In the Defense of Experts

The prosecution often uses expert witnesses to meet their burden of proof in a criminal case. Common examples are breath test technical supervisors in a DWI prosecution; forensic chemists who analyze DNA in a sexual assault case; fingerprint examiners who might testify about the identification of latent prints in a burglary or theft case; or forensic psychologists who testify about the issue of future dangerousness in a capital murder prosecution.

The defense can often put expert witnesses to good use, as well. For example, an expert witness familiar with the particular cultural issues involved in a child abandonment case might help the jury understand why conscientious parents from another culture might leave their children unattended for an extended period of time. An expert familiar with neuro-psychology might testify for the defense about abnormal brain development in a case where insanity is an issue. An expert might also testify for the defense about the suggestibility of child witnesses in a child abuse case. The list goes on and on.

However, before a witness is qualified to testify in any criminal trial their qualifications and testimony must meet threshold requirements under the Rules of Evidence. The Rules which apply to the testimony of experts are as follows:

Opinion Testimony by a Lay Witness: If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally based on the perception of the witness and helpful to a clear understanding of the witness' testimony or the determination of a fact in issue in the case.

Testimony By Experts: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion.

Bases of Opinion Testimony by Experts: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by, reviewed by, or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

So, as you strategize with your criminal defense lawyer about defending charges against you, ask them how they might employ the use of experts to assist in your defense. Although experts will charge a fee for their services, the money is often well spent and a make-or-break investment in your future.

Other Expunction Laws

Over the last several weeks we've looked at the process of expunging felony and misdemeanor criminal arrest records under Article 55 of the Texas Code of Criminal Procedure (CCP). There are other laws providing the right to expunge records under more limited conditions.  Let's examine them. 

Article 45.051 CCP provides for deferred adjudication in Class "C" misdemeanor cases. This article applies to cases filed in justice and municipal courts.  Upon the successful completion of these deferred adjudications, the statute also provides for dismissing the complaint and expungement under Article 55.01 CCP.  Even charges that include the operation of a motor vehicle (like minor driving under the influence) can be deferred and upon successful completion can be expunged under Article 55.01.  See Article 45.0511 CCP. 

For alcohol-related offenses under the Texas Alcohol Beverage Code (ABC), the code contains a provision for the expunction of convictions.  Article 106.12 ABC states that a person convicted of not more than one (1) violation under the ABC, upon attaining the age of 21 years, may apply to the court in which he was convicted to have the conviction expunged.  Any such application must contain the person's sworn statement he was not convicted of any violation other than the one he seeks to expunge.  The person is then released from all disabilities resulting from the conviction and the conviction may not be shown or made known for any purpose. Common types of offenses expungable under this section are DUIs, MIPs, and MICs.

Finally, under certain circumstances Article 58.003 of the Texas Family Code (FC) provides for the sealing of juvenile records.  If the juvenile was not adjudicated the sealing can occur immediately.  If there was an adjudication, there is a two-year waiting period during which no intervening convictions for a criminal case may occur.  In addition, for juvenile felonies, the person must first reach the age of 21 years, must not have had the case transferred to criminal court, nor can the records have been used as evidence in the punishment phase of a criminal trial.  Also, the person must not have been convicted of a felony after reaching the age of 17 years.   The FC also says the sealed records can eventually be destroyed if the records did not relate to a violation of a felony or a misdemeanor punishable by jail, the person is now at least 21 years old, and the person has not been convicted of a felony after becoming 17 years old. 

Procedure for Expunging Criminal Records

Over last few weeks we've looked at a person's right to expunge records relating to a criminal case for which they were arrested. We looked at misdemeanor expunctions here and felony expunctions here. Once a person's right to expunge records is established the procedure for obtaining this valuable Order is as follows:

A person who is entitled to expunction of records may file a petition for expunction in a district court for the county in which the person was arrested or the county in which the offense was alleged to have occurred. The petition must be verified (sworn-to and notarized) and must include the following information: (1) the person's full name, (2) sex; (3) race; (4) date of birth, (5) driver's license number, (6) social security number, (7) the person's address at the time of the arrest, (8) the offense charged and the date the offense allegedly was committed, (9) the date of the arrest, (10) the name of the county where the person was arrested and municipality (if applicable), (11) the name of the agency that arrested the person, and (12) the case number and court of offense. The petition must also include a list of all the law enforcement agencies, jails, detention facilities, magistrates, courts, prosecutors, state and federal depositories of criminal records, and any other agency or other official who had any involvement in the case.

After the petition is filed and the clerk's fees are paid, the district court will set the petition for a hearing no sooner than thirty (30) days from the filing of the petition. Each official or agency named in the petition must be given reasonable notice of the hearing by certified mail, return receipt requested, or secure electronic mail, electronic transmission, or facsimile transmission.

If the district court finds that the person is entitled to expunction of any records and files that are the subject of the petition, the court must enter an order directing expunction. When the order of expunction order becomes final the release, maintenance, dissemination, or use of the expunged records and files is prohibited. The person arrested may now deny the occurrence of the arrest and the existence of the expunction order, unless the person is questioned under oath in a criminal proceeding about the arrest for which the records were expunged. Even then, the person may only state that the matter in question has been expunged.