationships, social isolation, angry outbursts, suspicion and mistrust of others, difficulty making friends, a need for instant gratification, poor impulse control, and alcohol or substance abuse.”7

As legal professionals, lawyers are not required to diagnose any client seeking legal assistance. However, it is beneficial to take the following information and use it to perceive “personality patterns” in clients. Being able to recognize, empathize, and understand those with borderline personality disorder and those with antisocial personality disorder will enable an attorney to handle these cases better and minimize potential conflicts between themselves and their clients.8

Borderline Personality Disorder

Borderline personality disorder (BPD) consists of:
deeply ingrained and maladaptive patterns of relating to others, impulsive and unpredictable behavior that is often self-destructive, lack of control of anger, intense mood shifts, identity disturbance and inconsistent self-concept, manipulation of others for short-term gain, and chronic feelings of boredom and emptiness.9

The characteristics listed above make it clear that creating and maintaining productive relationships are especially difficult for people with BPD. Issues of low self-esteem and constant fear of abandonment can lead those with BPD to view certain relationships and other people in highly idealistic terms. When those relationships or others fail them, they experience severe disappointment. Approximately 2 percent of the general population has BPD, and it is more common in women.10 Furthermore, during times of stress, people with BPD may suffer psychotic symptoms, such as hallucinations and other delusions. As a result, people with BPD have a higher tendency to injure themselves, and roughly 10 percent of people with BPD commit suicide.11

An interesting phenomena observed in people with BPD consists of the creation of emotional facts. In Stop Walking on Eggshells, author Paul T. Mason describes that phenomena:

In general, emotionally healthy people base their feelings on facts. If your dad came home drunk every night (fact) you might feel worried or concerned (feeling). If your boss complimented you on a big project (fact) you would feel proud and happy (feeling). People with BPD, however, may do the opposite. When their feelings don’t fit the facts, they may unconsciously revise the facts to fit their feelings. This may be one reason why their perspective of events is so different from yours.12

Case Study: Susan

Susan, a middle-aged female, was referred to the Travis County Mental Health Public Defender’s Office (MHPD) after being charged with criminal trespass. She had a history of self-injury, including throwing herself down the stairs at a homeless shelter when she was told that she may not be able to continue to stay there. Although she claimed to have had no criminal history, it appeared she had several previous arrests. Other agencies working alongside the MHPD described her as a “pathological liar.” Her actions and behaviors in jail even led jail staff to believe that Susan was malingering—i.e., exaggerating about the nature of her symptoms.

Susan claimed to be wheelchair-bound and to suffer paralysis in certain parts of her body due to a car accident that occurred a few years before. She also claimed she was immobile because of new injuries caused by a police officer’s use of a night stick the evening of her criminal trespass charge. However, medical experts reported that Susan was indeed able to care for herself, and that her behavior in jail was an effort to get extra attention. Susan would often take her claim of complete paralysis to the extreme, choosing to lay in her bowel movements rather than move herself to the toilet. Needless to say, she was not popular with the jail staff. When she met with an MHPD social worker, Susan stated that a jail psychiatrist had called her a “disposable human being,” and she reported feeling anxiety and depression given her current circumstances.

In the interview setting, Susan was invested and “quite informative,” although sometimes her premise of genuine cooperation drew skepticism from others. The information she gave about herself was typically unreliable, inaccurate, and sometimes completely unbelievable. She claimed to have a PhD in Psychology, said she worked as a professional musician, and even admitted to lying about having children—because she believed that “people respond to me differently if they think I have kids.” When confronted with her lies, she would reluctantly admit to them and claim that she wanted to stop, but this never proved out.

When asked to recount the facts of her criminal trespass charge, Susan claimed to have fallen and hit her head, which caused her to forget the majority of the charge. She stuck to her story of amnesia so strongly that the evaluating physician considered her failure to remember as approaching incompetence. However, after extended discussion, Susan admitted that she was “terrified of homelessness” and felt safer in jail than in returning to the streets, should her case be dismissed. Susan also threatened to commit suicide if her partner rejected her.

The MHPD was ultimately able to get Susan’s case dismissed and find placement for her in a nursing home. But working with Susan was perhaps one of the more challenging aspects of her fairly simple criminal trespass charge. Her tendency to lie, to provide unreliable information, to alienate people, and to feign injury made productive meetings difficult. Maintaining boundaries between Susan, her case, and the duties of the MHPD was fundamental in providing helpful legal service. Had boundaries not been maintained, there is little doubt that Susan would have lingered on the case load for longer than necessary, given the desire of someone with BPD to remain the center of attention.

Also, it was paramount that the staff at MHPD was able to avoid certain dramas created by Susan. For instance, when Susan claimed that a jail psychiatrist had called her a “disposable human being,” Susan placed the jail psychiatrist in an extreme category, a common occurrence by those with BPD.

Techniques

Susan’s case shows how maintaining boundaries and distancing oneself from the dramas of a person with BPD is useful in maintaining a productive working relationship. Clients with BPD ultimately fear abandonment by those close to them. Ignoring this unique need often results in attorneys having to make lengthy phone calls, faxes, and office visits to constantly reassure a client with BPD. Eddy suggests that attorneys provide “clear reassurances and limits from the beginning of the relationship” to avoid having a client with BPD feel abandoned.13 In addition to these basic tactics, there is growing support among counselors surrounding the effectiveness of a new method called “dialectal behavior therapy” (DBT) for dealing with people with BPD.14
In layman’s terms, DBT is a “comprehensive treatment approach” for helping people overcome their self-destructive behaviors, and it is specifically designed for people with BPD. DBT attempts to teach clients better ways to cope with their intense feelings and regulate their mood swings. DBT is carried out in a caring, sensitive environment where clients engage in individual therapy, a group skills training class, and skills coaching in between sessions.15 DBT is a very intensive therapy mode, and it requires the dedication of a professional counselor, but there are lessons to be gleaned from it that are directly applicable in legal advocacy:

  • Emotional Regulation. An attorney is not a counselor and should not pretend to be one, but attorneys can better their relationships with clients with BPD by remaining consistent in their communications and maintaining a calm, professional demeanor. Attorneys should never respond to a frustrating BP client with anger, or encourage a client’s own worries by becoming frustrated over inevitable legal obstacles.
  • Mindfulness. Attorneys should keep the conversations focused on the issue at hand. Delving into other personal matters of a BPD client may prove to be ineffective and damaging overall to a healthy attorney-client relationship. Also, attorneys should let BPD clients know they believe that each will feel occasionally frustrated and angry during the case. Attorneys should explain that frustration must be overcome and worked through.16
  • Distress Tolerance. One important aspect of DBT is coping skills. Attorneys can help clients with BPD by explaining to the client the nature of obstacles in the legal process as well as possible solutions. Eddy advises attorneys to “validate the person rather than criticizing the behavior, and then focus them on alternative behaviors or the next task in the case” when clients with BPD become self-destructive.17
  • Interpersonal Effectiveness. Attorneys should always treat clients with BPD with respect and patience. Some important skills include listening non-defensively, providing realistic expectations, and avoiding reinforcement of “high idealization” by balancing their praise for you.18

Antisocial Personality Disorder

Texas attorney Roy Minton provided the following definition at a criminal defense seminar: “The definition of an Antisocial Personality Disorder: Someone you have to teach that opening the door for other people is a good thing!” Unsurprisingly, the antisocial personality disorder (APD) has long been considered one of the most untreatable personality disorders.19 People diagnosed as having APD often end up hindering the legal and mental health systems because they continually relapse into mental health treatment services with little positive change.20 Compared to BPD and other disorders, APD appears to have more of a genetic link.21

In addition, APD tends to coexist with substance abuse problems as well, which exaggerate the negative symptoms of APD. The DSM-IV-TR requires that some traits central to APD diagnosis must be apparent in the patient before 15 years of age. However, diagnosis of APD must not be made until the patient is at least 18 years old. The most recognizable trait of APD is a “pervasive pattern of disregard for, and violation of, the rights of others.” A lack of empathy, callous and cynical worldview, contempt for the feelings of others, an arrogant and inflated self-image, impulsive behavior, a history of aggressive or violent behavior, and a frequent lack of concern for themselves are all symptoms of an APD client.

Case Study: Jerry

Jerry, a 30-year-old homeless man, came to the MHPD with a charge of public intoxication. Jerry claimed to have intentionally gotten himself arrested in order to get necessary medical treatment. He had a history of alcohol abuse from an early age. However, when asked if he wanted help with his alcoholism, Jerry refused any treatment and became irritable. Jerry uses alcohol to handle stress, and he is very impulsive. He stated that he “can’t sit still long enough to fill out forms” and displayed manic behaviors. He spoke rapidly and had visited the office visibly intoxicated. In a meeting with an MHPD social worker, Jerry became sexually inappropriate with the social worker and responded blankly when warned. Later, Jerry continued with his inappropriate, disruptive behavior until the social worker terminated the meeting. Jerry claimed that the social worker’s efforts “wasted his time,” and he became very agitated and difficult. Jerry also conveyed an intricate and strange reasoning for his belief in stealing from stores but not people. According to Jerry, stealing from stores should not be considered a crime.

In working with Jerry, the MHPD staff recognized that Jerry was not interested in altering his lifestyle or cooperating with case managers.

Techniques

People like Jerry with antisocial personality disorder traits are usually not receptive to receiving aid from others without somehow benefiting their own ulterior motives. Thus, attorneys working with APD clients need to recognize their inherent selfishness and work around it in order to best serve the clients’ needs without placing themselves in a precarious position.

Eddy writes, “ASPs [antisocial personalities] fear being dominated and therefore they desire to dominate and control others—it gives them a reassuring sense of power in the world.”22 In the case of Jerry, he dominated the relationship with the male social worker by engaging in sexually inappropriate behavior in order to make the social worker unable to run the meeting. Attorneys working with someone with APD should be very strict about not reinforcing manipulative and dominating behaviors, and must be “attentive to protecting themselves, physically and legally.”23 Also, attorneys should possess a healthy level of skepticism when working with people with antisocial personality disorders.

Clients with APD will use deception to reach their own ends regardless of the consequences to others. For instance, Jerry wanted to get arrested in order to get medical attention. This trait is particularly challenging for criminal defense lawyers to deal with, as client contact is the primary means of obtaining information about the case and the client may engage in self-destructive behavior during legal proceedings for short-term gains. Eddy likens clients with APD to small children who often demand instant gratification and cannot cope with any type of obstacle.24 In order to combat the potential for lies, attorneys should try to get corroborating information from other sources to verify their clients’ stories, as well as avoiding doing any favors and enforcing strict consequences for clients with APD.

Finally, clients with APD may be “predatory in their violence, which means it is planned, purposeful, and lacks emotion . . . This characteristic allows little room for negotiation or cooperation.”25 Lawyers should be aware that there is a spectrum of behavior exhibited by those with APD that not only requires care by the lawyer but also a certain level of caution.

Conclusion

The guidelines outlined in this article are in no way a substitute for a physician’s recommendations for a particular client. Rather, these are all tips designed to enhance communication between professionals working with people who have personality disorders. By utilizing patience and dedication to work with clients who may be more challenging than most, lawyers can reduce the frustrations exacerbated by the presence of a personality disorder.

Notes

1. Mental Health America, “Factsheet: Personality Disorders,” Mental Health America, http://www.nmha.org/go/information/get-info/personality-disorders
2. Ante.
3. William A. Eddy, High Conflict Personalities: Understanding and Resolving Their Costly Disputes (William A. Eddy, 2003), 1.
4. Ante, 32.
5. Ante, 13.
6. Frederick Rodgers and Michael Maniacci, eds., Antisocial Personality Disorder: A Practitioner’s Guide to Comparative Treatments (Springer Publishing Co., 2006), 5.
7. Mayo Foundation for Medical Education and Research (MFMER), “Personality Disorders,” Mayo Clinic, http://www.mayoclinic.com/health/personality-disorders/DS00562/DSECTION=symptoms.
8. Eddy, 16.
9. Robert L. Barker, The Social Work Dictionary (NASW Press, 2003), 49.
10. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Publications, 200), 708.
11. National Alliance on Mental Illness, “Borderline Personality Disorder,” NAMI, http://www.nami.org.
12. Eddy, 29.
13. Ante, 52.
14. National Institute of Mental Health, “Borderline Personality Disorder,” NIMH, http://www.nimh.nih.gov/health/publications/borderline-personality-disorder-fact-sheet/index.shtml.
15. Michael Baugh, “What is Dialectic Behavior Therapy?” DBTSF.com, http://www.dbtsf.com/what-is-DBT.htm.
16. Eddy, 54.
17. Ante, 59.
18. Ante, 75.
19. W. John Livesly, Handbook of Personality Disorders (Guilford Press, 2001), 332.
20. Rodgers, 2.
21. Eddy, 120.
22. Ante, 103.
23. Ante, 122.
24. Ante, 115.
25. Ante.

Jeanette Kinard is Director of the Travis County Mental Health Public Defender Office in Austin, Texas. A longtime criminal defense attorney, Jeanette has a bachelor’s degree from the University of Texas at Austin and a law degree from the University of Houston. She is a frequent speaker, statewide, on the topic of the mentally ill in the criminal justice system. She is a member of the State Bar of Texas, Austin Criminal Defense Lawyer’s Association (president, 1994–95 and 2004–5), Texas Criminal Defense Lawyers Association (Board of Directors, 1996–2000), National Criminal Defense Lawyers Association, and the National Legal Aid and Defender Association.

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