Evidence and Criminal Procedure

The Governor’s reason for vetoing the expunction bill:

House Bill No. 3481 would authorize the expunction of criminal records, including law enforcement case files, 180 days after an arrest if no formal misdemeanor or felony charges have been filed. Current statutory provisions require that the statute of limitations for the particular offense, usually at least two years, expire before criminal records may be destroyed, including in cases involving misdemeanor offenses.

Actually, those statutory provisions were not put in place to deny folks the opportunity to expunge dismissed cases. It was the activist (as well as 100% Republican) Texas Supreme Court decision, State v. Beam, that incorrectly interpreted the legislature’s 2001 amendment’s to Code of Criminal Procedure Chapter 55.01 dealing with expunctions.

Continue Reading Rick Perry’s Definition of “More Harm Than Good”

It’s been twenty years. Two years after the 1989 murder of a Georgia police officer, Troy Davis was convicted and sentenced to die for the crime. He has still, eighteen long years later, still not been executed.

Former federal prosecutor and noted softie Bob Barr writes an op-ed piece in the NYT:

There is no abuse of government power more egregious than executing an innocent man. But that is exactly what may happen if the United States Supreme Court fails to intervene on behalf of Troy Davis.

Mr. Davis is facing execution for the 1989 murder of an off-duty police officer in Savannah, Ga., even though seven of the nine witnesses have recanted their testimony against him. Many of these witnesses now say they were pressured into testifying falsely against him by police officers who were understandably eager to convict someone for killing a comrade. No court has ever heard the evidence of Mr. Davis’s innocence.

Continue Reading Kill Him Already

Murray Newman asks “Where’s My Offense Report?” and several commenters, including Grits, chime in.

I initially rejected the idea of writing a post on this topic because I think it’s stupid. (Although I like Bennett’s tangent on ethics.) The defense ought to get Xeroxed copies of offense reports. This whole “we can’t give it to you because your scumbag client is going to nuke us all if we do” argument is… stupid and tiresome and I’ve blogged on it before. Like Scott, I can only write the same thing so many times without boring myself.

Besides, Travis County has a decent if imperfect system where defense lawyers get ORs in most cases. Perfect, if you have to ask, would be getting it in every every every case.

So I was going to skip it, until this last comment caught my eye:

Grits, the OR never gets entered into evidence…therefore, it does not become a public record. Even if we do win a case.

Apparently this anonymous prosecutor never read Texas Rule of Evidence 614, or had it used against him:


If a witness uses a writing to refresh memory for the purpose of testifying either

(1) while testifying;

(2) before testifying, in civil cases, if the court in its discretion determines it is necessary in the interests of justice; or

(3) before testifying, in criminal cases;

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. [Emphasis Added]

If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portion not so related, and order delivery of the remainder to the party entitled thereto.

Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal.

If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

It doesn’t happen often, but I have had occasion to introduce an offense report after a police officer used it to “refresh his memory”. The reason it doesn’t occur frequently is that it’s only the adverse party that can do this, and as you might expect, police reports don’t always contain gems for the defense.

Except sometimes they do. I’ve got a case pending right now with what Bennett likes to call the “Nasty Little Surprise”. It’s a possession of marijuana case where I can prove that at least one very important line in the OR is a complete fabrication on the part of the officer. It’s not even necessary that the witness deny making the statement; simply that he refreshes his memory with the document, which he certainly will do.

So, if you want to, have it admitted. And allow yourself an extra chuckle if the prosecutor wasted some of his voir dire on “Why you the jury aren’t allowed to see the police report”.

How likely are you to believe you saw something that didn’t happen? Depends on the circumstances, of course.

The January 2009 issue of Psychological Science includes a study titled “Recalling a Witnessed Event Increases Eyewitness Suggestibility: The Reversed Testing Effect”. 

Studies have already shown that receiving misinformation about witnessed events prior to recall would distort perception. The abstract of the article starts with this documented fact:

People’s later memory of an event can be altered by exposure to misinformation about that event. The typical misinformation paradigm, however, does not include a recall test prior to the introduction of misinformation, contrary to what real-life eyewitnesses encounter when they report to a 911 operator or crime-scene officer.

So if you are given false information about what you saw before you start to tell your version… you’re likely to mess up the “details”. Common sense stuff. But, as is pointed out, that’s not likely to happen at a crime scene.

The authors of the article initially hypothesized that if you gave misinformation to two different sets of people about something they witnessed, letting one group tell their version before being given false details would enhance the reliability of their later recall:

Because retrieval is a powerful memory enhancer (the testing effect), recalling a witnessed event prior to receiving misinformation about it should reduce eyewitness suggestibility.

Again, it’s common sense. Who hasn’t experienced that sense of urgency? When you know you want to remember something, you start getting the details down. Maybe you tell someone; maybe you just start repeating the stuff in your head. But everyone knows that the sooner you try to recall something, the better you’ll remember it.

Except it ain’t so. The study proved just the opposite. (You’ve got to love science. The whole point of proving something using the scientific method can lead to unexpected results.)

The article is pay-per-view, but a report in Science Daily gives us some more details:

A group of volunteers watched the first episode of "24" and then either took an immediate recall test about the show or played a game. Next, all of the subjects were told false information about the episode they had seen and then took a final memory test about the show…

The researchers found that the volunteers who took the test immediately after watching the show were almost twice as likely to recall false information compared to the volunteers who played the game following the episode.

I had to read that several times for it to sink in. You watch “24”. You take a test about what you saw. Someone else, instead of immediately being asked what they saw on “24” does something completely unrelated.

Afterwards, both of you are given false information about what you watched. And then you are both tested on what you saw. You are re-tested; he’s asked for the first time.

Here’s the kicker… you are more likely than the other guy to repeat the false information:

The results of a follow-up experiment suggest that the first recall test may have improved subjects’ ability to learn the false information – that is, the first test enhanced learning of new and erroneous information.

I wonder if this is related to the concept that the more certain of something you are, the less likely you are to be right about it. It wouldn’t surprise me if it turned out that folks who had been quizzed immediately felt surer about their recall than ones who weren’t. But I wouldn’t know how to test that, nor do I know whether this study attempted to.

So back to the crime scene scenario, how does this play out. Well, as the authors point out, this is the crime scene scenario… most of the time. The first paragraph of the Science Daily article asks:

For example, if you witness a man in a blue sweater stealing something, then overhear people talking about a gray shirt, how likely are you to remember the real color of the thief’s sweater?

Well what if you hadn’t focused on the color of the sweater? You just saw a drug-deal-gone-bad-murder. You tell the investigators on the scene what you saw. A well meaning policeman, who had just seen Joe-the-Marijuana-Dealer in a gray shirt earlier, might well ask you, after you told him what happened, “Was he wearing a gray shirt?”

The cop might be surprised that Joe would do such a thing. After all, he’s just the guy in the neighborhood who sells a little weed. As far as he knows, Joe has no involvement in anything violent. But Joe’s the only guy he knows on the block, and when he saw Joe earlier, he was in a gray shirt.

And then, because, not in spite of, but  because you have already started recounting your recollection you are more likely to falsely implicate Joe? And to repeat that mistake later?

Scary stuff.

Radley Balko asks if any criminal defense lawyers out there have ever heard of such a thing. 

Not knowing anything about the prosecution’s case except what I’ve read on his blog doesn’t stop me from agreeing with his conclusion that based on their request to transfer venue – which was denied – their case is “coming apart at the seams”.

It took me awhile to track down the transcript of oral arguments from Melendez-Diaz v. Massachusetts and it’s 76 pages, so frankly I’m busy and I’m going to read it later, but sometimes (perhaps frequently?) I come across someone’s commentary on a subject that I completely agree with.

In this case, I even envy the headline “You have the right to confront your accuser, as long as it’s not too inconvenient”:


[Monday], the US Supreme Court heard arguments in a case that I think ought to be a no-brainer. The issue is this: in a criminal prosecution, can the state present a certified lab report as evidence without bringing in the person who prepared that report to testify? I frankly don’t understand why this is even a question.

The 6th Amendment protects the right of criminal defendants to confront their accusers. It’s obvious that an eyewitness who will testify he saw you commit the crime is an accuser as is the police officer who found the baggie of white powder in your coat pocket. But what about the lab tech who tested that white powder and decided it was cocaine? Well, isn’t the person who says the stuff you [possessed was marijuana/cocaine/whatever] just as much of an accuser as the person who says you [possessed] it? Like I said, it seems pretty obvious to me.

At the oral argument, the tack the state of Massachusetts took was that it would be an undue burden on the state to have to bring these witnesses to court in every case. Huh? It would be too inconvenient for the state to bother with each and every defendant’s confrontation clause right? Those who observed the argument don’t seem to think that a majority of the court will go for the state’s argument, but I’m perturbed that the argument wasn’t laughed out of court. The 6th Amendment does not contain a convenience exception.


Read the whole post. It’s excellent. Sarah says she is “confident that the Court will conclude that a decision in favor of the defendant in this case won’t unduly burden the 50 states”. I hope so, but I’m not sure I share her optimism.

More on Cedric Benson’s arrest for Boating While Intoxicated here, but I was alternately amused and/or saddened by this line in the AP report about the recent Austin incident:

Benson had a couple of brushes with the law during his college days.

He was arrested for marijuana possession in May of 2002 in his hometown of Midland, Texas. The charges were dropped when he passed a drug test and other evidence surfaced to clear him.


The charges were dropped. He passed drug test. And, according to the writer, ‘other evidence surfaced to clear him’. But we won’t say what that was.

But, and here’s the important thing to remember, as you read this story about Benson being arrested, let’s not forget that he has had other ‘brushes with the law’.

Clearly the reporter has included this information because it’s pertinent to the main story. If we apply the well known rule that ‘where there’s smoke there’s fire’… does that mean that:

  • Because he’s been arrested before he’s more likely to be guilty this time or
  • Because his prior arrest had to be dropped – at least in part because of evidence of innocence – that ‘there go the police, arresting an innocent man again’?

I’m just asking, that’s all.

Decatur lawyer Barry Wise points out that because Section 38.23 of the Texas Code of Criminal Procedure provides additional prophylactic protections to accused citizens the Virginia v. Moore decision doesn’t have any real impact in Texas. Mark Bennett wonders why then did the Texas Attorney General even bother to weigh in on the amicus brief.

Good question.

Here’s a portion from the intro:

If the States choose to do so, the Constitution permits them to provide their citizens with protections above and beyond those embodied in the Fourth Amendment.

Concurrent with the ability to create new protections, the States are also permitted to craft the remedies for violations of these state protections.

Maybe Greg Abbott was the expert they needed for that portion of the brief.

So Roger Clemens’ lawyer Rusty Hardin gave an interview to New York Lawyer magazine about his representation of the Rocket. In part:

Hardin: What is a public person to do if he’s falsely accused? Why do lawyers think that the safest strategy is the best strategy? Roger has made clear that he is not interested in the safest strategy. He has made clear that his public reputation, what his family and friends think, is what he holds dear. Who the hell am I to tell him that he’s wrong?

Mag: You don’t think much of your critics?

Hardin: I expect second-guessing. But these people on TV, they talk about whether I should "allow" a client to testify, whether I should "allow" him to assert his innocence. Their attitude is paternalistic and patronizing. Who the hell is the lawyer to make that decision?

Mag: It seems like he was asking for trouble.

Hardin: I saw it all coming. I knew there would be a deposition and a congressional hearing. I knew there would be a criminal referral. I fully advised Roger. He made the decision. He’s a grown-up.

Mag: Even if that decision sends him to jail?

Hardin: I believe strongly that people that can fight, should fight. Roger has the means, the ability, and the heart to fight. I salute him.

So Clemens’ attorney is essentially broadcasting the story that:

  • Roger could have taken the safe route
  • I (the lawyer) told him the easy thing was to shut up
  • He is big bad Roger and wants to fight for his reputation

Gosh. That might be what an innocent person would do. Or even what a “You can’t prove I’m guilty” person would do.

Might be part of an overall PR strategy.

So why are Scott and Stephen so sure that Hardin is sneaking behind his client’s back without his explicit permission to broadcast this story? Is Harden so dumb he doesn’t think this interview might get back to Roger?

Texas Governor Rick Perry, giving advice last Friday to one of the largest graduating classes of new DPS troopers ever:

You might pay heed to a hunch and check a truck more closely the way one of your fellow troopers recently did…and stopped $3 million worth of cocaine from reaching our communities.

Don’t forget to make a pretext stop first though… that ‘hunch’ may not hold up for reasonable suspicion to detain.