Cross Examination by TCDLA

Texas Criminal Defense Lawyers Association

Cross Examination

March 4-5, 2021 Course Directors: Gene Anthes Steven Brand Sarah Roland

CROSS-EXAMINATION SEMINAR SEMINAR INFORMATION Date Location Course Director Total CLE Hours

March 4-5, 2021 Austin, Texas l Hilton Austin Sarah Roland, Gene Anthes, and Steven Brand 12.75 Ethics: 1.0 included

Thursday, March 4, 2021 Time

CLE

Daily CLE Hours: 5.75 Ethics: .75

Topic

Speaker

8:15 am

Registration

8:45 am

Opening Remarks

Gene Anthes and Steven Brand

Cross-Examining the Snitch & the Accomplice

Gerry Goldstein

9:00 am

1.0

10:00 am 10:15 am

Break 1.0

11:15 am

Cross-Examining the Family Violence Witness & Expert

Jeremy Rosenthal

Lunch Break

12:30 pm

1.0

A New Way to Think About Cross-Examination

Steven Brand

1:30 pm

1.0

Cross-Examining the Lead Detective

Lisa Greenberg

2:30 pm 2:45 pm 3:45 pm

Break 1.0

Cross-Examining the State Expert on Cell phones, GPS Locations and Tower Locations

.75 Preparing Your Client or Witness for Cross-Examination Ethics 4:30 pm Adjourn

Sal Nolasco Josh Schaffer

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

CROSS-EXAMINATION SEMINAR SEMINAR INFORMATION Date Location Course Director Total CLE Hours

March 4-5, 2021 Austin, Texas l Hilton Austin Sarah Roland, Gene Anthes, and Steven Brand 12.75 Ethics: 1.0 included

Friday, March 5th, 2021 Time

CLE

Topic

Daily CLE Hours: 7.0 Ethics: .25 Speaker

7:45 am

Registration

8:15 am

Opening Remarks

Sarah Roland

8:30 am

1.0

Cross-Examining the DNA Expert

Ariel Payan

9:30 am

1.0

Cross-Examining the SANE Nurse

Heather Barbieri

10:30 am 10:45 am

Break 1.0

11:45 pm

Cross-Examining the Arresting Officer in DWIs

Grant Scheiner

Lunch Break

12:45 pm

1.0

Cross-Examining the Accident Reconstruction Detective/Expert in Vehicular Manslaughter

Gene Anthes

1:45 pm

1.0

Cross-Examining of a Breath/Blood Analyst

Jarrod Smith and Brad Vinson

2:45 pm 3:00 pm 4:00 pm

Break 1.0

Cross-Examining a “Soft-Science” Expert

1.0 Cross-Examining a Child .25 Ethics 5:00 pm Adjourn

Sarah Roland Stephanie Stevens

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Cross-Examination Seminar Table of Contents

Speaker

Topic Complete Date of Seminar

Gerry Goldstein Jeremy Rosenthal Steven Brand Lisa Greenberg

Cross-Examining the Snitch & the Accomplice Cross-Examining the Family Violence Witness & Expert A New Way to Think About Cross-Examination Cross-Examining the Lead Detective

Sal Nolasco

Cross-Examining the State Expert on Cell phones, GPS Locations and Tower Locations

Ariel Payan

Cross-Examining the DNA Expert

Heather Barbieri

Cross-Examining the SANE Nurse

Grant Scheiner Sarah Roland Stephanie Stevens

Cross-Examining the Arresting Officer in DWIs Cross-Examining a “Soft-Science” Expert Cross-Examining a Child

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Cross-Examination Seminar March 4-5, 2021 Livestream

Topic: Cross-Examining the Snitch & the Accomplice Speaker:

Gerry Goldstein

310 S Saint Marys St Ste 2900 San Antonio, TX 78205 (210) 226-1463 Phone gerrygoldsteinlaw@gmail.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Cross Examining The Snitch And The Accomplice A JOURNEY THROUGH THE LAW & PRACTICE

Gerald H. Goldstein Goldstein & Orr 310 S. St. Mary’s Street Suite 2900 TCDLA Live Stream Event March 4th-5th, 2021 Austin, Texas

TABLE OF CONTENTS Part VIII: Cross Examination CROSS-EXAMINATION .............................................................................................................. 1 10 TIPS FOR CROSS EXAMINATION ....................................................................................... 1 THE DEFENDANT HAS AN EXPRESS CONSTITUTIONAL RIGHT TO “CONFRONT” AND “CROSS-EXAMINE” ADVERSE WITNESSES ............................. 5 SIXTH AMENDMENT GUARANTEE OF CONFRONTATION INCLUDES RIGHT TO CROSS-EXAMINE ................................................................................................................ 5 YOU HAVE THE RIGHT TO SEE THE WITNESS AGAINST YOU ................................ 6 APPLICABLE TO STATES THROUGH FOURTEENTH AMENDMENT ................. 6 STATE “VOUCHER RULE” DENIED DEFENDANT HIS SIXTH AMENDMENT .. 6 RIGHT OF CROSS-EXAMINATION ............................................................................... 6 RIGHT TO FULL AND UNFETTERED CROSS-EXAMINATION ............................. 7 WHAT’S GOOD FOR THE GOOSE IS GOOD FOR THE GANDER .......................... 7 RIGHT TO CONFRONTATION ........................................................................................... 8 HOW DOES ONE EFFECTIVELY CROSS-EXAMINE AN AMNESIAC? ................. 8 PRIOR TESTIMONY .......................................................................................................... 8 AS TO PRETRIAL MATTERS .......................................................................................... 9 PRELIMINARY QUESTIONS [FED. R. EVID. RULE 104] .......................................... 9 RULE 104(a) .......................................................................................................................... 9 WHAT EVIDENCE MAY BE CONSIDERED? ............................................................. 11 ACTUAL HEARING REQUIRED? ................................................................................. 13 NOT ENOUGH TO PROVE CONSPIRACY OR THAT BOTH ACCUSED AND DECLARANT VOLUNTARILY PARTICIPATED IN SAME ..................................... 14 STATEMENTS MUST HAVE BEEN MADE “DURING COURSE” OF CONSPIRACY .................................................................................................................... 15 CO-CONSPIRATOR’S RULE DOESN’T MEAN WHAT IT SAYS ............................ 15 STATEMENTS MUST HAVE BEEN MADE “IN FURTHERANCE” OF THE CONSPIRACY .................................................................................................................... 15 CO-CONSPIRATOR’S EXCEPTION SHOULD NOT BE EXPANDED .................... 16 ADVISORY COMMITTEE OBSERVED DISTINCTION BETWEEN ...................... 16 HEARSAY RULE AND CONFRONTATION CLAUSE ............................................... 16

IS APPROPRIATE OBJECTION “DENIAL OF SIXTH .............................................. 17 AMENDMENT RIGHT OF CONFRONTATION”,....................................................... 17 NOT MERELY “HEARSAY”? ......................................................................................... 17 IS THERE A CONFRONTATION OBJECTION BEYOND HEARSAY? .................. 18 SCOPE OF CROSS-EXAMINATION ................................................................................. 18 LIMITATION ON CROSS-EXAMINATION HELD VIOLATIVE OF ...................... 19 CONFRONTATION GUARANTEED BY SIXTH AMENDMENT ............................. 19 BUT: CONFRONTATION CLAUSE VILATION NOW SUBJECT TO HARMLESS ERROR RULE .................................................................................................................... 19 IMPEACHMENT ................................................................................................................... 20 FED. R. EVID. RULE 607 ALLOWS IMPEACHING ONE’S OWN WITNESS ....... 20 WHO IS THE GOVERNMENT’S CLIENT? .................................................................. 21 FED. R. EVID. RULE 608, CHARACTER AND CONDUCT OF WITNESS FOR THE TRUTHFULNESS .................................................................................................................. 21 (a) OPINION AND REPUTATION............................................................................ 21 (b)

SPECIFIC INSTANCES OF CONDUCT ARE NOT ADMISSIBLE: .............. 21

FED. R. EVID. RULE 803(21) .............................................................................................. 22 FED. R. EVID. RULE 405, CHARACTER GENERALLY ............................................... 22 METHODS OF PROVING CHARACTER [FED. R. EVID. Rule 405 .......................... 22 PROOF OF CHARACTER [RULES 405(a) AND 608(a)] ............................................. 23 BY REPUTATION TESTIMONY .................................................................................... 23 BY OPINION TESTIMONY ............................................................................................. 24 POLYGRAPH EVIDENCE MAY NOW BE ADMISSIBLE ......................................... 25 LIMITATION ON CROSS-EXAMINATION OF CHARACTER WITNESS ............ 26 ONCE A LIAR ........................................................................................................................ 27 FED. R. EVID. RULE 613, PRIOR STATEMENTS OF WITNESS .............................. 27 THE NEED TO OBTAIN PRIOR STATEMENTS AT THE EARLIEST OPPORTUNITY ................................................................................................................. 27 JENCKS ACT WITNESS STATEMENT [FED. R. EVID. RULE 26.2] ...................... 27 RULE 26.2 DOES NOT PRECLUDE PRETRIAL DISCLOSURE .............................. 29 WITNESS STATEMENTS ARE DISCOVERABLE AT “DETENTION HEARING” ............................................................................................................................................... 31

WITNESS STATEMENTS ARE DISCOVERABLE AT SUPPRESSION HEARING ............................................................................................................................................... 31 THE NEED TO INTERVIEW THE GOVERNMENT CLIENT .................................. 32 EVEN IF THE GOVERNMENT’S CLIENT IS IN “PROTECTION” PROGRAM .. 32 PRE-SENTENCE REPORTS OF CO-DEFENDANTS .................................................. 32 “IMPEACHMENT” EVIDENCE IS “EXCULPATORY” FOR BRADY PURPOSES ............................................................................................................................................... 33 BRADY LIVES .................................................................................................................... 37 REGARDLESS WHETHER PROSECUTOR ACTUALLY AWARE OF .................. 37 EVIDENCE ......................................................................................................................... 37 WHETHER EVIDENCE IS EXCULPATORY OR ONLY “IMPEACHING” ................... 37 EVEN IF NEVER REQUESTED BY THE DEFENSE ........................................................ 37 NEED NOT UNDERCUT EVERY ITEM OF INCRIMINATING EVIDENCE................ 37 AS IF JUSTICE SOUTER LISTENED TO O.J.’s CLOSING ARGUMENT ..................... 38 STUTTER-STEP BACKWARDS? ...................................................................................... 39 FED. R. EVID. RULE 614, INTERROGATION BY THE COURT: ...................................... 39 WHY WOULD THE WITNESS BE TELLING THIS STORY IF IT WASN’T THE TRUTH- SOME WITNESSES ARE PAID WITH MONEY, SOME WITH A COMMODITY MORE VALUABLE, THEIR LIFE OR THEIR LIBERTY ...................... 40 BIAS, MOTIVE OR PREJUDICE .................................................................................... 40 “OTHER CRIMES” EVIDENCE [RULE 404(b)] ................................................................... 43 WOULD YOU BUY A USED CAR FROM THIS PERSON? PRIOR CRIMINAL CONVICTIONS ....................................................................................................................... 48 COUNSEL MAY DESIRE TO PIN DOWN THE “COOPERATING WITNESS” ON PARTICULAR ISSUES AND THEN OFFER CONTRADICTORY EXTRINSIC EVIDENCE BY WAY OF OTHER WITNESSES OR EXHIBITS TO DEMONSTRATE BIAS ......................................................................................................................................... 50 THIS MAY INCLUDE SUCH AREAS AS WHETHER WITNESS’ WIFE WAS HAVING AN AFFAIR WITH DEFENDANT OR CO-DEFENDANT .............................................. 51 OR DESIRE TO PROTECT OTHERS ................................................................................ 51 “RULE OF COMPLETENESS” ........................................................................................... 51

iii

CROSS-EXAMINATION Cross-examination of a cooperating prosecution accomplice witness poses special problems for the defense attorney. In addition to a working knowledge of the law generally applicable to the accused’s Constitutional right to confront and cross-examine, this type of witness presents the practitioner with unique and often challenging opportunities to explore and attack the witness’ credibility and expose his biases and motives for testifying, other than telling the truth. In this regard, there must be a plausible explanation as to why the snitch would be willing to lie and more importantly, why he would single out your citizen in particular. i.e. What benefit might accrue to the Government’s client for laying off some of the blame on yours. Since the Government’s burden of proof “beyond a reasonable doubt” is often defined in terms of “such a doubt as would cause you to hesitate before acting in matters of utmost importance to you or your loved ones,” your aim should be to demonstrate that if after all the evidence is heard the jurors would not hesitate before acting on this slimeball’s representations in matters of utmost importance to them or their loved ones, your citizen never had a chance in the first place. First some basic tips: 10 TIPS FOR CROSS EXAMINATION In my experience, there are three basic goals of effective cross-examination. First is to expose a witness’ bias or motive for telling the story he or she has told on direct. The second, is to undermine that hostile witness’ credibility generally. And third, is to elicit favorable facts which even a hostile witness may be able or compelled to reveal. Knowing what answer the witness must give is critical to this process and the order in which you seek these answers is critical to obtaining the answer you want. Accordingly, cross-examination must start with discovery. The following suggestions for achieving those goals have been stolen from much better advocates than I, and through the trial and error method passed on to me by my mentor and patron saint, Maury Maverick, Jr., who long ago gave me this sage advice. Cross-examination works best when you have methodically and patiently set the question and witness into a context where the question answers itself; where your leading question is really the answer, and you have placed the witness in a box where it matters little what answer the lying sack of shit gives! Hopefully, what follows will assist you in confronting cooperating and accomplice witnesses. 1. PREPARATION: Effective cross-examination starts with mastery of the facts of your case. Controlling a hostile witness often depends upon the witness’ and the jury’s recognition that you know what his or her answer has to be, if that witness is to appear believable. Your superior command of the facts is the most powerful tool you can display in convincing the witness

to give you the answer you want and are entitled to. This must begin with discovery, a topic for another course, but critical to effectively cross-examining every witness and particularly important when confronting the cooperating or accomplice witness. Methodically taking such a witness through their prior testimony, statement, or writing can be one of the most effective tools of cross-examination and hopefully what follows will provide you with the tools to put the witness’ testimony in the best light to assist your client. However, this only works where you have the prior statements to utilize. Early investigation and vigorous discovery of every shred of evidence is critical to successful cross of the witness (See ¶ 4 below). 2. HAVE A STORY YOU WANT TO TELL: Trial is theater, and just as the prosecution has an account of the events which their witnesses will portray on direct, your job is not only to undermine the witnesses’ credibility, but also to elicit any fact which may help tell your side of the story, your theory of defense, which demonstrates why your client is not guilty of the charged offense. 3. PLAN THE ORDER OF YOUR QUESTIONS: If you think that you can weasel favorable responses from a hostile witness that serve to tell your side of the story, extract those answers before you dump on that witness. It is only logical that a witness will more willingly provide information when asked in a nonconfrontational fashion. 4. BE REALISTIC ABOUT WHAT YOU CAN GET FROM THE WITNESS: Don’t try to win your case with every witness, particularly hostile witnesses such as law enforcement and victims or their family. They are spring loaded to eat your lunch! My experience is that if you don’t make a point in cross-examination forcefully, it may be lost on the jury. However, if you hammer your theme too hard and too often, you may simply educate that witness or opposing counsel, allowing them to undo all that you have so painstakingly accomplished. 4. FIGHT FOR DISCOVERY: One of the most useful and effective tools in cross-examination, is impeachment with a prior inconsistent statement. See: Rule 613, F.R.Ev. and Tex.R.Ev. But in order to crossexamine a witness with their prior statements, you have to obtain those documents and/recordings sufficiently in advance to study them and thoughtfully plan how best to utilize them. Make full use of the new Michael Morton Act [Art. 39.14, Tex.C.Cr.P.] provisions and Rule 16, F.R.Cr.P. in federal court. You also want to push for discovery of witness’ prior statements and reports at pretrial hearings [See: Rule 26.2, F.R.Cr.P. and Rule 615, Tex.R.Ev., which no longer limit production to trial testimony, and See: Rule 12(h) of the federal rules which expressly provides that law enforcement officers are considered

Government witnesses, even if called by the defendant. With respect to the cooperating and/or accomplice witness, you will want to obtain everything that witness has said or written, from prior testimony at his or her bail hearing, to the arguments of their attorney in pleadings and at pretrial hearings, which can be offered as admissions of a party opponent under the rules.1 5. HAVE A METHODOLOGY: I like to divide each issue and important fact contained in a statement and/or transcript, into a separate file. But whether you use files or a notebook, or some other method for organizing your cross, it is critical to be able to instantaneously reach for a particular statement or phrase in a transcript, when the need arises. Organization does not mean sticking to a written script. It means having your ideas separated by issues that you anticipate, and being able to quickly gain access to that document in order to make effective use. 9.

MAKE FULL USE OF RULE 611(c) [Leading Questions]: You gain power and advantage over a hostile witness through the use of leading questions [Rule 611(c), F.R.Ev. and Tex.R.Ev.]. While a witness is always more effective and believable when they get to tell their own story, their own way, adverse witnesses are not called by the prosecution because they are trying to help your client. Try to develop and weave your story around “truths,” that is, facts that the jury knows must be true from all that they’ve heard, seen and common sense tells them must be true. Turn that “truth” into a rhetorical question that the hostile witness will have to agree with in order to be believed. Make your point by way of a leading question: “Isn’t it true officer, that……,” then sit down. Save your argument for closing.

TRAIN WITNESSES WITH A PAVLAVIAN MANTRA: The rules for utilizing a prior statement on cross-examination vary slightly from federal to state court. Compare for example the difference in the foundational requirement for impeaching a witness with a prior inconsistent statement under Rule 613 of the Federal Rules of Evidence and Texas Rule of Evidence 613(a)(1). Regardless, I like to tee a

For example, Rule 801(d)(2)(C) provides that a statement is admissible against a party where that statement was “was made by a person whom the party authorized to make a statement on the subject,” and Rule 801(d)(2)(d) which provides that a statement may be used against a party where the statement “was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed.” Rule 801(e)(2)(C) of the Texas Rules of Evidence provides that a statement may be used against a party where the statement is “was made by a person whom the party authorized to make a statement on the subject,” and Rule 801(e)(2)(D) provides that a statement may be used against a party where the statement was “was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed.”

question up with the prior statement at the ready. Ask the witness: “Isn’t it true that on….” If the witness gives the appropriate response, move quickly to the next question. If the witness denies same, rise to your feet and request: “Your Honor, may I approach the witness?” At the witness’ side you proceed: “I call your attention to what has been marked as Defendant’s Exhibit ____” “Calling your attention to the highlighted portion of Defendant’s Exhibit ___” Figuratively, stick their nose in it and ask that they read the portion to the jury. Then inquire: “Is this your signature?” “Was that the truth, when you wrote ____?” The next time the witness sees you rise to your feet and ask “Your Honor, may I approach the witness,” with your statement file in hand, the witness will know what’s coming. 8. OMITTED INFORMATION: If an officer has omitted a particularly important fact (one that is helpful to your client) from his or her report, don’t simply ask that as a question. I like to dwell on same. It sure beats discussing your client’s unfortunate familiarity with the facts of the case. My preference is to ask the following: “Officer, much of you time and training have focused on report writing?” “It is an important part of your professional duties, is it not?” “You understand the importance of report writing, do you not?” “It permits you to memorialize facts at or about the time they actually occurred?” “That allows you to refresh your memory weeks, months, sometimes years later, when you are called to testify?” “That allows you to be more accurate and more truthful when you come to testify under oath before a jury like this?” “And that serves to protect both you and citizens like my client _______,” “Now officer, would you point out for the jury where in your 3-page report you mention anything about ______?”

PRIOR TESTIMONY: Obtain transcripts of any prior testimony by the prosecution’s witness (order transcription from prior hearings where the witness has testified). I have found that any piece of paper with those little numbers down the left hand margin, may as well have been chiseled in stone and brought down from the mountain by Moses himself. Then, in that same determined voice, rise to your feet and ask, “Your Honor, may I approach the witness?” “I call your attention to what has been marked as Defendant’s Exhibit ___.” “Isn’t it a fact that on ____, in a courtroom much like this one, you swore under oath that …?” “Did you take that same oath, that you took here before this jury today, to tell the truth, the whole truth, and nothing but the truth?” “Was that the truth when you swore that _____, on ____, in a courtroom much like this?” “Is it still true today?”

10. THE HARDEST DECISION: If you don’t’ think you’re going to get anything favorable from the witness, consider keeping your seat. Paraphrasing Winston Churchill, “It is better to remain seated and be thought a fool, than to rise to your feet and remove all doubt.” THE DEFENDANT HAS AN EXPRESS CONSTITUTIONAL RIGHT TO “CONFRONT” AND “CROSS-EXAMINE” ADVERSE WITNESSES “In all criminal prosecutions, the accused shall enjoy the right to …be confronted with the witness against him.” SIXTH AMENDMENT GUARANTEE OF CONFRONTATION INCLUDES RIGHT TO CROSS-EXAMINE “[A] major reason underlying the Constitutional Confrontation Rule is to give a defendant charged with crime an opportunity to crossexamine the witness against him.” Pointer v. Texas, 380 U.S. 400, 406-7 (1965).

(applicability of harmless error rule). However, jointly tried co-defendants do not have the right to cross-examine each other where each one’s testimony does not inculpate the other. U.S. v. Crockett, 813 F.2d 1310 (4th Cir. 1987) (where judge found the co-defendant’s testimony exculpatory as to each other). YOU HAVE THE RIGHT TO SEE THE WITNESS AGAINST YOU However, the Supreme Court over Scalia’s dissent, held: upon a demonstration that a child would suffer severe emotional distress by confronting the accused his or her testimony could be received by closed circuit television. Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed. 666 (1990). Maryland v. Craig has been adopted in Texas. Hightower v. State, 822 S.W.2d 48 (Tex. Cr. App. 1991). The Court of Criminal Appeals held that the use of a closed-circuit system to enable an alleged child victim to testify in a sexual assault trial pursuant to TEX. CODE CRIM. PRO. Art. 38.071(3) does not offend the Confrontation clause if the proper findings are made by the trial court. See also

Manoccio v. Moran, 708 F.Supp 473 (D.R.I. 1989) (holding government can’t admit an autopsy report without affording the defendant an opportunity to confront and cross-examine the medical examiner). Reversed as habeas, Manoccio v. Moran, 919 F.2d 770 (1st Cir. 1990) (those portions of the autopsy report which go beyond medical data and conclusions are not admissible without opportunity to cross exam). APPLICABLE TO STATES THROUGH FOURTEENTH AMENDMENT

See

Pointer v. Texas, 380 U.S. 400 (1965) (error to admit testimony at preliminary hearing where defendant not represented by counsel); Parker v. Gladden, 385 U.S. 363 (1966) (right to confront Bailiff who made disparaging remarks while escorting jury). STATE “VOUCHER RULE” DENIED DEFENDANT HIS SIXTH AMENDMENT RIGHT OF CROSS-EXAMINATION

The common law notion of the “voucher rule” was that once a party called witness to testify on his behalf, the party “vouched” for the witness’s credibility. Chambers v. Mississippi, 410 U.S. 284, 295 (1973). Therefore, he was not allowed to impeach his own witness on cross-examination even if he later found that the witness gave false testimony. Chambers v. Mississippi, 410 U.S. 284, 295 (1973). The United States Supreme Court, however, stated that a ‘voucher’ rule denied a defendant “a trial in accord with traditional and fundamental standards of due process.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973)

See

Chambers v. Mississippi, 410 U.S. 284 (1973) (defense counsel entitled to crossexamine witness regarding statements against interest, even though hearsay).

Interestingly, Rule 607 provides that “[a]ny party, including the party that called the witness, may attack the witness’s credibility.” However, while a party may impeach their own witness under Rule 607, you may not lead your own witness (i.e. suggest the answer in your question), which is the preferred method of cross-examination. See Rule 611 of the Federal Rules of Evidence.

RIGHT TO FULL AND UNFETTERED CROSS-EXAMINATION See

Smith v. Illinois, 390 U.S. 337 (1970) (holding right to inquire as to witness’ true identity and residence); Chambers v. Mississippi, 410 U.S. 284 (1973); Davis v. Alaska, 415 U.S. 308 (1974) (noting right to cross-examine key fact witness as to pending juvenile probation to show bias or motive); U.S. v. Miranda, 510 F.2d 385 (9th Cir. 1975) Snyder v. Coiner, 510 F.2d 224, 225 (4th Cir. 1975); Mississippi v. Pancer, 514 S.2d 767 (Miss.S.Ct. 1986) (stating right to use transcripts from prior trials and impeachment testimony of live witnesses); Lawson v. Murray, 837 F.2d 653 (4th Cir. 1988) (noting where a defense witness cut-off cross examination by invoking privilege against self-incrimination, trial court properly struck entire testimony of witness).

Accused’s Sixth Amendment right of confrontation [as well as Rule 402(2), Tex.R.Ev., “evidence of district trait or character of victim of the crime offered by an accused” and Rule 405(b), Tex.R.Ev., where “character or a trait of character of a person is an essential element of a …defense, proof may also be made of specific instances of his conduct”] entitled defendant to inquire as to rape complainant’s subsequent sexual acts in order to demonstrate consent or acts consistent or “in keeping with a diagnosis of nymphomania.” Chew v. State, 804 SW2d 633, No. 04-89-00149 (C.A.—San Antonio, February 20, 1991). WHAT’S GOOD FOR THE GOOSE IS GOOD FOR THE GANDER The Supreme Court recently held that a court had discretion to preclude defense counsel from speaking to his client during a fifteen minute recess, Perry v. Leeke, 488 U.S. 272, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989). Defense counsel should be mindful to ask courts to exercise such discretion to preclude the prosecutor from “coaching” their witnesses during recesses such as the lunch break, which seemed to afford witnesses with the opposition to “catch their breath” and rehabilitate prior testimony.

Such was the obvious intent of the rules [i.e. Federal Rule 613’s express provision that a crossexaminer need not show nor disclose contents of a prior inconsistent statement to the witness, even though same must be disclosed to opposing counsel on request. What good would such a rule do if opposing counsel were allowed, for example, to disclose the contents during a lunch recess?]. But see

Bovar v. Dugger, 858 F.2d 1539 (11th Cir. 1988) (per curiam) (holding more rights afforded accused in the Eleventh Circuit where the court found a fifteen minute recess was sufficiently long to permit meaningful consultation between the defendant and his attorney and that denial of same was a denial of the rights to effective assistance of counsel).

The Houston 14th District has approved the holding and reasoning of Perry v. Leeke. Schuldreich v. State, 899 S.W.2d 253, (Tex. App. – Houston [14th Dist.] 1995). The court quoted Perry to say, “When a defendant becomes a witness, he has no constitutional right to consult with his lawyer while he is testifying [although he has an absolute right beforehand].” In Hightower v. State, 822 S.W.2d 48, 54 (Tex. Cr. App. 1991), the Court held that the Defendant’s right to effective assistance of counsel was not violated by his inability to sit with his lawyer during cross-examination of the child witness (closed-circuit television was used). The court, however, did point out that there was nothing in the record to show that the separation of counsel and his client impaired counsel’s ability to effectively cross examine the child witness. One of the cases the court cited was Perry v. Leeke. RIGHT TO CONFRONTATION HOW DOES ONE EFFECTIVELY CROSS-EXAMINE AN AMNESIAC? See

U.S. v. Owens, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988).

An accused’s right to confront adverse witnesses is not violated by the testimony of a witness identifying the defendant as the perpetrator, even though the witness had no independent recollection of the events and could not remember the basis for his testimony, because the defendant had “an opportunity for effective cross-examination.” Manocchio v. Moran, 708 F. Supp. 473 (D.R.I. 1989) (Government can’t admit an autopsy report without affording the defendant an opportunity to confront and cross-examine the medical examiner). But see

Lawson v. Murray, 837 F.2d 653 (4th Cir. 1988) (defense witness who repeatedly invokes his Fifth Amendment privilege against self-incrimination may have all his testimony stricken). PRIOR TESTIMONY

Barker v. Page, 390 U.S. 719 (1968) (testimony at preliminary hearing [where defendant represented by counsel] inadmissible unless the witness is unavailable at trial); Mancusi v. Stubb, 408 U.S. 204 (1972) (testimony at former trial that was subject to cross-examination is admissible) Specifically where:

See

(a) witness is unavailable, and (b) there is additional indicia of reliability. Mississippi v. Parker, 514 F.2d 767 (Miss. 1986), cert. denied, 427 U.S. 911 (1988) (stating prior testimony exculpating defendant, although impeached at that prior trial, was admissible in the defendant’s trial). But see

Thomas v. U.S., 530 A.2d 217 (D.C. App. 1987) (en banc) (“The common-law hearsay exception for former testimony requires four criteria: (1) unavailability of the declarant, (2) testimony was given under oath in a legal proceeding, (3) substantial similarity of the issues in the two proceedings, and (4) the party against whom the testimony is offered had the opportunity to cross-examine the declarant at the former proceeding.” The evidence that remained was not sufficient to convict after the prior testimony was held inadmissible as the same was not subjected to adequate cross-examination even though counsel for co-defendants had crossexamined witness).

See also

California v. Green, 399 U.S. 149 (1970). AS TO PRETRIAL MATTERS FED. R. EVID. R. 104(b)

As to preliminary questions of admissibility the court “…is not bound by the rules of evidence.” U.S. v. Matlock, 415 U.S. 164 (1974) (at a suppression hearing hearsay may be considered by the court in determining probable cause or consent). In Texas, however, the Court of Criminal Appeals has held that the rules of evidence expressly apply to suppression hearings pursuant to TEX. R. CRIM. EVID. 1101 (d)(4). McVickers v. State, 874 S.W.2d 662 (Tex. Cr. App. 1993). Therefore, in a suppression hearing in Texas, hearsay is inadmissible. PRELIMINARY QUESTIONS [FED. R. EVID. RULE 104] RULE 104(a)

Both the Texas and Federal Rules provide that preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege or, the admissibility of evidence, must be determined by the court. Rule 104(c). Typically to be admissible, circumstantial evidence that is the only proof of an offense element must be only consistent with the theory of guilt and must not be reconcilable with the theory of innocence. However, at least one court has held hat the rule just stated is not required by the Constitution. York v. State, 858 F.2d 322 (6th Cir. 1988) Applying Rule 104(a) to the admissibility of co-conspirator’s statements the Fifth Circuit had required the trial judge to employ a two-tiered test of “substantial independent” evidence sufficient to “support a jury verdict” for initial admissibility, and a “preponderance of the evidence” standard applied retrospectively when all the evidence is closed. “We conclude that …a declaration by one defendant is admissible against other defendants only when there is a ‘sufficient showing, by independent evidence, of a conspiracy among one or more other defendants and the declarant and if the declaration at issue were in furtherance of that conspiracy’ …and that as a preliminary matter, there must be substantial, independent evidence [to that effect]”. “At the End of the Trial …on appropriate motion at the conclusion of all the evidence the court must determine as a factual matter whether the prosecution has shown by a preponderance of the evidence in dependent of the statement itself (1) that a conspiracy existed, (2) that the coconspirator and the defendant against whom the coconspirator’s statement is offered were members of the conspiracy, and (3) that the statement was made during the course and in furtherance of the conspiracy.” While the ultimate determination of this issue in the Fifth Circuit under James was made on a “preponderance of the evidence” standard, it must be remembered that the court expressly requires the latter reviewed only “on appropriate motion at the conclusion of all the evidence.” U.S. v. James, 590 F.2d 575, 582-83 (5th Cir.) (en banc), cert. denied, 442 U.S. 917 (1979) (emphasis added). Failure to re-urge same has been held to result in a waiver of that issue on appeal. See

U.S. v. Stroupe, 538 F.2d 1063, 1065-1066 (4th Cir. 1976) (“substantial independent evidence of conspiracy, at least enough to take the question to the jury”); U.S. v. Jackson, 327 F.2d 1198, 1219 (D.C. Cir. 1980) (“clear preponderance”); U.S. v. Towery, 542 F.2d 623, 627 (3d Cir. 1976) (“more likely than not”); U.S. v. Stanchich, 550 F.2d 1294, 1298 (2d Cir. 1977); U.S. v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977); U.S. v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978) (“substantial independent evidence”); U.S. v. Avila-Macias, 577 F.2d 1384 (9th Cir. 1978);

U.S. v. Gutierrez, 576 F.2d 269, 275 (10th Cir. 1978), cert. denied, 439 U.S. 954 (a “prima-facia showing”); U.S. v. King, 552 F.2d 833, 849 n.23 (9th Cir. 1976); U.S. v. Rosales, 584 F.2d 870 (9th Cir. 1978). Some treatises had suggested an even more stringent test. WEINSTEIN & BERGER, WEINSTEIN’S EVIDENCE ¶104[05] 105-44 (supporting a “beyond a reasonable doubt” standard). This higher standard would appear more appropriate both because 104(a) requires the court in effect to “determine” that the requirements of 801(d)(2)(E) have been met (including the existence of a conspiracy), and because as the Advisory Committee Notes to Rule 801(d)(2)(E) point out “the agency theory of conspiracy (upon which the rule is premised) is at best a fiction and ought not to serve as a basis for admissibility beyond that already established.” However, the Supreme Court recently adopted a “preponderance of the evidence” standard rejecting any higher standard such as “clear and convincing or beyond a reasonable doubt. “We find ‘nothing to suggest that admissibility rulings have been unreliable or otherwise wanting in quality because not based on some higher standard.” Bourjaily v. U.S., 483 U.S. 171, 97 L.Ed.2d 144, 152-3, 107 S.Ct. 2775 (1987). See also

Williams v. State, 815 S.W.2d 743 (Tex. App. – Waco 1991), reversed, 829 S.W.2d 216 (Tex. Cr. App. 1992) (summarizing of federal law on this point and its application. Neither the appellate court nor the Court of Criminal Appeals says anything that would indicate that Texas does not use the same preponderance of evidence standard for admissibility as set out in Bourjaily v. U.S., 483 U.S. 171 (1987) for admissibility of co-conspirators’ statements). WHAT EVIDENCE MAY BE CONSIDERED?

Previously courts had held that in making this determination, the trial court should look only to non-hearsay evidence “independent of the statement itself.” U.S. v. James, 590 F.2d 575, 582 (5th Cir.) (en banc), cert. denied, 442 U.S. 917 (1979) (emphasis added); U.S. v. Nixon, 418 U.S. 683, 701 (1974); U.S. v. Ziegler, 583 F.2d 77, 80 (2nd Cir. 1978); Glass v. U.S., 315 U.S. 60 (1942); U.S. v. Bell, 573 F.2d 1040 (8th Cir. 1978); U.S. v. McPartlin, 595 F.2d 1321 (7th Cir. 1979); U.S. v. Stroupe, 538 F.2d 1063, 1065 (4th Cir. 1976) (stating “otherwise hearsay would lift itself by its own boot straps to the level of competent evidence”).

“Although Rule 104(a) provides that the court ‘is not bound by the Rules of Evidence except those with respect to privileges’ we do not construe this language as permitting the court to rely upon the content of the very statement whose admissibility is at issue. We adhere to our requirement …that fulfillment of the condition of admissibility must be established by evidence independent of the conspirator statement itself. This construction of Rule 104(a) comports with earlier Supreme Court pronouncements that admissibility must depend upon independent evidence in order to prevent this statement from ‘lift[ing] itself by its own boot straps to the level of competent evidence’.” U.S. v. James, 590 F.2d at 581.

Contra

U.S. v. Martrano, 561 F.2d 406 (1st Cir. 1977), cert. denied, 435 U.S. 922.

The Supreme Court has held that in making a preliminary factual determination of the existence of a conspiracy involving the declarant and the defendant, a court may examine the hearsay statements sought to be admitted. Bourjaily v. U.S., 483 U.S. 171, 97 L.Ed.2d 144, 156, 107 S.Ct. 2775 (1987) (however, there was other corroborating evidence independent of the incriminating hearsay statement sufficient to establish the existence of the conspiracy). The Fifth Circuit has also permitted the use of the hearsay statement, but it must “be considered along with the other evidence in determining whether the hearsay declarant was the defendant’s co-conspirator.” See U.S. v. Perez, 823 F.2d 854, 855 (5th Cir. 1987). U.S. v. Valdez, 561 F.2d 427, 432 (5th Cir. 1988), reh’g denied en banc. Every court considering this issue had held that there must be other non-hearsay evidence to meet each of Rule 801(d)(2)(E)’s requirements “otherwise hearsay would lift itself by its own bootstraps to the level of competent evidence.” U.S. v. Stroupe, 538 F.2d 1063, 1065 (5th Cir. 1976); Glasser v. U.S., 315 U.S. 60, 74-5 (1942). See also

U.S. v. Petrozziello, 548 F.2d 20, 223 (1st Cir. 1977); U.S. v. James, 590 F.2d 575, 578-80 (5th Cir.) (en banc), cert. denied, 442 U.S. 917 (1979); U.S. v. Santiago, 582 F.2d 1128, 1133 (7th Cir. 1978); U.S. v. Bell, 573 F.2d 1040, 1043-44 (8th Cir. 1978); U.S. v. Jackson, 627 F.2d 1198, 1217-18 (D.C. Cir. 1980); U.S. v. Nixon, 418 U.S. 683, 701 n.14 (1974).

Recently, the Supreme Court held that the trial court may consider the co-conspirator’s hearsay statement itself in deciding its admissibility. That is, the Court has sanctioned looking to what is by definition, unreliable evidence, to determine its reliability.

“Congress has decided that courts may consider hearsay in making these factual determinations… But petitioner nevertheless argues that the bootstrapping rule, as most Courts of Appeals have construed it, survived this apparently unequivocal charge in the law unscathed and that Rule 104, as applied to the admission of coconspirator’s statements, does not mean what it says. We disagree.” Bourjaily v. U.S., 483 U.S. 171, 97 L.Ed.2d 144, 154, 107 S.Ct. 2775 (1987). If the Rules of Evidence are not applicable to this determination, query, whether this would allow one coconspirator’s hearsay statement to be considered for the purpose of establishing the admissibility of another. One would hope not, lest prosecutors will begin breaking down such testimony sentence by sentence, arguing that one boot can be pulled up by the straps of another. Courts have as well held that any independent evidence of a conspiracy need not demonstrate, by itself, the illegal nature of the combination. U.S. v. Jackson, 627 F.2d 1198 (D.C. Cir. 1980); Hitchman Coal and Coke Co. vs. Mitchell, 245 U.S. 229 (1917). “The element of illegality may be shown by the declarations themselves.” U.S. v. Jackson, 627 F.2d 1198, 1216 n.35 (D.C. Cir. 1980). Contra

Romani v. State, 542 So.2d 984 (Fl.S.Ct. 1989) (rejecting Bourjaily rule because it “would frequently lead to the admission of statements which are not reliable”). ACTUAL HEARING REQUIRED?

While the James en banc court appeared to require only that the government “order their proof” wherever “reasonably practicable” in order to lay the predicate under Rule 801(d)(2)(E), See also

U.S. v. Jackson, 627 F.2d 1198, 1218 (D.C. Cir. 1980); U.S. v. Macklin, 573 F.2d 1046, 1049 n.3 (8th Cir. 1978).

Two recent Fifth Circuit panels have given lip service to the fact that “[S]uch a hearing is mandated by U.S. v. James.” U.S. v. Grassi, 616 F.2d 1295, 1300 (5th Cir.), cert. denied, 449 U.S. 956 (1980); U.S. v. Perry, 624 F.2d 29, 31 (5th Cir. 1980) (allowing the government an “interlocutory appeal” under 18 U.S.C. § 3731 from an unfavorable ruling). Contra

U.S. v. Hawkins, 661 F.2d 426 (5th Cir. 1981).

“Defendants challenge the trial court’s decision not to hold a hearing pursuant to U.S. v. James to determine the admissibility of coconspirator statements. Under James, decided by this Court sitting en banc, a co-conspirator’s hearsay statement is not admissible unless the trial court determines the Government has established by a preponderance of the evidence independent of the statement itself that a conspiracy existed, that the co-conspirator and the defendant against whom the statement is offered were members of the conspiracy, and that the statement was made during the course of the conspiracy. The Court in James held that a hearing on this issue was preferred but not required.” U.S. v. Hawkins, 661 F.2d at p. 449 (5th Cir. 1981). The James court, however, took pains to note that a hearing is the “preferred” course, and that in any event, their opinion established only the “minimum standard for admissibility of coconspirator statements” and that “[N]othing stated [in the opinion] shall prevent a trial judge from requiring more meticulous procedures.” U.S. v. James, 590 F.2d at 583. With the abolition of the James constraints for determining the admissibility of cooconspirator’s statements, its effect on requiring an independent hearing is in doubt. Compare

U.S. v. Perez, 823 F.2d 854, 855 (5th Cir. 1987); U.S. v. Valdez, 861 F.2d 427, 432 (5th Cir. 1988) (acknowledging that requirements of James, other than the standard of proof requisite, remain viable).

See also

Williams v. State, 815 S.W.2d 743 (Tex. App. –Waco 1991), reversed on other grounds, 829 S.W.2d 216 (Tex. Cr. App. 1992) (noting good demonstration and analysis of federal requirements for admissibility of co-conspirator’s statement, as well as the procedure used to determine its admissibility).

In Williams, the trial court held a hearing outside the presence of the jury to determine admissibility. NOT ENOUGH TO PROVE CONSPIRACY OR THAT BOTH ACCUSED AND DECLARANT VOLUNTARILY PARTICIPATED IN SAME It must be borne in mind that the mere showing that a conspiracy in fact existed and that both the defendant and the declarant had voluntarily become members of that conspiracy does not meet the requisites of Rule 801(d)(2)(E). “In addition to requiring a showing that a conspiracy existed and the Defendant voluntarily participated, Rule 801(d)(2)(E) requires that the particular statement offered have been made both “during the course” and “in furtherance” of the conspiracy. 4 LOUISELL, FEDERAL EVIDENCE § 427 at 33; U.S. v. Meacham, 626 F.2d 503, 510-511 n.8 (5th Cir. 1980);

U.S. v. Postal, 589 F.2d 862 (5th Cir. 1979), cert. denied, 444 U.S. 832; U.S. v. Caro, 569 F.2d 411 (5th Cir. 1978); U.S. v. Wilkerson, 469 F.2d 963, 968 (5th Cir. 1972), cert. denied, 410 U.S. 986 (1973); U.S. v. Williamson, 450 F.2d 585, 590-91 (5th Cir. 1971), cert. denied, 405 U.S. 1026; U.S. v. Green, 600 F.2d 154 (8th Cir. 1979); U.S. v. Eubanks, 591 F.2d 513 (9th Cir. 1979); U.S. v. Lang, 589 F.2d 92 (2d Cir. 1978); U.S. v. Holder, 652 F.2d 449, 450 (5th Cir. 1981); U.S. v. Portier, 623 F.2d 1017, 1020 (5th Cir. 1980). STATEMENTS MUST HAVE BEEN MADE “DURING COURSE” OF CONSPIRACY Thus, there is a “general rule that the arrest of the co-conspirator puts an end to the conspiracy” and a co-conspirator’s subsequent “statement incriminating the other defendants [is] not admissible at their trial.” U.S. v. Meacham, 626 F.2d 503, 510-511 n.8 (5th Cir. 1980). See also U.S. vs. Palow, 777 F.2d 52, 57 (1st Cir. 1985) (noting that co-conspirator statements made as to defendant, after the conspiracy objectives either failed or were completed, are inadmissible). CO-CONSPIRATOR’S RULE DOESN’T MEAN WHAT IT SAYS Although Rule 801(d)(2)(E) expressly requires that a co-conspirator’s statement is only admissible if it was made “during the course” of a conspiracy, at least one court has held that a statement regarding the possibility of the defendant’s entry into a conspiracy (obviously made before the conspiracy was entered into) was nevertheless admissible under the rule. U.S. v. Baines, 812 F.2d 41 (1st Cir. 1987) (co-conspirator’s rule does not’ mean what it says). STATEMENTS MUST HAVE BEEN MADE “IN FURTHERANCE” OF THE CONSPIRACY Similarly, statements made by a fellow co-conspirator who is also a paid government informer to a known government agent are not admissible under the “co-conspirator’s exception” to the hearsay rule because, recognizing the “agency fiction” underlying this rule, such individual is at that time acting not as the agent of his co-conspirators, but as the agent of the government and the hearsay statements were not made “in furtherance of the conspiracy but rather to frustrate it.” U.S. v. Wilkerson, 469 F.2d 963, 968 (5th Cir. 1972); U.S. v. Williamson, 450 F.2d 585, 590-1 (5th Cir. 1981), cert. denied, 405 U.S. 1026 (1972).

See also

U.S. v. Summers, 598 F.2d 450 (5th Cir. 1979); U.S. v. Palow, 777 F.2d at 57.

Mere puffing, bravado or braggadocio, even by one who has been shown to have become a member of the conspiracy, does not fit the requirements of Rule 801(d)(1)(E), where the statement could not be said to have been made to further some conspiratorial goal. U.S. v. Fielding, 645 F.2d 719 (9th Cir. 1981). However, puffing, boasts and braggadocio are admissible when the declarant uses them to obtain the confidence of one in the conspiracy. U.S. v. Santiago, 837 F.2d 1545, 1549 (11th Cir. 1988); U.S. v. Miller, 664 F.2d 94, 98 (5th Cir. Unit B, 1981), cert. denied, 549 U.S. 854 (1982). CO-CONSPIRATOR’S EXCEPTION SHOULD NOT BE EXPANDED The drafters of the Federal Rules evinced concern that the co-conspirator’s exception not be expanded: “The agency theory of conspiracy is at best a fiction and ought not serve as a basis for admissibility beyond that already established.” Adv. Comm. Notes, FED. R. EVID. R. 801(d)(2)(E). The trial court “should refrain from advising the jury of his findings that the government has satisfactorily proved the conspiracy.” U.S. v. Vinson, 606 F.2d 149, 153 (6th Cir. 1979). ADVISORY COMMITTEE OBSERVED DISTINCTION BETWEEN HEARSAY RULE AND CONFRONTATION CLAUSE In drafting the Federal Rules of Evidence the Advisory Committee noted the distinction between the Hearsay Rule and the Confrontation Clause: “[T]he impact of the Clause clearly extends beyond the confines of the hearsay rule…. In recognition of the separateness of the Confrontation Clause and the Hearsay Rule and other exclusionary principles, the exception set forth in Rules 803 and 804 are stated in terms of exemption from the general exclusionary mandate of the hearsay rule, rather than in positive terms of admissibility.” Adv. Comm. Notes, FED. R. EVID. Art. VIII.

IS APPROPRIATE OBJECTION “DENIAL OF SIXTH AMENDMENT RIGHT OF CONFRONTATION”, NOT MERELY “HEARSAY”? While co-conspirator’s statements meeting the requirements of Rule 801(d)(2)(E), may not constitute “hearsay” under the Federal Rules of Evidence, at least one court had held they may still be inadmissible as denying the accused his Sixth Amendment right to confrontation and crossexamination, at leas where there is no showing the witness is unavailable. U.S. v. Gibbs, 703 F.2d 683, 691-695 (3d Cir. 1983) (noting opinion withdrawn and district court affirmed on rehearing (739 F.2d 838) for failure of defends counsel to raise confrontation objection at trial) See also Rule 103(a)(1). In Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), the Supreme Court recognized that the Confrontation Clause and the hearsay rule ‘stem from the same roots’, but declined to equate the two. Id. at 86, 91 S.Ct. at 218. We therefore believe that the Confrontation clause issue and the evidentiary question must be separately analyzed, and that the sixth amendment may require the exclusion of evidence even though admissible under FED. R. EVID. 801 (d)(2)(E). Because the right of confrontation is so important in our adversarial system, it may only be denied in exceptional situations. The Government has not met its burden to show that the instant case is such an exceptional situation. The prosecution has failed to establish either that the declarant cannot be produced for trial, or that the hearsay is sufficiently reliable and insignificant to justify dispensing with a showing of unavailability. “The admission into evidence of Quintiliano’s statements had the effect of sharply tipping the scales of justice against the defendant. Under these circumstances, the historic safeguard guaranteeing the accused the right to be confronted with the witnesses against him may not be disregarded. We therefore hold that where the Government has not demonstrated that the declarant is unavailable, and where the out-of-court statements are not sufficiently refillable and peripheral tuo justify dispensing with the unavailability requirement, the statements may not be admitted into evidence. The admission of the challenged evidence therefore constitutes reversible error.” U.S. v. Gibbs, 739 F.2d 838 (3d Cir. 1984). See also

U.S. v. Palow, (violation of confrontation clause where co-defendant makes postconspiracy statement but does not testify at trial, precluding opportunity to crossexamine).

However, the Supreme Court has expressly rejected as a “radical proposition” the contention that co-conspirator declarations should not be admitted without demonstrating that the declarant is reasonably unavailable to testify and be cross-examined.

U.S. v. Inadi, 475 U.S. 387, 394 (1986). For an example of Texas law on this point. See Buckley v. State, 786 S.W.2d 357, 359 (Tex.Cr.App. 1990). The Confrontation Clause normally requires a showing of unavailability. The court noted, however, that the Supreme Court has “identified at least one exception to this norm.” Buckley v. State, 786 S.W.2d 357, 359 n.2 (Tex.Cr.App. 1990)(citing Inadi). The courts of Texas adhere to the same proposition that the right of confrontation is not absolute. See, e.g., Porter v. State, 578 S.W.2d 742, 745 (Tex. Cr. App. 1979). “If literally applied, the Confrontation Clause would abrogate virtually every hearsay exception …” Loven v. State, 831 S.W.2d 387, 393 (Tex. App. – Amarillo 1992)(citing Maryland v. Craig, 110 S.Ct. 3157, 3166 (1990); Ohio v. Roberts, 448 U.S. 56, 63 (1980)). “Confrontation and cross-examination are not essential where indicia of reliability is sufficient to ensure the integrity of the fact-finding process.” Huff v. State, 897 S.W.2d 829, 1995 WL 42722 at *8 (Tex. App. – Dallas, 1995)(citing Porter, 578 S.W.2d at 745). The Dallas Court of Appeals in Huff utilized the test from Ohio v. Roberts, stating that the reliability of an out-ofcourt statement may be inferred without more when the statement falls within a firmly rooted hearsay statement. Id. IS THERE A CONFRONTATION OBJECTION BEYOND HEARSAY? The Supreme Court has held that at least with respect to the co-conspirator’s exception, which they found so “steeped in our jurisprudence,” the Sixth Amendment Confrontation Clause provides no greater protection than those found in Rule 801(d)(-2)(E) of the Federal Rules of Evidence: “[T]here can be no separate Confrontation Clause challenge to the admission of a co-conspirator’s out-of-court statement.” Bourjaily v. U.S., 483 U.S. 171, 97 L.Ed.2d 144, 15, 107 S.Ct. 2775 (1987). SCOPE OF CROSS-EXAMINATION FED. R. EVID. Rule 611(b) Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witnesses [limiting the original draft which allowed crossexamination “…on any matter relevant to any issue in the case,” H.R. Rep. No. 93-650, 93rd, Cong. First Sess. 12.1973]. U.S. v. Walker, 613 F.2d 1349 (5th Cir. 1980); U.S. v. Wolfson, 573 F.2d 216 (5th Cir. 1978).

See also

U.S. v. Haili, 443 F.2d 1295, 1299 (9th Cir. 1971); Casey v. U.S., 413 F.2d 1303 (5th Cir. 1969), cert. denied, 397 U.S. 1029 (1970); U.S. v. Evanchik, 413 F.2d 950 (2d Cir. 1969). LIMITATION ON CROSS-EXAMINATION HELD VIOLATIVE OF CONFRONTATION GUARANTEED BY SIXTH AMENDMENT U.S. v. Lewis, 447 F.2d 134 (2d Cir. 1971); U.S. v. Wolf v. Wolfson, 437 F.2d 862 (2d Cir. 1970); U.S. v. Dickens, 417 F.2d 958 (8th Cir. 1969); U.S. v. Hitchmon, 609 F.2d 1098 (5th Cir. 1979).

BUT: CONFRONTATION CLAUSE VILATION NOW SUBJECT TO HARMLESS ERROR RULE In Delaware v. Van Arsdall, 475 U.S. 673, 89 L.Ed.2d 674 (1986), the defendant in a murder trial was barred by the trial judge from cross-examining a witness for the state concerning an agreement between the witness and the state in which the state agreed to drop a public drunkenness charge against the witness in exchange for testimony concerning the murder. The defendant was convicted, but the Delaware Supreme Court reversed the conviction noting that “the bias of a witness is subject to exploration at trial and is ‘always relevant as discrediting the witness and affecting the weight of his testimony.’” Davis V. Alaska, 415 U.S. 308, 316 (1974). The Supreme Court held that “the trial judge’s ruling denied respondent his constitutional right to effective cross-examination …the ruling kept from the jury facts concerning bias that were central to assessing [the witness’] reliability…’a blanket prohibition against exploring potential bias through cross-examination is “a per se error.” 89 L.Ed.2d at 682. The U.S. Supreme Court granted certiorari, and even though it agreed that the respondent had been denied his Sixth Amendment right to confrontation, it vacated the state court decision and remanded for a consideration of whether same was harmless error: “Accordingly, we hold that the constitutionally improper denial of a defendant’s opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to Chapman harmless error analysis. The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of crossexamination otherwise permitted, and, of course, the overall strength of the prosecution’s case. Delaware v. Van Arsdall, 475 U.S. 673, 89 L.Ed.2d 674 (1986).

Harrington, 395 U.S. 250, 254, 23 L. Ed. 2d 284, 89 S.Ct. 1726 (1969); Schneble v. Florida, 405 U.S. 427, 432, 31 L.Ed.2d 340, 92 S.Ct. 1056 (1972). 89 L.Ed.2d at 686-87.

Cf.

Texas has also adopted a “harmless error” rule for denial of confrontation rights. See, e.g.

Young v. State, 891 S.W.2d 945, 948 (Tex. Cr. App. 1994); Clark v. State, 881 S.W.2d 682, 695-96 (Tex. Cr. App. 1994)(citing Delaware v. Van Arsdall). IMPEACHMENT

“[T]he exposure of a witness’ motivation in testifying is a proper and important function of the Constitutionally protected right of cross-examination.” Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988). The magnitude of the right permits inquiry into otherwise inaccessible matters; Record of offenses committed while still a juvenile to show motive to testify adversely, Davis v. Alaska, 415 U.S. 308, 315-316 (1974), an alleged rape victim’s present cohabitation to show her motive to fabricate story of rape, Olden v. Kentucky, 488 U.S. 227, 109 S. Ct. 480, 102 L.Ed.2d 513 (1988). Also, use of a videotape interview with a child witness may be used to impeach the testimony of a social worker about what occurred during that interview. Hall v. State, 764 S.W.2d 19 (Tex.App. Amarillo, 1988). FED. R. EVID. RULE 607 ALLOWS IMPEACHING ONE’S OWN WITNESS “The credibility of a witness may be attacked by any party, including the party calling him.” U.S. v. Hagenstab, 575 F.2d 1035 (2d Cir. 1978); U.S. v. Craig, 573 F.2d 513 (7th Cir. 1978). However, the prosecution may not use a witness’ prior inconsistent statement under the guise of impeachment for the primary purpose of getting otherwise inadmissible evidence before the jury. U.S. v. Miller, 664 F.2d 94, 97 (5th Cir. 1981), cert. denied, 459 U.S. 854 (1982) (emphasis added). And while the government may call a witness it knows may be hostile and impeach his credibility, it may not call a witness it knows to be hostile for the primary purpose of eliciting otherwise inadmissible impeachment testimony. U.S. v. Hogan, 763 F.2d 697, 702 (5th Cir. 1985), reh’g denied in part, 771 F.2d 82 (5th Cir. 1985).

Rule 611(c) restricts “leading questions” to cross-examination unless “necessary to develop” the witness’ testimony, “a hostile witness, an adverse party, or witness identified with an adverse party.” WHO IS THE GOVERNMENT’S CLIENT? It is often helpful to expose the jury to whom the Government has chosen as its client in the case. Every witness places his character for truthfulness in issue and counsel should seek out witnesses who can assist the jury in determining whether the witness under oath is worthy of their belief. One may support a witness once that witness’ character has been attacked. U.S. v. Cosentino, 844 F.2d 30 (2d Cir. 1988) (noting door opened to admit cooperation agreement). But one may not support his or her own witness’ character until it is attacked. U.S. v. Fernandez, 829 F.2d 363 (2nd Cir. 1987) (eliciting vacillating testimony from a witness on cross does not attack that witness’ credibility thus the same may not be supported on redirect). FED. R. EVID. RULE 608, CHARACTER AND CONDUCT OF WITNESS FOR THE TRUTHFULNESS (a)

OPINION AND REPUTATION Testimony is admissible so long as the evidence: (1) relates only to character for truthfulness or untruthfulness, and (2) only after the character of the witness has been attached by opinion or reputation evidence “or otherwise.”

(b)

SPECIFIC INSTANCES OF CONDUCT ARE NOT ADMISSIBLE:

Other than conviction of a crime [set out in Rule 609]. But specific instances are admissible within court’s discretion on cross-examination if probative of truthfulness or untruthfulness and inquired into concerning: (1) the witness’ character for truthfulness, or (2) the character for truthfulness of another witness as to whose character the witness being cross-examined has testified [eg. “have-you-heards”]. U.S. v. Morales-Quinones, 812 F.2d 604 (10th Cir. 1987) (defendant may impeach government witness by cross-examining him about specific instances of conduct not resulting in conviction if probative of witness’ character for truthfulness or untruthfulness);

U.S. v. Hit Hitchmon, 609 F.2d 1098 (5th Cir. 1979) (reversible error to restrict cross-examination of assaulted officers in an effort to show they previously had perjured themselves in the case); U.S. v. Cluck, 544 F.2d 195 (5th Cir. 1976) (reversible error to attack witness’ credibility by extrinsic evidence of prior arrest that has not resulted in conviction); U.S. v. Park, 525 F.2d 1279 (5th Cir. 1976) (Rule 608(b) not permit crossexamination of defense witness, who testified defendant had not stolen item charged, regarding suspicious air conditioner shipments and pay-offs to the accused); U.S. v. Alvarado, 519 F.2d 1133 (5th Cir. 1975), cert. denied, 429 U.S. 1073 (1977) (trial court held to have properly precluded questions of prosecution witnesses in marijuana trial regarding their possible prostitution and homosexuality [even though offered to show bias and motive to testify for government] on grounds same was too speculative); U.S. v. Banks, 520 F.2d 627 (7th Cir. 1975); U.S. v. Wood, 550 F.2d 435 (9th Cir. 1977) (testimony by Mexican police officer that defendant wanted in Mexico for auto theft was inadmissible even though it was contrary to defendant’s own testimony); U.S. v. Dinitiz, 538 F.2d 1214, 1224 (5th Cir. 1976) (en banc) (stating must articulate theory of admissibility); U.S. v. Curry, 512 F.2d 1299 (4th Cir. 1975), cert. denied, 423 U.S. 932 (1975) (addressing as to “have-you-heards”); Steele v. Perez, 827 F.2d 190 (7th Cir. 1987) (court prohibited accused child molester from cross-examining two key child witnesses about prior specific instances of lying. Court held that defendant is entitled to probe deeply about witness’ bias or motive, but not to impeach a witness’ character as a truthful person). FED. R. EVID. RULE 803(21) An individual’s character reputation among associates in the community is excluded from the hearsay rule, regardless if the declarant is available to testify. FED. R. EVID. RULE 405, CHARACTER GENERALLY Proof of character may be made by testimony as to reputation or by testimony in the form of an opinion. Character of Witness [FED. R. EVID. RULE 404(a)(3)]. Evidence of the character of a witness may be proved where admissible pursuant to Rule 607, 608 and 609. METHODS OF PROVING CHARACTER [FED. R. EVID. Rule 405

Reputation or Opinion: In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. FED. R. EVID. Rule 405(a); U.S. v. Peterson, 553 F.2d 324 (3d Cir. 1977) (evidence that the defendant belonged to a pacifist church is not admissible to show character trait of non-violence). Specific Instances of Conduct: In cases in which character or a trait of character of a person is an essential element of charge, claim, or defense, proof may also be made of specific instances of his conduct. FED. R. EVID. Rule 405(b); U.S. v. Pantone, 609 F.2d 675 (3d Cir. 1979) (Rule 405 forbids use of specific instances of conduct to prove character unless character is an essential element of the offense charged); Posey v. State, 738 S.W.2d 321 (Tex.App. 1987) (when defense was defendant resisted excessive force, inquiry into prior use of stun gun by witness was proper). PROOF OF CHARACTER [RULES 405(a) AND 608(a)] Character may be proved either by reputation or opinion testimony. FED. R. EVID. Rules 405(a) (dealing with reputation or opinion as to character or trait of character generally); FED. R. EVID. 608(a) (dealing with reputation or opinion as to credibility). The Courts have recognized a significant difference in the predicate required to prove character through opinion testimony as opposed to reputation. BY REPUTATION TESTIMONY Reputation testimony is, by definition, hearsay and a reputation witness “must have sufficient acquaintance with the principal witness and his community in order to ensure that the testimony adequately reflects the community’s assessment.” U.S. v. Watson, 669 F.2d 1374, 1381 (11th Cir. 1982) (noting some 2-3 month acquaintance with witness is insufficient even though the witness “lived in…the location …thirty-three years” and “worked with the [witness] every day”); Michelson v. U.S. , 335 U.S. 469, 478 (1948); U.S. v. Angello, 452 F.2d 1135, 1139-40 (2d Cir. 1971), cert. denied, 406 U.S. 922 (1972); U.S. v. Salazar, 425 F.2d 1384, 1286 (9th Cir. 1970); U.S. v. Oliver, 492 F.2d 943 (8th Cir. 1974) (allowing reputation testimony based upon a short period of acquaintance). “A proper foundation must be laid before the admission of reputation testimony. The reputation witness must be qualified through a showing of ‘such acquaintance with eh [person], the community in which he lived and the circles in which he has moved, as to speak with authority of the terms in which generally he is regarded.” Michelson v. U.S., 335 U.S. 469, 478 (1948).

And the trial court’s determination regarding the adequacy of the foundation for a reputation witness is ordinarily not overturned on appeal, Michelson v. U.S., 335 U.S. 469, 480-81 (1948), without demonstrating an abuse of discretion. U.S. v. Watson, 669 F.2d 1374, 1381 (11th Cir. 1982). BY OPINION TESTIMONY Historically, reputation evidence was the exclusive method for proving character. Opinion evidence was excluded. 3 Weinstein & Berger, Weinstein’s Evidence. ¶ 608 [04] (1988); McCormick, Evidence, § 4, at 95 (1954); Wigmore, Evidence, §§ 1981-86 (3d Ed. 1940). However, the enactment of FED. R. EVID. Rule 608(a) in 1976 substantially enlarged the avenues by which one may prove character, by providing that the credibility of a witness may be attacked “by evidence in the form of opinion or reputation.” FED. R. EVID. Rule 608(a); U.S. v. Lollar, 606 F.2d 587, 589 (5th Cir. 1979). Under Rule 608(a) no foundation regarding length of acquaintance or recent information such as that required for reputation testimony is required for opinion testimony, U.S. v. Lollar, 606 F.2d 587 (5th Cir. 1979); U.S. v. Watson, 669 F. 2d 1374, 1382 (11th Cir. 1982), and such “opinion” testimony may be based upon isolated instances of conduct, or personal feelings by the witness. U.S. v. Watson, 669 F. 2d 1374, 1382 (11th Cir. 1982). “The Fifth Circuit determined that prior questioning of the opinion witness regarding his knowledge of the defendant’s reputation was unnecessary. ‘The rule imposes no prerequisite condition upon long acquaintance or recent information about the witness; cross-examination can be expected to expose defects in lack of familiarity and to reveal reliance on isolated or irrelevant instances of misconduct or the existence of feelings of personal hostility towards the principle witness.” U.S. v. Watson, 669 F.2d 1374, 1382 (11th Cir. 1982). See also U.S. v. Lollar, 606 F.2d 587, 589 (5th Cir. 1929). This distinction between the foundations required for reputation as opposed to opinion testimony “follows from an analysis of the nature of the evidence involved.” U.S. v. Watson, 669 F.2d 1374, 1382 (11th Cir. 1982). Reputation testimony is based upon the community’s assessment of the witness’ character, whereas opinion testimony relates to “the witness’ own impression of an individual’s character.” Accordingly, opinion testimony relating to character may be based upon even isolated instances which “cross-examination can be expected to expose.” U.S. v. Lollar, 606 F.2d 587, 589 (5th Cir. 1979). “The reputation witness must have sufficient acquaintance with the principle witness and his community in order to ensure that the testimony adequately reflects the community’s assessment… In contrast, opinion testimony is a personal assessment of character. The opinion witness is not relating community feelings, the testimony is solely the impeachment witness’ own impression of an individual’s

character for truthfulness. Hence, a foundation of long acquaintance is not required for opinion testimony. Of course, the opinion witness must testify from personal knowledge… But once that basis is established the witness should be allowed to state his opinion, cross-examination can be expected to expose defects.” U.S. v. Watson, 669 F.2d 1574, 1582 (11th Cir. 1982). In essence, the litany of arcane reputation questions mastered by almost every third year law student and lost by just as many jurors need not be asked with respect to proof of character by opinion testimony. While it may be more desirable to have counsel first ask the impeaching witness about his knowledge of the defendant’s reputation for truth and veracity, and whether based on that knowledge he would believe the defendant under oath, Rule 608(a) imposes no such requirement. Witnesses may now be asked directly to state their opinion of the principle witness’ character for truthfulness and they may answer for example, “I think X is a liar.” The rule imposes no prerequisite conditioned upon long acquaintance or recent information about the witness; crossexamination can be expected to expose defects of lack of familiarity and to reveal reliance on isolated or irrelevant instances of misconduct or the existence of feelings or personal hostility towards the principal witness. U.S. v. Lollar, 606 F.2d 587, 589 (5th Cir. 1979) [emphasis supplied]. POLYGRAPH EVIDENCE MAY NOW BE ADMISSIBLE In 1993 the United States Supreme Court overruled the so-called Frye test, which required proof of “general acceptance” within the scientific community as a predicate for admission of expert scientific testimony, holding same had been superseded by the adoption of the Federal Rules of Evidence. Daubert v. Merrell Dow Pharmaceuticals, 113 S.Ct. 2786 (1993). “Given the Rule’s permissible backdrop and their inclusion of a specific rule on expert testimony that does not mention “general acceptance,” the assertion that the Rules somehow assimilated Frye is unconvincing. Frye made ‘general acceptance’ the exclusive test for admitting expert scientific testimony. That austere standard, absent from and incompatible with the Federal Rules of Evidence, should not be applied in federal trials.” Thereafter, courts have held that previously excluded “scientific testimony” such as polygraph results may be admissible under the relaxed standards of the Federal Rules of Evidence under Daubert. U.S. v. Posado, 57 F.2d 428, (5th Cir. 1995). “Our precedent, with few variations, has unequivocally held that polygraph evidence is inadmissible in a federal court for any

purpose. [citations omitted] However, we now conclude that the rationale underlying this circuit’s per se rule against admitting polygraph evidence did not survive Duabert v. Merrell Dow Pharmaceuticals, Inc. It is with a high degree of caution that we have today opened the door to the possibility of polygraph evidence in certain circumstances. We may indeed be opening a legal Pandora’s box. However, that the task is full of uncertainty and risk does not excuse us from our mandate to follow the Supreme Court’s lead. Rather, ‘mindful of our position in the hierarchy of the federal judiciary, we take a deep breath and proceed with this heady task.’ Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F. 3d 1311, 1316 (9th Cir. 1995). Nor are we unaware that our opinion today may raise as many questions as it answers. We leave much unsaid precisely because we believe that the wisdom and experience of our federal district judges will be required to fashion the principles that will ultimately control the admissibility of polygraph evidence under Daubert.” See also

U.S. v. Hart, 344 F.Supp. 522 (E.D.N.Y. 1971) (noting where prosecution conducts polygraph then ignores the results same are admissible over the objection of the prosecutor).

LIMITATION ON CROSS-EXAMINATION OF CHARACTER WITNESS In U.S. v. Candelaria-Gonzalez, the Fifth Circuit Court held it was reversible error to permit a prosecutor to inquire of a defense character witness whether his opinion would be affected by the defendant’s “indictment.” U.S. v. Candelaria-Gonzalez, 547 F.2d 291, 293 (5th Cir. 1977); by the offense on trial, Candelaria-Gonzalez, 547 F.2d at 294; or by what “a DEA Agent testified” to, Candelaria-Gonzalez, 547 F.2d at 294; as same “struck at the very heart of the presumption of innocence which is fundamental to Anglo-Saxon concepts of “fair trial.” Candelaria-Gonzalez, 547 F.2d at 294. One cannot so elevate Government witness’ testimony “to the status of accepted fact” as “the presumption of innocence [is] destroyed in the process.” U.S. v. Candelaria-Gonzalez, 547 F.2d at 295. Contra

U.S. v. Oshatz, 704 F.Supp 511 (S.D.N.Y. 1989) (government could ask a fact witness, who had testified as to defendant’s honesty, to assume that the defendant omitted the acts giving rise to tax fraud charges and to indicate whether such facts would alter her opinion. The District Court found not reason to distinguish questioning the witness about wrongdoing that never resulted in an arrest or conviction and wrongdoing that was currently at issue).

ONCE A LIAR FED. R. EVID. RULE 613, PRIOR STATEMENTS OF WITNESS (a) “Statement need not be shown nor its contents disclosed” to witness when examining him concerning a prior statement, but on request the same shall be shown to opposing counsel. [This applies to impeachment of witness with prior inconsistent statement.] (b) Extrinsic evidence of prior inconsistent statement of witness is not admissible unless the witness is afforded the opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon. U.S. v. DiNapoli, 557 F.2d 962 (2d Cir. 1977). Caveat

FED. R. EVID. Rule 613 deals with impeachment of a witness with a prior inconsistent statement.

The statement should be admissible as substantive evidence of the truth of the matter therein contained, where it satisfies either: (1) FED. R. EVID. Rule 801(d)(1) Prior statements by a witness, or (2) FED. R. EVID. Rule 801(d)(2) Admission by party opponent. Also, the Second Circuit held that counsel cannot offer a prior consistent statement of his own witness where credibility is not attacked. U.S. v. Fernandez, 829 F.2d 363 (2d Cir. 1987) (stating where counsel offered a cooperating witness’ plea agreement); U.S. v. Graham, 858 F.2d 986 (5th Cir. 1988) (noting officer could not be cross examined about whether co-defendant had made prior statements at all as co-defendant’s position that he had made such statements was not inconsistent with the prior inculpating statements offered through the police officer). Note: the subsequent positions did not go to the issue of whether the prior statements were true. THE NEED TO OBTAIN PRIOR STATEMENTS AT THE EARLIEST OPPORTUNITY JENCKS ACT WITNESS STATEMENT [FED. R. EVID. RULE 26.2] The Jencks Act [18 U.S.C. § 3500], now replaced by FED. R. EVID. Rule 26.2, provides that “no statement or report . . . made by a Government witness or prospective witness….shall be the subject of subpoena, discovery or inspection until said witness has testified on direct

examination in the trial of the case. But then, after a witness has “testified on direct examination,” the Government must “produce any statement … of the witness in the possession of the United States “which relates to the subject matter as to which the witness has testified.” 18 U.S.C. § 3500(a). While the statute would seem to preclude requiring the government to make pre-trial disclosure of such witness’ statements, subsection (b) of that Act provides that if the Government does wait until after the witness has testified at trial to provide his witness’ statement or report, the Court may recess the proceedings in the trial for such time as it may determine to be reasonably required for the examination of such statement by said defendant and his preparation for its use in the trial, 18 U.S.C. § 3500(b). This is obviously a needlessly time consuming process which could be avoided by early disclosure. Rule 26.2 is applicable at preliminary hearings, bond hearings, suppression hearings, sentencing revocation hearing, and hearings on writs of habeas corpus. See rules 5.1, 46i, 12i, 32, 32.1, of the Federal Rules of Criminal Procedure. Contra

U.S. v. Algil, 667 F.2d 569 (6th Cir. 1982) (approval of early release of Jencks material, but refusing to require same over prosecution’s objection). “[W]e note that in most criminal cases, pretrial disclosure will resound to the benefit of all parties, counsel, and the court. Indeed, sound trial management would seem to dictate that Jencks Act material should be transmitted prior to trial, especially in complex cases, so that those abhorrent lengthy pauses at trial to examine documents can be avoided. …We suggest that the district judge may find the pretrial conference, FED. R. CRIM. P. 17.1, a useful forum for establishing a timetable for discovery and for reaching agreements about the scope of disclosure. Particularly in multiple defendant cases, the district judge may solicit broad disclosure to assist him in disposing of motions for severance or in detecting inadmissible confessions under Bruton v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Pretrial discovery should be approached with a spirit of cooperation among court and counsel in order to prevent those burdensome trial recesses and also, we should emphasize to protect the government against postconviction claims of prejudicial surprise, see U.S. v. Baum, 482 F.2d 1325, 13311332 (2d Cir. 1973), or claims of suppression of material and favorable evidence. See Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194 (1963); U.S. v. Percevault, 480 F. 2d at 132.

Furthermore, a continuance may be required to study Jencks material and adequately prepare cross-examination, even if same is provided prior to trial. U.S. v. Holmes, 722 F.2d 37, 40-41 (4th Cir. 1983) (“Here it is clear that defendants were not afforded a reasonable opportunity to examine and digest the mass of material furnished them on the Sunday before the Monday that he trial began… It was therefore an abuse of discretion on the part of the district court to deny a reasonable delay in the progress of the trial to permit counsel to complete their studies and preparation”).

See also

U.S. v. Wables, 731 F.2d 440 (7th Cir . 1984).

In fact, 18 U.S.C. § 3500(c) [and see FED. R. CRIM. P. Rule 26.2] expressly provides that “[w]henever any statement is delivered to a defendant pursuant to this section, the court in its discretion, upon application of said defendant, may recess proceedings in the trial for some times as it may determine to be reasonably required for the examination of such statement by said defendants and his preparation for hits use in trial.” An officer’s rough investigative notes may be Jencks material, particularly where they contain the substance of a witness’ statements to the officer. U.S. v. Paoli, 603 F.2d 1029 (2d Cir. 1979); U.S. v. Gaston, 608 F.2d 607, 611-12 (5th Cir. 1979); U.S. v. Rippy, 606 F.2d 1150, 1153 (D.C. Cir. 1979); U.S. v. Ammar, 714 F.2d 238 (3d Cir. 1983) (that Jencks Act [now FED. R. CRIM. P. Rule 26.2] includes final reports, rough notes and any drafts used to prepare the final report). Contra

U.S. v. Hinton, 719 F.2d 711 (4th Cir. 1983) (where incorporated into agents reports); U.S. v. Soto, 711 F.2d 1558 (11th Cir. 1983) (reversing trial court ruleing striking government witness’ testimony on grounds rough notes were not produced).

Government agent’s notes are not discoverable under the Jenck’s Act when the witness had neither signed, read, nor heard his entire statement. The adoption contemplated by the statute must be more formal. U.S. v. Hogan, 763 F.2d 697, 704 (5th Cir. 1985). In addition, the defense is not entitled to a pre-sentence report on a government witness as Jencks material. U.S. v. Dingle, 546 F.2d 1378 (10th Cir. 1976). Accordingly, while some courts require preservation of such “notes,” U.S. v. Sanchez, 635 F.2d 47, 65-66 (2d Cir. 1980); U.S. v. Gantt, 617 F.2d 831, 841 (D.C. Cir. 1980); U.S. v. Walden, 590 F.2d 85, 86 (3d Cir.) cert. denied, 444 U.S. 849 (1979); U.S. v. Crowell, 586 F.,2d 1247, 1248 (4th Cir. 1973, Others hold that routine and good faith destruction of these notes which have been incorporated into formal reports does not violate the Jencks Act. U.S. v. Cole, 634 F.2d 866, 867-68 (5th Cir. 1981); U.S. v. Kuykendall, 633 F.2d 118, 199 (8th Cir. 1980); U.S. v. Fredrick, 583 F.2d 273, 274 (6th Cir.), cert. denied, 444 U.S. 860 (1978); U.S. v. Shovea, 580 F.2d 1382, 1289-90 (10th Cir. 1978). RULE 26.2 DOES NOT PRECLUDE PRETRIAL DISCLOSURE

Since Rule 26.2 has no language limiting or precluding disclosure of witness statements prior to trial, production of statements used by a witness to refresh his or her recollection at a pretrial “hearing” should be permitted. See U.S. v. Salsedo, 477 F.Supp 1235 (E.D. Cal. 1979); see also FED. R. CRIM. P. Rule 12(i) (noting 1983 Amendment to expanding pretrial production of government witness’ statements to any law enforcement officer, even if called by the defendant). “Although the situation is at best muddled, we prefer to believe that Rule 612 should now be interpreted as it would have been prior to the 1971 change- i.e., as if there was no reference to 18 U.S.C. § 3500 . . . . This interpretation will eliminate [the] problem which arose in federal courts prior to the effective date of Rule 26.2: whether the Jencks Act controlled in preliminary hearing or whether Rule 612 could be applied. If the Jencks Act applied on the theory that Rule 612 made it the exclusive vehicle for production in a criminal proceeding, then it was doubtful whether a court could order production of a statement of a witness testifying at the preliminary hearing. Rule 26.2 unlike section 3500, does not have the ‘in the trial’ limiting language.” Weinstein & Berger, Weinstein’s Evidence, § 612 [02] (1988). The language of the Jencks Act was amended by Rule 26.2 “after long and careful consideration by the Advisory Committee, the Supreme Court and the Congress.” Weinstein & Berger, Weinstein’s Evidence, ¶612[02] (1988). “As a general rule, the enactment of revisions and codes manifestly designed to embrace an entire subject of legislation operates to repeal former acts dealing with the same subject, although there is no repealing clause to that effect.” 73 Am.Jr.2d § 411. See also Weinstein & Berger, Weinstein’s Evidence, §612[02] (1988). Here, according to the enabling statute “all laws in conflict with such rules [of criminal procedure] shall be of no further force or effect after such rules have taken effect.” 18 U.S.C. §3737. Accordingly, the Jencks Acts’ 1970 prohibition against pretrial disclosure of witnesses’ statements, being in conflict with the recent enactment of Rule 26.2, has no force or effect. As one of the leading commentators has noted, while the Jencks Act was not repealed with the enactment of the all-encompassing Rule 26.2, “it should be deemed repealed.” Weinstein & Berger, Weinstein’s Evidence, ¶ 612[02] (1978). Courts have applied Rule 26.2 to provide for pretrial discovery of even statements made by one other than the testifying witness. U.S. v. Musgrave, No. SA-80-CR-70 (W.D. Tex., July 22, 1985). This Court believes that the reports read by Special Agent Allen at the preliminary hearing on June 17, 1985, qualify as ‘statements’ within the meaning of Rule 26.2. Although the reports were prepared by another case agent, Special Agent Allen relied upon those reports to provide various factual information. His reliance on the reports indicates his belief that the reports were accurate and thus this Court is of the opinion that his reliance on the reports manifests his adoption of the matters set forth therein. Consequently, this Court is of the opinion that Allen adopted the

information contained in the reports as his own and thus that the reports constitute ‘statements’ within the meaning of Rule 26.2 and are discoverable by the Defendant to the extent that the reports are relevant to Special Agent Allen’s testimony. The Government claims that FED. R. CRIM. P. Rule 12(i) limits the application of Rule 26.2 to suppression hearings. This Court does not agree. While Rule 12(i) provides that Rule 26.2 shall apply at suppression hearings, it contains no other language that would appear to limit the Rule’s application strictly to hearings arising in connection with a motion to suppress… Rule 26.2 contains no indication that the rule is to apply only at suppression hearings or at trial.

Compare

FED. R. CRIM. P. Rule 26.2; 18 U.S.C. § 3500.

Consequently, this Court believes that Rule 26.2 applies to the proceeding at issue and thus believes that the statements read by Special Agent Allen should have been disclosed to the Defendant insofar as they were relevant to his testimony.” U.S, v. Musgrave, Supra. More recently in U.S. v. Salinas, SA-89-CR-77 (W.D. Tex. September 29, 1990) (noting the District Court ordered production of agents’ reports to the Magistrate for him to review and determine those which must be produced to the defense).

WITNESS STATEMENTS ARE DISCOVERABLE AT “DETENTION HEARING” In 1993, FED. R. CRIM. P. Rule 46 was amended to provide for the production of witness statements at a detention hearing, required to be held within days after an individual’s arrest. “Rule 46. Release From Custody…. (i)PRODUCTION OF STATEMENTS. (1) In General. Rule 26.2(a)-(d) and (f) applies at a detention hearing held under 18 U.S.C. § 3144, unless the court for good cause shown, rules otherwise in a particular case.” WITNESS STATEMENTS ARE DISCOVERABLE AT SUPPRESSION HEARING

FED. R. CRIM. P. Rule 12(i) makes Rule 26.2’s requirement for production of witness statements applicable to pretrial suppression hearings, whether a “law enforcement” officer is called by the prosecution or defense. “Rule 12 Pleadings and Motions Before Trial… (i) Production of Statements at Suppression Hearing. Except as herein provided, Rule 26.2 shall apply at a hearing on a motion to suppress evidence under subdivision (b)(3) of this rule. For purposes of this subdivision, a law enforcement officer shall be deemed a witness called by the government, and upon a claim of privilege the court shall excise the portions of a statement containing privileged matter.” THE NEED TO INTERVIEW THE GOVERNMENT CLIENT Where witnesses, particularly eyewitnesses, are known to the defense they should be made available to both sides. U.S. v. Brown, 555 F.2d 407, 425 (5th Cir. 1977); U.S. v. Scott, 578 F.2d 261, 268 (6th Cir. 1975); U.S. v. Murray, 492 F.2d 178, 194 (9th Cir. 1973); U.S. v. Long, 449 F.2d 288, 295 (8th Cir. 1977); U.S. v. Gregory, 369 F.2d 185 (D.C. Cir. 1966); U.S. v. Walton, 602 F.2d 1176, 1179-80 (4th Cir. 1979). “Witnesses, particularly eye-witnesses to a crime are the property of neither the prosecution nor the defense. Both sides have an equal right, and should have an equal opportunity to interview them.” Gregory v. U.S., 369 F.2d 185 (D.C. Cir. 1966). EVEN IF THE GOVERNMENT’S CLIENT IS IN “PROTECTION” PROGRAM In U.S. v. Walton, 692 F.2d 1176 (4th Cir. 1979), the Fourth Circuit held that even where the government felt “…it necessary to place witnesses in protective custody,” it remains “the duty of the trial court to ensure that counsel for defense has access to the secluded witness under controlled arrangements,” noting: “A witness is not the exclusive property of either the government or a defendant; a defendant is entitled to have access to any prospective witness, although in the end the witness may refuse to be interviewed.” U.S. v. Walton, 692 F.2d at 1177-78. PRE-SENTENCE REPORTS OF CO-DEFENDANTS

The Fifth Circuit in U.S. v. Trevino, 556 F.2d 2165 (5th Cir. 1977) has held these reports are not discoverable under Rule 16, Jencks Act, or Brady, unless actually in the possession of the United States Attorney. The Fourth Circuit, however, has held that if a report contains exculpatory material, that portion must be discloses. However, if a report is only material to impeach the witness, reversal for failure to disclose is only required when there is a reasonable likelihood of the report affecting the trier of fact. U.S. v. Figurski, 545 F.2d 389 (4th Cir. 1976). “IMPEACHMENT” EVIDENCE IS “EXCULPATORY” FOR BRADY PURPOSES Material discoverable under Brady v. Maryland, 373 U.S. 83 (1963) includes evidence “favorable to the accused either direct or impeaching.” Williams v. Dutton, 400 F.2d 797 (5th Cir. 1972); Giles v. Maryland, 386 U.S. 66, 76 (1967); Giglio v. U.S., 405 U.S. 150 (1972); U.S. v. Poole, 379 F.2d 828 (7th Cir. 1967); U.S. v. Miller, 411 F.2d 825 (2d Cir. 1969). In Kyles, v. Whitley, 115 S.Ct. 1555 (1995), the Supreme Court placed the onus on the prosecution to produce exculpatory evidence that was significant enough to result in a denial of defendant’s right to a fair trial. The significance of such evidence is not evaluated in isolation but considered cumulatively with all the similarly exculpatory or impeachment information of which any member of the prosecution team is aware. Kyles v. Whitley, 115 S.Ct. 1555 (1995). The evidence found material was that: one out of four eye witnesses’ description did not match Kyles; statements made by a witness of the state did not express concern that he might be a suspect; license plates from cars at the scene which might have revealed suspects the state did not pursue. “The fourth and final aspect of Bagley materiality to be stressed here is its definition in terms of suppressed evidence considered collectively, not item by item. [T]he prosecution…must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of “reasonable probability” [that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Kyles v. Whitley, 115 S.Ct. 1555, 1558 (1995)] is reached. This in turn means that the individual prosecutor had a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police. But whether the prosecutor succeeds or fails in meeting this obligation (whether, that is, a failure to disclose is good faith or bad faith … the prosecution’s responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable.” Kyles v. Whitley, 115 S.Ct. 1555, 1567, 1568 (1995). Furthermore, the right to disclosure under Brady should include pre-trial discovery by the defendant. U.S. v. Gleason, 265 F. Supp. 880, 884-85 (S.D.N.Y. 1967) (requiring in-camera inspection prior to trial); U.S. v. Morrison, 43 F.R.D. 516, 520 (N.D. Ill. 1967);

See contra

U.S. v. Ladd, 48 F.R.D. 166 (D. Alaska, 1969); U.S. v. Ahmad, 53 F.R.D. 186, 193-94 (M.D. Pa. 1971); U.S. v. Partin, 320 F. Supp. 275, 284-85 (E.D. La. 1970); U.S. v. Leta, 60 F.R.D. 127 (D.C. Pa. 1973); U.S. Ex rel Drw v. Myers, 327 F.2d 174 (3d Cir. 1964); ABA Standards, Discovery and Procedure Before Trial, (approved 1970), 2.1). U.S. v. Leighton, 265 F. Supp. 27, 35 (S.D.N.Y. 1967); Ashley v. Texas, 399 F.2d 610, 615 (5th Cir. 1963); U.S. ex rel Butler v. Maroney, 319 F.2d 622 (3d Cir. 1963); U.S. v. American Oil Co., 286 F. Supp. 742, 754 (D.N.S. 1963); U.S. v. More, 439 F.2d 1107, 1108 (6th Cir. 1971).

Certainly pre-trial discovery of Brady materials should be allowed with respect to material which is “obviously exculpatory” or of “such a nature that delay in disclosure would prevent the defendant from effectively using it at trial.” U.S. v. Cobb, 271 F. Supp. 159, 164 (S.D.N.Y. 1967). After all, Brady itself involved a pre-trial request for a co-defendant’s statement. “[I]t is recognized that there are some categories of exculpatory evidence which would be of little use unless discovered before trial.” U.S. v. Ladd, 48 F.R.D. 266, 267 (D. Alaska). Where exculpatory evidence is contained in a statement of a Government witness, discoverable under the Jencks Act only after the witness has testified, then the Jencks Act’s “…statutory restrictions must accommodate the demands of due Process,” and the relevant portions disclosed prior to trial. U.S. v. Gleason, 265 F. Supp 880, 887 (S.D.N.Y. 1967). Contra

U.S. v. Eisenberg, 469 F.2d 156 (8th Cir. 1972).

The obligation to disclose favorable evidence to the accused is that of the Government and failure to disclose such information is not excused merely because the prosecutor did not have actual knowledge of such favorable evidence. Barbee v. Warden, 331 F.2d 842, 846 (4th Cir. 1964); Rhinebart v. Rhay, 440 F.2d 725 (9th Cir. 1971), cert. denied, 404 U.S. 825; U.S. v. Bryant, 439 F.2d 642 (D.C. Cir. 1971); U.S. v. Auten, 632 F.2d 478 (5th Cir. 1980) (stating prosecutor cannot “compartmentalize” his information by not inquiring of the “prosecutorial team”). “The duty of disclosure affects not only the prosecutor, but the Government as a whole, including its investigative agencies.” U.S. v. Bryant, 439 F.2d 642, 650 (D.C. Cir. 1971). Contra

Luna v. Beto, 395 F.2d 135 (5th Cir. 1968).

This is because the rationale which underlies the Brady rule is not only based upon the desire to proscribe prosecutorial misconduct but to insure that the defendant receives a fair trial.

Consequently, the fact that a Government agency suppresses evidence from the prosecutor should not be controlling where such adversely affects the defendant’s right to a fair trial. However, it has been held the prosecutor need not go out and seek information favorable to an accused from non-governmental third parties. U.S. v. Burns, 668 F.2d 855 (5th Cir. 1982). Certainly upon defense request a prosecutor has an obligation to exercise due diligence to determine if Government agencies have any information favorable to the defendant. MOORE’S FEDERAL PRACTICE – CRIMINAL RULES § 16.06[1]; U.S. v. Robert, 338 F.2d 640, 648 (2d Cir. 1968). Brady motions should be as specific as possible with respect to the items sought (e.g. names, addresses, and statements of witnesses to the offense unable to identify the defendant); however, the very nature of the Brady rule makes a particularized request in many instances a practical impossibility. “If the defense does not known of the existence of the evidence, it may not be able to request its production. A murder trial-indeed any criminal proceeding- is not a sporting event.” Giles v. Maryland, 386 U.S. 66 (1967) (Fortas, J., concurring). Cf.

U.S. v. Agurs, 427 U.S. 97 (1976).

Materials and evidence which have been held to constitutionally require disclosure under Brady v. Maryland include: extrajudicial statements of a co-defendant favorable to the accused (indicating that defendant was guilty of murder but not capital murder as he had not pulled the trigger), Brady v. Maryland, 373 U.S. (1963) (evidence impeaching Government witnesses [“…favorable to the accused either direct or impeaching”]); Williams v. Dutton, 400 F. 2d 797 (5th Cir. 1968). See also Giglio v. U.S., 405 U.S. 150 (1972); Giles v. Maryland, 386 U.S. 66, 76 (1976); U.S. v. Poole, 379 F.2d 828 (7th Cir. 1967); U.S. v. Miller, 411 F.2d 825 (2d Cir. 1969); Prior sexual relations by a prosecutrix in a rape case, Giles v. Maryland, 386 U.S. 66 (1967) (remanded for further proceedings; medical examination disclosing no evidence that kidnap victim had been sexually assaulted); See also

U.S. v. Poole, 379 F.2d 648 (7th Cir. 1967) (eye witness’s oral statement that gave description which differed from defendant’s appearance [“defendant’s complexion was too dark for him to have been the man she saw”]);

Jackson v. Wainwright, 390 F.2d 388 (5th Cir. 1968), cert. denied, 593 U.S. 180 (showing psychiatric reports indicating the defendant’s insanity); Ashley v. Texas, 319 F.2d 80 (5th Cir. 1963) (showing eyewitness report indicating self-defense); Butler v. Maroney, 319 F.2d 622 (3d Cir. 1963) (showing with paint, no blood); Miller v. Pate, 388 F.2d 737 (9th Cir. 1968) (fact that defendant appeared under influence of alcohol shortly after offense); U.S. ex rel Thompson v. Dye, 221 F.2d 1955 (3d Cir. 1955) (criminal record of prosecution witness); In re Ferguson, 489 F.2d 1234 (9th Cir. 1971) (unreliability of Government witness); Mesarosh v. U.S., 352 U.S. 1 (1956) (fact that Government witness had faulty recollection of facts later testified to at trial); Levin v. Clark, 408 F.2d 1209 (D.C. Cir. 1967) (instructions to Government witness not to speak with defense counsel, or to do so only in presence of Government counsel); Gregory v. U.S., 369 F.2d 185, 187-89 (D.C. Cir. 1966); Coppolinio v. Helpern, 266 F. Supp. 930 (S.D.N.Y. 1967) (showing evidence of a witness’s unstable mental condition); Giles v. Maryland, 386 U.S. 66, 75, n. 6 (1967) (Government witness was an informer); U.S. v. Olt, 489 F.2d 872 (7th Cir. 1973) (information that prosecution’s key witness was the paramour of the defendant’s murdered wife); Alcorta v. Texas, 355 U.S. 28 (1957) (information indicating Government witness’ untruthfulness [e.g. witness’ false testimony]); Napue v. Illinois, 360 U.S. 264 (1959) (scientific information regarding ballistics or fingerprint examinations indicating defendant did not fire weapon in questions); Barbee v. Warden, 331 F.2d 842 (4th Cir. 1964) (proving name of witness who had stated that the defendant was not at the scene of the crime); U.S. ex rel Meers v. Wilkins, 326 F.2d 135 (2d Cir. 1964) (identity of any witnesses who can give favorable testimony for accused); U.S. v. Hinkle, 307 F. Supp. 117 (D.D.C. 1969); U.S. v. Cody, 722 F.2d 1052, 1062 (2d Cir. 1983) (FBI Agents’ threats inducing witness to continue recording conversations with RICO defendant); Austin v. McKaskle, 724 F.2d 1153, 1156 (5th Cir. 1984) (witness’ perjured testimony of aggravating factors at sentencing hearing leading to life sentence). A defendant’s objection to the Government’s use of undisclosed Brady testimony is not waived by the extensive cross-examination of the witness if the trial court, in overruling the objection, expressly sets direction of trial proof on the matter. See U.S. v. Hogan, 763 F.2d 697, 701 (5th Cir. 1985).

BRADY LIVES REGARDLESS WHETHER PROSECUTOR ACTUALLY AWARE OF EVIDENCE “On habeas review, we follow the established rule that the state’s obligation under Brady v. Maryland [citation omitted], to disclose evidence favorable to the defense, turns on the cumulative effect of all such evidence suppressed by the government, and we hold that the prosecutor remains responsible for gauging that effect regardless of any failure by the police to bring favorable evidence to the prosecutor’s attention” Kyles v. Whitley, 514 U.S. 419, 131 L. Ed. 2d 490, 115 S.Ct. 1555 (1995). WHETHER EVIDENCE IS EXCULPATORY OR ONLY “IMPEACHING” The Court made clear again that it matters not whether the withheld evidence is truly exculpatory or merely “impeaches” a prosecution witness. “In the third prominent case on the way to current Brady law, United States v. Bagley, 473 U.S. 667 (1965), the Court disavowed any difference between exculpatory and impeachment evidence for Brady purposes, and it abandoned the distinction between the …’specific request’ and ‘general-or-no-request’ situations…Bagley held that regardless of request, favorable evidence is material, and constitutional error results from its suppression by the government.” Kyles v. Whitley, 514 U.S. 419, 131 L.Ed.2d 490, 115 S.Ct.1555 (1995). EVEN IF NEVER REQUESTED BY THE DEFENSE The Supreme Court “found a duty on the part of the Government even…where the Government failed to volunteer exculpatory evidence never requested, or requested only in a general way.” NEED NOT UNDERCUT EVERY ITEM OF INCRIMINATING EVIDENCE The withheld exculpatory or impeaching matters need not undercut every item of incriminating evidence to require reversal under Brady. “In assessing the significance of the evidence withheld, one must of course bear in mind that not every item of the State’s case would

have been directly undercut if the Brady evidence had been disclosed…” Kyles v. Whitley 514 U.S. 419, 131 L.Ed.2d 490, 115 S.Ct. 1555 (1995). AS IF JUSTICE SOUTER LISTENED TO O.J.’s CLOSING ARGUMENT “[T]he question is not whether the State would have had a case to go to the jury if it had disclosed the favorable evidence, but whether we can be confident that the jury’s verdict would have been the same. Confidence that it would have been cannot survive a recap of the suppressed evidence and its significance from the prosecution. The jury would have been entitled to find (a) that the investigation was limited by the police’s uncritical readiness to accept the story and suggestions of an informant whose accounts were inconsistent…; (b) that the lead police detective who testified was either les than wholly candid or less than fully informed; (c) that the informant’s behavior raised suspicions that he had planted both the murder weapon and the victim’s purse in the places they were found; (d) that one of the four eyewitnesses crucial to the State’s case had given a description that did not match the defendant and better described the informant; (e) that another eyewitness had been coached, since he had first stated that he had not seen the killer outside the getaway car, or the killing itself, whereas at trial he claimed to have seen the shooting, described the murder weapon exactly, and omitted portions of his initial description that would have been troublesome for the case; (f) that there was no consistency to eyewitness descriptions of the killer’s height, build, age, facial hair, or hair length. Since all of these possible findings were precluded by the prosecutor’s failure to disclose the evidence that would have supported them, ‘fairness’ cannot be stretched to the point of calling

this a fair trial. Perhaps, confidence that the verdict would have been the same could survive the evidence impeaching even two eyewitnesses if the discoveries of gun and purse were above suspicion. Perhaps those suspicious circumstances would not defeat confidence in the verdict if the eyewitnesses had generally agreed on a description and were free of impeachment. But confidence that the verdict would have been unaffected cannot survive when suppressed evidence would have entitled a jury to find that the eyewitnesses were not consistent in describing the killer, that two out of the four eyewitnesses testifying were unreliable, that the most damning physical evidence was subject to suspicion, that he investigation that produced it was insufficiently probing, and that the principal police witness was insufficiently informed or candid.” Kyles v. Whitley, 514 U.S. 419, 131 L.Ed.2d 490, 115 S.Ct. 1555 (1995). STUTTER-STEP BACKWARDS? While reaffirming their decision in Kyles, and not retreating from prior holdings that evidence need not necessarily be admissible to constitute Brady material, on October 10, 1995 the Supreme Court, in another five to four per curiam opinion, summarily reversed a Ninth Circuit decision that found the failure to disclose non-admissible polygraph examination indicating two key prosecution witnesses had been less than truthful, constituted a Brady violation. Wood v. Bartholomew, 516 U.S. 1, 133 L.Ed.2d 1, 116 S.Ct. 7(1995). “In short, it is not ‘reasonably likely’ that disclosure of the polygraph results—inadmissible under state law—would have resulted in a different outcome at trial… Whenever a federal court grants habeas relief to a state prisoner the issuance of the writ exact great cost to the State’s legitimate interest in finality. And where, as here, retrial would occur 13 years later, those costs and burdens are compounded many times. Those costs may be justified where serious doubts about the reliability of a trial infected with constitutional error exist. But where, as in this case, a federal appellate court, second –guessing a convict’s own trial counsel, grants habeas relief on the basis of little more than speculation with slight support, the proper delicate balance between the federal courts and the States is upset to a degree that requires correction.”

FED. R. EVID. RULE 614, INTERROGATION BY THE COURT:

U.S. v. Robinson, 635 F.2d 981 (2d Cir. 1980) (noting trial court’s conduct of trial left much to be desired). WHY WOULD THE WITNESS BE TELLING THIS STORY IF IT WASN’T THE TRUTH- SOME WITNESSES ARE PAID WITH MONEY, SOME WITH A COMMODITY MORE VALUABLE, THEIR LIFE OR THEIR LIBERTY BIAS, MOTIVE OR PREJUDICE A witness may be impeached by showing that his testimony may be motivated by reasons other than to tell the truth; A.

Prior arrests or pending indictment against prosecution witness. U.S. v. Musgrave, 483 F.2d 327 (5th Cir. 1973); U.S. v. Crouchier, 532 F.2d 1042 (5th Cir. 1976); U.S. v. Garrett, 542 F.2d 23 (6th Cir. 1976); U.S. v. Dehem, 498 F.2d 1327 (7th Cir. 1974) (no indictment); U.S. v. Garcia, 531 F.2d 1303 (5th Cir. 1976); Hart v. U.S., 585 F.2d 1280 (5th Cir. 1978) (“although the mere existence of an arrest is not admissible to impeach the credibility of a witness, this court has recognized that arrests may be admissible to show that an informer might falsely testify favorably to the Government in order to put his own cases in the best light possible”).

Pending probation against prosecution witness. Davis v. Alaska, 415 U.S. 308 (1974). Sixth Amendment right of confrontation and cross-examination violated by prohibiting cross-examination of prospective witness regarding pending juvenile probation.

Plea agreements made with prosecution witnesses: Any plea agreement or offer made by the prosecution to a witness is admissible, as the jury is entitled to consider same with respect to that witness’ motive for testifying for the prosecution. Prosecutor is required to take affirmative action to correct misleading testimony regarding any deal or offer of some in exchange for a witness’ testimony. Giglio v. U.S., 405 U.S. 150 (1972); Napue v. Illinois, 360 U.S. 264 (1959); Blankenship v. Estelle, 545 F.2d 510, 513 (5th Cir. 1977) (questions asked by prosecution regarding “pending indictments” “…undoubtedly created the clear

impression that the two witnesses themselves faced trial possibility that they were cooperating with the prosecution in exchange for lenience”). No “agreement” or “deal” for the witness’ testimony need be shown. U.S. v. Crumley, 565 F.2d 945 (5th Cir. 1978); Greene v. Wainwright, 637 F.2d 272, 276 (5th Cir. 1981); U.S. v. Mayer, 556 F.2d 245, 249 (5th Cir. 1977); Burr v. Sullivan, 618 F.2d 583, 587 (9th Cir. 1980). “Whether or not a deal existed is not crucial. What is important is whether the witness may be shading his testimony in an effort to please the prosecution. A desire to cooperate may be formed beneath the conscious level, in a manner not apparent even to the witness, but such a subtle desire to assist the state nevertheless may cloud perception.” Greene v. Wainwright, 637 F.2d at 276. The Texas Court of Criminal Appeals likewise held that: “Alford and Harris control our resolution of the instant case. See also Coody v. State, 812 S.W.2d 631 (Tex. App. – Houston [14th Dist.] 1991). Appellant’s cross-examination was clearly an attempt to demonstrate that Russell held a possible motive, bias or interest in testifying for the State. Appellant’s inquiry into Russell’s incarceration, his pending charge and possible punishment as a habitual criminal, was appropriate to demonstrate Russell’s potential motive, bias or interest to testify for the State. A defendant is permitted to elicit any fact from a witness intended to demonstrate that witness’ vulnerable relationship with the State. Alford, 282 U.S. at 692, 51 S.Ct. at 219; Harris, 642 S.W.2d at 480. The State contends appellant’s cross-examination was impermissible because no agreement existed between the State and Russell which might affect Russell’s motive to testify for the State. However, the existence of such an agreement is not determinative. Carmona, 698 S.W.2d at 103. What is determinative is whether appellant was allowed to demonstrate any possible bias or interest that Russell may hold to testify on the State’s behalf. In other words, it is possible, even absent an agreement, that Russell believed his testimony in this case would be of later benefit. As we held in Spain v. State,…an effective cross-examination encompasses more than just the opportunity to elicit testimony to establish the existence of certain facts. The cross-examiner should be allowed to expose the limits of the witness’ knowledge of relevant facts, place the witness in his proper setting, and test the credibility of the relevant facts. The failure to affirmatively establish the fact sought does not prevent the cross-examination from having probative value in regard

to the witness’ credibility. 585 S.W.2d 705, 710 (Tex. Cr. App. 1979) (citing Alford, 282 U.S. at 692, 51 S.Ct. at 219); Saunders v. State, 572 S.W.2d 944, 948-49 (Tex. Cr. App. 1978). Finally, the Court of Appeals’ holding that appellant was unable to impeach Russell under Rule 608(b) is erroneous for at least two reasons. First, appellant’s cross-examination concerning Russell’s incarceration was not an inquiry into a specific instance of conduct. Instead, appellant’s cross-examination focused on Russell’s possible motive, bias or interest in testifying for State… In the instant case, the Court of Appeals improperly relied upon Rule 608(b) because appellant did not try to cross-examine Russell about a specific instance of conduct. In other words, appellant did not seek to cross-examine Russell about the underlying facts which gave rise to the aggravated robbery charge. Rather, appellant attempted to inform the jury that Russell had a vulnerable relationship with the State at the time of his testimony. Alford, 282 U.S. at 692, 51 S.Ct. at 219; and, Harris, 642 S.W.2d at 480. Consequently, the Court of Appeals erred in relying on Rule 608(b) to uphold the trial judge’s limitation on appellant’s cross-examination of Russell…” Carroll v. State of Texas, No. 1368-94, 1996 WL 22736 (Tex.Cr.App, January 24, 1996). This would include “deals” to benefit third parties. U.S. v. Williams, 592 F.2d 1277 (5th Cir. 1979). Or “deals” for special treatment. Chavis v. North Carolina, 637 F.2d 213 (4th Cir. 1980). D.

Witness paid for their testimony. Presentation of testimony of a paid informant raised a question of credibility for the jury to determine. U.S. v. Santisteban, 833 F.2d 513 (5th Cir. 1987); U.S. v. Cervantes, 826 F.2d 310 (5th Cir. 1987). However, the same is not a per se violation of due process. U.S. v. Cervantes-Pacheco, 826 F.2d 310 (5th Cir. 1987); U.S. v. Santisteban, 833 F.2d 513 (5th Cir. 1987); U.S. v. Terrill, 835 F.2d 716 (8th Cir. 1987).

See also

U.S. v. Rizk, 833 F.2d 523 (5th Cir. 1987) (even where payments to witness not disclosed in pretrial discovery, testimony is admissible).

However, only when informant acts on general instructions and an individual is not targeted without probable cause, for investigation by the same are due process strictures met. U.S. v. Terrill, 835 F.2d 716 (8th Cir. 1987).

See E.

Prior false testimony by prosecution witness against another defendant in a parallel prosecution. Johnson v. Brewer, 521 F.2d 556 (8th Cir. 1975); U.S. v. Hitchman, 609 F.2d 1098 (5th Cir. 1979).

Extraneous offenses (uncharged misconduct): However, extraneous offenses (uncharged misconduct) may be admitted against a defendant on trial in order to show system, scheme, design, motive, intent, absence of mistake, identity, to rebut a defense theory, or as part of res gestae, where same is put in issue. FED. R. EVID. Rule 4004(b) provides: Other crimes, wrongs, or acts are not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of: MOTIVE, OPPORTUNITY, INTENT, PREPARATION, PLAN, KNOWLEDGE, IDENTITY, OR ABSENCE OF MISTAKE OR ACCIDENT. Even if extraneous offense fits within exception it may be excluded where trial court determines unfair prejudice from admission outweighs probative value. U.S. v. Kasowis, 503 F.2d Cir. 1987); U.S. v. Santistaban, 833 F.2d 513 (5th Cir. 1987).

“OTHER CRIMES” EVIDENCE [RULE 404(b)] Huddleston v. U.S., 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). A trial court need not decide for itself whether an accused committed an extraneous offense under Rule 404(b) before admitting such “other crimes” or misconduct evidence, instead that “such

evidence should be admitted if there is sufficient evidence to support a finding by the jury that the defendant committed the similar act.” The court held that unlike the required preliminary showing under Rule 104(a) for the admission of co-conspirator’s statements, see Bourjaily v. U.S., 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987); no such Rule 104(a) preliminary determination need be made at all prior to admitting “other crimes” evidence under Rule 404(b). “We conclude that a preliminary finding by the court that the Government has proved the act by a preponderance of the evidence is not called for under Rule 104(a). This is not to say, however, that the Government may parade past the jury a litany of potentially prejudicial similar acts that have been established or connected to the defendant only by unsubstantiated innuendo. Evidence is admissible under Rule 404(b) only if it is relevant.” Procedurally, the Supreme Court placed its stamp of permiture upon an after-the-fact determination under Rule104(b). “In determining whether the Government has introduced sufficient evidence to meet Rule 104(b), the trial court neither weighs credibility nor makes a finding that the Government has proved the conditional fact by a preponderance of the evidence. The court simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact …by a preponderance of evidence…The trial court has traditionally exercised the broadest sort of discretion in controlling the order of proof at trial, and we see nothing in the Rules of Evidence that would change this practice. Often the trial court may decide to allow the proponent to introduce evidence concerning a similar act, and at a later point in the trial assess whether sufficient evidence has been offered to permit the jury to make the requisite finding. If the proponent has failed to meet this minimal standard of proof, the trial court must instruct the jury to disregard the evidence. As if this were not a sufficient exercise in sophistry, the Court went on to note [quoting from Bourjaily]: “We emphasize that in assessing the sufficiency of the evidence under Rule 104(b), the trial court must consider all evidence presented to the jury. ‘[I]ndividual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it. The sum of an evidentiary presentation may well be greater than its constituent parts.” To console the citizen’s understandable concern regarding such cavalier handling of such prejudicial evidence, the Court offered the following: “We share petitioner’s concern that unduly prejudicial evidence might be introduced under Rule 404(b)…. We think, however, that the protection against such unfair prejudice emanates not from a requirement of a preliminary finding by

the trial court, but rather from four other sources: first, from the requirement of Rule 404(b) that the evidence be offered for a proper purpose; second, from the relevancy requirement of Rule 402- as enforced through Rule 104(b); third, from the assessment the trial court must make under Rule 403 to determine whether the probative value of the similar acts evidence is substantially outweighed by its potential for unfair prejudice… and fourth, from Federal Rule of Evidence 105, which provides that the trial court shall, upon request, instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted.” Note the operation of these protections from the admission of unfairly prejudicial evidence. U.S. v. Simon, 839 F.2d 1461 (11th Cir. 1988). “[The defendants]… maintain that the district court committed reversible error in admitting testimony that each [defendant] worked at [an oil and gas company]. This testimony contains evidence suggesting that some of the [defendants] were instrumental in accomplishing a fraud on the customers of the former companies. The government however, did not argue that [those defendants] had the requisite intent to characterize their actions[at the oil company] as criminal. The government claims it sought to introduce evidence of the [defendants’] ‘prior acts,’ i.e. their mere participation, however innocent [sic], in the scheme at U.S. Oil.” “Before a district court can admit evidence of [a defendants’] prior acts, the prosecution must convince the court that 1) there was a proper purpose for introducing the evidence, 2) the [defendants] actually did the prior acts and [sic], 3) the probative value of introducing the evidence outweighs any prejudicial effect the evidence might have. The propriety of the lower court in admitting this evidence turns on the purpose for which the ‘prior acts’ were introduced. The appellants contend that the government introduced their participation in the U.S. Oil scheme simply to show that they ‘acted in conformity therewith’ at Alaska Oil. Rule 404(b) of the Federal Rules of Evidence makes clear that a court cannot admit evidence of a prior act to show that the defendant acted similarly. The government, on the other hand, contends that the prior act evidence introduced at trial merely showed that the appellants knew of the government investigation of U.S. Oil and of the indictment of several employees at the company. Thus, the government argues, the Court properly admitted evidence of the [defendants] knew of the government’s investigation and subsequent indictment of employees for fraud at U.S. Oil is certainly relevant since the evidence helps to determine whether appellants had the requisite intent to defraud in the instant case.” U.S. v. Simon, 839 F.2d 1461 (11th Cir. 1988) (emphasis added) (citations omitted). Therein lies the danger created by Huddleston regardless of remaining safeguards. A more practical and honest approach is suggested by the Court of Appeals for the District of Columbia. Thompson v. U.S., 546 A.2d 414, (D.C.App.1988). The court found that an examination of four

issues regarding the admissibility of ‘prior acts’ to show intent, as opposed to propensity to act in conformity therewith, “is helpful in resolving whether other crimes should be admitted.” “These issues are: (1) whether, and to what degree, intent as an issue can be distinguished from predisposition to commit the crime; (2) whether intent is a genuine, material and important issue, rather than a merely formal one; (3) whether the trial judge made his decision whether or not to admit that evidence at an appropriate time, when information as to all pertinent factors was available, and (4) whether the trial judge’s instructions to the jury could and did resolve any issue of prejudice.” FED. R. EVID. Rule 105.. U.S. v. Kasowis, 503 F.2d 1096 (5th Cir. 1974).

Examples: (1) System, Scheme, Common Plan, Design. U.S. v. McClure, 546 F.2d 760 (5th Cir. 1977). Defendant entitled to show Government witness had coerced others into selling drugs to show scheme and modus operandi of prosecution’s witness. U.S. v. Thompson, 503 F.2d 1096 (5th Cir. 1974). Cf

U.S. v. Goodwin, 492 F.2d 1142, 1153 (5th Cir. 1974) (stating, “When the prosecution seeks to prove design or plan by the doing of similar acts, more is required than mere similarity that may suffice for showing intent”). U.S. v. Hall, 653 F.2d 1002 (5th Cir. 1981).

(2)

Intent. U.S. v. Polite, 489 F.2d 679 (5th Cir. 1974). Where evidence of “other crimes” [“extrinsic offense evidence”] is offered as “to the issue of intent” the strict requirements of U.S. v. Broadway, 477 F.2d 991, 995

(5th Cir. 1973) (requiring that the “elements” of the extraneous offense “include the essential elements of the offense charged”) have been abandoned and replaced by a two-step test of admissibility. In U.S. v. Beechum, 582 F.2d 898 (5th Cir. 1978), the en banc Fifth Circuit overruled Broadway holding that where “other crimes” evidence is offered on the issue of intent that there is no longer any requirement that the “physical elements” of the offense be “identical,” but under Rule 404(b), there is now a two-step analysis, requiring that: (1) RELEVANCY: The evidence of the “extrinsic offense” is “relevant” to an issue other than the defendant’s character, and if offered as to the issue of “intent”, then all that need to be established is that the “extrinsic offense” requires the same “intent” as the crime charged. The reasoning being that such evidence makes it less likely the defendant engaged in the charged conduct with “lawful intent”. This would be in issue, however, only where the defense raises same, such as where the defendant alleges he committed such acts only in rebuttal, in order to insure such issue is in fact raised. U.S. v. Halper, 585 F.2d 1280 (2d Cir. 1978).

(2) BALANCING TEST: Applying the balancing test of FED. R. EVID Rule 403, the probative value is not substantially outweighed by the danger of prejudice. The Beechum Court expressly recognizes that the “probative value” would be slight where intent could be established by: A. other evidence, B. stipulations, C. inferences, or is D. not contested by the defendant. No prejudice that the defendant committed the act need be found before admitting 404(b) “other crimes.” Huddleston v. U.S., 103 S.Ct. 1496 (1988). Other circuits on the other hand, appear to retain the more stringent “pre-rule” test of admissibility requiring: A. That the conduct was “similar” and close in time, B. That this be shown by clear and convincing evidence, and

C. That the probative value outweighs the prejudice impact [Rule 403 Balancing Test]. U.S. v. Herrell, 588 F.2d 711 (9th Cir. 1978). (3) Motive. Cantrell v. U.S., 323 F.2d 613 (D.C. Cir. 1963). (4) Identity. See

U.S. v. Silvan, 580 F.2d 144 (5th Cir. 1978) (reversible error to admit drug negotiations after sale in which defendant was charged, since defendant’s sole defense was mistaken identity, intent was not a material issue, nor was the other crime so distinctive that it would be relevant to identity as the handiwork of defendant).

Texas Law

In Texas state courts, both the initial decision as to admissibility of extraneous offense evidence and jury determination as to weight and credibility (via a charge) are conducted under the “beyond a reasonable doubt” standard. George v. State, 890 S.W.2d 73, 76 (Tex. Cr. App. 1994) (jury determination); Harrell v. State, 884 S.W.2d 154, 160 (Tex. Cr. App. 1994) (admissibility). The procedure for objecting to admission and for preserving error regarding extraneous offense evidence is outlined in Montgomery v. State, 810 S.W.2d 372 (Tex. Cr. App. 1991) (on rehearing). Montgomery, in particular, should be committed to memory.

WOULD YOU BUY A USED CAR FROM THIS PERSON? PRIOR CRIMINAL CONVICTIONS Final convictions for felonies or misdemeanors involving moral turpitude, which are not too remote in time, may be admitted to impeach a testifying witness (including the criminal defendant). FED. R. EVID Rule 608 provides that: “For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record” during cross-examination but only if the crime:

(1) Was punishable be death or imprisonment in excess of one year … and the court determines that he probative value of admitting this evidence out-weighs its prejudicial effect to the defendant, or (2) Involved dishonesty or false statement, regardless of the punishment.” A. Remoteness. FED. R. EVID Rule 609(b) provides that a conviction is not admissible if a period of more than ten years has elapsed since the date of the conviction, or release from confinement whichever is later. However, the proponent of said evidence, upon notice and a fair opportunity to contest its admission, may proffer and the court may admit the same where it determines that its probative value outweighs its prejudicial effect. B. Finality of Conviction. DISTINCTION BETWEEN STATE AND FEDERAL RULE (1) State:

In Texas for example only final convictions, not on appeal, are admissible for impeachment purposes. Miller v. State, 472 S.W.2d 261 (Tex.Cr.App. 1971).

Poore v. State, 524 S.W.2d 294 (Tex.Cr.App. 1975) (burden on party offering the witness to show conviction not final.)

(2) Federal: FED. R. EVID Rule 609(e) provides that the “pendency of an appeal . . . does not render evidence of a conviction inadmissible” although “the pendency of [that] appeal is admissible.” U.S. v. Rose, 526 F.2d 745 (8th Cir. 1975). C. Details of Offense are Inadmissible. Tucker v. U.S., 409 F.2d 1291 (5th Cir. 1969). U.S. v. Bray, 445 F.2d 178, 182 (5th Cir. 1971). D. Pardon, Annulment or Certificate of Rehabilitation.

DISTINCTION BETWEEN STATE AND FEDERAL (1) State: In Texas for example, if the sentence was suspended and then set aside or probation was granted and the term was successfully completed then the conviction is not admissible for impeachment purposes. Tex.Crim. R. Ev. 609. However, a pardon does not render a prior conviction inadmissible for impeachment purposes. Sipanek v. State, 272 S.W.2d 508 (Tex.Cr.App. 1925); Jones v. State, 147 S.W.2d 508 (Tex.Cr.App. 1941). Unless such pardon is premised upon proof of innocence. Logan v. State, 448 S.W.2d 462 (Tex.Cr.App. 1970). (2) Federal: FED. R. EVID Rule 609(c) provides that a prior conviction is not admissible for impeachment purposes where: “(1) The conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure … and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2)

The conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

U.S. v. Wiggins, 566 F.2d 944 (5th Cir. 1978) (defendant apparently has obligation of showing that his release [e.g. from “half-way house” amounted to a finding of rehabilitation”]).

COUNSEL MAY DESIRE TO PIN DOWN THE “COOPERATING WITNESS” ON PARTICULAR ISSUES AND THEN OFFER CONTRADICTORY EXTRINSIC EVIDENCE BY WAY OF OTHER WITNESSES OR EXHIBITS TO DEMONSTRATE BIAS U.S. v. Harvey, 547 F.2d 720 (2d Cir. 1976); Wynn v. U.S., 397 F.2d 621 (D.C. Cir. 1967).

THIS MAY INCLUDE SUCH AREAS AS WHETHER WITNESS’ WIFE WAS HAVING AN AFFAIR WITH DEFENDANT OR CODEFENDANT U.S. v. Jones, 320 F.Supp. 842 (E.D. Pa. 1981). OR DESIRE TO PROTECT OTHERS U.S. v. Brady, 561 F.2d 1319 (8th Cir. 1977) (name of prior drug source was relevant to question of whether witness may have implicated defendant in order to protect her true source). “RULE OF COMPLETENESS” “FED. R. EVID RULE 106: Remainders of or Related Writings or Recorded Statements (“Rule of Completeness”). When written or recorded statement or a portion thereof is introduced, the adverse party may “require at that item” any other part or any other writing or statement which ought in fairness be considered contemporaneously with it.

Purpose

In re Air Crash Disaster, 635 F.2d 67 (2d Cir. 1980) (Rule requires playing of the entire tape and not just one channel); U.S. v. Bacon, 602 F.2d 1248 (7th Cir. 1979) (remainder of witnesses statements supporting witnesses’ testimony on direct were admissible after statement used for impeachment on cross-examination by defense); U.S. v. Weisman, 624 F.2d 1118 (2d Cir. 1980) (entitled to offer other portion of tapes only where same explain or rebut the matters contained in the offered portions or are “necessary to clarify or make not misleading that which in introduced”); U.S. v. Rubin, 609 F.2d 51 (1980), cert. granted, 100 S.Ct. 1645 (1980). To permit contemporaneous introduction of recorded statements that place in context other writings, which, viewed alone, may be misleading. U.S. v. Jamar, 561 F.2d 1103 (4th Cir. 1977).

The accused may be entitled to offer even otherwise inadmissible statements contained in related tape recordings under FED. R. EVID Rule 106; U.S. v. Sutton, 801 F.2d 134 (D.C.Cir. 1986) (error not to admit remainder of tape recorded conversations where in Defendant made selfserving statements which were otherwise inadmissible hearsay under R. 106, same found, although “harmless error”). See also U.S. v. LeFons, 798 F.2d 977 (7th Cir. 1986) (addressing dicta relating

to recorded statement of government informant offered by defendant to supplement his recorded conversation offered in its entirety by the Government).

Texas Criminal Defense Lawyers Association

Cross-Examination Seminar March 4-5, 2021 Livestream

Topic: Cross-Examining the Family Violence Witness & Expert Speaker:

Jeremy Rosenthal

4500 Eldorado Pkwy Ste 3000 McKinney, TX 75070 (972) 369-0577 Phone jeremy@texasdefensefirm.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Cross Examining the State’s Domestic Violence Experts – The Blind Lumpers Jeremy F. Rosenthal Rosenthal, Kalabus & Therrian, PLLC 4500 Eldorado Parkway, Suite 3000 McKinney, Texas 75070 (972) 369-0577 (214) 724-7065 cell jeremy@texasdefensefirm.com

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 them 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 every bit of evidence in the case (or lack of evidence) points to Defendant’s guilt. For some time 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 their 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 they 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 Paper 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 there is 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,” it 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 – an thus far, the Courts have let them get away with it. This paper 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 experts.

“Blind” Experts A blind expert is an expert brought in to testify who has had no involvement with the case. They have 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 counties 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. They attempt 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. It 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 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 BIP 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. See appendix A. 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 – the base assumption also has to be true.

Defendant Commits AFV

Tension Builds

Honeymoon Phase

Calm Phase - Ignore Dysfunction

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 echochamber 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 800 lb. 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 Based 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

1 Twohey, Megan (2 January 2009). "How Can Domestic Violence Be Stopped?". Chicago Tribune. Retrieved 28

January 2009. 2Walker,

Lenore E. (1979) The Battered Woman. New York. Harper and Row.

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 overlyconfrontational 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.” He also argues lesbian battering is more prevalent than heterosexual battery by a 2 to 1 ratio. 4 Additionally, author Phillip W. Cook points out male-dominance is absent in homosexual relationships so the Duluth Model blaming male patriarchy falls flat. 5 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. Appendix B. 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. 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

“The Effectiveness of Batterer Intervention Programs” fisafoundation.org. 2011. http://fisafoundation.org/wpcontent/uploads/2011/10/BIPsEffectiveness.pdf 3

4 Patriarchy and Wife Assault: The Ecological Fallacy, Violence & Victims 1994,9, (2), 125 - 140. (1994) 5 Cook, Philip W. (2009). Abused Men: The Hidden Side of Domestic Violence. Santa Barbara, California: ABC-CLIO.

pp. 36–39.

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 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 overcase 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. Appendix C. 6 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. 7 Visible injuries may be fingernail scrapes, scratches or lesions.8 Redness known as erythema may or may not darken to become a bruise. Some bruises may not appear for hours

Differences in Frequency of Violence and Reported Injury between Relationships with Reciprical and Nonreciprocal Intimate Partner Violence, Daniel J. Whitaker, Ph.D., Tadesse Haileyesus, MS, Monica Swahn, Ph.D. and Linda S. Saltzman, Ph.D., Am. J. Public Health 2007, May, 941-947. See attached.

How to Improve Your Investigation and Prosecution of Strangulation Cases, Gael v. Strack and Dr. George McClane, October 1988.

Id.

or days afterwards. Much bruising is caused by an assailants hand or thumb and can make a discernable pattern. 9 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. 10 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.” 11 Constitutional error requires reversal “unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” 12 Non-Constitutional error or “other error” “…that does not affect substantial rights must be disregarded.” 13 Translation – if it’s not Constitutional error, then it basically gets ignored on appeal.

Face and neck injuries due to resuscitation versus throttling. Forensic Science International, vol. 23, 1983, 109-15. Teet Harm and Jovan Rajs.

Patechial Hemorrages: A review of Pahtogenisis. The American Journal of Forensic Medicine and Pathology. 15:3, Sept. 1994, 203-207. F.A. Jaffe.

TEX.R.APP.P. §§ 44.2(a) & (b)

TEX.R.APP.P. 44.2(a).

TEX.R.APP.P. 44.2(b).

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 over-ruled 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 9

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 breakdown 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’ delay, reluctance, and inconsistencies in reporting abuse as well as other behavior, including recanting a report of abuse. 14 15 16 As recently as the week prior to this paper being written, the Dallas Court of Appeals again held a “blind expert” was permissible.

See Scugoza v. State, 949 S.W.2d 360, 363 (Tex. App.—San Antonio 1997, no pet.) (allowing a witness to testify about general domestic violence behaviors, including that recantation of an initial accusation was consistent with the behavior of the typical battered woman, despite having no personal knowledge of defendant and victim); 14

15 see also Brewer, 370 S.W.3d at 474 (upholding admission of general expert testimony on domestic violence cycle to assist the jury in understanding the victim’s delay in calling the police)

Young v. State, 2019 WL 1647679, at *2 (Tex. App.—Beaumont Apr. 17, 2019, no pet.) (mem. op., not designated for publication) (holding testimony about the cycle of violence was admissible to explain text messages in which the defendant apologized for his violent actions and the complainant expressed forgiveness and a desire to maintain their relationship and drop criminal charges)

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. 17 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. 18 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 17

Davis v. State, 2020 WL 5015276 (Tex.App. – Dallas August 25, 2020). Morales v. State, 32 S.W.3d 862, (Tex.Crim.App., 2000).

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: Q: Q: Q: Q: Q: Q: Q:

You didn’t Talk with the complaining witness? You don’t have any social background on the complaining witness? Didn’t talk with the detective? Didn’t read any offense reports? Didn’t look at any pictures? Watch any of the videos? Look at any academic studies for this case? 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. 12

Texas Criminal Defense Lawyers Association

Cross-Examination Seminar March 4-5, 2021 Livestream

Topic: A New Way to Think About Cross-Examination Speaker:

Steven Brand

5900 Balcones Drive, Suite 260 Austin, TX 78731 (512) 494-4070 Phone sbrand@brcriminallaw.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

A NEW WAY TO THINK ABOUT CROSS-EXAMINATION “Cross-examination is the greatest legal engine ever invented for the discovery of truth. You can do anything with a bayonet except sit on it. A lawyer can do anything with crossexamination if he is skillful enough not to impale his own cause upon it.”—John Henry Wigmore WARNING for the reader The methods in this paper and subsequent talk are for advanced trial lawyers. It will assist younger and beginning trial lawyers to understand what they have the ability to achieve some years in the future, but those lawyers first must learn the fundamentals of cross-examination before attempting the techniques explained below.

Cross-Examination This is the skill that truly differentiates trial lawyers from the rest—this and possibly voir dire. True, there is nothing like an amazing closing argument or a creative opening statement, even a thorough direct examination highlighting emotion and character development, but in a time when we are essentially asking jurors to check their lifelines (cellphones) at the door and pay attention just to what we are showing them often for a week in duration, they want to be entertained and you better deliver. We are inundated with legal shows and movies throughout pop culture and jurors are not satisfied with lawyers telling them in the courtroom that everything they have ever seen is Hollywood and courtrooms are a lot more boring so what they are about to view is basically one big boring trial. What do they want to see…

But peek your head in a courtroom in your jurisdiction and how much is punctuated by dead silence with lawyers struggling to come up with a next question, or worse yet, repeating questions on cross that were already asked on direct examination? Jurors demand more and frankly, they, the courts, the cases and the clients deserve more and we need to deliver that “more” to them. Let’s cover the basics first.

The Basics

So, why the paintings in a paper on cross-examination? Better yet, can you name the painters? From left to right we have: Pablo Picasso, Family of Acrobats—1905 Salvador Dali, Portrait of Luis Bunuel—1924 Jackson Pollock, Going West—1934-1935 Vincent van Gogh, The Sower (after Millet)—1881 [The Judges say close enough if you guessed, The Sower (before Millet)] The reason for these paintings is because many believe that these artists simply did their own thing. They were never classical painters and they did not know the basics. As you can see, they knew the basics very well. So must you as a cross-examiner. So what are the basics for you? Start with the following: Trial Techniques and Trials, 10th Edition, Thomas Mauet, formerly Fundamentals of Trial Techniques with multiple editions Irving Younger’s 10 Commandments of Cross Examination found at the link below: https://www.youtube.com/watch?v=dBP2if0l-a8 They are: 1. 2. 3. 4.

Be brief Use plain words Ask only leading questions Be prepared

5. Listen 6. Don’t get into a quarrel 7. Avoid repetition 8. Disallow witness explanations 9. Limit questioning 10. Save the main point for the summation Those two materials will form your building blocks to begin your entry into the art of crossexamination. Out of those 10 Commandments, beginners MUST learn and practice: Using only leading questions, using plain words and listening. Leading Questions Ironically, it is what I want you to most learn with leading questions for everything that I will be later asking you to most abandon as you advance through the art. However, it is so important to be able to use whenever you want to be able to reign your cross back in or to control the witness who goes out of control. Plain Words Using plain language has become more important as the years go on. You go to high school, you learn your grammatical rules, you learn your new and improved vocabulary words for the SAT which you promptly forget once the SAT is over, you go to college and write down some impressive new words and then you go to law school and are trained to speak, think and act like a lawyer. You go to your first trial and your more experienced co-counsel is helping you pick your first jury and the first group of people you are told to exclude from the jury—lawyers. So now, your audience is non-lawyers. And how do people speak and communicate in 2021? Many of us use emojis to speak So here you are about to do an examination and let’s ask questions like a lawyer. You usually first see this in the first direct examination after opening statements. State, call your first witness. Thank you, your honor. The State calls Mr. Jones. Mr. Jones, can you please state your full name and spell your last name for the record? Yes, it’s Sam Jones, J-o-n-e-s [didn’t you go to law school or something] And Mr. Jones how are you employed? …

And Mr. Jones, drawing your attention to February 3, 2021, what kind of vehicle were you driving that day?... And on, and on… This is not how we speak in everyday life and you lose the focus of jurors one by one because they can’t relate/connect. Ask yourself, would you ever speak that way if meeting up with someone at a bar? Hi Andrea, I’d like you to meet my friend Sam. Andrea: Hi Sam, nice to meet you, can you state your full name for me and spell your last name so I can put it in my iPhone? Thank You. How are you employed? What kind of vehicle do you own? Sam: You speak just like me. Can I get you a beverage? Are you an attorney also? … The lawyer speak can just sound ridiculous. To cure it, speak and ask questions like you would of your friends in a bar or over dinner. Where are you from, what do you do, etc… Lastly, do not use subjective terms unless you can establish a definition for the subjective term through the witness or through another witness. This takes preparation and practice and starts taking you outside the realm of basic cross-examination. Here’s how it works—younger lawyers will ask the questions: You were driving really fast, weren’t you? Answer: No It was very cold that day, wasn’t it? Answer: No The reasons for the answers often is because the terms “fast” and “cold” are subjective— what is cold or fast to you may be different for the witness and for the individual jurors. The word “really” makes the term even more subjective. However—can you establish a baseline for whether something is cold through this witness, another witness or an expert witness? For example, if you had a credible detective in the vehicular homicide unit establish that 90mph is “really fast” for a particular stretch of road, at a particular time of day and for

particular road conditions and all evidence has shown that the witness was travelling 90mph, now you can feel free to ask the question, At X time on X date, you were driving really fast, weren’t you? [For an even better question, we will explore making that open ended in the advanced section]. One Question, One Fact Many lawyers starting out will ask compound questions. Not only are the questions subject to an objection, you will not know what the witness is answering. Mr. Smith, you were driving a blue truck at 9am on March 20, 2020? No, not exactly. What do you mean not exactly. Well not exactly, can you repeat the question. Much simpler is: You were driving at some point on March 20, 2020? Yes You were driving a truck? Yes The truck you were driving was blue? Yes You were driving it at 9am? Yes Then you have established your baseline that you can begin to repeat if it helps, adding one additional fact at a time: So as you’re driving your blue truck at 9am on March 20, 2020, at some point, you approach a flashing red light? ***I hope you caught what I did there…I will give you another chance to read it over*** I added in the word “your” into the last question for 2 reasons: 1. Many young/beginning attorneys will leave out a fact in the initial basic questioning and get tripped up for adding an additional fact in that has not yet been confirmed—

while the witness admitted to having driven a blue truck on that date and time, the witness has not yet admitted that it is the witness’s truck 2. Some more experienced attorneys will try to sneak in the “your” truck portion intentionally, hoping that it is cloaked well enough within the question to generate the answer sought, “Yes,” to establish ownership of the truck. This could backfire as being sneaky if the attorney is caught doing it by the witness or opposing counsel highlighting it to the jury—and the loss of credibility if the jury thinks you are being sneaky can kill your case. Listening This is probably the number one or two most important thing with cross-examination, the other being preparation. This is the reason why I provide my client with a piece of paper and a pen at counsel table— because when I am cross-examining a witness, I am listening to the answer, potentially anticipating objections and anticipating/formulating next questions based on the answer as well as determining how the answer is helping in the overall presentation of the case. The last thing I want while listening is a person in my ear telling me that the getaway car he drove was blue, not red. Every word counts, but also watch body language and facial expressions. The art of crossexamination is live and in the moment. That’s the beauty of it. If a witness laughs, I want to know why. If a witness pauses, I want to know why—and most of the time, I will ask why— which leads us to:

Advanced Cross Examination or… A NEW WAY TO THINK ABOUT CROSSEXAMINATION So here you are, you’ve been practicing for about 10 years and have around 50 substantial cross- examinations already conducted before you can even try to begin to find your own style. This is where we develop from our basic art to:

Pablo Picasso, Girl Before a Mirror—1932 (Approximately 27 years after painting above) Salvador Dali, The Persistence of Memory—1931 (Approximately 7 years after painting above) Jackson Pollock, Convergence—1952 (Approximately 17 years after painting above) Vincent van Gogh, The Starry Night—1889 (Approximately 8 years after painting above)

We also graduate from Mauet to some other experts to show us what to do: “The art of Cross-Examination” by Francis L. Wellman (Originally from 1903 and certainly not politically correct by modern standards, but nonetheless a good read for cross-examiners) “MacCarthy on Cross-Examination” by Terrence MacCarthy “Trying Cases to Win” by Herbert J. Stern—4 volume set (1 of which is cross-examination)

[The Stern set is expensive but a must read and you can read it in a law library for free]

Background and Finding Your Voice Once you are ready to delve into the advanced art of cross-examination, you have to take stock of who you are, where you are in your career, and how much time needs to be dedicated to what you’re doing to do it right. There is no limit to the level of preparation that needs to be put into defending a case and some of the most difficult cross-examinations. If you want to be defending clients in murders, sexual assaults or even want to make a name for yourself as a specialized cross-examiner of police officers in DWI cases, you need to think of yourself as the professional you want to be. Being a trial lawyer is not just a job, it is a calling. We are the professional athletes of the legal profession. Every Body Cam must be reviewed as well as every in-car video (to the extent it does not mirror the Body Cam), every recorded witness statement must be reviewed, including the times they are left alone in the interview room (you would be surprised the things they say to themselves), review social media and Google all participants (including police officers), get prior transcripts if available, go through all text messages, Snapchats, etc. in imaged computers and phones, zoom in on details in pictures, research an expert’s field of study and become a mini-expert yourself and then, ALWAYS visit the crime scene. This list is far from all-inclusive but it is this level of work that will enable you to have the tools to effectively cross-examine. To find your voice, you have to learn to try your case within the scope of your own personality. It is very difficult to transform and become someone you are not. More importantly, if you abandon who you are, juries will see through that and will find you insincere. Your credibility is everything—let the jury see your true self—fears, flaws and all. They will thank you for it. When I attend CLEs, my goal going in is that it is a gain for me if I can learn one or two things that I believe can work for me. Not everything you see and hear will match your style. Find the one or two things that do and add them to your arsenal. If you do, you will have a lot of tools to use when the time is right. Last bit of advice before we dive in: Challenge yourself mentally every day. I downloaded the app “Elevate” which I use first thing in the morning for 5 minutes to challenge my reading, writing, speaking and math skills. I also have a Chess App to always keep me on my toes. Trial lawyers are competitive and trying to think 3 moves ahead of a player in Argentina, Australia or India fascinates me. Do at least a half hour physical workout of whatever kind 3 days per week. Your energy level will reap the benefits. Get enough sleep, especially during trial so your mind stays sharp and you’re able to actively listen and plan. Treat those around you with respect during trial—this includes your client, the Judge, opposing counsel, your significant other, your kids, your co-counsel and any administrative assistants from your court coordinator to your own. You don’t want an added burden

throughout a trial of guilt for having snapped on someone who didn’t deserve it. Last but not least—Do NOT take yourself too seriously. Take the case seriously, take your examinations seriously, take your preparation seriously, but not yourself. Things happen in trial, mistakes happen, unexpected testimony happens all the time. This is not a time for embarrassment or bruised egos. If the jury or the court audience laughs because you asked a bad question they found funny but you did not intend for it to be, take the time to embrace the moment—it probably was a bad question. Powerpoints don’t work at times (but you should practice with the courtroom technology beforehand), technology malfunctions, Windows will start updating for 20 minutes just as you are about to access your most important impeachment in your case—roll with it. You’ll be better for it. THE FORMULA So now we are finally here. After about my first 16 years of practicing law I created the following formula for cross-examining witnesses that I believe works very well if you put in the preparation necessary to answer each question. To effectively cross-examine a witness, this is the formula: 1) 2) 3) 4)

What Do I Want the Witness to Say? What Does the Witness Have to Say? What Does the Witness Want to Say? What Doesn’t Make Sense?

If you can map out these questions in bullet points or in your head, you have the tools for a highly effective cross-examination. What Do I Want the Witness to Say? I want you to think of this two ways: 1) What is the ideal thing I want the witness to say? 2) What do I want the witness to say practically speaking for the case? Prong 1 keeps us focused on our ultimate goal and theory of the case when examining each witness. So here we are defending an adult-on-adult sexual assault case. The defense is consent. My ideal scenario—yes, I would want the witness to say either, I made it up because I had a boyfriend and I did not know how I was going to explain the situation, or I lied because reason X. This will help us frame the second prong. Prong 2 is anything that will fit your theory, but think big. I hear too many times from lawyers, “I will never get this witness to say that.” Many times the witness will give you more than you expect and if not, you can certainly paint the picture. So in our scenario, what do we want from Prong 2? I never screamed, I never told him No, I never tried to push him off/away, I figured I would just go along with it because I was surprised by what was happening. This is the testimony we are looking for. If through your questioning, the complaining witness can be perceived as hostile, condescending, flippant, or there is a

noticeable change in demeanor toward your questioning versus the other side, that will help as well. What else do we want the witness to say? Anything that contradicts the witness’s own prior statements, anything that contradicts other testimony from other witnesses for the State, anything that contradicts other scientific evidence presented by the State, anything that contradicts any physical evidence/pictures from the scene, anything that supports the testimony of defense witnesses, anything that supports your theory of the case and anything that goes contrary to the laws of nature and common sense (which will be addressed more in the What Doesn’t Make Sense section below). What Does the Witness Have to Say? This is your classic impeachment. These are the things the witness is locked into saying before she takes the stand. These sources include: statements to law enforcement, statements to friends, other communications to friends like texts and Snapchats and Facebook Messenger, 911 calls, statements to medical professionals, statements to the SAFE (Sexual Assault Forensic Examiner), statements posted on social media, statements at any prior hearing in the case, statements to “Victim/Witness Counselors,” statements to therapists, and statements made on direct examination. Law enforcement witnesses are locked in to stating that they acted in accordance with the agency’s policy/procedure manual, the employee handbook and the law. If the witness does not admit to these, the impeachment should be ready to go—meaning a prior transcript page and line number ready to use, a recording hour, minute and second ready to use, etc. Once again, the witness will also have to say things that comport with the laws of nature and common sense (which will be addressed more in the What Doesn’t Make Sense section below). What Does the Witness Want to Say? If the last of the 4 prongs (What Doesn’t Make Sense) is what ties this all together and requires the most work, this prong is probably the most challenging. Here we are sizing up the witness and trying to get into the psyche of the witness. For some it’s a bit easier than others. For example, on the whole, law enforcement in a DWI case will want to take the stand and state that the person the police arrested was intoxicated. Those officers will also do everything to try to place themselves in the best light possible. You will hear testimony such as, “I was just trying to determine if Mr. Smith was safe to drive,” or “I was trying to provide Mr. Jones the opportunity to show me he was not intoxicated.”

Most witnesses will attempt to put themselves in the best light possible, whether it’s the cooperating witness who says, “I may get a deal, but I’m just here to tell the truth,” or the witness of the complainant in a bar fight, “I was just trying to break up the fight and make sure no one got hurt.” Again, researching social media and all other resources above will help you get in the mind of the witness. When you can almost predict exactly how the witness wants to act and what they want to say, it makes it that much easier to begin to structure your cross. It’s like playing chess—you are looking 3 to 4 moves ahead—if I say this, the witness will want to say this and then I will follow-up with this. This is the time when listening to the witness’s answer becomes extra important—because if the witness begins to deviate in any way from how you believed they would testify, it will call for an immediate adjustment. So, in a DWI, if a law enforcement officer testifies on direct that your client did not perform that poorly on one of their Standardized Field Sobriety Tests (SFSTs), it should raise a flag, is this a witness who is purposely conceding something to make himself look more credible in front of the jury (may that have been the product of some coaching by the prosecutor), or is this a potentially friendly witness who had some second thoughts about the arrest and we can turn the officer into a friendly witness for us. What Doesn’t Make Sense This is the section where everything comes together and we are looking at the heart of advanced cross-examination. If you can figure this portion out as to every witness in every case, this is where you can begin to deviate from leading questions and develop your open ended questions to set your traps and crush your witnesses. So, what doesn’t make sense—what does this mean? It means you drill down to the most basic concepts of the predicted testimony and the actual testimony after direct examination and ask yourself, what is this witness saying that goes against what another witness has said, which goes against the physical/scientific evidence at the scene, which goes against forensic data (cell phone locations), which goes against the laws of nature and which goes against common sense. I guarantee you that this presents itself in every case. You just have to look for it. If you remember those optical illusion pictures from years ago, when your friends told you, “You’ll see the dolphin if you de-focus your eyes,” and you never were able to see it— it’s quite a bit like that. Let’s start easier, with a standard DWI. Ms. Butler is stopped for speeding, going 75 mph in a 65 mph zone at 3am on February 4, 2021 in Austin, Texas. Reasonable stop? Probably. Ms. Butler pulls over right away into an empty parking lot. She rolls down her window. She complies with the Police Officer’s request to provide her license and insurance information. The officer (who notes in his report that he smelled the strong odor of an alcoholic beverage on her) asks her if she had anything to drink tonight, to which she responds [all together now], “two beers.”

Officer radios for second officer to arrive on scene. Ms. Butler appears fine when she steps out of the car. She is smiling and polite. She seemingly has a slight slur in her speech. One of the two officers administers the Horizontal Gaze Nystagmus Test (HGN) to her, and then the other tests—walk and turn and 1 leg stand. The same officer asks Ms. Butler if she will provide a breath sample for a portable breath test, she refuses, is placed under arrest for DWI, and then refuses to provide a breath/blood sample. The officer does not attempt to get a blood search warrant. Upon review of the probable cause affidavit, you notice Ms. Butler supposedly exhibited 6 out of 6 clues on the HGN with no vertical nystagmus, had 3 clues on the walk and turn and 1 clue on the 1 leg stand. On direct examination at trial, the officer said Ms. Butler failed the SFSTs and said she failed the 1 leg stand as well. He stated that while he noted Ms. Butler used her arms for balance on the 1 leg stand, he must have forgotten to note that she also swayed. So what doesn’t make sense? First, why is Ms. Butler out of her car? Why did the police get her out of the car for speeding and because she had the odor of an alcoholic beverage? If it is legal for people to go to bars have a couple of drinks and drive home, and if it is legal for people to go to parties or friends’ houses, have two beers and drive home, then why are they having Ms. Butler get out of her car? Second, it doesn’t seem, without knowing more that it is probable that Ms. Butler was driving while intoxicated, does it? Why is the officer asking for a Portable Breath Test (PBT), if the officer already has probable cause to believe Ms. Butler is intoxicated? Or, is the officer not sure at that point if Ms. Butler is intoxicated? Or, at that point, is the officer sure, but the officer is just gathering additional evidence to prosecute her for DWI? Third, when administering and conducting the 1 leg stand, why do officers insist that Ms. Butler look down at her foot when looking down would cause someone to lose balance? You do not drive and look at the hood of your car, you look at the horizon. You do not walk or run and look at your feet, you look out in front of you. Yet, we take this as a given and it makes absolutely no sense. Fourth, what is the officer’s personal rate of error in administering these tests? How do we not know? If I type and make mistakes, I have a rate of error. If I drive a car with the goal of staying at or under the speed limit, I have a rate of error. Not knowing how often the officers are wrong in their calls of when someone should be arrested for DWI or not does not make much sense. So take this and put it into our mix. Now, let’s go back to Irving Younger’s 10 Commandments of cross-examination. Specifically, let’s focus on numbers 3, 8 and 10 which are ask only leading questions,

disallow witness explanations, and save the main point for summation, respectively. These are important points for basic cross-examination, but I absolutely hate them for advanced. Why? 1) When you are leading a witness, you are controlling the whole narrative and jurors notice that. This is the attorney’s control but I’m not truly hearing anything from the witness except Yes’s and No’s and it’s a bit disconcerting that on direct examination it was much more of a conversation and now the witness has been relegated by the attorney to nothing more than a robot. Additionally, many prosecutors will prepare their witnesses on how to answer leading questions. They will say, “Just answer yes or no. Do not volunteer anything. And, don’t be afraid to answer, ‘I don’t know.’” And, “feel free to say, I can’t answer that yes or no, may I explain. And if they say you may not, I will ask you that question on re-direct in the form of, ‘Do you remember when Mr. Brand asked you a question and you said you couldn’t answer it yes or no, may I explain and Mr. Brand wouldn’t allow you to explain, can you now please explain to us why…’” This will ultimately make the defense attorney appear that the defense is hiding something from the jurors. Open ended questions often cure all of that—they just take much more time and preparation to formulate. Ask yourself this, if you’re a prosecutor, how do you prepare a witness for open ended questions? The answer is you can’t and the witnesses are left wholly unprepared for their answers. 2) When you disallow witness explanations you are cheating the jury of information they feel like they should have and you are cutting off their ability to have it [we call jurors fact finders but they are not really “finding” anything—they are recipients of what we present]. If that’s not bad enough, the prosecutor, as seen above has the opportunity at re-direct and sometimes at re-re-direct to get the witness to explain. The subtext then becomes as seen above, please witness tell the jury exactly what the defense did not want you to hear. That’s a credibility hit that is very difficult to recover from. Remember, when you are closing, the jurors are going to believe one side over the other. If you are taking hits on your personal credibility during your crossexaminations because you are perceived as keeping testimony from the jury, they will punish you for it as the trial moves forward. 3) When you save the main point for summation, the jurors feel cheated that they didn’t get to see the live fight between the attorney and the witness. Remember, we are taking away their phones. Some of our jurors watch MMA/UFC. Some of our jurors watch the Real Housewives of [Insert whatever city or county] and see their fights there, other jurors watch their political fights on CNN or FOX, they live to see the fight. Plus, saving the point for summation may be too late if the juror has already mad up the juror’s mind [while I know jurors would never violate the law and Judge’s instructions by making up a juror’s mind prior to receiving the case to deliberate, it may have happened once or twice in the past 😉]. There are some times when you know for sure a closing point sails under the radar or the prosecution is just missing

something that you know about that you will want to hold it close to you for closing, but those times in actuality are quite rare. So how do we do this then? How do we do this through open ended questions getting the witness to explain and then challenging the witness. First, get in the right mindset. Stop putting the witnesses on a pedestal thinking you can’t go toe-to-toe with them. People ask me, “Well, what if it’s an expert?” Answer—diffuse or deflect from the situation. As an example, you have a child sex case. All the prosecution has as evidence is the word of an 8-year-old girl stating that your client, her step-father, penetrated her vagina with his penis on two occasions three months ago. The child is provided a SAFE [SAFE here is used interchangeably as Sexual Assault Forensic Examiner (the expert nurse) and Sexual Assault Forensic Examination (the actual exam)] which reveals absolutely no injuries. The SAFE expert testifies on direct examination that after a comprehensive exam, no injuries were found on the child, which, the SAFE testifies, is entirely consistent with the complaining witness’s account of sexual assault of a child. Pass the Witness. Cross? Now, you can obviously do this cross through leading questions. I will often hear questions like: Q: So you examined her, right? A: Yes. Q: And your exam was thorough? A: Yes Q: And it was as thorough as it could be? A: Yes Q: And despite your exam which was as thorough as it could be, you found absolutely no injuries? A: Correct Is that a bad cross? No. You elicited the points you needed to make. You made it crystal clear to the jury that absolutely nothing was wrong with the girl physically. And, these crosses will usually go longer hammering home that point. But is there anything here that doesn’t make sense. What jumps out to me is, why are you doing an exam on an 8 year old if you don’t expect to find anything? And, why is proof of nothing evidence of something? For example, if my friend told me a UFO landed in his yard 6 months ago and he goes to show me where and the grass where he said it landed is undisturbed, I would probably tell him that this is no evidence at all that a UFO ever landed here. If his answer is, well of course not, it all grew back because it has been 6 months, that would seem like circular logic. Open ended questioning hitting at the lack of common sense will

help expose the key points to the jury and it makes all the answers become volunteered out of the witness’s mouth. You can mix in closed-ended/leading questions to move the cross along or to control the witness. However, the open-ended questions seem much more engaging to a jury as they are sitting in on a conversation. Q: Have you ever conducted an examination of a child during a well-check-up? A: Yes. Q: Can you describe what your well examination of a child consisted of? In other words, what happened during the examination? A: Well, I examined her ears, nose, throat. I checked her pulse. I checked for appropriate growth milestones. I checked reflexes… Q: Other than the report of abuse that you received from the Detective, can you explain how the findings in your examination for the well-child exam you did were different than the findings from the exam on this child? A: Well they were the same. Q: How were they the same? A: Both children were in perfect health Q: Did you tell the first child’s parents that your findings were completely consistent with sexual abuse? A: No Q: Why not? A: I guess because she didn’t make an outcry of sexual abuse. Q: And this child didn’t outcry to you either? A: No. I got the information from the Detective Q: So your actual physical findings of your exam of the well child and that of this child were exactly the same? A: They were—But we would not expect to necessarily find anything here Q: Is this an examination which is pleasant for the child? A: Not necessarily Q: Could you come up with a list of things that would be more fun or more educational for an 8-year-old child to do with her time?

A: Perhaps [We have not covered this, but learn to punish a witness for an equivocal answer on this point through the next question] Q: Do you know of any child who would prefer to go through a Sexual Assault Forensic Exam than do just about anything else in the child’s life, from playing sports, to texting to video games, to having a friend over? A: No Q: So when you say, “Perhaps” you could come up with a list of things that would be more fun or more educational for an 8-year-old child to do with her time your real answer is absolutely. A: Yes: Q: Why would you ever subject an 8-year-old to an exam like this if you don’t ever expect to find anything? A: As a precaution Q: As a precaution, why? A: Because sometimes you do. Q: Sometimes you do, just not this time? A: Not this time, no. What you see there is just how a cross-examination begins to take on a life of its own— and yes, even through an expert witness. I’m not wowing her with my expertise in the area. I’m just basing the cross off of what does and does not make sense. So let’s return to our DWI officer with Ms. Butler. We have seen various ways this has been accomplished through leading questions—both poorly [through repeating the direct examination], and well-done, through using the NHTSA Manual and showing the deficiencies in the testing etc. So now let’s open it up to open ended questions. Q: Why did you pull Ms. Butler over? A: She was exceeding the speed limit. Q: By how much? A: By 10 miles-per-hour. She was going 75 mph in a 65 mph zone. Q: How many other times have you pulled people over for going 10 over? A: I can’t count. A lot.

Q: So that type of driving, 10 mph over the speed limit is something you may encounter every day? A: Maybe not everyday but quite a bit. Q: Did Ms. Butler do everything you asked her to do from pulling over into a safe area, all the way through rolling down her window? A: Yes [I would blow this up in trial to be much longer to cover step by step everything she did which would indicate sobriety. I am shortening this for our purposes.] Q: You asked her to roll down her window? A: I did. Q: Did she appear to have trouble understanding you? A: I don’t know if she had trouble understanding me or not. [This is a typical officer answer you should be prepared for. Going back to the formula, this is something the officer would want to say. You need to learn not to just brush by this and punish the witness for saying it. The more you do, the less the witness will do it—you just make the officer slightly embarrassed. I have seen many just decide to ask the next question when faced with something like this. I refuse to do that because the answer violates the laws of nature and does not make sense if she immediately rolled down her window—thus the next question] Q: After you asked Ms. Butler to roll down her window, did she immediately do as you said? A: Yes Q: So when I asked you, “Did she appear to have trouble understanding you,” and your answer was you don’t know if she had trouble understanding you or not, you do know don’t you? If she had trouble understanding you she would not have rolled down her window correct? A: Correct [The officer knows what the officer is up against now. The inclination to play games will slowly fade away] Q: How soon after she rolled down her window did you smell what you call the odor of an alcoholic beverage? [I want the jury to understand that that’s not how they speak and that’s not how I speak— I want to put distance between them and the officer and align them with Ms. Butler and I]

A: Pretty much right away. Q: Why did you have her step out of the car? A: The driving violation and the odor of the alcoholic beverage. She also seemed a bit slow in answering my questions. Q: You didn’t state that in your report. Why not? A: I guess I forgot [If I made this paper longer, trust me, there would be much more cross here on the “I forgot” answer] Q: Did you have probable cause to arrest her at that point? A: …No Q: You seemed a bit slow answering that question. Is that a sign of intoxication? A: It depends on the circumstances Q: How so? A: It’s because I also smelled the strong odor of an alcoholic beverage on her. [Kind of a draw on that answer. The officer may have gained a bit of a point, but you’re engaged in this cross so keep going. This is where we would probably address the issue of what does a strong odor of an alcoholic beverage mean versus moderate, etc.] Q: At what point did you develop probable cause to arrest Ms. Butler? [This is always a fun question because the answers you receive are so different] A: After her performance on the SFSTs Q: Then why ask her to submit to a Portable Breath Test? A: What do you mean why? Q: If you had probable cause to arrest after the SFSTs, why not just arrest her? You don’t do that with other crimes—I have probable cause to arrest you for Assault Family Violence but I’m going to have you blow into this device first. A: Well, had the PBT been less than .08, then that could change things. Q: How so if you already had probable cause? OR Q: Did you think the PBT might have been under the legal limit? …

[Next area] Q: You told Ms. Butler on 2 occasions on the 1 leg stand to look down at her foot. A: I did Q: Why did you do that? A: Because those are the instructions Q: Why wouldn’t you have her look out at the horizon or straight in front of her because that is the most natural way to balance? A: Because those aren’t the instructions. Q: Do the instructions make sense to you? A: Yes Q: How so… [Next area—personal rate of error on the SFSTs] Q: What is your personal rate of error in giving these tests? A: What do you mean? Q: You often base your probable cause upon a person’s performance on these tests? A: I base it on the totality of the circumstances [I knew the officer wanted to say that] Q: Other than the tests, what was the rest that went into the totality? A: Speeding and the strong odor of an alcoholic beverage Q: And we’ve already established that speeding means nothing when it comes to DWI? A: Correct Q: And neither does the odor of an alcoholic beverage being strong? A: Correct Q: Which leaves us with the tests? A: I guess so. [Don’t take that last answer…] Q: Well is there something else? A: No.

Q: So when I asked you, that leaves us with the tests, that’s not an I guess so, that’s a yes, correct? A: Correct Q: So going back to your personal rate of error officer, how many times have you determined that based on the tests there is probable cause to arrest, but after testing for breath/blood the results came back lower than .08? [A huge question that I know many would not dare ask but what’s the downside. There are only a few possible answers: 1) A: [Probably the most common] I don’t know Q: What do you mean you don’t know? A: I’ve never checked Q: Do you know if anyone has ever checked, like your supervisor, your sergeant? A: No Q: So how do you even know if your decisions to arrest people are valid? A: I assume they are Q: Why don’t you go back and check your work? A: I don’t know 2) A: I know its has come back below .08 two times. [Now you’re in a tough spot. It’s your call. Do you want to ask, two out of how many—it depends. Is this a relatively new officer? Is this someone from the DWI task force? Is the prosecutor going to gamble by re-directing with a question the prosecutor does not know the answer to. This is a total judgment/strategy call. Even if the prosecutor follows up on redirect and the answer is 40—you now have a 5% error rate and you can follow up with how many times was there not breath or blood taken to confirm the officer’s work and does the officer check every time on every case.] 3) A: Zero [Now you have a whole host of questions. Has the officer followed up every time? Is it odd to the officer that per NHTSA there is an X% chance that if there are 2 clues or more on this test and that test that the person’s BAC is above the legal limit but somehow, the officer’s scores are above the % calculations built in by NHTSA] As this last line of questioning is more tricky, you probably don’t want to end on it. However, if you ask it in the middle of your cross and the dividends it pays are great, you may want to forego the remainder of your cross and end on that. All of the above are fictional examples of how this can work. I will save the real world example I have for the presentation portion of this course [you should have something to look forward to]. Lastly on this topic, you should have noted other areas from the hypothetical I left open for you to begin to develop your own crosses—what about the

second officer (who probably will not review the video before testifying because that officer did not administer the SFSTs—can you ask that officer what clues were observed with open ended questions. A: I wasn’t really paying attention. Q: Why not? Also, from the fact pattern, there is the additional clue on the 1 leg stand the officer conveniently omitted from the PC bust now remembers at trial. Craft your own open-ended cross based on that.] Odds And Ends Leading Questions Does this mean we don’t use leading questions? Absolutely not. Leading questions are necessary tools to move a cross along and help at times in controlling a witness. They can also help you assert your knowledge/authority in front of a jury. One thing I do in murder cases involving self-defense when the Medical Examiner is on the stand is that I ask him on cross through a leading question: Q: There are 5 types of manners of death correct? A: Yes Q: And those are homicide, suicide, natural, accident and undetermined correct [some may debate the undetermined one] I ask this question so the jury and the medical examiner understand that I know what I’m talking about. In this way, the question doesn’t have much to do with the witness’s answer but more has to do with the reason for asking the question. And, as you saw above, at times leading questions are mixed in to guide the cross and nudge the witness a particular way. This is why you must learn leading questions at the basic level so that you can ask them whenever you want at the advanced level. Controlling a Witness First, I rarely cut a witness off if they want to explain. I usually get twice the cross material I have if I let them explain their answers versus the credibility as an advocate I lose in not letting them explain. The jury has a way by their faces and demeanor to subtly signal to you when they are finished with the witness explaining on every answer and they are giving you permission to stop it. Just like a professional ballplayer who wants the ball during clutch time, it is your job to control the witness. Don’t ask the ref for help—don’t ask the Judge for help. Your honor, can you please direct the witness to answer the question, makes you look weak and some judges may tell you to ask a better question. Tip 1 Break the question down to as few words as possible and use common sense to make it impossible to escape—remember the jury will know what the officer’s answers should be

and every time the officer deviates from what the jury believes the answer should be, the officer loses credibility Q: It was really cold that night? A: I mean it depends on a lot of things. Q: You were the first officer on-scene? A: Yes Q: What time did you arrive? A: 2104 hours Q: That’s 9:04 p.m.? A: Correct Q: 9:04 pm is during the nighttime? A: It could be Q: What was the date? A: February 4, 2021 Q: The scene you showed up to was located in Travis County, Texas? A: Correct Q: If I told you that the sunset that day was at 6:10pm, would you have any reason to disagree with that? A: No Q: Would you agree with me that it would be considered nighttime if we are talking approximately 3 hours after sunset? A: Yes Q: So at 9:04pm in Travis County, Texas on February 4, 2021, it was night time? A: Correct Q: What was the temperature outside at that time? A: About 35 degrees. Q: What was the wind speed? A: I don’t know

Q: Was it windy? A: Yes Q: What were you wearing? A: My department issued coat, and full uniform Q: Short sleeves or long sleeves? A: Long sleeves Q: What was on your hands? A: Gloves Q: Why were you wearing gloves? A: To keep my hands warm Q: Warm from what? A: The cold Q: So that night it was cold enough for you to be wearing gloves? A: Yes Q: That sounds pretty cold? A: Yes Q: Really cold? A: I don’t know [You got where you wanted to and the officer will be somewhat resigned] Tip 2 Invert the Question Q: It was really cold that night? A: I mean it depends on a lot of things. Q: Was it not cold? A: It was cold Or… Q: Was it hot outside?

A: No Q: Was it warm outside? A: No Q: What descriptive temperature word is left? Wrap-Up I hope this has helped. It takes practice. Where to practice—bond hearings, suppression hearings, ALR hearings. Just like anything, the more you cross, the more you will develop your own style. But I do swear by this formula. It has helped me through so many crosses— especially when you get to the part of what doesn’t make sense. If you ask me the most important takeaway, it is that you should enjoy and have a passion for what you do. If this paper makes you enjoy the art of cross a bit more, then it has done its job. I look forward to seeing you during the lecture portion. My email address is: sbrand@brcriminallaw.com Good luck out there! Steve Brand BRAND & RESENDEZ LAW 5900 Balcones Drive, Suite 260 Austin, TX 78731 P: (512) 494-4070

Texas Criminal Defense Lawyers Association

Cross-Examination Seminar March 4-5, 2021 Livestream

Topic: Cross-Examining the Lead Detective/Medical Examiner in a Homicide Case Speaker:

Lisa Greenberg

622 S Tancahua St Corpus Christi, TX 78401-3426 (361) 446-2476 Phone lisagreenberglaw@gmail.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Cross Examination of the Lead Detective By: Lisa Greenberg Law Office of Lisa Greenberg (361) 446-2476 622 S. Tancahua St. Corpus Christi, TX 78411 lisagreenberglaw@gmail.com “Cross-examination is the greatest legal engine ever invented for the discovery of truth. You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skillful enough not to impale his own cause upon it.” John Henry Wigmore “Cross examination is the principle means by which the believability of a witness and the truth of his or her testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316, (1974). Cross Examination is one of the hardest trial skills a trial lawyer needs to master. However, it can be the most fun- because it is as close to hand-to-hand combat as you can get as a nerdy trial lawyer in the courtroom. Regardless of the difficulty, we owe a duty to our practice, our clients and ourselves to grow and learn how to cross-examine effectively. We need to tailor our cross examination to each and every trial and be prepared for witness’s testimony on both direct and cross. Each witness is being used by the Prosecutor as a piece of the puzzle to convict your client, it is your duty, to dissect those pieces individually. In doing so, you prove yourself to be prepared, competent and skilled while telling your client’s story. Let me start out by admitting that writing a paper on Cross Examination is difficult for me. First off, I must state to you all that I consider myself to be a trial lawyer. I can talk to people all day long but writing and researching are not my strong suits. That being said, when I sat down to write this, I decided to walk you all through my process of trial preparation for Crossing the Lead Detective. The Lead Detective in a case is usually the State’s star witness. This officer is going to show up looking great, the hero on the white horse. He’s going to smile with pearly white teeth, and if they aren’t pearly white, they will look worn down from years of hard work keeping us safe and from drinking lots of coffee to work longer than anyone else. He will come into court confident and knowing he is the hero, and he will take it personally if this jury does not find your client guilty. He is the good guy….and he will need the jury’s recognition and acknowledgement of that. That is the premise of what we are up against. However, when that detective was preparing his case for trial- he didn’t know about you. He didn’t know you would be investigating him…grading his paper, marking down what he did, what he didn’t do…and whether his bias interfered with a neutral investigation. This is what cross-examination is all about. And remember, this is usually what the jury has been waiting for. The drama they were promised.

“There is very little we do that is as psychologically rewarding as exposing liars, fool and others who are polluting the waters of justice with false testimony.” Charles W. Daniels, “Using the Rules to Expose the Liar, the Fool and the Trained Pig”. This paper will be divided into 2 parts-Part I is specific to cross examining the lead detective, but if you are unfamiliar with trial and cross in general, I suggest you start with Part II, trial preparation and cross examination in general. Part I. Cross of the Lead Detective: Typically, the star witness in most of the Prosecution’s cases is the Lead Detective. Here are some tips to learn to win that fight. * win = discredit or take away his unfair head start.

Importance of Cross of the Lead Detective: a. Most likely- State’s Star Witness b. Starts ahead, no matter what the jury saysc. Professional testifier- his job is to beat you; he has been trained to do so. d. Motivated to look good. Has a stake in the outcome. e. We are the enemy in his mind. If we win, we have beat the job he has done and said it is not good enough. f. Usually has a big ego. I mean he’s the LEAD DETECTIVE, not some rookie if we criticize the investigation- we are criticizing his work. Always factor in the ego. i. Might be attacking his very identity- many officers dress the same, have the same vehicles, work out at the same gyms…

II.

Preparation: (I would argue this is the most important part of the cross) a. This is key- how do we prepare? b. First: what is your goal and theory of the case. Write those on the top of your page. Do not lose focus on those. i. Some more familiar themes: 1. Detective had tunnel vision 2. Took the easy answer instead of doing the hard work to find the real answer 3. Relied on a snitch trying to get out of trouble themselves 4. Chose the suspect who didn’t talk 5. Relied on the word of a complaining witness trying to get back at someone, jealousy, revenge, etc. re: bias/motive 6. Officer- bias/motive 7. If possible, do not rely on BRD alone- weak. c. Then you get to investigating for yourself: d. Who: Who is this detective?

i. Ask around- local criminal defense lawyers, sources, cop friends, investigators (many are old cops who worked with some of these detectives) ii. TCOLE records- easy enough, just email for his training and education, how long has he been doing this? iii. Google search; look at his other cases, testimony, news articles iv. Deep dive and look for his social media, etc. like you were going to date him! Or your daughter was! v. Check out his other reports, writing style, does he always say the same thing? Does he refer to himself in the third person? Does he speak in “cop” speak the whole report? 1. Ex: Detective Smith then proceeded to terminate the phone call (aka: I hung up the phone) vi. Have you seen this detective testify? How do they do? Did he/she receive training in testifying? See their TCOLE report, does he/she get angry easily when challenged. vii. How long has this officer been doing this? How long as a detective- new and ambitious? Old and just wants to wrap the case up? About to retire? Brand new and ambitious? Develop these ideas. 1. How long had they been in that division of the PD? Lots of investigation skills or new to the investigation side. viii. Have they won awards? Were they competing for an award or nominated at the time they investigated this case? ix. One thing that’s often overlooked is how involved, both professionally and personally this officer was in the case. For example- is this their biggest case? Did they talk to media about it? Post about it? In one case in our office the officer began writing a screenplay about the case and shopped it around. If they want the case to be a movie or infamous- are they really a neutral investigator? This is all BIAS/MOTIVE- completely relevant to your case and a very useful and proper subject for cross. e. What- was his/her role that day/night the incident happened? i. Where was your detective when he was assigned this case: Did he volunteer? Was he asleep? On Call? Where had he been that day? Was he working on another case? ii. Who called him? When? iii. Had he been working all day? Get his reports- ask around or do a Public info request. iv. Did he have anyone with him during the investigation to verify all he says he did? III.

Their report: IMPORTANCE OF WHAT THEY DID v. WHAT THEY DID NOT DO! a. Timing- look at the day they got the case v. the day they turned it into the DA’s office for filing. i. Michael Morton Notice signed on what day?

IV.

ii. Inventory of what was turned in signed on what day? iii. I Leads? Can you find out how many times they went in and revised report? Why would they do that on certain days? iv. Supplements to the report? How many- when are they written? After you got involved, pretrials etc? v. Emails to the prosecutor before trial (ALWAYS get these- so telling!) vi. Notes- show thought process, can be telling. b. Were they asked to do more? Why? i. Could mean the State didn’t think they did enough ii. Michael Morton compliance affidavit 1. What day did they sign? 2. Did they give you everything? 3. They swear to it? 4. Lots of impeachment available here. iii. How long did they spend investigating the case? iv. Who did they speak to? 1. This is important especially in family violence cases. Did they listen to one side and get a warrant? Did they interview your client first and investigate what they said? How much work was done before a warrant or determination was made as to who to arrest? Look at the timing. 2. Did they check out their sources? Ask anyone they say they were with to corroborate the story? Check for video cameras? v. Who did they not speak to? 1. The witness did not answer the phone- did not call back. 2. You had their address? Their full employment history? Known contacts? Who has the ability to find them better than you? 3. Look at this in snitch cases- did the cop check out the snitch? Look at their background? Talk to people about their believability? 4. Did the cop look at the complaining witness background? Does he know if she’s made complaints like this before? Does she have a history of being a victim? Did he look at her case records- know she had debts, getting divorced, filing bankruptcy, what she she said in her application for family violence emergency money etc? a. Speak to ex boyfriends she accused etc.? 5. Point out that the cop can find anyone in their data base and their addresses and phone numbers. Or at least make an attempt to. They have more access than you do. vi. What is their department policies and did they follow them? 1. If not, do they always not follow rules? Their interview style a. Are they good cop/bad cop? b. Offer to buy the witness Whataburger? c. Threaten witness? d. Intimidate witness? e. Lie to witness?

VI.

VII. VIII.

f. Tell the witness they don’t need a lawyer, they are just “talking” i. The interrogation tactics are often overlooked. If they are willing to lie to your client it does show they may be willing to lie to the jury. What is their goal? Their motivation in testifying? a. For example, is this a cold case that would bring closure and make police department look better to close? Is this a high profile case where there is pressure to arrest someone? b. Go in knowing Ego is an issue here. What is YOUR goal? a. Always come back to your theme/theory of the case. If your question does not advance an aspect of your theory of the case, why are you asking it? b. Do not nitpick with the witness on unimportant things. You look petty and the jury will fault you… not the detective. Always look at the Officer’s bias in their investigation. Bias and Motive info: Ok, you have your background- you have your goals. Now decide your mood and affect to reach those goals. a. Cross examination does not always have to be done in a cross manner, nor does impeachment have to be done in an angry, hostile manner. This is where you get to be creative and play with ideas. Practice before you enter the courtroom. Here are some different ideas: i. Gentle disapproval: with the liar, may be much more effective ii. Sympathetic understanding of confusion or bias: “you just wanted to get an answer for this grieving family” iii. Disappointment: just a clear showing that you know what law enforcement should be like and it is just not what you were promised it would be. iv. Indignation: with the witness who has fabricated or concealed evidence (he has cheated all of us of the fair system we were promised!) v. My Favorite: Righteous Anger- used sparingly and only when jury is ready for it and appears angry too. b. Have Clear Organization and Structure- each goal should have a list of questions under it. Make sure they further that goal. i. If they do not further the goal- forget them. Be selective and go for the jugular. DO not nitpick with witness on little matters, may backfire with jury. ii. Block all escape routes before asking key question. For example-if you are impeaching with a prior written statement, first establish how clearly the witness understood what was in the statement before you hit him with the contradiction. Try to leave no wiggle room around the impeachment. iii. Make it dramatic and interesting. Jurors watch tv and movies! If you let the direct have more impact than the cross- you have not won cross. iv. A good place to start with the detective is the report. A timeline, nail him down to his report. 1. Importance of reports- so he can’t make stuff up later. Notice/fairness; opportunities to create more reports

IX.

a. All are trained and get classes on writing reports. Why is this so important? (Get your officers TCOLE report to show he took a class, or classes on it) 2. Should tell all what he did in investigation. No secrets 3. Establish what the policy is, why it is important to have all the facts in the report, the fact that other officers, DA, Defense lawyer, judge etc. may have to rely on it later after the passage of time and intervening events 4. Superiors rely on it to decide what action to take. 5. Prosecutors rely on it to decide what bonds to ask for, what felony to file, etc. 6. If this is done correctly, much more difficult for detective to explain away discrepancies or omissions. v. Another interesting topic is the Michael Morton Affidavit: 1. Why is it important? So important the legislature made it a law. 2. Officers get courses on legislative updates. They should be aware of the importance (again look at TCOLE report of your officer to see if he/she got a recent legislative update) a. Don’t you think it’s important to pay attention to the law if it’s your job to decide what constitutes breaking it? Use Hard Leading Questions: a. I have mine written out, to ensure they are leading. They require yes or no answers and can be answered accordingly. I practice, I look for wiggle room. Do not go into a courtroom without having an idea of your cross questions. I also have any supporting documents needed ready to go with the question. i. Helps you look good, competent and prepared. ii. Shows the witness you know what you are talking about, less likely to mess with you. iii. Shows the DA you know what you are talking about. iv. Shows the judge you know what you are talking about. v. Shows the jury you know what you are talking about. vi. Maintain Control of the Witness: a. Your goal is a Pavlov’s dog response. b. Try to look good, maintain manners and not ask for help. c. Try not to: i. Interrupt a witness ii. Instruct the witness to answer yes or no. 1. Better alternatives are: a. I’m sorry I confused you, let me try again? b. Can you try and answer MY question? c. You came to tell the truth, if the simple truth is yes, can you just tell us yes? d. What did I ask you? e. Or repeat the same question slowly with rising inflection and use the witness’ name

Part II: Cross in General (Brief overview- should be read first if you need general info on cross and trial prep) A. How to prepare for a Jury Trial: First of all, for those of you who haven’t had the benefit of a trial college or other training on trials, most lawyers suggest there is an order of how to get ready for trial and prepare your trial notebook: B. How to prepare for Cross: I.

II.

III. IV.

Importance of Cross: a. Storytelling Function- you are telling a story at all times when you speak as an attorney. If you are not telling that story, you should not be speaking. b. Learning how- sources: MacCarthy on Cross-Examination, Terrence MacCarthy, The Art of Cross-Examination by Francis L. Wellman, Collier Books; The Ten Commandments of Cross Examination by Professor Irving Younger. c. TCDLA trial college! d. Difficulty- Cross is a science, not an art. Needs to be learned and studied. May take the most preparation and time of your trial prep. It is hard and should be viewed like surgery. Precise. In and out and no extras! You know the result you want and go for that solely. i. Sadly, most lawyers think cross is where you fight or demolish a witness, or worse, they just repeat what the Prosecutor said. Preparation- THIS IS KEY! a. This is where you spend your pretrial preparation time, after you have prepared by writing your closing. What details from the evidence are helpful to your story telling? This is where you bring them out. i. Know each witness and what they will say: 1. How do they add or hurt your theory of the case ii. Listen to their direct and know what evidence they have given iii. Be prepared for how they help/hurt your theory. iv. Know their background fully- this is pretrial prep. 1. How- from these sources: a. Discovery b. Informal conversation c. Investigation facts d. Subpoena documents e. Police reports, court histories etc. f. Watch the witness’ demeanor in any interviews or on direct (if nothing else available) g. Listen: listen to the witness in interviews and direct exam Scope of Cross: Limited to subject matter of the direct examination and matters affecting credibility of witness. What is the Purpose? a. Always you are telling your story, advancing your theory. b. At best, helps win a decision on points, not knockouts.

VI.

VII.

VIII.

IX.

c. At worst, you look good and enables you to act like you are scoring, even if you are not. Style of Cross: a. “Look Good” system b. change from a dialogue to a monologue c. You do not care what the witness says. What is the Look Good style of cross? a. What is your purpose with the witness? i. Discredit? ii. Show Bias or Motive? iii. Mental Instability? iv. Poor vision/Memory? b. Style/Manner: i. This is entirely up to you. You have to be YOURSELF. ii. Getting permission in Voir Dire if you have to be rough on some witnesses. Rules: a. Use Short Statements i. Why they are important? Goal is control. ii. Don't make too long of a question. iii. Do not ask open ended questions. b. Your questions are statements. 1. One fact per question. 2. Break this rule and you’ve lost control. 3. Also, you do not look good and loses jury’s attention 4. Only answer is yes or no. c. Make transitions: i. Show the listener where you are going. ii. Ex: “I want to ask you a few questions about what you saw when you left Murphy’s bar at 3 in the afternoon, you understand?” iii. Book marker for listener d. NO LEGALESE! Your goals: Tell your story! a. Use statements of the witness b. Destroy credibility of those who hurt you. i. Key point is witnesses will abandon logic and truth in order to preserve their sense of self. ii. Create a cross designed to force a witness to agree to a damaging fact or facts in order that the witness may maintain his/her self image intact. How to: a. I separate witnesses with folders. i. In each folder I have any statements they made, their statement in discovery, notes from videos, info etc b. Write down goals. “I must prove this” c. Then work in reverse, how do you get to that goal?

XI.

XII.

d. Close escape routes: i. Reviewed documents ii. Could make changes and didn’t iii. Didn’t tell anyone about errors iv. Court reporter has machine to take down what you say v. Different witnesses: different tactics: a. Always be mindful of bias and motive (always relevant!) i. Bias- any relationship between a witness and a party which might cause the witness to slant his testimony. US v. Abel, 469 U.S. 45 (1984). 1. Examples of bias include affairs, hurt feelings, prior issues over money, bad business deals, family relationships ii. Motive- Examples of evidence that may raise questions about the motivation of the witness to testify truthfully or falsely include whether the witness has charges dismissed. Delaware v. Van Atsdall, 475 U.S. 673 (1986); potential future charges, potential charges against family member, etc. b. Cop- never admit to not being thorough c. Mother- never admit to being neglectful d. Expert- never admit to not being knowledgeable e. Snitch- try to hold on to some self respect How to maintain control of witness: a. Your goal is a Pavlov’s dog response. b. Try to look good, maintain manners and not ask for help. c. Try not to: i. Interrupt a witness ii. Instruct the witness to answer yes or no. 1. Better alternatives are: a. I’m sorry I confused you, let me try again? b. Can you try and answer MY question? c. You came to tell the truth, if the simple truth is yes, can you just tell us yes? d. What did I ask you? e. Or repeat the same question slowly with rising inflection and use the witness’ name. May be times we do not want to cross examine: a. Do I need to cross examine this witness? b. Will other witnesses demonstrate the same point with less danger to my client/theory c. Will another witness highlight the illogic or unreasonableness of this witness? d. Children? Crying witnesses? Painful recount would only hurt you? Does this witness matter? i. Errors in time/distance the jury will forgive the witness, not you. ii. Big issues are the only things to ever fight about.

Texas Criminal Defense Lawyers Association

Cross-Examination Seminar March 4-5, 2021 Livestream

Topic: Cross-Examining the State Expert on Cell phones, GPS Locations and Tower Locations Speaker:

Sal Nolasco

29910 Murrieta Hot Springs Rd. Ste G-221 Murrieta, CA 95263 (951)215-6917 Phone sal@ctfdatapro.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

HACKING & TRACKING: CELL PHONES FOR LAWYERS

FRANK SELLERS, Fort Worth, Texas Westfall Sellers 1701 River Run, Suite 801 Fort Worth, Texas 76107 817-928-4222 frank@westfallsellers.com ROBERT AGUERO, Murrieta, California CTF DataPro, Inc. 29910 Murrieta Hot Springs Rd, Suite G-221 Murrieta, California 92563 866-935-5551 ext 1 – Office 951-399-3505 – Cell Robert@CTFDataPro.com www.CTFDataPro.com WESTON MUMME, Lubbock, Texas Texas Tech University School of Law Juris Doctor Candidate 2019

I. II.

INTRODUCTION ........................................................................................................................................... 1 CELL PHONE HACKING ............................................................................................................................... 1 What Third-Party Tools Can Unlock Phones? ......................................................................................... 1 1. Cellebrite ........................................................................................................................................... 1 2. Blacklight .......................................................................................................................................... 2 3. XRY .................................................................................................................................................. 2 4. IP Box ............................................................................................................................................... 2 5. ElcomSoft .......................................................................................................................................... 3 B. Can the Manufacturer Unlock the Phone? ............................................................................................... 3 1. Apple ................................................................................................................................................. 3 2. Samsung ............................................................................................................................................ 3 C. Once a Passcode has been cracked, what data can be obtained? .............................................................. 3 D. Can I obtain text messages from a service provider? ............................................................................... 4 E. What data can be obtained from a cell phone’s backup to iCloud or its associated parent computer? ....... 4 A.

III. CELL PHONE TRACKING ............................................................................................................................. 4 A. In What Ways Can a Cell Phone Be Tracked? ........................................................................................ 5 1. Global Positioning System ................................................................................................................. 5 2. WiFi Connections .............................................................................................................................. 5 3. Cell Tower Data Reports .................................................................................................................... 6 4. Location Services on Phone ............................................................................................................... 7 B. How Does a Cell Tower track phones? ................................................................................................... 7 C. How May Cell Tower Records Be Obtained? ......................................................................................... 8 D. How Do I Read Cell Tower Records? ..................................................................................................... 9 IV. CHALLENGING CELL TOWER AND CELL PHONE EVIDENCE ......................................................................... 9 A. Circuit Views on Cell Site Location Information .................................................................................. 12 B. Recent Texas Case Law on Cell Site Location Information and Privacy of Cell Phone Data.................. 13 C. Challenging a Warrant or Court Order .................................................................................................. 14 1. Which Document is Required? ......................................................................................................... 14 2. Probable Cause ................................................................................................................................ 14 3. Nexus .............................................................................................................................................. 15 4. Overbreadth ..................................................................................................................................... 15 5. Particularity ..................................................................................................................................... 16 6. Overbreadth and Particularity ........................................................................................................... 17 D. Does the Good Faith Exception Apply? ................................................................................................ 18 1. Federal Good Faith Exception .......................................................................................................... 18 2. The Fifth Circuit’s Application of the Good Faith Exception ............................................................ 19 3. Article 38.23(b): Texas’s Statutory Good Faith Exception ................................................................ 19 E. Expert Qualifications and Opinions ...................................................................................................... 20 F. Limiting Expert Opinion ...................................................................................................................... 21 G. Best Evidence Rule .............................................................................................................................. 21 V.

CONCLUSION: WHAT LIES AHEAD ............................................................................................................ 22

INTRODUCTION

On May 24, 2017, nationally-recognized criminal procedure scholar, Orin Kerr, published an opinion piece titled United States v. Wallace is a GPS Case, Not a Cell-Site Case — Here’s Why It Matters.1 His article faults the Fifth Circuit’s then week-old opinion for misunderstanding the technology involved, leading to a misapplication of the controlling legal principles. Wallace’s holding hinges on the assumption that the government was not obtaining records directly but was instead obtaining records from a third party that had received the information in the ordinary course of business. But I don’t think that happened in Wallace. Instead, the government’s agent accessed the information directly, “pinging” the phone to obtain location information. In response to the ping, the phone would have turned on its GPS receiver, obtained its GPS coordinates, and sent that information to the government. The information the government received was the data collected by the GPS in the phone, not the business records from AT&T about what cell towers were connected to the phone.2 This paper seeks to prevent these types of misunderstandings by providing judges and practicing attorneys with a practical guide to cell phone evidence. Part II focuses on the tools available for hacking cell phones and the specific data they are able to extract. Part III then considers the various methods of tracking cell phones and explains how they work. Lastly, Part IV surveys current Fourth Amendment jurisprudence on cell phone data and how attorneys should navigate the process of challenging cell phone evidence. II.

CELL PHONE HACKING

When officers want to access the information on a cell phone, they access that information through a process called hacking. Hacking into a cell phone takes several different forms and the various methods of hacking yield different types of data. Generally, law enforcement attempts to hack phones through the use of third party software programs, phone manufacturers, service providers, or the backup files from a parent computer or cloud based storage provider. A. What Third-Party Tools Can Unlock Phones? When law enforcement has possession of a cell phone, secured by a passcode, they utilize third-party software programs to unlock the phone, giving them unencumbered access to the phone’s data. Once inside, other software programs allow cell phone data to be analyzed efficiently. While many third-party programs are only compatible with a limited number of phones (with newer phones requiring passwords to hack), the sheer amount of programs available allow law enforcement to hack essentially every phone on the market. Some of the most common programs are Cellebrite, Blacklight, XRY, IP Box, and ElcomSoft. 1. Cellebrite For years, Cellebrite has been the FBI’s main resource for hacking into suspects’ phones.3 Originally used for transferring data between cell phones, in 2007 Cellebrite began marketing its tools for “forensics and law enforcement.”4 Over the years, Cellebrite has become the solution for police when passcodes prevent them from accessing a phone’s data.5 1 Orin Kerr, United States v. Wallace is a GPS case, not a cell-site cases—here’s why it matters, WASH. POST, (May 24, 2017), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/05/24/united-states-v-wallace-is-a-gps-case-nota-cell-site-case-heres-why-it-matters/?utm_term=.28a2f75fe130; but see United States v. Wallace, 885 F.3d 806 (5th Cir. 2018) (The court withdrew its original opinion and issued this substituted opinion amending its holding and removing the quoted portion in Kerr’s article.). 2

Kerr, supra note 1.

Jose Pagliery, Cellebrite is the FBI’s go-to phone hacker, CNN http://money.cnn.com/2016/03/31/technology/cellebrite-fbi-phone/. 4

Id.

Id. 1

TECH

(Apr. 1, 2016, 2:50 PM),

Rev. 7/24/2018

In the past, when law enforcement officers were unable to hack into a cell phone using Cellebrite, officers would obtain a warrant demanding the phone be unlocked.6 Uncooperative phone manufacturers such as Apple, however, updated their security settings beginning with iOS 8.0 to prevent everyone, including themselves, from hacking their devices.7 Despite Apple’s attempts to protect customer data, Cellebrite has enhanced its software and is now able to unlock Apple devices utilizing iOS 8.0 as well as more recent operating systems.8 Even cell phones utilizing the most recent technology are not immune to Cellebrite.9 Rumors suggest the Department of Homeland Security successfully hacked an iPhone X in November of 2017, the same month the phone was released.10 Once a device is hacked, Cellebrite is able to recover text messages, “downloaded emails, third-party application data, geolocation data and system logs.”11 Due to Cellebrite’s seemingly limitless capabilities, phone users should always employ the most recent operating systems to help prevent hacking.12 2. Blacklight After gaining access to a cell phone, Blacklight helps law enforcement examine the phone’s data. Blacklight permits law enforcement to view data points which are attributed to a cell phone or computer user’s actions, facilitating easy searches through large amounts of data. Blacklight analyzes memory files, finds photo and video evidence, and recovers every message from various sources, such as e-mails or text messages.13 Additionally, Blacklight is able to search phone information that has been backed up to a computer. Blacklight is compatible with a number of devices including Windows, Android, iPhone, and Mac OS X.14 3. XRY Similarly, XRY permits a forensic extraction of data in devices such as smartphones, tablets, modems, music players, and satellite navigation units.15 XRY allows for extraction from the device’s operating system, memory, cloud-based storages, non-standard mobile devices, and provides screenshots along with extractions.16 4. IP Box For older phones, IP Box allows examiners to gain access to iPhones and iPads, even when the user has employed the 10-try limit for passcode entries.17 Typically, when the 10-try limit is engaged, Apple products will

Id.

Thomas Fox-Brewster, The Feds Can Now (Probably) Unlock Every iPhone Model in Existence, FORBES (Feb. 26, 2018, 10:20 AM), https://www.forbes.com/sites/thomasbrewster/2018/02/26/government-can-access-any-apple-iphonecellebrite/#6c15df6c667a. 10

Id.

Blacklight, BLACKBAG TECHNOLOGIES, https://www.blackbagtech.com/software-products/blacklight.html (last visited May 25, 2018). 14

Id.

XRY–Extract, MSAB, https://www.msab.com/products/xry/ (last visited May 25, 2018).

Id.

AppleInsider Staff, New ‘IP Box’ tool bypasses 10-try limit for PINs on older iOS versions, automates brute force attacks, (Mar. 18, 2015, 6:50 AM), http://appleinsider.com/articles/15/03/18/new-ip-box-tool-bypasses-10-try-limitfor-pins-on-older-ios-versions-automates-brute-force-attacks. APPLEINSIDER

Rev. 7/24/2018

lock up after ten unsuccessful passcode entry attempts.18 IP Box bypasses this by entering a passcode via USB and then cutting off power to the iOS device before the attempt is documented.19 5. ElcomSoft ElcomSoft uses proprietary and patented algorithms to hack “even the most complex passwords.”20 The software allows law enforcement to access encrypted information within smartphones.21 B. Can the Manufacturer Unlock the Phone? In addition to utilizing third party software to unlock phones, law enforcement frequently requests phone manufacturers to unlock devices. Whether a manufacturer can unlock a phone depends on the type of device and the manufacturer itself. Despite having created the device, the two biggest phone manufacturers, Apple and Samsung, can only unlock their phones under certain circumstances. 1. Apple For all devices running iOS 8.0 and later, Apple will not perform data extractions because the extraction tools are no longer effective.22 Encryption keys protect the user’s passcode, which Apple does not have.23 If the device is running on iOS 4 through iOS 7, Apple may extract “SMS, iMessage, MMS, photos, videos, contacts, audio recording, and call history” pursuant to search warrant based on probable cause.24 However, unless backed up to iCloud, Apple cannot provide calendar entries, e-mail messages, or any third-party app data.25 2. Samsung Because Samsung makes many different versions of their flagship phone, the Galaxy, knowing the specific model number is helpful to determine whether it can be unlocked. Further, it is common for a specific phone to have different model numbers for each carrier who sells it. For example, the Galaxy Note has over 120 different model numbers. Samsung can bypass over seventy-five percent of those models. The model number can be located behind the battery. C. Once a Passcode has been cracked, what data can be obtained? Typically, the following information is available: • • • • • • • •

SMS and MMS Message content WiFi connections Internet search history E-mails Social media activity Application usage Contacts Some cell tower information

See id.

Id.

About Elcomsoft, ELCOMSOFT PROACTIVE SOFTWARE, https://www.elcomsoft.com/company.html (last visited May 25, 2018). 21

Id.

Legal Process Guidelines, APPLE, https://www.apple.com/legal/privacy/law-enforcement-guidelines-us.pdf (last visited May 25, 2018). 23

Id.

Id. 3

Rev. 7/24/2018

D. Can I obtain text messages from a service provider? It is unlikely someone will be able to obtain text messages from a service provider such as AT&T, Verizon, or T-Mobile.26 Most service providers only retain text messages on their servers for a limited period of time. For many, this period is less than a week.27 Messages are only retained longer if a person uses the provider’s cloud storage or backup services.28 If available, text messages are considered a “stored communication.” Under the Federal Stored Communications Act (SCA), a law enforcement officer may only obtain stored communication information pursuant to a court order, warrant, or a customer’s consent.29 This information may include text messages, e-mails, photographs, call logs, and location information.30 On the other hand, a subpoena may be used to acquire transactional records, billing records, and account notes, unless they reflect the location of a phone.31 The subscriber’s general account details, such as name, address, phone number, and IP address are considered noncontent data, and are also available by subpoena or court order.32 E. What data can be obtained from a cell phone’s backup to iCloud or its associated parent computer? iCloud information is only available from Apple pursuant to a search warrant issued upon a showing of probable cause.33 The following information may be available from iCloud: • • • • III.

subscriber information, such as name, address, e-mail address, and telephone number; mail logs, including incoming and outgoing communication time, date, sender/recipient e-mail addresses; e-mail content of e-mail address associated with the account; and photo stream docs, calendars, contacts, bookmarks and iOS device backups, which includes generally anything contained on the phone.34 CELL PHONE TRACKING

While hacking pertains to the information on a cell phone, tracking concerns a phone’s location(s). A phone can be tracked in a variety of ways, such as through the Global Positioning System (GPS), WiFi networks, cell tower data reports, and the location services within the device. Each of these tracking methods generates distinct types of data that are created using different technologies. Once the tracking information is acquired, the difficulty becomes interpreting it.

But see Love v. State, No. AP-77, 024, 2016 Tex. Crim. App. LEXIS 1445, (Tex. Crim. App. Dec. 7, 2016) (In Love, MetroPCS retained content and provided it to law enforcement. MetroPCS was bought by T-Mobile in 2012, however, and would now be unlikely to recover such information.). 27

Law Enforcement Telephone Investigations Resource Guide, ACLU, https://www.aclu.org/files/cellphonetracking/20120328/celltrackingpra_irvine4_irvineca.pdf (last visited May 25, 2018). 28

AT&T Messages Backup & Sync, AT&T, https://www.att.com/shop/apps/backup-sync.html (last visited May 25, 2018) (providing backup of text message content for up to 90 days). 29

18 U.S.C. § 2703(c) (2017).

Id.

Id.; see Law Enforcement Telephone Investigations Resource Guide, supra note 27.

ELENA CONDES & ROBERT AGUERO, Global Positioning Systems (GPS), Cell Phones, and Other Tracking Devices, in SCIENTIFIC EVIDENCE AND EXPERT TESTIMONY IN CALIFORNIA: 2016 UPDATE 22 (2015). 33

See Legal Process Guidelines, supra note 22.

Id. 4

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A. In What Ways Can a Cell Phone Be Tracked? There are two sources of tracking information for cell phones: the service provider and the phone itself.35 Each source, however, obtains information through the same tracking methods: GPS, Wifi networks, cell tower data reports, and the location based services within the device.36 1. Global Positioning System GPS uses a constellation of over thirty satellites, orbiting the earth every twelve hours, to provide longitude, latitude, altitude, and precise time.37 The thirty-plus satellites orbit the earth in a manner that ensures there are always at least six satellites within sight of almost every location of the Earth’s surface.38 A GPS receiver on the Earth’s surface determines position by calculating the distance to three or more GPS satellites through a process called “triangulation.”39 Distance from each satellite is determined by calculating the time it takes for a radio signal to reach the satellite.40 Taken together, these various measurements provide a GPS receiver’s location. The accuracy with which GPS can locate a user’s phone is increasing.41 The Federal Communications Commission (FCC) requires wireless carriers to provide 911 centers with a phone’s location with increasing degrees of precision.42 The FCC’s E911 program requires wireless carriers to give emergency responders a phone’s longitude and latitude within a range of 50–300 meters.43 This range varies depending on the type of technology used.44 2. WiFi Connections Cell phones have unique media access control (MAC) addresses that connect devices to WiFi network sensors or Bluetooth devices.45 When the WiFi or Bluetooth setting is switched on, the phone sends out probes to connect to the network through its sensor.46 Once connected, the network can determine the phone’s location by calculating the strength of signal.47 Like GPS information, this data is stored in the phone itself.48 Cell phones and other devices can be tracked based on a phone’s WiFi connections.49 Forensic analysts are able to extract the phone’s WiFi connection data from the phone to determine where the phone has been.50 This allows analysts to narrow down where a phone has been during a specific time period.51

See CONDES & AGUERO, supra note 32.

Id.

Id. at 3–4.

Id.

43 Enhanced 911- Wireless Services, FED. COMMS. COMMISSION, https://www.fcc.gov/general/enhanced-9-1-1-wirelessservices (last visited May 25, 2018). 44

Id.

See CONDES & AGUERO, supra note 32, at 12.

Id.

See id.

Id. 5

Rev. 7/24/2018

A large number of WiFi networks may be polled and recorded depending on the device’s amount of movement.52 A phone will even record WiFi networks that it was unable to connect to.53 Because the number of possible connections can be large, WiFi data does not indicate that a phone was necessarily at a particular location.54 Accordingly, records should be analyzed with all available data to ensure greater accuracy.55 Currently, many retail stores are making use of this technology.56 Retailers are able to track whether a person actually entered their store or simply walked by, where shoppers are located within a store, whether shoppers stop by a cash register, and how frequently a shopper enters the store.57 In 2013, Nordstrom tracked this information at seventeen of its stores without a shopper’s device ever connecting to their WiFi network.58 3. Cell Tower Data Reports Cell phone location evidence commonly involves historical data. Available historical cell phone records include: • • • •

call detail records (CDRs); location information from call measurement data (PCMD); real-time tool (RTT) records; and network event location services (NELOS) records.59

CDRs are the records most frequently obtained from cell phone providers.60 Typically, CDRs provide the date and time a phone call was made, the phone numbers involved, whether a call was incoming or outgoing, the duration of a call, and the cell tower and sector hit during a call.61 CDRs are kept six months to five years.62 PCMD, RTT and NELOS all use round trip delay data to measure how long a radio signal takes to go from the tower to the handset and back to the tower.63 These measurements provide a phone’s geographic coordinates at a given date and time, but this data is not guaranteed to be accurate. 64 All of these records are usually only kept by the provider for a relatively short time period—ranging from just a few days to one month.65 Another method of obtaining historical phone data is through “cell tower dumps.”66 These dumps provide the identity of all phone numbers connected to a particular cell tower during a given time period.67 Presumably,

See CONDES & AGUERO, supra note 32, at 12.

See id.

Id.

Id. at 7.

See id.

Id.

Id. at 17.

See id. 6

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gathering this information requires a warrant or a court order showing probable cause.68 This method is typically most helpful when law enforcement does not know the suspect’s phone number.69 The tower dump will identify towers in the area surrounding a crime scene and also provide a list of all calls processed by that tower during the relevant time frame.70 Likewise, defense counsel can request cell tower dump records to help show a defendant’s location is consistent with an alibi defense during a key time period.71 4. Location Services on Phone The GPS location shown on phone applications comes from location-based services (LBS), which uses realtime data from a cell phone to track itself.72 Cell phones rely on assisted GPS (A-GPS) to obtain their location.73 A-GPS uses the GPS satellites in combination with nearby cell towers to figure out its own position.74 In addition to GPS and cell towers, LBS can also use WiFi to locate itself.75 While they be used individually to locate a particular phone, a combination of these three provides the greatest location accuracy .76 LBS is used for things like locating stores, proximity-based marketing systems, and providing travel information.77 Many applications and services that run on electronic devices automatically detect the user’s location.78 This form of live tracking is always done in the background—as long as a phone is turned on.79 LBS information is generally stored within the phone itself and is not retained by, or transmitted to, the cell phone service providers.80 B. How Does a Cell Tower track phones? A cell tower’s main purpose is to raise antennas to transmit and receive radio frequency (RF) signals from cell phones and other devices.81 Usually, but not always, devices are aware of the nearest tower’s location, which is displayed on a device in the form of signal strength. The range of a cell tower can vary from one-quarter mile to twenty-five miles.82 Most cell towers contain equipment that allows antennas to receive and transmit RF and GPS signals. A typical cell tower has three sectors—each sector is a set of antennas grouped together to provide directional coverage in

Id.; but see Carpenter v. United States, 138 S. Ct. 2206, 2220 (2018) (“We do not express a view on matters not before us: real-time CSLI or ‘tower dumps’ (a download of information on all the devices that connected to a particular cell site during a particular interval).”). 69

Id.

Daniel Rubino, GPS v. aGPS: A Quick https://www.windowscentral.com/gps-vs-agps-quick-tutorial. 73

Id.

See CONDES & AGUERO, supra note 32, at 5–6.

Id.

Tutorial,

WINDOWS

CENTRAL

(Jan.

2009),

Ryan Goodrich, Location-Based Services: Definitions & Examples, BUS. NEWS DAILY (Oct. 30, 2013, 4:34 PM), http://www.businessnewsdaily.com/5386-location-based-services.html. 78

See CONDES & AGUERO, supra note 32, at 5–6.

Id.

Michael Harris, How Cell Towers Work, center/How%20Towers%20Work.pdf (last visited May 25, 2018). 82

UNISON,

http://www.unisonsite.com/pdf/resource-

CONDES & AGUERO, supra note 32, at 10. 7

Rev. 7/24/2018

one direction facing away from the cell tower.83 The precision of a cell site location depends on the size of the sector. The smaller the sector, the more precise the location information.84 Sector sizes have steadily been decreasing over time in order to meet demands of dependable cell phone coverage.85 These smaller sectors are known as microcells.86 As of 2010, microcells make up the majority of cell sectors, allowing carriers and analysts to know a phone’s location within a shrinking geographical area.87 Further, some cell phone service providers utilize “time of arrival” and “angle of arrival” enhancements to determine not only the sector in which the phone is located, but also its position within that sector.88 A cell phone provider can then pinpoint a cell phone’s latitude and longitude by correlating the precise time and angle at which a phone’s signal arrives at multiple-sector base stations.89 But be cautious. If you received NELOS records from AT&T, or PCMD or RTT from any other provider, these records are attempting to locate the phone itself within a particular range, or confidence interval. C. How May Cell Tower Records Be Obtained? When cell phone data is material to a case, both opponents and proponents of the data should request copies of all available records. The following information should typically be included in discovery from a cell phone service provider: • • • •

call detail record (CDR) which provides basic call information and cell tower numbers used; a cell tower key which provides GPS coordinates for each tower and sector azimuth90; subscriber information which provides the name and address of the subscriber to the phone service and the make and model of the device; and a key to reading the records which contains information helpful to understanding the data.91

In cases where the FBI analyzed cell tower data, the FBI’s Cellular Analyst Survey Team (CAST) prepares a report to assist prosecutors.92 CAST reports contain information such as: (1) the methodology used in conducting the historical cell site analysis; (2) a mapping of cell tower locations; (3) the orientation of cell sectors for the cell provider’s towers; (4) the assumptions in drawing cell sector coverage; and (5) the conclusions regarding cell phone location in cell sites and call patterns in CDRs for text messages and phone calls.93 Further, when seeking phone records, knowing the retention time for each service provider is vital. Retention periods for cell phone data differ among service providers and vary from a few days to five years.94

Id. at 12.

Id. at 11.

Id.

See id. at 34 (explaining that the “[a]zimuth is the centerpoint of the sector”).

Id. at 26.

Id. at 27.

Id.

94 Id.; Retention Periods of Major Cellular Service Providers, ACLU, https://www.aclu.org/files/pdfs/freespeech/retention_periods_of_major_cellular_service_providers.pdf (last visited May 25, 2018).

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D. How Do I Read Cell Tower Records? Reading cell tower records can be a daunting task. To make the process easier, there are a few things to note before you begin. Certainly, an expert can always be hired to read and explain the records to you. However, basic information needed to understand the records should be contained within them. A key to reading the records should be included, which provides essential information such as the switch information to determine time zones within the records.95 For example, most of AT&T’s older records were reported in the local time zone.96 Newer records, however, are now reported in the Coordinated Universal Time (UTC), so these records must be adjusted to reflect the local time zone.97 AT&T’s records must also be adjusted for daylight savings time.98 Further, it is important to use the proper coordinates when studying the data. The carrier provides GPS coordinates for the tower—not the actual location of the phone—for use when examining cell phone location data.99 IV.

CHALLENGING CELL TOWER AND CELL PHONE EVIDENCE

As the presence of technology in our daily lives increases, so too do the legal questions surrounding cell phone data. Fourth Amendment issues involving law enforcement’s ability to search cell phones and cell phone records held by third-parties are becoming more and more common. An in depth understanding of current Forth Amendment jurisprudence is imperative when combating or utilizing cell phone evidence. The leading case on cell phone privacy is Riley v. California. In Riley, the arresting officer conducted a warrantless search of the defendant’s phone, revealing evidence of unrelated criminal activity.100 On appeal, the Supreme Court unanimously held an officer must obtain a warrant before searching a phone following an arrest.101 In doing so, the Court gave a glimpse of how importantly it considers cell phone privacy. In Carpenter v. United States, the Court further illustrated the importance of cell phone privacy when it held the government’s acquisition of cell site location information (CSLI) requires a warrant supported by probable cause.102 In Carpenter, the Government sought and obtained court orders for Carpenter’s CSLI under the Stored Communications Act (SCA).103 Prior to his robbery and firearms trial, Carpenter moved to suppress the CSLI evidence, arguing probable cause was required instead of the SCA’s lower standard.104 The Government argued Carpenter lacked a reasonable expectation of privacy in CSLI records because he voluntarily conveyed them to the third-party service provider, who owned the records.105 In a 5-4 opinion, Chief Justice Roberts explained CSLI is “qualitatively different” than the dialed phone numbers in Smith and the bank records in Miller.106 Rejecting the Government’s argument that the records at issue belonged to the third-party service provider—not to Carpenter—the Court said, “Given the unique nature of cell 95

See CONDES & AGUERO, supra note 32, at 9.

Id.

100

Riley v. California, 134 S. Ct. 2473, 2481 (2014).

101

Id.

102

Carpenter v. United States, 138 S. Ct. 2206, 2221 (2018).

103

Id. at 2212.

104

Id.; 18 U.S.C. § 2703(d) (allowing Government court-ordered access to CSLI if it “offers specific and articulable facts showing . . . reasonable grounds to believe” the records sought “are relevant and material to an ongoing criminal investigation”). 105

Carpenter, 138 S. Ct. at 2213; Smith v. Maryland, 442 U.S. 735, 743–44 (1979); United States v. Miller, 425 U.S. 435, 443 (1976). 106

Carpenter, 138 S. Ct. at 2216–17. 9

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phone location records, the fact that the information is held by a third party does not by itself overcome the user's claim to Fourth Amendment protection.”107 “There is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today. The Government thus is not asking for a straightforward application of the third-party doctrine, but instead a significant extension of it to a distinct category of information.”108 The Court expressly recognized a reasonable expectation of privacy in data which tracks a person’s physical movements.109 For CSLI, “when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone's user.”110 This is true “[w]hether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier.”111 Individuals maintain “a legitimate expectation of privacy in the record[s] of [their] physical movements as captured through CSLI.”112 Therefore, obtaining location information from wireless carriers is a search.113 Carpenter also expressly held court orders under the SCA are not the appropriate way to obtain CSLI. As the Government conceded, under the SCA’s standard “law enforcement need only show that the cell-site evidence might be pertinent to an ongoing investigation—a ‘gigantic’ departure from the probable cause rule[.]”114 Because government acquisition of CSLI is a search, “the Government's obligation is a familiar one—get a warrant.”115 The Court concluded: We decline to grant the state unrestricted access to a wireless carrier's database of physical location information. In light of the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection. The Government's acquisition of the cell-site records here was a search under that Amendment.116 Justice Gorsuch wrote an independent dissent, offering an increasingly popular property-based perspective to digital data held by third-parties.117 He would take the third-party doctrine off of “life support,” because in his view, Smith and Miller breed “[a] doubtful application of Katz that lets the government search almost whatever it wants whenever it wants.”118 But to Justice Gorsuch, this problem stems from Katz itself.119 He criticizes the continued use of the Katz test, as modified by the third-party doctrine: In the end, our lower court colleagues are left with two amorphous balancing tests, a series of weighty and incommensurable principles to consider in them, and a few illustrative examples that seem little more than the product of judicial intuition. In the Court's defense, though, we have

107

Id. at 2217.

108

Id. at 2219.

109

Id. at 2217.

110

Id. at 2218.

111

Id. at 2217 (citing United States v. Jones, 565 U.S. 400 (2012)).

112

Id.

113

Id.

114

Id. at 2221 (discussing 18 U.S.C. § 2703).

115

Id.

116

Id. at 2223.

117

Id. at 2261–72 (Gorsuch, J., dissenting).

118

Id. at 2264.

119

Id. at 2267. 10

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arrived at this strange place not because the Court has misunderstood Katz. Far from it. We have arrived here because this is where Katz inevitably leads.120 Under Justice Gorsuch's property-based approach, “the fact that a third party has access to or possession of” a person’s papers and effects does not necessarily eliminate the person’s interest in them.121 Likening digital data to handing a sensitive document to a friend to read, valeting your car, or asking someone to watch your dog while you’re out of town, he views a third-party service provider as a bailee who must safely keep your property: A bailee normally owes a legal duty to keep the item safe, according to the terms of the parties’ contract if they have one, and according to the implication[s] from their conduct if they don't. A bailee who uses the item in a different way than he's supposed to, or against the bailor's instructions, is liable for conversion. This approach is quite different from Smith and Miller's (counter)-intuitive approach to reasonable expectations of privacy; where those cases extinguish Fourth Amendment interests once records are given to a third party, property law may preserve them.122 Justice Gorsuch suggests looking to positive law for determining whether data is someone’s property.123 He notes in other contexts the Court “often ask[s] whether . . . state-created rights are sufficient to make something someone's property for constitutional purposes.”124 Citing the Texas Property Code, he points out, “Both the States and federal government are actively legislating in the area of third party data storage and the rights users enjoy.”125 To him, the positive law created in state and federal legislatures “may supply a sounder basis for judicial decisionmaking than judicial guesswork about societal expectations.”126 Under a property-based approach, Justice Gorsuch believes it’s “entirely possible a person's cell-site data could qualify as his papers or effects under existing law.”127 Even though in the possession of the provider, “Plainly, customers have substantial legal interests in this information, including at least some right to include, exclude, and control its use. Those interests might even rise to the level of a property right.”128 But because he did not pursue a property-based challenge, in Justice Gorsuch’s view, Carpenter forfeited what was “perhaps his most promising line of argument.”129 Justice Gorsuch’s dissent is meant to be a “cautionary tale.”130 Unfortunately, too, this case marks the second time this Term that individuals have forfeited Fourth Amendment arguments based on positive law by failing to preserve them.131 Litigants have had fair notice since at least United States v. Jones (2012) and Florida v. Jardines (2013) that arguments like these may vindicate Fourth Amendment interests even where Katz arguments do not.132 Still, the arguments have gone unmade, leaving courts to the usual Katz handwaving. These 120

Id.

121

Id. at 2268.

122

Id. at 2268–69 (citations and quotation marks omitted).

123

Id. at 2270.

124

Id.

125

Id. (citing 18 U.S.C. § 2701 et seq.; Tex. Prop. Code Ann. § 111.004(12) (West 2017) (defining “[p]roperty” to include “property held in any digital or electronic medium”)). 126

Id.

127

Id. at 2272.

128

Id.

129

Id.

130

Id.

131

See Byrd v. United States, 138 S. Ct. 1518, 1526 (2018).

132

See United States v. Jones, 565 U.S. 400 (2012); see also Florida v. Jardines, 569 U.S. 1 (2013). 11

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omissions do not serve the development of a sound or fully protective Fourth Amendment jurisprudence. A. Circuit Views on Cell Site Location Information Prior to the Supreme Court’s Carpenter decision, Fourth Amendment jurisprudence from the Fifth and Sixth Circuits suggested law enforcement may be allowed to obtain CSLI without a search warrant. In United States v. Skinner, the Sixth Circuit held obtaining a suspect’s prospective cell site data—data showing a phone’s real time location—is not a Fourth Amendment search.133 The court reasoned when an individual “voluntarily uses a cellular device, he has no reasonable expectation of privacy in the GPS data and location of his cell phone.”134 Similarly, in United States v. Wallace, the Fifth Circuit originally held law enforcement officers may use data from cell tower records to track a suspect’s phone without a warrant. As noted by Orin Kerr, however, the court mischaracterized Wallace as a cell-site case when it was actually a GPS case and would later substitute its opinion correcting the mistake.135 In Wallace, law enforcement officers used real-time geolocation coordinates obtained from the service provider, through a Ping Order, to find and arrest the defendant.136 In his motion to suppress, Wallace argued the Ping Order was invalid and the federal pen-trap statute and Texas Code of Criminal Procedure authorizing the Ping Order were unconstitutional.137 The district court denied the motion, and Wallace was convicted.138 On appeal, the Fifth Circuit declined to reach the merits of Wallace’s argument stating, “suppression is not a remedy for a violation of either the federal pen-trap statute or the Texas Code of Criminal Procedure.”139 As such, they did not to consider whether obtaining geolocation coordinates of a cell phone constitutes a search within the meaning of the Fourth Amendment.140 The court did, however, determine that even if suppression was a proper remedy it would not apply in this case because the officers acted in good faith.141 Essentially, Wallace’s substituted opinion created more questions than it resolved. As one justice remarked: It is some comfort that, after two revisions, the panel has eliminated several pernicious aspects of its previous opinions. However, the panel's latest revision still misses the mark. It also misses the opportunity to provide sorely needed guidance on the meaning of a complicated and poorly understood statute. Indeed, I am afraid the majority's opinion aggravates rather than alleviates the confusion. For these reasons, I respectfully dissent from the denial of rehearing en banc.142 Noting the obvious uncertainty on this issue from the Fifth Circuit, it will be interesting to see how future Fourth Amendment cases turn out post-Carpenter.

133

United States v. Skinner, 690 F.3d 772, 781 (6th Cir. 2012).

134

United States v. Wallace, 857 F.3d 685, 689 (5th Cir. 2017), withdrawn, 885 F.3d 806 (5th Cir. 2018), and reh’g denied en banc, 885 F.3d 315 (5th Cir. 2018) (alteration omitted) (internal quotation marks omitted) (quoting Id.). 135

Compare Kerr, supra note 1, with Id. at 687 (stating the court order at issue authorized law enforcement to obtain the “locations of cell site towers being accessed by” the defendant), and United States v. Wallace, 885 F.3d 806, 808 (5th Cir. 2018), reh’g denied en banc, 885 F.3d 315 (5th Cir. 2018) (recharacterizing the information sought by law enforcement as “real-time geolocation coordinates” of the defendant’s cell phone). 136

Wallace, 885 F.3d at 808.

137

Id.

138

Id. at 807–09.

139

Id. at 809.

140

Id. at 810.

141

Id. at 810–11.

142

United States v. Wallace, 885 F.3d 315, 318 (5th Cir. 2018) (Dennis, J., dissenting). 12

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B. Recent Texas Case Law on Cell Site Location Information and Privacy of Cell Phone Data The Texas Court of Criminal Appeals has contemplated both a person’s right to privacy in content-based and non-content-based cell phone data. Its case law indicates content-based records harboring personal information such as text messages, e-mail messages, photographs, and videos, typically warrant Fourth Amendment protection.143 In Love v. State, the court held a person does in fact have a reasonable expectation of privacy in content-based information, such as text messages.144 Love was charged with murder, and the State admitted into evidence approximately 1600 of his text messages.145 Love argued his text messages—obtained by application and court order for text message content from the provider—were obtained in violation of the Constitution.146 The court agreed, holding “the State was prohibited from compelling Metro PCS to turn over [Love’s] content-based communications without first obtaining a warrant supported by probable cause.”147 Because the content-based information was obtained directly from the service provider without a warrant, the evidence should have been excluded.148 In Ford v. State, the court determined non-content-based cell phone data does not enjoy the same protections.149 In Ford, detectives investigating a murder applied for and received four days’ worth of historical CSLI for Ford’s phone from AT&T.150 The records AT&T provided detectives showed the phone was tracked at locations inconsistent with Ford’s alibi defense.151 Based on the phone data and inconsistent alibi testimony, Ford was found guilty of murder.152 The court ultimately held individuals do not have an expectation of privacy in non-content based information, such as records of a phone’s past location, conveyed to a third party.153 Still, Ford gave hope that Art. I, § 9 of the Texas Constitution may provide greater protection than the United States Constitution.154 That hope was lost, however, when the court decided Hankston v. State.155 Hankston was convicted of murder. Prior to trial, the State obtained Hankston’s cell phone records for the twelve months prior to the offense.156 Hankston challenged the cell phone records under both the Fourth Amendment and Art. I, § 9 of the Texas Constitution, but the court again held there was no legitimate expectation of privacy in records revealed to a third party.157 The court further held that Art. I, § 9 of the Texas Constitution and the Fourth Amendment offer the same level of protection, so there is no violation of Art. I, § 9 when law enforcement obtains cell phone records from a third party revealing a phone’s location.158

143

See infra notes 144–148 and accompanying text.

144

Love v. State, 543 S.W.3d 835, 843 (Tex. Crim. App. 2016).

145

Id. at 839.

146

Id. at 839–40.

147

Id. at 845.

148

Id. at 843–45.

149

See Ford v. State, 477 S.W.3d 321, 330 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 2380 (2016).

150

Id. at 325.

151

Id. at 326.

152

Id. at 327.

153

Id. at 329; but see Carpenter v. United States, 138 S. Ct. 2206, 2221 (2018).

154

See Ford, 477 S.W.3d at n.1.

155

Hankston v. State, 517 S.W.3d 112 (Tex. Crim. App. 2017), vacated sub nom. Hankston v. Texas, No. 17-6213, 2018 WL 3148283 (U.S. June 28, 2018). 156

Id. at 113–14.

157

Id. at 116–20.

158

Id. at 122. 13

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Despite years of Texas caselaw suggesting individuals have little to no expectation of privacy in their cell phone data, cases such as Riley and Carpenter have breathed new life into the Fourth Amendment. Texas should soon feel the effects of these Supreme Court decisions as leading cases like Hankston and Ford have already been called into question.159 Due to their uncertain futures, we should follow these cases closely. C. Challenging a Warrant or Court Order The Fourth Amendment does not protect against all searches and seizures, “but only such as are unreasonable.”160 Reasonableness, therefore, is the driving force in any Fourth Amendment analysis.161 The reasonableness of a search is determined by comparing “the degree to which it intrudes upon an individual’s privacy” with “the degree to which it is needed for the promotion of legitimate governmental interests.”162 As technology has advanced, this comparison has become increasingly complex. 1. Which Document is Required? Under the SCA, a governmental entity, in possession of a valid warrant, may require electronic communication service providers to disclose the contents of a wire or electronic communication.163 Service providers may also be required to disclose other records related to a particular subscriber pursuant to a warrant or court order.164 A warrant may be obtained under either the Federal Rules of Criminal Procedure, or State warrant issuing procedures.165 Obtaining a court order, however, requires “specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”166 2. Probable Cause For a search warrant to be valid under the Fourth Amendment, it must be based on probable cause.167 Further, the warrant must describe with particularity the place to be searched and the persons or things to be seized.168 While there are exceptions to this rule, the purpose of the Fourth Amendment is to protect innocent American citizens against unreasonable searches and seizures.169 Probable cause as it relates to cell phones raises new legal questions. The scope of a cell phone search as well as how the search should be executed are still unsettled issues. Pre-Riley, when cell phones only performed basic functions, many arresting officers searched cell phones as a “container” upon arrest. However, recent advances in technology make phones look less like containers and more like full file storage rooms. As Chief Justice Roberts remarked, equating a cell phone to a container “is like saying a ride on horseback is materially indistinguishable 159

See Hankston v. Texas, No. 17-6213, 2018 WL 3148283 (U.S. June 28, 2018) (vacating the judgment and remanding the case back to the Texas Court of Criminal Appeals just six days after Carpenter was decided); see also Suggestion for Court to Amend Opinion & Recall Mandate to Prevent an Injustice and Correct the Opinion, Ford v. State, 477 S.W.3d 321 (Tex. Crim. App. 2015) (No. PD-1396-14), available at http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=c4813a22-974b-44ef-bc7aeb9c18901c6d&coa=coscca&DT=LETTER&MediaID=b2287442-231f-4b8b-aeac-46c1dc9f61d8 (requesting the Texas Court of Criminal Appeals rescind mandate and amend opinion to comport with Carpenter). 160

Carroll v. United States, 267 U.S. 132, 147 (1925).

161

United States v. Knights, 534 U.S. 112, 118 (2001).

162

Wyoming v. Houghton, 526 U.S. 295, 300 (1999).

163

18 U.S.C. § 2703(a) (West 2017).

164

Id. § 2703(c)(1)(A–B).

165

Id. § 2703(c)(1)(A).

166

Id. § 2703(d).

167

U.S. CONST. amend. IV.

168

Id.

169

Id. 14

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from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together.”170 3. Nexus To have probable cause to search a cell phone, many courts have held there must be a nexus connecting the phone and the crime.171 Probable cause does not exist merely because a law enforcement officer claims it exists. As Chief Justice Roberts wrote in the Riley opinion, “[it] would be a particularly inexperienced or unimaginative law enforcement officer who could not come up with several reasons to suppose evidence of just about any crime could be found on a phone.”172 In State v. Granville, the Texas Court of Criminal Appeals considered whether a person retains a legitimate expectation of privacy in cell phone contents when his cell phone is being stored in a jail property room.173 Granville was arrested for the misdemeanor offense of causing a disturbance on a school bus, and while he was detained, his phone was turned on by an officer and searched without a warrant.174 The officer found a photo that was unrelated to the bus disturbance, and charged Granville with Improper Photography.175 The Court ultimately held “a cell phone is not like a pair of pants or a shoe . . . a citizen does not lose his reasonable expectation of privacy in the contents of his cell phone merely because it is being stored in a jail property room.”176 The Granville court noted there was no nexus between the offense for which the defendant was jailed and the photos found and seized from the phone.177 Thus, it is unlikely any probable cause existed to justify a search of the cell phone. Additionally, the Court remarked that even if there was probable cause, a person’s cell phone cannot simply be activated and searched without a valid warrant.178 4. Overbreadth A warrant is “overbroad” if it is not supported by probable cause to believe that each of the things law enforcement officers were authorized to search for and seize were evidence of a crime and would be found in the place to be searched.179 Even post-Riley, some courts have upheld overbroad search warrants authorizing searches of electronic data.180 Warrants that permit general searches of “any and all” data have been found to be valid.181 Likewise, courts have upheld warrants that do not state a crime for which the evidence is being searched.182 For example, in New York v. Watkins, an officer obtained a warrant for the video a suspect took on his cell phone as he was being arrested.183 Upon arrest, the officer frisked Watkins, seized his cell phone, and powered

170

See Riley v. California, 134 S. Ct. 2473, 2488 (2014).

171

See Adam M. Gershowitz, The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches, 69 VAND. L. REV. 585, 590 (2016). 172

See Riley, 134 S. Ct. at 2492.

173

State v. Granville, 423 S.W.3d 399, 402 (Tex. Crim. App. 2014).

174

Id.

175

Id.

176

Id. at 417.

177

Id. at 412.

178

Id. at 417.

179

See People v. Hepner, 21 Cal. App. 4th 761, 773–74, (Cal. Ct. App. 1994).

180

See Gershowitz, supra note 171, at 601.

181

Id.

182

Id.

183

See People v. Watkins, 994 N.Y.S.2d 816, 817 (N.Y. Supr. Ct. 2014). 15

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down the device.184 The officer then sought a search warrant for the entire contents of the phone, even though the video recording could be easily found by the officer. Notably, Watkins did not have the phone back in his possession following the arrest in order to hide any evidence in the phone.185 There was probable cause to search for the video taken on the phone, but the presiding judge authorized a warrant searching the entire contents of the Watkins’s cell phone. The judge reasoned the warrant was not overbroad because it was limited to video, audio, and information relating to the possession of a firearm.186 Further, the judge asserted that as technology evolves, warrants should be written to reflect “sufficient breadth” to search data of a cell phone in order to determine which file or application has evidentiary value.187 5. Particularity For purposes of the Fourth Amendment, “particularity” refers to the requirement that search warrants must clearly describe the places law enforcement may search, and the property they are permitted to search and subsequently seize.188 This requirement protects against general search warrants. Law enforcement must describe what they are looking for and where it may be found so they are not aimlessly rummaging through an individual’s personal belongings.189 This requirement “makes general searches . . . impossible and prevents the seizure of one thing under a warrant describing another.”190 To determine whether a warrant is written with sufficient particularity, the Fifth Circuit has asked whether an executing officer reading the warrant would reasonably know what items are to be seized.191 Where particularity is seemingly impossible, however, they have held a warrant meets the particularity standard if it specifies the types of items to be seized.192 Concerning digital data, the Fifth Circuit has all but discounted the particularity requirement. In United States v. Kimbrough, Terry Kimbrough was indicted on charges related to child pornography.193 Agents executed a search warrant for Kimbrough’s residence and business and seized a number of items, including computers and computer-related equipment.194 Kimbrough challenged the search warrants stating that they failed to sufficiently particularize which items could be seized.195 In relevant part, the warrant permitted seizure of: “[t]apes, cassettes, cartridges, streaming tape, commercial software and manuals, hardware, computer disks, disk drives, monitors, computer printers, modems, tape drives, disk application programs, data disks, system disk operating systems, magnetic media-floppy disks, CD ROMs, tape systems and hard drive, other computer related operational equipment.”196 The court held the Kimbrough warrant was sufficiently particular to withstand the defendant’s challenge because it limited the executing officers’ discretion by informing officers what items may be seized.197 The Fifth Circuit has also upheld warrants containing language such as, “assorted pornographic videotapes; assorted pornographic magazines; assorted devices” and “[c]hild pornography; records of victims; drawings; 184

Id.

185

Id.

186

Id. at 818.

187

Id.

188

United States v. Layne, 43 F.3d 127, 132 (5th. Cir. 1995).

189

See Andresen v. Maryland, 427 U.S. 463, 480 (1976).

190

See Marron v. United States, 275 U.S. 192, 196 (1927).

191

Layne, 43 F.3d at 132.

192

Id.

193

United States v. Kimbrough, 69 F.3d 723, 726 (5th. Cir. 1995).

194

Id.

195

Id. at 727.

196

Id.

197

Id. at 728. 16

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pictures; computer disks, sexual devices; videotapes; child abuse books; magazines; audiotapes; and any other obscene or child pornographic material.”198 Despite this definitive trend, some egregiously ambiguous warrants have recently been held unconstitutional.199 In Washington v. McKee, the defendant was being investigated for Sexual Exploitation of a Minor.200 As part of the investigation, law enforcement obtained a warrant for a “physical dump” of the suspects phone.201 The warrant permitted officers to search the defendant’s phone for “[i]mages, video, documents, text messages, contacts, audio recordings, call logs, calendars, notes, tasks, data/internet usage, any and all identifying data, and any other electronic data from the cell phone showing evidence of the above listed crimes.”202 The court criticized the warrant for permitting a search and seizure without regard for whether the information sought was actually related to a crime.203 Consequently, the court determined the warrant violated the particularity requirement.204 The particularity requirement is more vital than ever when considering cell phone data. Permitting law enforcement to perform general searches through cell phones is a major invasion of privacy. Despite the concerns with general searches of cell phone data, courts may be hesitant to rigidly impose the particularity requirement because electronic data can be stored in virtually any place on a cell phone. Although the Fifth Circuit has yet to address this issue, other circuits have found violations of the particularity requirement when a warrant contains catch-all language and also when the warrant does not state the crime for which a search is being conducted.205 The Ninth Circuit suggests “[t]he pressing need of law enforcement for broad authorization to examine electronic records . . . creates a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant.”206 6. Overbreadth and Particularity Other federal courts have found warrants simultaneously overbroad and insufficiently particular. In United States v. Galpin, the Second Circuit held that a warrant which generally authorized law enforcement to search a defendant’s physical property and did not specify a crime for which there was probable cause was overbroad and violated the particularity requirement.207 Galpin pleaded guilty to several counts relating to the production of child pornography and possession of child pornography.208 Before his guilty plea, Galpin moved to suppress all evidence, which included digital cameras, images of child pornography found on his computer, and digital storage devices, all of which were seized in the execution of a search warrant.209 The warrant allowed officers to search for cameras, computers, cell phones, and any and all computing or data processing software “which may reveal evidence which substantiates violations of Penal Law statutes, Corrections Law statutes and or Federal statutes.”210 The Galpin court found the warrant violated the Fourth Amendment’s particularity requirement because the only crime specified in the warrant was a sex offender registration offense, and there was no probable cause to 198

United States v. Layne, 43 F.3d 127, 132–33 (5th. Cir. 1995).

199

State v. McKee, 3 Wn. App. 2d 11, 30 (Wash. Ct. App. 2018).

200

Id. at 25.

201

Id. at 14.

202

Id. at 18.

203

Id. at 29.

204

Id. at 30.

205

See Gershowitz, supra note 171, at 599.

206

United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1176 (9th Cir. 2010).

207

United Sates v. Galpin, 720 F.3d 436, 447 (2d Cir. 2013).

208

Id. at 439.

209

Id.

210

Id. at 441. 17

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believe that Galpin produced or possessed child pornography.211 Crimes relating to child pornography were not mentioned in the warrant itself or the warrant application.212 Therefore, the warrant was also overbroad and facially invalid.213 Similarly, in United States v. Zemylanksky, thirty-six defendants were indicted on various charges in a scheme to defraud automobile insurance companies.214A magistrate judge issued a search warrant for six premises, including corporate office buildings.215 The warrant failed to specify any criminal allegations and listed eight categories of items to be searched and seized.216 Seven of these categories permitted the seizure of virtually anything that could be found in a billing office, including electronics, passwords, documentation, software, and encryption devices.217 The U.S. District Court for the Southern District of New York determined the warrant failed the particularity requirement because the warrant did not limit the search to a criminal offense, included vague and broad terms, and used confusing language which granted executing officers too much discretion.218 The court further held that the warrant was overbroad because the government lacked probable cause to search and seize all patient care records, bank account information, and patient information within a corporate office.219 The court also declined to apply the federal good faith exception stating that executing officers acted with at least gross negligence in relying on a facially invalid search warrant. 220 D. Does the Good Faith Exception Apply? When the validity of a search warrant is successfully challenged, the general rule provides the unconstitutionally obtained evidence should not be admitted at trial.221 The so called “good faith exception” outlines key instances where, despite being illegally obtained, evidence may still be used during a prosecutor’s case in chief.222 Currently, courts are grappling with whether the good faith exception should apply to searches of cell phone data. 1. Federal Good Faith Exception In appropriate situations, the federal exclusionary rule makes inadmissible evidence collected in violation of a defendant’s constitutional rights.223 The federal exclusionary rule states, “all evidence obtained by searches and seizures in violation of the Constitution is … inadmissible in a state court.”224 Later, in United States v. Leon, the Supreme Court created the good faith exception, permitting the introduction of evidence obtained on an officer’s reasonable belief that the search was executed in compliance with the Constitution.225 Federal appellate courts have

211

Id. at 447.

212

Id.

213

Id.

214

United States v. Zemylanksky, 945 F. Supp. 2d 438, 444 (S.D.N.Y. 2013).

215

Id. at 451–52.

216

Id. at 454.

217

Id. at 457.

218

Id. at 464.

219

Id. at 465.

220

Id. at 475–76.

221

See infra notes 223–224 and accompanying text.

222

See infra notes 225–226 and accompanying text.

223

Mapp v. Ohio, 367 U.S. 643, 671 (1961).

224

Id. at 655.

225

United States v. Leon, 468 U.S. 897, 925 (1984). 18

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applied the good faith exception to evidence from cell phone searches. Recently, states have considered applying their own statutory good faith exception in cases involving cell phone searches. 2. The Fifth Circuit’s Application of the Good Faith Exception In United States v. Wallace, the Fifth Circuit reasoned that even if accessing prospective CSLI to obtain a phone’s real-time location did constitute a search under the Fourth Amendment, the Special Agent did not have the “knowledge, or [cannot] properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.”226 The Special Agent in Wallace obtained a Ping order to obtain locations of cell site towers the defendant’s phone accessed and was able to find the defendant’s real-time location based on his GPS location.227 Wallace argued the Ping order was invalid for a number of reasons, but the court found that the Special Agent had reasonably relied on the text of the statute requiring cell phone providers to turn over records related to its customers, so the Agent did not have knowledge the search was unconstitutional.228 3. Article 38.23(b): Texas’s Statutory Good Faith Exception Texas Code of Criminal Procedure art. 38.23(b) codifies the good faith exception to Texas’s statutory exclusionary rule.229 Article 38.23(b) allows evidence obtained using of a defective search warrant to be admitted if the officer was acting in objective good faith reliance on the warrant and the warrant was based on probable cause.230 This statutory exception to the rule is “somewhat narrower” than the federal rule’s exception.231 According to the statute, the exception applies only when the law enforcement officer acted “in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.”232 Nevertheless, before Texas courts are able to address the applicability of the good faith exception, they must first determine whether the exclusionary rule even applies in the first place. This is the key issue in Sims v. State, currently on discretionary review before the Texas Court of Criminal Appeals.233 In Sims, the defendant was suspected of murdering his grandmother and stealing her vehicle and purse.234 During pursuit, law enforcement pinged the defendant’s cell phone to ascertain his location.235 The defendant argued the pinging of his cell phone was done in violation of the SCA as well as its Texas counterpart, Texas Code of Criminal Procedure art. 18.21.236 Accordingly, he requested that all evidence obtained as a result of the warrantless pinging of his phone be excluded under Texas Code of Criminal Procedure art. 38.23(a), the Texas Exclusionary Rule.237

226

Id. at 919.

227

United States v. Wallace, 885 F.3d 806, 808 (5th Cir. 2018).

228

Id. at 810–11; Comparably, other circuits have analyzed the exception to Fourth Amendment searches involving other forms of digital data, such as computers files. In United States v. Otero, the Tenth Circuit found a warrant obtained to search a computer invalid for lack of particularity, but still permitted the admission of the evidence in applying the good faith exception. United States v. Otero, 563 F.3d 1127, 1136 (10th Cir. 2009). In United States v. Rosa, the Second Circuit said that a search of the defendant’s computer equipment and other electronic storage devices was not a general search and the executing officers did act as if the warrant’s supporting documents imposed on the search limitations. United States v. Rosa, 626 F.3d 56, 66 (2d Cir. 2010). 229

TEX. CODE CRIM. PROC. art. 38.23(b) (2017).

230

Id.

231

George E. Dix & John M. Schmolesky, 40 TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 7:61, at 389 (3d ed. 2011). 232

CRIM. PROC. art. 38.23(b).

233

Sims v. State, 526 S.W.3d 638 (Tex. App.—Texarkana 2017, pet. granted).

234

Id. at 640.

235

Id.

236

Id. at 641.

237

Id. 19

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Seemingly, Article 38.23(a) would require suppression of evidence obtained in violation of a statue: “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.”238 However, the specific statutes in question “provide[] for civil actions, but no exclusion of evidence.”239 Reasoning that specific statutory language should control over general language, the court of appeals held even if the warrantless pinging was done in violation of the SCA or Article 18.21, the Exclusionary Rule is simply inapplicable apart from a constitutional violation.240 On discretionary review, Sims urges the court to apply the exclusionary rule or risk promoting the same tyranny the rule was designed to protect against.241 In support, Sims argues that neither the SCA nor art. 18.21 prohibit suppression as a remedy.242 Accordingly, the sweeping language of art. 38.23(a) should control as the Legistlature intended.243 Regardless of its outcome, this case has major implications on the use of cell phone evidence. E. Expert Qualifications and Opinions Orin Kerr’s criticism of United States v. Wallace demonstrates the need for properly limiting expert testimony. The expert should recognize the limitations of his or her opinion, and the Court should ensure the expert actually understands the data involved. All lawyers should call on expert witnesses to testify about a cell phone’s location when it is relevant to their case. Under Federal Rules of Evidence 702, a witness who is qualified as an expert by his skill, knowledge, training, or experience may testify at trial if: (1) the expert’s knowledge will help a trier of fact understand the evidence or determine a fact in issue; (2) the testimony is based on sufficient data or facts; (3) the testimony was formed based on reliable principles and methods; and (4) the expert has reliably applied those principles and methods to the facts of the case.244 Courts differ on whether an expert is needed to testify on information relating a cell phone’s location and connection to a particular tower.245 Further, the Supreme Court has set forth four factors to determine whether a theory or technique is scientific knowledge that will assist a trier of fact in a given case.246 These factors include: (1) whether the theory can be tested; (2) whether the theory has been subjected to peer review and publication; (3) a scientific technique’s known or potential rate of error; and (4) if the theory is generally accepted.247 These four factors have also been applied to theories or techniques used to identify information relating to the location of a cell phone during a time period in question. In United States v. Machado-Ezaro, the defendant argued an expert’s testimony regarding cell site analysis was not based on reliable methodology and should have been inadmissible.248 The government countered that the FBI Special Agent intended to testify the cell phone was used by the defendant in a location near where a body was found, but was not stating the actual location of the user.249 The government also offered evidence that the Special Agent’s testimony would prove the phone must have been in a particular area to connect to a particular 238

TEX. CODE CRIM. PROC. art. 38.23(a) (2017).

239

Sims v. State, 526 S.W.3d 638, 642 (Tex. App.—Texarkana 2017, pet. granted).

240

Id. at 642–43.

241

See Brief of Petitioner-Appellant at 22–23, Sims v. State, No. PD-0941-17 (Tex. Crim. App. Apr. 3, 2018).

242

Id. at 44–52.

243

Id. at 27.

244

FED. R. EVID. 702.

245

See CONDES & AGUERO, supra note 32, at 29.

246

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 594 (1993).

247

Id.

248

United States v. Machado-Ezaro, 950 F. Supp. 2d. 49, 51 (D.D.C. 2013).

249

Id. 20

Rev. 7/24/2018

sector and tower, but the Agent did not himself determine the cell towers to which a phone connected.250 Still, the court found the proposed testimony admissible under Daubert because it was based on expert testimony that was grounded in scientific knowledge.251 F. Limiting Expert Opinion In order to know how to offer or challenge testimony, you must first know whether you are dealing with data obtained from a cell phone service provider or data obtained directly from a cell phone itself. If the data’s source is the cell phone service provider, it is helpful to assess whether the information is GPS or cell tower connection data. If the data’s source is the device itself, determine whether the data is from GPS, WiFi, cell tower connection data, or location based services (a combination of the three stored internally). Although expert witnesses may testify about a cell phone’s location based on cell site tower connections, this testimony should be limited. In appropriate situations, GPS information showing a phone’s proposed location may not be entirely accurate, and thus, can be challenged.252 The GPS function on cell phones only works reliably outside where the handset has a clear view of GPS satellites; thus, GPS may not always produce accurate location results.253 A 2013 study of several different smartphone devices concluded that, in open sky, ninety percent of all mapped positions fell within three meters of the baseline.254 However, when placed under a canopy, there was significant interference with the mapping abilities.255 In Brown v. State, the court allowed a laywitness to testify about how GPS worked.256 In Brown, a witness from a trucking company was permitted to share the GPS location of a truck because she “showed [it] was reliable . . . [and] established her understanding of the many systems the company used to track its drivers.”257 This should be the exception—not the rule. G. Best Evidence Rule In United States v. Bennett, Bennett’s boat was searched by a joint task force targeting smuggling from Mexico to California.258 A GPS found on Bennett’s boat revealed Bennett traveled from Mexican waters to San Diego Bay. Testimony of his location based on GPS evidence was presented at trial.259 The court held the testimony violated the best evidence rule because the GPS display the expert was referencing in his testimony only indicated he saw a graphical representation of the data from the GPS.260 A print out of the GPS data would have been the best evidence, therefore, the testimony was inadmissible under the rule.261 The conviction was ultimately reversed as this testimony was prejudicial to Bennett.262

250

Id. at 55.

251

Id. at 57.

252

See CONDES AND AGUERO, supra note 32, at 41.

253

Id.

254 Jeff Shaner, Smartphones, Tablets, and GPS Accuracy, ARCGIS BLOG (July 15, 2013), https://www.esri.com/arcgisblog/products/arcgis-online/field-mobility/smartphones-tablets-and-gps-accuracy/. 255

Id.

256

Brown v. State, 163 S.W.3d 818, 824 (Tex. App.—Dallas 2005, pet. ref’d).

257

Id.

258

United States. v. Bennett, 363 F.3d 947, 949 (9th Cir. 2004).

259

Id. at 950.

260

Id. at 953.

261

Id. at 954.

262

Id. at 955. 21

Rev. 7/24/2018

CONCLUSION: WHAT LIES AHEAD

As Chief Justice Roberts observed in Riley, “cell phones . . . are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”263 Lawyers and judges must understand the significant privacy concerns involved as cell phone issues take their course through our legal system. To do that we must know the source of the data—either the cell provider or the phone itself—an increasingly important distinction after the decisions in Riley and Carpenter. Don’t be the lawyer or judge who gets put on blast in the blogosphere. Taken together, these cases show the general public’s reinvigoration of a basic understanding of the purpose behind the Fourth Amendment: “to secure ‘the privacies of life’ against ‘arbitrary power[,’ and] ‘to place obstacles in the way of a too permeating police surveillance.’”264 Indeed, “Compelling comparisons are drawn between the infamous Lord Halifax’s general warrants used in 1763 to seize all of a suspect’s papers” and rummage unbridled for evidence of a crime—any crime.265 Allowing the government a sneak-peak into our cell phones and cloud data with access to all of our files is exactly the type of invasion the Founders sought to prevent.266 Worse, if the government obtains a citizen’s data but never prosecutes, the citizen may never know the government has ever learned nearly everything about every aspect of his or her life, again similar to Lord Halifax refusing to return the papers generally seized for global inspection for evidence of a crime.267 Interestingly, this successful reinvigoration comes not from just the courts or citizens themselves but rather the companies trusted to keep citizens’ personal and cloud data safe and secure. For example, “Apple assembled a team of ‘legal luminaries’ to successfully challenge the San Bernardino order,” claiming it would lead to a “police state.”268 “[T]wo of the three most valuable companies in America have taken offensive against the federal government to assert the Fourth Amendment rights of everyone.”269 As a result of their success, many others are joining the fight. The communal efforts have been successful, as evidenced by Carpenter. For a moment, it seems the Fourth Amendment stands for what its intended purpose. As lawyers, and members of the public, we have a duty to remember the reason behind the Fourth Amendment and apply it accordingly.

263

Riley v. California, 134 S. Ct. 2473, 2484 (2014).

264 Carpenter v. United States, 138 S. Ct. 2206, 2214 (2018) (internal citations omitted) (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886); United States v. Di Re, 332 U.S. 581, 595, 68 S.Ct. 222, 92 L.Ed. 210 (1948)). 265 Clark D. Cunningham, Apple and the American Revolution: Remembering Why We Have the Fourth Amendment, 126 YALE L.J. FORUM 216 (2016). 266

See id.

267

Id. at 226, 228.

268

Id. at 216–17.

269 Id. at 231; see also Microsoft Corp. v. United States (In re Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp.), 829 F.3d 197, 200 (2d Cir. 2016).

Rev. 7/24/2018

Texas Criminal Defense Lawyers Association

Cross-Examination Seminar March 4-5, 2021 Livestream

Topic: Cross-Examining the DNA Expert Speaker:

Ariel Payan 1012 Rio Grande St Austin, TX 78701-2014 (512) 478-3900 Phone

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

CROSS EXAMINATION OF THE DNA EXPERT TCDLA 2021 Ariel Payan

OUTLINE Introduction: .................................................... 1 Common areas for cross examination in DNA testing and analysis: ........... 2 Rules of the road: .................................................. 2 DNA OVERVIEW: ..................................................... 2 Basics: .......................................................... 2 The Purpose of DNA: ........................................... 2 DNA Basics, nuts, bolts and blood: ............................... 3 DNA Workflow in the lab: ........................................ 4 Issues in the Lab: ........................................ 4 Serology issues: ......................................... 4 Extraction issues: ...................................... 5 Quantitation issues: ...................................... 5 Amplification issues: ..................................... 6 Analysis/Interpretation: .................................. 7 Other issues: ...................................................... 8 Low Copy Number (LCN) DNA: ...................................... 8 DNA Transfer Issue: ............................................ 9 Reporting Issues: ............................................. 10 Population Statistics: ........................................ 12 Validation studies: ........................................... 13 Verbal Scale .................................................. 13 Probabilistic Genotyping: ...................................... 14 Future Tech: ...................................................... 15 Genetic Phenotyping: ........................................... 15 Genetic Family Searches:......................................... 15 NIST MIX 05 MIX 13 Study: ........................................... 16 CROSS EXAMINATION: ................................................. 17 Introduction: ..................................................... 17 Where to begin-New case: ....................................... 17 Experts: .................................................... 18 Discovery Requests: ........................................... 19

What to ask for in all DNA cases: .......................... 19 Discovery of STRmix Source Code: ........................... 21 What to ask for in STRmix cases: .............................. 21 From the lab: ...................................... 21 From ESR: ......................................... 22 Pre Trial Challenges: .............................................. 22 Daubert/Kelly Challenges: ...................................... 22 Litigation expansion: ................................... 24 Cross Examination- Choosing an Effective Strategy: ..................... 25 Cross examination-General Strategy in trial: .......................... 26 Cross topics at trial: ........................................ 28 Possible Defensive Strategies at trial: .......................... 29 PG Defensive Strategies at trial: ............................... 30 Cross chapters in PG: ......................................... 30 Conclusion: ....................................................... 30

Introduction: The Basics. Cross examination has often been described as the most powerful tool in seeking out truth in our criminal justice system. The crucible of confrontation and investigation is both a science and an art, dictated by experience and ability. One can be taught, the other is up to the practitioner to hone. Our purpose today is to provide strategies and tactics to the practitioner in ways to utilize this skill set for the benefit of their client. This is not exhaustive by any means. Cross, like so many of the other tools of the criminal defense attorney is, but one weapon in your quiver that you must select when and how to use to maximize benefit. Additionally, every practitioner will use it differently in even similar circumstances. They will adjust it to their particular style as dictated by the circumstances. This paper is written for the novice litigator trying to get into and learn this complex area of litigation. There may be a few pearls for those who have done this more than a time or two, so I beg your indulgence. To understand how to cross a DNA expert the attorney must have a basic understanding of DNA, what it is, where it comes from, how it gets there. More importantly the attorney must understand how to read the reports and underlying data, the workflow of the analyst, as well as the inherent issues and limitations with any testing system under review. DNA is not stagnant, it

is constantly evolving. Almost every 5 years the systems and procedures that make up this science take radical leaps forward to try and solve the issues of the previous detection and identification systems as well as fill the ever growing desire for science to make the prosecutors life easier. The practitioner must evolve with the science, this is not simple or easily rectified. Where your opponent has disclosed their intention to present a DNA expert at trial, you must prepare several procedural strategies to counter: 1 The first line of defense against a state’s expert is to seek the exclusion of the expert’s opinions, in whole or in part. 2 Second, is to weaken the basis of the expert’s opinions by refuting, through other witnesses, the factual basis for said opinions. 3 Third, is to diminish the expert’s opinions, through cross-examination. 4 Fourth, is to present a rebuttal opinion from your own expert. Generally, you will want to pursue multiple of the above avenues. Typically, each strategy is at least considered and the first (seeking exclusion) and fourth (presenting a rebuttal expert) may or may not be pursued, and if pursued, may or may not be successful. By contrast, the second line of defense (attacking the expert’s factual assumptions) and the third (cross-examining the expert) are almost always pursued. The key introductory point is that this cross-examination is not prepared in a vacuum, but rather it is the culmination of all of your efforts to defeat the opposing expert on several levels. Common areas for cross examination in DNA testing and analysis: (general headings) Chain of custody issues- crime scene and lab Qualifications of the expert Reliability of the technique for testing evidence Reliability of the analysts performing work Reliability of the laboratory in which testing was performed Contamination of the evidence and or test results 3 Cross Examining the DNA Expert- TCDLA 2021 Page 3 of 30

Mishandling of evidence Human error during testing Bias in testing - Confirmation bias Statistical calculations, Appropriate populations for the perpetrator vs defendant Appropriate equations used Appropriate data used Lack of information regarding when and how the DNA was deposited on an item Lack of control over the handling of the evidence prior to receipt in the laboratory Rules of the road: Texas Rules of Evidence and Code of Criminal Procedure. It is critical to understand how the Texas Rules of Evidence regulate what an expert can testify about and what form the testimony may take. The Rules guide the testimony and evidence that are permissible on direct and cross examination. Also of great importance are the hearsay rules and the learned treatise exception. Procedurally know your available options for motions, depositions, and discovery arguments. There are search issues relating to seizure of biological samples, both free world and requirements after release from prison, as well CODIS and state database procedures which deal with Fourth Amendment issues. The practitioner should be intimately familiar with all of these. Theses issues exceed the scope of this paper, but make sure you know them. DNA OVERVIEW: A basic understanding of DNA is assumed. The focus of this section is to point out practice areas to help refine your ability to spot issues for cross purposes. The Purpose of DNA: The testing and identification of DNA in the 80's and 90's dealt with relatively large amounts of detectable bodily fluids. As time progressed scientists were able to better refine detection and analysis techniques and the software and hardware to identify smaller and smaller amounts of genetic 4 Cross Examining the DNA Expert- TCDLA 2021 Page 4 of 30

material. In 2020, analysts can detect the amount of information down to single cells, and can get full profiles from as little as 50 cells worth of material and many validations claim even smaller amounts. As with all measuring systems the smaller and tighter you focus on something, the more ‘noise’ and interference can affect the measurement and identification of the subject. Early DNA detection and identification’s greatest strength was in exclusion. If the known suspect profile did not match the DNA at the scene, an individual could have been excluded as a contributor. Almost all samples were single source or 2 person mixtures. The amount of material needed to test meant that it was either sperm or blood from the suspect being collected and tested. Now with the advent and widespread use of probabilistic genotyping (PG) systems, exclusions are more difficult to come by, and easier for a prosecutor to argue inclusion. Often described as the ‘gold standard’ of forensic science, DNA is often viewed by juries as dispositive and unimpeachable. PG systems have radically changed the methodologies of analysis and identification and need to be thoroughly challenged. Recent issues have brought this gold standard into question and should be cause for great concern for any practitioner in the field. I highly recommend you read Bess Stiffleman’s article, “No longer the gold standard: Probabilistic Genotyping is Changing the Nature of DNA Evidence in Criminal Trials”, 24 Berkeley Journal of Criminal Law 110; 2019, and the subsequent response by John Buckleton and counter response published in 2021. You must have a basic understanding of DNA to even contemplate taking a case dependent upon the science. There are many resources to explore and online videos that can facilitate one’s understanding of DNA and how to read and challenge it. If you plan on expanding your criminal practice to take first degree cases and capital murders, you should do this in advance of actually getting a case. This is not something that is learned overnight, it can take many hours to absorb and process the language and vocabulary of the analyst. It is almost impossible to cross an expert if you do not know what they are saying. As always the reoccurring theme of the defense cross is simplification. You must find a way to simplify the issue so that it is easily understandable by the lay person in a way that supports the defense theory. The only way to do that, is that you understand it first, and that 5 Cross Examining the DNA Expert- TCDLA 2021 Page 5 of 30

takes time and effort. DNA Basics, nuts, bolts and blood: Crime scenes are a story waiting to be told. Every crime scene is chaotic, often the detectives do not know the scope of the area to be investigated and spend much of their time trying to piece together a narrative so that they can establish a protected crime scene. Once that step is done they begin to catalogue and identify items of evidence to be photographed, seized and eventually tested. Crime scene units photograph, tent and photograph, and log items of evidence identified by the lead scene detective for seizure. These CSU technicians have their own protocols and methodologies for identifying and seizing items of evidence. Some of these techniques are destructive or harmful to biological material so it is important to review the CSU reports as well as any video relating to their work as well as their SOP’s relating to seizure of evidence. Cross contamination and transfer are a very real problem at this stage of the investigation. The lead scene detective determines what evidence is seized and along with the lead detective determines what is subject to testing. This decision is informed by on scene presumptive testing done by CSU as well as the narrative of events they are attempting to ascertain. This can be a ripe area for cross examination of both the detectives as well as CSU technicians at trial. What was selected and why? What was ignored and lost? When did law enforcement determine the narrative and what was that narrative? Confirmation bias can be present in the evidence collection process. “They had a story and were looking for evidence to make it true.” Once the evidence is seized, tagged and bagged several things can happen to it. If the evidence is wet, it is put in a drying cabinet, bagged and dropped into an evidence locker. Biological samples are highly susceptible to heat, humidity and large temperature variations. Additionally, CSU should never store biological samples in plastic. Faulty storage of these samples can lead to mold and other growths which destroy DNA, and may lead to degradation of the sample which can be seen on the electropherogram (EEG). DNA Workflow in the lab: Once an item is tasked for testing the analyst will generally decide 6 Cross Examining the DNA Expert- TCDLA 2021 Page 6 of 30

which portion of the sample to test, and the best method for extracting the sample. Often this decision is influenced by information provided by law enforcement. You want to know what they told the analyst (see discovery below). All DNA evidence goes through a step by step process before results are memorialized in a report and that report is checked by another analyst. These steps are: 1. 2. 3. 4. 5. 6. 7. 8.

Exam/inspection for samples of interest (including serology) Extraction Quantification/quantitation Amplification (PCR) CE injection (genetic analyzer) Analysis by human Analysis by probabilistic genotyping software Report- review by second analyst

Each of these areas can lead to potential problems. Some of the areas of concern are listed below (this is not an exhaustive list, by any means): Issues in the Lab: What are you looking for, issues to be aware of: Serology issues: Case narrative. Analysts often have conversations with law enforcement prior to testing. These conversations often involve the facts of the case. Ask about this in the pretrial hearing. There is always the risk of mischaracterization fo a sample. A positive presumptive test should always be followed with a more discriminating confirmatory test. Animal blood, plant matter, household chemicals, clothing dye’s, non probative bodily fluids are common causes of false positives for common ‘presumptive’ tests. Analysts test for presumed blood, confirmed blood, and human blood, each of which is a different conclusion. What was actually tested for? Often this is buried in the report but can have an impact on testing and interpretation value. Contamination at this stage can be extremely troubling. DNA can be transferred by innocent means, or through other substances. 7 Cross Examining the DNA Expert- TCDLA 2021 Page 7 of 30

Practice tips: • Communication regarding unnecessary extraneous facts can lead to analyst bias • Look for what was not done. o Many labs no longer do serology because there is not enough sample to test. o Ripe area of cross due to not being able to tell the jury what the sample was. • Contamination-make sure your analyst looks at this closely. Extraction issues: Risk of contamination exists during extraction. Bench notes should indicate the location of items and samples before and during extraction. Check the corrective actions and disciplinary history of the analyst to see if there is any history of contamination issues as well as failure to strictly follow the extraction SOP’s. Differential extraction is the separation of cell type by density. Typically a liquid sample is put in a test tube and spun. This should force a separation by density of the epithelial cells from the denser sperm cells. In practice this does not always work well, and the two fluids don’t separate equally. This leads to X chromosomes appearing in an epithelial (Y) fraction and vice versa. Most labs are moving to designating this separation as F1 and F2 fractions. Practice Tips: • Motion in Limine o Limit unacceptable descriptors or attribution of differential extraction results o Limit the state’s argument about what the test can tell you • Cross-examination o Highlight the limitations of the test o Pursue your theory of defense Quantitation issues: 8 Cross Examining the DNA Expert- TCDLA 2021 Page 8 of 30

Quantitation is the identification of the amount of biological material subject to testing contained in the sample. One human cell contains about 7 picograms (pg) of DNA. 1000 pg = 1 nanogram (ng) = 1/1,000,000,000 (billionth) grams. “Determination of the amount of DNA in a sample is essential for most PCR based assays because a narrow concentration range works best with multiplex short tandem repeat (STR) typing. Typically .05 nanogram (ng) to 2.0 ng of input human DNA is optimal with current commercial STR kits.”1 Too much DNA results in overblown electropherograms, too little can result in loss of alleles due to stochastic issues. 1 ng of material is approximately 303 copies of each locus that will be amplified. Testing in the early 2000's required approximately 1.5 ng = 1,500 picograms = over 200 cells. Testing in 2018 required 500 picograms which is about 80 cells of DNA. Target amounts: All test kits have target, recommended or optimal amounts of input DNA. Often, the labs will run validations to test the manufactured kit with lower amounts of DNA, to try and squeeze out more value from smaller and smaller samples. These validations should be rigorously challenged pre trial. During trial great pains should be taken to point out the lab ignored the manufacturers guidelines in doing this. Remember the smaller the sample used the more risk of stochastic effects and background noise issues that can render the sample unreliable, but still render a result that an analyst will testify about. Low Copy Number (LCN): Generally considered to be about 20 cells worth of DNA (approximately 125 picograms of DNA). Modern test kits are able to still pull a profile from this minute amount of data. Usually these profiles are only suitable for exclusion (assuming single source). We can certainly expect manufacturers of test kits to try and optimize their products to market to this extreme. Touch DNA, as it is commonly (somewhat erroneously) referred to, is without question on its way to a courtroom near you. (See LCN below) Cross exam issues: This is one of the most overlooked areas of cross. The amount of DNA processed and prepared is at the heart of how we got here. 1

See Butler, John, Advanced Topics in Forensic DNA Typing: Methodology

pg. 49. 9 Cross Examining the DNA Expert- TCDLA 2021 Page 9 of 30

The analyst chooses, based upon their training and experience, what part of a crime scene sample to process. Meaning they subjectively decide where to cut. By choosing one area of testing over another they potential miss genetic material that is probative to the investigation or defense. If your strategy in cross is pointing out the discretionary or subjectivity to invalidate the results this may be a starting point. Practice Tips • Reliable amount of DNA? o This is usually one part of the larger pre-trial reliability challenge • Transfer (see Transfer below) o Theory of transfer and cross-examination „X Frequency of touch „X Direct „X Indirect „X Secondary, Tertiary, etc. Amplification issues: The heart of DNA testing is the ability to take an unknown sample and ‘make copies’ of the sample so that it can be detected, this is known as polymer chain reacion (PCR). This is done by placing the sample in with reagents which contain fluorescing markers that allow for the counting of the repeats and the polymorphic locations. This solution is then heated and cooled multiple times in what is known as ‘cycles’. This process unzips the sample and those pieces bond with the reagents and multiply. Each cycle recopies the original leading to an exponential sample number. Test kits are validated at a certain number of cycles, generally 28, which creates up to 250 million copies of the original cell. These copies are not 100% efficient, and this leads to a major source of stochastic effect. Think of a photocopy of a copy of a copy, eventually you get an issue and it is compounded over the copies. This is an excellent analogy to help a jury visualize it. Allelic drop out and drop in are possible and happen at this stage of the process. Some new kits use 29-30 cycles which lead to more opportunities for compounding stochastic effects. These kits also start with smaller starting 10 Cross Examining the DNA Expert- TCDLA 2021 Page 10 of 30

amounts which are also correlated with increased stochastic effects. Additionally, some analysts will ‘over cycle’ the sample to try and get more from the sample. Your analyst should spot this, which is a ripe area for cross examination. The three disadvantages of PCR are: Target DNA template may not amplify due to the presence of PCR inhibitors in the extracted DNA. Amplification may fail due to sequence changes in DNA. Contamination may occur from other human DNA sources or from previously amplified DNA samples Potential PCR inhibitors: Other bodily fluids, textile dyes, leather, wood surfaces, hemoglobin, hematin, melanin, polysacharides (decaying plants), bile salts, feces, urea, urine, indigo dye, collagen, myoglobin, calcium ions, may inhibit the sample.2 Stochastic effects: When only a few DNA molecules are used to initiate PCR this can result in an unequal sampling of the two alleles present. Allelic drop out and even locus drop out can occur. This means the electropherogram does not show all the information present at a location, or only partial information. A PCR reaction using less than 100 pg of DNA can show drop out. PCR amplification of the same DNA extract twice can result in different alleles being detected at a particular locus.3 Analysis/Interpretation: The weakest link in any system is the human at the controls. Even with the use of PG systems to help deconvolute and give likelihood ratios for different genetic profiles, the data the machine uses must (partially) be entered by a human. Most SOP’s (including DPS) require the analyst to make their own assessment of the data from the electropherogram prior to use of STRMIX. Quite often the analyst will record their work on the 2

See Butler, John, Advanced Topics in Forensic DNA Typing: Methodology; pg. 83-84. 3

Id at 88.

11 Cross Examining the DNA Expert- TCDLA 2021 Page 11 of 30

electropherogram or on the bench notes. You must review each digital file and identify what sample they are examining. The analyst will use their ‘discretion’ to make determinations on the information they are examining this is where you can make the most out of your cross. There are so many areas of cross here. What alleles were called? What constitutes background peaks and the stochastic and analytic thresholds? These all contain elements of discretion and therefore potential bias. Make sure to ask your consulting expert to point out where such determinations exist in the case work to help focus your cross. John Butler’s textbook Advanced Topics in Forensic DNA Typing: Interpretation deals almost exclusively with this topic area. It is an invaluable tool and reference guide to anyone challenging DNA. I also highly recommend his Methodology book as well. Every analyst will acknowledge the books as a learned treatise. Practice Tips: • Discovery needs o Analytical thresholds and noise protocols o Stochastic threshold validation studies o What information did your analyst have when they marked e-gram? • Discovery examples o Major-minor interpretation discovery o Mixture interpretation discovery • Daubert challenge: Complex Mixture Interpretation o Subjective Interpretation Problem: „X Number of contributors: Allele stacking and stutter (may also include reliability concerns from quantification) o CPI’s application to complex mixture „X What alleles count? i.e. When is CPI accurate? • Stochastic threshold/Drop out/Allele stacking problem • Number of contributors • Does the analyst have the suspect’s profile? • Cross points: box them in on contributors Low Copy Number (LCN) DNA: LCN is an ultra sensitive technique that has the potential to yield a 12 Cross Examining the DNA Expert- TCDLA 2021 Page 12 of 30

DNA sample from sub-optimal biological samples. Modern test kits are capable of creating a profile from as little as a single cell. This ability has been given many names, LCN, low template DNA (LT-DNA or LTDNA), touch DNA etc.. There is no bright line dividing ‘normal’ testing from LCN, but the definition of the methodology can be divided into three groups: 1 2 3

Those that refer to the amount of DNA tested in the PCR reaction (<100 pg or <200 pg), based on some form of quantitation assay; A methodology usually involving increasing the number of PCR cycles to improve assay sensitivity; DNA profile appearance that exhibits an increased imbalance of observed alleles.

Analysts can now get a sample from the skin cells left behind from a fingerprint. Analysts have to push the technology and techniques to make this happen, but they have and will continue to do so. This means we will be seeing more of this evidence in our cases. Multiple issue are raised by this approach. The stochastic effects which may be observed in DNA samples subjected to these conditions include: allelic drop out, drop in, increased stutter and increased intra locus peak height imbalance. Look for additional amplification cycles, post amplification purification, reduced reaction volume, injection enhancement by increased voltage or time, and nested PCR. Performance issues will be of paramount concern to any review of the reliability of this methodology. Transfer issues are especially relevant. Due to the low level of DNA being tested it is almost impossible to tell what is ‘touch’ from a secondary or tertiary transfer and what was deposited directly. DNA Transfer Issue: First, always remember that an analyst cannot tell you how a sample got to be in a certain location, indeed they are often trained to avoid making any kind of statement on this issue. Once an analyst acknowledges that the quantitation of the sample indicates an LCN event, transfer becomes a very real argument. Even without such an admission transfer can still be argued depending on surrounding circumstance. Modes of transfer: 13 Cross Examining the DNA Expert- TCDLA 2021 Page 13 of 30

Direct/primary transfer- transfer of biological material via direct contact or otherwise without an intermediary; Indirect transfer: transfer via an intermediary; Secondary transfer- transfer of biological material via 1 intermediary; Tertiary transfer- transfer of biological material via 2 intermediaries. Many studies have been done on the issue of transfer. As of right now there is no clear consensus of hard and fast rules of transfer, other than scientists know it happens. A recent study has argued that not only can you detect secondary transfer, there is a percentage of transfer cases done in the study where the mechanism of secondary transfer was not detected but the secondary sample was detected as the primary profile.4 Meaning person A shook B’s hand, then handled the knife. A was not detected but B was, and in sufficient quantity to be profiled adequately for identification. The study found the texture of the object was not a contributing factor, nor length of time. This scientist has also done a second study, but I have not been able to get a copy of the study as of yet. Naturally, many scientists have come out against the 2015 study and peer review is ongoing. Other conclusions from the study, when an item is handled by several individuals, the strongest profile and or best quality profile is not always the last handler. The published data suggests length of contact is not a significant factor. Similar amount of DNA were recovered from a handled object, regardless off the length of time it was held. A 2013 review of available DNA transfer articles and studies done up to that point makes the following conclusions:5 -Neither the quantity of DNA recovered nor the quality of DNA profile obtained can be used to reliably infer the mode of transfer by which the DNA came to be on the surface of interest; -Possibility but not the probability of DNA transfer; -It is not possible to use the amount of DNA recovered from a surface to assess whether the DNA was deposited there by a single touch or by regular use; -It is not possible to use the amount of DNA recovered from an item of interest to inform whether the DNA was deposited by direct contact or indirect transfer; -There is no strong correlation between a full or partial profile and the amount of DNA template (at sub-optimal amounts of DNA); -The quality of a DNA profile cannot be used to establish whether the DNA recovered 4

Cale, Cynthia, Could Secondary DNA Transfer Falsely Place Someone at the Scene of a Crime?, J Forensic Sci, 2016 Vol. 61. 5

Meakin, Georgina, Jamieson, Allan. DNA transfer: Review and implications for casework. Forensic Science Int’l: Genetics 7 (2013) 434. 14 Cross Examining the DNA Expert- TCDLA 2021 Page 14 of 30

came from the last handler; -The number of factors and the relative effect of those factors, involved in the transfer of DNA is unknown; -The initial amount of DNA deposited, and any activity likely to reduce the number of cells or DNA containing material from donor surfaces (e.g. hand), and the time since those activities, is a key factor in determining the amount of DNA recovered; -Full DNA profiles can be recovered from items that have not been touched, but have been in the vicinity of someone speaking or coughing; -It is not possible to establish from the amount of DNA recovered from a surface whether the DNA was deposited there by a single touch or by regular use; Studies have been done on a variety of common and not so common issues, from DNA transfers onto clothing during a regular day to semen transfer in the washing machine.6 This issue is relevant in almost every case, there are a lot of studies out there, do your research. See appendix- Transfer Articles. Reporting Issues: The analyst will generate a report with their findings. This report will tell you what was tested, the method of the testing as well as some other useful information, but will end with an expression of a mathematical weight being given to the findings. There are three general mathematical calculations of expressing this weight.

Random Match Probability RMP: The estimated frequency at which a particular STR profile given genetic inheritance models would be expected to occur in a population as determined by allele frequencies from that population group.7 The chance that you pick a random, unrelated person from the population and they match an evidence DNA profile.

Ruan, T., Barash, M., Gunn, P. & Bruce, D. 2018. Investigation of DNA transfer onto clothing during regular daily activities. Int J Legal Med, 132, 1035-1042; and, Brayley-Morris, H., Sorrell, A., Revoir, A. P., Meakin, G. E., Court, D. S. and Morgan, R. M. (2015) 'Persistence of DNA from laundered semen stains: Implications for child sex trafficking cases', Forensic Sci Int Genet, 19, pp. 165-171. 7

Butler, John. Advanced topics in Forensic DNA Typing: Interpretation, page 293.

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Combined Probability of Inclusion CPI: Random Man Not Excluded (RMNE) approach utilizes combined probability of inclusion statistics where all possible genotype combinations are given equal weight. A probability of inclusion calculation involves summing all of the observed alleles at a locus and then squaring this value to obtain the combination of all possible genotypes. The chance that you pick a random, unrelated person from the population and they could be included as a contributor to a mixed DNA profile.

Likelihood Ratio LR: involves the comparison of the probabilities of the evidence under two alternative propositions. It is a ratio of two probabilities which show a strength of support for one scenario over the other. The reporting language is very specific, and should almost never be modified by an analyst or a prosecutor at trial. “The DNA profile obtained from the swab is approximately X times more probable if the sample originated from John Doe and two unknown persons than if it originated from three unknown persons. Therefore, there is [verbal scale] support that John Doe and two unknown persons contributed to this mixed DNA profile, rather than three unknown persons.” LR is also the only reporting method that can calculate ratios for related persons using the Unified LR reporting. Validation and peer review are ongoing on this issue. All of these systems rely upon profile frequency estimate calculations that are expressed in the population statistics. RMP Issues: (this is not an exhaustive list) RMP underlying assumptions -RMP assumes that the perpetrator is not related to the victim. Depending on the particular relationship, evaluation of relatives can decrease a DNA profile rarity estimate by many order of magnitude. Butler, Interpretation at 283. -RMP assumes that appropriate population data is being used for genotype frequency estimates, and that there are no significant subpopulation differences in allele frequencies used to compute a profile frequency estimate. Consider isolated subpopulation groups on this issue. 16 Cross Examining the DNA Expert- TCDLA 2021 Page 16 of 30

-Two alleles inherited at a locus from an individual’s parents are independent -Alleles at different loci are independent of one another (linkage equilibrium) -With RMP on 2 person mixtures, if alleles can be separated into major and minor contributors based on RFU peak heights then it may be possible to compute the RMP for the individual profiles as if each component was from a single source. This is a modified RMP (mRMP). -Allele masking can be an issue in determining minor contributor profile -This technique requires specific assumptions as to the number of contributors in mixture. -This technique is not viable with more than 3 possible contributors, and generally must be a robust sample

CPI Issues: (this is not an exhaustive list) -Because each possible genotype is given an equal weight, this approach wastes information and is not very efficient when genotypes are in fact distinguishable. -This approach was not being done correctly by many labs. An FBI circular issued changes to PopStats in 2018 which led to recalculations being done that showed serious flaws in lab methodology. -Alleles are all present, no allelic drop out, contributors are not related. -CPI is a statistical calculation and should not be used as an interpretation tool. Loci with alleles below the stochastic threshold may not be used for statistical purposes to support an inclusion. Potential for allelic drop out raises the possibility of contributors having genotypes not encompassed by the interpreted alleles. (Interpretation at 322)

LR Issues: (this is not an exhaustive list) 17 Cross Examining the DNA Expert- TCDLA 2021 Page 17 of 30

-Is the probability of the evidence of the prosecutor’s hypothesis versus the stated defense hypothesis. -Assumes there are only two possible hypothesis, and that these hypothesis are mutually exclusive. -Requires an assumption as to number of contributors. -Does not take into consideration transfer in its calculations -Does not provide any indication of: -The probability that the DNA profile matches the suspect -How many other people may be considered potential contributors to the profile -What the LR is for any or all of the other potential contributors -Will not give the same calculation twice, sometimes these different calculations are orders of magnitude different. -Prosecutor’s fallacy issue -Even if the reported LR statistic is high, it is possible for the defendant’s profile to not be identified as among the most probable contributions by the software. -Validity issues -Reliability issues (repeatability of analysis) -Comprehension issues -Are LR appropriate for criminal cases Jury understanding and misunderstanding of LR Population Statistics: Every statistical calculation relies on the population statistics, which is a determination of the frequency of alleles appearing in a particular racial or ethnic group. These profiles are based on sampling done of that particular sub group. The sample size of this testing is around 200 to 300 actual random samples. Not all alleles in that sub group at a particular loci were found in that random sampling. The statisticians estimated some of the allele frequencies in their calculations. This is purely a guess. Some sub population groups have very different and distinct allele frequencies. If your client is from an isolated racial or ethnic group this can be an issue to explore.

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Validation studies: This is the process of demonstrating that a laboratory procedure is robust, reliable and reproducible in the hands of the personnel performing the test in that lab. A robust method is one in which successful results are obtained a high percentage of the time, and few if any samples need to be repeated. A reliable method obtains results which are accurate and correctly reflect the sample being tested. -Reproducible method means the same or very similar results are obtained each time -There is developmental validation testing of new technologies for detection and testing. -There is internal validation verifying that established procedure will work in this lab -Performance checks- after the repair or receipt of new agents to verify instrument is working properly Samples evaluated during validation should reflect casework samples Number of Contributors (NOC) Quantity of DNA and contributor proportion Assuming contributors Degradation Transfer Analyst training: Samples evaluated during training should reflect casework examples Proficiency testing Reflect casework No required certification Does the lab have a 100% rate of 100% scores? How is that possible? Testing is not robust. You are not challenging your analyst Practice tip: It is absolutely critical to get the validation studies relevant to the tests performed on your samples. Make sure to have your expert review the reports. If the actual test done exceeds the validations parameters the court should exclude the testing. Additionally, some validations are not robust or 19 Cross Examining the DNA Expert- TCDLA 2021 Page 19 of 30

reliable due to analyst training issues. well.

Your expert should look for this as

Verbal Scale Because of the difficulty in determining the weight a jury should give an LR calculation, labs across the country came up with an individual verbal scale. SWGDAM issued a suggested verbal scale to try and create a uniform national standard. 1 Uninformative 2-99 Limited Support 100-9,999 Moderate Support 10k-99,999 Strong Support >=1mill Very Strong Support This verbal scale is a totally arbitrary determination. There is no basis in scientific fact. There is no science used in the language and what it means, or in the numbers used to give a general range. SWGDAM took the average of the numbers used in all the labs they sampled to arrive at the above scale. It is purely an attempt to ‘simplify’ the data for jurors consumption. Analysts may argue that this is the common language used by the scientific community to describe these ranges. The counter argument is this: the numbers are the range and the verbal scale is not science and should not be cloaked in the appearance of science. You can go through the Daubert factors on this issue and it will fail every one. Every effort should be made to exclude this language, either in a Daubert hearing or in a motion in limine or both.

Probabilistic Genotyping: The idea behind PG systems is to allow a computer program to use ‘all’ the information in a sample to help identify what is there. Human analysts, who are following lab guidelines, have multiple restrictions and limitation in what they can and can not consider in analyzing a sample. First, there are the limitations set by the national and lab validation studies on the equipment, test kits and reagents they are using. These limits restrict the analyst from calling an allele that falls below an analytical threshold (usually 50 rfu). Below this range the background DNA and ‘noise’ that an electropherogram (EEG) picks up makes it very dangerous to call. Other rules also exist to help guide the analyst in making their calls: peak height ratios, stochastic thresholds, major / minor contributor determinations, stutter calls, allelic drop out and drop in determinations. PG systems 20 Cross Examining the DNA Expert- TCDLA 2021 Page 20 of 30

acknowledge that all these limitations exist, but the algorithm takes them into consideration when doing its calculations. How it does this is not readily apparent. PG systems deconvolute highly complex mixtures involving up to 4 possible contributors (there are validation issues on 5 contributors), something a human analyst could not do. They do this by accepting all alleles and first identifying possible profiles, then identifying the most likely as well as other profiles, called ‘genotype weighting.’ Then the software considers the profiles that are input into the system by the analyst as known samples and assess the probability of seeing this profile while assuming that the profile is there. The known samples are generally the complainant and the defendant. The samples for which STRMIX is most appreciated are the same samples that humans have the most trouble interpreting. The human is supposed to verify and check the computers work, but they cant especially in complex mixtures. Practice tips: • Probabilistic genotyping: How do you solve a problem like complex mixture interpretation? o Discovery: there is a lot more information if the State uses PG o First litigation issue: Software quality re: probabilistic genotyping • Source Code Discovery is your first fight: litigate for access to the source code o Discovery rules/Due Process/Confrontation o Trade secrets and protective orders • Get a hearing! o Cross examination o Practice points: Is this a government versus a private entity? Can you prove the fact in another way? (e.g. where in the validation range is your case? ) o Second litigation issue: Daubert and Evid.R. 702 „X Daubert and Evid.R. 702 (when you get access to source code): • Is the State’s witness an appropriate/qualified expert? 21 Cross Examining the DNA Expert- TCDLA 2021 Page 21 of 30

• Did lab follow their own protocols (FST)? „X Daubert challenge without the source code: • Unspecified methods are not sufficient (cannot meet Daubert standard when source code is not disclosed) • Validation studies – are they enough? Who conducted the study? o PCAST Presidents Council of Advisors on Science and Technology • Still problems of subjectivity with input into software, e.g. number of contributors • Likelihood ratios and low template samples – still problems o “Likelihood ratio” statistical framework „X Assumptions made „X Qualitative verbal scales o Does analyst understand statistics? What language will they use? What do you want to prevent? (motion in limine and reliability objection) o There are inclusion/exclusion criteria for comparisons to suspect/victim DNA profiles „X Daubert problems are cross-examination for trial too! • Pick themes for voir dire to help jurors pick up on your cross: o Anyone have problems when they relied on technology? Potential bias if you know the answer before you try to solve the puzzle. Future Tech- ‘is the future bright, or is that a train...’ Genetic Phenotyping: A genotype is the whole genetic makeup of an individual, a phenotype is the physical characteristics of an individual. Forensic DNA phenotyping (FDP) is utilized to predict externally visible characteristics using the DNA sample of an unknown individual. The process uses a single base sequence variation (SNP) in a DNA sequence that is observed in a significant proportion of a large population. Currently this process is still in development, and can partially identify eye, hair and skin color within a range. This is currently being explored in Europe and may became another tool to help narrow down a suspect identity. This is future tech. Genetic Family Searches: With the proliferation of private companies offering genetic testing and the storage of that data comes the opportunity for governmental abuse and invasion of privacy. Law enforcement agencies are searching these private databases in an attempt to resolve cold cases. 22 Cross Examining the DNA Expert- TCDLA 2021 Page 22 of 30

The Golden State Killer case in California is a notable example. These searches are happening in Texas as well. Some states have enacted legislation to either allow for such searches or to prevent their use. No clear federal law deals with this issue as of yet, and Texas does not have a law covering it either. The DNA litigator should be aware that these searches are going on and provide investigators a way of narrowing their search for possible perpetrators of violent crimes. The Fourth Amendment issue should be litigated in those cases, and a litigator would do well to review the Carpenter v. US, 138 S.Ct. 2206 (2018), case from the Supreme Court dealing with the third party doctrine as part of their defense.

NIST MIX 05 MIX 13 Study: From NIST website8: August 2, 2018 In 2013, the National Institute of Standards and Technology (NIST) conducted a study in which 108 forensic laboratories interpreted the same set of DNA evidence so the results could be compared across labs. These types of collaborative exercises, called inter-laboratory studies, help participants understand the sources of variability in their test results and can lead to best practices and other improvements that raise performance for the entire field. This study focused on DNA mixtures, a type of evidence that, in some cases, can be particularly difficult to interpret. DNA mixtures, which occur when the evidence contains DNA from two or more people, have become more common in recent years as forensic DNA methods have become more sensitive. Increased sensitivity allows labs to analyze evidence from a greater variety of crimes, but it also increases the likelihood that a lab will encounter challenging DNA mixtures. 8

https://www.nist.gov/topics/forensic-science/mix13-interlaboratory-study-dna-mixture-interpreta tion 23 Cross Examining the DNA Expert- TCDLA 2021 Page 23 of 30

The study found that when labs interp ret partic ularly comple x DNA mixtur es, their result s can vary signif icantl y across labs. After the study was comple ted, NIST shared the result s at public confer ences and worksh 24 Cross Examining the DNA Expert- TCDLA 2021 Page 24 of 30

ops so that partic ipants could unders tand the causes of variab ility and improv e their method s. A summar y of the result s has also been public ly availa ble on NIST’s forens ic DNA-fo cused websit 25 Cross Examining the DNA Expert- TCDLA 2021 Page 25 of 30

e, STRBas e, since 2014. While one of the main objectives of the study was to provide useful feedback to laboratories, NIST also received requests that the study be published in a peer-reviewed journal. A paper describing the study, including test results and lessons learned, was published this week in FSI: Genetics. The study was not designed to rigorously measure laboratory performance. For example, some labs did not have a second analyst review the test results as they would in real cases. Therefore, the results may not reflect error rates in actual casework. However, this study does highlight the need for continuing efforts to help ensure that laboratories produce consistent and reliable results when analyzing complex DNA mixtures. This study, while limited in many ways, does provide some helpful language and data in challenging mixture analysis in CPI cases, as well as highlighting ongoing problems across the 108 labs that participated. The 5 complex mixture cases presented in MIX 13 reflect a broad cross section of the types of DNA cases defense attorney’s commonly see. Comparing your case to the ones presented may be a viable cross examination topic to pursue. Again, consultation with your expert to see if commonality exists and whether this may bolster both your validity and reliability argument to the court is worth the time it will take you to digest the study. The MIX 05 study was composed of simpler mixtures and had a high success and accuracy rate, while the more complex mixtures in MIX 13 had a much higher failure rate, including the inclusion by a statistically high number of analysts of an innocent profile as a suspect. This highlights that DNA testing is not so good in complex mixture situations, and that the evolution of DNA shows that we are still not out of the woods. 26 Cross Examining the DNA Expert- TCDLA 2021 Page 26 of 30

Now that you have a basic understanding of DNA and the issues that exists in the different testing and reporting models, what do you do with this and how...

CROSS EXAMINATION: Introduction: Every cross examination is unique to the case and situation. There are many strategies and tactics a litigator can use to get to their goal. No two cross exams are the same. Having a plan for your cross is essential, but also understand that you will deviate from the plan at some point. Fortune favors the prepared. Thinking about your case and what can go wrong, and preparing for it is the hallmark of a good lawyer. Where to begin-New case: Preparation for cross examination begins when you meet your client. Cross of an expert begins by first getting a general understanding from your client of what if anything happened, and as many specifics as you can. Criminal practitioners must always be flexible in their approach to a criminal problem. Trust between client and attorney is not automatic, nor does it appear magically overnight. The attorney must always be cautious in relying upon information they receive from their client in allowing it to dictate the defense for a DNA cross in representing the client. The initial interview should give the attorney an idea of what defenses are available and this dictates how we move forward to trial, but always be ready to change directions as necessary. During initial discovery, the state should provide offense reports and crime scene unit reports (CSU), as well as photographs and eventually lab reports. Due to the popularity of DNA in the prosecutions of all offenses, as well as the backlog of SANE kits and budget constraints, you can easily expect a six month to a year wait in getting a report back from the state run lab. Generally, a report takes a month from start to finish to get put together and sent to the prosecutor. Many prosecutor’s offices are forgoing the use of the Department of Public Safety (DPS) labs for the use of a paid private labs to get results faster, or to use some other testing methodology that the private 27 Cross Examining the DNA Expert- TCDLA 2021 Page 27 of 30

lab is using. DPS has fully absorbed STRMix as the software used for mixtures state wide. As of 2020, the current version of STRMix is 2.7 and rumors of a newer version, 2.8 is being prepared for release as of 2021. Once basic discovery is received and reviewed by the attorney some preliminary decisions need to be made. The first is a general determination of the evidentiary value of the DNA and how it will affect trial strategy. Generally, DNA evidence can be subdivided into three broad categories: Inconsequential, Moderate Impact, Critical. As always, trial and pre trial are fluid situations, and DNA that seems unimportant can turn out to be of value to the state at a later date (usually in the middle of trial when it is too late), therefore the safe practitioner always performs basic to moderate discovery in preparing their case for litigation. As with so much in this field, time management is critical, and knowing what is important to pursue and what is a waste of time is essential. This paper will focus on those evidentiary issues that are critical to the case. Please exercise your discretion and moderate your requests as necessary. There is no one size fits all. Caution: Just because you can do a thing, doesn’t mean you should; Be aware, bad facts and bad preparation create bad law. Creating bad law hurts everyone. Pick and choose your case and what issues have a better than average chance of success. Preserve your error for appeal. Doing a Daubert challenge on bad facts will lead to an adverse ruling and making it harder to get a judge to listen to a real challenge. Prepare a cross at trial on a bias and subjectivity attack but leave the validity issue alone if you do not have an expert to make a real fight out of it. Experts: The most important thing you as a practitioner can do is get an expert to assist. Generally, there are two kinds of experts, consulting (or non testifying), and testifying experts. Some courts require designation of the expert at the time of the request. Always make sure you use an Ake motion9, and ask that the trial judge order the district clerk to seal the request so 9

Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985), Rey v. State, 897 S.W.2d 333 (Tex.Cr.App. 1995). 28 Cross Examining the DNA Expert- TCDLA 2021 Page 28 of 30

as not to advertise to the state who you are calling or consulting with. Be sure to get copies of the signed motion before you give it to the clerk (the clerk may insist you get an order from the judge to see your own motion, save yourself the pain). Choosing an expert: There are as many types of experts and sub specialties. Most experts specialize in a particular area of their forensic discipline, so knowing what to look for and ask is helpful. Over time you will build up a ‘stable’ of experts that are both reliable and helpful in defending your case. You will need a consulting expert to review the testing and protocols of the DNA analysis. Depending on what challenges are exposed and the need by the state of the evidence, you may also need specialists in PG systems, mathematics (Bayes Theorem) and probability, a software engineer/programmer, as well as a DNA expert to retest the samples either with or with out a PG system. All of which is, of course, dependent on your theory of the case. The experts will also help guide you through the discovery process and review the data as it comes in. This is the most important thing you can do to help your client and case. Discovery Requests: What to ask for in all DNA cases: 1. Biological and Presumptive Testing Case file A. A copy of the case file which should include: all records and bench notes made by each laboratory in connection with biological testing in the instant case, including serological testing, presumptive testing, microscopy and DNA testing. B. Photographic quality copies of all photographs in the original case file (including photographs of the evidence). 2. Data files: A. Copies of all computer data files created in the course of performing the DNA testing and analysis of the data in the case (both raw data and processed data) including all collection files. B. For analyses performed with GeneScan and Genotyper, please provide all GeneScan files (including all project files, samples files, matrix files and size standards) and all Genotyper files. 29 Cross Examining the DNA Expert- TCDLA 2021 Page 29 of 30

C. For analyses performed with GeneMapper, please provide all samples files (“.fsa”), project files (“.ser”), matrix files (“.mtx”), size standard files (“.xml”), and analysis method files (“.xml”). D. For mtDNA testing please provide all electronic data files. E. In the event that a particular data file cannot be produced, please provide name of said file with explanation of why it cannot be produced. 3. Chain of custody and current disposition of evidence Copies of all records that document the treatment and handling of biological evidence in the instant case from the initial point of collection up to its current disposition. This information should include documentation of where and how the materials were stored (temperature and type of container), the amount of evidence material that was consumed in testing, the amount of material that remains, and where and how the remaining evidence is stored. If evidence has been repackaged, provide documentation of the circumstances of that repackaging, including a description of the original packaging, who conducted the repackaging and under what circumstance. In the event that the chain of custody spans several different agencies or laboratories, please address this request to each agency and/or laboratory that handled the items. 4. Laboratory Protocols, frequency tables and interpretation guidelines A copy of all standard operating protocols (SOPs), frequency tables and interpretation guidelines relied upon in connection with the testing in the instant case, including guidelines that address; (i) peak detection threshold(s), (ii) stochastic threshold(s), (iii) mixture interpretation involving major and minor contributors, (iv) inclusions and exclusions, and (v) policies for the reporting of results and statistics. Additionally, please provide a copy of the lab’s Quality Control and Quality Assurance Guidelines. 5. Unexpected Results and Corrective Actions (may be called CARs but are distinct from CARs issued by ASCLD-LAB) For each laboratory that performed DNA testing in the instant case, the laboratory’s log of unexpected results and corrective actions. These are 30 Cross Examining the DNA Expert- TCDLA 2021 Page 30 of 30

documents maintained by the QA section of the lab. 6. Accreditation A. A copy of all licenses or other certificates of accreditation held by the laboratory. B. A copy of the most recent audit report performed by the accrediting agency and copies of the most recent internal and external audit reports as required by the DNA Advisory Board. C. For each areas of “non-conformance” to accreditation standards, please provide documentation of the determine root cause analysis and all reports and correspondence between the accrediting body and the lab. 7. Resumes for all analysts and technicians who performed any work on this case. Personnel files/ evaluations, Including any corrective action reports, disciplinary actions 8. Proficiency test results for all analysts who performed any work on this case. 9. Communications A copy of all communications between laboratory personnel and any other party with regard to the instant case, including letters, memos, emails and records of telephone conversations (including communications with regard to any DNA profile uploaded to a local, state or national DNA database (LDIS, SDIS or NDIS)). 10. Cold Hit Discovery (additional) A. In the event that this case involves a ‘cold hit’ please provide all records pertaining to any sample taken from the defendant for inclusion in a convicted offender genetic database (CODIS) whether county, state or national, from the initial collection of said sample to its current disposition. These materials should include, but not be limited to, records of sample collection, chain of custody records, bench-notes for DNA testing (including printed electropherograms), electronic data, computer entry forms, Match Details Reports, corrective actions and any communications pertaining to these samples or searches involving these samples, including letters, emails, memos and records of 31 Cross Examining the DNA Expert- TCDLA 2021 Page 31 of 30

telephone conversations. B. For testing done on all samples in this case (even if the case does not arise from a cold hit) that have been submitted to any of the database associated with the national CODIS DNA database system including the local database (LDIS), state database (SDIS) and national database (NDIS) C. All interpretations made by any lab member including the analysts and CODIS administrators of any sample in this case that was subsequently uploaded to any of the listed databases; D. All notes of any interpretation conducted by the lab kept either in the case file or with documents associated with the CODIS system including any CODIS search requests, spreadsheets or hand written documents associated with the CODIS system; E. Match estimator results for all interpretations uploaded to any of the listed databases; F. Any documents relating to candidate matches to any of the interpreted profiles from the Match Manager software, including any handwritten notes regarding interpretation or disposition of a candidate; G. Long form candidate match reports for all candidates indicating the number of hits in any of the databases listed above; H. All partially matching candidates returned via a search including those that are dispositioned by the lab to be non-matching or no hit, even if the lab has dispositioned one of the candidates as a “hit.” This is an ongoing request because as the database grows the probability of obtaining more matches also grows. I. Please provide FBI decision tree diagram for CODIS hits, CHOP Procedures for Crime Laboratories, Law Enforcement Agencies, and District Attorneys (if the CHOP software is in use), any state manuals regarding the use of the SDIS and NDIS databases, training material, whether formal or informal, on the use of the SDIS and NDIS databases including but not limited to those regarding data interpretation and criteria for upload. 32 Cross Examining the DNA Expert- TCDLA 2021 Page 32 of 30

11. Validation Studies Request access to the laboratories validation studies that pertain to issues in the specific case, including but not limited to stochastic effects, analytical and stochastic thresholds, and mixture interpretation. Discovery of STRmix Source Code: All PG systems are a black box, data goes in and an algorithm processes the information and spits out a result. This is one of the most highly contested areas of litigation in this field. ESR, the company that developed and sells STRMIX, will contest the release and access of the source code. The Legal Aid Society (LAS) of NY has been attempting to get access to and analyze the source code for several years now, with limited success. The ESR website discusses how a litigant can get access, court order and signing a non disclosure agreement (NDA). The NDA is on the website. It is a highly restrictive agreement. How the software processes the data to come up with its LR’s, what and how weight is given to the calculations is critical in understanding the value of the result. The best advice is contact LAS if you are going down this road, and be prepared for a marathon. What to ask for in STRMIX cases: From the lab: All STRMIX data files related to this case, STRMIX outputted folder From ESR: (ask the state first when they say they don’t have it) Requirements and specifications- definitions of intended software behavior Software analysis Automated software tests Issue/bug report tracking Change logs Source code Validation summary Underlying validation materials 33 Cross Examining the DNA Expert- TCDLA 2021 Page 33 of 30

STRMIX development materials Pre Trial Challenges: There are four vehicles used to challenge admission of DNA evidence in a pre trial format: deposition, Daubert motions, trial voir dire, and motions in limine. Depositions are governed by T.C.C.P. 39.02, and are very rare in criminal cases. Litigant must show ‘good cause’ to conduct a deposition, and you can be assured the state will oppose any request to depose their experts prior to trial. Voir dire: after an expert has been asked their training and experience questions by the prosecutor during direct exam in front of the jury, and before they are asked what they did in this particular case a defense attorney can request of the court that they be allowed to voir dire the witness. This voir dire, done in front of the jury, is a mechanism that allows the defense to ‘explore’ the training and experience of the witness to determine whether they are qualified to offer evidence of a scientific nature. Generally, this is an opportunity to oppose the testimony of a specific witness, or to limit the scope of their testimony. Tactically this can be an excellent time to point out educational or training limitations or issues prior to the witness offering their testimony. Motions in limine are essentially trial motions and are of limited value, although using them to restrict certain language commonly used by experts to inflate their opinions has some tactical advantages. Excluding the ‘verbal scale’ through a motion in limine is highly recommended, this can also be done in a pre trial hearing. The main avenue of attacking a DNA result pre trial are through Daubert challenges. Daubert/Kelly Challenges: The proponent of scientific evidence bears the burden of demonstrating by clear and convincing evidence that the evidence is reliable. Daubert v. Merrell Dow, 113 S. Ct. 2786 (1993). This is accomplished by showing Prong (1) the validity of the underlying scientific theory; Prong (2) the validity of the technique applying the theory; and Prong (3) proper application of the technique in question. Prior to the offer of scientific evidence, the trial 34 Cross Examining the DNA Expert- TCDLA 2021 Page 34 of 30

court must conduct a hearing outside the presence of the jury to determine whether the proponent has established all three criteria. This pre-admission determination is required whether the science at issue is novel or wellestablished. Jackson v. State, 17 S.W.3d. 664 (Tex. Crim. App. 2000); Coble v. State 330 S.W.3d 253 (Tex.Cr.App., 2011). These three prongs of Daubert provide the vehicle by which all challenges to the science may be made. The extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community can be ascertained; 1. The qualifications of the expert testifying; 2. The existence of literature supporting or rejecting the underlying scientific theory and technique; 3. The potential rate of error of the technique; 4. The availability of other experts to test and evaluate the technique; 5. The clarity with which the underlying scientific theory and technique can be explained to the court; 6. The experience and skill of the person who applied the technique on the occasion in question. Kelly v. State, 824 S.W.2d. 568, 573 (Tex. Crim. App. 1992) The Daubert hearing is the opportunity to challenge the three prongs of the science and process. This does not have to be done before the trial actually begins, but generally, the litigator does not want to do this at trial because the jury will be sitting in the jury room. There are exceptions. This is best used as a pre trial specific attack. Two basic approaches to a Daubert hearing can be used. First, use an all out attack challenging everything that you can, calling your own experts to oppose and present to the trial judge. Second, cross the state’s experts without presenting any experts of your own. Unless something drastic happens the second approach will not lead to a granting of your challenge, it is used more as a discovery tool to analyze the state’s experts and how they will testify. The first approach can broadcast your defensive theory and put the state on notice regarding the issues you plan to raise (as it relates to the DNA) at trial. Practice point, try to put the hearing as close as is comfortable for your trial preparation to the actual trial date. This limits any additional testing that may suddenly rear its ugly head, also it cuts down on total prep time as you will already be ready for your DNA cross based on your pre trial prep. Additionally, even partial victory can serious disrupt a prosecutor’s plan for trial. Putting an opponent on their heels is one step from falling down. Cross at a Daubert hearing is slightly different than at trial. Here you are focused on the trial judge and not a jury. The cross can be more open ended and exploratory, often you want the analyst to speak. Remember the judge can always interrupt and ask their own questions, so tight control of the witness may not be possible. Some Issues to attack under Daubert: 35 Cross Examining the DNA Expert- TCDLA 2021 Page 35 of 30

Validity and Reliability challenges as discussed above; Both Prong 1 and 2 attacks Reliability issues create Prong 3 attacks Prong 3 analyst issues- training and experience History of analyst with issues Proper application of SOP’s and training in this case Trace DNA - Prong 2 and 3 -Lack of reliability as to origin, methodology in LCN, -Stochastic issues, -Peer review relating to ambiguity in transfer -Lack of consensus on almost every issue of transfer : Prong 1 & 2 Shredder status, Length of contact, Type of surface, Activity level of contact, Secondary & tertiary transfer, etc.. Population statistics- Prong 1 & 2 - specific sub groups not always included Each of these questions provides a line of questions. Thorough pre-trial exploration of these questions will then provide you with all of the questions you will need for a successful cross-examination at trial. What are the expert’s opinions? What makes this witness an expert? Is the expert credible on a personal basis? How does the expert fit into the case? What facts does this expert witness assume to be true as the basis for his or her opinions? What facts, if any, did the expert fail to consider? What are the bases for the opinion? Could any reasonable person disagree with this expert’s opinions? These are questions you should be asking yourself and your consulting expert in preparation for both the Daubert and trial cross, regardless of whether you 36 Cross Examining the DNA Expert- TCDLA 2021 Page 36 of 30

are using a full attack or planning on a discovery Daubert. The pre trial hearing is the time to take risks with your questions. Be warned the state should try to limit your questions if you stray outside the three Daubert prongs. Be prepared to link your question to one of the prongs at all times.

Litigation expansion: Do not forget to challenge how they got the DNA in the first place, either the unknown or known samples. There are novel arguments in Fourth Amendment jurisprudence dealing with the voluntariness of abandoned DNA, using the arguments from the cell phone line of cases, Carpenter and Riley.10 Involuntariness of shed biological samples and the requirements of search warrants on ‘abandoned’ items with DNA on them should be pursued. Just because you are doing a Daubert challenge doesnt mean you cant also file a motion to suppress.

Cross Examination- Choosing an Effective Strategy: (what works) The Journal of Forensic Science published an article in 2019, wherein scientists did a study testing how cross examination focusing on subjectivity and bias affected jurors evaluations of forensic science. In fact it is titled “How Cross-Examination on Subjectivity and Bias Affects Jurors’ Evaluations of Forensic Science Evidence†” J Forensic Sci, 2019 William C. Thompson, J.D., Ph.D.; and Nicholas Scurich, Ph.D.. The study used a set fact pattern and a forensic expert (bite marks), and created a protocol where the expert was crossed on issues relating to bias and subjectivity, as well as just one of the two areas, or none. The study found that the cross examination made a difference in how the evidence was weighed and analyzed (indeed different verdicts were obtained on the exact same evidence). The study found: [T]he expert was viewed as more credible when the expert was blind to the task-irrelevant contextual information (bias) than when the expert 10

Carpenter v. U.S., 585 U.S. __ (2018). Riley v. California, 573 U.S. 373 (2014).

37 Cross Examining the DNA Expert- TCDLA 2021 Page 37 of 30

knew about task-irrelevant information and claimed to have ignored it or used it. Raising the issue of subjectivity on cross-examination only had a significant effect in the Control condition, in which the issue of task-irrelevant information was not mentioned. In that instance, scientific credibility was significantly reduced when the expert admitted that his analysis required making subjective judgments in the absence of formal standards. Although it appears that the expert’s scientific credibility is reduced if the expert admits either to exposure to task-irrelevant information or to using a subjective method, we did not detect a significant additive effect on scientific credibility ratings when the expert admitted to both. Id at 6. The study’s construction added a control jury, where nothing was challenged, as well as jury where there was a ‘blind condition” as to the bias and subjectivity issues. The study defined “task-relevant” (information deemed non biased) only if it helps the examiner draw conclusions “from the physical evidence that has been designated for examination” and “through the correct application of an accepted analytic method. . .” Id. at 3. Although the study suggests further research be done, it does draw some valuable conclusions about the value of cross examination and the strategy of cross. Specifically: From a legal perspective, the finding suggests that lawyers can successfully challenge the credibility of a nonblind forensic expert in two ways: either by revealing the subjectivity of the expert’s methods or by revealing the expert’s exposure to task irrelevant information. When the defense lawyer in our case pursued neither line of attack (in the control condition where there was no cross about subjectivity), jurors’ perceptions of the expert’s credibility were as high as in the blind condition. When the defense lawyer pursued either line of attack, the expert’s perceived credibility was significantly lower. But this was true only for nonblind forensic experts. The expert was immune to both attacks in the Blind Condition, where the laboratory employed context management procedures to prevent exposure to task-irrelevant information. 38 Cross Examining the DNA Expert- TCDLA 2021 Page 38 of 30

At 7. This means the more effective cross examination of a forensic expert happens on the issues of bias and subjectivity in reaching a conclusion. But this effectiveness is mitigated by standard operating procedures which allow for subjectivity within an approved framework.11 Another study done on the value of a scientific evidence when the underlying validity is challenged through cross examination in 2015 also shows the value of a scientific based or informed cross.12 The study found that a “scientifically informed” cross-examination that focused on the requisites of experimental design sensitized mock jurors to a methodological flaw in a study presented by an expert. Concluding that an “evidence-based” cross-examination that focused on things that could go wrong in DNA testing reduced the influence of DNA evidence, but only when the DNA testing was done by a “lowreliability” laboratory. Therefore, in attacking the credibility and reliability of scientific evidence in a DNA context, the strategy should be to focus on establishing bias in its various forms and bringing out the subjectivity in the analysis. Emphasize a failure in validation and operating procedures to eliminate or reduce said influences.

By raising concerns about exposure to potentially biasing taskirrelevant information, and concerns about subjectivity and lack of standards, attorneys can undermine the credibility of a forensic expert. And when the forensic expert is less credible, jurors are less likely to be persuaded by the expert’s testimony when reaching a verdict. The connection between expert credibility and verdicts can be seen most easily in a case like the one used in our experiment where the forensic evidence is pivotal, but will likely be a factor in every case involving forensic evidence. Id at 7. 12

Austin J, Kovera MB. Cross-examination educates jurors about missing control groups in scientific evidence. Psychol Public Policy Law 2015;21 (3):252–64. 39 Cross Examining the DNA Expert- TCDLA 2021 Page 39 of 30

Cross examination-General Strategy in trial: Cross examination strategy always begins where it all ends. Closing is where the litigator brings all the elements of the case together in a cohesive and comprehensible manner to link all the elements of the trial and to reframe the questions being asked of the jury. You must tie everything from voir dire through rebuttal into the jury charge to reach a particular result. What is the ‘final question’ that inexorably leads to a two word verdict. This question is dictated by the facts presented at trial and the defensive theory. As it deals with the strategy of cross examination of the DNA expert there are only (generally) two paths to dealing with this highly complex forensic science. General defensive strategy / theory: 1. DNA testing results are wrong because ... 2. It doesn’t matter to our case because ... These two basic strategies are mutually exclusive as they relate to specific pieces of evidence. This is not to say a situation may exist where you are arguing one way on a particular piece of evidence and the other on a second unrelated piece of evidence, but generally the litigator will want to avoid this. The chance of confusion of the jury, leading to a negative outlook towards the defensive strategy is high. Think, “tricky lawyer arguing out of both sides of his mouth.” Great cross examination is reducing the complex to the simple. Having a simplified theme from voir dire to close creates memorable frameworks for the jury to analyze the evidence. Cross examination at trial should be approached differently that at pre trial. Here you will want to control the witness as much as possible. This is not the time for exploration and open ended questions. Leading questions, each discussing a single fact, is extremely effective in controlling the cross. Making use of the witnesses language choice, integrating it back into your question keeps a cross on track. Looping your questions, as necessary, to help control and integrate your theory throughout your cross is also highly effective in your presentation to the jury.

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Professor Albert ‘Buzz’ Scherr13, who has litigated and consults on DNA cases in New England proposes simplifying the entirety of DNA forensics to a single analogy.14 All forensic DNA comes down to measurement. The analyst measures the crime scene sample and measures a known sample and then compares them. In effect the EPG is just a fancy ruler. When the analyst compares the measurements they give an estimate about the possibility of someone else having about the same measurements. This analogy, if integrated throughout your case, will simplify a complex science to something a jury can associate with, and give them a framework to question when there is a problem. Don’t believe the results of the DNA testing because... -Did not follow the labs measuring rules. -Did not follow the measuring rules from the national experts. -Did not follow your own measuring rules you wrote about. -The measuring system is rigged. -No agreed upon rules for measuring this kind of evidence. -Garbage in / Garbage out, did not follow the measuring rules on collection and storage. It doesn’t hurt our case because ... -Can’t measure when it was left at the crime scene. -Cant measure what the person who left it at the crime scene was doing at the crime scene whenever they left it there. (Transfer argument) -Garbage in/ Garbage out, given poor collection/storage. You don’t know what you are measuring and so the results don’t matter. Cross topics at trial: Start with a simple overview of the science A brief overview of forensic DNA testing 13

Professor Scherr is the Professor of Law and Director of the Trial Advocacy Program at University of New Hampshire School of Law. Much thanks for you help in preparing this paper. 14

Cross Examination Preparation with Prof. Buzz Scherr, Orange & Osceola Public Defender Conference 2020. https://vimeo.com/397451476 41 Cross Examining the DNA Expert- TCDLA 2021 Page 41 of 30

Conceptual agreements: Establishing what is good science, SOP’s, good measurements, confirmation bias Establish strength of SOP’s and national protocols that guide all analysts Establish what was done in this case Types of cross attacks at trial: 1 Lab and national standards cross: ‘You measured it wrong because you didn’t follow the rules’ 2 Bias cross- ‘Your measuring is rigged’ 3 Mixtures- ‘You don’t know how to measure them reliably’ 4 Error rates- ‘Every lab makes mistakes in measuring because science isn’t perfect but we hope its well measured in this case...’ 5 What DNA doesn’t tell you- ‘things you can’t measure or figure out’ 1. Lab and national standards cross: Purpose of the standards... Value of the standards ... How standards are developed ... Who develops the standards ... Problems with not following the standards ... Cannot trust the reliability of the results Including using your judgment based on experience to override the rule... Didn’t follow protocol Every forensic DNA lab, public & private, has a lab protocol Lab protocol is required step by step recipe for every forensic DNA test done Didn’t follow national / FBI guidelines SWGDAM guidelines Inconsistencies with the literature As to technique used As to interpretation of results 42 Cross Examining the DNA Expert- TCDLA 2021 Page 42 of 30

2. Bias Cross: Non blind testing Analyst knows before the measure who the suspect sample is Consciously or unconsciously know the ‘expected’ outcome Confirmation Bias Well known problem, every research lab builds in protections against it Only the Houston Forensic Science Center conducts regular blind testing Analyst often knows the details of the case before testing Affiliation and communication with LE and prosecutor prior to testingdiscovery Retesting- occasionally the sample is retested, why? LE asks for additional testing 3. Mixtures Cross: Complicated area that involves substantial technical knowledge of the molecular biology at play General lack of nationally agreed upon standards for interpreting every mixture Standards are still evolving Some mixtures are interpretable, if you make assumptions and some are not 4. Error Rates Cross: No lab has a perfect record... Subjective element to forensic DNA testing, particularly with mixtures Every lab does proficiency testing of its analysts to look for issues... Every lab keeps records of mistakes... One public lab does blind testing (Houston), no one else does ... Lab tells the analyst it’s a test What is the error rate in your lab? Won’t be able to answer... 5. What DNA doesn’t tell you: How that material got there 43 Cross Examining the DNA Expert- TCDLA 2021 Page 43 of 30

When that material got there How long its been there Who was also present when the crime scene sample was left there How it was collected The circumstance of it being left there How the DNA first got out of or off of the contributor’s body.

Possible Defensive Strategies at trial: Third party is actual perpetrator- analyst mistakenly reported a match or inclusion Analyst exaggerated the degree that the DNA is consistent with client A different analyst may exclude your client Mishandling/Contamination at the crime scene or laboratory Inadvertent transfer of DNA Defensive theory is consistent with DNA ie: consent Y-STR paternal lines are all the same Mixtures-someone else did it -SODDIT Statistics are not powerful indicia of a link Partial profile issues Quantitations don’t add up- trace DNA issues Sexual assault but biological material is a low quantitation, possible transfer Serology results don’t add upSexual assaults- does the biological material match the story? DNA doesn’t support the conclusion minor profiles are really more important PG Defensive Strategies at trial: Statistics are not powerful indicia of a link Hypothesis are contrived, based on false assumptions and ignore essential facts With a lower LR statistic there is lots of unmined data

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Alphabet soup analogy- easy to include many people in a complex mixture, not an identification Cross chapters in PG: Not an identification- not RMP It is a number attached to a hypothesis Labs are changing a way to express statisticsThis has changed dramatically over the last decade. Is this the best method, or just the current one? STRMIX run multiple time get different numbers with same data Respectable people in the field disagree on these matters If the assumption is wrong, the stats are meaningless The formulated assumptions in this case Prosecution as part of the prosecution team-context bias The answer is always different every time it is run-always a better hypo The context of the entire case is critical- this is only an investigation lead at best Did not run LR stat if contamination is the hypothesis What is the possibility there is a contamination Could contamination explain this better Conclusion: These are a few methods for approaching a cross examination of a DNA expert, both pre trial and at trial. There is no single method for cross, but all cross requires preparation and study to be able to do it well. Putting the time in to learn the science and research the issues of your case in the scientific literature is mandatory.

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Texas Criminal Defense Lawyers Association

Cross-Examination Seminar March 4-5, 2021 Livestream

Topic: Cross-Examining the SANE Nurse Speaker:

Heather Barbieri

ADDRESS 1 7000 Preston Rd Ste 700 ADDRESS 2 Plano, TX 75024 (972) 424-1902 Phone hbarbieri@barbierilawfirm.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

CROSS EXAMINATION March 4-5, 2021 Wyndham Garden Hotel

Topic:

Cross Examining the SANE Nurse

Heather J. Barbieri hbarbieri@barbierilawfirm.com Kristen E. Gavigan kgavigan@barbierilawfirm.com BARBIERI LAW FIRM, P.C. 7000 Preston Road, Suite 700 Plano, Texas 75024 Tel. (972) 424-1902 Fax (972) 208-2100

CROSS EXAMINING THE SANE NURSE 1. SANE: SEXUAL ASSAULT NURSE EXAMINER a. A SANE is a registered nurse (RN) who has specialized forensic training in treating sexual assault victims. b. Purpose: Prior to SANE nurses, sexual assault victims were examined by on-duty medical personnel. SANE nurses are trained in sensitivity, and proper evidence collection. c. SANE nurses understand the legal proceedings that follow the exam, their job is to collect evidence with the ultimate goal of prosecution.

2. EDUCATION AND QUALIFICATIONS OF SANE NURSES 1 a. Obtain Nursing Licensure i. Registered Nurse (RN) licensed by the Texas Board of Nursing (BON) b. Experience: At the time of the application, the nurse must have two years minimum experience with direct patient contact. c. The Office of the Attorney General (OAG) Approved SANE Training Course i. Before submitting an application, the individual must complete an OAG approved SANE Training Course ii. Individual choses which type of SANE certification they want to pursue d. Types of OAG SANE Certifications: i. CA-SANE: Certified Adult/Adolescent SANE ii. CP-SANE: Certified Pediatric SANE iii. CA-CP SANE: Dual Certified SANE in Adult/Adolescent and Pediatric. e. Clinical Training Requirements i. Depending on which type of certification, clinical requirements must be met prior to applying. 1. Basic Requirements: Pelvic Examinations and Well-Child Examinations 2. Advanced Requirements: Sexual Assault Medical Forensic Examinations f. Courtroom Observation i. At least 12 hours of observing courtroom testimony. ii. Professional State’s Witnesses: SANE Nurses learn how to testify for the State and how to handle cross-examination. g. Application

OAG Sexual Assault Nurse Examiner (SANE) Initial Certification Application Guide, August 2020. 1

3. CROSS-EXAMINATION OF STATE’S WITNESSES a. Rule of Thumb i. “Never, never, never, on cross-examination ask a witness a question that you don’t already know the answer to . . . do it, and you’ll often get an answer you don’t want, an answer that might wreck your case.” – Harper Lee b. Pre-Trial Considerations i. File Request for State’s Witness List ii. Investigate the Expert Witness 1. Obtain curriculum vitae (CV) a. What certifications does the expert have? b. What qualifications does the expert lack? c. Employment History d. Education 2. Career State’s Witness a. Testified as an expert for the defense? b. How many times has the witness testified for the State? c. Research whether the expert was found unqualified to testify as an expert d. Review the expert’s testimony in other cases 3. Google and Social Media iii. Gather impeachment evidence 1. Hire/appoint investigator 2. Criminal background check 3. Explore motives 4. Gather/subpoena all supportive documentary evidence 5. Gather/subpoena all extrinsic evidence c. Cross Examining the SANE Nurse i. In cross-examining a SANE Nurse, the goal is to neutralize and bring out a slight motive by demonstrating: 1. Signs or symptoms of abuse mirror non-abuse 2. Lack of personal knowledge 3. Natural motive – Career State’s Witness a. Law enforcement-based b. Overly sympathetic 4. Adherence to Forensic Evidence Collection Protocols 5. Proper Documentation 6. Chain of Custody

d. The Law Governing Cross-Examination a. Need for Personal Knowledge 2 i. A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove persons knowledge may consist of the witness’s own testimony. ii. This rule does not apply to a witness’s expert testimony under Rule 703. b. Who May Impeach a Witness 3 i. Any party, including the party that called the witness, may attack the witness’s credibility. c. A Witness’s Character for Truthfulness or Untruthfulness 4 d. Reputation or Opinion Evidence i. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked. e. Specific Instances of Conduct i. Except for a criminal conviction under Rule 609, a party may not inquire into or offer extrinsic evidence to prove specific instances of the witness’s conduct in order to attack or support the witness’s character for truthfulness. f. Mode and Order of Examining Witnesses and Presenting Evidence 5 i. A witness may be cross-examined on any relevant matter, including credibility. ii. Ordinarily, the court should allow leading questions on cross-examination. g. Witness’s Prior Statement and Bias or Interest 6 h. Witness’s Prior Inconsistent Statement. i. Laying the foundation: When examining a witness about the witness’s prior inconsistent statement—whether oral or written—a party must first tell the witness: ii. The contents of the statement; Tex. R. Evid. 602. Tex. R. Evid. 607. 4 Tex. R. Evid. 608. 5 Tex. R. Evid. 611. 6 Tex. R. Evid. 613. 2 3

1. The time and place of the statement; and 2. The person to whom the witness made the statement. 3. If the witness’s prior inconsistent statement is written, a party need not show it to the witness before inquiring about it, but must, upon request, show it to opposing counsel. 4. A witness must be given the opportunity to explain or deny the prior inconsistent statement. iii. Evidence of a witness’s prior inconsistent statement is not admissible unless the witness is first examined about the statement and fails to unequivocally admit making the statement. iv. The above does not apply to an opposing party’s statement under Rule 801(e)(2)

Witness’s Bias or Interest i. When examining a witness about the witness’s bias or interest, a party must first tell the witness the circumstances or statements that tend to show the witness’s bias or interest. If examining a witness about a statement—whether oral or written—to prove the witness’s bias or interest, a party must tell the witness: ii. The contents of the statement; 1. The time and place of the statement; and 2. The person to whom the statement was made. iii. If a party uses a written statement to prove the witness’s bias or interest, a party need not show the statement to the witness before inquiring about it, but must, upon request, show it to opposing counsel. iv. A witness must be given the opportunity to explain or deny the circumstances or statements that tend to show the witness’s bias or interest. And the witness’s proponent may present evidence to rebut the charge of bias or interest. v. Extrinsic evidence of a witness’s bias or interest is not admissible unless the witness is first examined about the bias or interest and fails to unequivocally admit it. vi. 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.

Excluding Witnesses 7 i. At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. ii. This does not authorize excluding:

Tex. R. Evid. 614.

1. A party who is a natural person and, in civil cases, that person’s spouse; 2. After being designated as the party’s representative by its attorney in a criminal case, a defendant that is not a natural person; 3. A person whose presence a party shows to be essential to presenting the party’s claim or defense; or 4. The victim in a criminal case, unless the court determines that the victim’s testimony would be materially affected by hearing other testimony at the trial. k. Testimony by Expert Witnesses 8 i. 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. l.

Bases of an Expert’s Opinion Testimony 9 i. An expert may base an opinion on facts or data in the case that the expert has been made aware of, reviewed, or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need to be admissible for the opinion to be admitted.

m. Disclosing the Underlying Facts or Data and Examining an Expert About Them 10 i. Unless the court orders otherwise, an expert may state an opinion—and give the reasons for it—without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on crossexamination. ii. Before an expert states an opinion or discloses the underlying facts or data, an adverse party in a criminal case must be permitted to examine the expert about the underlying facts or data. This examination must take place outside the jury’s hearing. iii. An expert’s opinion is inadmissible if the underlying facts or data do not provide a sufficient basis for the opinion. n. The Rule Against Hearsay 11 i. Hearsay is not admissible unless any of the following provides otherwise: Tex. R. Evid. 702. Tex. R. Evid. 703. 10 Tex. R. Evid. 705. 11 Tex. R. Evid. 802. 8 9

1. A statute; 2. The Texas Rules of Evidence; or 3. Other rules prescribed under statutory authority ii. Inadmissible hearsay admitted without objection may not be denied probative value merely because it is hearsay. o. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant Is Available as a Witness 12 i. The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: 1. Present sense impression – A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. 13 2. Excited utterance – A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. 14 3. Then-existing mental, emotional, or physical condition – A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will. 15 4. Statement made for medical diagnosis or treatment – A statement that: 16 a. Is made for—and is reasonably pertinent to—medical diagnosis or treatment; and b. Describes medical history; past or present symptoms or sensations; their inception; or their general cause ii. Recorded recollection – A record that: 17 1. Is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; 2. Was made or adopted by the witness when the matter was fresh in the witness’s memory; and 3. Accurately reflects the witness’s knowledge, unless the circumstances of the record’s preparation cast doubt on its trustworthiness. Tex. R. Evid. 803. Tex. R. Evid. 803(1). 14 Tex. R. Evid. 803(2). 15 Tex. R. Evid. 803(3). 16 Tex. R. Evid. 803(4). 17 Tex. R. Evid. 803(5). 12 13

iii. Records of regularly conducted activity – A record of an act, event, condition, opinion, or diagnosis if: 18 1. The record was made at or near the time by—or from information transmitted by—someone with knowledge; 2. The record was kept in the course of a regularly conducted business activity; 3. Making the record was a regular practice of that activity; 4. All of these conditions are shown by the testimony of the custodian or another qualified witness, or by an affidavit or unsworn declaration that complies with Rule 902(10); and 5. The opponent fails to demonstrate that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. iv. Absence of a record of a regularly conducted activity – Evidence that a matter is not included in a record described in paragraph (6) if: 19 1. The evidence is admitted to prove that the matter did not occur or exist; 2. A record was regularly kept for a matter of that kind; and 3. The opponent fails to show that the possible source of the information or other circumstances indicate a lack of trustworthiness. p. Public records – A record or statement of a public office if: 20 i. It sets out: ii. The office’s activities; 1. A matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law enforcement personnel; and 2. The opponent fails to demonstrate that the source of information or other circumstances indicate a lack of trustworthiness. 3. Public records of vital statistics – A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty. 21 q. Absence of a public record – Testimony—or certification under Rule 902—that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that: 22 i. The record or statement does not exist; or Tex. R. Evid. 803(6). Tex. R. Evid. 803(7). 20 Tex. R. Evid. 803(8). 21 Tex. R. Evid. 803(9). 22 Tex. R. Evid. 803(10). 18 19

ii. A matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind. Records of religious organizations concerning personal or family history – A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization. 23 Certificates of marriage, baptism, and similar ceremonies – A statement of fact contained in a certificate: 24 i. Made by a person who is authorized by a religious organization or by law to perform the act certified; 1. Attesting that the person performed a marriage or similar ceremony or administered a sacrament; and 2. Purporting to have been issued at the time of the act or w/in a reasonable time after it. Family records – A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker. 25 Records of documents that affect an interest in property – The record of a document that purports to establish or affect an interest in property if: 26 i. The record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it; ii. The record is kept in a public office; and 1. A statute authorizes documents of that kind in that office. 2. Statements in documents that affect an interest in property – A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document’s purpose—unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document 27

Tex. R. Evid. 803(11). Tex. R. Evid. 803(12). 25 Tex. R. Evid. 803(13). 26 Tex. R. Evid. 803(14). 27 Tex. R. Evid. 803(15). 23 24

OAG SEXUAL ASSAULT NURSE EXAMINER (SANE)INITIAL CERTIFICATION APPLICATION GUIDE TABLE OF CONTENTS

OAG SANE CERTIFICATION APPLICATION .................................................................................... 3

WHO SHOULD APPLY ........................................................................................................................... 3

OAG SANE CERTIFICATION APPLICATION PROCESS ................................................................ 5 STEP ONE – NURSING LICENSURE................................................................................................. 5 STEP TWO – NURSING EXPERIENCE ............................................................................................ 5

STEP THREE –OAG APPROVED SANE TRAINING COURSE.................................................. 6 APPROVED TRAINING COURSES................................................................................................ 6

DOCUMENTING THE TRAINING COURSE .............................................................................. 6 TIMEFRAME FOR TRAINING COURSE ..................................................................................... 6

PRIOR TRAINING............................................................................................................................... 7

STEP FOUR –CLINICAL REQUIREMENTS .................................................................................... 8

CONDUCTING THE EXAMINATION ........................................................................................... 8

PRECEPTING THE EXAMINATION.......................................................................................... 10 DOCUMENTING THE EXAMINATION .................................................................................... 12 TIMEFRAME FOR CLINICAL REQUIREMENTS .................................................................. 12 PRIOR CLINICAL EXPERIENCE................................................................................................. 13

STEP FIVE –COURTROOM OBSERVATION............................................................................... 13 DOCUMENTING COURTROOM OBSERVATION ................................................................. 13 TIMEFRAME FOR COURTROOM OBSERVATION ............................................................. 14

PRIOR COURTROOM EXPERIENCE ........................................................................................ 14

STEP SIX – COMPLETE APPLICATION PACKET ..................................................................... 14 CERTIFICATION APPLICATION ............................................................................................... 16 SUPPORTING DOCUMENTATION ........................................................................................... 16 INCOMPLETE APPLICATION PACKETS ................................................................................ 16 SUBMITTING A COMPLETE APPLICATION PACKET ...................................................... 17

APPLICATION REVIEW PROCESS .................................................................................................... 18 ONCE CERTIFIED..................................................................................................................................... 19 RENEWING CERTIFICATION ......................................................................................................... 19 SUSPENSION, PROBATION, OR DECERTIFICATION ............................................................ 19

APPEALS PROCESS ................................................................................................................................. 20 CONTACT INFORMATION ................................................................................................................... 21 APPENDIX 1 – TERMS ........................................................................................................................... 22 APPENDIX 2 – COMPLETE APPLICATION PACKET CHECKLIST ........................................ 26

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OAG SANE CERTIFICATION APPLICATION

The Office of the Attorney General (OAG), through the Sexual Assault Prevention and Crisis Services (SAPCS) program, administers the Sexual Assault Nurse Examiner (SANE) Certification Program. (See Texas Government Code §420.011). The OAG offers the following SANE certifications: Certified Adult/Adolescent SANE (CA-SANE), Certified Pediatric SANE (CP-SANE), and a dual Certified Adult/Adolescent SANE (CA-CP SANE). For CA-SANE Certification an applicant must demonstrate currency of practice in the care and treatment of adult and adolescent patients who present with a complaint of sexual assault or abuse. For CP-SANE Certification an applicant must demonstrate currency of practice in the care and treatment of pediatric patients who present with a complaint of sexual assault or abuse. For CA-CP SANE Certification an applicant must demonstrate currency of practice in the care of treatment of adult, adolescent, and pediatric patients who present with a complaint of sexual assault or abuse.

The OAG has published rules regarding the SANE Certification Program including minimum standards for certification. (See Texas Administrative Code, Title 1, Part 3, Chapter 62, Subchapter A). This guide outlines the minimum standards and application requirements for the OAG SANE Certification. This guide is designed for individuals who are not currently certified.

Individuals who are currently certified should refer to the OAG SANE Certification Renewal Application Guide for information on renewing certification. Individuals with prior training and/or advanced clinical experience, hold a certification from another state or national entity, or who have expired OAG certifications may apply for certification. The nurses must be able to meet the same currency of practice requirements of the OAG SANE renewal. Individuals must have completed the requirements within the past two years from the date of application. Refer to the OAG SANE Certification Application Renewal Guide.

WHO SHOULD APPLY

Individuals interested in seeking OAG SANE Certification must meet the minimum nursing qualifications – hold the appropriate nursing license and have nursing experience – and complete three core components – an OAG approved SANE training course, clinical requirements, and courtroom observation – prior to applying for certification.

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The OAG approved SANE training course is the cornerstone of certification and begins the nurse’s SANE education. During the training course, participants learn about the role of the SANE in the collaborative approach to responding to patients who present with a complaint of sexual assault or abuse. The course focuses on nursing care and treatment of the patient utilizing the principles of trauma informed care, and the steps required for conducting sexual assault medical forensic examinations. In addition to the training course, nurses must also complete basic clinical requirements – developing practical skills as they complete pelvic and well-child examinations – and advanced clinical requirements - conducting sexual assault medical forensic examinations under a preceptor. Nurses also participate in courtroom observations as an introduction to the role of a SANE in court proceedings.

OAG SANE Certification does not ensure employability. Individuals may contact local SANE programs and medical facilities regarding employment and clinical requirement opportunities. The OAG does not provide assistance in obtaining employment or completing certification requirements. In issuing OAG SANE Certification, the OAG reviews an applicant’s submission to verify the individual completed the minimum requirements for OAG SANE Certification and provided sufficient documentation to establish the requirements were met. The OAG does not review a nurse’s competency or capability to provide care; oversight of the nurse’s practice should be handled locally. It is recommended that local facilities and SANE programs establish policies to review the quality of care that patients receive. This guide provides detailed information regarding the requirements for certification and the general application process for each certification type.

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OAG SANE CERTIFICATION APPLICATION PROCESS

OAG SANE Certification is available for eligible individuals who meet the minimum nursing qualifications (nursing licensure and experience), and complete the three core components (OAG approved SANE training course, clinical requirements, and courtroom observation) within the designated timeframe. Individuals must meet all the requirements and submit a complete application packet within two years of completing the training course. (See Appendix 1 Terms – Two years). The OAG may allow an extension for extenuating circumstances if documentation is received from the SANE coordinator or medical director that an extension is needed. These may be approved on a case by case basis. Individuals seeking certification are responsible for ensuring that all requirements for certification are completed prior to applying. Details regarding each of these requirements are found in this guide.

STEP ONE – NURSING LICENSURE

To be eligible for certification, an individual must be a registered nurse (RN) with a current and unencumbered license with the Texas Board of Nursing (BON). This includes applicants who hold a compact license or active duty military practicing at a military facility. Applicants must provide a nursing license number in the Certification Application, which will be verified by the OAG. (See Step Six – Complete Application Packet). The OAG SANE Administrator may contact the applicant or the BON to resolve any questions regarding licensure status.

Individuals with licensure encumbrances that impede their ability to perform as a SANE –to provide nursing care and treatment for a patient who presents with a complaint of sexual assault –may be denied certification. Contact the OAG SANE Administrator for more information.

STEP TWO – NURSING EXPERIENCE

To be eligible for certification, an individual must have a minimum of two years direct contact with patients (active practice) as an RN within the last five years at the time the application for certification is submitted. This includes nurses who provide or supervise those who provide direct patient care. Applicants must sign the Verification Form as documentation of nursing experience. (See Step Six – Complete Application Packet).

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STEP THREE –OAG APPROVED SANE TRAINING COURSE

To be eligible for certification, an individual must complete an OAG approved SANE training course. The content for the classes must meet the specifications described in the OAG SANE Curriculum Requirements. This training course is the introduction to the role of a SANE. Individuals must complete a training course prior to submitting the application for certification.

Individuals may take either adult/adolescent or pediatric specific classes to be eligible for certification. There is no requirement that applicants take both an adult/adolescent and a pediatric class unless they are seeking a dual certification. The length of the training class is set by the provider and the classes may be taken in the order offered by the provider.

APPROVED TRAINING COURSES

Individuals may select training courses offered by the provider of their choice. However, to be eligible for certification, an individual must take a training course that is OAG approved. Contact the OAG SANE Administrator to determine if the selected training course has been approved by the OAG and for additional information regarding the approval process for other courses not currently approved by the OAG.

DOCUMENTING THE TRAINING COURSE

Applicants must document completion of the required training course by providing a copy of the course certificate. The OAG SANE Administrator may verify attendance at training courses by contacting the individual or the training provider or requesting additional information.

TIMEFRAME FOR TRAINING COURSE

All training requirements must be completed within two years of completing the training course. The OAG may allow an extension for extenuating circumstances if documentation is received from the SANE coordinator or medical director that an extension is needed. These may be approved on a case by case basis. Individuals who do not complete each of the requirements before the twoyear deadline and have not been granted an extension for extraordinary circumstances, must complete each of the requirements again, including the training course, to be considered for certification.

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PRIOR TRAINING

Individuals who have completed prior training equivalent to the training requirements within the last two years may request to waive this requirement. Applicants must provide documentation of the prior training to be considered for the waiver. Requests may be approved on a case-by-case basis. Contact the OAG SANE Administrator for more information.

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STEP FOUR –CLINICAL REQUIREMENTS

To be eligible for certification, an individual must complete the clinical requirements for the requested certification type to establish currency of practice. This includes basic requirements (pelvic and well-child examinations) and advanced requirements (sexual assault medical forensic examinations). Preceptors have the discretion of determining when the clinical requirements should begin – any time before, during or after the individual completes the training course. •

Table One: Basic Clinical Requirements CA-SANE CP-SANE / CA-CP SANE 10 Pelvic Examinations • 10 Pelvic Examinations • 20 Well-Child Examinations

Table Two: Advanced Clinical Requirements CA-SANE CP-SANE CA-CP SANE 8 Adult/Adolescent 10 Pediatric Sexual 18 Sexual Assault Sexual Assault Medical Assault Medical Forensic Medical Forensic Forensic Examinations Examinations Examinations • 6 Examinations must be • 6 examinations must be • 8 adult/adolescent acute with the use of an of the prepubescent examinations evidence kit patient o 6 exams must be acute • 2 of those may be Adult • 1 adolescent exam may o 2 exams may be Medical Forensic be Adult Medical simulations Examination Forensic Examination Simulations. Simulation. • 10 pediatric examinations o 6 exams must be of the prepubescent patient o 1 adolescent exam may be simulation

CONDUCTING THE EXAMINATION

All examinations must be supervised and signed off by a preceptor. Individuals seeking certification are responsible for scheduling each examination, obtaining the appropriate preceptor supervision, and utilizing fundamentals taught during the training course for sexual assault medical forensic examinations. OAG SANE CERTIFICATION GUIDE UPDATED AUGUST 6, 2020

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The OAG will count one observation examination for each category of the basic and advanced examinations. The remaining examinations must be completed with active participation from the applicant under the supervision of the preceptor. Individuals must work with the preceptor to determine the level of complexity for each examination. Information regarding the examinations is found below. Pelvic Examination • • • •

Visual inspection and palpation of the external structures of the adult/adolescent female genitalia (vulva) to assess for normalcy, disease processes, or trauma. Visual inspection with the use of a vaginal speculum inserted into the vagina allows for visual assessment of the vaginal vault and the cervix to assess for normalcy, disease processes, or trauma. Inspections must be performed on a patient who is not presenting with an acute complaint of sexual assault or abuse. Live medical models may be used for any or all of the required adult pelvic examinations. Well-Child Examination

•

Examination of a pediatric patient focusing on growth and development according to the age of the patient. o Cognitive o Linguistic o Neurological o Psychological o Appearance o Genitalia physiology according to maturity Examinations should be conducted on a variety of age groups to learn more about the different stages of growth and development. (Ages are approximate as growth and development varies with each individual child.) o Infant (birth – 1 year of age) o Toddler (1 – 3 years of age) o Pre-school child (3 – 6 years of age) o School-aged child (6 – 12 years of age) o Preadolescent child (12 – 13 years of age) o Adolescent child (13 – 17 years of age)

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Sexual Assault Medical Forensic Examination •

•

A specialized examination provided pursuant to Texas Government Code, Chapter 420 that uses an OAG-approved evidence collection kit and protocol. Note: It is understood that the evidence collection kit is only used when indicated. However, see requirements above for CA-SANE for the required number of adult examinations utilizing a kit. This examination encompasses the care and treatment of a patient who presents with a complaint of sexual assault – including a medical history for the purpose of diagnosis and treatment, head-to-toe examination to assess for trauma, detailed anogenital examination to assess for trauma, and collection of forensic evidence as indicated by history and findings. Adult Medical Forensic Examination Simulation

• • •

A simulated sexual assault medical forensic examination conducted on an adult patient actor. The exam must be completed in the same manner and utilizing the same clinical requirements as an acute sexual assault medical forensic examination. The examinations must be completed in the presence of a SANE and the SANE supervisor or coordinator and must be signed by a preceptor.

PRECEPTING THE EXAMINATION

All examinations must be supervised by a preceptor. A preceptor is an experienced health care professional or practitioner who provides guidance and expertise to individuals as they complete clinical requirements. Preceptors should be licensed health care professionals selected by a health care organization in its routine course of business to observe or precept individuals during the completion of clinical requirements. For basic clinical requirements, common preceptors include health care professionals with experience conducting pelvic or well-child examinations, such as RNs without forensic experience, physicians (MD or DO), advanced practice nurses/nurse practitioners (APN/NP), or physician assistants (PA). For advanced clinical requirements, common preceptors include health care professionals with experience conducting sexual assault medical forensic examinations such as SANEs with OAG or other national SANE certification, noncertified RNs with forensic experience, physicians (MD or DO), advanced practice nurses/nurse practitioners (APN/NP), or physician assistants (PA).

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The preceptor verifies that they personally observed the examination and the individual completed the examination with the required degree of complexity as required by the preceptor. For each examination type, the individual may count one examination that is observation only towards the clinical requirements for each examination category. To guide the preceptor in supervising these clinical requirements, the following are the purposes and goals for each clinical requirement. Pelvic Examination

• •

Purpose: To apply information learned during the SANE training about the anatomy and physiology of the adult/adolescent genitalia and develop basic examiner skills in a practical application. Goal: Prepare the individual to conduct an anogenital examination of an adult or adolescent patient who presents with a complaint of sexual assault. Well-Child Examination

•

Purpose: To apply the principles of normal pediatric (prepubescent and adolescent) growth and development, to include the anogenital region, learned during the SANE training and develop basic skills as an examiner in a practical application. Goal: Prepare the individual to conduct an examination of a pediatric patient who presents with a complaint of sexual assault or abuse. CA-SANE Sexual Assault Medical Forensic Examination

• •

Purpose: To build on the basic clinical skills learned conducting pelvic examinations and develop skills to evaluate and treat an adult or adolescent patient who presents with a complaint of sexual assault. Goal: Prepare the individual to conduct an examination of an adult or adolescent patient who presents with a complaint of sexual assault utilizing medical forensic standards of practice. CP-SANE Sexual Assault Medical Forensic Examination

• •

Purpose: To build on the basic clinical skills learned during the well-child and pelvic examinations and develop skills to evaluate and treat a pediatric patient who presents with a complaint or suspicion of sexual assault or abuse. Goal: Prepare the individual to conduct an examination of a pediatric patient who presents with a complaint of sexual assault or abuse utilizing medical forensic standards of practice.

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DOCUMENTING THE EXAMINATION

Applicants must document completion of the clinical requirements using the Clinical Requirement Form. (See Table Three). The Clinical Requirement Form is used for basic and advanced clinical requirements; however, the applicant may only include one examination type per form. To help with the review process, examinations should be listed in chronological order for each examination type. All forms must contain the signature of the preceptor to verify supervision of the examination. If the administrator is unable to determine that an exam was precepted it may not be counted without additional verification.

Applicants will need to make additional copies of the form to document all of the requirements. Applicants must include their name and examination type at the top of each form and provide the following information: • • • • •

Box 1 – Date the exam was conducted Box 2 – Preceptor licensure type (e.g., MD/DO, RN/LVN) Box 3 – Preceptor name (Printed) Box 4 – Preceptor signature Box 5 – Type of examination (only one type per form) and additional information as indicated (use of live model)

The OAG SANE Administrator may contact an applicant, an applicant’s SANE supervisor or coordinator, or the preceptor to resolve any questions regarding the examinations or to request additional information.

TIMEFRAME FOR CLINICAL REQUIREMENTS

All clinical requirements must be completed within two years of completing the training course. The OAG may allow an extension for extenuating circumstances if documentation is received from the SANE coordinator or medical director that an extension is needed. These may be approved on a case by case basis. Individuals who do not complete each of the requirements before the twoyear deadline and have not been granted an extension for extraordinary circumstances, must complete each of the requirements again, including the training course, to be considered for certification. Preceptors have the discretion of determining when the clinical requirements should begin – any time before, during, or after the individual completes the training course.

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PRIOR CLINICAL EXPERIENCE

Individuals who have prior clinical experience equivalent to the clinical requirements within the last two years may request to waive this requirement. For example, a nurse who works in a women’s clinic and completes pelvic exams as part of the nurse practice may request to waive the pelvic examinations. Applicants may only waive advanced clinical requirements if they can prove currency of practice within the last two years by providing documentation of the prior clinical experience. Requests may be approved on a case-by-case basis. Contact the OAG SANE Administrator for more information.

STEP FIVE –COURTROOM OBSERVATION

To be eligible for certification, an individual must complete the courtroom observation requirement – 12 hours of in person courtroom observation. To gain the most experience, individuals should attend cases related to sexual assault or other criminal proceedings that involve expert testimony. Courtroom observation for a traffic violation will not be accepted. Courtroom observation provides an introduction to the courtroom environment, as well as an opportunity to observe criminal justice proceedings and witness testimony. Although not a requirement, it is recommended that participants observe an entire trial if possible to see the entire process in action. Applicants seeking dual certification are only required to complete 12 hours total of courtroom observation.

DOCUMENTING COURTROOM OBSERVATION

Applicants must document completion of the courtroom observation requirements using the Courtroom Observation Form. Courtroom attendance must be verified by courtroom personnel as indicated by the courtroom personnel signature on the form or by the SANE Coordinator. When documenting courtroom attendance, the applicant should round the time up to the nearest quarter hour. It is recommended that courtroom observation begin after the student finishes the training course. Applicants may make additional copies of the form to document courtroom hour requirements. Include applicant name at the top of each form and provide the following information: • • •

Box 1 – Date and amount of time applicant observed the appropriate courtroom proceedings Box 2 – Courtroom personnel type (e.g., Bailiff, Defense Attorney, Prosecutor or staff) or SANE Coordinator Box 3 – Courtroom personnel or SANE Coordinator name (Printed)

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•

Box 4 – Courtroom personnel or SANE Coordinator signature

The OAG SANE Administrator may contact the applicant, an applicant’s SANE supervisor or coordinator, or the courtroom personnel to resolve any questions regarding the courtroom observation or to request additional information.

TIMEFRAME FOR COURTROOM OBSERVATION

All courtroom observation requirements must be completed within two years of completing the training course. The OAG may allow an extension for extenuating circumstances if documentation is received from the SANE coordinator or medical director that an extension is needed. These may be approved on a case by case basis. Individuals who do not complete each of the requirements before the two-year deadline and have not been granted an extension for extraordinary circumstances must complete each of the requirements again, including the training course, to be considered for certification.

PRIOR COURTROOM EXPERIENCE

Individuals who have prior courtroom experience within the last two years equivalent to the courtroom requirements - such as testifying or sitting on a jury – may request to waive this requirement. Applicants must provide documentation of prior courtroom experience within the last two years to be considered for the waiver. Requests may be approved on a case-by-case basis. Contact the OAG SANE Administrator for more information.

STEP SIX – COMPLETE APPLICATION PACKET

Applicants must provide sufficient information to the OAG regarding nursing qualifications, training, clinical requirements and courtroom observation before the OAG can make a determination regarding certification. Individuals must meet all the requirements and submit a complete application packet within two years of completing the training course, unless an extension for extraordinary circumstances has been granted, to be considered for certification. A complete application packet consists of: a. Certification Application b. Copy of Training Course certificate c. Clinical Requirement Form(s) d. Courtroom Observation Form(s) e. Verification Form (See Appendix 2- Complete Application Packet Checklist.)

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Applicants must retain a copy of the complete application packet throughout the application process. This includes all documents sent in support of the application. Applicants who receive certification must also retain a copy of the packet and supporting documentation throughout the certification period.

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CERTIFICATION APPLICATION

The OAG will review and verify the information provided in the application to determine eligibility for certification. The OAG will use information from the application to contact applicants if additional information is needed to process the application.

NOTE: The information provided in the application and in the supporting documentation may be subject to disclosure under the Texas Public Information Act. (See Texas Government Code Chapter 552).

SUPPORTING DOCUMENTATION

Applicants must provide documentation as described in this guide to demonstrate completion of all the requirements for certification – training, clinical requirements, and courtroom observations – as part of the application for certification. This includes: • • •

Certificate of Training Completion Clinical Requirement Form(s) Courtroom Observation Form(s)

Applicants must also submit a Verification Form signed by the applicant as part of the packet. This form documents that the applicant meets the nursing qualifications, has provided accurate information, and has completed all other requirements for certification as required by the OAG.

INCOMPLETE APPLICATION PACKETS

All forms should be filled out completely and accurately. Applicants who do not submit a complete application packet, as described above, or who have not completed all the requirements prior to submission will not be considered for certification.

Applicants will be provided written notification if the application is incomplete. Applicants who receive this notification may contact the OAG SANE Administrator for more information on providing the missing information.

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SUBMITTING A COMPLETE APPLICATION PACKET

The complete application packet can be submitted via: 1. Email: SAPCS@oag.texas.gov 2. Fax: (512) 370-9801 3. Mail: Office of the Attorney General Crime Victim Services Division SAPCS SANE Program P.O. BOX 12548 MC 011-1 Austin, TX 78711-2548

For security purposes, the OAG cannot accept applications submitted by walkin, hand delivery, or same day courier services. The OAG accepts no responsibility for delays in mailing. Applicants are strongly advised to allow for and anticipate any delays by sending the application as early as possible.

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APPLICATION REVIEW PROCESS

The OAG or any agent or representative of the office has the right to review, investigate and verify the information provided by applicants seeking certification. Providing false, misleading, or intentionally incomplete information may result in the application being denied or the revocation of an OAG SANE Certification or other action as required by law. The OAG will review the application and supporting documentation to verify that the applicant completed the certification requirements and that the forms have the proper signatures.

During the review and verification process, the OAG SANE Administrator may contact an applicant to resolve questions regarding the submission and may request additional information. In addition, the OAG may contact other organizations or individuals with information relating to the application as needed, including an applicant’s SANE supervisor or coordinator. The OAG will notify applicants in writing of its decision regarding certification. Applicants approved for certification will receive an OAG certificate, information regarding maintaining certification, and other program information. Applicants denied certification will receive information regarding the appeals process should the applicant wish to appeal the OAG decision. Applicants who have been denied may reapply.

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ONCE CERTIFIED

All SANE Certifications are valid for two years unless there has been an adverse action taken by the OAG. OAG SANEs must continue to maintain nursing licensure during the certification period to maintain eligibility.

Participants in the SANE Certification program are subject to audit by the OAG and must maintain all information and documentation submitted in support of the certification throughout the duration of the certification period.

RENEWING CERTIFICATION

To renew certification, refer to the OAG SANE Certification Application Renewal Guide. In order to be considered for renewal, the application must be received before the current certification expires.

SUSPENSION, PROBATION, OR DECERTIFICATION

An OAG SANE Certification is subject to suspension, probation, or decertification in cases where the individual no longer meets the eligibility requirements or the individual submits fraudulent information to the OAG.

Individuals seeking certification and currently certified SANEs must notify the OAG about pending actions that would impact their nursing licensure. Written notice must be provided within five calendar days of the event or of receiving notice from the BON of a pending disciplinary matter. Information must also be provided to the OAG regarding the outcome of any enforcement actions or investigations surrounding the licensure. The OAG may also investigate any information received about an OAG SANE in making a determination on the certification. Failing to report a possible change in eligibility may result in suspension or revocation of an OAG SANE Certification.

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APPEALS PROCESS

Individuals will be notified in writing by certified mail of any decision to deny, decertify, suspend or probate a certification. The notice will contain the specific facts or conduct alleged and the basis for the action. The notice will also include information regarding available administrative remedies. The OAG may request additional information needed to overturn the decision.

Individuals who disagree with the decision may appeal by providing a written request to the OAG to reconsider the decision. The request must provide information regarding why the individual disagrees with the OAG’s determination.

The written request for reconsideration must be provided to the OAG within 30 days of the date of the notification. The OAG will send written notice that the appeal has been received and information regarding the next steps in the appeals process. Individuals may send the OAG any additional information to support the request for reconsideration within 30 days. A hearing officer from the Crime Victim Services Division will review the appeal, as well as any additional evidence provided by the individual. The hearing officer will make a final decision regarding the certification after reviewing the reconsideration request and any additional information provided. Once a decision has been made, the OAG will provide written notification of that decision within 10 business days.

Appeals may be denied if an individual fails to submit information within the time limits. To appeal a decision made by the OAG, send the appeal request in writing by mail or fax. MAIL: Office of the Attorney General Crime Victim Services Division Appeals and Legal Counsel P.O. BOX 12548 MC 011-1 Austin, TX 78711-2548 Fax: 512-370-9435

For questions regarding the appeals process, contact the Appeals and Legal Counsel Section at (512)-936-1599.

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CONTACT INFORMATION

For questions regarding this information or at any time during the application process, contact the OAG SANE Program Administrator at: 1. 2. 3. 4.

Phone: 512-475-4881 Email: SAPCS@oag.texas.gov Fax: (512) 370-9801 Mail: Office of the Attorney General Crime Victim Services Division SAPCS SANE Program P.O. BOX 12548 MC 011-1 Austin, TX 78711-2548

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APPENDIX 1 – TERMS

The following terms, when used in this Guide and for the purpose of implementing the OAG SANE Certification, shall have the following meanings:

Acute Sexual Assault Medical Forensic Examination – An examination conducted on a patient who presents with an acute complaint of sexual assault within 120 hours of occurrence. Adolescent Patient – A person who is under 18 years of age and at least a stage three of Tanner Classification of Sexual Maturity (onset of menses in the female). Adult Patient – A person who is 18 years of age or older.

Adult Medical Forensic Examination Simulation – A simulated sexual assault medical forensic examination conducted on an adult patient actor. The exam must be completed in the same manner and utilizing the same clinical requirements as an acute sexual assault medical forensic examination. The examinations must be completed in the presence of a SANE and/or the SANE supervisor or coordinator and must be signed by a preceptor. CA-SANE – A Certified Adult/Adolescent SANE who demonstrates a currency of practice in the care and treatment of adult and adolescent patients who present with a complaint of sexual assault or abuse.

Clinical Requirements – Examinations required by the OAG to establish currency of practice. Examinations include pelvic examinations, well-child examinations, and sexual assault medical forensic examinations. Clinical requirements are broken into two levels: basic and advanced. Courtroom Observation – In-person observation required to develop an understanding of the legal system and what is required of a SANE during courtroom proceedings – including testimony.

Courtroom Personnel – Individuals employed at or by a court who can verify courtroom attendance, including but not limited to bailiffs, prosecuting attorneys or staff, court clerk, or judicial staff. CP-SANE - A Certified Pediatric SANE who demonstrates a currency of practice in the care and treatment of pediatric patients who present with the complaint of sexual assault or abuse.

Currency of Practice –Maintaining experience and practical skills for nursing care and treatment of a patient who presents with a complaint of sexual assault. This includes clinical requirements and continuing education.

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OAG SANE Certification Application – The application used by applicants who do not hold a current OAG SANE Certification. Non-Acute Sexual Assault Medical Forensic Examination – An examination conducted on a patient with a delayed complaint of sexual assault beyond 120 hours.

Office of the Attorney General – The Texas Attorney General. (Also referred to as the OAG). OAG Approved SANE Training Course – A training course that provides instruction on nursing care and treatment of a patient with a complaint of sexual assault that meets the minimum standards set by the OAG and that has been formally approved by the OAG. (Also referred to as a training course). OAG SANE Curriculum Requirements – The minimum standards for training topics for an OAG Approved SANE Training Course. The OAG shall publish guidelines for adult/adolescent and pediatric classes. OAG Sexual Assault Nurse Examiner – A person who holds an OAG SANE Certification. (Also referred to as an OAG SANE).

OAG SANE Certification – The formal process by which the OAG reviews and approves requests for OAG SANE Certification from applicants who meet the certification requirements established by the OAG. Certification is based on currency of practice requirements. Certified individuals receive a Currency of Practice Certification. (Also referred to as certification).

OAG SANE Certification Renewal – The process by which the OAG reviews submitted documentation by applicants who currently hold certification from the OAG and are seeking to continue that certification.

OAG SANE Program Administrator – the person employed by the OAG to oversee the administration of the OAG SANE Certification process. Pediatric Patient - A person who is under 18 years of age.

Pelvic Examination – Visual inspection and palpation of the external structures of the adult/adolescent female genitalia (vulva) to assess for normalcy, disease processes or trauma. A visual inspection with the use of a vaginal speculum inserted into the vagina allows for visual assessment of the vaginal vault and the cervix to assess for normalcy, disease processes and/or trauma. Inspections must be performed on a patient who is not presenting with an acute complaint of sexual assault or abuse. Preceptor – An experienced health care professional or practitioner who provides guidance and expertise to individuals as they complete clinical requirements. Preceptors should be licensed health care professionals selected by a health care OAG SANE CERTIFICATION GUIDE UPDATED AUGUST 6, 2020

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organization in its routine course of business to observe or precept individuals during the completion of clinical requirements. •

•

For basic clinical requirements, common preceptors include health care professionals with experience conducting pelvic or well-child examinations, such as RNs without forensic experience, physicians (MD or DO), advanced practice nurses/nurse practitioners (APN/NP), or physician assistants (PA). For advanced clinical requirements, common preceptors include health care professionals with experience conducting sexual assault medical forensic medical examinations such as SANEs with OAG or other national SANE Certification, non-certified RNs with forensic experience, physicians (MD or DO), advanced practice nurses/nurse practitioners (APN/NP), or physician assistants (PA).

Prepubescent Patient– A person who is under 18 years of age, and either a female who is pre-menarcheal or a male who is Tanner Classification of Sexual Maturity Stage two or less. Registered Nurse –A person who holds an active, unencumbered professional nursing license as a registered nurse issued by the Texas Board of Nursing, including an RN who practices in Texas pursuant to any multistate licensure privilege. (Also referred to as RN).

Sexual Assault Medical Forensic Examination – A specialized examination provided pursuant to Texas Government Code, Chapter 420 that uses an OAGapproved evidence collection kit and protocol. This examination encompasses the care and treatment of a patient who presents with a complaint of sexual assault – including a medical history for the purpose of diagnosis and treatment, head-to-toe examination to assess for trauma, detailed anogenital examination to assess for trauma, and collection of forensic evidence as indicated by history and findings.

Sexual Assault Nurse Examiner – A nurse who conducts sexual assault forensic medical examinations but does not hold an OAG SANE Certification. (Also referred to as a SANE).

Texas Board of Nursing (BON) – The Texas state agency responsible for regulating the practice of professional nursing, pursuant to the Nursing Practice Act, Texas Occupations Code. Texas Evidence Collection Protocol – As authorized by Texas Government Code, Chapter 420, the Texas Evidence Collection Protocol provides recommendations to medical, legal, law enforcement, advocacy, and forensic science professionals on the OAG SANE CERTIFICATION GUIDE UPDATED AUGUST 6, 2020

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identification, collection and preservation of physical evidence and the minimization of physical and psychological trauma for survivors of sexual assault. Well-Child Examination – Examination of a pediatric patient focusing on growth and development according to the age of the patient: • Cognitive • Linguistic • Neurological • Psychological • Appearance • Genitalia physiology according to maturity

Examinations should be conducted on a variety of age groups to learn more about the stages of growth and development. (Ages are approximate as growth and development varies with each individual child.) • Infant (birth – 1 year of age) • Toddler (1 – 3 years of age) • Preschool child (3 – 6 years of age) • School-aged child (6 – 12 years of age) • Preadolescent child (12 – 13 years of age) • Adolescent child (13 – 17 years of age)

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APPENDIX 2 – COMPLETE APPLICATION PACKET CHECKLIST

1. Nursing Licensure ☐ Hold a current and unencumbered license with the Texas Board of Nursing 2. Nursing Experience ☐ Have a minimum of two years direct contact with patients (active practice) as an RN within the last five years at the time the application for certification is submitted 3. Training Requirements ☐ Complete an OAG approved Training Course 4. Clinical Requirements a. CA-SANE i. ☐ 10 Pelvic Examinations ii. ☐ 8 Sexual Assault Medical Forensic Examinations b. CP-SANE i. ☐ 10 Pelvic Examinations ii. ☐ 20 Well-Child Examinations iii. ☐ 10 Sexual Assault Medical Forensic Examinations c. CA-CP SANE i. ☐ 10 Pelvic Examinations ii. ☐ 20 Well-Child Examinations iii. ☐ 18 Sexual Assault Medical Forensic Examinations 1. 8 focused on adult/adolescent patients 2. 10 focused on pediatric patients 5. Courtroom Requirements ☐ 12 hours of courtroom observation 6. Complete Application Packet a. ☐ Certification Application b. ☐ Copy of Training Course Certificate c. ☐ Clinical Requirement Form(s) d. ☐ Courtroom Observation Form(s) e. ☐ Verification Form

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Texas Criminal Defense Lawyers Association

Cross-Examination Seminar March 4-5, 2021 Livestream

Topic: Cross-Examining the Arresting Officer in DWIs Speaker:

Grant Scheiner

2211 Norfolk St Ste 735 Houston, TX 77098-4062 (713) 783-8998 Phone scheinerlaw@gmail.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

CROSS-EXAMINATION OF ARRESTING OFFICER IN A DWI CASE

CROSS-EXAMINATION SEMINAR Texas Criminal Defense Lawyers Association March 4-5, 2021

Written and Presented by: GRANT M. SCHEINER Scheiner Law Group, P.C. 2211 Norfolk, Suite 735 Houston, Texas 77098 713.783.8998 grant@scheinerlaw.com

Grant Scheiner Scheiner Law Group, P.C. 2211 Norfolk, Suite 735 Houston, Texas 77098 (713) 783-8998 grant@scheinerlaw.com Grant Scheiner is President of TCDLA and Managing Attorney of Scheiner Law Group, P.C. in Houston. He practices criminal defense in state and federal courts and is Board-Certified in Criminal Law. Grant is a Life Fellow of the Texas Bar Foundation, a Life Member of NACDL, and a Board Member of the Texas Board of Legal Specialization. Grant is a frequent author and lecturer on a variety of criminal law topics, including cross-examination, direct-examination, DWI defense, pre-trial motions, search and seizure, sexual assault defense, and technology in the courtroom. Grant and his Firm, Scheiner Law Group, P.C., routinely appear on various lists, including "Houston's Top Lawyers" (H-Texas Magazine), "Texas Super Lawyers" (Criminal Law, DWI, White Collar Defense) (Thomson Reuters publication), and U.S. News & World Report (Tier 1) (Woodard/White d/b/a “Best Lawyers”).

Cross-Examination of Arresting Officer in a DWI Case

TABLE OF CONTENTS I.

GETTING ORGANIZED WITH THE “CHAPTER METHOD” ..................................... …………………

II.

BE POLITE, PATIENT AND PERSISTENT ......................................................................................................... 2

III. PREVIEW EACH TOPIC ....................................................................................................................................... 2 IV. ASK SHORT QUESTIONS (I.E., MAKE STATEMENTS) ................................................................................. 3 V.

ASK LEADING QUESTIONS! .............................................................................................................................. 3

APPENDIX: DWI CROSS-EXAMINATION EXAMPLES .......................................................................... 5-20

Cross-Examination of Arresting Officer in a DWI Case

you want is to have to draw “insert arrows” or make notes in your margins when you are 30 seconds away from beginning your cross-examination. You should start each witness with a strong chapter. Do not begin by addressing things that the prosecutor just covered during direct examination. Your first chapter should be planned, scripted and a sure-fire winner that will capture the jury’s attention. Finish each cross-examination with a strong chapter as well. As with your first chapter, the final chapter should be planned, scripted and a topic that you know will go over well with the jury. For example, if your theory is the police never gave your client a fair chance to prove he was innocent, end with how they never told your client he had a right to an independent blood test from a doctor of his own choosing. If your primary theory is the field sobriety tests were “designed for failure,” end with a hypothetical about how a suspect can do the tests almost perfectly but still “fail” under the peculiar scoring system of the National Highway and Traffic Safety Administration (NHTSA). (You will find an example of this method at the end of the paper.) Whenever you have three or more cross- examination chapters for a witness, select a chapter that you consider strong but do not plan to start or finish with. Label this chapter “the cork.” You should write “the cork” at the top of your page so that you will not forget what or where it is. The cork, quite simply, is your go-to chapter. It is the chapter you will use in the event you get into trouble during cross-examination and want to quickly reestablish command over the witness. If you do not get into trouble and do not need to use the cork, you can always use it as the second-to-last chapter in your sequence. That way you’ll end cross- examination with two strong chapters. Keep in mind that jurors often remember what they hear first and last. The cork, followed by a strong and scripted final chapter, can make for a very powerful finish. Deciding which chapters should go first, last and somewhere in the middle will depend upon your theory of the case and how comfortable you are with the material. Some defense lawyers are comfortable with the NHTSA material and prefer to start or finish with it. Others like to use it as their cork. Some prefer to bury NHTSA material, if they use it all, in the middle of their cross-examination sequence, because they view it as risky or not particularly important for a given witness. In any event you should pick a logical sequence that flows from one chapter to the next but avoids being chronological. Prosecutors usually direct their witnesses with a chronological recitation of the stop and arrest. Do not go chronologically in your cross-examination as it tends to reinforce the state’s version of the case.

CROSS-EXAMINATION OF THE ARRESTING OFFICER, INCLUDING NHTSA, IN A DWI CASE I.

GETTING ORGANIZED WITH THE “CHAPTER METHOD” The first task in preparing for DWI crossexamination is to get organized. It can be daunting. Every state witness presents a unique challenge. Most state witnesses (whether you are dealing with an arresting officer, intoxilyzer operator, technical supervisor, nurse, phlebotomist or a laboratory technician) will have at least some expertise in a specific area. Many of the state’s witnesses will have more courtroom experience than you. That is particularly true if you are dealing with a DWI “task force” officer who specializes in DWI investigation and arrest. It is important for you to be well-prepared, organized and ready to present your theory of the case in a logical and interesting way. Nearly every state witness will present multiple opportunities for you to prove your theory of the case. The best way to organize cross-examination material is topically. Think of each topic as a separate “chapter” in a story that you are telling to the jury. For example, if your theory of the case is that the police confused or misinterpreted your client’s innocent behavior with symptoms of intoxication, your goal should be to show the jury how each behavioral symptom was consistent with something other than intoxication. At the end of this paper, you will find several examples of how to promote common DWI defenses through crossexamination. You should begin by selecting three to seven chapters for each witness. Avoid waiving cross-examination and asking no questions of a state witness, unless it is absolutely clear the witness hasn’t helped the state’s case and you don’t need the witness’ testimony to help advance your defensive theory. Minor witnesses (such as police station video operators) should be crossexamined lightly, unless you have reason to believe the witness is an “easy mark” or might contradict the testimony of an important state witness. You should cross-examine the state’s major witnesses more aggressively, albeit politely. In some instances, you can destroy the state’s case by toppling the arresting officer. Each cross-examination chapter should be listed on a separate page with your questions underneath the heading. It is OK if you can’t fit all of your questions on a single page. Just make sure the last question for any given chapter is the last question on the page. Keeping your chapters separate from one another will keep you organized and allow you to easily add new material during the prosecutor’s direct examination. The last thing 1

Cross-Examination of Arresting Officer in a DWI Case

instruct the witness to answer. Even the most stateoriented judge doesn’t want to sit through a three-week DWI trial. In some instances, a witness may evade your question without trying to do so. Listen carefully to each response. Don’t settle for verbally imprecise answers such as “uhhuh” or a non-verbal response such as a head nod. Court reporters sometimes sit with their backs to the witnesses and don’t take down non- verbal responses. Even when you get a verbal response, listen carefully to see if you need to follow up. A witness might give you an implausible answer that needs to be explored with a mirrored follow-up:

II. BE POLITE, PATIENT AND PERSISTENT Try to maintain your composure during crossexamination. Even when the prosecutor is nagging you with groundless objections and the judge appears to be on the state’s side, you should remain polite and professional. The jury will lose your message if you appear to be rattled or, worse, become rude with a state witness. In addition to maintaining professional decorum, you should be patient and persistent in your crossexamination. If a witness is evasive you will probably get what you want if you follow a few simple tips. First, if the witness refuses to answer your question right away do not go to the judge for help. Try asking the question a second time:

Lawyer: Standing on a broken ankle could be painful, wouldn’t you agree?

Lawyer: Cigarette smoke can cause bloodshot eyes?

Cop: I guess.

Cop: That’s not why your client had bloodshot eyes.

Lawyer (mirroring the witness’ answer): You guess?

Lawyer (repeating with emphasis): Cigarette smoke can cause bloodshot eyes, correct?

Cop: Well, yes. I suppose that could be painful.

Cop: I suppose.

If you are patient and persistent you will usually get the answers you need. Once you have trained a witness to give you yes and no responses, you will find it easier and easier to cross-examine the witness. In fact you might encounter witnesses who give up early on because they correctly conclude that it is futile to resist you.

A witness that fights you on obvious points will soon lose credibility with the jury. If a state witness has the audacity to duck your question after you’ve repeated it with emphasis, go ahead and suggest the answer. (Nod your head as you ask the question, if you want a “yes” answer; shake your head if you want a “no.”) For example:

III. PREVIEW EACH TOPIC Always let the jury know when you are changing topics and beginning a new chapter in your crossexamination. There are several ways to do this. One way is to simply tell the witness and jury where you are headed next:

Lawyer: Cigarette smoke can cause bloodshot eyes? Cop: That’s not why your client had bloodshot eyes.

Lawyer: Officer, I’m going to ask you some questions about {name of client}’s driving. Do you understand?

Lawyer (repeating with emphasis): Cigarette smoke can cause bloodshot eyes, correct?

Cop: Yes.

Cop: A lot of things can cause bloodshot eyes. Intoxication can cause bloodshot eyes.

Another way to preview a new topic is to announce it to the witness and then follow up with a question. You might say, “OK, let’s move on to something else. You offered {name of client} a blood test, correct?” Previewing topics will help keep your jury awake and focused even during the most methodical portions of your cross-examination.

Lawyer (repeating with emphasis and nodding head): So your answer is yes. Cigarette smoke can cause bloodshot eyes? Cop: Yes. Very few witnesses will continue to refuse to answer your question. If a witness repeatedly refuses to answer obvious questions, the judge will usually intervene and 2

Cross-Examination of Arresting Officer in a DWI Case

or derail your momentum. Get in the habit of asking leading questions during cross-examination so that it becomes second nature to you. Following are some specific examples of DWI crossexamination using the concepts discussed above. Feel free to use these in trial and let me hear from you when those acquittals begin rolling in. If you have a war story or a new “chapter” that relies on the concepts discussed above, please let me know at: grant@scheinerlaw.com

IV. ASK SHORT QUESTIONS (I.E., MAKE STATEMENTS) Jurors absorb information better in small bits. You should ask short questions whenever possible. The shorter your questions, the shorter the witness’ responses will be. In reality most of your questions will resemble declarative statements rather than questions. You don’t have to end every, single declarative statement with “correct” or “isn’t that true” in order to ask a leading question. Sprinkle in a few “corrects?” and then slip into a pattern of making declarative statements to which a witness must either agree or disagree. For example: Lawyer: You claim you smelled alcohol on {name of client} ’s breath, correct? Cop: Yes. Lawyer: The smell of alcohol doesn’t tell you what type of alcohol was consumed? Cop: No, sir. Lawyer: The smell of alcohol doesn’t tell you when it was consumed? Cop: No, sir. Lawyer: Doesn’t tell you where it was consumed? Cop: No, sir. Lawyer: Whether it was mixed with food? Cop: No, sir. Lawyer: How much food? Cop: No, sir. Lawyer: What kind of food? Cop: No, sir. Lawyer: It certainly doesn’t tell you what a person’s tolerance is for alcohol? Cop: No. If the prosecutor objects, tell the court that you are asking questions by setting forth propositions to which the witness may agree or disagree. If the court sustains the objection, add a few more “correct”and “isn’t that true” appendages to your questions and then gradually slip back into the pattern of making declarative statements. The best cross-examinations are essentially arguments to the jury. The witness’ job is to get on board, get out of the way or get run over. V. ASK LEADING QUESTIONS! The most common mistakes that trial lawyers make include asking too many leading questions in directexamination and too few leading questions in crossexamination. For beginning lawyers, there is almost no excuse for asking open-ended questions of an adverse witness. Even when you do know the answer to a question, asking it in a non-leading form is likely to generate a lengthy explanation that could hurt your case 3

Cross-Examination of the Arresting Officer in a DWI Case

APPENDIX DWI CROSS-EXAMINATION EXAMPLES 1. One Leg Stand {Visual cross-examination using easel pad or chalkboard to illustrate key points.} Lawyer: I’m going to ask you some questions about the one leg stand test. Do you understand? Cop: Certainly. Lawyer: You have a suspect stand on one leg, for 30 seconds, correct? Cop: That’s correct. Lawyer: And you look for clues of intoxication? Cop: Yes. Lawyer: A total of four possible clues? Cop: Correct. Lawyer (enumerating with fingers): Swaying? Cop: Yes. Lawyer: Using arms for balance? Cop: Yes. Lawyer: Hopping? Cop: Yes. Lawyer: Dropping foot? Cop: Yes. Lawyer: When you see one of these things happen, you count that as a clue? Cop: That’s correct. Lawyer {very nicely}: And if you notice two or more of these so-called clues, it’s your belief the person is probably intoxicated? Cop: To me that would indicate he had lost his faculties. Lawyer: That he had failed the test? 5

Cross-Examination of the Arresting Officer in a DWI Case

Cop: Yes, sir. Lawyer: So, if a person drops his foot once during a 30-second test, that’s a clue? Cop: Yes, that’s correct. Lawyer: And if a person raises his arms just once during a 30-second test, that’s a clue? Cop: Yes, sir. Lawyer: In fact he doesn’t even need to raise his arms all the way. Just six inches away from his body, correct? Cop: Yes, sir. Lawyer: That’s a clue? Cop: Yes, sir. Lawyer (using easel pad): So, let me see if I understand this correctly ... Perform

Seconds

Sway

Drop Foot

Use Arms for Balance

Hop

118

120

Total:

Equals an “F” !! Lawyer: According to your scoring, that person would get an “F.” Cop: To me that indicates a loss of faculties. Lawyer: Officer, where did you go to high school? Cop: Pasadena High School in Pasadena. Lawyer: In high school, did you take any tests in which 118 out of 120 was considered a failure? Cop: Well, no ... 6

Cross-Examination of the Arresting Officer in a DWI Case

Lawyer: But that’s the scoring system you use in your DWI arrests, correct? Cop: That’s the way I was trained to score it. Lawyer (suggesting an answer, after witness is non-responsive): Yes? Cop: Yes. Lawyer: And that’s the scoring system that you used the night {Name of client} was arrested? Cop: Yes.

Cross-Examination of the Arresting Officer in a DWI Case

2. Good Driving {Emphasize client’s good driving in cases where only traffic infraction is speeding, expired inspection sticker or some other “non-drunk” driving.} Lawyer: I’m going to ask you some questions about {name of client}’s driving. Alright? Cop: Yes. Lawyer: You have been trained to look for certain types of driving that might indicate a person is intoxicated, correct? Cop: Yes, that’s correct. Lawyer: These are called driving cues? Cop: Correct Lawyer: They’re covered in Chapter 5 of your NHTSA Student Manual, entitled, Vehicle in Motion? Cop: I believe so. Lawyer: Among other things, you look to see if a vehicle is swerving, drifting or weaving, correct? Cop: Correct. Lawyer: Because those are some of the typical cues that a driver might be intoxicated, correct? Cop: Correct. Lawyer: {Name of client} wasn’t swerving, was he? Cop: Not that I noticed. Lawyer: He wasn’t drifting? Cop: Not that I noticed. Lawyer: Wasn’t weaving? Cop: No, sir. Lawyer: Wasn’t straddling the center or any lane marker? Cop: {Shakes head}. Lawyer (following up, after witness gives a non-verbal response): No? Cop: No. 8

Cross-Examination of the Arresting Officer in a DWI Case

Lawyer: {Name of client} didn’t strike or almost strike another vehicle, did he? Cop: No. Lawyer: He didn’t follow any other vehicle too closely? Cop: Not that I noticed. Lawyer: He didn’t brake erratically, as intoxicated drivers sometimes do? Cop: No. Lawyer: Didn’t drive into opposing traffic? Cop: No. Lawyer: Didn’t drive with his headlights off? Cop: No. Lawyer: Because, driving with your headlights off can be considered a cue of intoxication? Cop: Sometimes. Lawyer: That’s one of the things you’re trained to for? Cop: Yes. Lawyer: But {name of client} ’s headlights were on and his equipment seemed OK? Cop: As I recall, yes. Lawyer: And when you put on your overhead flashers, he pulled over as he was supposed to? Cop: I suppose. Lawyer: He didn’t try and run from you? Cop: No, sir. Lawyer: Never attempted to flee? Cop: No, sir.

Cross-Examination of the Arresting Officer in a DWI Case

3. Symptom Elimination {Explain client’s alleged symptoms of intoxication.} Lawyer: Let’s talk for a moment about some of the things that caused you to believe {name of client} was intoxicated, OK? Cop: Yes, certainly. Lawyer: You claim you smelled alcohol on {name of client} ’s breath? Cop: A strong odor. Lawyer (“looping” the witness’ non-responsive answer into next question): Well, the smell of alcohol – regardless of whether you believe it was strong or moderate – doesn’t tell you what type of alcohol was consumed? Cop: What specific type? No, sir. Lawyer: The smell of alcohol doesn’t tell you when it was consumed? Cop: No, sir. Lawyer: Doesn’t tell you where it was consumed? Cop: No, sir. Lawyer: Whether it was mixed with food? Cop: No. Lawyer: How much food? Cop: No. Lawyer: What kind of food? Cop: No. Lawyer: It doesn’t tell you what a person’s tolerance is for alcohol? Cop: No, sir. Lawyer: It doesn’t even tell you whether a person is intoxicated? Cop: By itself, no.

Cross-Examination of the Arresting Officer in a DWI Case

Lawyer: All it tells is the person had something to drink. Cop: That’s correct. Lawyer: Now, you also claim that {name of client} had bloodshot eyes? Cop: Yes. Lawyer: Bloodshot eyes could be caused by things other than intoxication? Cop: Absolutely. Lawyer: A person could be tired? Cop: Yes. Lawyer: Being tired can cause a person to have bloodshot eyes? Cop: Yes. Lawyer: And I think you mentioned that you pulled {name of client} over at 2:20 a.m., correct? Cop: Yes. Lawyer: You would expect some people to be tired at 2:20 a.m., wouldn’t you? Cop: I suppose. Lawyer: A person could also have bloodshot eyes because of cigarette smoke, correct? Cop: Correct. Lawyer: Bars, clubs and restaurants often have cigarette smoke, don’t they? Cop: Of course. Lawyer: And if I am not mistaken, {name of client} told you that he had just left {name of bar}, correct? Cop: Yes. Lawyer: A lot of things can cause bloodshot eyes, isn’t that true? Cop: Yes, that’s true. Lawyer: A person living in {name of any Texas city} could suffer from allergies? Cop: Correct. 11

Cross-Examination of the Arresting Officer in a DWI Case

Lawyer: Allergies can cause a person’s eyes to be bloodshot and even watery, correct? Cop: Correct. Lawyer: And I think you mentioned that {client}’s eyes were bloodshot as well as watery? Cop: That’s correct.

Cross-Examination of the Arresting Officer in a DWI Case

4. Evidence of Sobriety (assuming you can prove via police report, video, ALR audio recording or ALR transcript).

Lawyer: Officer, I’m going to ask you some questions about {name of client}’s appearance and behavior. Do you know what I mean? Cop: Sure. Lawyer: When you pulled {client} over, he stopped on the shoulder of the road, correct? Cop: Correct. Lawyer: You got out of your patrol car? Cop: Yes. Lawyer: You walked over to {client} ’s truck? Cop: Yes. Lawyer: He kept his hands on the steering wheel? Cop: Yes. Lawyer: Didn’t make any sudden movements? Cop: No, sir. Lawyer: And you asked him to roll down his window? Cop: Yes, sir. Lawyer: He followed you instructions and did that? Cop: Yes, sir. Lawyer: He rolled down his window for you? Cop: Yes, sir. Lawyer: You asked him for driver’s license and proof of insurance? Cop: That’s what I usually do. Lawyer (repeating question when the answer is non-responsive): You asked him for his driver’s license and proof of insurance? Cop: Yes, sir. 13

Cross-Examination of the Arresting Officer in a DWI Case

Lawyer: Sometimes an intoxicated driver will have difficulty finding a driver’s license or proof of insurance? Cop: Sometimes. Lawyer: Sometimes they’ll fumble with it or drop it? Cop: That can happen, yes. Lawyer: But {client} was able to give you those things without any fumbling or difficulty, correct? Cop: That’s correct. Lawyer: You asked {client} to step out of his truck? Cop: Yes. Lawyer: Sometimes an intoxicated driver will stumble getting out his vehicle? Cop: Sometimes. Lawyer: But {client} didn’t stumble? Cop: No, sir. Lawyer: He got out of his truck with absolutely no difficulty? Cop: I think so. Lawyer (“mirroring” witness’ non-committal answer): You think so? Cop: I didn’t notice any difficulty. Lawyer: Then you asked him to walk to the back of his truck? Cop: Yes, sir. Lawyer: And he did it? Cop: Yes. Lawyer: Without difficulty? Cop: I didn’t notice any problem. Lawyer: He didn’t hold onto the side of the truck for balance? Cop: No, sir. Lawyer: Intoxicated drivers sometimes hold onto their trucks or cars for balance? 14

Cross-Examination of the Arresting Officer in a DWI Case

Cop: Sometimes. Lawyer: But {client} didn’t do that? Cop: No, sir. Lawyer: He just walked to the back of his truck in a normal way? Cop: Yes.

Cross-Examination of the Arresting Officer in a DWI Case

5. Roadside versus Station Video. (Distinguish between a bad roadside video and a good station video). Lawyer: I’m going to ask you some questions about the conditions where you gave {name of client} his field sobriety tests. Do you understand? Cop: Yes. Lawyer: As a general rule, you want your tests to happen under the best, possible conditions? Cop: Whenever possible. Lawyer: Good conditions are more fair to the person who has to do the tests? Cop: I would think so. Lawyer: And good conditions probably give you the best chance of getting an accurate result? Cop: I would think so. Lawyer: In this case there were two sets of balancing tests given to {name of client}, correct? Cop: Correct. Lawyer: One set of tests was given on the roadside? Cop: Correct. Lawyer: And another set was given at the police station? Cop: Correct. Lawyer: Now, if we were looking for a level surface to do these tests, you would be more likely to find it at the police station than on the side of the road, correct? Cop: In general, yes. Lawyer: And if we were looking for the most constant lighting, you would be more likely to find it at the police station than on the side of the road? Cop: Correct. Lawyer: The temperature would probably be more constant at the police station? Cop: I would think. Lawyer: And you wouldn’t expect to have any wind [if applicable] or precipitation [if applicable] at the police station? 16

Cross-Examination of the Arresting Officer in a DWI Case

Cop: No, sir. Lawyer: You wouldn’t expect there to be any traffic noise at the police station? Cop: No, sir.

Cross-Examination of the Arresting Officer in a DWI Case

6. “Normal” Faculties. (Emphasize that the arresting officer doesn’t know what’s normal for client). Lawyer: Officer, I’m going to ask you some questions about your belief that {name of client} had lost his normal mental and physical faculties, OK? Cop: Yes. Lawyer: As we’ve talked about, you asked {client} to perform certain tasks, correct? Cop: Correct. Lawyer: Some of the tasks were mental? Cop: Yes. Lawyer: Some were physical? Cop: Yes. Lawyer: Several of the tasks were both mental and physical at the same time? Cop: Yes. Lawyer: For example, tilting your head back and estimating 30 seconds is both a mental and physical task? Cop: That’s correct. Lawyer: There are plenty of innocent reasons why a person might not perform well on a mental or physical task? Cop: I don’t understand what you mean by “innocent.” Lawyer: Reasons other than being intoxicated. Cop: I suppose. Lawyer (mirroring the witness’ evasive answer): You suppose? Cop: It’s possible. Lawyer: Well, for example, a person could be nervous? Cop: He didn’t seem nervous to me. Lawyer (pinning witness down after a non-responsive answer): A person might be nervous? Cop: Yes. 18

Cross-Examination of the Arresting Officer in a DWI Case

Lawyer: A person might be clumsy or uncoordinated? Cop: I suppose. Lawyer: A person could have poor balance? Cop: I suppose. Lawyer: A person could have difficulty understanding instructions? Cop: Yes. Lawyer: A person might get confused in a stressful situation? Cop: Yes. Lawyer: Anxious? Cop: It’s possible. Lawyer: Might not perform well under pressure? Cop: Yes. Lawyer: Some people might even have difficulty remembering things when they’re under pressure? Cop: I suppose. Lawyer (if applicable): You mentioned that {name of client} couldn’t remember the name of the restaurant he had been to that evening? Cop: Yes. Lawyer: Now, you believed {client} had lost his normal faculties, correct? Cop: Yes. Lawyer: Because of alcohol? Cop: Yes, sir. Lawyer: But the truth is, you had never met {name of client} before the night you arrested him? Cop: No, I never met him before. Lawyer: You don’t know what he’s normally like, mentally or physically? Lawyer: You don’t know what he’s normally like at 2:30 a.m.? 19

Cross-Examination of the Arresting Officer in a DWI Case

Cop: No. Lawyer: And you don’t know what {name of client} is normally like when he’s stressed out or under pressure? Cop: No. Lawyer: Getting pulled over by the police can be a stressful situation for some people, can’t it? Cop: Certainly. Lawyer (Optional question): And you are aware {name of client} had never been in that type of situation before? Cop: No, I wasn’t aware. Lawyer (Optional question - possibly objectionable): At the time you stopped {name of client} were you aware that he had never been arrested before? Cop: No.

Cross-Examination of the Arresting Officer in a DWI Case

Resources In addition to my own experience, I borrowed heavily from four resources in putting together this paper and presentation. I found these resources enormously helpful and recommend them to anyone who wishes to master the art and science of DWI cross-examination:

MacCarthy, Terence F., “MacCarthy on Cross-examination” American Bar Association (2007). http://www.amazon.com/MacCarthy-Cross-Examination-Terence/dp/1590318862 Pozner, Larrry S. and Dodd, Roger, “Cross-examination: Science & Techniques” (3rd Ed.). http://www.lexisnexis.com/shop/poznerdodd/default.page Johnson, Peter and Taylor, Lawrence, “California Driving Under the Influence Defense” Thomson Reuters (2020-21 Ed.). Taylor, Lawrence and Olberman,, Steven “Drunk Driving Defense” Aspen Publishers (7th Ed.), available at Amazon.com

Grant M. Scheiner grant@scheinerlaw.com Cell: 713-581-4540

Texas Criminal Defense Lawyers Association

Cross-Examination Seminar March 4-5, 2021 Livestream

Topic: Cross-Examining a “Soft -Science Expert” Speaker:

Sarah Roland

903 N Elm St Ste 101 Denton, TX 76201 (940) 323-9305 Phone sarah@sarahroland.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

1. What’s the difference between a consulting expert and a testifying expert? Pope v. State, 207 S.W.3d 352 (Tex. Crim. App. 2006) is the leading case on the distinction between consulting and testifying experts. The difference is major, and it matters. Everyone should read Pope. The identity, mental impressions, and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert are not discoverable. A consulting expert is not designated as a defense expert witness under Article 39.14 of the Texas Code of Criminal Procedure. Pope v. State, 207 S.W.3d 352 (Tex. Crim. App. 2006). Information regarding a consulting expert is subject to the attorney-client privilege and work product privilege. Id. If you designate a consulting expert as an expert under Article 39.14, the expert’s identify and qualifications are not protected by the work product privilege,

and the State may comment on your failure to call this witness to testify at trial. Id. “If a party might call an expert whom he has consulted as a witness at trial and the opposing side has requested designation of any potential experts, the party must designate that person as a testifying expert. A party who has designated a person as a potential testifying expert must be willing to divulge his name, address, telephone number, resume, and the subject matter on which he will testify.” Pope v. State, supra.

2. What if my court-appointed client doesn’t have any money to hire an expert, and we need one? Ask the court for money. Do not be timid to ask for the money necessary to defend the case. Always make the requests ex parte and sealed and always included in the record. See Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997). The State can-

not get a copy of your ex parte sealed request for expert assistance nor can the State be at any hearing for requested assistance. Also, there is no canned request for expert assistance. Each request should be appropriately tailored to the specific facts of the case. The authority for requesting necessary expert (investigative and/or mental health) assistance comes directly from the Code of Criminal Procedure, case law, the State Bar Guidelines, and the American Bar Association Guidelines for representation. Article 26.05 and 26.052 of the Code of Criminal Procedure. Article 26.05(d) provides that in non-capital cases counsel

perts without first obtaining court approval. It is arguably better to obtain prior court approval, though, for a few reasons. For starters, you will have an order in advance for payment. Also, if a correct, credible showing is made that the expert is necessary and the Court denies the request, there is already potential error built in the case. Additionally, case law is well-established and clear that the trial court must provide sufficient funding for necessary defense expert assistance. The defense expert must “play a partisan role in the defense, providing defense counsel with the ‘tools’ to challenge the State’s case.” Taylor v. State, shall be reimbursed for reason“The trial attorney’s failure to request 939 S.W.2d 148 (Tex. Crim. App. able and necessary expenses, additional funding in order to replace 1996) (citing DeFreece v. State, 848 including expenses for investian expert he knew to be inadequate S.W.2d 150 (1993)). “In this context, gation and for mental health and because he mistakenly believed that he due process, at a minimum, requires other experts. Expenses incurred had received all he could get constituted expert aid in an evaluation of a defenwith prior court approval shall deficient performance.” dant’s case in an effort to present it in be reimbursed in the same manthe best possible light to the jury.” Id. ner provided for capital cases by The seminal case for expert assistance, of course, is Ake v. Article 26.052(f) and (g), and expenses incurred without Oklahoma, 470 U.S. 68 (1985), which held that indigent defenprior court approval shall be reimbursed in the manner dants in criminal cases have a due process right to state-provided provided for capital cases by Article 26.052(h).” expert assistance when an ex parte showing is made to the trial judge. Ake involved a psychiatric expert. However, according Article 26.052(f) indicates that to the Court of Criminal Appeals, Ake also applies to non-psy[a]ppointed counsel may file with the trial court a pretrial ex chiatric experts. Rey v. State, 897 S.W.2d 333 (Tex. Crim. App. parte confidential request for advance payment of expenses 1995). If an indigent defendant establishes a substantial need for to investigate potential defenses. The request for expenses an expert, without which the fundamental fairness of the trial must state: will be called into question, Ake requires the appointment of an (1) The type of investigation to be conducted; expert, regardless of the field of expertise. Id. (2) Specific facts that suggest the investigation will result Furthermore, on January 28, 2011, the Texas State Bar Board in admissible evidence; and of Directors adopted the “Performance Guidelines for Non-Cap(3) An itemized list of anticipated expenses for each in ital Criminal Defense Representation” (hereinafter “Guidelines”). vestigation.” Performance Guidelines for Non-Capital Criminal Defense Representation, available at https://www.texasbar.com/AM/ Article 26.052(h) states that Template.cfm?Section=Texas_Bar_Journal&Template=/CM/ ContentDisplay.cfm&ContentID=14703. “The guidelines were “[t]he court shall grant the request for advance payment of drafted by the State Bar Committee on Legal Service to the Poor expense in whole or in part if the request is reasonable. If in Criminal Matters to encourage defense attorneys to perform to the court denies in whole or in part the request for expenses, a high standard of representation and to promote professionalism the court shall: in the representation of citizens accused of crime.” Blackburn, (1) State the reasons for the denial in writing; J., and Marsh, A., The New Performance Guidelines in Criminal (2) Attach the denial to the confidential request; and Cases: A Step Forward for Texas Criminal Justice, 74 Texas Bar (3) Submit the request and denial as a sealed exhibit to Journal 7 (July 2011). “They represent an effort to ‘hold the line’ the record. for criminal defense practitioners against a host of financial and political pressures.” Id. According to Guideline 4.1, B.9 Article 26.052(h) provides that [c]ounsel may incur expenses without prior approval of the court. On presentation of a claim for reimbursement, the court shall order reimbursement of counsel for the expenses, if the expenses are reasonably necessary and reasonably incurred.” Thus, the Code makes clear that it is permissible to hire ex-

Counsel should consider whether expert or investigative assistance, including consultation and testimony, is necessary or appropriate. Counsel should utilize ex parte and in camera procedures to secure the assistance of experts when it is necessary or appropriate to: a. The preparation of the defense; b. Adequate understanding of the prosecution’s case;

c. Rebut the prosecution’s case or provide evidence to establish an available defense; d. Investigate the client’s competence to proceed, mental state at the time of the offense, or capacity to make a knowing and intelligent waiver of constitutional rights; and e. Mitigate any punishment that may be assessed after a verdict or plea of guilty to the alleged offense. Additionally, Guideline 7.1, C.3 provides the following: Counsel should complete investigation, discovery, and research in advance of trial, such that counsel is confident that the most viable defense theory has been fully developed, pursued, and refined. This preparation should include consideration of: Obtaining funds and arranging for defense experts to consult or testify on evidentiary issues that are potentially helpful (e.g., testing of physical evidence, opinion testimony, etc.).

3. What if I run out of money from the court for my expert? We have all been in situations like this—where, for example, we ask for $2,500 for expert assistance, and the court authorizes $500 in funds. Ask for more money. Ask even after you’ve been told no or given insufficient funds. Keep asking. Do another ex parte, sealed motion. Do not use your same motion from before. Make this a second request. (Then when you get another $500 and use it, make a third request, and so on.) Outline for the court that the previously allocated funds have been depleted, how they were depleted, that more work needs to be done, that you have no expertise in the field, what that specific work entails, and more money is necessary to perform the additional work. Hinton v. Alabama, 134 S.Ct. 1081 (2014), is an ineffective assistance of counsel case based on the lawyer’s failure to obtain sufficient funding for a qualified expert who was necessary to rebut the State’s case. Hinton was a death penalty case. The physical evidence consisted solely of a revolver and six bullets. The State’s case turned on whether its expert witnesses could convince the jury that the six recovered bullets had indeed been fired from the Hinton revolver. Id. at 1084. Recognizing that Hinton’s defense called for an effective rebuttal of the State’s expert witnesses, Hinton’s attorney filed a motion for funding to hire an expert witness of his own. In response, the trial judge granted $1,000 with this statement: “I don’t know as to what my limitations are as for how much I can grant, but I can grant up to $500.00 in each case [that is, for each of the two murder charges, which were tried together] as far as I know right now and I’m granting up to $500.00 in each of these two cases for this. So if you need additional experts I would go ahead and file on a separate

form and I’ll have to see if I can grant additional experts, but I am granting up to $500.00, which is the statutory maximum as far as I know on this, and if it’s necessary that we go beyond that then I may check to see if we can, but this one’s granted.” ___ So.2d ___, ___, 2006 WL 1125605, *59 (Ala.Crim.App., Apr. 28, 2006) (Cobb, J., dissenting) (quoting Tr. 10). Hinton’s attorney did not take the judge up on his invitation to file a request for more funding. Id. With the limited funding provided by the court, Hinton’s lawyer found a woefully underqualified expert who testified at trial. The USSC ultimately held that “[t]he trial attorney’s failure to request additional funding in order to replace an expert he knew to be inadequate because he mistakenly believed that he had received all he could get under Alabama law constituted deficient performance.” Id. at 1088.

4. What if I am retained and we need an expert but my client doesn’t have any more money? The Court of Criminal Appeals answered this very question in Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005), a child death case. Quite simply, as retained counsel, you may not put off investigating medical issues or put off consulting with necessary experts until your client pays you money for experts. Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005). In Briggs, the Court of Criminal Appeals spelled out three options if your client cannot afford experts: (1) Subpoena to testify at trial the experts who treated your client, introduce at trial the records through these experts, and have these experts provide their expert opinions; (2) Withdraw from the case after proving to the judge your client’s indigence; or (3) Remain on the case and take a reduced fee but request an investigator and experts from the trial judge for a nowindigent client pursuant to Ake. Id. at 468. Importantly, the Court of Criminal Appeals further recognized this: If any reasonable attorney appointed to represent an indigent defendant would be expected to investigate and request expert assistance to determine a deceased infant’s cause of death, a privately retained attorney should be held to no lower standard. As the Supreme Court has explained, “The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant’s entitlement to constitutional protection. . . . [W]e see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers.” Id. at 468–469 (internal citations omitted).

5. What do I need to give my expert? Communication with your expert is key. Prior to obtaining funding or paying for expert assistance, you will have already talked preliminarily with your expert. Begin to set expectations at that time. Once the expert is officially hired or appointed, he or she becomes part of the defense team. Send an engagement letter to your expert so that the expert will know what is expected. Also, in the engagement letter, make sure the expert knows that he or she is part of the defense team, and that all information the expert receives is privileged and confidential. Finally, let the expert know that he or she is being retained (at least initially) as a consulting expert. As a practice point, wait until the expert has done all the necessary work in the case before designating the expert as a testifying expert. Make certain your expert has as much information as possible to form a credible and reliable opinion. The expert needs to know the worst fact of the case. Providing the expert with a copy of the discovery that is provided to you by the State is a must. The expert must have a working knowledge of the facts of the case. Obviously, the type of expert dictates what information is necessary. For instance, a false confession expert needs to have reviewed in detail every statement the accused has made whether that be in writing or recorded. You do not want to put your expert, your client, or yourself in the position where your expert learns about crucial information for the first time on cross-examination.

6. Do I have to provide notice to the State that I have an expert? Yes, if notice is requested by the State or ordered by the trial court. If neither of those conditions precedent are met, then we are not obligated to provide such notice—and should not do so. However, we should always request notification of experts in our Article 39.14 requests regardless of whether we think the State may have an expert. Be sure to request copies of the expert’s report, curriculum vitae, underlying facts or data relied upon, bench notes, diagrams, etc. Subpoena a copy of the expert’s entire file. It is often different than what the State may have provided. Article 39.14(b) of the Texas Code of Criminal Procedure states: “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.”

7. Do I need to have my expert make a report? Not necessarily. There is no requirement for a written report. In some cases, it is better to have a report and others it is not. There is no right or wrong answer for this question. It just depends on the facts of the case. The key to answering this question in your specific case is communication with your expert. Find out what the expert would include in the report before you request a report. Ask your expert—after he/she has reviewed everything, met with client, etc.—what the worst thing is about the case. We have to know the answer to the “worst” question so that we can address it at trial or plan a way around it, if possible. Also, that will normally dictate whether you want a written report or not.

8. Can I talk to the State’s expert? Rule 4.02(b) of the Texas Disciplinary Rules of Professional Conduct discusses “Communication with One Represented by Counsel” and states as follows: “In representing a client a lawyer shall not communicate or cause another to communicate about the subject of representation with a person or organization a lawyer knows to be employed or retained for the purpose of conferring with or advising another lawyer about the subject of the representation, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” Comment 3 to this rule states as follows: “Paragraph (b) of this Rule provides that unless authorized by law, experts employed or retained by a lawyer for a particular matter should not be contacted by opposing counsel regarding that matter without the consent of the lawyer who retained them. However, certain governmental agents or employees such as police may be contacted due to their obligations to the public at large” (emphasis added). The medical examiner and State crime lab scientist also fall under the umbrella of having an obligation to the public at large so may be contacted. However, if the State’s expert doesn’t fall within this umbrella, then be sure to get permission to speak to the expert ahead of time. Talk to the State’s expert every time. There is no reason not to talk to the State’s expert. Remember it’s a time to gather information and share information but only if it is necessary or helpful. Take someone with you when you talk to the State’s expert. Never talk to the State’s expert alone. You will be surprised what you learn and how accessible they are most of the time. Remember, real scientists are advocates for the science not the side.

9. Should I request a hearing on the State’s expert prior to the expert’s testimony? Yes. Rule 705(b) of the Texas Rules of Evidence provides that “[b]efore an expert states an opinion or discloses the underlying facts or data, an adverse party in a civil case may—or in a criminal case must—be permitted to examine the expert about the underlying facts or data. This examination must take place

outside the jury’s hearing.” With exceptionally limited circum- witnesses.” Daubert, 509 U.S. 579, 592–93.; see also Emerson v. stances, we should be requesting hearings on every expert every State, 880 S.W.2d 759, 763 (Tex. Crim. App. 1994). time. Those limited circumstances are case, witness, and strategy dependent. The hearing is conducted to test the admissibility of 10. Do I need to have my expert testify at trial? the expert’s opinion, obtain discovery, ensure you have copies Not necessarily. Just because you have an expert and have even of everything the expert has used to form the opinion, to get a designated an expert doesn’t mean you have to call the expert. record of what the expert has to say, and gain knowledge about Sometimes you know going in that your expert will need to tesfruitful grounds for cross-examination. tify. Other times, it’s not so clear, and you must gauge whether it’s Texas Rules of Evidence 104, 401, 402, and 702 provide worth it—a judgment call. As with every witness, there are points the basic conditions precedent for expert testimony. See Vela to be gained and points to lose. It’s always a question of whether v. State, 209 S.W.3d 128 (Tex. Crim. the net will be positive. However, be App. 2006). Rule 104 requires that Experts employed or retained by a lawyer sure to prepare your expert for the “[t]he court must decide any prefor a particular matter should not be possibility that he/she may not actuliminary question about whether a contacted by opposing counsel regarding ally testify depending on the ebb and witness is qualified . . .” and that “[t] that matter without the consent of the flow of trial. he court must conduct any hearing As a practice point, though, lawyer who retained them. on a preliminary question so that the don’t promise or mention your exjury cannot hear it if . . . just so repert in jury selection or in opening. quires.” Rules 401 and 402 render testimony admissible only if On the other hand, if you promise expert testimony in openit “tends to make the existence of any fact that is of consequence ing be sure to deliver in order to maintain credibility with the to the determination of the action more probable or less prob- jury. Also, always be on guard for any argument or question(s) able than it would be without the evidence. Rule 702 permits that may (attempt to) shift the burden or proof or undermine expert testimony only “if the expert’s scientific, technical, or the presumption of innocence, as such seems to be the default other specialized knowledge will help the trier of fact to under- argument from the State when defense has an expert. Prepare stand the evidence or to determine a fact in issue.” Accordingly, the jury for any such attempt by the State in jury selection. Be expert testimony that would only serve to confuse the issue or sure to educate the jury on the presumption of innocence, get evidence for the trier of fact should not be admitted. The expert everyone on “team innocent,” and indoctrinate them to the “take should be able to clearly explain the scientific, technical, or other a knee” philosophy. Then, to bring it full circle, when it is time specialized knowledge in a manner that lay, non-experts, i.e. the to rest confidently say, “Your honor, based on the law and the jury or the judge, can understand, and it must in some way be state of evidence we rest.” relevant to the case. According to the Court of Criminal Appeals, “[t]hese rules 11. Can an expert comment on truthfulness? require a trial judge to make three separate inquiries all of which The short answer is no. This is a hard issue to determine or recmust be satisfied before admitting expert testimony: (1) the wit- ognize in the middle of trial at times. If you think you should ness qualifies as an expert by reason of his knowledge, skill, object, object. You can usually assume in a child abuse case that experience, training, or education; (2) the subject matter of the the State may have the expert do exactly that, though. Therefore, testimony is an appropriate one for expert testimony; and (3) it is advisable to litigate this issue pretrial through a motion in admitting the expert testimony will actually assist the fact-finder limine. Remember, though, to object during trial because moin deciding the case.” Rodgers v. State, 205 S.W.3d 525, 527 (Tex. tions in limine do not preserve anything for appeal. Crim. App. 2006); see also Malone v. State, 163 S.W.3d 785 (Tex. In Salinas v. State, 166 S.W.3d 368 (Tex. App.—Fort Worth App.—Texarkana 2005, pet. ref ’d), and TRE 702. “These condi- 2005, pet. ref ’d), a pediatrician testified she diagnosed sexual tions are commonly referred to as (1) qualification, (2) reliability, abuse based solely upon the history provided by the child comand (3) relevance.” Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. plainant. The appellant claimed that such evidence was impropApp. 2006); Escamilla v. State, 334 S.W.3d 263 (Tex. App.—San erly admitted expert testimony that directly commented on the Antonio 2010, pet. ref ’d). credibility of the complainant. The appellate court held that beIt is worthwhile to remind the trial court consistently of its cause there was no physical evidence of digital penetration, the gatekeeping function—and that it shouldn’t operate as a rubber doctor’s “testimony could only be seen as an attempt to directly stamp. It is common knowledge that junk science is a leading bolster the credibility of the complainant and a direct comment cause of wrongful convictions. After all, “[e]xpert evidence can on the complainant’s truthfulness.” “The trial court abused its be both powerful and quite misleading because of the difficulty discretion in admitting the pediatrician’s testimony that she had in evaluating it. Because of this risk, the judge in weighing pos- diagnosed sexual abuse based on the child’s medical history.” sible prejudice against probative force under [FRE] 403 of the Pediatricians have been recognized as expert witnesses in present rules exercises more control over experts than over lay sexual abuse cases provided they do not testify that such children

are truthful. Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993). Rape crisis counselors have been recognized as expert witnesses in sexual abuse cases provided they do not testify that the child is telling the truth. Black v. State, 634 S.W.2d 356 (Tex. App.—Dallas 1982, no pet.); Miller v. State, 757 S.W.2d 880 (Tex. App.—Dallas 1988, pet. ref ’d).

The moral of the case then is communication with your expert such that allows you to elicit necessary defensive expert testimony. Clearly, the opinion indicates that Dr. Gottlieb provided testimony at trial and at the habeas hearing on the same subject. Remember, the witness can only answer the questions that are asked. It is not enough to just have an expert witness. Be prepared to fully use the expert witness to the greatest extent possible.

12. How do I know what to ask my expert? Communication with your expert is key. You must talk to your expert long before he or she testifies. Know what information you need to get out of your expert. Make sure your expert can adequately and clearly explain the scientific—whether hard or soft science—issues to you. Ask your expert questions. If you do not understand what the expert is telling you, there is no way the jury will understand what the expert is saying. In Ex parte Ard, No. AP-75,704 (Tex. Crim. App. 2009) (per curiam) (not designated for publication), an aggravated sexual assault of a child case, the Court of Criminal Appeals held that trial counsel’s performance was deficient in that counsel failed to adequately prepare and present expert testimony concerning memory implantation. The applicant’s defensive theory at trial was that the complainant’s accusations were a result of suggestion and coaching, which tainted the complainant’s memory. Trial counsel even had an expert witness—psychologist—testify. However, the Court of Criminal Appeals noted: Though Dr. Michael Gottlieb, an expert on the subject, was ready and able to explain how false memory may be implanted by repetitious suggestion, trial counsel failed to adequately elicit testimony from the doctor that the theory is the subject of many treatises and is widely accepted by the scientific community, to explain how and why it can occur, and to enumerate those facts which, in his opinion, made the testimony of the alleged victim in the case suspect and unreliable. This failure on the attorney’s part fell below any objective standard of reasonableness, and there is a reasonable probability that, but for it, the result of the trial would have been different. This court finds that the inadequate presentation of such evidence, crucial to Applicant’s defense, was, under the standard of Strickland v. Washington, 466 U.S. 668 (1984), ineffective assistance of counsel. Considering the deficiencies in the presentation of Dr. Gottlieb’s testimony, based on a comparison of his trial testimony and his writ hearing testimony, it is the opinion of this court that there can be no confidence in the outcome of the trial. Id. … Dr. Gottlieb’s trial testimony before the jury differed markedly from his writ-hearing testimony, not only in scope but in substance as well. In general, Dr. Gottlieb’s writ testimony was far more comprehensive than his trial testimony. The differences between the two cannot be attributed to counsel’s trial strategy. Id.

13. Can an expert testify about diminished capacity due to mental illness or disease? No. There is no diminished capacity defense in Texas. “The Texas Legislature has not enacted any affirmative defenses, other than insanity, based on mental disease, defect, or abnormality. Thus, they do not exist in Texas.” Ruffin v. State, 270 S.W.3d 586, 594 (Tex. Crim. App. 2008). However, “such expert evidence might be relevant, reliable, and admissible to rebut proof of the defendant’s mens rea.” Id. at 595. The leading case on this topic is Ruffin v. State, 270 S.W.3d 586. Be sure to read, study, and have this case on hand for any trial in which your client has a mental illness, disease, or defect that is just shy of insanity. In Ruffin, the Court of Criminal Appeals “repeat[ed] and reaffirm[ed] our holding in Jackson that ‘relevant evidence may be presented which the jury may consider to negate the mens rea element. And this evidence may sometimes include evidence of a defendant’s history of mental illness.’ ” Id. at 596. As a cautionary tale, the State will typically try to keep expert testimony about mental illness out if it falls short of insanity. This is obviously because the nature of this evidence tends to mitigate and be beneficial to the defense. Again, this is where it is key to have an open line of communication with your expert. Knowing there is no diminished capacity defense in Texas and that the State will inevitably try to limit the expert’s testimony, just means that you and your expert have to game-plan and prepare proper questions in advance.

Sarah Roland grew up always wanting to be a criminal defense lawyer like her dad. She has a criminal trial and appellate practice in which is she fortunate enough to practice with her brother, George Roland. She has been a member of TCDLA since 2001 and serves on the Board of Directors. Sarah is the editor of the Voice. She has served as chairperson of CDLP and is an active speaker and author on criminal law topics throughout the state. She is a past president of the Denton County Criminal Defense Lawyers Association and received the first annual Hal Jackson Award in 2014. She has been selected as a Rising Star and a Super Lawyer for multiple years. Most importantly, though, she is Josh’s wife and Ellie and Sam’s mom! She can be reached at sarah@sarahroland.com.

Texas Criminal Defense Lawyers Association

Cross-Examination Seminar March 4-5, 2021 Livestream

Topic: Cross-Examining a Child Speaker:

Stephanie Stevens 2507 NW 36th Street San Antonio, TX 78228 (210) 219-6410 Phone sstevens@stmarytx.edu email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

CROSSEXAMINATION OF A CHILD STEPHANIE STEVENS

CHALLENGES THAT COME WITH EXAMINING A CHILD • Society abhors child sexual and/or physical abuse. • Children inspire protective feelings from most – including judges. • Many people believe children don’t lie about this kind of charge. • The old adage, “don’t ask a question you don’t know the answer to,” doesn’t hold up as well for children. • Children lack social skills that most adults have; thus, they respond outwardly to things they don’t like.

HOW TO HANDLE THE CHALLENGES

BEST PLACE IS VOIR DIRE

A person accused of a particularly ugly crime must be guilty?

Do you think it is fair to question a person who makes accusations against someone? Do I have permission to question the complainant in this case, even though the complainant is a child?

VOIR DIRE IS THE BEST PLACE

• Explain how it is difficult for young children to distinguish between what they have personally observed and what they have been told by a trusted adult. For example, if the child believes in Santa or the Tooth Fairy because an adult told him/her about it, the child isn’t lying when he/she speaks of Santa, but is trusting in the stories told to him/her.

VOIR DIRE • Not lying, but coached. • If a child tells a strong logical timeline of the story, it suggests adult interference. Discuss with the jury that children, particularly young children struggle with timelines. In fact, that is why we have “on or about” language in our indictments. A child who handles the dates well suggests coaching. • If a child uses anatomically correct language or other proper terms for sexual acts, the child appears coached. Discuss with the jury about how children use different words for body parts. A child may describe a sexual act as “a man peeing.” A child using the proper language appears coached.

CHILDREN GIVE PECULIAR ANSWERS

• ACCOMMODATION SYNDROME – children’s desire to be liked by people in positions of authority, pushes some to say what the adult wants to hear. The idea is to push many easy questions to get a groove of “agreement” going. Then to push a little harder with more controversial questions once the child is in agreement mode. • Q: Beth, you are in the second grade now aren’t you? • A: Yes. • Q: And you get good grades, don’t you? • A: Yes. Real good grades. • Q: And next year, you will be in the third grade won’t you? • A: Uh huh.

• Q: Now Beth, you have talked to a lot of people about coming here today and telling your story?

ACCOMMODATION SYNDROME

• A: Yes. • Q: You talked to Officer Jones? • A: Yes. • Q: He’s a nice man, isn’t he? • A: Yes.

Q: And you talked to Mr. Smith the social worker didn’t you? A: Yeah.

ACCOMMODATI0N SYNDROME

Q: And then you talked to Dr. Phillips a couple of times? A: Yes. Q: And you talked to this nice attorney, Ms. Rogers, sitting at the table across from me? A: Yes. Q: And Ms. Salazar, the lady who works with Ms. Rogers, showed you around the courtroom before today?

• A: Yeah. • Q: And she told you all about how you would sit up on the witness stand and tell your story?

ACCOMMODATION SYNDROME

• A: Yes. • Q: And then Ms. Rogers talked to you about coming to court didn’t she? • A: Yes. • Q: Ms. Rogers listened to you tell your story?

• A: Yes. • Q: And sometimes she asked you questions about your story, like I’m doing now?

ACCOMMODATION SYNDROME

• A: Uh huh. • Q: And sometimes she helped you understand how to tell your story the best way, didn’t she? • A: Yes. • Pacific Law Journal Vol 18, p. 879-881.

CHILDREN GIVE PECULIAR ANSWERS

• Some children enjoy a rich fantasy life. F. Lee Bailey and Henry Rothblatt encourage capitalizing on this in some instances in their book Cross-Examination in Criminal Trials. A witness can be successfully impeached without any reference to his/her direct testimony. They provide the following example: • Q: What is your favorite sport? • A: Baseball • Q: I’ll bet you are good at it? • A: Yes, I am.

• Q: You look like a strong boy. Aren’t you the best player in your class? • A: Yes. • Q: What position do you play? • A: I am a pitcher. • Q: You probably have a good fast ball? • A: Yes. • Q: Do you also have a good curve ball and sinker?

• A: Yes. • Q: I don’t imagine many players get hits when you are pitching? • A: No, none of them do. • Q: You throw no-hitters all the time? • A: Yes, I do. • Q: And how are you as a batter? • A: Very good.

• Q: I’ll bet you hit a lot of home runs. • A: Every time. • Q: That’s wonderful. Every time you pitch you throw a no-hitter and every time you are at bat you hit a home run? • A: Yes, I do. • Q: No further questions.

BEFORE THE CROSS

• Daycare REVIEW RECORDS

• School • Medical • Mental health • CPS • Etc

INTERVIEW THE CHILD – IF POSSIBLE • The child will respond more to your questions, if the child knows you. • What can you do if no one will let you interview the child? • Competency hearing – T.R.E. 601 • Challenge outcry – 38.072 • Challenge request for close circuit presentation of child – CCP 38.071

IDEAS ON HOW TO CONDUCT A COMPETENCY HEARING OF A CHILD

CLOSED CIRCUIT PRESENTATION

BEFORE THE CROSS: • In many cases, the child has been removed from the accused for some time prior to trial. • Consider asking for an incourt lineup.

BEFORE THE CROSS: MOVE IN LIMINE TO KEEP THE CHILD FROM BRINGING A STUFFED ANIMAL OR SUCH TO THE WITNESS STAND

GOALS • You will not likely land a knock-out punch with the child on cross. You can, however, set up doubt of the child’s credibility early on in voir dire. And/or, you can impeach with later witnesses. • But, if you cross the child, try to do the following: • Establish a motive for why the child would make up the story. • Explain how the child might know more about a subject (such as sex) than a child their age would normally know.

DECIDE WHETHER YOU WILL CROSS EXAMINE THE CHILD

• 1. Has the witness hurt your case? • 2. Is the witness important?

CROSS?

• 3. Was the witness’s testimony credible? • 4. Do you want to foreclose the possibility of redirect? • 5. Does the jury like the child?

• IPT Journal,Vol. 5 – Joel Erik Thompson, “Crossexamination of Child Witnesses”

RESOURCES

• Dr. Richard Gardner, True and False Accusations of Child Sex Abuse • Dr. Jan Marie DeLipsey, Expert Witness Manual • Stanley Schneider, “Bright Lights, Black Robes and Deep Ellum Blues” TCDLA 2003.

• Stephanie Stevens • sstevens@stmarytx.edu • 210 219-6410 • 2507 NW 36th Street • San Antonio, TX 78228

THANK YOU FOR LETTING ME SPEAK TO YOU!

TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA

OUR HISTORY

Since 1971, Texas Criminal Defense Lawyers Association has provided a statewide forum for criminal defense lawyers. TCDLA is the only voice in the legislature interested in basic fairness in criminal cases. From its beginning as a small association of 260 members, to today with a full staff, officers, board members and more than 2,500 members, TCDLA has played an important role among criminal defense lawyers, providing assistance, support and continuing education. TCDLA has developed a number of affiliations over the last few years which provided a presence and eagerness to help criminal defense lawyers across the state of Texas. TCDLA continues to foster these relationships and develop additional affiliations. As part of this association you share a voice with 2,500 like mind individuals in more than 150 counties across the state.

The Texas Criminal Defense Lawyers Association strives to protect and ensure by rule of law those individual rights guaranteed by the Texas and Federal Constitutions in criminal cases; to resist the constant efforts which are being made to curtail these rights; to encourage cooperation between lawyers engaged in the furtherance of these objectives through educational programs and other assistance; and through this cooperation, education and assistance, to promote justice and the common good.

The Criminal Defense Lawyers Project strives to improve the competency of defense lawyers through designing and promoting a series of continuing legal education seminars and producing legal publications available at low cost to attorneys throughout the state.

The Texas Criminal Defense Lawyers Educational Institute is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staffs.

For more information about the association, or to learn about upcoming CLE seminars and events, please visit www.tcdla.com.

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TEXAS INDIGENT DEFENSE COMMISSION – ATTORNEY CASELOAD REPORTING & WEIGHTED CASELOAD STUDY HB 1318 was the most significant bill related to indigent defense passed by the 83rd Texas Legislature. It includes significant new reporting requirements related to caseloads handled by attorneys providing representation to indigent defendants. Commission staff met with a variety of stakeholders, including court and county officials, criminal defense practitioners, legislative staff, national authorities, and others to find ways to effectively implement HB 1318 in a seamless manner while providing meaningful information to policymakers. New Attorney Reporting – HB 1318 included the following provision in Article 26.04, Code of Criminal Procedure: An attorney appointed under this article shall: … not later than October 15 of each year and on a form prescribed by the Texas Indigent Defense Commission, submit to the county information, for the preceding fiscal year, that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in the county under this article and Title 3, Family Code. Beginning October 15, 2014, the bill requires all attorneys handling indigent defense cases to annually report to the county for the preceding fiscal year (October 1st - September 30th) the percentage of the attorney's practice time that was dedicated to appointed 1) criminal cases (trial and appeals) and 2) juvenile work (trial and appeals) in the county. This report should not include work on other types of appointed work such as CPS or guardianship cases, nor should it include practice time devoted to federal criminal appointments. Attorneys must submit this report to each county in which they accept appointments. With significant input from TCDLA leadership, the Commission adopted this form and reporting instructions. The Commission is working with our partners at Texas A&M’s Public Policy Research Institute (PPRI) to create an electronic attorney reporting portal. This will permit attorneys to report their work in all counties at the same time directly to the Commission, with the report viewable by the counties. The judges in each county may specify through their indigent defense plan the method for attorneys to use for submitting their report (online or paper form). Attorneys are not required to use a particular methodology to complete the practice time report. Some may do so by using time records, if they keep such records. Other attorneys may use a case counting methodology. The reporting form will ask the attorney to note what method(s) they used to calculate the percentage figures reported. The Commission is working with TCDLA to develop a worksheet(s) that attorneys may use to help calculate the practice time percentages. The worksheet will help an attorney allocate their practice time among various case types and counties. Use of the worksheet is strictly voluntary and will not be submitted to the county or Commission. Penalties for failing to submit a required practice time report by the October 15th due date may be prescribed by the judges handling criminal or juvenile cases in each county. Many judges have already chosen to amend their indigent defense plans to provide for an attorney’s removal from the list of attorneys eligible to receive future court appointments until they complete the report. This is similar to current enforcement of the annual CLE requirements. Please review your local plan available at: http://tidc.tamu.edu/public.net/Reports/IDPlanNarrative.aspx

New County Reporting of Attorney Caseloads – HB 1318 included the following provision in Section 79.036, Government Code: Not later than November 1 of each year and in the form and manner prescribed by the commission, each county shall prepare and provide to the commission information that describes for the preceding fiscal year the number of appointments under Article 26.04, Code of Criminal Procedure, and Title 3, Family Code, made to each attorney accepting appointments in the county, and information provided to the county by those attorneys under Article 26.04(j)(4), Code of Criminal Procedure. In addition to the attorney reporting requirements above, starting November 1, 2014 the bill requires each county to submit to the Commission annually the information provided to the county by the attorneys described above, along with information that describes for the preceding fiscal year the number of appointments made to each attorney accepting appointments in the county. As to the new county reporting of case and fee data by attorney, the Commission decided based on its consultation with stakeholders to build on the existing reporting infrastructure in the annual Indigent Defense Expenditure Report (IDER). The IDER already requires county auditors (or treasurers) to report the aggregate number of cases paid by case type (Juvenile, Capital Murder, Adult Felony, Adult Misdemeanor, Juvenile Appeals, Felony Appeals, and Misdemeanor Appeals) and by court along with the amount paid each year by November 1st (the same date as the new reporting requirement). The new report will require this information to be broken down by attorney. County auditors have indicated that they already collect this information as part of the attorney payment process. Weighted Caseload Study – HB 1318 included the following provision: Not later than January 1, 2015, the Texas Indigent Defense Commission shall conduct and publish a study for the purpose of determining guidelines for establishing a maximum allowable caseload for a criminal defense attorney that, when the attorney's total caseload, including appointments made under Article 26.04, Code of Criminal Procedure, appointments made under Title 3, Family Code, and other work, is considered, allows the attorney to give each indigent defendant the time and effort necessary to ensure effective representation. The study must be based on relevant policies, performance guidelines, and best practices. In conducting the study … the commission shall consult with criminal defense attorneys, criminal defense attorney associations, the judiciary, and any other organization engaged in the development of criminal indigent defense policy that the commission considers appropriate. The goal is to provide policymakers with an objective analysis of the time required to represent different types of court-appointed cases. This kind of study has not been done in Texas before, but jurisdictions around the country have undertaken similar research because they have recognized the value of understanding data and its power to help improve their justice systems. The Commission is working with PPRI to conduct the weighted caseload study. Attorneys have been recruited to document and categorize their time spent on cases for twelve weeks using simple timekeeping software developed by JusticeWorks. At the conclusion of the data collection phase, a panel of experts will review the time data together with survey data and make recommendations regarding the time demands of various types of cases. While this study will not be the last word on indigent defense needs in Texas, it will be an evidence informed starting point to demonstrate what is necessary to provide appropriate representation in various types of cases. The information learned through the study may serve as a management tool to guide decision making for public defenders and managed assigned counsel systems. For assigned counsel systems, the study will provide objective information to the courts about the resources different types of cases typically demand. This study will also provide policymakers at the state and local level with objective information upon which to base funding decisions. To learn more about this research please visit the study website at http://texaswcl.tamu.edu. WWW.TIDC.TEXAS.GOV

MARCH 2014

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