Thursday, January 21, 2010

Corroboration Required: Accomplices, Jailhouse Snitches, and Drug Informants

Thank goodness the Texas Legislature had the good sense to require corroboration of certain prosecution witnesses before a jury could legally convict someone for a crime. For years the accomplice witness rule prevented the government from convicting someone based solely upon the testimony of an accomplice. That is, someone who was involved in the crime, got caught, and then turned State's evidence to save their own hide.

Even the village idiot knew such testimony was inherently unreliable and could routinely lead to the imprisonment of innocent people. Consequently, the accomplice witness rule demanded a defendant not be convicted of an offense on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the crime. Moreover, corroboration was not sufficient if it merely showed the commission of the offense. In other words, even if a jury believed everything an accomplice witness testified about, the law prohibited a conviction unless there was other evidence connecting the accused to the crime.

In recent years, two new laws were enacted requiring corroboration of other types of prosecution witnesses. First was the jailhouse snitch rule and then the drug informant rule. Both rules were similar to the accomplice witness rule in that corroboration was required before a jury could convict someone based on the testimony of these witnesses. Again, the inherently unreliable nature of this testimony raised the specter of convicting innocent persons.

Interestingly, Texas case law has held one type of unreliable witness cannot be used to corroborate another. For example, a jailhouse snitch cannot be used to corroborate the testimony of an accomplice, and vice-versa. The same holds true for drug informant testimony.

The challenge for the criminal defense attorney is getting the jury to commit to corroboration. In other words, if a jury believed the accomplice was telling the truth, they'd be reluctant to acquit someone based on their perceived moral responsibility to convict the guilty. Sometimes a crime is so awful, or the jury so afraid, that they invent corroboration in order to convict. The good news is that appeal courts use the corroboration requirement when evaluating evidence sufficiency questions. Stated another way, if there truly is no corroboration, the defendant has an excellent chance on appeal for a reversal.

Tuesday, January 12, 2010

More On Polygraphs

Polygraphs continue to serve as invaluable tools for Bryan|College Station criminal defense lawyers when clients are accused of a crime in Brazos County. Recently, while talking with my local polygrapher, Stuart Ervin, owner of Central Texas Polygraph, Bryan, TX who reminded me how often a client's skin is saved by a clean polygraph chart. Stuart noted how the polygraph is used to demonstrate the client's truthful story to a grand jury. Stuart also noted while the number of people who fail the polygraph is high, clients often share valuable information with him they hadn't disclosed to me, their defense lawyer. This confidential information is important in planning an effective defense, nonetheless.

Stuart noted the risk of taking a PRIVATE polygraph is zero. (polygraphs given by the police, however, ARE NOT confidential and can be used against the client) The entire polygraph record is considered attorney/client work product and is always absolutely confidential when the polygrapher is hired as a defense expert. Furthermore, professional polygraphers and their staff remain obligated to keep all client interviews completely secret.

Finally, if the results of a polygraph are positive, then the price for the exam (usually around $500.00) is a small one. We now possess a report widely utilized by grand juries demonstrating the truthfulness of the client. If the polygraph results are negative, the exam remains confidential . . . as if the exam never took place.

So don't be afraid of a private polygraph administered by your lawyer's hired expert. It just might save your skin, too.

Thursday, January 7, 2010

Changing the No-Blow Paradigm

For years the standard operating procedure for DWI suspects in Brazos County was no-blow. That is, once a person was arrested for driving while intoxicated, the best defense was a good offense and suspects were encouraged by College Station criminal defense lawyers to refuse any breath or blood test requested by the arresting officer. However, times have changed over the past several years with the gathering momentum of blood draw warrants.

Blood draws pursuant to a search warrant occur shortly after a person arrested for DWI is taken to the local police department and refuses to submit to a chemical test. Blood draw search warrant affidavits and search warrant forms are now readily available to law enforcement in Bryan|College Station. Local judges are on call 24/7 to review affidavits and grant warrant requests when the facts support the officer's request. The DWI suspects are then transported to a local hospital, their blood is drawn and sent to DPS for analysis.

What's the problem for citizens from whom blood was drawn after their DWI arrest? Simply, a blood test is much more difficult to defend than a breath test. Breath samples analyzed by the Intoxilyzer 5000 can be attacked in many credible ways. We've discussed the problems with the Intoxilyzer on many occasions here at the Defense Perspective. However, blood testing does not suffer from the same, wide array of problems. There are ways to attack a blood test, but not nearly as effectively.

Consequently, the no-blow paradigm may be changing around these parts. The best way to avoid the problem is to avoid drinking-and-driving. However, in a large college town like Bryan|College Station, students rarely take this issue into consideration before a night out on the town. So, if you drink and drive in Brazos County, it may be time to start saying yes when asked to submit to a breath test. But better you never get asked.