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Reactive Attachment Disorder – By John Niland

This article addresses the mental health issue of Reactive Attachment Disorder a defense counsel might encounter when representing the person charged with a serious crime, particularly a capital crime. Reactive Attachment Disorder is a major personality disorder and a condition that impacts many of those in the criminal justice system. Suggestions will include how to challenge a diagnosis that is damaging to your client, how to develop mental health evidence and present that evidence effectively.

 

Prosecutors like to categorize symptoms as personality disorders because such disorders are more likely to put the client in the worst possible light and scare the jury. While some personality disorders will “age out”1 such that the disorder will become less of an influence on behavior, there is a belief that a personality disorder cannot be treated. As noted in the DSM, counsel may be able to avoid the stigma of an Axis II personality disorder if the pattern of behavior is better accounted for as a manifestation or consequence of another mental disorder or the symptoms are due to the direct physiological effects of a substance (e.g., drug abuse or medication) or a general medical condition such as head trauma.2 In other words, counsel will need to learn as much as possible about the client’s bio-psycho-social history so that the explanation for the behavior is something other than a personality disorder.

The Major Personality Disorders

Major Personality Disorders are set out in the DSM.3 These are characterized as “an enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual’s culture, is pervasive and inflexible; has an onset in adolescence or early adulthood, is stable over time, and leads to distress or impairment.” This definition seems to suggest that anything the client has been doing for a long time that the mental health professional finds to be irritating is a personality disorder.

The DSM lists the ten disorders as: (1) Paranoid Personality Disorder; (2) Schizoid Personality Disorder; (3) Schizotypal Personality Disorder; (4) Antisocial Personality Disorder; (5) Bor­derline Personality Disorder; (6) Histrionic Personality Dis­order; (7) Narcissistic Personality Disorder; (8) Avoidant Personality Disorder; (9) Dependent Personality Disorder; (10) Obsessive-Compulsive Personality Disorder, and a “catch all” “Personality Disorder Not Otherwise Specified” (NOS). This essentially means that the client has been irritating for a long time, but science does not know what to call it.

These ten specific disorders are grouped into three clusters based on “descriptive similarities.” These clusters include Cluster A, which includes the Paranoid, Schizoid, and Schizotypal Personality Disorders. Cluster B includes the Antisocial, Borderline, Histrionic, and Narcissistic Personality Disorders. Cluster C includes the Avoidant, Dependant, and Obsessive-Compulsive Personality Disorders. The writer believes that the Cluster A and B disorders are those that the defense will most often encounter in the criminal justice system. Those disorders falling into the Cluster B category are likely the most challenging for defense counsel. Accordingly, this article will focus on the disorders within that cluster and will discuss methods to challenge a prejudicial diagnosis that has no basis in fact, or to humanize a diagnosis that is accurate.

As the behavior that underlies the disorder is required to be “enduring,” the diagnosis of Personality Disorders requires an evaluation of the client’s long-term patterns of functioning back to childhood. While the DSM suggests says it is possible to make the diagnosis after one interview, “it is often necessary to conduct more than one interview and to space these over time.”4 The importance of a thorough psycho-social history in making an accurate diagnosis of personality and mental disorders is discussed later in this article.

Reactive Attachment Disorder

The major personality disorders will certainly be seen in many clients charged with serious crimes. Counsel must do everything possible to challenge the unwarranted diagnosis attributed to the client. However, there will be situations where no matter how hard the defense challenges the diagnosis of APD, it may be an accurate one. How can we humanize the client that the state will describe to the jury as a remorseless criminal without a conscience?

The prosecution will often tell the jury that the client “had a choice,” and that his choice was to commit a violent crime. One way to humanize the client in this situation is to acknowledge that certain choices were in fact made by the client. However, those conditions and life experiences that shaped the client and made him who he was at the time of the crime were more than likely made by genetics, parents, caregivers, siblings, and others over whom the client had no control. The explanation for the client’s behavior may be found in the condition known as Reactive Attachment Disorder, or simply Attachment Disorder.

This disorder is briefly described in the DSM-IV-TR.5 The Diagnostic Features state that “[T]he essential feature of Reactive Attachment Disorder is markedly disturbed and developmentally inappropriate social relatedness in most contexts that begins before age 5 years and is associated with grossly pathological care.”6 Unfortunately, the Diagnostic Features as outlined by the DSM are not adequate to alert the criminal defense practitioner to the significance of this disorder. Reactive Attachment Disorder is another example of the expression that is often heard “Childhood matters.” How our clients are treated before, during, and after birth has a significant impact on the development of their brains and personalities. “It is the experiences of childhood that express the potential of the brain.” Bruce D. Perry, M.D., www.childtrauma.org.

During the first 36 months of life, humans learn to trust others and feel a sense of security in their world. This feeling will customarily arise from the bonding that the infant has with the caregiver (usually the mother) and the love that the caregiver feels and exhibits for the child. This interaction tells the infant that he or she is safe and the caregivers can be trusted to meet the child’s needs when they arise. When the infant expresses a need (usually by crying), the caregiver satisfies the need (feeding, holding, diaper-changing), and a sense of trust and reliance (healthy attachment) is created by that interaction. As the needs of the child are routinely met, the health attachment becomes a secure attachment and the infant’s development can take on a normal course. Kate Allen, Ph.D., “Attachment Disorder,” Capital Mitigation Seminar, Center for American and International Law, (August 26, 2006).

However, when the needs are not met, often because of parental abuse or neglect, the necessary attachment to the caregiver is not formed and the message to the child is that he (or she) is on his own, he cannot rely on anyone else to meet his needs, he can trust only himself, and he must be in control in order to meet the needs. The sense of trust is replaced by anger and rage, and his very survival depends on his ability to control and meet his needs.

Some of the causes of attachment disorder include:

  • Neglect;
  • Abuse;
  • Separation from the primary caregiver;
  • Changes in the primary caregiver;
  • Frequent moves and/or placements;
  • Traumatic Experiences;
  • Maternal depression;
  • Maternal addiction to drugs or alcohol;
  • Undiagnosed, painful illness such as colic, ear infections, etc.
  • Lack of attunement between mother and child;
  • Young or inexperienced mother with poor parenting skills

Counsel has likely represented clients who could not trust the trial team, exhibited an unreasonable level of anger, was hyper-vigilant to minor or misperceived threats, had difficulty telling the truth even when the truth would serve them better, appeared to have no conscience about their criminal behavior and no empathy for those who were harmed. Reactive Attachment Disorder may provide an explanation, and while it is not termed a “Major Personality Disorder,” it can be the cause of an antisocial personality, the borderline personality, or the narcissistic personality. These are among the most difficult of clients to represent. In order to fully understand who the client is, counsel must seek a thorough bio-psycho-social history developed by a competent mitigation specialist.

Counsel might ask, “Why are those charged in the criminal justice system so often victims of attachment disorder?” A bulletin from the Office of Juvenile Justice and Delinquency Prevention’s Study Group on Serious and Violent Juvenile Offenders devoted two years to analyzing the research on risk and protective factors for serious and violent juvenile offending, including predictor of juvenile violence derived from the findings of long-term studies. Hawkins, J.D., et al. (April 2000), “Predictors of Youth Violence,” Juvenile Justice Bulletin, U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention. The predictors of juvenile violence were arranged in five domains: individual, family, school, peer-related, and community and neighborhood factors. It has been shown that attachment disorder is most commonly caused by abuse, neglect, or disinterest by the caregiver, usually the mother.

The family sector risk factors are:

  • Parental criminality;
  • Child maltreatment;
  • Poor family management practices;
  • Low levels of parental involvement;
  • Poor family bonding and family conflict;
  • Parental attitudes favorable to substance use and violence;
  • Parent-Child separation.

If one were to compare the common causes of Reactive Attachment Disorder with those Family Factors identified in the OJJDP Bulletin, the similarities are striking.

Performing the thorough bio-psycho-social history that will allow the defense to identify conditions that might lead to a conclusion that the client suffers from Reactive Attachment Disorder is critical. However, realizing that the disorder can form the basis of those personality disorders that can be so damaging, it is important for counsel to again focus on the concept that the diagnosis is not what is important. What is important is an explanation for the behavior and the behavior can be explained through the genetics, pre-natal, peri-natal, and life experiences of the client.

Notes

1. American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revised (Washington, D.C), at 704.

2. DSM-IV-TR at 688–689.

3. Id. at 685.

4. Id. at 686. DSM-IV-TR at 127–130.

5. DSM-IV 313.89.

A 1971 UT Law School graduate, John initially practiced in El Paso, where he was President of the El Paso Young Lawyers Association and chosen Outstanding Young Lawyer. He served as a member of the Board of Directors of the Texas Young Lawyers and past Director of the Texas Criminal Defense Lawyers Association. From 1992 until February of 2000, John practiced law in Kentucky, during which time he was contract manager for Kentucky’s Department of Public Advocacy (DPA). He also served as directing attorney of the Warren County public defender office and was one of five regional managers for DPA. The recipient of countless awards for his work, John has been Director of the Texas Defender Service (TDS) Capital Trial Project since May 2000. There he consults with, and provides training to, lawyers across the country on death penalty issues.

Tell Me a Story: 60 Minutes-Style Opening Statement – By Doug Murphy

After the jury is selected, trial lawyers must began telling their client’s story in opening statement. During voir dire, lawyers ask prospective jurors questions to see which jurors will be the most and least receptive to our trial theme and our client’s story. Those questions also help plant the seeds of our trial theme and client’s story early on. A University of Chicago study concluded that 80% of jurors decide a case after opening statements.

Legendary trial lawyer Gerry Spence believes you win your case in voir dire and opening statement. My experience leads me to the same conclusion. One of the main challenges we face as lawyers is jurors rushing to judgment faster than some police officers who arrest our clients. Despite understanding how quickly jurors make up their minds with their first impression, many lawyers dedicate the least amount of trial preparation towards constructing a persuasive opening statement, and instead focus more on cross-examination and closing argument. Most of us have been guilty of this practice too.

Good lawyers know that there is no unimportant phase of a bench or jury trial. In terms of jurors and/or judges forming early opinions, voir dire and opening statements are the best op­por­tunity to jump out of the gate with the jury on your side before jurors hear any evidence. Legendary trial lawyer Michael Tigar once joked that the lawyer’s job is to talk, and the jurors job is to listen—and the key is to make sure that the jurors do not finish listening before the lawyer stops talking. This illustrates the point that lawyers need to quickly score points so that the jurors will be receptive to our side of the story and see the evidence from our perspective, or our vantage point. As the old saying goes, there are two sides to every pancake.

Trial lawyers and television news producers and television reporters share a similar dilemma—our audiences have short attention spans, and we have limited time to get information across. All the great trial lawyers know how to tell a story. Trial lawyers can learn a lot from television news producers when it comes to telling a story. The pioneer of how modern television news reporting is credited to the late Don Hewitt, the creator in 1968 of the most popular television show in history: 60 Minutes.

The format of 60 Minutes is three investigative stories of no more than 15 minutes each (the rest of the time allotment is for commercials and Andy Rooney’s musings), which copied the similar approach of magazine journalism. Don Hewitt had a simple four-word mandate: “Tell me a story!” Mr. Hewitt did not want his journalists citing and reporting facts as if they were competing in a debate; he wanted to hear a story about how people’s lives were affected by the facts they were reporting. This deceptively simple motto sometimes becomes an incredibly difficult task in breaking down a complicated legal and factual scenario into a story that can be easily understood by either a jury, or a television audience, in a short period of time.

Television reporters utilize many of the same concepts in storytelling that we do as trial lawyers to captivate our audience.

Theme

The first step in telling the story is developing the theme of the trial. There is an old maxim that if you allow your client to be the one on trial, your client is going to lose. Use of a persuasive theme in opening statement can re-frame the issue and take the focus off your client and damaging evidence the jury will later see and hear. Having a power statement to identify your theme is helpful so that when the jurors finally see and hear the evidence, they will give less or no weight to that evidence due to your theme in your opening statement because of the unfairness, improper administration, medical history, injury, etc. The theme can help empower the jury to see the evidence in the correct light and make the right decision. It is true that a sense of injustice drives people, but empowerment gives them the will to bring justice to your client. The theme helps also provide the jury with understanding, thus empowering jurors to want to help your client. If the DWI case involves an accident, your power statement could simply be that “this is an accident case, not a DWI case.” The theme needs to be simple to be understood. It needs to be short, just like a “sound bite” a reporter leads with to begin a news story.

In terms of trial preparation and creating the trial theme, I prefer to begin my trial preparation backwards. I start first with preparing my closing arguments I intend to make based upon the evidence. My theme is based on these arguments. I then prepare my cross-examination with the intent of repetitiously weaving my theme throughout my questions. My opening statement comprises the power statement, theory, and client’s story to enable the jury to assemble the pieces of the puzzle they receive from our vantage point.

Let the Jury Know How Much You
Care About Your Client in Your Delivery

The courtroom is the theater where a trial lawyer performs. The manner in which a lawyer delivers his/her opening statement will affect the jurors’ attitudes toward the information to be conveyed. Jurors will rarely, if ever, be impressed with how smart a lawyer is, but jurors can be, and often are, impressed with how much a lawyer cares. The classic gesture of just putting your hands on your client’s shoulders during trial is not enough. It has to be real, not staged. I once heard a funny cigar-chomping cowboy named Kinky Friedman say: “Money can buy you a fine dog, but only love will make its tail wag.”

If a lawyer does not care for his client and demonstrate it to a jury, how can he/she expect the jury to care about the client? Jurors can see right through lawyers who are not genuine. Credibility and confidence are key factors in your delivery. Do not try to imitate another lawyer you respect and admire. Be your­self. Be professional. One of the best ways to be a persuasive lawyer is to not talk like a lawyer. Speak from your heart, not your lawyer brain. Speak with confidence, use good eye contact and pauses when speaking with—not to—the jury. Cicero taught that what reaches the mind also moves the heart. Use passion, reason, and commonsense logic. Communicate your passion and logic in words the jury will understand. Above all, humanize your client by referring to him/her by first name and last name throughout the trial (not “my client”), and tell their story so that they know your client as someone they can relate to.

A powerful and persuasive opening statement does not just provide a road map for the jury before they see and hear the evidence; your opening also sets up your closing argument. In this regard, consider using rhetorical questions. “Is that fair?” you ask after describing the scene where the officer had your client perform roadside gymnastics, or describe the drill sergeant-like manner the officer treated your client. “Is that how we would want our loved one to be treated?” Rhetorical questions suggest the answer and your arguments without you having to make them. They also plant the seed of unfairness—i.e., reasonable doubt. Above all, you might be surprised by the head nods, or even verbal responses, you might receive from jurors. Posing rhetorical questions to jurors is equally persuasive in closing arguments as well. They are also fun in cross-examination too.

Make Concessions

There are going to be unfavorable facts in every trial case. If there were no unfavorable facts, our clients would not need us. Do not run or hide from ugly facts. Embrace them up front. It is imperative that you disclose and concede certain unfavorable facts. The jury is going to hear about them anyway, so they might as well hear about them from you. If the prosecutor already dis­closed the facts, use those facts in your client’s story so that they are neutralized or mitigated, or at least presented from a different point of view. By disclosing them and mitigating them, you draw the sting and minimize the pain they cause to your case. You also gain credibility in the eyes of the jury. You cannot win every battle in a trial, but by conceding certain things or facts and focusing on other things and facts, you can put yourself in a credible position to win the war.

Things to Avoid in an Opening Statement

Never overstate, embellish, or exaggerate any fact or statement you make in your opening statement. Doing so will undermine your credibility and do irreparable damage. The trial could be over for you before it even begins. Your relationship with the jury is the same as your personal relationships—trust and credibility that are lost can never be regained. You will be deemed untrustworthy by jurors, and your arguments will be summarily rejected, even if they are meritorious arguments. A jury will not buy into your client’s story unless they trust you.

Never respond and answer the prosecution’s opening statement. Present your story, and let the jury understand the other side of the pancake.

Do not promise something that you cannot, or will not, deliver. Jurors will hold you accountable and responsible for most everything you say. One important exception is in telling your client’s background in opening. Do not tell the jury your client will testify and you will hear this and I will prove it to you—unless you intend to do just that. The client’s background needs to be introduced or prefaced with other facts you refer to in your opening statement, even if you don’t know whether your client will testify. Jurors are mostly forgiving of defense counsel who does not bring in evidence to prove the client’s background so long they are continually reminded that the State always has burden of proof. Understand the risk of presenting good information about your client in your opening without presenting evidence during trial and proceed with caution, or at the very least tactfully present the client’s background information. Choose your words carefully.

Never assume a burden of proof you do not have. Let the focus be on what the State has to prove.

Never tell jurors that what you say is not evidence. A lawyer who prefaces his opening statement with such a statement totally undermines the effectiveness of a good opening statement and shoots him/herself in the foot. Such a statement is also a waste of time and breath. Also, do not waste time talking about trial procedure. Leave that for the prosecutor and judge. If the prosecutor wants to bore the jury with talking about how a trial takes place, let it be. Focus on your client’s story, not the state’s allegations against your client. Focus on your theme: The officer rushed to judgment, or failed to thoroughly investigate, etc. If you allow the state to frame the issue and put your client on trial, you will likely lose. Having a theme with a story to back the theme will help the jury focus on the unfairness of how your client was treated, or whatever theme you determine. You want the jurors to view the evidence from your client’s perspective, not the state’s or the arresting officer’s perspective.

Avoid personal attacks on the prosecutor, police officers, and opposing witnesses. You can attack their arguments all day long without attacking them personally. Jurors will more easily believe an officer is mistaken than the officer is a liar. Even when I feel the evidence proves an officer is lying, I try to avoid calling the officer a liar because not all jurors may agree. You can infer the officer is lying by simply saying: “I know where I grew up we had a name for people like that, and I’m quite sure you do too.”

Primacy and Recency

Psychology and human experience tell us that a listener tends to remember the first and last words the listener hears. Jurors are no different. Jurors will tend to remember what is said to them first and last. Have a plan. What is it that you want the jurors to talk about in the jury room? Choose the first and last thing you want them to hear and communicate it to them in understandable terms. If you want them to focus on reasonable doubt, consider some of these approaches:

As I talked about at the beginning of this trial, the burden of proof is on the government to prove each and every element of the crime that is charged beyond a reasonable doubt. What is reasonable doubt? I expect the judge to tell you that it means what it sounds like: a doubt for which you can give a reason. As this list of reasons for doubt will show, the State has failed to meet their burden (then use a visual aid to list “reasons for doubt”).

Ladies and Gentlemen, I have tried my share of cases over the years, but I still can’t get over the butterflies I feel when I stand before a jury and am charged with speaking to you about the fate of Mr. Smith. I fear that some jurors might decide this case on how much they dislike drunk drivers rather than making sure that the State has presented enough evidence in this case to prove Mr. Smith is guilty beyond a reasonable doubt.

This is not a contest, there are no winners and losers. Surely the State of Texas comes out a winner when one of its citizens avoids a wrongful conviction. The officer told you that it’s not going to have an impact on his job if Mr. Smith is found not guilty. He told you that he arrested Mr. Smith on suspicion of driving under the influence. And that’s OK. The night of January 25th was the time to act on suspicion, today is the time to serve justice. The prosecutor will call in the next case for trial, she is going to go on doing her job, and Mr. Smith? Well, he’s been through quite a bit with being arrested and put on trial—he can go on with the rest of his life as you can go on with yours.

If you’re in the jury room and are having a hard time deciding this case, don’t fight it! You have already reached a conclusion. It is okay to say at that point, “my mind is unsatisfied.” That is the doubt of the law, and I expect the judge will instruct you that under those circumstances, it would be your duty to acquit the defendant and find him not guilty.

Use of Trilogies

Literature and history have taught us that there is a dramatic benefit to communicating in sets of three. Roger Dodd and Larry Pozner devote an entire chapter to “trilogies” in their Cross-Examination: Science and Techniques book that no trial lawyer should be without. Trilogy is a technique of finesse, not force. The power of trilogy stems from its content. Its form makes it memorable, and it is therefore a more likely topic of conversation in the jury room. Here are a few examples:

He walked normally, talked normally, and stood normally on the videotape.

Without a check for calibration with each test, this machine is inaccurate, unreliable, and unscientific.

I expect the judge to tell you that reasonable doubt may come from the evidence, a lack of evidence, or a conflict in the evidence. (Then consider using a chart where you can list facts in each category.)

If your minds are wavering, unsettled, or unsatisfied, then that is the doubt of the law, and in that event you should acquit the defendant.

You must start strong with your sound bite or power statement. You must also finish strong, tying your story back to your power statement and theme. Research by marketing experts determined that repetition sells cigarettes. Repetition—by way of using trilogies—also helps persuade a jury.

Visual Aids

We have become an increasingly visual society. A lawyer who takes the time to develop effective visual aids when it is time to advocate for his client will be light years ahead of his opponent. We form our opinions about the world around us based upon our senses. The more senses we can reach in closing argument, the better our chances are that our point will get across.

Some lawyers have attempted to re-create in the courtroom the experience of being stopped by the police and asked to perform field sobriety tests. The limits on re-creating any scene in a courtroom environment are limited only by the imagination (and, of course, the trial judge). We have found that creating reusable exhibits helps not only in communicating our point to the jurors, but also in helping us develop and organize our closing. When you are freed from your notepad and your preparation is centered around the use of exhibits, you are free to express more emotion, and to feel more confident that you will say everything that needs to be said.

Conclusion

The above ideas and suggestions successfully persuade jurors every week in courtrooms throughout America. These ideas also help captivate television audiences each and every day. It is my hope that these approaches will inspire criminal defense lawyers to apply their creative abilities as much to opening statement as they apply to other areas of a criminal trial. As trial lawyers, we must personally work on new and different ways of persuading a jury of finding reasonable doubt in our cases.

Credits: Special thanks and credit go to Mike Hawkins of Atlanta, Georgia, for his assistance and sharing his examples of primacy and recency, plus his use of trilogies and visual aids. Mike “Hawk” Hawkins is a gifted and persuasive storytelling trial lawyer. A regent with the National College for DUI Defense, Mike has been Board Certified by NCDD since 2001. He is certified to operate the Intoxilyzer 5000, and is a frequent lecturer on DUI issues in Georgia and across the country. He is AV-rated by Martindale Hubbell and has been named to the Best Lawyers in America, named a Georgia “Super Lawyer” in DUI Defense by his peers, and is one of “Georgia’s Best Lawyers,” named by the Atlanta Journal-Constitution. Hawkins presently serves as Vice-Chair of NACDL’s DUI Committee. Although “Hawk” roots for the Alabama Crimson Tide every weekend in the fall, deep down “Hawk” wants to be a Texan, as he is usually found barbecuing for his friends and family on those weekends.

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.

Dealing with ICE Holds – By Fernando Dubove

You’re responding to a 2:00 a.m. jail call. Your client’s at the county jail charged with DWI, possession of marihuana, and unlawful carrying of a weapon. Luckily you’re able to get a reasonable bond set, BUT . . . by the time you get to the jail to post your client’s bond, immigration has placed a detainer. Your case is shot. Or is it? And your client is going to be deported. Or is he?

 

Two years ago, Immigration and Customs Enforcement (ICE), the immigration enforcement division of the Department of Homeland Security, began emphasizing the removal of criminal aliens from the United States. ICE began working with local law enforcement to help them identify all non-U.S. citizens arrested. The number of immigration detainers multiplied for persons arrested for even minor traffic violations like driving without a license and misdemeanor offenses. Misconceptions have grown over what rights persons with immigration holds have.

The purpose of this article is to guide criminal defense attorneys on how to handle incarcerated clients with immigration holds.

Legal Authority for Immigration Holds

The Department of Homeland Security can place a detainer advising a state prison, or another law enforcement agency, that ICE seeks custody of an alien presently in their custody. 8 CFR Sec. 287.7(b). The law enforcement agency shall hold the person for up to 48 hours, excluding Saturdays, Sundays, and holidays, to allow ICE to assume custody. 8CFR Sec. 287.7(d). The regulations empower the Department of Homeland Security to issue detainers “for the purpose of arresting and removing the alien.” 8 CFR Sec. 287.7(a) These regulations create three ground rules necessary to understand when dealing with an Immigration hold.

First, an immigration detainer does NOT give ICE immediate custody of your client. A detainer is like a lien. ICE will not take custody of your client until the law enforcement agency detaining him is set to release him. In other words, ICE will not move him, consider the particulars of the case, or (in a worst-case scenario) deport him until he bonds out, the charges are dropped, or he’s completed his sentence. This gives the family and the criminal defense attorney time to map out a plan for dealing with ICE and the Immigration Judge once they get custody of your client. It also gives the criminal defense attorney the chance to explore ways to tailor a plea or sentence to mitigate the client’s immigration exposure.

Second, pending charges cannot be the basis for the detainer. The only legal basis for an immigration detainer is either your client is illegally in the United States, or he is legally in the United States, perhaps as a Lawful Permanent Resident, but has been convicted in the past of a deportable offense.

Third, just because your client is in jail and has an immigration hold does not mean he will be deported or that he will not be released once he is transferred to immigration’s custody. Unless your client has a conviction that subjects him to the mandatory detention or has been previously deported, he is eligible for an immigration bond, to be set initially by the ICE officer who reviews his case once he transferred to their custody. If the ICE officer does not set a bond amount, or sets too high a bond amount, an Immigration Judge can hold a Bond Redetermination Hearing to reconsider your client’s bond amount.

Once the immigration bond is paid, your client will be released pending a future hearing date with an immigration judge. Even persons illegally in the U.S. are eligible for bonds. If an immigration bond is set and paid, the client will have several months before his hearing with an immigration judge. Even if he is ordered to return to his country, it can often be under a voluntary return order, giving your client up to 120 days to leave the U.S. on his own without the penalty of a deportation order.

What to Ask Clients Detained with Immigration Holds

You’ve made the trip to the jail to bond your client out, only to find out he’s got an immigration hold. Before returning to the office, ask your client these questions:

What is his immigration status? Does he have legal status in the U.S.? If he is illegally in the U.S., check if he has an application pending (usually an I-130 petition) through a family member (spouse, parent, sibling). If he has a pending petition, does he have a copy of the receipt or approval notice sent by immigration? Someone without legal status in the U.S., but with a pending petition through a family member, is in better position to secure an immigration bond with ICE and an Immigration Judge.

Has he been deported before? If your client has been deported before, his immigration rights to a bond are severely harmed. Even if your client has a lawful permanent resident card (the “green card”), make sure he has not been previously deported.

What was he arrested for? Does he have any priors? Prior convictions will affect his bond setting by both an ICE officer and an Immigration Judge.

What family with lawful status do they have in the U.S.? Family ties will affect bond settings.

Preparing for Immigration

Let’s go back to the opening scenario. Your client is arrested for DWI, possession of marihuana, and unlawful carrying of a weapon. By the time you try to pay the bond, your client has an immigration hold because your client is illegally in the U.S.—or he is a Lawful Permanent Resident (he has his “green card”) but was previously convicted of a deportable offense. Remember that immigration will not take custody of your client until the state is ready to release your client. This gives you time to address the immigration aspects of his case, pursuant to Padilla vs Kentucky, with your client, his family, and an immigration attorney.

Remember, there are ways of ways of tailoring a sentence or conviction (like pleading to a lesser included offense) that can decrease or eliminate your non-U.S. citizen client’s exposure to deportation. As Justice Stevens wrote in Padilla vs Kentucky, “Counsels who possess the most rudimentary understanding of the deportation consequences of particular criminal offenses may be able to plea bargain creatively with the prosecutor to craft a conviction and sentence that reduce the likelihood of deportation, avoiding a conviction for an offense that automatically triggers removal consequences.”

Once the criminal bond is posted, he will be moved to ICE within 48 hours. There will be two chances at getting the detainee an immigration bond, first with the ICE officer who makes the initial bond setting and, if that doesn’t go so well, a second chance before an immigration judge. A hearing with an Immigration Judge can be scheduled usually within less than one week after filing a Motion for a Bond Redetermination Hearing with the Immigration Court. If the client is in the U.S. illegally—but has a visa petition pending through a family member and lives with family members with legal status in the U.S.—having copies of the visa receipt and proof of the family’s legal status ready to give the ICE officer when the client is transferred to ICE can help secure an immigration bond immediately upon being transferred to ICE custody.

If an immigration bond is set and paid, even under a worst-case scenario, the client will be free for typically 8–10 months by ICE while awaiting a hearing with the immigration judge and complying with any voluntary return order issued. This can give the criminal defense attorney time to resolve the criminal charges in a way that minimize the client’s immigration exposure and leaves the door open for him to stay in the U.S.—or legally return to the U.S. at some future time.

Fernando Dubove received his B.A. and J.D. from the University of Texas at Austin. In 1987, he served as Assistant Director in Texas for a Washington, D.C.,-based immigrant and refugee rights organization. He served as the staff trial attorney for the Diocesan Migrant and Refugee Services in El Paso. He is now in private practice with offices in Dallas and Tyler. Fernando is the author of “Immigration Implications for Crim­inal Convictions,” published in the Voice of the Defense, and co-author of “The North American Free Trade Agreement: Immigration and Labor Considerations,” published in the Texas Bar Journal. He is a member of the American Immigration Lawyers Association. The Dallas Observer named him the best Immigration Attorney in Dallas. Born in Argentina, Fernando is fluent in Spanish and English.

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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