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DOCKET CALL May /June 1999
From the President .....
... 4
From the President-Elect ...........
Harris County GrandJury .........
... 6
Psychological Insights .................7
Internet for Attorneys .................8
VtJir Dire in Child Sexual Abuse Cases ...10
Meet the Judges .....................12
Looks Can be Deceiving ..............14
Fed Square ........................19
Motion in Arrest ofJudgment ..........20
Hearsay . ..........................22
Upcoming CLE .....................22
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MayI June 1999
From thePresident
The President'sOpinion
As my
term draws
to a close, I
wish to
thank the
for electing
me their
and I would
like to
express my gratitude to the Board of
Directors for helping me fulfill my
responsibilities. It has been such a challenge,
opportunity and honor to contribute
something to an organization that has done
so much for me.
We have come so far in just one year. We
were bankrupt and almost ceased to exist.
Our coffers are now full and we have a
separate long-term fund. Docket Call had
not been published in two years. This
publication now looks better than ever and
almost pays for itself.
Look at our membership roll. In this year
we have literally doubled in size. Every
Harris County criminal defense lawyer of
any significance is a member of HCCLA.
We have never, never done so well.
In this short year, we have presented the
most successful CLE programs in the state
of Texas . They are so successful, other
organizations have contacted me wanting to
know my secret, but it is really no secret. It
is our Board of Directors. Without their
hard work, none of our projects would have
become a reality. I have been so blessed to
work with these extremely bright lawyers
who have made this year our most
prod uctive.
By the time this edition of Docket Call is
published, we will have elections for four
officers and new directors of HCCLA.
remember when we almost cancelled an
election for lack of interest. Not any more.
This year almost every position is contested,
and we have about 30 nominations for 10
director positions.
In closing, I would challenge our next
president and our new Board of Directors to
leave our organization with more money in
the bank, and to deposit more money in the
proposed HCCLA Building Fund. We must
have our own building, our own "Justice
Center," to provide our membership with
higher quality and more successful CLE than
we have, and in short, exceed all expectations.
Again, th ank you for the privilege of
serving as president of the Harris County
Criminal Lawyers Association. Thank you
for YOUf tfUSt.
R H Y M E S & WI L L I A M S, L.L. P.
Businessand consumerlitigation
Formingand maintainingbusinessentities
Asaformercriminal courtsreporterforThe Houston Post,
Mr. Williamsunderstandsyourpracticeiscomplexandspecialized.
Referral fees available
(713) 840-7321 Fax (713) 840-0552 e-mail:
May / June 1999
From the President-Elect
The GrievanceCommiHee,HCCLAMentorProgram
and Long-Term Capital Fund
The Houston
area Grievance
Committees of the
State Bar of Texas
have tradi tionally
been grossly under-
represented by law-
yers with criminal
law experience.
Each Grievance
Committee should
have an appropriate degree of diversiry in
practice area and firm size, since the majori ry
of the grievances include matters handled by
family law, personal injury law and criminal
law practitioners. Last year, HCCLA began
a petition drive with the State Bar, and several
criminal law practitioners volunteered to
serve on the Grievance Committees in order
to see that we were better represented and
that the proceedings would be more balanced
and fair whenever a criminal law practitioner
had to appear to respond to a grievance.
I am happy to report that this H CCLA
drive must have worked, as I was notified
this week that I have been nominated to serve
on the District 4C Grievance Committee,
which meets in the afternoons on the first
Wednesday of each month. My proposed
term will begin on July 1, 1999 and will last
for three years. I can promise our
membership that if a criminal defense lawyer
appears before our committee that they will
be treated with respect and digni ry. My
nineteen years of criminal law experience
hopefully will help any other civil lawyers
and/or lay members of the committee to
understand the unique problems that we
Most civil practitioners and members of
the public have no clue as to the rype of the
things we face in our everyday practice of
criminal law. In my conversations regarding
grievances with State Bar counsel and judges,
the central theme always seems to be a lack
of communication between the lawyer and
client. There is no substitute for keeping
the client and family informed of the
progress of the case, your investigation and
the State's evidence in the case, the client's
options and possible consequences of his
decision and deadlines when important
decisions must be made. Lack of
information and failure to communicate
with a cli ent will invariably result in distrust
and a deterioration of the attorney/client
relationship and in some cases result in a
grievance. To avoid this potential problem,
always know the law and the facts of the case
and inform your client of both.
H CCLA has always had a mentor
program where older more experienced
criminal defense attorneys would help
younger criminal defense attorneys with plea
negotiations, evaluating a case, legal ethics,
trial tactics and techniques and actually
participating in a jury trial as either a first or
second chair. Over the years I have had many
younger lawyers sit with me at a tri al to, at
the least, help on jury selection, but most
prefer to sit through the entire jury uial as a
learning experience. On the other hand,
younger lawyers need us more experienced
practitioners to sit second chair with them
in order to help guide them and give them
more confidence in their abiliry to be good
trial lawyers. Angela Cameron, one of our
directors, a young, energetic lawyet who has
little trial experience, asked me to sit with
her as a mentor in one of her jury trials. I
soon discovered that Angela had onl y sat as
second chair in some jury trial s and had
never conducted voir dire on her own. I
fully understood her concern and need for a
mentor when I found out that her first jury
tri al scheduled was a Murder and an
Aggravated Assault to be tried jointly. Our
client got into an altercation in his driveway
and shot the complainant twice in the
Aggravated Assault case and was claiming
self-defense (apparent danger). He retreated
into his home, but the deceased in the
murder case was a friend of the first
complainant and came onto the front porch
of our client's home with a brick and
proceeded to smash in his front door
window. Our client fired a shot through the
fron t door that killed him, and he was
obviously claiming self-defense and defense
of properry. The jury received the case at
3:30 in the afternoon and by 5:00 there was
no sign of a verdier. A younger lawyer trying
this case by herself would have probably
buckled to the pressure from the judge,
bailiff, prosecutor, court clerk and court
reporter and allow the jury to go home and
come back to deliberate the next morning.
The prosecutor, however, had included in
her final argument the infamous, "What are
you going to tell your famil y, friends and
neighbors about your jury service when you
tell them that you let go a murderer?" Much
to the dismay of all of the court personnel,
we stood our ground together and asked that
the jury be sequestered. The judge called in
pizza and allowed the jury to continue to
work, and they returned verdicts of "not
guilry" on both cases at 8:00 that evening.
Angela and the client were obviously ecstatic
with our work and the result we achieved.
This is definitely a success story for our
mentor program, and there is no reason that
it can't be repeated in the future many times
over. I encourage any young lawyers who
need our help to call me, or any officer or
director, at any time when you need advice
or help with your cases. I also hope [ can
count on our experienced members to
volunteer when I, or anyone else, ask (hem
to serve as a mentor when needed.
This is my last "President Elect" letter, as
I take office as President on June 24, 1999
at the HCCLA Annual Meeting and Parry.
Our current president, Lloyd W. Oliver has
proposed a three-year plan to set aside funds
dedicated to the purchase of our own
building. In general, I agree with this idea
of our own building, but I disagree that this
fund should be called a "Building Fund." It
should be call ed a "Long Term Capital
Fund," and we should still be able to have
access to this fund in times of financial
emergencies. I would propose that we
designate 50% of the income from our
successful seminars for the "Long Term
Capital Fund" so that we can still allow
sufficient funds for our operating account
to cover our normal every-day expenses.
Lastly, I hope to see each and every one of
you at our Annual Banquet on June 24, 1999
at the Majestic Metro. Please come out and
share a good time with all of us and I look
forward to carrying some serious HCCLA
momentum into the new courthouse and the
new millennium. Keep the faith and don't
ever gIve up.
May / June 1999
Today, April 29th, I finished my term as a
Harris County Grand Juror. I was one of
cwelve people picked by the Honorable Ted
Poe to serve as a member of the 228th
District Court Grand Jury. I want to thank
Judge Poe for putting me on his grand jury.
When I was first asked to serve by the
grand jury commissioner, my first thought
was, "Right, a defense attorney on the grand
jury. Fa.r chance!" Our particular panel ended
up with cwo defense attorneys, cwo reserve
police officers, and the foreman was a civil
attorney. We had five women, three
African-American, one Hispanic and three
white males. All in all, I would say, a fair
representation of the Harris County
The only fault I find with the grand jury
system is that there are no representatives of
the lower to lower-middle socioeconomic
classes. They cannot afford to do this type
of work. I was paid the magnificent sum of
SIX AND 001100 DOLLARS for each day
that I did my duty!!!
The first day we had an orientation
meeting where we were instructed on our
job, i.e. finding probable cause. Let's face
it, probable cause is not a big hurdle co have
co leap. It's not even a little tiny hurdle. But,
interestingly enough, almost every day there
was at least one case where the State, in the
person of the various assistant district
attorneys, presented cases to us and were
unable co overcome it. I do not know how
the other four grand juries that were meeting
during the February term handled their cases
or how many cases they no billed. But I think
I can safely say that my panel no billed those
cases which needed to be no billed, and in a
few cases (very few) no billed some which
should have been true billed . It was
interesting to me that in cwo cases where the
vote was 11-1 in favor of a no bill, the one
vote for indictment was mine.
During the orientation, Jim Leitner spoke
to the panels and asked that we please hear
the witnesses when a defense attotney
requested it. He explained the obvious: that
normally, defense attorneys are not going co
bring clients before the grand jury, so if a
defense attorney does request that the grand
jury listen co the defendant or a witness, there
is probably a good reason co do so.
No sooner had our panel begun, than a
defense attorney promptly showed that he
was an exception co the rule. While his client
was being eaten for lunch by the prosecutor,
the grand jury members, especially the three
attorneys, were looking at each other
wondering, "why on earth???" Perhaps the
client overrode the attorney's advice. If that
was the case, the client hopefully will listen
to his attorney at trial.
In those instances where witnesses were
presented, or the defendant testified before
rhe panel, a higher percentage of the cases
were no billed.
It was also interesting to see how the
members of the panel without experience in
the criminal justice system dealt with some
of the "minor" cases, such as possession of
crack pipes, etc., with residue, or 10 -15 mgs
of controlled substance. Their attitude was,
"why are we dealing with this BS?"
I talked to various assistant district
attorneys while I was serving on the grand
jury, and their attitudes coward my panel
covered a wide range. Some said things like,
"You're on that horrible panel with the
defense attorneys." It might be educational
for them to discover that when a case was
no billed, it was either overwhelmingly voted
down or often it was some of the lawyers
that voted for a true bill.
The other prosecutors that I spoke to had
no problem with my panel. They tended to
be the ones who actually came into the grand
jury and were obviously prepared co present
their cases, knew what they were doing and
knew what they wanted, and it showed.
Professionalism is always appreciated and
admired. I was also pleased to find that often
the prosecutor presenting the case would
either volunteer that he did not feel that the
case should be true billed or, when asked
outright, ifhe want co try this case, he would
say, "No." We sometimes asked the district
atcorneys presenting cases for their opinion,
but other than in those instances, never once
did we hear that a particular case had to be
true billed or no billed. Never did we hear
about or feel any pressure to do any particular
Many times trying to arrive at a decision
involved tremendous emotion. Once it got
to the point that a mutiny almost occurred,
with several of the members threatening ro
walk out and bring the process to a grinding
halt. Eventually everybody calmed down and
we proceeded, but this is a perfect example
of why the grand jury is not a rubber stamp.
In closing, although serving on the grand
jury is financially draining and taxing in
terms of the time you spend away from your
office, it is a very interesting and satisfying
experience. All defense attorneys should go
to their favorite judge and ask co be made a
commissioner, or find a grand jury
commissioner and ask her to submit your
name. You will enjoy the experience and take
away from it what you put into it. You will
also have a unique opportunity CO make a
difference in the system. You will be amazed
at how often you vote for a true bill and find
yourself on the "losing" side. That is why
you are not Johnny Holmes's "rubber
c.R.. Markham & Associates
Private /lfvestlglllions
s.. Uc.wx ClHll
1807 West 34th Street, Suite C
HQIIStolf, '17018

Personal Protection
May / June 1999
Psychological Insights
A DayonJuryDuty
I'm juror number thirty-seven. We are
herded, like catrie, from the jury assembly
room to this courtroom. This
dehumanization process started at about 8
o'clock thi s morning. I'm tired; I've waited
two hours to get here. We are waiting for
the judge to enter. There are sixty of us on
this panel. The man on my right is reading
Tom Clancy's book, The Hunt for Red
October. The lady on my left has a Jet
magazine. She is flipping through the pages,
onl y superficiall y reading the material,
whereas the man seems deeply involved with
hi s book. I'm a trial lawyer, so by instinct I
watch patterns and human behavior to look
for clues in understanding a per son's
psychology. Neither juror seems interested
in the young defendant, a Hispanic male,
sitting at the table in front of us.
The prosecutor watched us carefully as she
wrote our names and numbers. She saw me
and smiled. I've known her for years; she is
an excellent trial lawyer. She was nearly and
carefully dressed, almost immaculate. She
was almost perfect, which is always a
weakness when you are dealing with jurors.
Perfection is always a barrier that prevents
rapport with the average human beings I
wondered if the defense lawyer was careful
enough to perceive this weakness.
I did not know the defense lawyer, but I
could tell that he was inexperienced. There
was an obvious psychological and physical
barrier between the lawyer and the
defendant. The lawyer never said a word to
the young man or even looked in his
direction. For some reason the defendant was
pl aced at the very end of counsel table. The
distance between the two was palpable.
Experienced criminal lawyers always act like
they like their clients, even if they don't. The
defense lawyer did not seem to realize that
he was sending a subliminal message to the
j ury: Hi s client was not someone you wanted
close ro you. Body language can be much
more articulate than words. The judge
walked in with great alacrity, and a bailiff
yelled "All RlSE." We stood up and then
were o rdered to sit down. We were
accustomed by now to acring as a group. The
judge spoke a few moments introducing the
parties and telling us what type of case it
was; it was an Aggravated Robbery with a
Firearm. The lady next to me gasped when
she heard firearm.
Several men in front of me shook their
heads in obvious disgust. The man next to
me dropped his book as though startled. I
watched the defense lawyer to see if he was
observing this behavior, but he was reading
what seemed to be the Penal Code rather
than the jury. The atmosphere suddenly
changed; jurors began to look at the
defendant as if they were some beast
suddenly observing their prey.
I wondered if the defense lawyer was
s killed enough to adjust thi s new
atmosphere. Experienced lawyers know to
watch jurors and judge their reactions for
clues. A juror's reactions tell a srory by
themselves, and a trial lawyer must be able
to watch and listen for these messages. The
defense lawyer was not hearing this jury
because he was not observing it.
The prosecutor spoke eloquently, but in
general terms, asking questions by rows
rather than speaking to individual s. It was
obvious the panel sided with her. Yes, one
witness was enough if they believed that
witness. No, they would not hold it against
the defendant if he did not testify. Yes, they
believed in the presumption of innocence.
These answers were appropriate and proper,
but they were not the truth. I had spoken to
several of the jurors before we entered the
courtroom, and I knew their prejudices.
Several wanted the defendant to prove his
case, several felt that the indictment meant
something, several were related to or friends
with police officers and would believe an
officer's testimony over anyone else's and
some believed the defense lawyer would li e
to get his client off.
My fellow jurors gave me this information
in the hallways or as we casually walked from
the jury assembly room. They fel t
comfortable when we talked, but the
courtroom was a tense, structured and
uncomfortable environment. The peopl e
who had spoken casually to me, kept rheir
hands down when these same questions were
asked in court. They all wanted to be fair in
the eyes of the judge.
I found it odd that I would know more
about rhe prejudices of this panel than the
defense lawyer, because I was looked upon
as one them. I'm not one to critique a trial
lawyer's performance; it's always easier to call
plays from the stands than from the field,
where the pressure is fast and furious. But
some points stood out like red flags to me.
There were several things that hurt this
lawyer's case from the onset.
The defense lawyer introduced himself
again and called the young man his client
rather than calling him by his name. The
word "client" signals an economic
relationship not a human relationship. You
must make your client a human being with
whom jurors can identify. He must not be
depicted as some beast preying upon their
neighborhoods. You must give them a reason
to keep their minds open. You must have a
story, one that they can relate to. Why is your
client here ifhe is innocent? Was it mistaken
identification, self-defense, over-zealous
police action, etc .... You must be able to
create an environment of comfort in the
courtroom. Jurors must feel they can share
their prejudices with you and not be
chastised. You must establish a sense of
credibility, and you must establish rapport
with jurors. Always remember they have
been conditioned to act as a group rather
than as individuals. You must establish your
own integrity with the jury, for you are the
principal narrator of your client's story. You
are the principal person fighting for a young
man's freedom because it is the right thing
to do. Whether it's guilt or innocence,
punishment or merely due process, show the
jury you intend to fight with every breath
that you have for this human being.
Finally, slow the process down. I heard
Judge Larry Standley say at a recent seminar
that he slows the criminal process down to
look at human beings individuall y. I feel that
it is imperative that we request more rime in
voir dire; it is virtually impossible to talk to
sixty people in thirty minutes and be able to
intelligently determine who should make a
decision on the most important aspect of a
human beings life, her freedom . As an
organization we must advocate for more time
in voir dire from all of the judges.
It should come as no surprise that I was
not chosen to sit as a juror, but rhere were
several people picked, who told me, in
candor, that they could never be fair in a
criminal case. This experience has gi ven me
a totally different view of the jury selection
process. It's something for all of us to think
May / June 1999
Remote access [0 the Disrrict Clerk's
Justice Information Management System has
been available fot years. Now the clerk's
office has made access easier by purting access
ro the criminal JIMS system on the internet.
Ifyou are already aJIMS subscriber, you can
now log on at
subscriberlcb/subcrim_logon. htm instead of
calling the separate access number.
If you are not a subscriber, send e-mail to for information on
becoming one(it requires a deposit and
attendance at a class that is given by the
clerk's office once a month) .
Once you are subscribed, you can find,
from any computer connected ro the web,
the recorded details of a case. If someone
calls you on Sunday afternoon and
announces that he needs a lawyer in coun
the next morning, you can find out through
the internet what the charges are, which
court the case is in, what setting the case is
on, how much the bond is, whether there is
already a lawyer on the case and whether the
client has any other priors in Harris County.
The District Clerk also seems ro have plans
ro put the ]IMS 503 repon, which shows
the bookings and releases from the Harris
County Jail in the last 24 hours, on the web.
So far, though, clicking on the "JIMS 503"
link just gives an error message.
InternetSearch Engines
The amount of information on the
internet is mind-boggling. There is no table
of contents for rhe internet; there is no
official index. Any guide ro rhe internet that
is printed on paper is outdated before it hits
the store shelves. The best way to find
information on any topic is to perform a
search, using a search engine. A search
engine is a computer program that keeps
track of the information on all of the web
pages that comes to its attention.
Imagine that someone creates a web page
discussing the various yak- milking
techniques used in the villages in his region
of Mongolia. He can send a message to a
search engine, saying "this is my web page,
and this is what it is about. " The search
engine will look at the web page and keep
track of the words that are present on the
page, so that when you ask the search engine
to find you pages that contain the words
"Mongolia" and "yak," the search engine
offers up that page. The search engine would
also give you other pages about Mongolia
and yaks, and might give you pages that you
are not interested in, like a college student's
account of yakking after eating a bad plate
of Mongolian barbecue.
Advertisers pay search engine companies
to place their ads on search pages. Search
engines are big business right now. Several
of them are publicly traded. You've probably
heard radio advenisements or seen TV ads
for some of them.
Some of the more popular search engines
are AltaVista, Excite, Hot Bot, InfoSeek,
Lycos, Magellan, WebCrawler and Yahoo.
The URL for each of these is http://, where "foo" is the name of the
search engine.
- .............. - - - . . - - - - = p

The illustration above shows a typical
search engine page. This one is from
AltaVista. A lot of the stu ff on this page has
nothing to do with searching the internet; it
is there to lure more visitors to the page so
that AhaVista can charge mote for the
advenising space it sells ro make its money.
Near the rop of the page, there is a box
below the words "Ask AltaVista a
question." To perform a search, you would
type in a few key words (mongolia yak, for
example) and click on the "search" burron
[0 the right of the box. Plain-English
searches, like "How do they milk yaks in
Mongolia?" don't work any berrer than
keyword searches, like "milk yaks mongolia."
To the right of and above the "search"
burron, there are the words "Help" and
c.....,._ ...... _ _ ___
"Advanced." Clicking "Help" will give you
tips on performing more efficien t and
accurate searches. Clicking 'Advanced" takes
you to a page that allows more complex
searches, which, used properly, may give you
better results. The other search engines
provide similar assistance.
Which search engine is best is a matter of
personal taste. Try each one of them. Or
try them all at the same time. The Search
Spaniel [http://www.searchspaniel.comlcgi-
bin/spaniel.plJ is an example of a
"metasearch" site - a site that allows you to
search many search engines at the same time.
If you have an Appl e computer, OS 8.5
includes a program called Sherlock that will
query a large number of search engines and
return the results in a single list with the
pages that match your search most closely
at the top of the list and the least relevant
pages at the bottom.
The March / April 1999 issue ofDocket
Call is now available on-line at: http://
May / June 1999
------ - - ------------
What is the HCCLA?
TheHCCLAis a nonprofit, tax exempt,
professional association made upoflawyers
ro promoteexcellenceandhighidealsin the
practiceofcriminal law.
Applicant:_________________ ___ __________
theStateBarofTexas, who is endorsed by a
memberofHCCLA is eligible ro join.The Telephone:
endorsement recommends the applicant as ------------------------------
a person of professional competency, FirmName:
integriry and good moral character who is -----------------------------
actively engaged in the defense ofcriminal DateadmittedtoBar: LawSchool:
What does a member do?
Participates and exchanges information
andskills in ourCLEprograms.
Contributes ro ourBriefBankService.
Performs agreed Pro BonoService.
Brings [Q the Association's attention
proper grievances in the practice which
merit responseandaction.
ofdisciplinaryaction nowpending?_____
Shares in our monthly luncheons and
annual social events.
Takes calls onourReferral Service. TypeofMembership:
Student($25.00Annual Fee)
What does HCCLA do
(Expected graduationdate____
for the defense bar?
Referrals through our Lawyer Referral
NewlyLicensed (firstyear) Membership
Service and through our membership
HCCLA Publications including Docket
RegularMembership ($125.00)
C a ~ a monthly newsletter summarizing
AffiliateMembership ($100.00)
significant decisions ofthe Texas Court
ofCriminalAppealsandTexas Courtsof
SustaningMembership ($500.00)
Appealsandtopics oflocal interestro the
criminal defense bar.
Provides a responsive local forum for
lawyersactivelyengagedin thepracticeof
date signa[Ure ofapplicant
Opposeslegislationand local ruleswhich
infringeonindividualrights protectedby Endorsement
I, amemberingoodstandionofHCCLAbelievethisapplicantro beapersonofprofessional
Promotes a productiveexchangeofideas
and encourages better communication competency, integriryand good moral character. Theapplicant is actively engaged in the
with prosecurors and thejudiciary.
Provides continuing legal education
programs for improving advocacy skills
and knowledge.
Promotesajustapplication ofthe court-
date signa[Ure ofmember
appointed lawyer system for indigent
persons chargedwith acriminal offense.
Files Amicus Curiae Briefs where
May /June 1999 DOCKET CALL 9
Voir Dire in Child Sexual Abuse Cases
The witch hunt is only just beginning.
The child abuse lobby/industry is composed
of well intentioned people with great faith
in their cause. They are true believers on a
crusade, which, like all crusades, will breed
intolerance and great pain.
We do not want these crusaders on our
juries in child abuse or molestation cases.
In this article, I will share with you some
questions designed to identify the crusaders
during voir dire.
The late Cathy Bennett, the most heroic
and colorful of the growing breed of
psychological jury consultants, assertS that
the voir dire should be composed of open-
ended, case-specific questions. The sample
questions I am presenting here, which have
evolved over the course of my experience,
were either written by Cathy, inspired by
Cathy or derived from the creative process
that she encouraged.
Sample Questions
Before you begin your questions, remind
the jurors that the personal, "are you a
victim" questions can be asked in sotto voce
at the bench.
1. Many of us have a real problem talking
about sexual matters in public in front of
strangers. If you feel that way I know that
his honor will let us talk privately. How
many of you would prefer to talk in private
about sex and sexual abuse, assault and
2. Does the nature of the charge make it
more difficult (0 judge the evidence
3. Would you feel any different about your
ability to be 100% impartial if Mr.
Defendant were charged with the felony
offense of writing a $800.00 hot check or
any other felony? Please develop.
4. Mr. X, did you read the March 4, 1991
article in Time magazine entitled, "Why
children Lie in Court," in which the author
states, (indicate subtitle) "New Research
shows how the power of suggestion can lead
youngsters to say things that send innocent
adults to jail?"
5. Ms. Y, now that you are aware that new
research is casting reasonable doubt on the
common idea that children rarely lie about
sex-abuse crimes, will you keep an open-
mind when listening to an innocent child
relating graphic and detailed accounts of
sexual molestation?
6. The Time article goes on to cite recent
research that shows that innocent children
may frequently believe their falsehoods
because of the way that professional child
protection workers have questioned them.
Can you see how this could happen?
7. The Time article also refers to a n urn ber
of authorities who are concerned that the
use of anatomical dolls to question children
is a highly suggestive practice. Will you ask
yourselves if the use ofanatomical do Us leads
to untrue testimony from an innocent child?
8. This "Spider Man" comic book (show
the book) is published by an interest group/
lobby known as the National Committee for
Prevention of Child Abuse. The comic
contains a story that implies that if the
daughter/victim will only report her father
(who has been molesting her) then he will
receive help. Mr. Z, is it fair to tell children
that we are going to help a parent when our
true goal is to indict/jail the parent?
9. Mrs. R, should we lie to children about
our aims in child abuse cases?
10. Mrs. D, I have a friend whose nephew
was upset at not receiving the usual present
from her. The child blurted out, "You
spanked me hard." My friend was stunned,
because she is one of those people who wouJd
never strike a child. She confronted the
child, who admitted that he had used a bad
"tattle" because he was mad. If you were
accused of child abuse, wouldn't you want
to confront your accuser before that accuser
was seized and subjected to a battery of
interrogations by a team of social workers
already inclined to believe you are guilty?
11 . How can an innocent person prove
his innocence? How can you, an innocent
person, prove a negative?
12. Do you think that children can be
manipulated by adults? How does this
13. Dr. Spock used to say, "Children strive
to please." Do you think that children tell
us what we want to hear?
14. Have you ever known anyone who was
the victim of sexual assault or abuse?
15. Has there ever been an accusation of
sexual assault directed at someone you knew?
16. Have you, a family member or a close
friend ever been sexually propositioned?
17. Have you ever attended a movie rated
"X"? If not, why not?
18. Are you, any of your family members
or any close friends associated in any way
within any group or organization supporting
the accused or the victim in alleged sexual
assault or abuse?
19. Are you, any of your family members
or any close friends associated in any manner
with any group or association that wants to
change the law as it relates to sexual assault,
abuse or molestation?
20. Have you, any family member or any
close friends ever worked as a social worker,
welfare worker, family-service worker,
psychiatrist, psychologist, counselor or
similar occupation?
21. Have you, any family member or any
close friends ever wanted to go into social
22. Have you, or any of your relatives or
friends ever worked for or volunteered to
work at a rape crisis center, womens' shelter
or foster care facility?
23. What training or education have you
received in psychology, sociology, human
sexuality, child behavior, etc?
24 . How do you think/feel about
psychologiscs, counselors, social workers and
like professionals engaged in child therapy?
25. Some people believe in psychiatry,
others do not. What is your opinion?
26. Some people feel that some people in
the psychological professions would use
children to advance their own careers. What
is your feeling on this subject?
27. Given your experience with children,
is there an age when kids begin telling truth?
28. Do you think kids lie or fib about
important things? Why?
29. We may be able to tell when our own
kids lie or fib, but how can we tell when it is
a child we do not know?
30. Do you think a child could lie about
sexual contact and fool everyone including
parents, social workers, psychologist and
even a prosecutor? Why?
31 . I f a person tells a false story over and
over to a lot of different people, what effect
would that have?
32. Can a child be trained to testify about
things that did not happen? Why?
33. Have you ever talked to children about
sex or sexual abuse? In what circumstances?
Please develop.
34. How would your spouse react if you
sat on this jury and returned a verdict of "not
10 DOCKET CALL May / June 1999
35.Whatwouldyou doifachildaccused
you ofsexual molestation?
36. Before today whatwas your opinion
on the issue ofsexual molestation?
37. What have you read, heard or seen
aboutthesubjectof childsexorchildsexual
38. Whateffectdoes the publicityabout
childmolestationhaveonthechancesof Mr.
Defendantreceivingafair trial?
39. Haveyou ever had an interest in the
40. Mrs. X, as a teacher, whatsteps have
you and your associates taken to protect
yourselves from the possibility ofbeing
wrongfuUyaccused ofchild abuse.
41. Mrs. X, doyou thinkthatyouwould
feel safe ifwe had legislation to require a
could be filed?
42. Doyou thinkthatbeforecharges are
filed, thereshouldbesomekindofscreening
procedure in which the citizen accused is
permitted to contribute? Doyou have any
43. Ms. W, have you heard about these
peoplewhoare hypnotizedand believe that
theyhave lived a past life?
44. Areanyofyoufamiliarwiththeterm
cryptonesia, e.g. , the planting of false
memorybysuggestion orhypnosis?
45. Doanyof you rememberthenational
debate thatwas inspired a numberofyears
hadlied abouttheidentifyofthe manwho
raped her?
46. Sinceyou remember thatstory, were
you surprised to learn that DNA
fingerprintingconfirmedherclaim thatthe
wrongman was convicted?
47. Ms. J, as a nurse, have you had a
chance to read the article in the American
JournalofNursing(Feb. 91) entitled,"The
Evidence is Shakyat Best," which discusses
alleged sexual abuse ofchildren?
48. Have any ofyou read an article in
Good Housekeeping magazine entitled
"How to Protect Yourself from the False
49. Have you ever hesitated to allow a
child to spend the night with your child?
50. What do you think about the facts
thatmanyfalse claimsof sexualabuseoccur
duringdivorcecases? Whydoyou thinkthis
51. Ms. P, asaspecialeducationinstructor,
what can you tell us about child curiosity
about sex? Would it be fair to say that
children these days know more than they
used to knowaboutsex? Why?
52. How many ofyou feel that a child
could be pronetofantasize orexaggeratean
innocenttouching? Howcouldthishappen?
53. Do you thinkthe widespread media
and publicattention to the subject ofchild
abuse has influenced the false reporting of
childsexual abuse?
54. Mr. W, as an elementary school
thatwould make it difficult for you to be
100%objective? Inlightofthat,ifyouwere
to believe a defendant was guilty ofchild
sexualabuse, butyou still held a reasonable
doubt, could you vote "notguilty" with no
mental reservation whatsoever?
55. Doyou think it is better for society
that we risk the fact that in a fair judicial
system, in order to protect the innocent,
guiltydefendantssometimeswill go free?
56.Are you aware ofany famous child
sex cases? What is the main thing you
rememberaboutthiscase? Whatdoyoufeel
aboutthe results? Please develop.
57. We all have natural sympathies that
have been formed by our life experiences.
Does anyone have a natural sympathy that
wouldcause them difficultyin maintaining
a postureofperfectimpartiality?
58. Mrs. Doe, how do you feel about a
system thatgrants Mr. Defendantthe right
to sit here and do nothing and refuse to
Houston,TX 77092
Office(713)957-8442 Fax(713)688-
Adver1isemenl donated by HeCLA.
testifyin achildsexcase? Doyou thinkthis
should be changed?
59. How many ofyou regularly watch
police documentary programs such as
"America's Most Wanted," "A Current
Affair," "Cops,"etc.?
60. Mrs. Z, ifyou are selected as a juror
in thiscase,willyou presumethedefendant
innocent throughout this proceeding?
61. Doanyofyoufeel orbelieve thatthe
defendant in a case like this should be
required to offer some proof ofhis/her
innocencebeforehe his entitledtoaverdict
62. Mrs.James, duringthe courseofthis
trial, you may hear some very sordid
testimony, in which the commission of
deviantsexactsmaybe discussed. Canyou
honestly say that you will impartially
consider the evidence after hearing such
63.Mr.Y, haveyouformedsomeopinion
about the guilt or innocence of Mr.
Defendantorto the meritsofthis case?
64. Mrs. Jones, are you sufficiently
confident ofyourself to stand by your
opinion without being influenced by the
dissatisfaction ofyourfellowjurors?
65. Mr. Y, beingaware ofyour frame of
mind, ifyouwere charged todaywith child
sex abuse,wouldyou be contenttobe tried
byajurorwithsimilarframe ofmind?
66. Nowthatyouhave hadsometimeto
thinkaboutthepurposeofjuryselection, is
there anythingwe have asked you or have
forgotten toaskyouthatcouId possiblykeep
youfrom beingcompletelyfairandimpartial
in this case?
Children and
Family Services
Trinity FosterCare needs
competentfosterparenJs toserveas
to protect and nurtllre
achanceto laugh, play, dream,
learn, andgroW.
May/June 1999 DOCKET CALL 11
Docket Call continues to boldly go where
no one has gone before. In our ongoing
effort to educate practitioners on the various
backgrounds, practices and pet peeves of our
newest Harris County criminaJ judges, this
month we profile Hon. Elsa Alcala and Hon.
Susan Brown.
JudgeElsa Alcala
Hon. Elsa AlcaJa is Judge of the 338th
District Court. She succeeds Hon. Mary
Bacon, who retired from the bench in late
1998. Judge AlcaJa was appointed in mid-
term by Governor Bush and will face her
first election in the year 2000.
At age 35, Judge Alcala is reportedly the
youngest judge in the criminal courthouse.
She is aJso the only Hispanic, femaJe judge.
Despite having more torches to carry than
arms to carry them, Judge Alcala has
accomplished a smooth transition ftom her
job as a prosecutor to her present position
on the bench. This is due, in part, she says,
to her decision to retain nearly aJl of Judge
Bacon's former staff, including veteran
Coordinator, Karen Garrett. "Keeping her
and the other staff members has easily been
the smartest decision I have made so far,"
she tells Docket CaJl.
Judge AlcaJa grew up in the VaJley and
eventuaJly attended Texas A&I in Kingsville,
where she received a Bachelor ofArts Degree
in 1986. Upon graduating from the
University of Texas School of Law in 1989,
she accepted a job as an Assistant District
Attorney in Harris County.
Judge Alcala rocketed through the ranks
of the District Attorney's Office and made
Felony Chief in less than five years. During
her career in Harris County, Alcala served
as Chief of the 178th (Hon. William
Harmon) and 209th (Hon. Michael
McSpadden) District Courts. She also
prosecuted in the SpeciaJ Crimes/Narcotics
Task Force Division and the SpeciaJ Crimes/
Organized Crime Division.
Having "tried everything from speeding
tickets to capitaJ murder," Assistant District
Attorney Alcala contemplated a career
change even before applying wi th Governo r
Bush's office for a judiciaJ appointment.
"It was time to move on," she says. "I felt
had achieved everything I was going to
achieve as an Assistant District Attorney. If
I hadn't been selected to be a judge, I would
have considered going out on my own."
While Judge Alcala believes she might have
been a good defense attorney, fate intervened
when Judge Bacon retired, and severaj friends
encouraged AlcaJa to apply for a seat on the
bench. Alcala completed a detailed written
application, followed by a lengthy interview
in Austin with a Bush staffer before getting
her officiaJ call from the Governor's Office
late last year. Her selection as a first-time
applicant capped a year of good news for
Judge Alcala. Earlier in 1998 she married
Houston Police Department Sergeant Dan
On the bench, Judge AlcaJa prides herself
on being "very approachable." Although
Alcala will not get involved in plea
negotiations, practitioners are encouraged to
approach about docketing issues, sentencing
alternatives and the like. The Court's
standard discovery order is available upon
request, and defense attorneys are free to file
additionaJ motions as they see fit . Since there
is no set rule regarding pretriaJ hearings on
motions, attorneys are encouraged to talk the
matter over with prosecutors and the Court.
Practitioners will be pleased to know that
the 338th District Court is no longer a
"closed shop" for court appointments.
Interested lawyers should contact Ms.
Garrett for a one-page written application.
Even young lawyers (provided they are
certified to handle felony appointments) may
be appointed to handle routine matters, such
as Motions to Revoke Probation and
Motions to Adjudicate Guilt.
"Come taJk to me if there's something you
need to know," she advises. "For instance,
if there's a special circumstance in [your
client's] case, or ifyou've got an issue in your
private life, I will do my best to
accommodate. I want [everyone] to want
their cases to end in [my] court, because,
regardless of the outcome, you will get a fair
hearing. "
As to her pet peeves, Judge Alcala says she
doesn't like "rudeness" from attorneys on
either side. She says she will not hesitate to
reign in an attorney if she sees one
mistreating another, particularly ifit happens
in the presence of the jury. (Rudeness to
her Honor is likewise inadvisable.)
"I don't think anyone perceived me as
being a 'rabid' prosecutor," Judge Alcala says.
"Now that I'm on the bench, I try to concern
myself about the rights of everyone,
including defendants. Every defendant is a
human being, and aJmost aJl human being
have at least some redeeming quaJities," she
Rudeness, of course, would not be
considered a "redeeming quaJity" in Judge
Alcala's court.
JudgeSusan Brown
Hon. Susan Brown is Judge of the 185th
District Court. She succeeds Hon. Lon
Harper. Since taking her seat on the bench
in January 1999, Judge Brown has wasted
no time in developing a reputation for
efficient docket management.
Judge Brown was raised in Houston and
graduated from Eisenhower High School in
1978. She later attended Texas A&M
University, where she earned a Bachelor of
Science degree in Elementary Education in
1982. As a senior at A&M, the future Judge
Brown spent a year teaching fourth grade.
Shortly thereafter, she turned her sight on a
law degree and enrolled in South Texas
College of Law. Judge Brown received her
Doctor of Jurisprudence in 1985 and
immediately accepted a position as a
prosecutor in Collin County (near DaJlas),
"Collin County was so small that I
remember sometimes having jurors who
served on [successive] cases," she recalls.
Nevertheless, what seemed ro be a very
appealing career in comfortable Collin
County ended when Judge Brown was
recruited into the Harris County District
Attorney's Office in 1988. She explains that
the opportunities in Harris County were
better and "the time was right," but laments
that Harris County made her "start over
again" and begin work as a misdemeanor
prosecutor. One assignment as
Misdemeanor Chief lasted more than a year
for Brown, who eventually made up the lost
time reached Felony Chief within rwo years
of joining Harris County.
Brown left the District Attorney's office
in the faJl of 1997 to seek a position on the
bench. After several month of vigorous
campaigning, Brown unseated an incumbent
in the 1998 Republican Primary and
12 DOCKET CALL May / June 1999
prevailed in the general election later that
Practitioners in the 185th should be
prepared for things ro move quickly.
Following the arraignment, non-issue and
pretrial conference serrings, a plea or trial
serring is the next option. The Court will
grant discovery consistent with its standard
order, and pretrial motions will usually be
carried with trial unless dispositive. If the
Court does grant a hearing on pretrial
motions, it will usually be conducted on a
The first setting for Motions to Revoke
Probation and Motions to Adjudicate Guilt
will usually be held on Tuesdays, with
hearings for such marrers on Thursdays.
While Judge Brown will not disclose
beforehand her position on a potential
punishment, she may advise lawyers whether
she believes the State has made a "reasonable"
For court appointments, Judge Brown
maintains an "open shop." She encourages
attorneys of varying levels of experience to
apply for the court appointment list thtough
her Coordinator Marion Trammel. Simply
fill out a written application and attach a
recent photo of yourself if the Judge has not
previously met you. Judge Brown personally
reviews all applications and appoints
attorneys to cases commensurate with their
level of experience. Interested arrorneys will
sign a weekly list stating their rwo preferred
days for an appointment the following week.
If you're selected, the Court will call you the
day before your scheduled appointment.
When asked about her pet peeves, Judge
Brow shrugs and says there is little that really
bothers her. When pressed, however, she will
tell you she doesn't like late lawyers, especially
on the day of trial.
Attorneyat Law
3700N. MainHouston,Texas77009
Tel: 713.802.0101 Fax: 713.236.8801
May / June 1999
Looks Can Be Deceiving!
Forensic Evaluation of Eyewitness Identification Evidence
Eyewitness identification is often relied
upon to prove facts in both criminal and civil
cases. Because jurors tend to give great
weight ro such identifications, and because
eyewitness identifications can be unteliable,
the trial advocate must seriously consider
evaluating, impeaching or supporting such
evidence with the use of expert witnesses.
Current law now permits, and might even
obligate, the trial advocate ro offer such
evidence in certain cases to either attack or
to support the proffer of eyewitness
testimony in lawsuits.
This article should assist the trial lawyer
in forming a basic outline for preparing and
presenting expert testimony on eyewitness
identification. The outline begins with the
basic evidentiary premise for admission or
exclusion ofsuch testimony and summarizes
recent Supreme Court and Texas decisions
that provide specific guidelines for trial
judges as they make the admissibility
decision under Rule 1 04(a), Texas Rules of
Criminal Evidence. The outline also briefly
summarizes the basic psychological
principles, amply supported by scientific
literature, which should guide the advocate
during the evaluation and proffer of
eyewitness identification evidence. These
principles must be simply and clearly
explained to the court by the expert and the
advocate to assist the court with its obligation
to decide whether to admit or exclude such
Rule 702, Tex. R. Crim. Evid.
Ifscientific, 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 thereto in the form
of an opinion or otherwise.
Rule 104(a), Tex. R. Crim. Evid.
Preliminary questions concerning the
qualification of a person to be a witness, the
existence of a privilege or the admissibility
of evidence shall be determined by the
court ...
Daubert v. Merrill Dow Pharmaceuticals,
Inc., 509 u.s. 579, 113 S.Ct. 2786, 125
L.Ed.2d 469 (1993).
The Court held that the trial judge must
ensure that scientific evidence is relevant and
reliable, not necessarily generally accepted
in the particular field in which ir belongs.
Thus, the Supreme Court discarded the
"general acceprance" test under Frye v.
United States, 293 F. 1013 (D.C. Cir. I 923)
in favor of more pragmatic evaluations by
trial courts. The Court found that in order
to qualify as "scientific knowledge," an
inference or assertion must be derived by the
scientific method. Proposed testimony must
be supported by appropriate validation fi i.e.,
"good grounds," based on what is known.
In short, the requirement that an expert's
testimony pertain to "scientific knowledge"
establishes a standard of evidentiary
The Court then idenrified four "general
observations" as appropriate considerations
for the trial court in assessing evidence
offered under Rule 702. While the Court
did not specifically refer to this list of non-
exclusive factors as related to the reliability
inquiry, they all pertain to the scientific basis
of the evidence:
l. Whether the scientific theory or
technique can be and has been tested;
2. Wherher the theory or technique has
been subjected to peer review and
3. The known or potential rate oferror in
a particular scientific technique;
4. General acceptance of the scientific
theory or technique.
The Court now places the trial judge in
the role of a "gatekeeper," who must ensure
that scientific testimony is not only relevant,
but also reliable. Daubert, 509 U.S. at 589,
113 S.Ct at 2794-95
Kelly v. State, 824 S.W.2d 568
The Texas Court of Criminal Appeals
followed the Supreme Court's holding in
Daubertand held that trial courts evaluating
the admissibility of expert testimony under
Rule 702 must determine whether the
proffered scientific expert testimony "is
sufficiently reliable and relevant to help the
jury in reaching accurate results."
The court noted that the consideration of
whether the expert's testimony is sufficiently
tied to the facts of the case im pacted the
relevancy prong, not the reliability prong,
of the trial court's inquiry:
Relevance is by nature a looser notion than
reliability. Whether evidence "will assist the
trier of fact" and is sufficiently tied to the
facts of the case is a simpler, more
straightforward maner to establish than
whether the evidence is sufficiently grounded
in science to be reliable. Id. at 555.
The Court further held that Rule 702
requires the satisfaction of a three-part
reliability test before novel scientific
evidence will be admissible:
I . The underlying scientific theory must
be valid;
2. The technique applying the theory must
be valid;
3. The technique musr have been properly
applied on the occasion in question.
The Court rhen identified the following
non-exclusive factors relating to the
determination of reliability:
I. Acceptance by the relevant scientific
2. Qualifications of the expert,
3. Literature concerning the technique,
4. Potential rate of error of the technique,
5. The availability of other experts to test
and evaluate the technique,
6. The clarity with which the underlying
theory or technique can be explained to the
7. The experience and skill of the person
applying the technique.
The burden of persuasion for the
proponent of novel scientific evidence is by
clear and convincing evidence.
If rhe trial judge determines that the
proffered expert testimony is reliable and
relevant, she must still decide whether the
probative value of the testimony is
outweighed by one or more of the factors
identified in Rule 403, Tex. R. Crim. Evid.
Jordan v. State, 928 S.W.2d 550, 555
(Tex.Crim.App. I 996)
The Court followed Daubert and Kelly
holding that the question under Rule 702 is
not whether rhere are some facts in the case
that rhe expert failed to take into account,
but whether the expert's testimony took into
14 DOCKET CALL May / June 1999
accountenoughofthe perrinentfacrs ro be
ofassistance ro the trier offacr ona facr in
issue. Thatsomefacts were not taken into
accounr bythe experr is a matterofweight
and credibiliry, notadmissibiliry.
Thiscase is nowthelead case inTexason
theadmissibiliryof experr testimonyonthe
issue of the reliability of eyewitness
Nations v. State, 944S.W.2d795(Tex.App.-
Austin 1997)
The rrial coun in an aggravated sexual
assault case disallowed the testimony ofan
experr on the issue of eyewitness
nature ofmemory is within the common
knowledgeof jurors." TheAustinCourrof
Appealsfound thatthis is an improperbasis
for excluding experr testimony on the
reliabiliryofeyewitnesstestimony. Quoting
Jordan, thecourtstatedthat "[wlhilejurors
might have their own notions about the
reliabiliry ofeyewitness identification, that
does notmean theywould not be aided by
the studies and findings of trained
psychologists on the issue. Jordan, 928
S.W.2d at556.
Nenno v. State, 970 S.W.2d 549
Ontheissueoffuturedangerousness ina
capital murder case, a Housron rrial coun
in the behavioral sciences unit ofthe FBI
who specialized in studying the sexual
victimization ofchildren. Inaffirming the
convictionandoverrulingthepointof error,
theCourtheld thatwhenaddressing fields
ofstudyaside from thehard sciences, such
as thesocial sciencesorfIelds thatare based
primarily upon experience and training as
opposed ro the scientific method, Kelly's
requirement ofreliabiliry applies but with
less rigor than ro thehardsciences.
To speak ofthe validiry ofa "theory" or
"technique" in these fields may be roughly
accurate but somewhat misleading. The
1. Whether the field ofexpertise is a
2. Whether the subject marrer ofthe
expert'stestimonyis withinthescopeofthat
field, and
May/June 1999
relies upon and/or utilizes the principles
involved in the field.
These questions are merely an
appropriatelytailoredtranslationof theKelly
test to areas outside ofhard science. And,
according ro the Court, hard-science
methodsofvalidation,such as assessing the
potential rateof errororsubjectingatheory
to peer review, mayoften be inappropriate
for testingthereliabiliryof fieldsofexpertise
outside the hard sciences.
Weatherred v. State, 963 S.W.2d 115
(TexApp. -Beaumont,1998) {WeatherredI},
Weatherred v. State, 975 S.W.2d 323
(Tex.Crim.App. 1998) (Weatherred II);
Weatherred v. State, No. 09-95-225 CR
(Tex.App.-Beaumonr January 20, 1999)
(Weatherred III).
Thiswas aseriesofappealsfromacapital
murder conviction that followed a trial in
which the coun refused to allow a defense
expert to testify about the unreliabiliry of
eyewitnessidentification. Thestateobjected
to this evidence under Rule 702, Tex. R.
Crim.Evid. Theappellantfiled a thorough
billofexceptions,includinganofferof proof
outside thejury's presence thatfeatured the
testimony of a research psychologist
relate to eyewitness identification. The
Beaumont Court ofAppeals reversed the
conviction and remanded for a new trial.
That coun found that the appellant had
indeed proved, by clear and convincing
evidence, the reliabiliry prong ofDaubert
andKelly, andthatthetrialcourthadabused
its discretion in refusing to admit that
evidencebefore thejury.
The state appealed this decision ro the
Texas Courr of Criminal Appeals
(Weatherred II), andthatCourtvacated the
Court ofAppeals' decision and remanded
to properlyanalyze the admissibiliry ofthe
702,Tex. R.Crim.Evid.,andin lightofthe
Nenno decisionas itrelates to"softscience"
TheBeaumontCourtofAppealsthen re-
403 and 702, Tex. R. Crim. Evid.
(Weatherred Ill), andre-afflrmeditsformer
decision reversing the conviction and
remanding for new trial. Thecourtnoted
thattheNenno decisionappearstolessen the
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Deceiving Looks (continued)
the Kelly factors of relevance and reliability.
The cou rt applied the Nenno tests and found
that the proffered expert testimony at trial
was reliable and, under Rule 702, helpful to
the jury on the issue of identification.
Finally, the Beaumont Court of Appeals
addressed Rule 403 implications. The court
held that any applicability of Rule 403 to
the scientific evidence in question, for
appellate review purposes, must take place
in the general context of the need for such
evidence by its proponent, i.e. its
probativeness. See Montgomery v. State, 810
S.W.2d 372, 392 (Tex.Crim.App.
1990)(opinion on rehearing). The analysis
of Rule 403 issues, under Montgomery, is as
Therefore, we hold that where relevant
criteria, viewed as objectively as possible, lead
to the conclusion that the danger of unfair
prejudice substantially outweighed the
probative value ofthe proffered evidence, the
appellate court should declare that the trial
court erred in failing to exclude it. Relevant
criteria gleaned from the authorities include,
inter alia:
1. That the ultimate issue was not seriously
contested by the opponent;
2. That the State had other convincing
evidence to establish the ultimate issue to
which the extraneous, misconduct was
3. That the probative value of the
misconduct evidence was not, either alone
or in combination wi th other evidence,
particularly compelling;
4. That the misconduct was of such a
nature that a jury instruction to disregard it
for any but its proffered purpose would not
likely have been efficacious.
Accordingly, when the record reveals one
or more such relevant criteria reasonably
conducive to a risk that the probative value
of the tendered evidence is substantially
outweighed by unfair prejudice, then an
appellate court should conclude that the trial
court acted irrationally in failing to exclude
it, and thus abused its discretion.
Id. at 392-93
The Beaumont Court of Appeals then
found that the probative value of the
excluded scientific evidence greatly exceeded
any prejudicial effect to the State's case
against appellant in that
1. That the ultimate issue, identity, was
very seriously contested by both parries;
2. Appellant had other evidence that it
produced for the jury indicating that
appellant was not the perpetrator, but this
testimony was apparently not "convincing"
and did not seriously call into question the
identity testimony from the State's two main
3. The probative value of the excluded
scientific evidence was indeed parricularly
compelling as it included the rather novel,
but experimentally validated, theory that the
confidence level ofeyewitness identification
of strangers is wholly un related to the
accuracy of such identification when the
stranger is viewed for a very short time. See
Weatherred, 963 S.W.2d at 131 ;
4. The excluded scientific evidence was not
of such a startling or spectacular nature that
a limiting instruction to the jury, if legally
applicable, could have no practical effect.
1. Did the expert have an opportunity to
talk with defense counsel, prosecutor or
eyewitness concerning the facts and
circumstances of the case?
2. Did the expert review the photographic
line-up, videotape of the live line-up,
composite sketches and other investigative
tools leading to the identification of the
3. Was the expert permitted to remain in
the courtroom to observe the testimony of
the eyewitness during both direct and cross
examination concerning the witnessed event
and the events surrounding the pretrial
identification procedures?
1. Reliability depends upon whether the
evidence is based upon sound scientific
methodology. This demands a certain
technical showing. The question is whether
the scientific theories have been adequately
tested. See, Kelly.
2. Hartman v. State, 946 S.W.2d 60, 62
(Tex.Crim.App.1997) (the Hartman criteria
under this section are listed in large cap block
letters A-G, and my discussion of how each
aspect may be established follows beneath
each statement of the criteria):
Criteria for reliability:
1) The Underlying Scientific Theory
The three phases of memory
Acquisition, Retention, and Retrieva1.
Acquisition Phase
Freezing effect - the most recent memory
is frozen.
Recency effect - when focus shifts to a
suspect, that is the most recent memory
supplanting the memory of the actual
The quality or accuracy of memory at each
phase is affected by
A) High stress causing focus on other
things, thus impeding acquisition of
B) Limited opportunity to observe or
"incident timing."
C) Physical trauma; trauma to the head.
D) Lighting conditions affecting
E) Cross-racial identification.
F) Violence detracting from memory.
G)Surprise as an element.
H) Impaired vision RE corrected vision
or injury.
I) Weapon focus - whether seen or unseen,
was there any concern about the weapon;
did the victim feel the weapon and was she
concerned about it hurting her.
The Retention Phase
Factors affecting the quality of memory
Composite drawings
A) Tend to reduce accuracy of subsequent
B) Person's mistakes are locked in;
C) Probability of negatively affecting
errors are made;
D) Composite drawings are of mixed value
they may be helpful in locating perperrators
of crime;
E) The investigator probably did not
evaluate the quality of the witness's memory.
Time interval
A) The longer the time between
acquisition and retrieval, the poorer the
B) Memory deteriorates over time;
C) Other life events compete with storage.
Nature of police investigation
A) Inherent bias or influence factor by
authority figures;
B) What was said and how it was presented
is important;
16 DOCKET CALL May / June 1999
C) Was there ever an indication that the
perpetrator was in the line-up?
D) Was anything ever said about a
E) How many times did the witness meet
with police and ptosecutors?
F) Did the investigators ever indicate to
the witness after a tentative or positive
identification from a line-up that they would
follow up and place the suspect in a live line-
G) Were there any replacement or
successor investigators involved? To what
extent did they add ro the conditioning of
the witness to expect that a particular
individual would be placed in a line-up?
H) Did the investigator ever tell the
witness, "We have in custody a person we
believe was involved in the robbery - can you
come down to view a line-up?"
1) In cross-racial identifications, has it been
ascertained whether and ro what extent the
witness had early, significant or negative
contact with persons of the subject's race?
Had the witness ever previously been
startled, surprised or attacked by persons of
the subjecr's race? Has the witness ever failed
ro recognize or has the witness ever mistake
the identity of persons of the subject's race?
J) Is the witness to any degree motivated
by a desire for closure or by a desire to please
the investigators in order to motivate them
to work harder on the investigation.
The Retrieval Phase
Factors affecting the quality of memory
A) Police interrogation, line-up, question
B) Biased line-up - height, complexion,
dress, blotter cards held by suspect and / or
fill-ins, facial attitude, etc. ,
C) Any police suggestiveness during
presentation of the identification procedure,
D) Confidence has no bearing, certainty
not a factor.
2) Technique Applying Theory to Facts
A) Was the expert asked to review facts to
attempt to determine the level of reliability
of identification by the witness? How was
thi s done (attorney provided facts ,
courtroom observation, witness interview,
review of identification procedures and
artifacts, review of pre-trial discovery, etc.)?
If the attorney provided the facts to the
expert, are those facts subject to any dispute
by the opponent?
B) Was the expert asked to identify factors
that would enhance or detract from the
witness' ability to identify the perpetrator?
Was he asked to identify any factors present
in this case that would affect the witness'
acquisition of memory? (These should be
li sted for both arguments to the court during
the proffer and during summation.)
C) Did the expert identify those factors
that enhance or detract ftom the witness
memory, and which have been isolated and
defined in the scientific research; did the
expert then apply reasonable psychological
probability to evaluate the reliability of the
identification of the subject by the
3) Validity of the Theory
A) Memory psychology is the study of the
phenomena of human memory.
B) Memory theory has been applied to the
study of eyewitness testimony for over thirty
years; it is a field that is rapidly gaining
acceptance and consideration in the relevant
scientific community.
C) It is a theory concerned with the
accuracy and reliability of eyewitness
D) The theory is documented by many
refereed scientific journals; it is a theory that
is peer-reviewed.
E) The expert should be able to recognize
for the court either by professional
acquaintance or by academic study the
leading local and national experts and
researchers in this field.
F) Peer review may not be required under
An Example - Dr. Jerome Btown, Ph.D.
1) Has specific experience in memory
testing in the field of neuro-psychological
2) Has extensive experience treating and
evaluating victims of crime in the context of
assisting the victim's adjustment and return
to normal and dealing with the trauma
affected by the way the event was
3) Has reviewed 200-300 research articles
and research designs published in peer-
reviewed scientific journals.
4) Has tested the memory of numerous
individuals and evaluated the quality and
effectiveness of their memory functioning.
5) Can testify that human memory is the
most researched psychological function that
there is; it is more researched than the
functions of emotion, mental illness and
mental disorders.
Produce for the court copies of literature
researched by the expert; elicit testimony
concerning the expert's reading of texts and
literature related to memory and eyewitness
May no longer be applicable to soft science
experts, according to Nenno.
Can the expert name several other available
experts who have tested and evaluated this
technique? Please note here that there is no
requirement under Jordan, Nations, or
Weathherred that the expert personally tested
the theory.
What can you do when the court will
allow you to make an offer of proof on the
1. Before the complainant testifies move
the court to allow the expert to remain
present in the courtroom during the entire
testimony, direct and cross, under Rule
614(3), Tex. R. Crim. Evid . (a witness is not
to be excluded if it is shown by a party that
the person's presence is essential ro the
presentation of the party's cause). This will
necessarily cause the advocate to disclose his
intended use of an expert.
2. Call the expert witness to the witness
stand. After the state's objection, ask for a
May / June 1999 DOCKET CALL 17
Deceiving Looks (continued)
hearing under Rule 1 03(a) and (b) and Rule
104(a), Tex. R. Crim. Evid. to make an offer
of proof. The offering party must be allowed
to make, in the absence of the jury, its offer
of proof as soon as practicable, but before
the court's charge is read ro the jury. Rule
3. Have copies of all scientific literature
pertaining ro the field of study, which the
expert reviewed and upon which his
opinions rely, pre-marked and ready ro offer
into the record. Offer them as part of the
offer of proof.
4. Ask the court for leave ro proceed in
question and answer form with the expert's
testimony to satisfy the Daubert, Kelly,
Jordan and Nenno standards. Examine the
expert witness as if before the jury. Be sure
to elicit an opinion and the bases for that
5. Again, request that the expert testify
before the jury.
What should you do when the court will
not allow you ro make an offer of proof?
1. Evaluate whether the court you are in
is antagonistic towards expert evidence of
unreliability of eyewitness identifications.
This will require investigation by
questioning attorneys who have attempted
this offer of ptoofbefore the particular judge
on past occasions.
2. If the court refuses to allow the expert
inside the courtroom during the
complainant's testimony, be prepared ro have
the expert testify that hearing the trial
testimony is essential for him ro properly
evaluate the testimony for its reliability. All
of this presumes the complainant has refused
to discuss the facts with the expert in advance
of trial.
3. If the court will not permit an offer of
proof by question and answer on the record,
have prepared in advance a comprehensive
affidavit or questions and answers recorded
by a court reporter under oath. Then, attach
copies of the scientific articles and prepare a
formal written offer of proofstating that the
court denied you an opportunity ro make
an offer of proof on the record before the
charge was read. When filing this written
offer of proof be sure to have the document
and attachments file stamped with a time
and date of filing. Be sure to obtain a file
copy appropriately stamped for your file.
It is apparent from the scientific literature,
as well as from recent revelations of tragic
mis iden tifica tio ns in certai n notori ous
criminal cases, that the fact-finder must more
carefully scrutinize eyewitness ident-
ifications. Our law now permits and
encourages the use ofexpert witnesses to that
The proper and judicious use of expert
witnesses to evaluate eyewitness ident-
ification in the courtroom can not only win
the day for the proponent, but might even
motivate investigarors to be more thorough
in their important work. If the facts of your
particular case do not demonstrate a real
need for such evidence, it will likely not be
admitted and there will likely be little relief
for its exclusion on appeal.
Acquittals and dismissals in unreliable
eyewitness identification cases should
motivate police investigators ro go beyond
eyewitness identifications, however positive
they might be, and seek other corroborative
evidence, or simply ascertain if there is none.
But it is a fact that investigarors tend ro limit
or even cease their investigative efforts once
a witness makes a positive identification.
Criminal justice should not accept this, and
now, thankfully, our jurisprudence permits
and perhaps encourages the use of expert
witnesses for more careful scrutiny of
eyewitness identifications.
I gratefully acknowledge Housron clinical
psychologist Dr. Jerome B. Brown, Ph.D.,
who assisted me in the preparation and
presentation of a successful defense in Kevin
Davis' case. Dr. Brown's study, suggestions
and professionalism were critically important
to my work in that case and to my
preparation of this paper.
Copyright 1999 by Jay Karahan
Texas Licensed Investigator
"We do our best to keep the scales of Justice balanced"
Investigative services:
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Bookmark this webpage:
18 DOCKET CALL May / June 1999
Fed Square
jury process. However there is one
Federal grand juries consider documems
and testimony in order to determine whether
probable cause exists to believe that a crime
occurred and that the defendam committed
that crime. If so, the grand jury will return
an indictment. This right to be indicted by
a grand jury is guarameed by the Fifth
Amendment of the United States
In Houston, as many as six grand juries
may sit at any given time. Typically they are
impaneled for 18 momhs service and meet
one week out of each month. Grand juries
consist of23 members; a quorum of16 must
be present to conduct the business of the
grand jury. Fed. R. Crim. P 6(a)(I) . Twelve
grand jurors must vote in favor of a true bill
for an indictmem to issue. Fed. R. Crim. P.
Howgrand juries
Federal grand juries have the power to call
witnesses to testify before them and to
demand the ptoduction ofdocuments. They
do so through the issuance of grand jury
subpoenas. As a practical matter, subpoenas
are issued by Assistant United States
Attorneys (AUSAs) on the grand jury's behalf
and are generally served on the recipiems by
federal law enforcemem officers. This is so
because AUSAs and federal law enforcemem
officers direct criminal investigations in the
imerest of grand jury efficiency. However,
the grand jury has the authority to
independently call for evidence it considers
relevam to its inquiry.
Grand juries may conduct lengthy
investigations over months or even years in
complex cases. Or a grand jury may receive
evidence in a less complex case and vote
immediately on whether an indictment
should issue.
grand juries
Presemation of evidence to federal grand
juries is made by AUSAs, who are responsible
for providing documemary evidence and
witness testimony in support of each eJemem
of every crime in the proposed indictmem.
The evidence presemed need not necessarily
be admissible in court. United States v.
Calandra, 414 U.S . 338, 343 (I974).
Generally only evidence in support of the
indictment is presented, as there is no legal
obligation to presem exculpatory evidence.
United States v. Williams, 504 U.S . 36
(I992) . However, as a practical matter, an
AUSA may choose to presem exculpatory
evidence in order to avoid the risk of seeking
an indictmem in a case where a petit jury
may exonerate the defendant based on
evidence the grand jury didn't consider. A
target ofa criminal investigation may appear
before the grand juryvolumarily but will not
be compelled to appear through subpoena
if he expresses an imemion to invoke his
privilege against self-incrimination.
Strict rules govern who may appear before
a grand jury. During the presemation of
evidence, the only persons who may be
present are the grand jurors, AUSAs, a
witness, the court reporter and an interpreter.
Fed. R. Crim. P 6(d) . Attorneys represeming
clients - whether witnesses or targets -
are never allowed in the grand jury chamber.
When the grand jury votes on an indictmem,
only the grand jurors may be presem. Fed.
R. Crim. P 6(d).
Grand jury proceedings are subject to
stringem rules of secrecy. Every person who
is privy to the work of the grand jury is
obligated to maimain the utmost secrecy of
those proceedings. Fed. R. Crim. P 6(e)(2).
The reason is to protect the safety of
witnesses and grand jurors, to prevem the
destruction or alteration of evidence or
attempts to influence witnesses, to insure the
candor of those appearing before the grand
jury and to protect the integrity of the grand
important exception to this secrecy rule:
witnesses may divulge anything they told the
grand jury, to anyone they wish to tell. The
reason witnesses are not subject to the secrecy
requirements is rooted in the First
Amendment. Although gag orders to
prevem witnesses from reveal ing their grand
jury testimony are available, they are very
rarely used. Black v. Sheraton Corp. of
America, 564 F.2d 531 (D.C. Cir. 1977).
The consequences for failure or refusal to
comply with a grand jury subpoena include
being held in comempt of court, which can
result in a fine or imprisonment. Matter of
Hipp, Inc., 5 F.3d 109, 112 (5th Cir. 1993).
The resultofthe
grand jury'swork
When a grand jury votes a true bill, the
grand jury and the AUSA appear before a
United States Magistrate Judge to return the
indictment. The magistrate accepts the
indictmem and will issue an arrest warrant,
summons or notice to the defendam to
secure her appearance in court. Thereupon,
the grand jury's work is done as to that case.
They will likely never have to explain their
work to anyone.
The grand jury is a critical elemem of the
criminal justice system. Being a member of
a federal grand jury is an importam and
burdensome obligation. Although serving
when called is part of one's responsibility as
a citizen, it is a largely thankless task. By and
large, however, grand jurors find their
experiences to be rewarding, giving them a
sense of accomplishing something
meaningful for society and having the power
to make the community a safer place.
OccupationalLicenses TrafficTickets
(512)322-5163 (askforLauren)
May / June 1999 DOCKET CALL 19
Motion In ArrestOfJudgment
WhattheHeckis it,Anyway?
You are minding your own business,
sippingcoffee in the basementcoffee shop
at the courthouse, when suddenly another
attorneysitsatyourtableandasksyou ifhe
or she should consider filing a Motion in
ArrestofJudgmentinacase theyjustlostin
trial. You frown thoughtfully as you
franticallytrytorememberwhatthatis, and
yougenerouslyofferto takehiscardandcall
him backlater to tell themwhatyou think.
As you hurriedlyscoop upyourpapers and
thingamajigup, yoursuddenlyflash backto
an article you once read in this criminal
lawyer's magazineyoukeepin thebathroom
at the office. The article went something
like this:
The Motionin
A Motion in Arrest ofJudgment is
essentiallya posttrial Motion to Quash the
indictment. Crittendon v. State, 923S.W.2d
632 (Tex. App- Houston [1st Dist] 1995).
[Theauthorrealizes thatourlegislatureand
appelJate courts have essentially gutted the
anything;butin theory, itisstill possibleto
getanindictmenttossed.] It may beoralor
written. See Texas Rule of appellate
Procedure 22 [TR.A.P 22] This new rule
merged some ofthe features of the old
TR.A.P 33-35 and was effected Sept. 1,
1997. In reviewing the reasons forwhicha
Motion in Arrest ofJudgment may be
Theyare as follows:
a) that the indictment or information is
subject to an exception on substantive
b) that in relation to the indictment or
information the verdict is substantially
c) that the judgment is invalid for some
Note that the rule does not specify any
defects in form. JustlikeaMotionfor New
Trial, aMotionin Arrestof Judgmentmust
be filed within 30 days after the date on
which the trial court imposes or suspends
sentence. TR.A.P. 22.3. Again paralleling
theMotionforNewTrial ,aMotioninArrest
ofJudgment must be ruled on by the trial
court[whichis whereonefiles it] within75
daysof sentencingoritis deemedoverruled.
TR.A.P. 22.4. LikeaMotionforNewTrial,
filing a Motion in Arrest ofJudgment
TR.A.P. 22.5, 26.2a(2). Ifthe motion is
granted, it restores the defendant to the to
the position he or she was in prior to
indictment. TR.A.P 22. 6. Under
subsection (b) ofthis rule. a defendant is
subjected to immediate reindictment and
returntocustodyorbail. Interestingly,there
is no requirementin the Rules of Appellate
Procedurefor presentationto thetrialcourt,
like in a Motion for NewTrial. thoughone
assumes this to be thebetterpractice.
Under currentcase law, it appears that a
successful Motion in Arrest ofJudgment
must have been preserved for review via
to Crittendon v. State, a First Court of
extent and reach ofMotions in Arrest of
Judgment generally .... Scc. Crittendon v.
State, 923S.W2d632(Tex.App.Houston
[1stDist]1995);See also Conk v. State 902
S.W 2d 471, 480 (Tex Crim App. 1995)
for an exception relatingto thenameof the
defendant. Crittendon reliedonArt1.14(b)
decidethatanythingnotraisedpriorto trial
wassimplynotreviewable by the trial court
as itwas waived. Crittendon 923S.W. 2dat
634. Asapracticesuggestion,itmaybe wise
to consider filing generic broad-based
Motions to Quash alleging violations of
substance, suchas discrimination in Gra.nd
Jury based on cognizable groups or other
grounds,thenobtainarulingof file awritten
request for ruling with objection to any
failure to rule in orderto preserverhis right.
Upon postrial submission, attachments
proving up the discrimination, such as
affidavits that members ofthe Grand Jury
wereselectedin adiscriminatorymanner,or
thatsomeotherfundamental flawoccurred,
could be provided in order to further
supplementtheappellate record.
Remember that a Motion in Arrest of
the evidence. Crittendon, 932 S.W 2d at
634. Although the First Court ofAppeals
acknowledged that the language ofold
TR.A.P. 33 (b) [now in subsection "c" of
22.2] i.e. ,"anyotherreason thatrenders the
judgmentinvalid" could conceivablycreate
additional grounds beyond those strictly
followed, itdecidedtoextendthosegrounds
in its decisions.A compelling case outside
ofnormal facts may conceivably remain
viable under this language, [this issue of
deliberate grandjury misconductcomes to
mind] but that is only this the author's
opinion. Otherwise the right to file this
mustbe properlyfollowed. Port v. State,798
s.w. 2d 839(Tex.App.Austin 1990).
In conclusion, the motion in Arrest of
Judgment is still aviable postrial Motion at
challenges to the indictment. Along with
Motionsfor NewTrial andNunc ProTunc
proceedings they can enhance your clients
chancefor full andfair review ofhis case.
900LYRIC CENTRE TEL: 7131236-7758
440LOUISIANA FAX: 7131688-4833
20 DOCKET CALL May1June 1999
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May/June 1999 DOCKETCALL 21
NOTGUILTYVERDICTS: EllisMcCullough-ahabitualburglaryof
Angela Cameron and Danny a habitation in the I80th District Court.
Easterling-murderandaggravatedassault, Also, EllisMcCullough had ahungjuryon
triedjointlyin the 248th DistrictCourt. adeliverycase outofgrantcourt.
Dick DeGuerin-capital murder, death Tyrone Moncriffe-an assault out of
penaltysought. Fourdeceasedvictims,self- CountyCourtat Law No.2.
defense in the 208th DistrictCourt.
MarkBennettandTomHenderson-no Moskowitz, who recently got engaged to
test DWIin CountyCourtatLaw No.5. CassieSullivan.
Dave Stiller-injury to a child (death), CONGRATULATIONStoJudge Mike
in the 182ndDistrictCourt. Anderson and the I78th ChiefAssistant
District Anorney, Devon Ward, on their
KyleJohnson-aggravatedrobbery, in the recent marriage.
262nd DistrictCOUrt.
Boyd Shephard-aggravated assault, 10 in the 263rd DistrictCourtwill be retiring
the 180th DistrictCourr. at theendofthis month. We wish him the
Richard Frankoff-no test OWl In
Adam Moskowitz-two aggravated
assaults in the 209th DistrictCourt.
,....wl, G...,bh",. H-"I
Trinity FoslerCare needscompelenlJoslerparenls10serveas
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May/ June 1999
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0 Carol Meyers
VICE-PRESIDENT 0 Mark Bennett 0 Charles G. Kingsbury
0 Angela Cameron
SECRETARY 0 Rosa Eliades
o 1. David Mitcham o 17. Ronald C. Nicholas
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May / June 1999
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