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Absurd Results During COVID-19

During the pandemic, Texas resident Ace Cannon wanted liquid refreshments – beer, to be precise – but lacked the required monies to pay for his “need.” Undeterred, Mr. Cannon headed to the nearest Stop and Rob. Grabbing an ice-cold twelve pack of cans, Mr. Cannon quickly whisked past the checkout counter without stopping to make requisite payment. However, our “Hero” quickly fell into the hands of the local law enforcement, who arrested him for Theft of Aluminum, a state jail felony.1

The grand jury returned an indictment for that felony offense. The State then “enhanced” the SJF to a third degree offense because it was committed “in an area that was at the time of the offense subject to a declaration of a state of disaster made by the Governor.”2 Ace’s Class C theft,3 with an assist from the Great State of Texas, has Mr. Cannon facing a potential ten year pen trip.

I know what you are thinking. “They” can’t do that! Yes. Yes, “they” can.

If you have a client facing a COVID-19 “state of disaster” enhancement, all is not lost. Although the plain language of the applicable enhancement statute seemingly allows such “horse hockey,”4 a look back on the legislative history of this law shows otherwise. Time to dust off your knowledge of statutory construction and argue that the enhancement is ill-advised outside times of natural disasters – and offenses directly related to the occurrence of the natural disaster. In legal terms, to apply the enhancement for “an offense committed in a disaster area” in Mr. Cannon’s case would provide for “an absurd result.”

Not all disaster declarations are meant to trigger this enhancement.

The trip to the “absurd result” begins with the landfall of Hurricane Ike in Texas on September 13, 2008.5 Ike swept through Galveston Island and onto the Texas mainland.6 Pertinent to our Tale of Woe, police arrested eight persons in Galveston County for looting in the week following landfall.7 Over 100 arrests were made for “looting” in Harris County in the same time.8 Then State Senator (now Lieutenant Governor) Dan Patrick heard the siren’s call, and introduced legislation “to increase punishment in theft cases committed in certain evacuated or disaster areas.”9 It important to note that the initial bill was tied only to the Theft statute, but evolved into a general sentence enhancement. The chart below tracks the progression of all related bills through the Texas Legislature in 2009.

12/15/2008: Senate Bill 359 filed.10

S.J. of Tex., 254 81st Leg. R.S.

“Relating to punishment for the offense of theft committed in certain evacuated or disaster areas.”11

03/13/2009: HB 4101 is filed.12

03/27/2009: The Senate Research Center issues its “bill analysis.”

“This bill addresses punishment levels for the offense of theft committed in evacuated areas or disaster areas. After Hurricane Ike, local officials brought to light the problem of looting in abandoned or evacuated areas. Section 31.03(f) (relating to certain offenses committed by actors that qualify for the next higher category of offense) of the Penal Code lists several specific theft offenses for which penalties are increased to the next higher category of offense.

C.S.S.B. 359 adds Section 12.50 (Penalty If Offense Committed in Disaster Area or Evacuated Area) to Subchapter D (Exceptional Sentences), Chapter 12 (Punishments), Penal Code, to provide that the punishment for an offense is increased to the punishment prescribed for the next higher category of offense if it is shown on the trial of the offense that the offense was committed in an area that is considered to be a disaster by certain government officials.”13

03/30/2009: Senate Bill 359 is reported out of committee revised to punishment enhancement, instead of focusing on amending the theft statute.14

05/18/2009: The House Research Organization bill analysis is issued.

SB 359 would help deter potential criminal behavior during a hurricane or other disaster by increasing the punishment for certain crimes if they occurred within a declared disaster area. Curfews are not enough to deter burglary or theft after a hurricane, because many looters and burglars are discovered after set curfew times. Some residents do not evacuate during hurricanes out of fear that their homes or businesses will be broken into or looted. By enhancing criminal penalties for certain offenses, the bill would provide peace of mind to residents and business owners.15

05/18/2009: SB 359 is amended.

Amend SB 359 (house committee printing) in SECTION 1 of the bill as follows: (1) In proposed Section 12.50(a), Penal Code (page 1, line 12), strike “is” and substitute “was, at the time of the offense”. (2) In proposed Section 12.50(a)(1), Penal Code (page 1, line 13), strike “considered to be a disaster area by” and substitute “subject to a declaration of a state of disaster made by”.

(3) In proposed Section 12.50(a)(1)(B), Penal Code (page 1, line 18), immediately following the underlined semicolon, insert “or”. (4) Strike proposed Section 12.50(a)(1)(D), Penal Code (page 1, lines 22-23).16

06/19/2009: SB 359 was signed into law by Texas Governor Rick Perry.17

Currently, the statute provides for a listing of applicable offenses that can be enhanced under the statute.18 If a listed offense “is alleged to have been committed in an area subject to a state of disaster declaration made by the President of the United States, the Texas Governor or a presiding officer of a governing body under Texas Government Code section 418.108 or subject to an emergency evacuation order,” then the punishment is increased to that prescribed for the next higher category of offense.19

Here is where it gets legal

The legislative history shows a clear intent that the punishment enhancement was to be used in cases where there is a combination of a natural disaster and persons attempting to “profiteer” from the results. But the plain language of the statute provides no such limitation. So, in the words of The Stork, “what the hell are we supposed to do, ya moron?”20 Well, hold my beer. All that is necessary is to prove that jacking Ace into the Institutional Division is an “absurd result.”21

The start of this process is to use statutory construction. The objective of this process is to give effect to the Legislature’s intent.22 To do so, the first step is to examine the statutory text according to its plain meaning.23 If the meaning of the statutory text would have been plain to the legislators who voted on it, courts are to “give effect to that plain meaning.”24 However, where application of a statute’s plain language would lead to absurd consequences that the Legislature could not possibly have intended, the plain language method is not used.25 A statute is ambiguous when it “may be understood by reasonably well-informed persons in two or more different senses.”26 Yeah, but how do you get to the absurd result? The absurd-results principle appears to be simple enough: “[i]interpretations of statutes which would produce absurd results are to be avoided.”27 There you go. Just tell the judge to avoid this issue.

How about another approach, one that might not draw the blank stare of indignation or incite judicial anger? One a bit more “legal?” Texas opinions finding “absurd results” are divisible into four general categories:

  • The “conditional” statement, i.e., one stating that an interpretation producing absurd results should not be adopted if an alternative construction is available;
  • The “normative” statement, i.e., one stating that courts should, may, must, or will not adopt a construction of a statute that leads to absurd results, without making the exception conditional on the existence of a reasonable alternative construction and without expressly declaring that the rule will control even over the literal meaning of statutory language;
  • The “presumptive” statement, i.e., one stating that courts will presume the legislature did not intend for a statute to produce absurd results; and,
  • The “deviatory” statement, i.e., one expressly stating that the court will deviate from the literal meaning of statutory language if an adoption of such meaning would produce absurd results.28

Luckily, it is necessary to examine only the “deviatory statement,” as it provides the best fit under existing Court of Criminal Appeals guidance. The deviatory statement theory includes those opinions that state the absurd-results principle in terms that are (1) not conditioned on the existence of an alternative reasonable construction, and (2) expressly stated to control even over the literal or plain meaning of the statutory language.29 This category is the most significant for purposes of Mr. Cannon’s defense – because it is the only version of the absurd-results principle that is, on its face, a true exception to the plain-meaning rule.30

Two Court of Criminal Appeals opinions demonstrate the “deviatory” statement theory. Begin with Mr. O. A. Bizzelle, who in 1938, was convicted of operating a modern school of beauty culture “without having it at all times under the direct supervision of a registered hairdresser or cosmetologist.”31 Mr. Bizzelle had left his school under the care of another, one Miss Cavanaugh.32 Miss Cavanaugh had absented herself from the cosmetology school for “several days” while visiting her sister.33 Obviously, under the plain meaning test, Mr. Bizzelle has committed an offense. However, the Court was called upon to determine the meaning of the language “at all times under the direct supervision of a registered hairdresser or cosmetologist.”34

The Court quickly found that enforcing the plain language of the statute would “lead to consequences which the Legislature could not have contemplated.” “When the literal enforcement of a statute would lead to consequences which the Legislature could not have contemplated, the courts are bound to presume that such consequences were not intended and adopt a construction which will promote the purpose for which the legislation was passed.”35

A similar issue arose when the Court of Criminal Appeals was asked to determine the meaning of the statute which required “[i]f during the trial evidence of the defendant’s incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial.”36 In Johnson, while on the witness stand, the defendant “lapsed into a rambling narrative stating that he had been ‘under surveillance for five years’ by certain law enforcement officials; that certain documents and pieces of his private mail had been stolen from him… and also that there was a conspiracy among the trial officials, including the trial judge and his attorney, to send him to the penitentiary unjustly.37 Citing the plain language of the statute, the Court of Criminal Appeals found this outburst to be sufficient evidence to require the court to have a hearing concerning competency, and reversed the matter for a new trial.38

However, upon rehearing, the Court of Criminal Appeals reversed itself.39 Apparently having realized the import of what they had held in the original decision,40 the Court quickly backtracked. “In construing a statute, its subject matter, reason and effect must be looked to… when a literal enforcement would lead to consequences which the Legislature could not have contemplated, the Courts are bound to presume that such consequences were not intended and adopt a construction which will promote the purpose for which the legislation was passed.”41 The Court then declared “the plain meaning” of the statute could not stand, concluding that “the Legislature could not have contemplated the consequences attendant upon a literal interpretation.”42

“Nothing is over until we decide it is!”

Let’s return to our statute in question. Clearly, Lieutenant Dan did NOT intend for the State of Texas to use this enhancement as a weapon of mass destruction – however broadly it was written. It was to be pinpointed to areas that were affected by a natural disaster such as a hurricane or other weather events – and at those who attempt to profiteer from said disaster. To do so otherwise would certainly seem as absurd as fining the owner of a cosmetology school for not having 24/7 supervision of the participants or having a defendant create a need for a competency hearing when it is clear that it is a fake. In other words, a link to the “disaster” and the allegations of the crime is necessary.

Further, when attempting to limit this enhancement to a proper application, the Legislative history comes into play.43 Extra-textual factors that maybe considered include (1) the object sought to be attained by the Legislature; (2) the circumstances under which the statute was enacted; (3) the legislative history; (4) the common law or former statutory provisions, including laws on the same or similar subjects; (5) the consequences of a particular construction; (6) the administrative construction of the statute; and (7) the title or caption, preamble, and any emergency provision.44

So what did Lieutenant Dan tell us in the legislative history? The bill was to “deter potential criminal behavior during a hurricane or other disaster by increasing the punishment for certain crimes if they occurred within a declared disaster area. By enhancing criminal penalties for certain offenses, the bill would provide peace of mind to residents and business owners.”45 It is also known that this bill arose at the time when South Texas had been hit by Hurricane Ike – and that reports of looting and other criminal activity arising from those profiteering from the misery of others had been published. Last, the bill’s title was “Penalty If Offense Committed in Disaster Area or Evacuated Area.”

The plain language may allow use of the enhancement in Ace’s case, but the adoption of such a broad meaning would produce absurd results – or [in less legal terminology] would constitute a “really futile and stupid gesture.”46 As such, Mr. Cannon’s indiscretion should not be seized upon to create another resident of the Institutional Division of the Texas Department of Criminal Justice. Although the plain language of the statute provides the State with this potential, pointing out the irrationality of this application saves Ace an undeserved and unwarranted stay at TDCJ.47

Now, go do that voodoo that you do so well.48

Cross Examining the State’s Domestic Violence Experts: The Blind Lumpers

The Problem

A disturbing pattern is emerging. The blind lumpers are coming.

There is a growing pattern of the State designating and attempting to use advocates now in domestic violence (“DV”) cases to lump these cases into the same shape and size. They are frequently calling “blind” experts who either intentionally or unintentionally know nothing about the specific case – except for the fact the Defendant is guilty. Their job is to explain to the jury how every bit of evidence in the case (or lack of evidence) points to Defendant’s guilt.

For some time now, in child sex cases you can usually count on the State to parade one advocate after another to the witness stand to shore up the weak aspects of the State’s case under the guise of being an expert under rule 702. They often use their “training and experience” in their malleable discipline to show the jury they are human polygraph machines.

Now they’re doing it in domestic violence cases, too.

In DV cases these witnesses are armed with charts and anecdotal theories such as the Power and Control Wheel (“PCW”) and Cycle of Violence (“COV”). There are ways to combat this tactic by both effective cross examination and legal efforts to either prevent the witness from testifying and/or preserving the matter for appeal.

Overviews and Goals of the Article

DV analysis and interpretation is a soft science to be sure. It’s difficult to have any confidence in empirical sociological or scientific research done due to the inability to reliably have controlled studies in this field. The little research that has been done tends to be wildly inconsistent and point in all directions. Academic papers and researchers who attempt to harmonize these inconsistencies have a difficult time doing so. Other groups entering the ‘academic’ fray in the debate are also attacked as having a specific agenda.

Because the expertise in DV cases tend to be “clinical” in nature as compared to “academic,” the topic lends itself to being difficult to cross-examine. Practitioners in the field are coming to testify, and they are armed with mountains of anecdotal evidence and scientific principles they learned at weekend conferences from teachers whose name they forgot. Cross examining them can be like trying to nail Jell-O to the wall.

What the State is really doing is manipulating Rule 702 to substitute advocates for experts, and thus far, the Courts have let them get away with it.

This article examines and discusses current trends and techniques utilized by prosecutors with regards to their expert witness practices. It is designed to assist the reader to effectively identify, cross examine, and preserve error when confronting the State’s DV experts.

“Blind” Experts

A blind expert is an expert brought in to testify who was not involved with the case. This person has typically not reviewed any discovery, conducted any independent interviews, nor generated any reports. These experts are often affiliated with third-party advocacy groups such as battered women’s shelters and/or children’s advocacy centers. It is not uncommon for these witnesses to be designated in every case by the state, and it’s further not uncommon for these witnesses to hop from one courtroom to another to testify in similar cases for your particular county’s DV prosecution team.

“Lumping” vs. “Splitting”

Charles Darwin originally coined the phrases “lumpers” and “splitters” which have gained more wide-acceptance over time. Healthy academic communities and disciplines have both. The lumper is the academic who tries to put everything in broad ‘lumps’ or big groups. The splitter is the academic who does the opposite. The splitter attempts to isolate cases and show smaller or more unique distinctions within groups. The lumper v. splitter debate can be applied to attempting to decode COVID-19, study dinosaurs, or the stock market.

The distinction helps to understand the State’s experts in DV cases are typically “lumpers.” That is, they lump everything into their broad world view frequently with little or no empirical data or support.

As always – when attacking an expert witness, it is fundamental to attack (often baseless) assumptions. Knowing you are dealing with a ‘lumper’ helps and gives you a base set of cross examination points.

Common Topics of State’s DV Experts

The Duluth Model

The Duluth Model is the most common batterer intervention program used in the United States as of 2006 and was developed as a way to reduce domestic violence against women. It was named after Duluth, Minnesota – the city where it was developed. The founder of the program was Ellen Pence, an activist. It is the framework of the BIPP (Battering Intervention and Prevention Program) course many courts require as a term and condition of community supervision.

Some staples of the model include the “Cycle of Violence” (“COV”) and the “Power and Control Wheel” (“PCW”) developed as teaching tools for the ‘re-education’ of offenders to address typically male violence towards women from a socially reinforced sense of entitlement.

The Cycle of Violence

The COV was developed by Lenore Walker in 1979. Her research was based on 120 battered women. Ms. Walker developed three phases in the cycle of violence:

  • Tension Building Phase – where the abuser becomes more temperamental and critical of the victim. As the tension escalates, the victim feels as if she is “walking on eggshells.” The victim often placates the abuser.
  • Acute Explosive Phase – Abuser verbally or physically attacks the victim.
  • Honeymoon Phase – The batterer expresses remorse and promises to change.

Criticism and weaknesses of “The Cycle of Violence”

It Presumes Guilt

The COV comes with a flawed and fatal assumption if it’s being used as a method to prove guilt. It assumes Defendant is Guilty in the first place. For any of the supporting phases to be true – this base assumption also has to be true.

If you replace the very top assumption with its opposite – Defendant is innocent – then absolutely none of the other phases make logical sense. But this diagram shows how the echo-chamber logic is circular in the first place.

The COV doesn’t Account for Mental Illness or Substance Abuse

A major gap in the COV is it does not account for mental illness or substance abuse. Ms. Walker’s original theory had “power” and “control” as the main motivators for domestic abuse, yet those who practice criminal defense on a regular basis understand the roles of depression, anxiety, and other mental illnesses on these cases. Another unaddressed issue by the COV is substance abuse whether or not related to mental illness.1

The COV Converts Evidence of Innocence into Evidence of Guilt

Another criticism of the COV is it takes evidence of innocence and flips it into evidence of guilt with rhetoric alone. Is buying flowers for your spouse evidence of innocence or evidence of guilt? Is having a calm marriage where something both intimate partners agree was not domestic abuse in the first place evidence of a healthy relationship or is it ignoring an two-ton elephant?

The State’s blind lumper expert would argue buying flowers is evidence of guilt because it shows Defendant is trying to control and manipulate the ‘victim’ in the ‘honeymoon’ phase of the cycle of violence. Then again, some spouses are just nice to one another and have a perfectly healthy union.

COV was Developed and Based on Anecdotal Evidence

Lenore Walker has conceded the data set of women originally studied was a small set and were all involved in violent relationships. She further admitted the women were not randomly selected and they cannot be considered a legitimate data base from which to make specific generalizations.2

“Duluth Model Treatment” Fails to Stop Domestic Violence

While academic studies are ‘all over the map’ on DV, there are many studies which show the Duluth Model – despite being the most common treatment method – has little or no positive effect on violent behavior. Researchers found in 2011 “there is no solid empirical evidence for either the effectiveness or relative superiority of any of the current group interventions… the more rigorous the methodology of evaluation studies, the less encouraging their findings.”3

The Duluth Model Focuses Only on Men

Yet another criticism of the Duluth Model is it is focused on male perpetrators and insists male DV is due to patriarchy which condones violence. Critics claim the model is overly-confrontational rather than therapeutic and fails to deal with underlying psychological causes.

A leading critic of the Duluth Model is Donald Dutton, Psychology Professor at the University of British Columbia. He claims, “The Duluth Model was developed by people who didn’t understand anything about therapy.”4 He also argues lesbian battering is more prevalent than heterosexual battery by a 2 to 1 ratio.5 Additionally, author Phillip W. Cook points out male-dominance is absent in homosexual relationships so the Duluth Model blaming male patriarchy falls flat.6

The Power and Control Wheel

The “Power and Control Wheel” (“PCW”) is a diagram displaying a pattern whereby a batterer establishes and maintains control over his partner. While the COV addresses phases in the relationship, the PCW is supposed to demonstrate methods and motivations employed by an abuser. It includes subcategories such as “Male Privilege,” “Coercion and Threats” and “Minimizing, Denying and Blaming.”

Criticism of the PCW

Like the COV, the PCW is similarly not validated scientifically. Further, it suffers from the same fatal assumption the COV does – that is, for it to work, the entire ‘wheel’ must begin with the assumption Defendant is guilty in the first place.

The PCW actually compounds assumptions, though. It primarily assumes defendant is guilty. But then it goes on to further assume the motivations for his guilt. It assumes motivations for being a “batterer” are rooted in power and control. Even if the person is guilty in the manner they suggest – the PCW has a major ‘blind spot’ because the motivation may have nothing at all to do with power and control. It could be mental illness, addiction, or reciprocal domestic violence.

Countervailing Theories to the Duluth Model

Reciprocal Intimate Partner Violence

Reciprocal Intimate Partner Violence (“RIPV”) is also referred to as mutual violence and/or symmetrical violence. It is where both partners – in essence – take turns being the abused and the abuser. The thought that both intimate partners engage in domestic violence undermines both the COV and PCW because both of those assume the domestic violence, abuse, and manipulation to be unilateral.

Several studies place RIPV at anywhere between 42% and as high as 70% of the over-case count for domestic abuse occurrences. In a 2007 study published in the American Journal of Public Health, researchers found about half of the relationships which experienced DV – had violence characterized as reciprocal. In reciprocally violent relationships, it was women who were the aggressors 70% of the time although men inflicted more serious injuries on their partners.7

Dealing with Medical Testimony – Choking

Evidence of choking can be difficult to detect and evidence will not be present in all cases. One law enforcement report showed in 62% of strangulation cases the police officers saw no visible signs of the choking. In 22% of cases minor visible injuries such as redness or scratch marks were reported. Only 16% of cases had significant visible injuries such as bruises, red marks or rope burns. Voice changes occur in 50% of victims. Chin abrasions can be common too as the victim lowers their chin to instinctively protect their neck.8

Visible injuries may be fingernail scrapes, scratches, or lesions.9 Redness known as erythema may or may not darken to become a bruise. Some bruises may not appear for hours or days afterwards. Much bruising is caused by an assailant’s hand or thumb and can make a discernable pattern.10

Petechiae are small red spots in the eye which are evidence of ruptured capillaries (the smallest blood vessels in the body). They can sometimes be found underneath the eyelid. Petechiae can also be found around the eyes in the peri-orbital region or anywhere on the face or neck.11

How the State’s Blind Lumper Will Testify About Choking

If there is little or no physical proof of choking – The State’s blind lumper will likely testify your client is still guilty. It is no different than a SANE nurse brought in to a sexual assault trial with their sole purpose to turn evidence of innocence (a clean medical exam) into an evidentiary tie. For example, the State’s expert will say, “just because there’s no evidence of choking doesn’t mean he’s innocent.”

If there is physical evidence of choking – then it’s probably time to get a medical expert of your own involved – typically in forensic pathology.

Preserving Error

Consider analyzing error in reverse. Be cognizant of the Appellate Court’s standards of review when making the appropriate objection.

Under Texas Rules of Appellate Procedure the Court will either review an error as “Constitutional” or as “other error.”12 Constitutional error requires reversal “unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.”13 Non-Constitutional error or “other error” “…that does not affect substantial rights must be disregarded.”14

Translation – if it’s not Constitutional error, then it basically gets ignored on appeal.

Making All Objections Constitutional Error

Consider ‘Federalizing’ your objections to the State’s blind lumper expert. Possible objections could include objections based on the confrontation clause or to the Due Process Clause under the 5th and/or 14th Amendment.

The Confrontation Clause

Under the 6th Amendment to the US Constitution, a person has a right to confront accusers. The theory of Rule 702 further goes such an expert would have to concede both good and bad facts or scientific or technical nuances which may hurt the proffering party. The expert is an advocate for the science – not a particular party.

But the blind lumper expert is designed so they can’t be cross examined at all.

They don’t know any of the facts – so you can’t undermine their opinion there. They also frequently don’t rely on any specific authority such as treaties, empirical studies, or trade guidelines they will admit to – nor bring with them to Court.

Because the blind lumper is not tethered to any specific fact, circumstance, or academic principle – they are very difficult to cross-examine.

Due Process

If you really think about it – all objections rooted in the Texas Rules of Evidence can be characterized as “Due Process” objections, too. Again, if you are overruled on objections to ‘bolstering’ or on a Rule 702 objection the Court of Appeals will analyze any error as “other error” which simply won’t result in reversal. If the objection is couched as a Due Process objection – and the Court agrees it is error – then you stand a real chance at reversal.

“Blind Experts” – a Texas Tradition

Rule 702 – And How it’s Increasingly Useless in Stopping the Blind Lumpers

Here is a quick refresher on Rule 702 and the rule’s application with regards to the blind lumper witness. There is a critical distinction between the State and Federal version of Rule 702 which makes the blind lumper witness far easier to proffer as a witness in Texas Courts:

Tex.R.Evid. 702:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

Federal Rule 702:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case. (Emphasis Added).

In Federal cases the witness must demonstrate a firm basis in the facts of the case. State Courts have some control measures similar to the federal rules – but they are supplied by case law, and they are far looser than the federal requirements. Texas Courts further break-down expert witnesses into different categories based on how subjective the discipline may be.

Challenges to the Experts’ Qualifications Generally Fail on Appeal

Courts have permitted the use of expert testimony on the COV and its dynamics of PCW to fortify a complaining witness’s delay, reluctance, and inconsistencies in reporting abuse as well as other behavior, including recanting a report of abuse.15 16 17 As recently as the week prior to this paper being written, the Dallas Court of Appeals again held a “blind expert” was permissible.

To make matters even more impossible on this line of attack for the Defense – the Dallas Court held because the “blind” expert was so general in nature, any error committed would be harmless anyway.18 The trial court even issued a limiting instruction because of how weak the testimony was. This holding allowing the testimony is illogical. To be relevant in the first place, the expert would need to be able to assist the jury with a fact of consequence in the first place. The Court by holding the evidence was so inconsequential conceded the expert was irrelevant.

Rule 702’s “Fit” Requirement

Some of the language which supports scrutiny towards the “blind lumper” expert witness is the “fit” requirement. Expert witness testimony must “fit” the facts of the specific case to be relevant under Tex.R.Evid. 702. Jordan v. State, 928 S.W.2d, 550, 552 (Tex.Crim.App. 1996). “When examining the Rule 702 issue, the trial court must determine whether the expert “makes an effort to tie pertinent facts of the case to scientific principles which are the subject of his testimony.19

And then there is Bolstering

Bolstering is “any evidence the sole purpose of which is to convince the factfinder that a particular witness or source of evidence is worthy of credit, without substantially contributing ‘to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.’” Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993) (quoting former version of Tex.R.Evid. 401). Tex.R.Evid. 613(c) states, “Unless Rule 801(e)(1)(B) provides otherwise, a witness’s prior consistent statement is not admissible if offered solely to enhance the witness’s credibility.

Checklist for Cross-Examining the Blind Lumper

Start in Opening Statement

Attack the blind lumper expert in your opening statement if you know they are coming. Let the jury know what a blind lumper is, how they hop from courtroom to courtroom, and how the only thing they are sure of is Defendant is Guilty.

705 Hearing

Rule 705 allows you to have a hearing outside the presence of the jury examining the expert’s opinion and the underlying facts and data supporting the opinion. Always request a 705 hearing to learn beforehand what, if anything, the expert has reviewed prior to court – and when they reviewed it. Chances are if you argue about them being a blind lumper in opening statement, they make take a crash course on the facts of your case in the hallway waiting to testify.

i.Hit “Blindness”

If your expert is blind – cross examine them on it. If you’re calling your own experts, enhance your expert’s credibility by comparing and contrasting their preparation with your own expert’s preparation. Don’t simply let the ‘blind’ expert off with one or two questions about how they didn’t review the case – ask them as many questions on the ‘blindness’ as you can:

Q: You didn’t talk with the complaining witness?
Q: You don’t have any social background on the complaining witness?
Q: Didn’t talk with the detective?
Q: Didn’t read any offense reports?
Q: Didn’t look at any pictures?
Q: Watch any of the videos?
Q: Look at any academic studies for this case?
Q: Didn’t review any medical records?

Hit Assumptions and Weaknesses of COV and PCW

Discuss the weaknesses and assumptions listed above about both the COV and the PCW. Remember, they both presume guilt and not innocence. Further, if they are being discussed in punishment – remember they proscribe particular underlying motives which ignore mental illness, RIPV, and substance abuse.

Follow the Money Trail

If the State’s expert witness is from an advocacy center or perhaps hospital or other organization “supporting the cause” of ending domestic violence – explore the financial ties, if any, between that organization and the elected DA. Do they donate? Is the DA trying to curry favor with these groups or vice-versa? Is the battered-women’s shelter providing blind lumper experts something they all concocted in a board room when the DA was hoping to get a donation for re-election? Maybe there is nothing there – and maybe your blind lumper knows nothing about it. Then again, maybe there is something there a jury would find interesting.

Solving the Problem of the Blind Lumper

Blind lumper expert witnesses called by the State manipulate the rules and put Defendant in the difficult spot of cross-examining a Jell-O like witness who isn’t tethered to any facts, any data, or any empirical research. They twist, bend and ultimately ‘lump’ all of their opinions into “he’s guilty.” It’s a real challenge of your complete advocacy skills both in front of a jury, to the trial judge, and even the Court of Appeals to put a stop to their practice. Hopefully, this helps.

Expert Witnesses and Challenges to Expert Testimony Pt. 1

The admission of expert testimony is generally governed by one statute and four rules.  Discovery of expert witnesses prior to trial is governed by Article 39.14(b), C.C.P.  Texas Rule of Evidence 702 sets forth the standard that the proponent of the evidence must meet to have expert testimony admitted before the trier of fact. Texas Rule of Evidence 703 sets forth the kind of information that an expert may rely upon in giving opinion testimony. Texas Rule of Evidence 704 provides that an opinion is not objectionable just because it embraces an ultimate issue.  Texas Rule of Evidence 705 sets forth the rules that govern the testimony of an expert in trial.  Each of the foregoing is addressed herein. 

In part one of this two-part series, Article 39.14, C.C.P. and Texas Rule of Evidence 702 will be addressed. In part two of this series, Texas Rules of Evidence 703, 704, and 705 will be addressed.

I. Article 39.14(b), C.C.P.
Discovery Relating to Experts

(b)  On a party’s request made not later than the 30th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin, the party receiving the request shall disclose to the requesting party the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence.  Except as otherwise provided by this subsection, the disclosure must be made in writing in hard copy form or by electronic means not later than the 20th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin.  On motion of a party and on notice to the other parties, the court may order an earlier time at which one or more of the other parties must make the disclosure to the requesting party.

Discovery relating to experts in criminal trials is governed by Article 39.14(b), C.C.P. It is a unique statute because it is the only provision that requires the defense to provide discovery to the State in a criminal prosecution. Instead of using terms such as “State” or “defense,” the statute uses the terms “party’s request,” the “requesting party,” and the “disclosing party.” A distinction is not made as to whether the requesting or disclosing party is the State or the defense.

The process required by the statute begins when a party makes a request not later than the 30th day before the date the trial is scheduled to begin. While the statute does not say what the requesting party has to request, it provides that the party that receives the request “shall disclose to the requesting party the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, Tex. R. Evid.” Rule 39.14(b), C.C.P. Article 39.14(b) requires only the disclosure of the names and addresses of persons that the party “may use” at trial to present evidence under Rules 702, 703, and 705, Tex. R. Evid. In re Stormer, 2007 WL 1783853, *2 (Tex. Crim. App. 2007); Pope v. State, 207 S.W.3d 352, 360 (Tex. Crim. App. 2006).

The Court of Criminal Appeals has recognized the distinction between a “consulting expert” and “testifying expert”, which is well established in civil law. Pope v. State, supra at 359-360. “Thus, once a party designates a particular person as an expert that he may use as a witness at trial, that person is no longer a “consulting” expert, he is a “testifying” expert, and the opposing party, whether the State or the defendant, may seek further information from or about him for use at trial.” Id. at 360. The best approach for defense counsel is to initially hire an expert as a “consulting” expert and then decide later whether the expert will testify. However, if the State makes the request for disclosure of the name and address of any expert the defense may use at trial, defense counsel must make the decision as to whether the expert is going to be a “testifying” expert, and if so, make the disclosure to the State, or he will not be allowed to testify over the State’s objection.

“In order to trigger the requirements of Article 39.14, a timely request that designates the items requested to be produced must be made to the State from the defendant.  Davy v. State, 525 S.W.3d 745, 750 (Tex. App.– Amarillo 2017, pet. ref’d); Glover v. State, 496 S.W.3d 812, 815 (Tex. App.–Houston [14th Dist.] 2016, pet. ref’d).  Absent such a request the State’s affirmative duty to disclose the evidence extends only to exculpatory information.”  Hinojosa v. State, 554 S.W.3d 795, 797 (Tex. App. –Waco 2018).  “Article 39.14(b) is not ‘self-executing.’ Tamez v. State, 205 S.W.3d 32, 39 (Tex. App.–Tyler 2006, no pet.); . . . . . .  Rather,  Article 39.14(b) ‘allows [a] trial court to [order] the State to list [its] expert witnesses upon a request,’ but, ‘[w]ithout such an order, [any] complaint [is] not . . . . preserved.’  Tamez v. State, 205 S.W.3d 39-40; . . . . . .”  Harris v. State, 287 S.W.3d 785, 792 (Tex. App.–Houston [1st Dist.] 2009). In Harris, the trial court overruled a defense objection to an expert witness that was not listed on the State’s notice, expressly noting that Article 39.14(b) requires a court’s ruling on a defendant’s motion to disclose expert witnesses and that the trial court had not ruled on the appellant’s motion.  In particular, the appellant in Harris complained he had not been given the 20 day notice required by Article 39.14.  The court held that “the simple fact remains that, because he never obtained an order on his motion, appellant was not entitled to the State’s disclosure of expert witnesses not later than the 20th day before the trial began pursuant to article 39.14.”  Harris v. State, supra at 793.  Accordingly, the court of appeals held that the trial court did not err in allowing the expert witness to testify.  Id.  The Harris case was tried several years prior to the passage of the current version of Article 39.14(b), which has since been amended to be more particular.

It is clear from the language of the statute that a party is not entitled to any discovery regarding experts unless the party has first made a request, and that request was made not later than the 30th day before the date the jury selection is scheduled to begin or the evidence is scheduled to begin in a trial without a jury. While the current statute only refers to requests and disclosures, the foregoing cases would indicate that the requesting party should also file a motion and get the trial court to order production of the name and address of potential expert witnesses by a date certain or risk a court finding that the party waived any complaint it may have about a party not providing the required information. See Kirksey v. State, 132 S.W.3d 49 (Tex. App.–Beaumont 2004).  Another reason to file a motion is because a court may order an earlier time at which the other party must make a disclosure to the requesting party.  Art. 39.14(b), C.C.P.

In Branum v. State, 535 S.W.3d 217 (Tex. App.–Ft. Worth 2017), the State added an expert witness to its witness disclosure less than 20 days before the trial began.  The defendant objected to the late designation before the witness testified, but the court overruled the objection and allowed the witness to testify.  In considering whether the trial court abused its discretion in allowing the expert to testify, the appellate court considered whether there was any showing of bad faith on the part of the prosecutor in the late designation and whether the defendant could reasonably have anticipated that the witness would testify although his name was not previously disclosed.  The court of appeals found there was no showing that the State failed to disclose the witness through bad faith, and instead found that the State notified the defense as soon as it found that the previously designated witness could not be present for trial, and identified its replacement witness. The court further found that the defendant could have reasonably anticipated that a representative from the medical examiner’s office would testify to the cause of death of the decedent. The court also noted that the defendant failed to request a continuance based on the late designation therefore rendering any error on the part of the trial court harmless.  Id. at 226-227. The court also found that the aforesaid factors caused them to conclude that the trial court did not abuse its discretion by allowing the late designated expert to testify over the defense’s objection.

In White v. State, 2003 WL 865351 (Tex. App.–Ft. Worth), the appellant contended the trial court abused its discretion in permitting a State’s expert witness to testify because the State did not give timely notice of its intent to call her even though such notice was timely requested by defense counsel. The defendant had filed a request to the State seeking written notice of its intention to use evidence and statements. Unfortunately, the defendant failed to secure an order pursuant to the version of Article 39.14(b) that was in effect at the time. The appellate court found that the trial court did not abuse its discretion in allowing the witness to testify considering that there was not a showing of bad faith on the part of the prosecutor in failing to disclose the witness’s name before trial, and that the defendant could reasonably have anticipated that the witness would testify even though his or her name was not included on the list, citing Nobles v. State, 843 S.W.2d 503, 514-515 (Tex. Crim. App. 1992).

In Strawn v. State, 2003 WL 21235537 (Tex. App.–Ft. Worth), prior to trial, the State filed a motion to compel the designation of any expert that appellant might call at trial. The trial court granted the motion.  During the punishment phase of the trial, appellant sought to introduce expert testimony. The State objected to the proposed testimony because appellant had not disclosed that the expert would testify at trial. The court granted the State’s motion and excluded the testimony of the expert.  Noting that no Texas court had, at that time, published an opinion applying Article 39.14(b) to a defendant’s failure to timely disclose the identity of a testifying expert, and because Article 39.14(b) does not specify what sanctions are required or permitted should a party fail to comply with the trial court’s discovery order, the court looked at cases discussing sanctions permitted to remedy the State’s failure to timely disclose expert witnesses for guidance.  Id. at *2.  The court noted that appellate review usually encompassed two factors: (1) whether the party’s action in failing to timely disclose the expert witness constituted bad faith; and (2) whether the opposing party (the State in this case) could have reasonably anticipated that the undisclosed witness would testify, again citing Nobles v. State, supra.  The appellate court found there was no evidence in the record demonstrating that appellant’s failure to disclose the expert was in bad faith. However, the court found that the State was not on notice that the defendant intended to call the expert to testify, especially in light of the fact that a specific order was in place requiring pretrial disclosure of experts. Id. at *3. The court of appeals also noted that the expert testimony would not have been helpful to the jury in determining the appropriate sentence in that case and so held that under the specific facts of this case the defendant should not be permitted to avoid the requirements of an order entered pursuant to Article 39.14(b) by stating the expert is a rebuttal expert without demonstrating in some manner that the expert testimony was relevant to issues at sentencing. The court held that the trial court did not err in granting the State’s objections to the expert testimony. 

In Medrano v. State, 2008 WL 5050076 (Tex. Crim. App. 2008), a death penalty case, the trial court ordered the State to provide the name, address and curriculum vitae of its intended expert witnesses to defense counsel no later than July 29, 2004. The State filed its notice of possible expert witnesses on July 27, 2005, which included the name and address of witness Alvarez. The State did not provide defense counsel with Alvarez’s curriculum vitae until August 19, 2005. The guilt phase of the trial had begun on August 15, 2005. On Tuesday, August 23, 2005, the trial court held a Rule 702 hearing outside the presence of the jury on the admissibility of the testimony of Alvarez.  Defense counsel objected at the hearing that the State did not timely provide the curriculum vitae and therefore was not in compliance with the trial court’s order to provide the information at least 30 days prior to trial. The prosecutor contended that he had given the defense copies of the curriculum vitae that he had, the week before. The State contended: “It may have been an oversight, your honor, but they were provided a copy of that.” Id. at *15.  Defense counsel argued he had been given the information about four days before, which did not give him the opportunity to investigate the particular individual. The prosecutor argued that the witness had testified in three prior trials in that county, two of those cases involving the same exact murder that was the subject of this trial. The State contended that transcripts of his testimony have been offered and have been available. Defense counsel argued that the court had ordered the State to provide the curriculum vitae to them 30 days prior to trial and the State did not comply. The witness had been on a list that was provided to the defense the previous week.  The court overruled defense counsel’s objection. On appeal, the Court of Criminal Appeals determined the State only partially complied with the trial court’s order in a timely fashion by supplying only the expert’s name. However, the Court of Criminal Appeals noted that the defense did not contend the State acted in bad faith and there was not an indication in the record of bad faith. The Court of Criminal Appeals found that appellant could reasonably have anticipated Alvarez’s testimony, given that his name appeared on the State’s notice of possible witnesses three weeks prior to trial and he had previously testified in the trials of two co-conspirators. The Court of Criminal Appeals held that the trial court did not abuse its discretion in permitting Alvarez to testify. Medrano v. State, supra at *15.

In Osbourn v. State, 59 S.W.3d 809 (Tex. App.–Austin 2001), appellant complained of the trial court allowing an officer to testify under Rule 701, that a substance was marijuana. The witness was not listed as an expert witness by the State even though the State had been ordered to list its expert witnesses. When reviewing the State’s failure to list the witness, the court found that “appellate review usually encompasses two factors: (1) whether the State’s action constituted bad faith, and (2) whether the defendant could have reasonably anticipated that the undisclosed witness would testify.” Id. at 816. The court of appeals found nothing in the record that suggested the State had acted in bad faith or willfully failed to respond to the court’s Article 39.14(b) order, that the State did not consider the witness to be an expert, appellant had not shown the State intended to deceive her and did not claim the State’s action left an inadequate time to prepare.  The court of appeals found that the offense report clearly indicated that the witness’s personal knowledge of the discovered substance was rationally based on her subjective perception and that appellant could have anticipated the witness’ testimony, most of which was included in the offense report. The court of appeals also found: “If appellant was caught off guard, she did not request the trial court to grant a recess, postponement or continuance to remedy the situation . . . . . .  Having found no bad faith and that appellant could have reasonably anticipated [the witness’s] testimony, we conclude that the trial court did not abuse its discretion even if the witness’ testimony as to the marijuana was admissible only under Rule 702.”  Id. at 816.

The lessons from the foregoing cases are: (1) to file the request and a motion; (2) get a ruling on the motion; (3) scrupulously comply with the court’s orders; (4) make sure that the testimony of the expert is relevant to an issue in your case; (5) and do not be surprised when the court does not enforce its orders against the State; but (6) be prepared to make a record that the State’s failure to disclose was done in bad faith and that the defense couldn’t have reasonably anticipated the undisclosed witness would testify.

II. Texas Rule of Evidence 702
Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

A. Predicate for Admission of Expert Testimony

While the admission of expert testimony is generally governed by Texas Rule of Evidence 702, it operates in conjunction with other evidentiary rules. “The Texas Rules of Evidence set out three separate conditions regarding admissibility of expert testimony. First, Rule 104(a) requires that ‘[p]reliminary questions concerning the qualification of a person to be a witness. . . .be determined by the court . . . . . .’” Vela v. State, 209 S.W.3d 128, 130 (Tex. Crim. App. 2006). Second, Rule 702 provides that if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine the fact issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise. Third, Rules 401 and 402 render testimony admissible only if it “tend[s] to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex. R. Evid. 401 and 402. “These rules require a trial judge to make three separate inquiries, which must all be met before admitting expert testimony:

(1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training or education;
(2) the subject matter of the testimony is an appropriate one for expert testimony; and
(3) admitting the expert testimony will actually assist the fact-finder in deciding the case.’

These conditions are commonly referred to as (1) qualification, (2) reliability, and (3) relevance.”  Vela v. State, supra at 131; Harssema v. State, 2020 WL 831614, *12 (Tex. App.-Dallas, pet ref’d); Williams v. State, 606 S.W.3d 48 (Tex. App.-Houston [1st Dist.] 2020); Brantley v. State, 2020 WL 1680050, *5-6, (Tex. App.-Houston [1st Dist.]); Murray v. State, 597 S.W,3d 964, 970-71 (Tex. App.-Austin 2020, pet. ref’d)Tex R. Evid. 702. Expert testimony must aid, but not supplant the jury’s decision. Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997); Macias v. State, 539 S.W.3d 410, 416 (Tex. App.-Houston [1st Dist.] 2017, pet. ref’d 2018). “Expert testimony does not assist the jury if it constitutes ‘a direct opinion on the truthfulness’ of a child complainant’s allegations.” Schutz v. State supra at 59; Macias v. State, supra at 416 (“The Court of Criminal Appeals has further held that an expert who testifies that a class of persons to which the victim belongs, such as child sexual abuse complainants, is truthful is ‘essentially telling the jury that they can believe the victim in the instant case as well,’ and this is not testimony that will assist the trier of fact.”).

B. Qualifications of Expert

In Rodgers v. State, 205 S.W.3d 525, 527-528 (Tex. Crim. App. 2006), the Court of Criminal Appeals stated “that an appellate court should consider three criteria when determining whether a trial court abused its discretion in evaluating a witness’s qualifications as an expert: (1) ‘is the field of expertise complex?’; ‘how conclusive is the expert’s opinion?’; and (3) ‘how central is the area of expertise to the resolution of the loss?’.” The mere fact that a witness possesses knowledge and skill not possessed by people generally does not in and of itself mean that such expertise will assist the trier of fact regarding the issue before the court. A witness will not always qualify as an expert merely by virtue of a general background. Qualification is a two-step inquiry. First, a witness must have a sufficient background in a particular field, and second, a trial judge must then determine whether the background goes to the matter on which the witness is to give an opinion. Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006); Broders v. Heise, 924 S.W.2d 148, 153 (Tex.1996); Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 719 (Tex.1998) (“just as not every physician is qualified to testify as an expert in every medical malpractice case, not every mechanical engineer is qualified to testify as an expert in every products liability case”); Harssema v. State, 2020 WL 831614,*12 (Tex. App.-Dallas, pet ref’d). “An expert’s qualifications must be greater for more complex fields of expertise and for more conclusive and dispositive opinions.” Brantley v. State, 2020 WL 1680050, *6 (Tex. App.-Houston [1st Dist.]); Rodgers v. State, 205 S.W.3d 525, 528 (Tex.  Crim. App. 2006). However, “[n]either a particular college degree nor a particular license is required under Rule 702 for a witness to qualify as a witness.” Cura-Cruz v. Centerpoint Energy Houston Electric, LLC,552 S.W.3d 565, 573 (Tex. App.-Houston [1st Dist.] 2017, reh. en banc overruled).

In Broders, a medical malpractice case, the proponent of testimony from an emergency physician argued that merely because the witness was a medical doctor he was qualified to testify on all medical matters. Broders v. Heise, supra at 152. The Texas Supreme Court rejected that argument finding there was no validity to the notion that every licensed medical doctor should automatically be qualified to testify as an expert on every medical question. Id. The court held that “[i]f a medical degree carried automatic expert qualification in medical matters, a trial judge could no longer fulfill his gatekeeping duty and ‘ensur[e] that those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion.” Id. at 152-153; Vela v. State, supra at 132. Instead, a proponent must establish that the expert has knowledge, skill, experience, training, or education regarding the specific issue before the court that would qualify the expert to give an opinion on the particular subject. Broders v. Heise, supra at 153; Vela v. State, supra at 132. “The focus, then, is on the ‘fit’ between the subject matter at issue and the expert’s familiarity therewith, and not on a comparison of the expert’s title or speciality with that of the defendant or a competing expert.” Broders v. Heise, supra at 153; Vela v. State, supra at 133. Thus, in order for an expert’s qualifications to “fit,” the expert’s background must be tailored to the specific area of expertise in which the expert desires to testify.  Vela v. State, supra at 133; Jordan v. State, 928 S.W.2d 550, 556 (Tex. Crim. App. 1996); Harssema v. State, supra at *12. The background that gives an expert special knowledge which qualifies him to testify and “give an expert opinion may be derived from specialized education, practical experience, a study of technical works, or a varying combination of these things.”  Penry v. State, 903 S.W.2d 715, 762 (Tex. Crim. App. 1995); Wolfe v. State, 509 S.W.3d 325, 337-338 (Tex. Crim. App. 2017) (physicians with training in pediatric medicine and experience as treating physicians are qualified to testify about the nature and cause of a child’s head trauma).

While an expert must be qualified to testify regarding the specific area of expertise involved in the case, there is no “best-expert rule.” An expert does not have to be highly qualified to testify about a given issue. Differences in expertise bear chiefly on the weight to be assigned to the testimony by the trier of fact, not its admissibility. Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009) (internist who had knowledge of cardiac conditions and toxicology was qualified to give his opinion that a drug did not cause a pregnant patient’s cardiomyopathy; internist was not required to be board-certified in cardiology or toxicology to testify). The proper question in assessing a physician’s qualifications to submit an expert report “is not his area of practice, but his familiarity with the issues involved and the claim before the court.” Collini v. Pustejovsky, 280 S.W.3d 456, 464 (Tex. App. – Ft. Worth 2009, no pet.). In ExxonMobil Corp. v. Pagayon, 467 S.W.3d 36, 52-53 (Tex. App. – Houston [14th Dist.] 2015), rev’d on other grounds, 536 S.W.3d 499 (Tex. 2017), the court held that a physician from one specialty may testify about the negligence of a physician from a different specialty as long as the standard of care for the task at issue is the same across specialties. There, a physician who did not specialize in emergency-room medicine was qualified to testify about negligence of an emergency-room physician in reading a chest x-ray. “A physician does not need to be a practitioner in the same specialty as the defendant to qualify as an expert. The proper inquiry in assessing a doctor’s qualifications to submit an expert report is not his area of expertise, but his familiarity with the issues involved in the claim before the court.” Estorque v. Schafer, 302 S.W.3d 19, 25-26 (Tex. App. – Ft. Worth 2009, no pet.). In Burlington N.R. v. Harvey, 717 S.W.2d 371, 377-378 (Tex. App. – Houston [14th Dist.] 1986, writ ref’d n.r.e.), a trial court did not in err when it determined that an expert anesthesiologist had the skills and knowledge necessary to give expert testimony about urology. But see Harssema v. State, 2020 WL 831614, *12-13 (Tex. App.-Dallas, rehearing en banc ref’d, pet. ref’d), where the court of appeals affirmed the trial court’s exclusion of testimony from an anesthesiologist, who was the brother of the Defendant, about the Defendant’s neuro-degenerative disorder although the anesthesiologist’s training included diseases of the brain and brain function, he attended all of the Defendant’s medical appointments with a neurologist and had observed the Defendant on a daily basis as his caretaker, and the expert witness had researched the Defendant’s disorder. The court of appeals noted that the expert had testified on voir dire that he did not have the training and experience to discuss movement disorders in great detail and had not specified what his medical research or specialized entailed. Id., at *13.

C. Reliability and Relevance of Expert Testimony

Prior to the United States Supreme Court’s landmark decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Texas Court of Criminal Appeals decided Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), whereby it announced and implemented a process very similar to that promulgated by the Supreme Court in Daubert. The Kelly case involved the admissibility of DNA “genetic fingerprinting” evidence. In that decision, the Court of Criminal Appeals explicitly rejected the long-standing test of “general” scientific acceptance that had been promulgated in Frye v. United States, 293 F.1013, 1014 (D.C. Cir. 1923). In rejecting the Frye test, the Kelly court stated as follows: “[f]irst, there is no textual basis in [Criminal] Rule 702 for a special admissibility standard for novel scientific evidence.  Second, it should be fairly obvious, scientific evidence may be shown reliable even though not generally accepted in the relevant scientific community.” Kelly v. State, supra at 572. Thus, the Court of Criminal Appeals held that the admissibility of novel scientific evidence was governed by Rules 702 and 403, Tex. R. Evid. However, to prevent the admission of “junk science,” the court adopted several procedural and substantive limitations. Under Kelly, a trial judge must first determine whether scientific evidence is sufficiently reliable and relevant so that it would help the jury in reaching an accurate result; and then must decide whether the probative value of the expert testimony is outweighed by one or more factors identified in Rule 403. Id. at 572.1

The Court of Criminal Appeals went on to address how the proponent of novel scientific evidence proves it to be reliable.

“As a matter of common sense, evidence derived from a scientific theory, to be considered reliable, must satisfy three criteria in any particular case: (a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question. . . . . . .  Under Rule 104(a) and (c) and Rule 702, all three criteria must be proven to the trial court, outside the presence of the jury, before the evidence may be admitted. Factors that could affect a trial court’s determination of reliability include, but are not limited to, the following: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the expert(s) testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential  rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person(s) who applied the technique on the occasion in question.” 

Kelly v. State, supra at 573. The Court of Criminal Appeals went on to hold that due to the difficulty lay persons have in evaluating the reliability of scientific testimony, the burden of persuasion is clear and convincing evidence rather than simply preponderance of the evidence. “In other words, before novel scientific evidence may be admitted under Rule 702, the proponent must persuade the trial court, by clear and convincing evidence, that the evidence is reliable and therefore, relevant.” Id. at 573; Jenkins v. State, 493 S.W.3d 583, 601-02 (Tex. Crim. App. 2016); Patterson v. State, 606 S.W.3d 3 (Tex. App.-Corpus Christi-Edinburg 2020) reh. and reh. en banc denied).

After the Court of Criminal Appeals’ decision in Kelly, the Texas Supreme Court, in E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995), adopted the same type of analysis as is set out in Daubert and Kelly and has declared that the test in Kelly and in Robinson are functionally the same. In re M.P.A., 364 S.W.3d 277, 286 n.10 (Tex. 2012). The Court of Criminal Appeals has since extended the Daubert/Kelly/Robinson reliability analysis and criteria to all scientific evidence, not merely “novel” or experimental scientific theories. Hartman v. State, 946 S.W.2d 60, 62-63 (Tex. Crim. App. 1997); Reynolds v. State, 204 S.W.3d 386, 389-390 (Tex. Crim. App. 2006); Jackson v. State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000).

After the Daubert, Kelly, and Robinson decisions, Texas courts had to consider whether those criteria applied to all expert testimony or was limited merely to scientific evidence. The question was addressed in Nenno v. State, 970 S.W.2d 548 (Tex. Crim. App. 1998). The court held that “[t]he general principles announced in Kelly (and Daubert) apply, but the specific factors outlined in those cases may or may not apply depending upon the context. We do not attempt, here, to develop a rigid distinction between ‘hard’ science and ‘soft’ sciences or non-scientific testimony,” noting that “the distinction between the various types of testimony may often be blurred.” Nenno v. State, supra at 560-561. “When addressing fields of study aside from the hard sciences, such as social sciences or  fields that are based primarily upon experience and training as opposed to the scientific method, Kelly’s requirement of reliability applies but with less rigor than to the hard sciences. To speak of the validity of a ‘theory’ or ‘technique’ in these fields may be roughly accurate but somewhat misleading. The appropriate questions are: (1) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expert’s testimony is within the scope of that field, and (3) whether the expert’s testimony properly relies upon and/or utilizes the principles involved in the field. These questions are merely an appropriately tailored translation of the Kelly test to areas outside of hard science. And, hard science methods of validation, such as accessing the potential rate of error or subjecting a theory to peer review, may often be inappropriate for testing the reliability of fields of expertise outside of the hard sciences.” Nenno v. State, supra at 561; Taylor v. State, 555 S.W.3d 765, 778 (Tex. App.-Amarillo 2018, pet. ref’d 2019); Patterson v. State, 606 S.W.3d 3, 31, (Tex. App.-Corpus Christie-Edinburg 2020) (“Because a pathologist must interpret data and frequently cannot reach essential conclusions with mathematical precision, we hold that the admissibility standard from Nenno may apply to the expert testimony of a pathologist”, quoting Bess v. State, 2013 WL 827479, *26 (Tex. Crim. App.)).

D. Application of the Rules to Particular Cases

  1. Application of Nenno Standard

The Nenno standard is applicable to expert evidence in the “soft sciences” as well as non-scientific expertise.  Morris v. State, 361 S.W.3d 649, 654 (Tex. Crim. App. 2011) (“[e]xpert testimony does not have to be based upon science at all: by its terms, Rule 702, by applying to ‘technical or other specialized knowledge,’ permits even non-scientific testimony.” Police officers’ testimony on “grooming” behavior by people who sexually victimize children was admissible under Nenno as a subject matter within a legitimate field of expertise); Davis v. State, 329 S.W.3d 798, 815 (Tex. Crim. App. 2010) (trial court did not abuse its discretion in admitting expert testimony under Nenno about Satanism; expert “had conferred with other experts on the subject in various cases, and had spent years teaching the subject to college students and law-enforcement personnel,” was considered an expert by others, and had read numerous books and articles on the subject); Gallo v. State, 239 S.W.3d 757, 765-767 (Tex. Crim. App. 2007) (trial court properly analyzed and rejected expert testimony under Nenno standards because witness testified that research and the study of filicide–parents killing their children–was not extensive enough); Weatherred v. State, 975 S.W.2d 323, 323-324 (Tex. Crim. App. 1998) (admissibility of expert testimony on eyewitness identification was determined under Nenno standards for “soft sciences”); Taylor v. State, 555 S.W.3d 765, 778 (Tex. App.-Amarillo 2018, pet. ref’d 2019) (psychology is considered a soft science); Rhomer v. State, 522 S.W.3d 13, 21-22 (Tex. App.–San Antonio 2017) (police officer’s testimony on point of impact in vehicle collision was evaluated using Nenno factors because accident reconstruction was based on officer’s experience and training rather than scientific inquiry); In re J.R., 501 S.W.3d 738, 747-749 (Tex. App.–Waco 2016, pet. denied) (in case terminating parental rights, court applied Nenno factors and determined that psychologist’s testimony on parental psychological assessments were admissible); Washington v. State, 485 S.W.3d 633, 639 (Tex. App.–Houston [1st Dist.] 2016, no pet.) (gang membership is legitimate field of expertise, police officer’s testimony that defendant was current or former gang member was in scope of that field, and testimony relied on self-admission and gang tattoos which are factors frequently relied on by law enforcement to identify gang members); Brewer v. State, 370 S.W.3d 471, 474 (Tex. App.–Amarillo 2012, no pet.) (in aggravated-assault case, expert could testify about “psycho-violence” to assist jury in understanding a victim’s delay in calling police; trial court properly asked expert in voir dire whether her testimony would be “standard in the industry”); Hammal v. State, 352 S.W.3d 835, 841-843 (Tex. App.–Ft. Worth 2011) (police officer’s testimony on handling drug-detection dog was reliable under Nenno), rev’d  on other grounds, 390 S.W.3d 302 (Tex. Crim. App. 2012); State v. Smith, 335 S.W.3d 706, 712 (Tex. App.–Houston [14th Dist.] 2011, pet. ref’d) (proponent of expert testimony on dog-scent lineup did not show that expert’s opinion was reliable; expert’s testimony that his dogs were reliable and accurate in identifying scents, without any evidence to support those claims, was not sufficient to show reliability); Salazar  v. State, 127 S.W.3d 355, 359-360 (Tex. App.–Houston [14th Dist.] 2004, pet. ref’d) (upholding exclusion under Nenno of defense expert’s testimony on “content-based criteria analysis” to evaluate interviewing techniques used with sexually abused children; method was not generally accepted, study of technique was still ongoing, and potential for error was great); Roise v. State, 7 S.W.3d 225, 236-237 (Tex. App.–Austin 1999, pet. ref’d) (testimony of psychologist that photographs would promote sexual impulses and sexual fantasies and that children in photographs would have been developmentally harmed was not relevant or reliable under Nenno standards for “soft sciences”); Chavarria v. State, 307 S.W.3d 386, 391 (Tex. App.–San Antonio 2009, no pet.) (the appropriate standard for assessing the reliability of a psychology expert’s testimony relating to his examination of a child sexual abuse victim is the Nenno soft-science standard, rather than the Kelly hard-science standard).

In In The Interest of K.L.R., 162 S.W.3d 291, 302-304 (Tex. App.–Tyler 2005, no pet.), the trial court erred in allowing a licensed counselor to testify because she did not state that counseling is a legitimate field; did not state that her testimony was within the scope of her field; and did not state that she relied on principles involved in her field. Id. In In re J.B., 93 S.W.3d 609 (Tex. App.–Waco 2002, pet. denied), DFPS offered the testimony of a psychologist who had conducted a parenting assessment of the mother whose rights they sought to terminate. The court of appeals, employing the factors set out in the E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995), found that the trial court abused its discretion by admitting the evidence because the proponent of the evidence had proffered only the psychologist’s testimony to establish the reliability of his methodology, but offered no specific, independent sources to support its reliability. In American West Airlines, Inc. v. Toupe, 935 S.W.2d 908 (Tex. App.–El Paso 1996, no writ), the court ruled that the trial court did not abuse its discretion by excluding testimony from the plaintiff’s treating mental health worker, as the expert’s testimony was subjective, the peer review of the expert’s method was limited, the expert offered no examples of publication of her work, and the potential rate of error for her diagnosis was unexplored. The Court held that these factors outweighed the evidence that the expert’s techniques were accepted as valid by the psychological community and that the techniques were generally used for therapy.

  1. Reliability of the Evidence

Even where it is determined that the expert testimony is relevant to an issue in the case, the proponent of the scientific evidence still must show by clear and convincing evidence it is reliable; that is, the scientific theories underlying the expert opinion are valid and the techniques used to apply the theories are valid. State v. Jordan, 950 S.W.2d 210, 212 (Tex. App.–Ft. Worth 1997, pet. ref’d); Weatherred v. State, supra. Jordan was remanded back to the court of appeals from the Court of Criminal Appeals after it was determined that the testimony as to eyewitness reliability was relevant because it might be helpful to the jury. However, on the issue of reliability, the court of appeals found that the proponent of the evidence failed to present sufficient evidence of the validity of the scientific theories underlying the expert’s opinion or the validity of the techniques used to apply the theories. The Court criticized the proffer of the expert’s testimony as follows:

While Dr. Finn constantly referred to support for the validity of the theories in vague generalities such as “research of others,”  “some research,”  “a number of studies,” and even “one specific test”; he failed to mention by name any other person who purports to be an expert in the field or produce or name the studies he relied on to research his opinions. Dr. Finn also admitted he had never been subjected to peer review or conducted scientific research to test the validity of these theories himself. Finally, there is not evidence of error rate in applying Dr. Finn’s method of reaching his conclusions under the theories he discussed.  Based on the record before us, we cannot say that the trial court abused its discretion in excluding his testimony.

State v. Jordan, 950 S.W.2d at 212. In Weatherred v. State, 515 S.W.3d 540 (Tex. Crim. App. 2000), the Court of Criminal Appeals found the proffer of expert testimony to be lacking, noting specifically that the defendant had offered the expert’s testimony but nothing more. Although the expert had claimed that he and others had carried out extensive research on the reliability of eyewitness identification and he had written much on the subject, he failed to produce or even name any of the studies, researchers, or writings, in question. The Court of Criminal Appeals found that the trial court had not abused its discretion in excluding the expert testimony.

When the alleged crime is a child sexual abuse offense expert witness testimony may be proffered to describe the “syndrome” experienced by victims of the offense. Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App. 1993). From the prosecution’s standpoint, the purpose of offering this evidence is to assist the jury in concluding that the victim, who exhibits the described characteristics of the syndrome, was in fact the victim of a sex offense. Thus, it is the type of evidence that the offering party hopes to have considered as direct evidence of the charged act.  From the defense standpoint, the dangers inherent in syndrome evidence are not insignificant.  First, it appears to be establishing the “truth” of the allegation. Second, even if the syndrome evidence tends to explain that the victim has been the victim of a sex offense, it does not answer the question of identity of the perpetrator. To the extent that syndrome evidence is scientific theory it should be subjected to all the rigors encountered for any type of expert testimony.

Expert testimony on a topic may be admitted even though there is not universal agreement as to the validity of the expert’s opinion. In Wolfe v. State, 509 S.W.3d 325 (Tex. Crim. App. 2017), the State offered expert testimony from three separate witnesses regarding the cause of abusive head trauma to a child complainant. The State’s witnesses’ testimony was based upon a triad of symptoms – subdural hematoma, retinal hemorrhaging and brain swelling – and through a process of differential diagnosis that was an “all – encompassing process – of – elimination consideration of every possible cause” based on the patient’s particular history and presentation. The State contended that the abusive head trauma diagnosis is widely accepted among esteemed national and international medical organizations as a valid diagnosis and has been the subject of extensive research. On the other hand, the defendant’s expert testified that there was significant disagreement within various segments of the medical and biomechanical communities regarding the validity of the diagnosis based on the triad of symptoms. The court held that the lack of universal agreement in the medical profession did not render the State’s evidence “junk science,” due to other indications of reliability from the evidence. The Court of Criminal Appeals held that “even accepting that appellant’s expert and the State’s experts were all qualified, their disagreement about their methods and conclusions would not necessarily render one side’s testimony unreliable.” Wolfe v. State, supra at 341. The court noted that just because two qualified experts may reach directly opposite conclusions using similar, if not the same, databases, or disagree over which data to use or the manner in which the data should be evaluated, does not necessarily mean that one opinion is per se unreliable. “That some scientists in a field disagree with an expert’s theories or conclusions does not render those theories or conclusions unreliable.” Id. That there is disagreement in a scientific community does not render testimony from either side of the disagreement unreliable, and therefore not admissible. Id.

  1. Credibility of the Child Witness

Probably the most significant case relating to the admission of expert testimony in child sexual abuse prosecutions (and, to a lesser degree, relating to the impeachment of credibility in child sexual abuse cases) is Schutz v. State, 957 S.W.2d 52 (Tex. Crim. App. 1997). In Schutz, the Court of Criminal Appeals addressed the admissibility of five categories of evidence that touch on issues of credibility:

(1) substantive evidence of guilt which incidentally impacts on credibility; i.e., symptoms exhibited by child abuse victims and whether or not the complainant exhibited those symptoms; physical evidence and whether such evidence is consistent or inconsistent with the complainant’s allegations – admissible in case-in-chief or on cross- examination;

(2) general testimony relating to impaired witnesses or declarants; i.e., general testimony about the ability of a class of persons recognized by society as being impaired, such as young children or the mentally retarded, to distinguish reality from fantasy and to perceive, remember, and relate the kinds of events that are at issue in the given case – admissible in case-in-chief or on cross-examination if an impaired person is the victim or an expected witness (an impaired person could be a young child);

(3) general testimony that directly attacks credibility, i.e., testimony that the child has  general character for making untruthful or dishonest statements, or fantasizing, or is the kind of child who is susceptible to manipulation, or has difficulty distinguishing between fantasy and reality;  or testimony as to the common symptoms or traits of a child who is fantasizing or being manipulated, coupled with testimony that the victim does exhibit those symptoms or traits;  or testimony that the child suffers some mental or physical handicap, disorder, or impairment, coupled with testimony about the adverse effects that would have on perception and/or memory; or testimony that third parties committed acts designed to manipulate the child into making allegations – admissible in case-in-chief or on cross-examination to attack credibility of witness or declarant  (generally falls under Texas Rule of Evidence 608(a));

(4) general testimony that directly supports credibility; i.e., that the child has a general character for making truthful or honest statements; that the child does not have a general character for fantasizing; that the child is not the type who is susceptible to manipulation; that the child does not have difficulty distinguishing between fantasy and reality – admissible in rebuttal to attacks on credibility, so long as there is a loose fit between the rebuttal and the attacks on credibility;

(5) specific testimony attacking or supporting credibility; i.e., specific instances in which the child has lied, fantasized, been manipulated, told the truth, accurately perceived reality, or resisted manipulation;  child’s allegations relating to the offense were the result of manipulation or fantasy, or were lies, or testimony that they were not; child did not, in fact, accurately perceive or remember events due to physical or mental impairment- admissible only to rebut other specific testimony attacking or supporting credibility and only if there is a tight fit between the rebuttal testimony and the previous testimony supporting or attacking credibility. Id. at 75. (See Appendix to case – chart explaining admissibility of various kinds of testimony). Expert testimony is generally not permitted to rebut lay testimony. Id. at 72, 74.  

An example of the proper admission of expert testimony about the behavioral characteristics of abused children can be found in Perez v. State, 113 S.W.3d 819 (Tex. App.– Austin 2003, pet. ref’d). The appellate court recognized the long-standing Texas rule that expert testimony that a child exhibits behavioral characteristics that have been empirically shown to be common among children who have been abused is relevant and admissible under Rule 702. In a lengthy opinion, the Austin Court of Appeals discussed expert testimony and the “soft” sciences in terms of the Daubert test as interpreted by the Court of Criminal Appeals in Nenno. The Perez court concluded that: (1) the expert’s field is a legitimate one; (2) due to the witness’s “superior knowledge and experience”, the common characteristics and dynamics of children who have suffered sexual abuse were within the scope of his expertise; and (3) the witness’s unimpeached testimony supports a conclusion that his opinions and writings on sexual abuse of children were accepted by the relevant scientific community of psychologists.

On the other hand, it is error for a trial court to allow an expert to testify, over objection, that the testimony of the child is “consistent with child abuse” or there was grooming in the case on trial. The expert may testify to what constitutes grooming or answer a hypothetical as to whether a certain type of conduct is grooming but may not opine that the child in question was groomed. Kelly v. State, 321 S.W.3d 583 (Tex. App.–Houston [14th Dist.] 2010, no pet.)

Expert testimony about the truth or falsity of the allegations or the truthfulness of the complainant is prohibited. Yount v. State, 872 S.W.2d 706, 708 (Tex. Crim. App. 1993); Lane v. State, 257 S.W.3d 22, 27 (Tex. App.–Houston [14th Dist.] 2008, pet. ref’d); Kelly v. State, supra at 602, (expert should not have been allowed to imply children were telling the truth by claiming she would not have agreed to be a witness in the case if she saw evidence of deception).

In Wilson v. State, 90 S.W.3d 391 (Tex. App.–Dallas 2002, no pet.), over objection, an employee of the children’s advocacy center was allowed to provide expert testimony that 2%  to 8% of children who make outcries of sexual abuse make false reports and the majority of those arise in custody cases.  Id. at 393.  The court of appeals held that it was error to allow this testimony because it “did not aid, but supplanted, the jury in its decision on whether the child complainant’s testimony was credible.”  Id. at 393. However, upon considering all the evidence in the case the error was found to be harmless. For the next ten years, at least in Dallas County, the prosecution continued to offer, and the courts continued to admit, such evidence.

Then, in Wiseman v. State, 394 S.W.3d 582 (Tex. App.–Dallas 2012), the successor to the expert witness in Wilson was allowed to testify, over objection, that only 2% of children who make allegations of sexual abuse are making false accusation, and that 77% of those are involved in custody or divorce-related issues. Citing Yount and its decision in Wilson, the court of appeals again found the trial court erred by admitting the testimony as to the percentage of children who lie about being sexually abused. Wiseman v. State, supra at 587. The court also rejected the State’s contention that the defendant opened the door to such testimony by eliciting testimony that some teenagers lie. The court reversed, finding that the expert testimony violated the defendant’s substantial rights because the case turned solely on the credibility of the witnesses and the testimony of the witness went directly to that issue. Id. at 588. The same result was reached regarding the same evidence in another case, Quan An Tran v. State, 2012 WL 1199102 (Tex. App.–Dallas). In Wiseman and Tran, the court of appeals found the testimony to be harmful, leading to the reversals.  The Dallas District Attorneys office quit offering this evidence after the decisions in Wiseman and Tran.

An expert’s testimony must be accurate. In In the Matter of M.P.A., 364 S.W.3d 277 (Tex. 2012), at a juvenile disposition hearing an expert testified that an Abel Assessment of the respondent juvenile showed he was a pedophile who had a significant interest children of both sexes. The expert testified that Abel testing was 85% accurate and had been validated by studies at Brigham Young University. The respondent was sentenced to 20 years.  On a writ application it was proved that this testimony was false. It was shown that according to Abel and his colleagues that the testing was only 65% accurate for classifying people with a significant interest in children under 14 years of age; and that the BYU studies failed to establish the Abel Assessment was reliable as applied to adults and it was unreliable as applied to adolescents. Id. at 286-287. The Texas Supreme Court found that if the trial court had heard accurate testimony the Abel Assessment would not have been admitted into evidence and that the false testimony contributed to the respondent’s sentence entitling him to a new disposition hearing.  Id. at 292.

In Kelly v. State, 321 S.W.3d 583 (Tex. App.–Houston [14th Dist.] 2010), the defendant was accused of engaging in organized criminal activity based on a predicate offense of aggravated sexual assault of a child. The court ruled that although the State’s expert witness could answer a hypothetical question as to whether showing the child complainant masturbation techniques with dolls was a type of “grooming,” the prosecutor could not testify and argue in his hypothetical by asking the expert whether she would expect to see grooming in a hypothetical case where children were forced to engage in sexual intercourse with another, and where multiple children were forced to strip down, dance naked, and act out in sexual plays and fantasies. The appellate court also held that the State was improperly allowed to ask its expert witness whether the child’s testimony was consistent with child abuse, and whether “there was grooming in this case,” because both questions ask the expert to give her opinion as to whether or not the testimony of the children was true.

Even when the expert’s testimony can only be viewed as an attempt to directly bolster the complainant’s credibility and as a direct comment on the complainant’s truthfulness, the abuse of discretion in admitting that evidence may not be reversible error. In Salinas v. State, 166 S.W.3d 368 (Tex. App.–Ft. Worth, 2005, pet. ref’d), the child complainant was taken to the hospital for a sexual assault examination four and a half months after her outcry statement to her mother. The examining doctor found no physical evidence of sexual assault. At trial the doctor was allowed to testify over objection that she diagnosed sexual abuse by digital penetration of the anus based solely upon the history provided by the child, and “she had an exam which was consistent with that history [no physical evidence of abuse].” Admitting that testimony was error but after reviewing the entire record, the appellate court concluded it did not have a substantial and injurious effect or influence on the jury’s verdict, that is, it was harmless.

  1. Admissibility of Testimony on Other Issues

In In re E.C.L., 278 S.W.3d 510 (Tex. App.–Houston [14th Dist.] 2009) it was reversible error to exclude expert testimony on “battered child syndrome” because lay people who have not experienced abuse for most of their lives do not have a frame of reference to understand why a child might have thought deadly force was immediately necessary to protect himself and/or his brother.

In Reyes v. State, 274 S.W.3d 724 (Tex. App.–San Antonio 2008), an examining physician’s testimony was proper where she did not testify that the child was abused or was telling the truth, but did testify that, although not definitive, the child’s physical condition was consistent with the abuse that she described. Additionally, it was proper for the doctor to testify regarding the fact that child abuse victims also delay making an outcry and initially deny the abuse as the behavioral characteristics common among abused children is an appropriate area for the physician’s testimony.

In Bryant v. State, 340 S.W.3d 1 (Tex. App.–Houston [1st Dist.] 2010), the court found that opinion testimony of a police officer that he came to the conclusion a sexual assault had occurred and that was why he prepared an affidavit to obtain an arrest warrant was admissible in a child sexual assault prosecution. The officer testified about what he relied on to determine whether he should swear out an affidavit to obtain a warrant for the defendant’s arrest not whether the child witness was telling the truth.

In Zuniga v. State, 811 S.W.2d 177 (Tex. App.–San Antonio 1991), testimony of a physician, based on his own exam of a nine year old complainant, that history and physical examination was consistent with sexual assault, was permissible expert testimony as aiding the jury from a medical standpoint on the nature and extent of sexual assault, and did not impermissibly invade the province of the jury even though whether sexual assault had occurred was one of the ultimate issues at trial.

“Psychologists and counselors have been found to provide reliable, relevant testimony in child abuse cases, specifically regarding PTSD.”  Moreno v. State, 2020 WL 908024, *5 (Tex. App.–San Antonio), citing Johnson v. State, 432 S.W.3d 552, 557 (Tex. App.–Texarkana 2014, pet. ref’d); Zinger v. State, 899 S.W.2d 423, 432 (Tex. App.–Austin 1995, rev’d on other grounds, 932 SW2d 511 (Tex. Crim. App. 1996). However, in Lane v. State, 257 S.W.3d 22 (Tex. App.–Houston [14th Dist.] 2008, pet. ref’d), the court of appeals disapproved testimony by a social worker that the victim suffered from PTSD due to sexual abuse. Courts have found that mental health professionals are in a unique position to explain victim behavior as it pertains to a disorder, such as PTSD, that is not commonly understood by lay persons.  Moreno v. State, supra; Zinger v. State, 899 S.W.2d at 432, citing Duckett v. State, 797 S.W.2d 906, 917 (Tex. Crim. App. 1990), disapproved on other grounds by Cohn v. State, 849 S.W.2d 817, 818 (Tex. Crim. App. 1993). 

In Moreno v. State, supra, the State offered testimony from a licensed professional counselor with 14 years of experience with abused children, to testify on behaviors of sexually abused children, symptoms of PTSD, and her experience working with the complainant in that case.  The witness was, at the time of her testimony, the clinical director of a children’s advocacy center.  She testified that to be qualified to do her work she was required to have a master’s degree in psychology or counseling-related area plus 3,000 hours of supervised training.  She also testified that it was not her practice to diagnose clients with PTSD but that she could describe symptoms of the disorder in them. The trial court allowed her to testify as an expert if she did not comment on the complainant’s truthfulness. On appeal, the appellant challenged the witness’s ability to diagnose PTSD on the grounds that she was not qualified and that her testimony on PTSD would inappropriately bolster the complaint’s testimony. The trial court found the witness’ proffered testimony to be analogous to expert testimony on behaviors or symptoms consistent with child abuse.  The court of appeals concluded “that it was up to the jury to decide if the symptoms that [the witness] described really did help them understand the victim’s testimony and demeanor and whether these apparent symptoms actually reflected prior trauma caused by Moreno.” Moreno v. State, supra at *6. The court of appeals found that the trial court’s decision to admit the expert testimony on PTSD was within the zone of reasonable disagreement.

In Brantley v. State, 2020 WL 1680050 (Tex. App.–Houston [1st Dist.]), a vehicular crimes police officer was found to be qualified to testify as an expert as to the basic functioning of a crash data recorder (CDR) and the data retrieved from it.  The court of appeals found that the witness’s field of expertise – downloading black box data – was not particularly complex. The court found that the vehicular crimes officer’s field of expertise in accident reconstruction was legitimate; that he testified within the scope of his expertise in accident reconstruction; and he properly relied on and utilized principles involved in the field of accident reconstruction. The court further found that the officer’s lack of knowledge of the manufacturing process of CDR and its accelerometer, or the black box’s rate of error, did not affect the reliability of his expert testimony.

In William v. State, 606 S.W.3d 48 (Tex. App.–Houston [1st Dist.] 2020), the State called an analyst with the Texas Department of Public Safety’s Telephone Records and Analysis Center (TRAC) as an expert to testify on the approximate location of a cell phone, based on historical phone records and a list of the coordinates of Houston’s cell phone towers, provided by carriers to law enforcement. The witness testified that she was trained in cell phone mapping, employed the techniques daily, and had three years of experience doing so. The court of appeals found that the plotting software’s error rate did not impact the reliability of her opinions; the cell phone records showed the exact tower to  which the phone connected; and the witness testified that she checked the records for accuracy. The court of appeals concluded that the trial court did not abuse its discretion when it determined that the witness’s opinion on the general location of the defendant’s and the victim’s cell phones was reliable.

Some intermediate courts are giving great deference to trial court decisions regarding expert witnesses. Malone v. State, 163 S.W.3d 785 (Tex. App.–Texarkana, 2005, pet. ref’d) (social worker with undergraduate degree permitted to testify to incest offender profiles based on articles she reviewed on the internet); Longoria v. State, 148 S.W.3d 657 (Tex. App. – Houston [14th Dist] 2004, pet. ref’d) (victim–impact testimony from expert witnesses about the physical and psychological impact of child sexual abuse was admissible at guilt-innocence because of its tendency to make more or less probable whether the defendant committed sexual assault on his two stepdaughters).

Other courts of appeal seem to be holding trial courts to a higher standard. In Kelly v. State, supra at 601, the trial court erred by allowing a DFPS worker, with an associate’s degree and without medical training, to testify to the sexual development and response of children as a predicate to her testimony about grooming. The lack of consistency in the appellate courts sometimes creates a guessing game for defense lawyers, prosecutors, and judges as to who may be qualified as an expert and what “scientific” evidence  may be found to be relevant and reliable.

Report from the Reapportionment/Redistricting Committee

Friends, as you may know, TCDLA has a Reapportionment/Redistricting Committee chaired by Carmen Roe and myself. President Kerri Donica created the Committee and her successor Grant M. Scheiner kept it in business. We have been working and want to report our progress to the full membership.

Our mission was to determine if, after 50 years, TCDLA districts could benefit from rearranging. Of course, the first thing we did was to consult the bylaws. As it turns out, there is no mention of districts. In fact, they aren’t even called “districts”; they are “membership areas” (MA). See Article III, Sec. 11.  So, while we tend to refer to “districts,” formally there is no such thing.

As we thought through how to proceed, we came to the realization that TCDLA was NOT set up like a House of Representatives or like a Senate. Instead, it originated as a hybrid of both and for good reason. Texas is so vast with large areas sparsely populated, and at the same time, some population centers hold large concentrations of lawyers. Thus, a true House or a true Senate just would not make sense.  We concluded that the House of Representatives model worked well east of and in the neighborhood of I-35, while a Senate model worked well in the more rural and spread out parts of the state.  For that reason, trying to equal the number of TCDLA members in each MA was deemed impractical. 

From the beginning, we had the feeling that some members thought their county was assigned to the wrong MA in 1971 and that they would prefer to be moved. Even if “wrong” is not the correct characterization, have circumstances changed with the passage of almost 50 years was the question we asked ourselves.  The Abilene area and the Valley were our initial focus. We decided to test the Abilene area first. We did an informal survey and followed it up with a formal one. With Melissa’s help, we asked the TCDLA members in Taylor, Fisher, and Nolan counties if they would prefer to be in MA 2 – San Angelo/Midland/Odessa rather than MA 4 – Denton (where they are currently assigned). The answer was 94 percent yes to move to MA 2.  An important aside is that those members have nothing against the fine folks in the Denton area. They just never appear in court there, are far away, and do not know the lawyers there well,  while they are constantly in court in San Angelo/Midland/Odessa. The respondents also felt more attached to West Texas.

So, what is the goal, and what is best to do? We recommended moving those three counties.  Our hope was that members will feel they know their local representatives better, that they will be happier, and that membership in, and satisfaction with, TCDLA will increase as a result. We were of the opinion that a bylaws change is not necessary. We consulted Adam Kobs, Bylaws Chair, who agreed. No counties are listed by name in the bylaws as being in a particular MA. Perhaps a Charter Member can remember how the 254 counties were assigned to the MA’s. Most likely, a few of them sat at a table, pulled out a map and a magic marker, and just drew lines. This is step one, for we have not yet tackled the Valley or other areas of the state. We ask you for suggestions if you see a possible change for the better in your MA.

Based on the above, the Reapportionment/Redistricting Committee made a motion to the Board as follows: that Taylor, Fisher, and Nolan counties be reassigned to Membership Area 2 known in the bylaws as Permian Basin. The board approved the move on 26 Sept. 2020.   This rearrangement should have no adverse impact on MA4/Denton. MA 4 has hundreds more TCDLA members than MA 2, and only about 70 members are “on the move.”

We on the Committee appreciate the help we received from TCDLA staff and the confidence the board placed in us. The Valley is our likely next focus, so more to follow!  As we mentioned earlier, if you feel other similar changes can improve the way we deliver services to you, please contact any member of our committee. In addition to Carmen and myself, the members are: David Hardaway, Donald L. Wilson, and Adam Kobs.

Blue Matters Matter

By now, we all should know that the Texas Code of Criminal Procedure Article 39.14 requires the prosecutor to disclose to the defense the criminal histories of its witnesses. This disclosure often matters to defense counsel if the alleged victim is a “no-good SOB” who might have had coming what our client allegedly gave. However, what about those police officers that the prosecutor will parade into the courtroom wearing “just-so” pressed uniforms, pistols, and shiny badges? These officers would not have criminal histories, would they? Are there no skeletons in their closets? If they did, then they would not have those “Batman” utility belts, precise creased polyester pants, fresh “high-and-tight” haircuts, nor take on “Napoleonic” temperaments, now would they?

Well, that police officer might not have a criminal history (because he would never think of driving drunk), but if he has been a cop for any appreciable amount of time, you could bet that house your ex-wife lives in that he has been “in the barrel” with internal affairs or has received the Garrity Warning 1 2at least once in his career. Many criminal defense attorneys who represent police officers find that cops get into trouble about as often as other clients. They just get into a different kind of trouble. At trial, their trouble is potentially as useful to the defendant as impeachment evidence as are the prior convictions of the prosecutor’s testifying “snitch.”

A Brief History of Police Union Lobbying

In the mid-70s, a group of police officers bolted from the Texas Municipal Police Association (“TMPA”) to form the Combined Law Enforcement Associations of Texas (whose acronym is “CLEAT”).  CLEAT members believed that the TMPA was not aggressive enough in protecting cops from “management,” i.e., government and civilian oversight. CLEAT membership was concerned with matters regarding the discipline of law enforcement officers.

CLEAT soon got busy lobbying, and in 1987, Chapter 143 of the Texas Local Government Code as it exists became the law in Texas. Chapter 143 is essentially “legislated unionization” for municipal police and fire departments in municipalities where the electorate has voted to enact it. Those municipalities that enact it are called 143 Civil Service Municipalities (“143 Municipalities”) in the context of police and fire departments. Dallas, Fort Worth, Houston, San Antonio, Austin, Beaumont, Port Arthur, Orange, El Paso, Lubbock, Amarillo, and Tyler are 143 Municipalities. Chapter 143 can apply to any municipality with a population of 10,000 or more, which votes to enact it for their departments.

CLEAT still lobbies and negotiates generous collective bargaining agreements for its membership. CLEAT takes pride in being much more radical and aggressive than TMPA.3

Discipline That Is Not Discipline4

What, you may ask, does Chapter 143 do, exactly? It imposes rules and regulations upon the operation, maintenance, and management of a municipality’s police and fire departments, including classification and appointment (Subchapter B), compensation (Subchapter C), disciplinary actions (Subchapter D), leaves (Subchapter E), and several other administrative “odds and ends.”

Included in “odds and ends,” found in Subchapter F, is §143.089, which governs the maintenance of personnel files. Section 143.089(a) states that officer personnel files are subject to public disclosure. It describes what a personnel file must contain, including any record of the past discipline of an officer. Section 143.089(g) provides for a separate personnel file that a department chief may maintain, which, according to the statute, is not subject to disclosure to the public. This file is euphemistically called the “G-file.” The contents of a G-file must include, inter alia, any records of verbal and written reprimands, i.e., discipline for policy violations.

So, let us consider Subchapter D and see how it defines discipline. Section 143.051 begins by defining discipline within the context of “[r]emoval or [s]uspension.” Section 143.052 describes the manner and method by which a department head (chief of police) may suspend without pay (including an indefinite suspension, which is the same as a termination) an officer for disciplinary reasons. Section 143.054 describes the manner and method by which a department head may demote, for disciplinary purposes, an officer. Note a similarity here? Hint: each involves a financial penalty to the officer in question.

Underlying the legal bases for a suspension without pay or a demotion assumes that the officer in question has been found culpable for transgressing one of the 12 enumerated “no-noes’” in §143.051. Section 143.051 includes such things as convictions for felonies and misdemeanors, incompetency, neglect of duty, discourtesy to the public (seriously!), acts showing a lack of good moral character (we’re not making that one up), off-duty intoxication, neglecting to pay one’s debts, being AWOL, shirking duty and cowardice. The “term of art” in most departments is a finding of “Sustained” for an alleged violation found to be “True.” It is possible, legally, theoretically, and practically speaking, for the charge against an officer of §143.051 to be Sustained without that finding leading to a suspension without pay or a demotion. Because of the progressive (not liberal but incremental) disciplinary policies that most police departments use, it is likely that an officer’s first time “in the barrel” for a Sustained violation will result in some disciplinary action that falls short of a suspension without pay or a demotion. By operation of §143.089, the paper trail that leads from an allegation of an officer’s violation of some part of §143.051, and to a finding of “Sustained” that does not involve a suspension without pay or a demotion will be nowhere in the officer’s personnel file maintained under §143.089(a), which is subject to public disclosure. Instead, these little gems end up in the officer’s G-file, and out of sight from the meddlesome public eye.

Put succinctly, how discipline is treated by Subchapter D is that it excludes disciplinary actions that do not involve an adverse financial impact on a police officer. An officer can be found to have violated a policy, rule, or statute that does not qualify as a discipline under Subchapter D of Chapter 143 because the action does not result in the officer losing pay, an unpaid suspension, or a demotion. Furthermore, records for these incidents are kept from the public by operation of the language of a statute that the legislature enacted because of the lobbying efforts of CLEAT. The upshot is that the form of discipline, whether written or oral reprimand, for a Sustained rule/policy/statutory violation does not count unless a portion of the officer’s pay leaves the public fisc by way of forfeiture of pay or demotion.

Case Law on Our Side

There should be no question but that these records ought to be available to the defense in a Motion for Discovery or by the invocation of the Michael Morton Act. However, prosecutors and attorneys representing Civil Service municipalities routinely get up in arms when a defense attorney files a Motion for Discovery or a Morton Demand seeking these records. Cops and their chiefs are very jealous of the contents of their G-files, and to some degree are so are municipal civil service directors. Thus, even a request for an in-camera inspection of the G-file is met with the rending of clothes and gnashing of teeth along with the filing of a fierce Motion to Quash.

But guess what? Besides Brady v. Maryland, 373 U.S. 83 (1963) and United States v. Bagley, 473 U.S. 667 (1985), there actually exists state case law that supports at least an in-camera review of G-files in criminal cases. Back in the ’70s and ’80s, when Scooby Doo was still a common staple of Saturday morning TV programming, Tex. Code Crim. Proc. Art. 42.12 contained §27, which protected from disclosure any and all records maintained by the Texas Department of Corrections on inmates subject to “parole, release to mandatory supervision, or executive clemency.” In Texas Department of Corrections v. Dalehite, 623 S.W.2d 420 (Tex.Crim.App. 1981), the Texas Court of Criminal Appeals addressed the issue of whether those records covered by §27 were discoverable by the defense in a criminal proceeding. It turns out that they were. Citing Texas Board of Pardons and Paroles v. Miller, 590 S.W.2d 142 (Tex.Crim.App. 1979), the Court reasoned that, while some confidentiality was necessary in order for the Board of Pardons and Paroles to function effectively, the statutory privilege of Tex. Code Crim. Proc. Art. 42.12 §27 had to give way where it stood in the way of the exercise of a constitutional right. 623 S.W.2d at 432. The Court went on to cite United States v. Nixon, 418 U.S. 683 (1974), wherein the United States Supreme Court held that: “The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.” Thus, did the Supreme Court, as put by the Texas Court of Criminal Appeals, conclude: “that the President’s broad interest in confidentiality would not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases, especially since the production of the materials was for in camera [sic] inspection with all the protection that a district court would be obliged to provide. The assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” 623 S.W.2d at 423. Who knew that “Tricky Dick” would be useful to the Texas criminal defense bar in the Year of our Lord 2020?

Defense Lawyers Need to Seek the G-File

The writers suggest that where police officers have been listed as witnesses in a criminal trial, which is practically in every trial, that a Morton Demand, a Motion for Discovery of State Witnesses Personnel Files and/or a Subpoena Duces Tecum seeking the G-File should be considered by counsel. The G-File will probably contain information beneficial to defense counsel in trial preparation and cross-examination. The attitude of virtually all Judges is probably that the G-File is exempt from disclosure. However, if the criminal defense bar moves forward in this area to educate the Judges of the relevance of this material, that they should assume their duties to provide a fair trial under the law and the Constitution, then we may see the dam break and at least have the files more often reviewed in camera. If so, then we could expect that the salutary effect would be that officers would be more careful in their actions, the public might become more trusting of the system when bad officers are exposed. The benefit gained by exposing bad officers who shuttle around to various police departments might be realized.

Legislature Needs to Act

The national social conversation and political movements are likely to result in some remedial legislation. Considering the recent events in our country that highlight the need for police reform and more oversight of how law enforcement conducts and polices itself, it is time that the veil of secrecy that shrouds the contents of G-files to be reviewed in Austin by the legislature. Amending §143.089 mandating that any record in a G-file that could impeach a testifying police officer in a criminal trial be turned over to defense counsel is a step in the right direction.

So, it seems, that blue matters really do matter!

Motion and Brief for Discovery of State’s Witnesses’ Personnel Files

Veterans and Violence Part 2: Forensic Psychological and Neuropsychological Evaluations of Veterans with PTSD and TBI

Legal applications and implications

Part I of this article was run in the October 2020 issue. Part II of this article focuses on the application of forensic psychological and neuropsychological evaluation to veterans with PTSD and TBI. 

Forensic neuropsychology is defined as the application of neuropsychological assessment and the examination of brain behavior relationships to criminal or civil litigants. Forensic neuropsychologist experts provide reliable valid assessment and data about the relationship between neurocognitive dysfunction and neuropathology and the behavioral and/or cognitive issues related to legal questions in court proceedings.  

Neuropsychological assessment is very sensitive to brain function and dysfunction and can be helpful in determining forensic/legal issues. Similarly, the forensic psychologist examines psychological and psychiatric functioning of an individual and applies this clinical assessment to forensic and legal issues. The forensic neuropsychologist who also practices as a forensic psychologist will often integrate a nexus between psychological and neuropsychological brain function/dysfunction, psychiatric diagnosis, and specific symptoms to the violent act.

In addition to the forensic neuropsychological assessment of veterans to examine brain function and dysfunction, the forensic neuropsychologist will often assist in integrating their brain behavior data with neuroimaging. Structural and function neuroimaging is useful in further assessing the specific locations of the brain that may be low in volume and density. In these cases, the PTSD and TBI conditions and their effects on an individual’s neuropathology are often cited in the limbic system and amygdala and hippocampus as well as the prefrontal cortex. Ideally, the neuropsychological assessment will be correlated with the neuroimaging findings (executive functioning deficits in the prefrontal cortex and attention, memory, and behavioral dysregulation, attention, and paranoia in the limbic system). 

The forensic neuropsychological assessment in veterans in criminal cases may include the following legal referral questions:

  1. Competency to stand trial
  2. Not guilty by reason of insanity
  3. Diminished capacity
  4. Voluntary intoxication and diminished capacity
  5. Self-defense
  6. Mitigation for plea negotiation and/or sentencing
  7. Issues relating to future dangerousness, lack thereof, and violence and sexual violence risk assessment and risk management

I will address some of these forensic legal issues concerning veterans, PTSD, and TBI below. 

The forensic neuropsychological assessment of veterans may ultimately focus on the prevalence and cumulative impact of co-occurring neuropsychological and psychiatric conditions including PTSD, TBI, depression, and substance intoxication/addiction on the veteran’s mental state at the time of the violent act(s). The forensic neuropsychologist may also offer valuable insight into the complex emotional, behavioral, and neuropsychological effects and function of brain injury and PTSD in relation to a veteran’s propensity for violence.

Issues related to behavioral dyscontrol, impulsivity, dissociation, paranoia, suicidality, and intoxication are germane to both TBI, PTSD, and other comorbid conditions that are prevalent with intense combat related military service.

Three major areas of forensic assessment with TBI and PTSD in military related criminal justice cases include diminished capacity, self-defense, insanity, and mitigation. Essentially, all these forensic referral questions address the defendant’s mental state at the time of the offense. 

Diminished Capacity

In military cases, the effects of TBI and or PTSD on one’s emotional, behavioral, and cognitive functioning can be applied to the mens rea elements of a violent crime.

Diminished capacity in criminal cases is typically recognized as whether the defendant, due to mental disease and/or defect, had the capacity to form the requisite mental state constituting a crime. This proposition is supported by opinions issued from the Courts of Appeal.

In Jackson v. State,1 diminished capacity was presented as a failure-of-proof claim. The prosecution failed to prove that the defendant had the required state of mind at the time of the offense. To counter the prosecution’s evidence of the defendant’s culpable state of mind, the defense may present evidence that the defendant has mental or physical impairments or abnormalities and that some of his abilities are lessened in comparison to someone without such problems.

Evidence of mental disease or defect that directly rebuts a particular mens rea necessary for the charged offense can be presented by either lay or expert witnesses. In Lizcano v. State,2 the Court recognized diminished capacity with mental health testimony only if it negates any mens rea element. The defense must make a showing of a connection between the defendant’s psychological and neuropsychological functioning and how impairments could negate a mens rea element. 

In Lizcano, the defendant was charged with the offense of capital murder in the shooting death of a police officer. During trial, the trial court excluded evidence related to the defendant’s mental health. On appeal, the defendant argued that the excluded mental health testimony was relevant as to whether, because of mental disease or delusion, the defendant believed he was not shooting at a uniformed police officer. He  further argued that evidence of how paranoid delusions may distort a person’s auditory and visual perceptions is admissible as it relates to the defendant’s intent to shoot a police officer. The Court found there was no suggestion in the trial record that the excluded testimony had anything to do with delusions. Instead, the court concluded the excluded testimony suggested general limitations in cognitive ability and intoxication at the time of the offense as well as general deficits in adaptive functioning. The excluded testimony had relevance only as to whether the defendant’s mental functioning was below normal to some degree. There was no evidence showing a connection between the defendant’s generally low level of mental functioning and his knowledge during the commission of the offense that the victim was a police officer. 

In State v. Ruffin,3 Ruffin was charged with aggravated assault after shooting at police officers. At the time of the shooting, he believed the officers were trespassers and Muslims rather than police officers. At trial, the psychologist for the defense testified that Ruffin suffered from delusions and opined that he was suffering from psychotic symptoms such as auditory and visual hallucinations at the time of the offense. The trial court found the testimony of the psychologist was relevant and admissible to rebut the mens rea element of the offense. In essence, the Court emphasized that any expert testimony regarding diminished capacity and mens rea issues during the guilt and innocence phase of the trial must not only focus on mental illness, psychiatric symptoms, level of functioning, and possible brain damage and dysfunction, but there must also be a showing of how those symptoms and impairments specifically negate the defendant’s mens rea. 

Similarly, in Nikmanesh v. State,4 the Court of Appeals found the trial court did not err in excluding psychiatric evidence where expert testimony concerning the defendant’s behavior, depressive disorder, and obsessive-compulsive disorder could only offer an explanation or motive for his actions but could not negate intent for an offense of murder. 

Ultimately, diminished capacity mental health testimony not directly rebutting intent will not be admitted in Texas courts.5 An expert witness in a case where PTSD and TBI are present must not only present testimony on symptoms of psychiatric disorder and neurocognitive impairments of brain disorder but apply this information to the defendant’s incapability of forming intent to commit the act or incapability of acting with knowledge of their conduct and its consequences.6 Presenting expert testimony only on symptoms, conditions, diagnoses, and impairments without applying this data to the defendant’s mental state at the time of the offense(s), and specifically to their intent, will not be permitted.

Information as to mitigating mental state evidence of PTSD and/or TBI in military and civilian cases can assist the trier of fact in appreciating the defendant’s mental state and history. In many violent murder and assault cases defendants have a profound history of abuse, neglect, early trauma, and complex trauma suffered through childhood, histories of psychiatric disorders, and dual-diagnostic disorders with chemical dependency and addiction. The military servicemen and women who commit violent crimes often have these same traumatic and dysfunctional histories, but they also may have military trauma histories related to PTSD and brain injury. 

Additionally, in cases with genuine military-based trauma often suffered and acquired through combat, the trier of fact may recognize mitigating factors regarding service to country. Reporting this trauma through presentation of forensic expert reports is also bolstered by providing the trier of fact with VA and military records which may provide even more legitimacy of the trauma. 

Case Studies

In a case of diminished capacity, this author examined a 22-year-old non-military defendant charged with two counts of aggravated assault of a public servant with a deadly weapon and evading arrest/detention in a motor vehicle. The defendant’s father had a traumatic brain injury causing him severe anger problems, and he physically abused the defendant. The defendant also had prior acts of violence towards family members. The defendant suffered from a childhood history of ADHD and early behavioral problems, and there were early concerns about autism spectrum disorder. Once he reached adulthood, he was more floridly psychotic with a schizophrenia diagnosis and experienced auditory hallucinations and paranoid delusions. 

The evening of the offense, the defendant was paranoid and psychotic and was audio and video recording family members due to his paranoia. Arguing ensued between the defendant and his father and grandfather, and the defendant yelled out that he had to leave because of the demons. He ran out of the house, got into a car, and started driving in an acute psychotic state. The family had called 911, and the police responded immediately. The defendant was driving erratically, and the officer perceived the defendant driving toward him and felt threatened, attempted to stop the car by moving to the other lane, and utlimately steered his vehicle toward the defendant’s car, ramming it to its halt. The officer got out of the car and grabbed the defendant’s passenger door handle when the defendant failed to follow the officer’s commands. The officer fired his weapon twice as the defendant’s vehicle approached him.

During a 7027 hearing at the guilt/innocence phase of the trial, the author’s testimony addressed the defendant’s mental state at the time of the alleged offense. The defendant was significantly compromised by his mental conditions related to schizoaffective disorder bipolar type, active paranoid delusions, auditory hallucinations, PTSD, and ADHD. Also present was the hyperarousal and fight/flight phenomenon. These disorders would impair an individual’s cognitive functioning, ultimate problem solving, and decision-making skills in a time of heightened stress, extreme paranoia, and perceived threat. The testimony was admitted by the court to inform the jury as to how these psychiatric symptoms collectively negated the defendant’s mental state to commit aggravated assault against a police officer. 

In another Texas case, this author examined a 61-year-old Vietnam veteran charged with online solicitation of a minor under age 14. He served one tour in Vietnam where he witnessed and experienced significant war-related trauma, and as a result, there was evidence of PTSD and severe alcoholism, depression, and anxiety. The was also evidence of childhood neurodevelopmental disorder. He had treatment and disability through the VA for mental health conditions. He suffered one traumatic brain injury after the war from an assault and another when he was hit by a car. The trial court judge held a 702 hearing and allowed mental health testimony regarding the defendant’s mental state and intent as to following through with solicitation type text messages to a minor girl. Essentially, the author examined and testified to significant brain dysfunction, neurocognitive and neurodevelopmental disorders, coupled with his mental illness and how these disorders in collection compromised his mental state and negated his intent regarding solicitation, as well as testimony regarding his intent in carrying out any type of sexual acts with the victim. 

Sudden Passion, Manslaughter, and Criminal Homicide

Another area of criminal law where PTSD and TBI evidence may apply is in the defense of criminal homicide (Texas Penal Code §19.01).8 “Criminal Homicide” covers the offenses of Murder (§19.02), Capital Murder (§19.03), Manslaughter (§19.04), and Criminally Negligent Homicide (§19.05). 

Pursuant to §19.02, a person commits the offense of murder if he: 

  1. Intentionally or knowingly causes the death of an individual;
  2. Intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes death of an individual; or
  3. Commits or attempts to commit a felony, other than manslaughter, and in the course of an in furtherance of the commission or attempt, or in the immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual. 

Murder is a first-degree felony with a range of punishment of 5-99 years or Life in the Texas Department of Corrections (TDC). Should the defense prove the defendant acted with “sudden passion” the jury may sentence the defendant as if it were a second-degree felony, which has a range of punishment of 2-20 years in TDC. “Sudden passion” means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed, which passion arises at the time of the offense and is not solely the result of former provocation. 

Critical to murder cases is an instruction for manslaughter. Under §19.04, a person commits the offense of manslaughter if he recklessly causes the death of an individual. Mental health and brain behavior-based PTSD and TBI evidence may apply to negate a defendant’s intentionally or knowingly causing the death of an individual. The conditions, symptoms, and impairments of PTSD and TBI apply well with reckless behavior. Per §6.03(c), a person is reckless when they are aware of the risks surrounding their conduct and of the results that could occur but consciously disregard that awareness. Importantly, the risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint. The crime does not require an element of premeditation, intent, or knowledge, only that a person is reckless. 

PTSD and TBI can affect several critical domains of functioning at or around the time of violent acts leaving an individual vulnerable to misperceiving provocation, overreacting, and becoming impulsive and reckless in their reactions and behavior. Some of these domains include cognition, emotion, behavior, and physiological arousal. PTSD and TBI can also dramatically affect the way an individual perceives, processes, and responds to people and situations. These conditions place individuals at risk for paranoia, impulsivity, deficient problem solving, and deficits in cool reflection with poor appreciation of consequences. 

Critical neural circuitry areas of the brain and in particular, the areas regarding impulse control, learning from experience, problem solving, and decision making are especially susceptible to PTSD and TBI. An individual with PTSD and/or TBI, but especially both together, can misperceive threat and provocation due to a number of issues including paranoia, deficient emotional processing, and behavioral regulation.

Self-Defense

Another area of mental state evidence and the law in which psychological and neuropsychological evidence can be considered is self-defense.9 Under Texas Penal Code 9.31, self-defense can be invoked when “a person is justified in using force against another when he believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force.”  Self-defense is an affirmative defense, and the defendant bears the burden of production. He must present some evidence of a specific apparent danger and that the use of force or deadly force was reasonable and necessary to avoid the danger.10 The reasonableness of the actor’s belief that force or deadly force is immediately necessary is judged from the standpoint of an ordinary person under the same circumstances as the actor. A person “has a right to defend from apparent danger to the same extent as he would had the danger been real; provided that he acted upon a reasonable apprehension of danger as it appeared to him at the time.”11 The defense attorney may argue that their client’s PTSD, complex trauma, or TBI related brain damage/dysfunction are circumstances that must be considered by the trier of fact in a self-defense case.

A veteran suffering from PTSD/TBI is at particular risk to have a compromised fight/flight system. Evidence of complex trauma and PTSD place a veteran at risk to misperceive threat, to be constantly on edge, hypervigilant, and in an overstimulated and impulsive state. Those with TBI often have faulty brakes to balance the impulsive threat response system. 

Case Study

In a self-defense trial, this author examined a 74-year-old Vietnam veteran charged with murder. The defendant was accused of murdering his neighbor who was also a Vietnam veteran, and with whom for several years, he shared a chronic tumultuous history. The defendant perceived death threats from the neighbor, and on the day of the shooting, he said the victim assaulted him on his own property by punching and striking him multiple times. He also perceived the victim pulling out a weapon (an aluminum cane) and threatening the defendant and yelling that he wished the defendant would die. While the defendant was trying to retreat, the victim continued punching him, which led to a mutual fight. There was a verbal and physical argument over the weapon. While the victim was beating him with the cane, the defendant pulled out a gun and shot and killed the victim. During my examination the defendant said, “When I pulled the trigger I was in fear for my life.” 

The defendant had a history of trauma prior to his war experiences which led to his PTSD symptoms. His biological father had a history of alcohol use and abuse and died of cirrhosis of the liver when the defendant was age 6. The defendant then lived in an extremely dysfunctional household with his mother, who had evidence of mental illness, and his grandparents. The defendant only completed ninth grade, and he had problems with school achievement. The defendant served as a combat infantry soldier in both the Korean and Vietnam wars. He completed one tour in Korea and three tours in Vietnam, where he earned a Bronze Star and Purple Heart. During his tours of duty, he suffered severe traumatic stress including being shot at, witnessing people getting killed, killing others in the line of duty, and experiencing traumatic brain injury. The veteran did not receive any assessment or treatment for his PTSD during either war.

When he returned to the United States, he had florid PTSD symptoms and evidence of domestic violence with his wife and extreme difficulties with chronic intrusive memories, flashbacks, and nightmares. He worked as a security guard in a prison where he experienced further trauma and multiple concussions. He qualified for a dual-diagnosis condition as he became an alcoholic when returning from Korea and was chronically drinking until age 65 when finally, he gained sobriety. He received full disability from the VA for PTSD and other medical conditions.

The neuropsychological assessment conducted indicated mild to moderate neurocognitive deficits in several areas including memory, executive functioning, and attention. He qualified for evidence of PTSD, major depressive disorder, and mild to major neurocognitive disorder due to traumatic brain injury and other vascular medical risk factors, as well as the chronic effects of alcohol use on brain functioning.

The court requested a 702 hearing, and the author testified in this hearing that the defendant was suffering from severe PTSD and a mild to moderate neurocognitive disorder due to traumatic brain injuries and a dementing condition as well as an early neurodevelopmental disorder, and further, that these conditions ultimately affected his mental state at the time of the offense, particularly regarding a self-defense claim.

The trier of fact then must consider evidence relevant to the same circumstances of the actor. Accordingly, the trial court found this author’s testimony admissible as applied  to the defendant and agreed that despite the ordinary person standard, the jury should be allowed to specifically hear testimony as to the same circumstances as the actor (defendant’s mental, psychiatric, and neuropsychiatric conditions, evidence of psychiatric symptoms and brain dysfunction that included executive functioning impairments pertaining to problem solving and impulse control ultimately detrimentally impacting his fight/flight response system). 

Insanity

Under Texas Penal Code § 8.01, “it is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.” The term “mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”12

In Texas, the wrongfulness standard is typically a cognitive knowing standard and does not include the emotional and affective standard used in federal insanity law. Regarding the latter, the Insanity Defense Reform Act (IDRA) of 1984 reads, “at the time of the commission of the acts constituted in the offense, as a result of a severe mental disease or defect, they were unable to appreciate the nature and quality or wrongfulness of their acts.13 This statute does have some potential consideration of affective and emotional states related to mental illness and does remove the volitional component that the American Law Institute (ALI) insanity defense has regarding the defendant lacking the capacity to conform their conduct to the law.14 Both the IDRA and ALI insanity tests open the door to emotional and volitional issues that the typical cognitive “knowing wrongfulness” test lacks.

Due to the narrow cognitive knowing of wrongfulness test, it is difficult to prevail on many insanity defense cases. Typically, an individual who does not know right from wrong will be in a psychotic, manic/psychotic, or demented mental state at the time of the offense. Concerning PTSD, if an individual is in a profound dissociative state with potential evidence of depersonalization and/or derealization, there may be a better chance for an insanity defense. When an individual is dissociating and has recurrent feelings of being detached and dissociated from one’s body mind processes, usually with the feeling of being outside of themselves, including being an observer of one’s life or being detached from one’s body/mind feelings and/or sensations, they may have a compromised capacity in knowing the wrongfulness and illegality of their offenses. 

Depersonalization is when an individual feels detached from one’s body, mind, feelings, and/or sensations, while derealization occurs when an individual feels detached from their surroundings, such as people, objects, events, and they perceive things as being unreal. When these two symptom clusters of depersonalization and derealization occur together the individual may feel detached from their own self and perceive that things are unreal. These severe dissociative traits are close in replica of a psychotic disorder such as schizophrenia in which an individual has hallucinations or delusions and they lack contact from reality. In essence, the symptoms of depersonalization and derealization may lead an individual to not perceive that they are in contact with reality. Further, in many cases of PTSD, the defendant will suffer from other psychiatric disorders and/or TBI which may have a cumulative effect with the PTSD symptoms on their overall functioning and capacity in knowing the wrongfulness of their acts.

In Kemp v. State,15 a Vietnam veteran shot his wife in bed and pled not guilty by reason of insanity. He stated that he was dreaming of being surrounded by Viet Cong, and this dreaming episode certainly would have been an intrusive symptom of PTSD. The defense did not prevail, and the defendant appealed. The Wisconsin Supreme Court ordered a new trial in the interest of justice on the single issue of the defendant’s special plea of not guilty by reason of insanity or lack of mental responsibility at the time of the act. The doctor called by the defendant and two court appointed witnesses all testified that the defendant was legally insane, and two doctors called by the state stated they could not form an opinion, while one doctor called for the state testified that he did not have an opinion but that maybe the defendant did lack mental responsibility. 

In cases like this, the most ideal insanity case with PTSD should include the defendant experiencing a dissociative traumatic type episode that is reminiscent of a prior trauma experience. A defendant who commits a violent act who is dissociating at the time of the offense would have an enhanced defense if he were perceiving a similar trauma that he had experienced before. In essence, the trauma at the time of the instant offense ideally will be reminiscent of the earlier trauma(s). 

In a case closer to home in the Lonestar State, American Sniper Chris Kyle was shot and killed by Eddie Ray Ruth. The defendant was a former Marine who had been given a diagnosis of PTSD and spent time in several hospitals being treated for mental illness and was even prescribed antipsychotic medication. Mr. Ruth also used a not guilty by reason of insanity defense. His defense included his portrayal of being in a psychotic episode when he shot and killed Kyle in Littlefield at a gun range in February of 2013. Ruth’s insanity defense failed, and he was sentenced to life in prison without parole. The failure of the defense was due in part to the defendant’s problems with drugs and alcohol and because the State’s experts opined that he was exaggerating mental illness during the examinations. 

Mitigation of Military and Civilian PTSD and TBI

Perhaps the most common process of utilizing forensic psychological and neuropsychological evidence of PTSD and TBI in military and non-military civilian cases is through mitigation evaluations/packages provided to the prosecution, court, and/or jury through forensic reports and/or testimony. Mitigating evidence about a defendant’s background, character, and characteristics of his offense is relevant because, pursuant to “evolving standards of decency” in our society, such factors speak to one’s moral culpability.16

Mitigation evaluations are utilized by the defense to provide the prosecution information outside of the criminal offenses and can be used to educate them as to the defendant’s background history, ultimately relating to moral culpability. These evaluations often assist the defense in the plea negotiation process. 

In the absence of specific direction and guidance from statutes or sentencing guidelines, numerous federal and state decisions have recognized PTSD as a mitigating factor when the offender is a military veteran. 

In Porter v. McCollum,17 the United States Supreme Court held that the lawyer’s failure to present evidence of PTSD connected to military service during the sentencing phase of a capital case constituted ineffective assistance of counsel. The Court emphasized the importance of recognizing the defendant’s service to his country, “Our nation has a long tradition of affording leniency to veterans and recognition of their service, especially for those who fought on the front lines.” The Court also associated the concepts of PTSD in military service, “the relevance of…combat experience…is that the jury might find mitigating the intense stress and mental and emotional toll that combat took on the offender.” Also emphasized, was the importance of the defendant’s military service as a part of a general policy relevant to leniency to war veterans while recognizing the psychological trauma stemming from combat experience, the latter which could have diminished the offender’s capacity to form the requisite intent in committing the crime. 

In the United States v. Brownfield,18 a federal judge in a non-capital case sentenced the defendant to five years of probation and ordered a psychiatric evaluation for a military-based PTSD condition and explained that the case involved issues the federal sentencing guidelines do not address regarding the criminal justice system’s treatment of returning veterans who have served in Afghanistan and Iraq. 

When considering non-capital federal cases, U.S.S.G. § 5K2.0 allows departure from the sentencing minimums for “extraordinary mental condition.” In federal court, diminished capacity is identified pertaining to a reduced sentencing under the federal sentencing guidelines rather than a formal defense during the guilt/innocence phase of a trial. According to the § 5K2.13 diminished capacity policy statement, it provides for a downward departure if: 1) the defendant committed the offense while suffering from a significantly reduced mental capacity; 2) the significantly reduced mental capacity contributed substantially to the commission of the offense.

Further, the advisory guidelines also note downward departure may be warranted based on military service, U.S.S.G. § 5H1.11-Military service may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines. A downward departure may be pursued pertinent to mental and emotional conditions, U.S.S.G. § 5H.13. According to § 5H.13, mental and emotional conditions may be relevant in determining whether a departure is warranted, as such conditions, individually or in combination with other offender characteristics, present to an unusual degree and that distinguish a case from the typical cases covered by the guidelines. In certain cases, downward departure may be appropriate to accomplish a specific treatment purpose (this could be related to a veteran obtaining specialized PTSD and/or TBI veteran-based treatment). Mental and emotional conditions could be relevant in determining the conditions of probation with supervised release; e.g., participation in a mental health program. Therefore, there are different avenues in federal court to argue downward departure pertaining to special veteran circumstances. 

When returning veterans with no prior criminal history run afoul of the law federal judges have the power pursuant to 18 U.S.C. §3553(a) to structure sentences that facilitate rehabilitation and reintegration.

In United States v. Cantu,19 the Ninth Circuit held that combat-related PTSD was the type of “mental condition” that would qualify a defendant for a downward departure for “diminished capacity” under U.S.S.G. §5K2.13. The Ninth Circuit had little difficulty concluding that PTSD is a qualifying disorder for “diminished capacity”:

Cantu’s post-traumatic stress disorder is a grave affliction. Its effect on his mental processes is undisputed. He has flashbacks to scenes of combat. He suffers nightmares, intrusive thoughts[,] and intrusive images. He is anxious, depressed, full of rage, markedly paranoid, and explosive at times.

The psychologist’s report shows that Cantu’s condition interfered substantially with his ability to make reasoned decisions, causing him to fixate on weapons and rely on them for feelings of personal safety and security. Cantu’s impairment is more than sufficient to make him eligible for a reduction in sentence under §5K2.13.20 The Court went on to explain that “the disorder need be only a contributing cause, not a but-for cause or a sole cause of the offense.” This policy statement, since amended, now requires that the disorder “substantially contribute” to defendant’s commission of the offense. If a departure is warranted under this policy statement, the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense.

This author examined a defendant who was charged in federal court with multiple counts of  bank robbery. The defendant graduated from college and served as a front-line medic in the military and experienced/witnessed profound war related trauma, IED blasts, murders, killings, and earned numerous decorated medals from his service in Afghanistan and Iraq. When he returned to the United States, he experienced profound PTSD, major depression, and an inpatient psychiatric hospitalization. He exhibited significant neuropsychological impairments despite strong verbal and overall IQ scores. He became addicted to opiates, alcohol, and cannabis in addition to his impairments due to PTSD. He also had a history of concussions pre-dating his military service. 

Case Study

The defendant went on a bank robbery spree and described his motive as to achieve a euphoria and “wanted to feel something” like he felt in Iraq. He did not appear to be planning the offenses, but his motivation was again to achieve a sense of euphoria and rush. There was a disconnect between his emotions, thoughts, and behaviors, which certainly was related to his chronic PTSD condition. 

When holding up the bank tellers he lacked an appreciation as to how his behaviors affected others as he focused only on the stimulating, arousing, and inebriating effects that his actions had on him. He had a gun in the bank and said, “It did not seem like a gun or weapon…it was a like a TV remote…I was programmed to not feel emotion due to my war experiences…I eventually did not feel anything…I never considered what I did was really terrorizing anyone.” His impaired ability to feel, regulate, and process his emotions probably led to a diminished empathy for the victims and deficits in feeling remorse as well as a compromised ability to appreciate the severity and consequences of his behaviors. 

While he understood the wrongfulness of his behaviors, he had difficulty appreciating the quality of his behaviors pursuant to the Federal Insanity Defense Reform Act (IDRA). In particular, he lacked an emotional appreciation of how his behaviors were affecting others. The defendant had suffered from flashbacks involving alteration of consciousness, and he believed he was re-experiencing a traumatic situation when he was committing the bank robberies. These flashbacks, along with nightmares and intrusive memories, led to heightened emotional stress and to low autonomic activity.

While the defense did not raise an insanity defense, they did focus on his PTSD, major depressive conditions, and the neurocognitive deficits from the PTSD condition that placed him at risk for a diminished ability to choose and completely refrain from his behaviors. He was stimulation-seeking, reckless, impulsive, and found himself escalating these behaviors in frequency closer in time to the arrest. 

Despite his intelligence, the veteran’s PTSD condition had altered the functional and neural circuitry of his brain. The neuropsychological assessment revealed significant attention, memory, and executive deficits leaving him impulsive, seeking sensation and intense adrenaline producing experiences with deficits in regulating behavior and appreciating the consequences of his behaviors onto others.21

This defendant was experiencing heightened emotions, including anxiety, fear, guilt, depression, anger, shame, and he would suffer acute emotional reactions when he was exposed to reminders of his wartime traumatic events. Consequently, he utilized drugs to combat and self-medicate these negative emotions focusing his use on opiates to numb his hyper-aroused and traumatic states. 

Ultimately, under USSG § 5K2.0 federal law allows departure from the sentencing minimums for “extraordinary mental conditions.”22 The federal district court recognized this forensic psychological and neuropsychological data in the form of a sentencing mitigation package and sentenced him to 108 months despite him committing up to 12 bank robberies within a six-week span.

Brief Neuroscience Admissibility Issues

Forensic psychological and neuropsychological assessment, the specific testing and results, and testimony related to forensic legal issues such as first phase mental state evidence and mitigation are typically admissible. Courts will admit evidence deemed “relevant” as defined by Texas Rule of Evidence 401, which states that “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. However, Rule 403 allows a trial court to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.

Although forensic psychological and neuropsychological assessment techniques themselves are typically admitted, the application of psychiatric diagnosis, functional neuropsychological and psychological impairments and symptoms, and their relationship to mental state evidence obviously can be contested by legal parties. The defense must be clear in a 702 hearing how mental health evidence, especially diagnostic symptoms and functional impairments, relate to the specific legal issue(s) in mind such as negating intent related to mens rea and diminished capacity or the standard of ordinary person in a self-defense claim. There should be a nexus between the diagnostic symptoms, functional capacity and impairments, and the law. 

Neuroimaging

While there appear to be more objections to the admissibility of neuroimaging cases in criminal court, neuroimaging evidence can be considered in both PTSD and traumatic brain injury. Neuroimaging in non-murder cases may not be as technically specific and intricate as in murder and death penalty cases in large part due to cost and funding. The most useful neuroimaging techniques include voxel-based morphometry (VBM) (volumetric MRI) functional magnetic resonance imaging (fMRI), PET scan, and diffuse tensor imaging (DTI). 

In its basics, neuroscientists can measure focal brain volumes with VBM which is an MRI technique that allows for the investigation of focal differences in brain anatomy.23 Essentially, a brain’s image is divided into hundreds of thousands of cubes, and a computerized algorithm quantifies total brain tissue, including gray and white matter and water. The individual’s brain data is then statistically compared with data derived from normal control subjects without neurological and psychiatric disorders and impaired cube brain tissue data. 

With DTI, this is an MRI neuroimaging technique examining the location, orientation, and variations in the brain’s white matter tracts which is important in examining how critical areas of the brain are interconnected. The DTI specifically looks at brain fiber tracks and neural circuitry that connects a variety of brain regions and offers data as to the integrity or damage of these fibers.24  These brain fiber tracks are needed in processing and communicating information to other areas of the brain.

fMRI is an imaging tool for determining which regions of the brain are working, their efficiency by detecting changes associated with cerebral blood flow, especially during cognitive tasks. 

PET scan is a neuroimaging test that includes the use of tracers which are attached to compounds such as glucose which is the main fuel of the brain. The PET scan can detect which areas of the brain are utilizing glucose at the highest rates and which ones are deficient or impaired.25

There are a number of studies addressing the neuroimaging in posttraumatic stress disorder.26 These studies have indicated the amygdala, hippocampus, and medial prefrontal cortex, including the anterior cingulate in PTSD. These areas of the brain are critical for emotional and fear/threat processing, paranoia, traumatic memories, planning, decision making, processing of emotions, and language for example. It is these areas that are often victimized by traumatic brain injury especially the prefrontal cortex, and there can be a double dose effect with a veteran or civilian with both PTSD and TBI. 

The trial court will often have a 702 hearing in which the forensic neuropsychologist will testify about the defendant’s background history, psychosocial and mental health background, the nature of the psychological and neuropsychological testing especially related to function impairments, as well as psychiatric diagnoses. The court will allow the forensic psychologist and neuropsychologist to testify about the defendant’s behaviors, including violence, as well as the forensic legal issues concerning the insanity, diminished capacity, mitigation, etc. The trier of fact may also allow the forensic neuropsychologist (not psychologist) to testify to neuropsychological testing data, brain behavior relationships, including the criminal and violent behavior, as well as the relationship between the neuropsychological testing results and the neuroimaging. The neuropsychologist can testify to not only the brain functions related to the tests themselves but also what regions of the brain the tests may measure. Similarly, the forensic neuropsychologist can testify to the connections between the neuropsychological testing results and to the neuroimaging results, as well as potentially to the psychiatric diagnoses and the neuroimaging results. 

Neuroscientific experts, such as neurologists, neuroscientists, and neuroradiologists will specifically be allowed to testify as to the neuroimaging process and results, as well as neuropathology, but courts often will not allow these experts to delve into criminal behavior or forensic issues as to insanity or diminished capacity. 

In a death penalty case this author examined, the defendant was a former police officer who served six tours as a civilian in a Middle East war zone where he suffered brain injury and later suffered from symptoms of PTSD. The defendant’s mental state deteriorated over time when returning to the United States on leave. He continued to become more impulsive and rageful in benign events, he misperceived threats, and was involved in a road rage incident. The other party to the road rage called the sheriff’s department who attempted to arrest the defendant following the road rage incident. The sheriff tried to gain entrance into the defendant’s home, and the defendant overreacted to his misperceived threat and shot and killed the sheriff.

The neuroimaging data indicated brain damage and shrinkage that could be a consequence of TBI, seizure disorder, PTSD, and/or delusional disorder. 

Psychological testing results yielded conditions consistent with clinical interview and background information relevant to PTSD and delusional disorder. Neuropsychological testing revealed evidence of significant brain dysfunction consistent with PTSD, traumatic brain injury, and an early dementing condition. There was a complete alignment between the structural neuroimaging data and the functional neuropsychological assessment data explaining an ultimate subcortical-cortical process of reactive aggression and violence. 

Essentially, the defendant was in a constant state of paranoia and misperceived threat, was impulsive and easily angered, and was cognitively deteriorating. He had a fight/flight condition regarding his brain neural circuitry and function. The forensic psychological and neuropsychological information and testimony was put forth in the mitigation phase of the court case rather than the guilt-innocence phase, ultimately yielding a life without parole outcome.  

Violence Risk Assessment and Risk Management

Veterans returning for war are at risk for criminal justice involvement, as well as trauma.27 Veterans with probable PTSD or TBI who reported anger and/or irritability are more likely to be arrested than other veterans, and they are at higher risk for aggression and violence. 

As part of a mitigation package, the defense may also request a violence risk assessment and risk management examination by the forensic psychologist/neuropsychologist. This violence risk assessment may be relevant to cases including other assault and violent non-murder cases. The forensic psychologist/neuropsychologist conducting risk assessment should certainly have a handle and experience relevant to the proper examination of violence risk assessment. 

A solid mitigation package is not only useful in figuring out and assessing what is wrong with the defendant, what psychiatric disorders they have, and how their brain is functioning, but also helpful on what to do with a defendant pertinent to risk management issues. Services and plans, living situations, personal and social support, as well as potential stressors need to be considered in this examination process. 

It is important to emphasize a focused and specialized risk assessment for violence with military veterans.28 Forensic evaluation should consider a dispositional, historical, clinical, and contextual risk factor analysis and assessment. 

Dispositional factors are basic demographics related to risk of violence and can include young age, male status, personality traits, aggressive attitudes, and low intelligence. 

Historical factors may include pre-deployment violence and criminal offenses, history of domestic violence, history of child abuse, witnessing domestic violence as a youth, dysfunctional family of origin, substance use, violent events experienced during deployment, and combat exposure.

Clinical factors can include PTSD and prior trauma, high PTSD symptom severity, TBI, substance use, low intelligence, depression, suicidality, and in particular the PTSD symptoms of irritability, low frustration tolerance, and hyperarousal. 

Contextual factors also may include single marital status, unemployment, financial difficulties, relationship problems, and newer marriages.

Treating the Veteran

There are a number of treatments to assist the veteran returning from combat. Obviously, there are a number of conditions to treat and especially are related to polytrauma (PTSD, TBI, chronic pain, and mental illness, especially major depressive disorder and substance dependence). Importantly, the potential of addressing impulsive aggression in treatment is critical through building emotional regulation skills with both individual and group therapies. Psychological treatment options may include skills, training, and affective interpersonal regulation, cognitive behavioral therapy, and dialectical behavioral therapy. Psychiatric medication management is often necessary to treat psychiatric and brain disorder symptoms affecting emotional, behavioral, and cognitive functioning.

Concluding Remarks

This article has addressed the unique issue of examining military motivated murder and violence. The information above in both Parts I and II, especially related to the assessment and diagnosis of PTSD and TBI, certainly can be applied to civilian cases, too. Further, the author cannot overemphasize the prevalence of early childhood trauma and the comorbidity of chemical dependency in military and civilian PTSD and TBI cases. 

Along these lines, this author sets forth a tri-diagnosis phenomenon that includes not only the typical dual-diagnosis and presence of psychiatric disorder and mental illness with chemical dependency and addiction, but as a third component of brain dysfunction, which often is present in these cases pertaining to traumatic brain injury and/or neurodevelopmental disorders present in offenders (early disorders of compromise in brain development, i.e., learning disorder, ADHD, intellectual disability, and autism spectrum disorder). 

The attorneys and court systems involved in these cases certainly have a heavy hand in dealing with such complexities in human behavior, brain behavioral relationships, and evidentiary tools such as neuroimaging when considering guilt, innocence, and moral culpability issues when working with these populations. 

In some Texas jurisdictions there are veteran treatment courts29 that allow for specialized handling for veterans involved in criminal court cases that consider coordinated systems of court supervised treatment that ensures accountability while empowering veterans to become an integral and productive member of their community. The veteran’s court dockets often provide programs that utilize evidence-based practices that assist veterans in getting mental health and chemical dependency treatment and vocation and employment training and experiences while providing risk management and rehabilitative efforts with an ultimate goal of preventing re-offending. 

The expert and lawyer should attempt to consult with the U.S. Department of Veteran Affairs and the Veteran’s Justice Outreach Program which is designed to avoid the unnecessary criminalization of mental illness and extended incarceration among veterans by ensuring that eligible, justice involved veterans have timely access to Veterans Health Administration (VHA) services. Veteran’s Justice Outreach specialists can provide direct outreach assessment and case management for justice involved veterans in local courts and jails and liaison with the local justice system partners.30 Along these lines, veteran treatment courts are another viable option to assess and monitor the criminogenic and mental health, as well as chemical dependency treatment needs for veterans involved in the criminal justice system. 

Imperative to assessment and management of risk is the consideration of the tri-diagnosis related to mental illness and frequently PTSD, major depression, with co-occurring substance dependence, and TBI. The potential mediating influence of substance use, mental health, and combat and other trauma experiences has significant implications for preventing criminal aggressive behavior among U.S. active duty military personnel.31

Ultimately, the Global War on Terrorism has had great consequences on the mental health of troops returning to the U.S. post-war service. The risk of experiencing psychiatric, neurological, and chemical dependency issues is profound and ultimately places the veteran in jeopardy of committing violent acts and landing in the criminal justice system. Proper forensic mental health assessment is vital for the best representation and equitable treatment of the veteran.

First! COVID-19 Jury Selection

On Friday, March 13, 2020 I mailed out 85 letters to clients informing them that COVID-19 had forced a shutdown of the court system in Texas, and I did not know what that meant for their case other than it would most certainly affect any preexisting timeline.

On August 25, 2020 (Tuesday) I received an e-mail informing me that I was in the “Strike Zone” for a jury trial, and jury selection would begin on August 31, 2020 at nine a.m. 

On August 28, 2020 (Friday) the court called a jury docket in the 124th District Court room. Five of us defense counsel had gathered having been given the notice of being in the “Strike Zone.” 

  • The first attorney asked for continuance believing that there was some sort of discovery issue with foreign judgments from Mexico.  The case was passed.
  • The next attorney had recently suffered a family tragedy, and the court sua sponte passed those cases.
  • The third lawyer announced that their client would be waiving a jury, and the case was being set for an open guilty plea to the bench.
  • I argued my hastily thrown together Motion for Continuance that was based on the TCDLA Motion due to COVID-19. The motion was denied.
  • The last attorney on the list had his case passed due to witness issues.

August 29, 2020

  • TCDLA past president David Moore reached out to me offering trial strategy, put me in touch with Allison Clayton, the head of the TCDLA COVID-19 Taskforce, and encouraged me to find somebody to second chair at jury selection. 
  • J. Brandt Thorson agreed to help me second chair jury selection.

On Sunday, August 30, 2020 Allison and I started collaborating in earnest getting creative about filing a beefed-up Motion for Continuance with multiple Exhibits attached and a CCP 35.06 challenge to the array.

  • Exhibit A: May 27, 2020 Newspaper article about COVID-19 in the Gregg County jail 
  • Exhibit B: White Oak Independent School District press release that in person school was suspended due to COVID-19 from August 27, 2020 – September 9, 2020
  • Exhibit C: State Bar of Texas Presidential Task Force Interim Recommendations as of 8-26-2020
  • Exhibit D: August 31, 2020 trial docket for the 124th District Court
  • Exhibit E: August 27, 2020 Newspaper article that jury trials were to resume

Monday, August 31, 2020, voir dire at the Maude Cobb Convention Center, Longview, Texas.

  • Challenged the array per CCP 35.06. Denied
  • Argued the new Motion for Continuance with Exhibits A-E attached. Denied.
  • Selected what many have called “a good-looking jury.”

After voir dire it was pointed out to me that my case was not on the “approved jury trials” list as published by the Office of Court Administration. 

So, on Tuesday, September 1, 2020, I drafted and filed a Motion for Continuance based on the fact that my trial was not on the “OCA Approved List” with attached Exhibits.

  • Exhibit F: Emergency Orders Twenty-Two
  • Exhibit G: PDF of Approved Jury Trial list from the OCA website.
  • Argued Motion. Denied.
  • Gave Evidence to the Jury.

Wednesday, September 2, 2020, second day of trial

  • Gave the charge to the jury sometime in mid-morning.
  • Guilty verdict
  • Brief punishment phase
  • State asked for max (20 years). I told them that they knew what to do.
  • Gave punishment charge to jury.
  • Jury assessed 4 years TDC.

On Thursday, September 3, 2020 my Client waived appeal. I called and texted a few people to let them know that we would not be making good case law out of my trial.

Tuesday, September 8, 2020, I briefed the TCDLA Board for about an hour about my experience and provided the checklist at the end of this timeline for future reference.

SECOND!

Then, on Tuesday, September 15, 2020, I received another e-mail letting me know that I was again in the “Strike Zone” for another jury trial to be selected on September 21, 2020 at nine a.m.

Wednesday, September 16, 2020, I share my Motion for Continuance Due to Lack of OCA approval with J. Brandt Thorson.

Thursday, September 17, 2020, I file (multiple) Motions for Continuance with Exhibits attached.

Friday, September 18, 2020, went to trial docket and witnesses the following.

  • Lawyer #1 had his Continuance granted due to settings in Federal Court.
  • Lawyer #2 (me) had his Motions for Continuance denied.
  • Lawyer #3 Had his Continuance approved on Thursday, due to Evidence issues.
  • Lawyer #4 fled the State on vacation, leaving a letter on file with the Court.
  • Lawyer #5 Set their case for a Motion to Suppress.

Monday, September 21, 2020, jury selection at Maude Cobb Convention Center, Longview, Texas.

  • Sung Kim sat second chair with me.
  • We picked what was considered another “good-looking jury.”

Tuesday, September 22, 2020, Trial

  • Sung Kim sat at counsel table as second chair.
  • Jury returned a Guilty Verdict by 2:30 PM.
  • Client waived Jury as to Punishment.
  • Punishment reset until November 13, 2020.

THIRD!

Then, on Friday, September 25, 2020, the third jury trial docket since COVID-19 was held, and I was not on it. 

  • Jeff Jackson found out he was going to trial.
  • I called Jeff to offer to sit second chair during voir dire.

Monday, September 28, 2020, voir dire, Maude Cobb Convention Center.

  • Many quizzical looks from Courthouse Security as to why I was there.
  • Mr. Gary Cristian, thanked us for what looked like “an amazing Jury.”

Wednesday, September 30, 2020, 3:00 PM.

  • Word got out, Not Guilty! 

COVID-19 Checklist

  1. Is your trial approved by the OCA?
  2. If your client is incarcerated:
    1. Has your client been tested?
    2. Has your client been in quarantine since testing?
    3. What are the number of active cases in the jail?
    4. How many inmates are in quarantine in the jail?
  3. Off-Site Voir Dire:
    1. Object that it is not the hallowed halls of justice.
    2. Object that it is not covenant to the populace.
    3. Ask Jurors if they can see you.
  4. Summons:
    1. Does the Jury Summons comport with the Code of Criminal Procedure?
    2. Are jurors excused without having been sworn per CCP 35.02.
  5. Are jail cases of COVID published on the Jail Commission website, or do you need to subpoena them from the sheriff?
  6. Courtroom:
    1. Have the judge on record describe where the jury, counsel, defendant, witnesses, gallery members, and other visitors will sit during the trial.
    2. Enter a drawn schematic of the courtroom into evidence.
    3. Ask if there will be cleaning protocols for the witness stand and trial exhibits.
    4. Will concessions be made so that the attorney and defendant can converse while maintaining good social distancing practices.
    5. Where will the Jury be sequestered to during breaks and during deliberation.
    6. Will the jury be ordered to wear clear plastic facemasks during the trial?
  7. Motions for Continuance; attach exhibits and verify under oath:
    1. OCA approved trial list;
    2. Reports of jail infection rate;
    3. Local newspaper articles about school closures;
    4. Published infection rates for the area;
    5. Press releases from local government and elected officials;
    6. Census records.
  8. Motion to challenge the array under CCP 35.06.
    1. Census records;
    2. In writing;
    3. Verified;
    4. Infection rates for disparaged classes of jurors.
  9. Never announce “Ready.”
  10. Ask for “Running Objection.”
  11. Ask witnesses if they can see all jurors from the witness stand.

A Primer on the Texas EOCA Statute

Many in law enforcement have started more aggressively using the Engaging in Organized Criminal Activity (“EOCA”) statute to prosecute cases where groups of individuals are alleged to have worked together in some way to commit criminal activity. Under the EOCA statute, people can be prosecuted as being part of a “combination” or as part of a “criminal street gang.” The purpose of this article is to outline and survey the law as it pertains to cases filed where the accused is charged as a member of a “combination.”

The EOCA statute, as codified in Chapter 71 of the Texas Penal Code, was created as Texas’ answer to the Federal Racketeer Influenced and Corrupt Organizations (“RICO”) statute. The legislative history suggests that the bill creating the EOCA statute was intended to make it less difficult for law enforcement officials and criminal justice agencies to obtain convictions for participation in organized crime.1 The EOCA statute allows for joinder of offenses and offenders in a single criminal case. It allows for prosecution in any county in which any activity occurred in furtherance of EOCA activities. Alleging that a person is part of a “combination” works similarly to a criminal conspiracy, except that it involves more people and they need not be as directly involved with one another.

Tex. Pen. Code §71.02(a) says that “[a] person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit” one of the predicate offenses. The laundry list of offenses is too numerous to list here but it can be found in the statute and includes offenses as diverse as murder, aggravated robbery, various sex offenses, various fraud offenses, certain gambling offenses, money laundering, and many others.2 Texas Penal Code § 71.01(a) defines the term “combination” as “three or more persons who collaborate in carrying on criminal activities, although: (1) participants may not know each other’s identity; (2) membership in the combination may change from time to time, and (3) participants may stand in a wholesaler-retailer or other arm’s length relationship in illicit distribution operations.”

It is important to remember that not all offenses are predicate offenses for an EOCA charge. Therefore, a practitioner should start by referring to the statute and ask the most basic question – does the indictment allege that the defendant committed one of the predicate offenses listed in the statute? If the predicate crime is not one that is listed in the EOCA statute, then it is not a proper EOCA charge.

BASIC ELEMENTS

There are two overarching elements that are necessary to establish guilt in an EOCA charge: (1) that the defendant intended to establish, maintain, participate in, or participate in the profits of a combination3; and (2) that the defendant committed or conspired to commit one of the enumerated predicate offenses found in Tex.Pen.Code § 71.02(a), which also needs to be listed in the indictment.4 Simply put, the defendant must both agree to participate in the “combination” and “must himself perform an overt act in pursuance of that agreement.”5 The EOCA statute does not treat each predicate offense as an element for purposes of jury unanimity, regardless of whether the state alleges alternate predicate offenses with different degrees.6

REQUIRED MENTAL STATE

There are two parts to the mental state required for an EOCA charge. First, the defendant must have the mental state that is required for the predicate crime.7 For example, if the defendant is charged with EOCA with theft as the predicate offense, the state must prove that the defendant intended to deprive the complainant of the property. Second, the state must prove that the defendant intended to establish, participate in, or participate in the profits of a combination.8 In other words, the defendant must possess more than just the intent to commit the enumerated predicate offense; he must also intend to commit the predicate offense as part of the combination. Also, the proof must consist of more than evidence that a combination existed and that the defendant committed one of the enumerated offenses.9 Thus, in our theft example, not only does the prosecutor have to prove that the defendant intended to steal, but also that he intended to steal as part of this crime ring, which is known as the “combination.” A jury may infer from any facts which tend to prove the combination’s existence, including the acts, words, conduct of the defendant, method of committing the crime, etc.10

To prove that the defendant intended to participate in the combination, the state must prove that the defendant intended to establish, maintain, or participate in a group of three or more in which the members work together in a continuing course of criminal activities.11 The defendant falls into the category of being part of the combination if the defendant, or one of his or her accomplices, engaged in ongoing criminal activities, and the defendant agrees to join the existing organized crime unit, knowing that it has committed or will commit multiple criminal activities.12

In O’Brien v. State, the Texas Court of Criminal Appeals explained that for an adequate showing of “intent to establish, maintain, or participate in a combination or the profits of a combination,” the “State must show that the predicate offense was committed as part of a collaboration of three or more people working together in a continuing course of criminal activities.13

CONSPIRACY TO COMMIT EOCA VS. CONSPIRACY UNDER TPC § 15.02

“Conspiracy” as used in the EOCA statute differs from criminal conspiracy under Tex. Pen. Code § 15.02. A person “conspires to commit” for purposes of the EOCA statute when that “person agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense and that person and one or more of them perform an overt act in pursuance of the agreement.”14 Criminal conspiracy, on the other hand, requires the prosecutor to prove that the defendant intended to commit a felony, agreed with one or more people to commit that felony, and that one of the people who formed this agreement committed an overt act in furtherance of that agreement. Criminal conspiracy does not require the defendant to have committed the overt act himself.15 EOCA “conspiracy” requires that the actor himself must commit an overt act in furtherance of the combination.16

A person may be guilty of criminal conspiracy by doing nothing more than agreeing to participate in the conspiracy, as long as another conspirator commits some overt act in furtherance of the conspiracy.17 For criminal conspiracy, if two people are charged and one is acquitted, the other must also be acquitted.18

EOCA conspiracy operates differently. To be guilty of conspiring to commit an offense as a member of a combination, a defendant (1) must agree to participate in the combination, and (2) must himself perform some overt act in furtherance of that agreement.19 That “overt act” need not in itself be criminal.20 A key difference between EOCA conspiracy and traditional criminal conspiracy is that when multiple people are charged in the combination, the acquittal of one of those people does not mean that a conviction on other defendants cannot stand.21

COMMISSION V. CONSPIRACY

EOCA by “commission requires a showing of a collaboration in carrying on criminal activities in addition to the commission of one or more predicate offenses. [EOCA] by commission simply punishes a conspiracy involving three or more people that results in the completion of at least one of the conspired crimes.”22 EOCA by conspiracy does not require the state to show a completed offense.23 “When the state charges a defendant with [EOCA] by commission, it must show at least one completed offense. But in both types of offenses, the state still must prove the existence of a criminal combination.”24

CONTINUOUS ACTIVITY REQUIREMENT

One of the most often misunderstood requirements of the EOCA statute is the requirement that the state prove the intention of the members of the combination to carry out multiple criminal acts. Police officers and prosecutors often believe that a defendant may be charged with EOCA if that defendant were part of a group of three or more people who commit one of the crimes enumerated in the EOCA laundry list. While multiple people working together to commit a single crime may be guilty of that crime under a “law of parties” theory, those people cannot be found guilty of EOCA.

The Texas Court of Criminal Appeals has held that the phrase “collaborate in carrying on criminal activities” does not mean an agreement to jointly commit a single crime.25 The state must prove more than the defendant and some combination of his accomplices intended to act together toward a criminal objective of committing one of the enumerated crimes.26 The prosecutor must prove beyond a reasonable doubt that a defendant’s accomplices had engaged in ongoing multiple criminal activities, and a defendant agreed to join the existing organized crime unit, knowing that it has committed or will commit multiple criminal activities, and that defendant committed an overt act, even if only one, in furtherance of that crime.27

DEFENSES EXCLUDED

The EOCA statute expressly excludes certain defenses. For example, it is not a defense that “one or more members of the combination are not criminally responsible for the object offense.”28 Remember, in EOCA cases your client is being prosecuted for belonging to this group that does bad things. He does not have to do the actual bad thing, so long as he does some “overt act” to help others do the bad thing. Also, as stated earlier, the fact that one member of the combination was acquitted does not mean that the other members of the combination are immune from prosecution.29 Finally, the fact that members of the combination change, and that the total number of people in the combination change is not a defense so long as the defendant and at least two other individuals remain in the combination.

INDICTMENT AND JURY CHARGE ISSUES

Unfortunately, the law allows prosecutors wide latitude in creating complicated indictments with nightmare jury charges in EOCA cases. The Texas Court of Criminal Appeals has said that “[t]he jury must be unanimous that a defendant committed at least one of the enumerated offenses as a part of a collaboration to carry on criminal activities.”30 The court has made it clear, however, that the “jury does not have to agree on which specific offense was committed in an engaging case so long as everyone agrees that at least one of the listed offenses was committed as part of a collaboration in carrying out criminal activities.”31

For EOCA cases, the commission of each predicate crime constitutes a different manner and means of committing the single offense of EOCA.32 “An indictment may allege different methods of committing the same offense.”33 Therefore, a single EOCA indictment may list completely different predicate crimes as a “manner and means” of committing EOCA. For example, an indictment may charge an individual with committing EOCA by being part of a combination and then allege criminal activities as diverse as theft, money laundering, fraudulent use of identifying information, and murder. Although a single count can’t charge people with multiple crimes,34 courts have held that EOCA is one charge and can be pleaded with different predicate crimes as different “manner and means,” and each “manner and means” may be submitted to the jury.35 Further, verdict forms must be general so a properly written jury charge will not require the jury to make any determination as to which specific individuals in the combination committed which predicate crimes.36

PUNISHMENT

Generally, the punishment range for EOCA is one degree higher than the most serious offense that was committed.37 If the predicate offense is first degree offense, then the minimum sentence is 15 years in the Texas Department of Corrections.38 There are provisions that make the range more aggressive when certain sex offenses are the predicate charge.39 Conspiring to commit an offense under the EOCA statute is the same degree as the most serious offense “that the person conspired to commit.” 40

At the punishment state of a trial, the defendant may raise the issue as to whether he completely withdrew from the combination before the commission of the offense, and “made substantial effort to prevent the commission of the offense.”41 If the defendant proves this by a preponderance of the evidence then the punishment range becomes the same as the most serious offense listed in the indictment, or a degree lower if the defendant is convicted of conspiring to commit the offense.42

Importantly, a defendant convicted of EOCA is “not eligible for release on parole until [the defendant’s] actual calendar time served, without consideration for good conduct time, equals one-half of the sentence or 30 calendar years, whichever is less, but in no event is [the defendant] eligible for release on parole in less than two calendar years.”43

CONCLUSION

The EOCA statute can be tricky and confusing to the untrained eye. Many police officers and prosecutors wrongly believe that if a person commits a crime with at least two other people, then that person is guilty of EOCA. As shown above, this is not the case. When attacking the State’s case pay close attention to the pleadings. Consider filing motions to quash when the state’s indictment does not identify an “overt act” and have the statute and supporting case law ready to cite when it comes time to move for a directed verdict when the state fails to present evidence of the defendant’s intent to be part of a collaboration of three or more people working together in a continuing course of criminal activities. While the complexities of the EOCA statute aid the state in some respects, those same complexities create many opportunities for the state to make mistakes. This, in turn, creates opportunities to “recover a fumble” when the defense lawyer pays close attention to the statute’s details.

Zoom Trials: The Idea Exceeds the Technology

Courts are struggling to find a way to hold proceedings in the safest way possible while still maintaining justice. Many courts have turned to Zoom and other video conferencing services to conduct hearings and other legal proceedings in an attempt to prevent the system from coming to a complete standstill. While bench trials, hearings, and even depositions have been conducted successfully via Zoom, the first binding criminal jury trial was held entirely via Zoom on August 11, 2020. We have now participated in two Zoom jury trials that went from jury selection through verdict. One was a mock trial in a civil case for the American Bar Association’s False Claims Act Virtual Trial seminar. The other was the aforementioned binding criminal trial, which was for a Class C misdemeanor charge. We wanted to embrace this technology as the future route for jury trials, but after participating in both groundbreaking trials, we simply cannot endorse it. Perhaps it can be used for small claims and Class C misdemeanors, but any trial of substance, whether the stakes are substantial damages or the potential for incarceration, it is simply not the vehicle to use to assure litigants of their Sixth and Seventh Amendment rights to a fair trial. We will leave it to the pundits, professors, and scholars to debate the constitutional implications of jury trials via Zoom.  This article is going to address the practical and technological challenges associated with Zoom jury trials, and why it’s not only a bad idea, but a very bad idea.

Inequality of Access to Required Technology

Our first concern is the access, or lack thereof, of all jury-qualified individuals to the technology required to participate in a jury trial via Zoom. Although many knew this technology gap existed, it came to the forefront of everyone’s attention once schools closed and remote learning began. Dallas County, Texas is a prime example: Through a survey conducted by the Dallas Independent School District, it was discovered that 30% of families did not have access to high-speed internet service (Smith, 2020). These households were in the same areas that experience high crime rates, food deserts, and poverty levels. When the adults in these same households receive a jury summons and are asked to report via Zoom, they will experience the same lack of access as their children. When nearly a third of households do not have the same access to reliable internet service as other jury-qualified individuals, it creates a massive participation disparity. Now your jury panel is no longer representative of your jurisdiction. This was never more apparent than at the Travis County criminal jury trial held via Zoom. The table below compares the racial and education demographics of Travis County, Texas with that of the panel of prospective jurors for the Zoom criminal trial:

The divergence in both education and race demographics is substantial. 83% of the Zoom jury panel self-reported having a college or post-graduate degree when U.S. Census data reports only 48.6% of individuals in Travis County have the same. People of color were also underrepresented in this jury pool: 73% of the Zoom jury panel self-reported their race as White when the data shows this percentage as less than 50% for the county. While some differences can certainly be accounted for by the necessity of ensuring individuals are jury-qualified (over 18 years of age, eligible to be registered voter, etc.) as well as the randomness of the jury wheel, the demographics of this Zoom jury panel was just not representative of a traditional Travis County jury pool.

Access, or lack thereof, to the appropriate hardware needed to participate in video conferencing is another facet of the technology gap. Survey results from the Pew Research Center show that 26% of adults in the United States do not own a laptop or desktop computer (Mobile Fact Sheet, 2019). That effectively means a quarter of our jury pool does not own the necessary hardware required to participate in a Zoom jury trial. While some of this is likely due to economic constraints, the technological sophistication of smartphones today means there are also many people who just do not have use for a separate computer. While it is conceivable a juror can participate in a Zoom meeting by smartphone, it is impractical. Because the screen is so small compared to a tablet, laptop, or desktop computer, it decreases the user’s view of the lawyers, witnesses, and the judge, the ability to view evidence is incredibly difficult, and interaction with their fellow jurors is severely limited. Either individuals without access to the appropriate hardware are excluded, or the counties are going to have to send out Sheriffs to hand out tablets, computers, and/or Wi-Fi hotspots if a prospective juror has neither the appropriate hardware nor access to reliable internet service. That is simply not a practical solution to this problem. By contrast, approximately 91% of U.S. households have access to a vehicle (Peterson, 2020), which they can presumably use to report to the courthouse. Simply put, access to the required technology in order to participate in video conferencing should not be a prerequisite of jury service.

Inability to Use the Technology

Access to appropriate technology is still only half of this problem. Jurors (and attorneys, witnesses, court staff, etc.) have to know how to use Zoom. Although a learning curve was expected, the ability of everyone to effectively use the technology was underwhelming. In the criminal Zoom trial, the attorneys had clearly practiced and had a good handle on how to use Zoom, but they even had hiccups along the way, from forgetting they were muted to issues with using Screen Share. For jurors, Zoom lingo cannot be assumed, must be taught prior to the beginning of jury selection, and even then, there is no guarantee the prospective jurors will be able to use Zoom without a hitch. Multiple jurors were unsure how to mute and unmute themselves, turn their video feed on or off, or move to their breakout room when instructed by the court. During jury selection in the criminal Zoom trial, several jurors could not see the defense attorney when he first began his voir dire, so the proceedings had to stop in order for the court to teach the jurors how to switch from Gallery View to Active Speaker. Lots of questions had to be repeated because of bad connections or an audio lag. Poor connectivity caused visual and audio problems multiple times throughout voir dire, which led to people talking over one another. One juror had to move locations during jury selection (for reasons unknown), which was very awkward and caused yet another delay. Some have argued that the solution is simple: Teach prospective jurors how to use Zoom prior to trial. This is much easier said than done. Who will be tasked with this project? Court staff are already being asked to be de facto IT professionals in addition to their existing duties. Offering Zoom training is also not a guarantee. At the 2020 ABA False Claims Act Virtual Trial seminar, the mock jurors received over an hour of Zoom training apiece, and during the seminar experienced many of the same problems as the criminal Zoom trial.

Technology Failures

In the criminal Zoom trial, the court did try to address the technology disparity. Four prospective jurors were given court-issued technology in order to report for jury duty, and two of those individuals were seated as jurors. Out of those two, one was excused during the oath due to connectivity and technology problems with the court-issued device. It began with a frozen screen, and despite the court’s attempts to remedy the situation, the judge eventually decided to excuse the juror. It is worth noting that, at this point, the trial was already grossly behind schedule. This individual was not the only one who was excused due to technical difficulties. A total of five jurors, over 15% of the panel, were excused due to various technology problems. These ranged from computer viruses to an outdated operating system that did not permit one juror to access Zoom at all. While we understand the court’s reasoning, we disagree with it in practice. An inability to use technology, whether caused by user error or equipment failure, should not be a legal reason to excuse any juror.

The juror whose screen froze presents another technology-related problem: What if no one had noticed when his screen froze?  Meaning, someone can look like they are listening intently when their screen is frozen, while in reality they are scrambling to address their connectivity or equipment problems. What if the juror’s audio connection fails, preventing the juror from hearing testimony? How do we ensure that juror saw and heard other evidence? Simple: You cannot. And if the jurors cannot hear and see the evidence, they cannot evaluate the evidence, which means they cannot discharge their duties as jurors.

Right to a Public Trial by Live Stream

Another concern is the Sixth Amendment right to have a public trial. All courts, consistent with Presley (Presley v. Georgia, 558 US 209, 2010), are making reasonable accommodations, which consist of either live streams on the court’s or county’s website, on a public platform such as YouTube, or, in some instances, arranging for a live video feed to an overflow courtroom. Our concern is not the method but the technology: As long as the video feed or stream works, it’s fine, but what happens if the stream or feed fails? This is not a hypothetical scenario, as the live stream went dark during the Zoom criminal trial. An additional concern with live-streaming trial proceedings is there is no guarantee that someone is not recording the trial. Somebody cannot walk into a courtroom and videotape the trial without the court’s authorization. The court does not have that kind of control over the internet. If the case is about a parking ticket or small claims, admittedly this is not much of a concern, but if you have a high-profile case, are discussing a client’s medical condition or injuries, or submitting intellectual property evidence, the concern becomes very real. The difference between public in-person trials and live streams is the court can govern the dissemination of information. Presley says that reasonable measures must be taken to accommodate public attendance at trials, but the presumption is that the courts can maintain some control over that environment.

Another logistical concern with live-streaming is broadcasting prospective jurors’ names and other personal identifying information. In the criminal Zoom trial, the judge asked each prospective juror to rename themselves as, “Juror #[Number]”, prior to voir dire so that their names were not visible. However, most of the juror check-in process was live-streamed, so anyone who logged on potentially saw the jurors’ names before that process was completed. Even if the court chooses to disseminate identifying information of the jury panel to the parties before the stream goes live, the jurors are still potentially answering very personal questions on a very public platform. Any trial lawyer will tell you it is oftentimes difficult to get a jury panel to talk, which is compounded when the lawyer must question prospective jurors on sensitive or hot-button issues. To satisfy Presley, let’s assume a Zoom jury trial in a DWI case is being live-streamed on YouTube. Both the prosecutor and the defense attorney will likely want to question prospective jurors on alcohol use and abuse. Now imagine there’s a prospective juror whose family member was recently killed by a drunk driver. This prospective juror is still grieving their loss, and is now not only on camera, but on YouTube. Yes, there is a way for this person to speak to court privately via a breakout room that is not being live streamed. But this person and their grief, which they may or may not be ready to discuss with strangers, has now been placed on a very public stage. Perhaps this is more an ethical or moral question, but our point is this: If you ask prospective jurors to answer personal questions and actually want answers, you have to make it as safe and comfortable a process as possible, which is difficult enough in open court, and essentially impossible when the trial is being live-streamed.

Evaluation of Evidence by a Zoom Jury

Evaluation of evidence is another consideration. There is plenty of evidence that is not a document or otherwise cannot be shared via a file share program such as Box. Consider a defective product, medical device, or a patent case, where it is typical to allow the jury to hold, touch, and see the product or device. Jurors are sometimes taken to the scene of the crime or the location where the injury occurred – that’s now completely eliminated. Granted, this doesn’t happen often, but it happens at least frequently enough to be a concern if you lose that ability. Photographs are only two dimensional. Video still doesn’t replace the senses that are engaged by holding and interacting with the object yourself. How can we expect the jury to truly and fully evaluate such evidence if they are not in the courtroom?

Judging the Credibility of Witnesses via Zoom

This problem with evaluating evidence also extends to testimony. What happens in the courtroom is not just judging documents, but judging the credibility of the witnesses. In fact, the jury is instructed that they are the SOLE judges of the credibility of the witnesses. What if one or more jurors does not hear a portion of the testimony due to technical problems? Even worse, what if they are not even aware that they missed something? Now there is a portion of testimony that those jurors are not considering, not because they are not giving weight to the testimony, but because they never heard it. We need these protections even more in criminal cases, where the stakes are not a damages amount, but someone’s liberty, or even life.

Body language plays an important part in judging the credibility of the witnesses as well, but nonverbal communication is almost entirely lost on Zoom. For decades, Robert has been saying in his speeches that 80% of communication is nonverbal. Tone of voice, what someone is doing with their hands or legs, at whom or where that person is looking during their testimony – all of that factors into nonverbal communication. In the courtroom, jurors are not only watching the person speaking or testifying. They are watching the parties’ reactions to the testimony and evidence. In focus groups and post-verdict interviews, the authors routinely hear jurors tell them that nonverbal cues were just as important as testimony. In Zoom, the jury can hear the witness, but they only get the benefit of tone of voice, facial expressions, or if the witness is looking down or off camera. But from the neck down the jury has no concept of what the witness is doing. Zoom takes the ability to see nonverbal communication away from the jury.

There are legal implications with regards to witness testimony as well. We mentioned earlier that the jury can see if a witness is looking down or off camera during their testimony. If there is someone off site or off camera feeding the witness information, that is no different than cheating on a test. What if it’s clear the witness is alone, but is obviously looking at notes or other documents? In a courtroom, the first thing the lawyer will ask the witness is, “What are you looking at?” Next, the lawyer asks if they can approach the witness. Then, the lawyer will ask the court reporter to mark the notes as an exhibit. And then, the witness gets cross examined viciously by those notes. And all this plays out in real time in front of the jury. Not so with Zoom jury trials. For example, during the criminal Zoom trial, the prosecution’s witness, the police officer, said at one point he was looking at his notes because he was unable to remember the defendant’s name. While this would have had a huge impact in a courtroom, the significance was entirely lost via Zoom. Even if the witness describes the document or otherwise explains what they are looking at, how is it confirmed by the court? Is the court going to send a Sheriff to each witness’ location? The fact of the matter is that there is no way to police this when a witness testifies via Zoom.

Another consideration for virtual witness testimony is the enforcement of the “Rule”, if invoked. During an in-person trial, the witness is simply asked to remove themselves from the courtroom. If the trial is being broadcast or live streamed, there is no way for the court and the parties to ensure that a witness is not watching the presentation of evidence on a streaming platform. In other words, when a trial is being conducted remotely, there is no guarantee that the witness is honoring the Rule.

Identification of the Accused

In criminal cases, the identification of the accused can be very important. Procedurally it is necessary, and it is often seen as a big moment by the jury. At one point during the criminal Zoom trial, the prosecutor asked their sole witness, the police officer, to identify the defendant. In a courtroom, the officer would have likely gestured towards the defense table and identified the defendant sitting next to her lawyers. In the criminal Zoom trial, however, the court had inadvertently helped the State by requiring that the citizen accused rename herself in Zoom, so the label directly underneath her video window read, “Defendant – [NAME]”. No one had considered that by doing so, the court unintentionally communicated to the jury that the State had the “right” person. While not terribly damaging in a Class C misdemeanor, this could be catastrophic for a criminal defendant in another case. Our point is that necessary legal procedures do not always translate to Zoom, and can be damaging to the parties involved.

Privileged Communication Constraints

Communication, or lack thereof, is an important concern with many legal implications. Not only was it difficult for the court to communicate instructions to jurors, it was almost impossible for the lawyers to communicate with within their own teams. Under regular circumstances, you can pass notes or discreetly whisper to one another. In Zoom, even if you know how to send a message privately using the Chat function, can the Host/Co-Host/etc. see those messages? Are they no longer privileged? You can send each other text messages or set up a separate chat room, but that is an imperfect solution. Not only can the jurors see you using other electronic devices when they have presumably been told not to by the court, but as any trial lawyer knows, trials move quickly, and by the time you text or type a question or recommendation, the moment has passed. In the criminal Zoom trial, this was particularly worrisome when trying to communicate to the lawyer to make an objection. Then, making the objection itself was awkward and caused the lawyers to unintentionally speak over each other, the jurors, and the judge. What if technical problems cause a lawyer’s objection to not be heard by the court at all? Also, in the criminal Zoom trial, the trial teams were not permitted any time to confer in between voir dire panels. Normally, this can be accomplished as the jurors file into the courtroom or during a break, but because the trial teams were required to stay on camera, conferring with one another was impossible.

Even more troublesome was the inability for the client to communicate with her own lawyers. During a regular trial, a client can ask questions, pass notes during prosecution witness testimony, or otherwise communicate with counsel. You absolutely cannot use texting or a chat room: The communications may be privileged, but the jurors will see your client on their phone or similar and punish them for it, as it will be perceived as the client not taking the proceedings seriously. It is too early to know the exact legal implications of this, but no one will deny that clients have the right to speak with their own lawyers during trial proceedings. Zoom makes this impossible.         

Potential for Improper Communication

Another communication-related problem that reared its head during the criminal Zoom trial was the jurors communicating with each other. A few jurors who clearly did know how to use Zoom used the Chat feature to ask other jurors if their screen was blurry or if it was just their connection. Other jurors started responding until the judge intervened. Yes, the Chat function can be disabled, but that is not the point. An honest mistake can create a whole host of problems. If the judge had not addressed the problem as quickly as he did, it would have likely devolved into the jurors commenting on the case itself. This raises other issues as well: While a breakout room can be used as a substitute for a jury room, what happens if whomever is hosting the Zoom meeting lets the jury back into the Zoom courtroom when the parties are addressing something to be handled outside their presence? What if the Chat feature is not disabled in the breakout room, and the jurors start privately discussing the case before jury deliberations? What if, while in the breakout room, one or more jurors looks at the live stream while the judge is handling an issue specifically outside the presence of the jury? The bailiff’s job is already difficult, made more so on Zoom. There is no way for the bailiff to adequately supervise or effectively assist the jury via the Zoom platform in the way they are able during in-person jury trials.

Jury Deliberations

Jury deliberations via Zoom are a huge concern. First off, all the technology-related problems discussed within this article also apply to jury deliberations. The biggest difference between presentation of evidence and jury deliberations is that jury deliberations are supposed to take place privately and confidentially. How do we ensure all of the jurors are able to participate in the deliberations without monitoring their deliberations? If one of the other jurors can’t hear or see their fellow jurors, is it another juror who fixes the problem or do they call someone? Who exactly do they call? Presumably the Zoom Host, but who is the Host? Now the court must arrange for additional training and the associated expense of either training court staff or hiring additional IT professionals to serve as Zoom Hosts.

Here’s the biggest concern: How do we know the jury is not subject to outside influences? They’re already permitted the use of a computer in order to participate in the trial, so what prevents them from searching the internet for answers or additional information? And if they do so, how will we ever know? Back in an in-person jury deliberation room, if someone gets on their phone, one of the other jurors is likely to say something to them. In Zoom, you cannot really tell if someone is looking at their notes or their phone. There is also the very real possibility of family members or others in their homes communicating to the jurors during deliberations, the so-called 13th juror. Of course there’s a problem with this during in-person trials, people talk to their spouse or partners. There’s a number of jurors who do it despite the admonishment not to. The difference is they might bring that person’s view into the jury room during in-person trials, but that person is not actually there. In Zoom, the person might in the same room, out of frame, giving feedback on what they like and dislike. If a juror is muted, they could be having whole discussions and conversations about the evidence with that person. When it comes to jury deliberations, the potential for abuse is profound, with virtually (pun intended) no checks and balances. While we are not suggesting that we be allowed a window into the quality or content of Zoom deliberations, how can the court ensure against these types of outside influence without violating the sanctity of jury deliberations in Zoom? The fact is jurors tend to listen a lot more to a judge when instructions are given in a courtroom setting and are far more likely to heed those instructions. Part of the magic happens when you go through the effort of going to the courthouse, through security, escorted to a courtroom where a judge sits on a bench, and you are told you are the sole judges of the credibility of the evidence. Without this process, the magic is gone. Now you’re just watching a screen.

Distractions at Home

Even if jurors are doing everything as instructed, the reality is they also have distractions at home that would not exist in a courtroom. One seated juror in the criminal Zoom trial had pets running around and jumping on the couch where she was seated, all of which occurred during testimony. Another juror was clearly responding to an email or text on his cell phone during voir dire. This prospective juror was asked to stop and the court again reminded everyone that their full attention should be on the trial, but it begs the question of how many other jurors were doing the same and just didn’t get caught? How do you prevent jurors from passing time on their phones, watching TV, etc., when they are supposed to be giving the court their full attention? The reality is that the court’s reach doesn’t extend into the juror’s homes. There’s no dress code, no assurance electronic devices aren’t being used, and the distractions of other family members, phone calls, pets, packages being delivered, etc., are problems with Zoom that are lessened or eliminated by holding jury trials in-person.

Limitations of Video Conferencing

There are many other limitations of Zoom when you try to use the platform to conduct jury trials. Gallery view can be distracting and even overwhelming, but if you switch to Active Speaker, you are no longer able to see the jury or anyone else. In Gallery View, there is no way to display the jurors in any type of sequential order. In a regular jury selection, there is typically a seating chart to which the lawyers can refer. In Zoom, the order changes as people speak and as people join and leave the meeting, making it very difficult to know who is speaking, especially when a lawyer is asking Yes/No questions or when jurors otherwise answered with a single word. During the criminal Zoom trial, the jury was never “seated” together, and instead the members of the jury were interspersed among the lawyers, defendant, witnesses, and the judge. Not being able to order the meeting attendees also made for some truly awkward visuals. Sometimes the prosecutor was next to the defense attorney, which is not a good look. The optics were even worse was when, at one point, the defendant was next to the prosecutor. For lawyers, you must have two screens at a minimum: One to see the jury (or as much of the jury as possible in one screen) and another to see PowerPoint slides, exhibits, witnesses, etc. Zoom backgrounds need to be equalized. It is unfair for the prosecutors to have an official seal in their background while defense counsel has their office, as this could reduce the defense’s credibility in the jury’s eyes. The backgrounds for the attorneys should be the same, and all the backgrounds for the witnesses should be the same, even if that background is a solid color. Even when they are working perfectly, not all audio devices are created equal. Wearing headphones helps, but that’s a distracting visual for the trial lawyer and witnesses, not to mention yet another device to ensure is working as it should.

We anticipated mental fatigue caused by watching a screen all day long, and the criminal Zoom trial did not disappoint in this respect. While you can have an eight-hour trial day, it is not reasonable or effective for jurors to watch a screen for eight hours. We have all heard stories of jurors falling asleep during voir dire or even in the jury box. If we are being truly honest with ourselves, falling asleep is much more likely if the jurors are comfortably at home, and it will be much harder to wake them virtually. The jurors must be attentive if they are to justly review and judge the evidence presented, and the inherent mental fatigue of watching a screen for several hours prevents this attentiveness.

Practical Problems Unrelated to Video Conferencing

There are practical problems with holding a virtual jury trial that have nothing to do with Zoom or any other video conferencing software. Take the presentation of evidence: A file share program can be set up for the jury, but there is nothing to prevent a juror from downloading that evidence to a personal device or saving a print view. If the jury is permitted to take notes during the trial, how is the bailiff supposed to collect and destroy those notes at the trial’s conclusion? Conversely, what if the jury is instructed not to take any notes and they do? These are issues with any virtual trial setting that do not exist in an in-person jury trial.

Zoom Trials Will Take Longer

Conducting jury trials via Zoom will inevitably prolong trials rather than move them along. In the criminal Zoom trial, the judge estimated that the whole trial, from jury selection to verdict, would be completed by 1:00PM. Instead, the juror check-in process lasted an hour and a half, jury selection was not complete until almost 2:00PM, and it was after 5:30PM before the jury was excused. Most of this was due to the significant technology problems experienced, but it was also much more difficult to ensure the jurors were present and ready to proceed at the beginning, as well as, pausing for and returning from breaks. Remember, this criminal Zoom trial was for a Class C misdemeanor. There were no hot-button issues to tackle during voir dire, each side called one witness each, and the jury was asked to return a verdict on two questions. Now, imagine a catastrophic injury case or a sexual assault trial. Those jury selections oftentimes took all day due to the issues both sides had to cover during voir dire, trials were a week or longer, and the jury is asked to return a verdict on multiple questions or, in some jurisdictions, to determine sentencing in the event of a guilty verdict. The goal might be to get jury trials back up and running, but the result using Zoom is every step taking twice as long.

Conclusion

The biggest legal concern about Zoom trials is that it becomes a slippery slope to eventually losing the right to an in-person jury trial altogether. If Zoom or other video conferencing satisfies the right to a jury trial, what prevents a judge in the future, after we have a vaccine and the worst of the COVID-19 pandemic is over, from deciding against holding an in-person jury trial and announcing all proceedings will be conducted via Zoom? Absent clear and specific laws in place to prevent it, this potentially jeopardizes the right to what is known as a jury trial. This is why you should never agree to a Zoom jury trial – this could spell the end of traditional jury trials forever.

The best argument of all against conducting jury trials via Zoom is that there are some jurisdictions who have already successfully returned to conducting jury trials in-person. There may come a day where holding jury trials by Zoom is the answer, but that day is not today. It probably is not in the near future. Instead, in order to address the backlog of cases rapidly piling up, courts need to take steps to keep jurors, attorneys, judges, and court staff safe. We believe there is no such thing as overcompensating on safety, and that courts are far better off adopting a better-safe-than-sorry approach. It is not only jurors who have underlying medical issues, are pregnant, have partners who are pregnant or have small children at home who are concerned. A recent study discovered that 64 million people, or 20% of the population, lived with multiple generations under one roof (Cohn & Passell, 2018). While most seem receptive to a vaccine, very few individuals want to be the guinea pigs. It is going to take time before most jurors feel safe in public spaces. We can help them feel safe by taking every precaution. 

So what can the courts do to get jury trials back up and running sooner rather than later? First, require everyone, including attorneys and judges, to wear appropriate face masks at all times, and to require they are worn appropriately over the nose and mouth. If someone arrives without a face covering or an inappropriate face covering, the court should be able to provide a suitable face mask. It is worth noting that the CDC does not currently recommend the use of face shields as a substitute for masks (Considerations for Wearing Masks, 2020). Since face coverings do muffle voices, this also means setting up microphones to capture everyone’s voices. In Texas, Harris County has arranged for grand jury proceedings and voir dire to take place at NRG Stadium, where they have installed staggered microphones in-between the socially distanced seats for the jurors. This allows the court to hear everyone without passing around a wireless microphone for everyone to touch. Social distancing must be observed by everyone. It is important to note that face masks and social distancing is not an either/or scenario. The CDC has been very clear that, in public indoor settings, it is highly recommended to wear face coverings as well as observe social distancing whenever possible. This requires everyone’s participation and the court’s enforcement. Additionally, have hand sanitizer readily available and Plexiglas shields should be installed around the bench, witness stand, and jury box, especially in smaller courtrooms where social distancing is difficult or impossible to observe. There are some low-cost to free things than can be done as well, such as limit the number of people in a given area by staggering trials, restricting the number of people can be in the elevator at one time, and setting up socially-distanced lines for the restroom during breaks. It is very troubling to hear of some courts that are not enforcing, or not allowing, the proper safeguards such as masks and social distancing. In order to get trials back on track, we all have a responsibility to be part of the solution, not the problem.

We have truly struggled with deciding whether we oppose or condone virtual jury trials via video conferencing platforms. We believe a line must be drawn. In municipal court cases, small claims, Class C misdemeanors, and similar, it can be a tool in the toolbox. Any case with higher stakes, it’s not only a bad idea, but a very bad idea. Even without the significant technological and practical problems with conducting jury trials by Zoom, you lose the gravity and importance of jury duty when jurors are reporting from their living room instead of to the courtroom.

Veterans and Violence Part 1: Psychological and Neuropsychological Evaluations of Veterans with Posttraumatic Stress Disorder and Traumatic Brain Injury

Introduction

As a result of the pervasiveness of polytrauma experienced in soldiers serving in Operation Enduring Freedom (OEF-Afghanistan) and Operation Iraqi Freedom (OIF), and the recent homicides and violent offenses committed by returning veterans from the Middle East that have gained national attention, there is growing concern of their adjustment to civilian life. Of concern is their risk of future mental health problems, substance abuse, psychosocial adjustment, and risk for suicide, violence, and homicide.

The objective of this two-part article is to discuss the nature and prevalence of traumatic brain injury (TBI) and posttraumatic stress disorder (PTSD) in active military and veterans as well as the forensic psychological and neuropsychological assessment of these conditions in legal matters.

In Part I, the author will highlight the cumulative effects of traumatic brain injury and PTSD on the brain and their relationship to substance abuse and addiction, violence, and ultimately homicidal behavior.

In Part II, the author will apply the forensic assessment of military servicemen/women with TBI and PTSD to legal issues in criminal cases in both Texas and federal courts. The reader should also appreciate that the information in this article also is relevant to civilian PTSD, TBI, and violent offenses.

Nature and Prevalence of TBI in Iraq and Afghanistan Veterans

There is a growing concern regarding combat-related traumatic brain injury in the current conflicts of OEF and OIF. Traumatic brain injury is a common consequence of modern warfare. In these Middle Eastern conflicts, the blast injury has arisen as a new mechanism of brain injury. Blast induced brain injury can cause high rates of sensory impairment, pain issues, and polytrauma including serious brain and medical injuries as well as PTSD.

Recently, the Joint Theater Trauma Registry analyzed wounding patterns and mechanisms of combat wounds from the current conflicts and found an increase in numbers of injuries to the

head and neck region in the current OEF and OIF conflicts.1

A recent study found that 88% of combat-related traumatic brain injuries involved exposure to explosions (improvised explosive devices – IED’s, mortar, mine, and rocket-propelled grenades).2

A study from the Defense and Veterans Brain Injury Center of returning soldiers treated at Walter Reed Army Medical Center indicated that about 60% of those injured by explosion while deployed had a TBI (44% mild TBI, 56% moderate to severe TBI).3 Most of these TBIs occurred when an external force significantly disrupted brain function often with evidence of a period of loss of consciousness (LOC) or alteration in consciousness, including possible confusion and disorientation, as well as loss of memory (amnesia) for events immediately before, during, or after the injury.

When considering combat specific traumatic brain injuries, data from the Navy-Marine Corps Combat Trauma Registry for OIF revealed that being wounded in action was associated with more severe traumatic brain injury (skull fracture in 26% of cases), injury to more areas of the body (polytrauma), and a higher rate of evacuation. 4A recent set of studies of combat injured service members receiving inpatient care at VA polytrauma rehabilitation centers indicated that 97% had a TBI, more than half experienced mental health symptoms including depression and PTSD, as well as issues related to pain.5

Studies have shown that the overall rate of deployment related TBI is more significant and about twice as frequent than non-deployed personnel. TBI screening of specific military populations soon after return from deployment have found rates between 15% and 23% for TBI’s.6 The majority of deployed head injuries are mild in nature related to concussions including alteration of consciousness rather than a complete loss of consciousness or posttraumatic amnesia, yet many veterans returning to the U.S. continue to experience persistent post concussive symptoms.7

The Neuropsychology TBI

Traumatic brain injuries vary between mild, moderate, and severe and about 80% of all TBIs are mild in severity. Mild concussive injuries are the most common type of TBI, and repetitive concussive injuries are a major focus of military medicine due to their prevalence. While moderate and severe TBI’s often have structural injury which can be seen in neuroimaging (MRI, CT scan), complicated mild TBI’s often have structural injury and abnormal neuroimaging while uncomplicated and mild TBI’s such as concussions often do not have structural injuries revealed on imaging.

Those at risk for mild TBI include the following:

  1. Young men ages 15 to 24 years of age.
  2. Individuals of low socioeconomic status.
  3. Individuals who have reckless lifestyles including substance abusers.
  4. African/American and minority status individuals.
  5. Individuals living in high crime areas.
  6. Individuals with a history of ADHD, low IQ, and/or substance abuse.

Many veterans qualify for a number of these demographic risk factors prior to their admission to the military. The factors most significant in differentiating severities of traumatic brain injury include acute injury characteristics such as duration of unconsciousness and amnesia as well as neurological status in areas of motor function, verbal responding, and response to external commands and stimuli.8

Neuropsychological and emotional sequelae or effects after TBI germane to post-concussive syndrome include the following:

  1. Disorientation and confusion.
  2. Attention, concentration, and processing speed deficits.
  3. Short-term memory deficits.
  4. Executive functioning deficits.
  5. Fatigue and lethargy, lack of motivation.
  6. Sleep disturbance.
  7. Delayed motor/verbal responses.
  8. Language/communication deficits.
  9. Substance abuse.
  10. Depression.
  11. Irritability and aggression.
  12. Impulsivity.
  13. Problems with balance
  14. Headaches and chronic pain.
  15. Impaired hearing and vision
  16. Sensitivity to light and noise
  17. Difficulties in word finding
  18. Personality changes
  19. Social isolation

Recent studies of Army soldiers specify that most brain injuries are mild in severity and blasts were by far the most common mechanism of injury (88%).9 Researchers concluded that TBI may result from primary, secondary or tertiary effects of blast exposure which refer to the direct effects and injuries of the blasts.10

Chronic traumatic encephalopathy (CTE) has become popular in the literature of athletic concussions, and this type of brain injury may also be related to veterans with a history of multiple concussions or subconcussive blows to the head.

Importantly, blast exposed veterans report higher levels of PTSD than those with non-blast mild traumatic brain injuries, and therefore a history of polytrauma is common in many veterans exposed to Middle East war related combat.11

DSM-5 and TBI

The DSM-512 added a mild neurocognitive disorder associated with traumatic brain injury diagnosis which is caused by an impact to the head or other mechanisms of rapid movement or displacement of the brain in the skull as can happen with blast injuries. The mild neurocognitive disorder diagnosis includes primarily evidence of modest cognitive decline from a previous level of performance in one or more cognitive domains (complex attention, executive function, learning and memory, language, perceptual-motor, or social cognition) based on concern of the individual, a knowledgeable informant, or the clinician that there has been a mild decline in cognitive function; and a modest impairment in cognitive performance, preferably documented by standardized neuropsychological testing or, in its absence, another quantified clinical assessment. The cognitive deficits do not interfere with capacity for independence in everyday activities (i.e., complex instrumental activities of daily living such as paying bills or managing medications are preserved, but greater effort, compensatory strategies, or accommodation may be required).

In contrast, major neurocognitive disorder is characterized by a significant decline from a previous level of performance and the cognitive deficits must result in a need for assistance with complex instrumental activities of daily life, such as paying bills or managing medications, or otherwise interfere with independence.

Prevalence of PTSD in Veteran Populations

The psychiatric condition of PTSD has long been a significant hallmark of the psychological effects of war. War related PTSD includes a history of witnessing and/or experiencing traumatic events that led to several cognitive, emotional, and behavioral effects at the time of and following the traumatic event(s).

For decades, PTSD was considered more of a psychiatric rather than a neuropsychiatric disorder. Not until recently has there been more of a focus on the structural and functional brain effects of PTSD. In fact, PTSD is associated with regional alterations in brain structure and function that contribute to symptoms of neurocognitive deficits associated with the disorder. A recent meta-analytic study found significant neurocognitive effects associated with PTSD with the largest in verbal learning, followed by speed of information processing, then attention/working memory, followed by verbal memory.13

Researchers estimate the prevalence of PTSD to be about 9% at pre-deployment with post-deployment rates of 12% and 18% for OEF and OIF troops.xii Reservists and National Guard members have often been found to have a higher probable PTSD prevalence than active duty soldiers. The following risk factors place individuals including military personnel at risk for PTSD:

  1. History of childhood trauma and adversity.
  2. Witnessing others wounded or killed.
  3. Lower IQ.
  4. Low socioeconomic status.
  5. Family history of psychiatric illness.

Number one is a notable risk factor, as early trauma is predictive of later trauma.

DSM-5 and PTSD

The DSM-5 made thoughtful revisions for the assessment of veterans, especially those who commit violent offenses. The diagnosis continues to include exposure to actual or threatened trauma, presence of intrusive symptoms, persistent avoidance of stimuli associated with the traumatic event, negative alterations in cognitions and mood associated with the traumatic event, and marked alterations in arousal and reactivity associated with the traumatic event. The changes in arousal and reactivity include irritable or aggressive behavior and reckless self-destructive behavior that are significant alterations and are related to physiological reactions and potential aggression and violent acts by veterans.

The DSM-5 PTSD diagnostic criteria are below:

A. Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:

  1. Directly experiencing the traumatic event(s).
  2. Witnessing, in person, the event(s) as it occurred to others.
  3. Learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental.
  4. Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g., first responders collecting human remains; police officers repeatedly exposed to details of child abuse).
    • Note: Criterion A4 does not apply to exposure through electronic media, television, movies, or pictures, unless this exposure is work related.

B. Presence of one (or more) of the following intrusion symptoms associated with the traumatic event(s), beginning after the traumatic event(s) occurred:

  1. Recurrent, involuntary, and intrusive distressing memories of the traumatic event(s).
    • Note: In children older than 6 years, repetitive play may occur in which themes or aspects of the traumatic event(s) are expressed.
  1. Recurrent distressing dreams in which the content and/or effect of the dream are related to the traumatic event(s).
    • Note: In children, there may be frightening dreams without recognizable content.
  1. Dissociative reactions (e.g., flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring. (Such reactions may occur on a continuum, with the most extreme expression being a complete loss of awareness of present surroundings.)
    • Note: In children, trauma-specific reenactment may occur in play.
  1. Intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).
  2. Marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).

C. Persistent avoidance of stimuli associated with the traumatic event(s), beginning after the traumatic event(s) occurred, as evidenced by one or both of the following:

  1. Avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).
  2. Avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).

D. Negative alterations in cognitions and mood associated with the traumatic event(s), beginning, or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:

  1. Inability to remember an important aspect of the traumatic event(s) (typically due to dissociative amnesia and not to other factors such as head injury, alcohol, or drugs).
  2. Persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (e.g., “I am bad,” “No one can be trusted,” “The world is completely dangerous,” “My whole nervous system is permanently ruined”).
  3. Persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead the individual to blame himself/herself or others.
  4. Persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame).
  5. Markedly diminished interest or participation in significant activities.
  6. Feelings of detachment or estrangement from others.
  7. Persistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings).

E. Marked alterations in arousal and reactivity associated with the traumatic event(s), beginning, or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:

  1. Irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects.
  2. Reckless or self-destructive behavior.
  3. Hypervigilance.
  4. Exaggerated startle response.
  5. Problems with concentration.
  6. Sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep).

F. Duration of the disturbance (Criteria B, C, D, and E) is more than 1 month.

G. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.

H. The disturbance is not attributable to the physiological effects of a substance (e.g., medication, alcohol) or another medical condition.

Specify whether:

With dissociative symptoms: The individual’s symptoms meet the criteria for posttraumatic stress disorder, and in addition, in response to the stressor, the individual experiences persistent or recurrent symptoms of either of the following:

  1. Depersonalization: Persistent or recurrent experiences of feeling detached from, and as if one were an outside observer of, one’s mental processes or body (e.g., feeling as though one were in a dream; feeling a sense of unreality of self or body or of time moving slowly).
  2. Derealization: Persistent or recurrent experiences of unreality of surroundings (e.g., the world around the individual is experienced as unreal, dreamlike, distant, or distorted).
    • Note: To use this subtype, the dissociative symptoms must not be attributable to the physiological effects of a substance (e.g., blackouts, behavior during alcohol intoxication) or another medical condition (e.g., complex partial seizures).

Specify if:

With delayed expression: If the full diagnostic criteria are not met until at least 6 months after the event (although the onset and expression of some symptoms may be immediate).

As can be seen, the PTSD diagnosis reflects the DSM’s emphasis with veterans, and highlights autonomic arousal symptoms that may be related to aggression to people, irritability, recklessness, self-destructive behavior, hypervigilance, and paranoia. Further, the issue of dissociation explained below is important to consider and analyze, as many offenders have out of mind/body states that occur during their aggressive acts.

Polytrauma/Complex Trauma

Critical to examinations of military defendants is the issue of polytrauma. Many servicemen experienced numerous (poly) life-threatening traumatic events which have adversely affected their physical, psychological, emotional, behavioral, and cognitive functioning and well-being. Many military defendants possess a history of risk factors before military service, including a history of trauma, and specifically polytrauma and complex trauma. The cumulative effects of multiple traumatic events take a toll on an individual who may return to a high stress environment when they return to civilian life.

Complex trauma is the exposure to traumatic stressors including poly-victimization, life-threatening accidents or disasters, and interpersonal losses. Complex trauma often is related to deficits in attachment/bonding to parent(s), abuse and/or neglect, and adversely affects early childhood biopsychosocial development placing the youth at risk for a range of serious problems (e.g., depression, anxiety, oppositional defiance, risk taking, substance abuse) and may lead to aggression. It is also associated with an extremely problematic combination of persistently diminished adaptive arousal reactions; episodic maladaptive hyperarousal; impaired information processing and impulse control; self-critical and aggression-endorsing cognitive schemas; and peer relationships that model and reinforce disinhibited reactions, maladaptive ways of thinking, and aggressive, antisocial, and delinquent behaviors.14

It is imperative to appreciate the military veteran and the pride of the profession and impact of peer influence. Many veterans returning from foreign wars tend to be loyal to their country and their service and desire to return to action. Subsequently, they often minimize and or completely deny any symptoms of PTSD and TBI, as they do not want to put their service and chance to return to war in jeopardy. Further, they often have never been examined for TBI and PTSD issues while in theatre and emphasize loyalty and duty rather than self-care.

Similarly, while the government offers TBI and PTSD screening upon return from war, many serviceman refuse such assessments and there is a peer influence quality to this refusal of assessment and treatment as they do not want to be perceived as emotionally or physically weak. Many also want to pursue other positions, posts, or governmental agency duties and positions and do not want to have any mental health assessment records following them. Unfortunately, instead of being on the road to healing through proper assessment and treatment, they tend to turn to alcohol and drugs as a numbing coping and self-medication effect.

The returning veteran with a history of polytrauma/complex trauma often will ignore, minimize, and/or lack insight into their affected emotional, cognitive, and behavioral functioning and unfortunately will not be identified and/or seek appropriate treatment and rehabilitation.

Comorbidity of TBI and PTSD

The term comorbidity relates to the simultaneous presence of two chronic diseases, conditions, or illnesses in a patient, meaning that the individual is experiencing more than one condition at the same time.

The Rand study of post Iraqi military deployment (OIF) reported a high rate of co-occurrence between a history of mild TBI, PTSD, and depression. Of those experiencing a mild TBI, about 33-44% had overlapping PTSD or depression. On examination of multiple potential predictors of PTSD, researchers found only combat intensity and mild TBI with loss of consciousness were associated with PTSD.15 The authors found that PTSD is strongly associated with mild traumatic brain injury in that 43.9% of soldiers reporting loss of consciousness from TBI met the criteria for PTSD.

Mild TBI may diminish the capacity to employ cognitive resources that would normally be engaged in problem-solving and regulating emotions after trauma, thereby leaving an individual more susceptible to PTSD and related problems.16

Ultimately, mild TBI likely increases the chance of developing PTSD. Critical to the issue of comorbidity and the co-occurrence of mild TBI and PTSD in veteran populations, is the additional prevalence of major depression and substance abuse and addiction. PTSD and depression are related to violence towards self, including suicide, and violence towards others.

Substance Use and PTSD/TBI

Unfortunately, many veterans have both PTSD and TBI and are at more significant risk for using and abusing substances due to the aggregate effect of having both disorders. Critical to the mental health assessment of the veteran, is a dual-diagnostic consideration with emphasis not only on chronic history of substance use but also of PTSD and trauma. Anger, hostility, and violence have cognitive, affective, and behavioral components which are related to the effects of PTSD, TBI, depression, and substance use. The use of substances is a coping mechanism to curb the negative emotional states that veterans often suffer. Substances, especially depressants such as alcohol, are often utilized to self-medicate the often hyperaroused emotional and cognitive state that is related to PTSD.

Combat exposure and history of childhood abuse appear to manifest their influence on criminal and aggressive behavior through increase in substance use and mental health problems.17 It is critical for the mental health examiner to assess not only the PTSD but the prevalence and severity of depression and addiction.

Research has documented a strong relationship between co-occident PTSD and substance use problems in civilian and military populations of both genders.18 Similarly, there are high rates of PTSD among veterans seeking substance use treatment because those with PTSD are likely to use and abuse substances to cope with her emotional and psychological trauma. In fact, men with PTSD are five times more likely to have a substance use disorder compared to the general population. Patients with substance use disorders and PTSD may be at high risk for relapse, and their relapses may be triggered, in part, due to the trauma reminders and cues.

Similarly, traumatic brain injury is also common among those who misuse substances.19 Alcohol and drug abuse are major risk factors for those with TBI. A recent summary of studies of those with non-penetrating TBIs with and without substance use disorders revealed that those with both TBI and substance use disorder had poor neuroradiological outcomes, including reduced hippocampal and gray matter volumes, and enlarged cerebral ventricles. Executive function and memory were moderately affected, but attention and reasoning were not. Emotional functioning was worse in those with both TBI and substance use versus TBI only.20

Unfortunately, the neurobiology of substance use and misuse also affects critical frontolimbic brain systems involved that are some of the same brain areas affected by traumatic brain injury and PTSD. 21

Neuropsychological Assessment of Veterans

When considering neuropsychological assessment of veterans, the neuropsychologist will evaluate relevant areas:

  1. Auditory and visual attention.
  2. Processing speed and working memory.
  3. Auditory/verbal memory and visual memory.
  4. Executive functioning (planning, reasoning, mental set shifting, problem solving, mental flexibility, disinhibtion, and impulse control)
  5. Visuospatial constructional abilities and sensory perception.
  6. Language abilities.
  7. Intelligence.
  8. Emotional intelligence.
  9. PTSD and psychological functioning.
  10. Cognitive effort.

The brain behavior functions that are affected in PTSD and TBI are often very similar. When considering neuropsychological testing of TBI, obviously the specific area injured in the brain impacts the area of functional deficit. Severe TBI’s involve considerable forces, often through blasts in war producing widespread cellular death and dysfunction with clear global neurocognitive functional consequences. Traumatic brain injury affects the cognitive, emotional, psychological, and physical functioning of an individual.

Of particular interest is the observation that the orbital prefrontal cortex and related circuitry are vulnerable to damage associated with TBI which likely account for the prevalence of executive deficits after TBI and contributes to the high rates of behavioral and emotional dysregulation.22

Neuropsychological testing of TBI often indicates deficits in attention, processing speed, executive functioning, and memory loss.

Similarly, there is a growing body of evidence that suggests that neurocognitive alterations occur in PTSD patients.23 Individuals with PTSD often perform less proficiently on learning and memory tasks with impairments more frequently found in the verbal memory domain.24Attention and executive functioning impairments are often indicated in those with PTSD.25 PTSD is also characterized by impaired executive dyscontrol including increased perseveration and poor inhibition of inappropriate responses. Veterans often perform more poorly on continuous performance tasks that measure sustained visual attention as well as on tasks of working memory.

When considering brain structure, the hippocampus and the medial prefrontal cortex are often less responsive in those with PTSD leading to decreased inhibition of the amygdala. Amygdala hyper-reactivity is thought to account for heightened behavioral arousal and exaggerated responses to stimuli that are perceived to be associated with danger or threat which can often lead to aggressive or violent acts.

Violence in Veterans

Veterans returning from deployment are at risk to have a number of risk factors related to psychosocial adjustment and potential future violence:

  1. Histories of childhood abuse and neglect.
  2. Lower socioeconomic status.
  3. Potential lower levels of intelligence.
  4. Lower rank.
  5. Histories and current status of substance abuse and dependence.
  6. Prevalence of mental health issues including PTSD, depression, suicidal, and paranoid thinking.
  7. History of TBI and other medical problems.
  8. Frequent history of exposure to and proficiency in weapons.
  9. Prevalence of social isolation and interpersonal/marital dysfunction when returning from war.
  10. Unemployment and homelessness.


These risk factors can act in a cumulative manner in that the more risk factors that one is exposed to, the more likely a negative outcome.

Arrests in veterans are found to be significantly related to younger age, male gender, having witnessed family violence, prior history of arrests, alcohol and/or drug misuse, and PTSD with high anger/irritability more so than even the presence of combat exposure or TBI.26

Critically to this population, a polytrauma clinical triad (PTSD, TBI, and chronic pain) can be linked to suicidal ideation and violent impulses.27 In fact, suicidal ideation and violent impulses are correlated with PTSD, as well as the combination of TBI and PTSD, pain intensity and interference, drug abuse, and major depressive disorder.

Aggressive behaviors are common amongst veterans with PTSD, and within the first year after deployment, 48% of returning veterans with PTSD reported engaging in physical aggression and 20% reported in engaging in severe violence.28

Factors associated with physical aggression among U.S. Army Soldiers studied from surveys collected six months post-deployment measuring overt aggressive behavior found that aggressive behavior was associated with:29

  1. Highest level of combat intensity
  2. Misuse of alcohol
  3. Diagnosis of PTSD
  4. TBI
  5. Depression
  6. Prior altercation with significant other
  7. Lowest rank (E1-E4)

There were a relatively higher number of minor and severe physical overt aggressive actions reported among soldiers who were previously deployed, notably highest among deployed soldiers reporting the highest levels of combat intensity. Soldiers screening positive for the misuse of alcohol were also significantly more likely to report relatively higher levels of physical aggression.

In a recent study, a large percentage of previously deployed soldiers reported aggressive behaviors after returning home, for example, they: “get angry with someone and kick, smash, or punch something” (43%), “threaten someone with physical violence” (38%), or “get into a fight with someone and hit the person” (18%). 30Studies have focused on spousal aggression which found the prevalence to be significantly higher among soldiers than their civilian counterparts.31 The leading reason is the prevalence of the condition of PTSD. The condition of PTSD is related to not only aggression, but violent thoughts, ownership of a deadly weapon, paranoia, and tendency to have intoxicated states.

Research has revealed heightened aggressive behavior among veterans with PTSD.32 There are higher rates of aggressive behaviors seen in those with PTSD compared to those without PTSD (13.3 violent acts in the prior year compared to 3.54 acts for the prior year).33

Studies of veterans demonstrate a positive relationship between combat exposure and measures of aggression as combat may model and reinforce violence. Combat exposure, PTSD symptoms, and participation in killing have significant effects on aggressive behavior in veterans, especially violence to self, spouse, and others. PTSD is correlated with an onset of destruction of property, violence to persons, violent threats, ownership of multiple firearms, knives, aiming guns at family members, considering suicide with firearms, and loading guns with the purpose of suicide in mind.34 These facts suggest a tendency for veterans to be at risk to be violent towards self and others.

A recent study examined the risk of recidivism among justice-involved veterans.35 They found substance abuse and indicators of antisociality were linked to justice involvement in veterans, yet the evidence for negative family/marital circumstances and lack of positive school and work involvement as risk factors was mixed. PTSD and traumatic brain injury, particularly when combined with anger and irritability issues, may be veteran-specific risk factors for violent offending. Other violence risk factors include combat exposure and PTSD, TBI, and homelessness/poverty.

The authors emphasized that combat exposure PTSD is particularly relevant with a history of violent offending among veterans, especially if they are exacerbated by other factors such as substance abuse and anger. They noted that traumatic brain injury is often associated with problematic behavioral and personality changes including impulsivity, aggression, low frustration tolerance, and problem-solving deficits.

The authors cited the most recent estimates indicate that ten percent of those incarcerated in federal prison have a history of U.S. military service.36

Another study examined PTSD symptoms in family versus stranger violence in Iraq and Afghanistan veterans.37 Of those veterans studied, 13% reported aggression toward a family member and 9% toward a stranger during the one-year study period.

PTSD and Violence

Three domains of functioning are influenced by PTSD symptoms including cognition, physiological arousal, and emotions. Changes in cognition include flashbacks such as altered consciousness. Traumatized individuals tend to misperceive threat towards themselves or others in their environment. They often hold extreme beliefs about justice based on their traumatic experiences. They may believe in a need for retribution to remedy perceived wrongdoings and disregard authority or display an indifference in the law because of prior perceived and actual abuse by authority figures.

Heightened psychophysiological arousal includes evidence of anger and irritability such as hyperarousal symptoms producing the survival response of fight or flight when faced with situations perceived to be dangerous. Hypervigilance includes the person always being on guard and suspicious of their environment even to the point of having paranoid thoughts. Exaggerated startle response may include the person reacting instinctively or impulsively to threatening stimuli. Emotional reactions include psychological distress in which individuals with PTSD have heightened stress influencing their mental ability to make well-reasoned responses. Heightened emotions are often common with those with PTSD including elements of anxiety, fear, anger, shame, and depression and ultimately substance abuse to deal with these emotions.

Emotional numbing symptoms of PTSD may include diminished empathy for the victim, lack of remorse, and difficulties appreciating the severity and consequences of one’s behaviors. Furthermore, while many veterans attempt to escape and avoid distressing and trauma related thoughts, images, and negative emotions, this suppression increases sympathetic activation, ultimately making it more difficult for veterans to regulate and control emotions when they are triggered.38

It is imperative for the forensic expert and attorney to appreciate how PTSD is specifically related to emotional and behavioral dysregulation as an underlying mechanism of impulsive aggression.39

Veterans with PTSD have heightened neural and physiological responses to both trauma-related and neutral stimuli, indicating they have difficulties distinguishing between safe and potentially unsafe (trauma-related) people and places.40 Unfortunately, many veterans return from deployment and continue to interpret environmental events and people as dangerous, unsafe, and threatening, and their emotional regulation resources are overtaxed, and emotions may be difficult to control.41 The condition of PTSD places a veteran at risk to be in a state of hyper-aroused activation and to misperceive an environmental event as stressful and threatening leading them to react in an impulsive and aggressive manner.

PTSD symptoms are particularly relevant for understanding violence risk.42 Re-experiencing symptoms such as flashbacks have some connection with aggression. They stress the dissociative nature and detachment from reality that may be involved with violence as a sufferer of PTSD may commit an act of aggression while re-experiencing the trauma. In fact, re-experiencing and flashback-type symptoms recently have been reported to be positively related to aggressive or impulsive behavior.43 Numbing symptoms and avoidance may also be strong predictors of violence.44 Escape avoidance and emotionally distancing from others have been shown to be positively related to aggression and hostility. Excitation and hyperarousal response-like symptoms are also related to violence.45

Those with PTSD are typically physiologically aroused and will have an intensified state of anger and aggression. Physical reactions to triggers from the trauma including elevated heart rate, sweating, and physical tension are related to a high rate of aggression. Hypervigilance and paranoia, even to a level of psychosis, are not uncommon. Hyperarousal and dissociation type psychotic symptoms may place an individual at risk for aggression due to the connection of paranoia and threat/control override symptoms that appear in psychotic disorders. Misperceived threats and paranoia are significant to a risk of violence.

When considering neuropsychological aspects of the cognition of PTSD and risk for violence, it is noted that the need for physiological arousal and stimulation may lead to reckless and aggressive behavior. Many combat veterans return to the U.S. and have become accustomed to the variability in stress, action, and stimulation that combat brings them. This heightened stimulation changes the structure and function of the brain in areas critical to impulse control. Ultimately, they return to the U.S. with a “need for speed” in that their brain’s structure and functioning has changed, and they crave stimulation and arousal that they have been accustomed to in war and are prone in reacting recklessly and impulsively.

TBI and Violence

Traumatic brain injury is a complex injury resulting from an external force that often results in a change in brain function. Aggression is a common neuropsychiatric sequelae of TBI, and again a relationship between TBI and aggression has been found in veterans.46 A recent neuroimaging study found a difference between men and women with TBI and aggression, such that male veterans with TBI reported significantly more physical aggression, revenge planning, and urges to engage in physical violence.47

Acute post-concussive aggression and violence is often referred to as behavioral dyscontrol (including hesitation, impulsivity, disinhibition, restlessness, irritability, mood lability, and explosive behavior).

Posttraumatic aggression is often reactive in nature pertaining to the organic aggressive syndrome which describes aggressive behavior that is reactive and typically provoked, even by trivial stimuli. Such aggression is non-reflective, unplanned, non-instrumental with no clear objective, and is typically impulsive, explosive, occurring acutely without buildup, and is often egodystonic in nature in that the individual did not intend on the violent act, it was more impulsive, and the offender feels bad about their behavior.48

In contrast, posttraumatic aggression may also be considered as instrumentally objective in motive, being purposeful but unplanned, such as responding to perceived threat or acting in self-defense. Both types of aggression are consistent with TBI and PTSD.

The neuroanatomy of aggression considering traumatic brain injury includes primarily the frontal and temporal lobes, which are susceptible to injury and damage from contact and forces to which the brain is subjected during biochemical trauma.49

Traumatic brain injury is known to tear, shear, and strain brain neurons and injure white matter in a number of important areas that relate to brain behavior function, including potentially most importantly, executive functioning.

The frontal lobes are the last area of the brain to develop and are crucial in higher order cognitive processes pertaining to the regulation of emotion and behavior. Critical areas of the prefrontal cortex are responsible for executive functioning pertaining problem solving, planning, sequencing and processing information, abstraction, considering of consequences, judgment, inhibition, learning from punishment and considering behavioral risk and reward, and empathy for example. Biochemical neurotransmitters of the brain in the frontal lobe areas may be negatively altered and are related to mediation and balance of cognition and emotional behavior.50

Neuropsychological components of violence in veterans, deficits in information processing and the activation of highly arousing emotional memory networks associated with combat trauma leave veterans at risk for aggression. Response information as part of an activated memory structure toward perceived threat can trigger a survival mode of functioning which can include aggressive responding. Many veterans experience an arousal regulation deficit in which they cannot regulate their psychophysiological arousal and are at risk for physical acting out when feeling threatened.51

PTSD, TBI, the Brain, and Violence

When considering both PTSD and TBI and neuropsychological functioning, studies of aggression and violent behavior are focused primarily on the frontal, prefrontal, and temporal brain regions.

Prefrontal regions are involved in modulating and controlling emotional interpersonal behaviors and inhibiting temporal lobe areas especially the amygdala and other limbic regions involved in expression of aggressive drives.52

Research has revealed that PTSD and persistent post-concussive symptoms from TBI are related to most forms of partner and non-partner aggression.53 In another study, veterans with TBI and concurrent anger/irritability were more likely to be arrested than those with TBI but without concurrent anger and irritability.54

Furthermore, veterans with history of PTSD and/or TBI are at risk for volumetric measures of brain magnetic resonance imaging (MRI) with decreased hippocampal and amygdala (limbic system) volumes compared to controls as well as reduced blood flow in the frontal (executive) and temporal areas. All these brain regions are critical in neurocognitive functioning related to memory formation, executive functioning, emotional and behavioral dysregulation, and violence.

A recent study looked at long term associations among PTSD symptoms, traumatic brain injury, and neurocognitive functioning in Army soldiers deployed to the Iraq war.55 They found that increases in PTSD symptom severity at different intervals post-deployment were associated with poor verbal and/or visual recall and memory at the end of each interval and less efficient reaction time at post-deployment. Traumatic brain injury was associated with adverse PTSD symptom outcomes at both post-deployment and long-term follow-up. The authors found that longitudinal and long-term relationships among PTSD symptoms, TBI, and neurocognitive decrements may be due to sustained emotional and neurocognitive symptoms over time.

Importantly, PTSD should be considered as a neurobiopsychosocial disorder involving alterations in neural and brain functioning. PTSD may erode and break down potentially resilient enhancing cognitive resources such as learning and memory as the PTSD symptoms increase in severity. The more severe the PTSD condition is, the more likely it will lead to neurocognitive and emotional impairments. Additionally, having a history of traumatic brain injury also will aggravate PTSD symptomatology.

In another recent study, the author researched variables explaining cognitive complaints among OEF/OIF/OND veterans with a remote history of blast-wave mild traumatic brain injury.56 Despite good prognosis with mild TBI, at least a third of veterans with a history of mild TBI reported post-concussive symptoms inclusive of cognitive complaints. While veterans typically rated executive functioning prior to deployment as intact, over 80% rated their post mild TBI executive function problems as clinically significant. The authors found that current PTSD symptoms were associated with self-reported decline in executive functioning. While veterans often will rate their neurocognitive functioning as significantly impaired post head injury, even with intact neuropsychological testing results, the neurocognitive complaints are often subsumed within the symptoms of PTSD, since PTSD symptoms typically account for most of the perceived and functional neurocognitive decline in veterans.57

The prevalence of traumatic brain injury in offender populations is quite significant and prison studies consistently indicate that approximately 50% of offenders have self-reported histories of traumatic brain injury with evidence of loss of consciousness.58 Similarly, the prevalence of posttraumatic stress disorder is quite high in the offender population, with up to 27% for male and 38% for female prison populations having the disorder.59 It should be noted that many servicemen who experience mild TBI also experience PTSD and neurocognitive deficits may stem from both, but they are more consistently accounted for through the PTSD lens.

Veterans are at risk for a number of mental health problems such as PTSD, alcohol and drug abuse, head injuries, and there is a cumulative risk to violence with the collection of those disorders affecting one’s cognitive, emotional, and behavioral functioning. Imperative to the assessment of active military and veterans in relationship to risk and violence, veterans are at jeopardy for a number of mental health concerns and polytrauma. The polytrauma combination of PTSD, TBI, pain intensity, as well as substance abuse and major depressive disorder leave veterans at serious risk for suicidality, violence, and homicidality.60

While it is vital for the forensic expert to have a good handle on risk factors for violence in veterans, they also must have an appreciation of the protective mechanisms relevant to the prevention of violence and aggression in veterans.61 Many of these factors include steady work, resilience, social support, report of no physical pain, ability for self-care, healthy sleep, perceived self-determination, and having needs met. Therefore, emphasis on VA rehabilitation programs and interventions to reduce homelessness, retrain veterans for civilian work, enhance financial literacy, and improve social supports are likely to reduce violence among veterans. Obviously, many veterans have a multitude of risk factors and therefore require a variety of rehabilitative efforts.

Fight/Flight

The fight/flight sensory perception>emotional>and behavioral response system is critical to the veteran who has PTSD and or TBI history and their legal defenses.

Humans, like all species, have self-protective mechanisms to help us survive. Our fight/or/flight response system is based on a survival mechanism that allows people to react quickly to acute life-threatening situations and is designed to mobilize our brain and body to fight an enemy, run from an avalanche, or freeze to hide from a predator. There are a host of hormonal and neurophysiological affects and responses that interact to assist someone in fighting the threat or fleeing to safety.

Our brain sometimes misinterprets safe situations as dangerous and can set off false alarms. When the amygdala, our brain’s watch dog, senses danger, our body enters survival mode quicker than our rational mind can react, trying to figure out why we feel in mortal danger.

Individuals with chronic PTSD and/or traumatic brain injuries can misperceive and overreact to stressors that may not be life threatening. The heart of the limbic and emotional system of the brain is the amygdala, which plays significant roles in emotional responses (fear, anxiety, and depression), as well as development of emotional memories and decision making. It is essentially an alarm system that processes threat and danger.62 In distress it sends a message to the hypothalamus, which is a command center of the brain.

When considering the brain structure and function in the fight/flight response system, the hypothalamus of the brain as a command center that communicates with the rest of the body through the automatic nervous system (sympathetic and parasympathetic nervous systems). The sympathetic nervous system functions as if it was a gas pedal in the car triggering the fight or flight response leading to heightened arousal to perceived dangers while the parasympathetic nervous system is the brakes and is described as the “resting and digesting” response system that calms the body down after the danger leaves. There are a number of hormones that are active in this alarm, gas, and brake system.

Many military veterans and criminal defendants in general have evidence of PTSD and traumatic brain injuries, and chronic substance use and intoxicated states at the time of violent offenses that compromise and haywire this fight/flight threat response neuropsychiatric system. There may be a number of symptoms and functional impairments that forensic psychological and neuropsychological examinations can detect regarding the psychiatric diagnoses and brain injuries that must be explored in the context of the situation, environment, and perception of the defendant at the time of their aggressive act.

Both PTSD and TBI symptoms and impairments can lead to a dysfunctional brain. Emotional trauma through PTSD and traumatic brain injuries can place a brain at risk for an overstimulated amygdala and highly alert system perceiving threat everywhere, along with a damaged and dysfunctional frontal lobe system that impedes proper executive functioning regarding problem solving, planning, appreciation of consequences, and impulse control for example. Unfortunately, substances such as methamphetamine, alcohol, and other drugs critically affect brain reward systems that are in part the same areas that are affected and damaged by PTSD and TBI.63 Therefore, there often is a triple threat in violent offense cases regarding PTSD and trauma, brain dysfunction, and the acute and chronic effects of substance use.

Part II of this article in the next edition of the Voice will address forensic psychological and neuropsychological evaluations in military cases with PTSD and TBI. I will examine legal defenses that may be applicable in state and federal cases as well as mitigation and treatment issues with the veteran.

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