The other big area for criminal defense lawyers is the avoiding the subpoena issue. How many of us gotten that call on Sunday night and the jury trial is on Monday morning and there was this panic phone call: “OMG! OMG! I’ve been subpoena to my husband trial do I have to show up. You cannot tell them not to show up. The rules of disciplinary procedures are very specific. A lawyer shall not obstruct another lawyer’s access to evidence. A lawyer shall not request a person other than a client to refrain from voluntarily giving relevant information. A lawyer shall not engage in conduct intended to disrupt the judicial proceedings. You cannot tell a subpoenaed witness to not show up.
Well so what is a Valid Subpoena? Does it have to be delivered by hand? No! You look at the code of criminal proceeding reading the subpoena within the hearing of the witness. Delivering it of course, electronically transmitting the subpoena and mailing a copy by certified mail. Now these may not get an attachment, it may not get content if they can’t prove it but the witness is telling you they have received the subpoena. You cannot tell that person not to show up for court because not only is it an ethical rule violation but look at tampering again.
A person commits tampering if they coerce a witness to withhold testimony, elude legal process summon seeing him to court or absent himself from a proceedings to which he has legally summoned. We don’t want to be charged with tampering with the witness and so you look at penal code what does coercion mean? Well I didn’t coerce them, they called in and asked for my advice. Well coercion divide penal code is a threat as you could have imagined it’s communicated to commit an offense to inflict bodily injury, to accuse the person of an offense but this one; to expose a person to hatred, contempt, or ridicule. I thought that was purpose of my cross examination.
Right! Isn’t what we do? Isn’t that cross examination–so have I coerced the witness to not appear because I’m going to cross examine them about what a lying thing they are and how many different stories they’ve had and all the extra marital affairs so all of sudden have I tampered with the witness. The other one I like is to harm the credit of the person. How many times have we had the victim saying “he is the sole provider, we need him back at work, I stay home with the kids, we don’t have any money”. Is it coercion that she is not going to be able to have that pay check if he goes to jail. Tampering with the witness, so the legislator was really concerned about this and they had two bills going on track at the time that this paperwork was done and they are identical.
HB3060 is identical to senate bill 1360 and they are companion bills but senate bill 1360 is the one that actually passed. So please make that note in the paper if you are looking at this bill. All you have to do is click up on the little tab that says companion bill and the one that passed 1360 is there. It raises tampering for family violence cases to second degree felony or the most serious offense if the defendant has previously been convicted of family violence.
It defines coercion in family violence cases as “an act of family violence under the family code that is done with the intent to cause the unavailability or failure of the person to comply with the subpoena. Look at that family code definition 71.004 you know that is where they really expanded the definition of family violence. Family violence means an act by a member of a family or household with the intent to result in physical harm all of that we remember or that is a threat that reasonably places a member in fear of imminent physical–that’s a class C, that’s a class C assault all of sudden will be boost strap up into tampering with witness a felony offence. So also in that bill now it’s senate bill 1360 again is the one that’s gotten passed or waiting for see of governor vetoes it. We don’t expect that to happen on Sunday but it also amends 3848 of the court of criminal procedure for offenses involving family violence and it allows all relevant evidence, all relevant evidence to determine that coercion.
It adds a new section to our code of criminal procedure 38.49 of forfeiter by wrongdoing. The Forfeiture by wrongdoing section forfeits the confrontation rights if proven by preponderance of the evidence that a party has unlawfully procured the unavailability of a witness. So the 6th amendment right to confront and cross examine your witness is going to be forfeited. Your Crawford issue is going to be forfeited in these family violence cases if they can prove by preponderance of the evidence that the party had wrongfully procured the unavailability. So the evidence that party has engaged or acquiesced in wrongdoing that was intended to and did procure the unavailability is admissible.
So it’s almost a circular argument where are the witness is not here so all the evidence is going to be admissible why the witness is not here. There is the hearing outside the presence of the jury and the proponent in this case which will almost be the district or county office is not required to show that the sole intent was to wrongfully cause the witness’s unavailability so get to forfeiture you don’t have to prove that only intent was unavailability or that the actors actions constituted a crime or that any statement offered was reliable. Really? Really they don’t have to offer reliable statements so the victim services person calls the phone number of victim and says “Debby is supposed to be in court on Monday” and the person on the other end says she has left the state, the defendant has threatened her and she left town, click bye. That’s going to come in, that’s going to decide whether my client has 6 amendment right to confront and cross examine the witnesses that he has forfeited his right because this statement has to be reliable. I think there is going to be some interesting issues with this. The other part of the statute says the conviction for the tampering or retaliation creates a presumption of forfeiture by wrongdoing. So you get him convicted of the felony.
The next trial is the assault there forfeiture by wrongdoing is a presumption. Well the problem for this statute, there is this little Supreme Court case, right on point about forfeiture and family violence cases that turned out to be a murder case. A man murdering his girlfriend but the Supreme Court said “no wait a minute, forfeiture by wrongdoing does require a showing that the defendant engaged in the conduct designed to prevent the witness from testifying. You cannot back in to it and say “well she is dead so he must have prevented her from testifying. Giles has some great language about saying. The judges can’t make the determination because of defendant is guilty therefore he lost his right to confrontation and they said that simply being charged with murder of the declarant does not automatically allow the introductions of the statement.
So out new forfeiture by wrongdoing section needs to overlay with Giles. You need to raise the constitutional issues that the Texas State legislature cannot over rule a US SC decision. So what are the issues that we have with this is victim always wants us to represent them in addition to the defendant, right? So what do the rules say; this could be a potential conflict of interest, the lawyers, we couldn’t represent both of them if they were getting divorced. It also says you can’t represent them if the substantially related matter in which the person’s interest are materially and directly adverse to each other. What is that mean? She is in her office telling you that she lied to the police. She lied went to the police when she said he hit her.
Well the problem is she now wants to tell the truth. She now wants to say that that didn’t happen. The problem is that’s a crime she is made a false report to police officer. If I tell her to be truthful, I’m telling her to admit that she has committed a crime, that is obviously a conflict of interest if I am representing him in his assault case because yes that’s good for us but no that’s not good for her.