Only Results Matter

BloodDraw2-225x300However, Texas allows the admissibility of medical laboratory blood that is drawn and tested at hospitals using indirect enzyme tests to be admissible in a driving while intoxicated case. This is despite the fact that the testing is a much less reliable enzyme test through a chemical reaction that is not testing only ethanol quantitatively or forensically.  Normally, only blood plasma is tested, not whole blood, even though the driving while intoxicated statute says whole blood.  Thus, a conversion formula is used even though each person’s plasma ratio is different.

Hospital blood testing is for medical purposes and is generated to give medical providers a quick snapshot of the patient’s blood for medical treatment purposes.  The machines are typically calibrated every six months or so, unlike a gas chromatograph which is calibrated every day.  They may run quality control checks, but this is not calibration.  Hospital blood testing normally cannot tell the difference between ethanol and isopropanol that is used to clean a blood draw site, and cannot tell the difference between ethanol and acetone and other chemicals, including chemicals in IV bags.

Hospitals also normally only run one test a day, rather than two tests on the same sample that the Department of Public Safety runs on a gas chromatography machine.  These tests have up to a 25% error rate, which means that close cases should not normally be filed and should certainly be litigated if so.  Also, these machines are not required to run a forensic test curve of five points like a gas chromatograph machine, which is the minimum for a forensically reliable sample.  Additionally, we often do not get computer generated printouts of how the machine came to the calculation it did, another check on forensic quality.  Finally, a hospital blood test does not have internal standards, which a Department of Public Safety test uses to test that the machine is actually reading ethanol alone.  Without these internal standards, we do not know what the actual ethanol level in the plasma sample actually is.

siemens-rapid-lab-1265-1200-series-blood-gas-analyzer-sw-3-3-1-300x225I saw a Nick Saban quote online that addresses that there are few choices in life when we want to succeed.  There are not many ways to do things the right way, usually only one way works.  Coach Saban said “[w]e have a younger generation that isn’t told no or told exactly how to do it.  As a consequence, many young people have this illusion they can do what they want. The fact of the matter is that if you want to be good, you really don’t have a lot of choices.  It takes what it takes. You have to do what you have to do to be successful.”

Nowhere is this more important that in chemical testing blood, breath, DNA and other samples in order to convict or acquit them of criminal accusations that could lead to prison, jail or probation.   Over the last few years, Texas has taken forensic science much more seriously after a white guy named Michael Morton was proved to have been unlawfully convicted of his wife’s death and served 25 years in prison for a crime he did not commit.   For this, we have the Michael Morton discovery act which ensures an open-file, proactive discovery policy in criminal cases.

We also have a Texas forensic science commission to push our crime laboratories to be the best they can possibly be.  This is done by using correct procedures and documenting correct procedures time after time.   As for DWI, blood is tested by the Department of Public Safety in its crime laboratory using a gas chromatograph that I will discuss later, but has narrower issues and error rates than hospital blood testing.  It is normally operator error that will make a forensic blood test drawn at a Department of Public Safety lab unreliable.  There, chemists are supervised by other chemists in a forensic setting with high standards and procedures to follow.  More on that later.

capital-1542756-300x226But, a defendant like Dr. Kavanaugh might offer evidence of good character in general as a defense, which can be a defense in itself.   United States Court of Appeals for the Fifth Circuit Pattern Jury Charge 1.09 explains that

Where a defendant has off evidence of good general reputation for [opinion testimony concerning]: truth and veracity, honesty and integrity, or character as a law-abiding citizen, you should consider such evidence along with all the other evidence in the case.

Evidence of a defendant’s character, inconsistent with those traits of character ordinarily involved in the commission of the crime charged, may give rise to a reasonable doubt, since you may think it improbable that a person of good character with respect to those traits would commit such a crime.

SupremeCourtNight-300x101On direct examination, neither party can testify as to specific instances of misconduct to show truthfulness or untruthfulness.  However, 608(b) states “…[b]ut the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:  (1) the witness; or  (2) another witness whose character the witness being cross-examined has testified about.”   Specific instances of untruthfulness do not appear to be a major piece of evidence yet, but Kavanaugh’s opponents have claimed that he has lied under oath several times so far.   If they were able to prove it extrinsically, they could potentially do so on cross-examination of him.

Character evidence is generally inadmissible in Court under Rule 404.  But, it plays a much bigger role in criminal cases.  A defendant without a criminal history is much more likely to put on evidence of good character or of a pertinent character trait.  Rule 404(a)(2) allows, in a criminal case in that “…a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it; (B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may: (i) offer evidence to rebut it; and (ii) offer evidence of the defendant’s same trait…”

Dr. Kavanaugh may want to offer a pertinent character trait about behaving appropriately around women.   However, if so, the Government would be able to offer contrary evidence to his behavior around women to rebut the same.   We have heard from his supporters, and we have heard from his detractors that he targeted women for clerkship hiring that “had a certain look.”   We also now have a second female classmate saying he stuck his penis in her face at a college drinking party.   Dr. Kavanaugh’s mentor has been removed from the Federal Bench for sexually inappropriate behavior, but that is likely too distant to be relevant, unless it could show that Kavanaugh was involved.   None of his former clerks have so far come forward against him, but in a real investigation, this would be an important part of the investigation.  If he offered any pertinent character trait, these would be offered against him as much as allowed.

capitol-at-the-capital-1476808-300x200Here, we are dealing with a 35 year-old allegation of sexual misconduct for which no physical evidence would be present due to the age of the case and the nature of the allegation.   Additionally, Kavanaugh has not stated that he and Ford engaged in criminal activity, so (B) is out.  (C) is interesting as a catchall of “constitutional” admissibility.   The only way this would normally come in is as “alternative perpetrator.” evidence.   If Kavanaugh attempts to say that third party did the act Ford alleges, and could provide a foundation for the evidence, this sexual conduct could become admissible.   But, some Courts have said that this is normally only relevant when identity is an issue.   Kavanaugh could argue that intoxication and history make his identity an issue, but his primary defense of fabrication would be confused.  So, this wouldn’t be a likely course.

Both Kavanaugh and Ford’s detractors have pointed to their education and reputations in the community for truthfulness.  Ford has had colleagues who researched with her state what a stickler for the facts she is. And, Kavanaugh has naturally put forward a laundry list of law and school-related supporters of his veracity.  In Federal Court, once they have been attacked for their lack of truthfulness, each side can put in character witnesses to prove that they either have a reputation for being truthful, or that a witness has an opinion that they are a truthful person under Federal Rule of Evidence 608.  Rule 608(a) states “…[a[ witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.”

Ford-227x300Rule 613(b) states that “(b) …[e]xtrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires…”  Thus, the therapist can be called and his notes admitted into evidence to show that Ford made a prior inconsistent statement to him.   In he-said/she-said cases regarding adults, such inconsistencies are usually very damaging. I believe this line of attack would be the strongest that Judge Kavanaugh could present.

One of the lines of attack in the media that Judge Kavanaugh’s supporters have put forth is the propensity for alcohol abuse and the propensity for sexual promiscuity on the part of Ford.  This brings us to two of our most important Federal Rules of Evidence, 404, 408 and 412, which deal with character and extraneous conduct.  Rule 412, “The Rape Shield,” would likely not come into play in this case, because Judge Kavanaugh is not arguing consent and denies that any of the events happened.

Rule 412 states that:  (a) …[t]he following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim’s sexual predisposition.”   Thus, sexual misconduct and sexual predisposition, i.e. the “she’s a slut” defense, are generally prohibited.   But the Rule has exceptions: “(b) Exceptions. (1) Criminal Cases. The court may admit the following evidence in a criminal case: (A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence; (B) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and (C) evidence whose exclusion would violate the defendant’s constitutional rights.”  These exceptions probably will not apply.

SCOTUS-300x257The central piece of evidence in this case is Professor Ford’s testimony.   She has previously discussed her experience with a therapist, whose notes are different from her recent statements. So, on cross examination, assuming she testifies similar to her recent statements, she would be confronted with the contradictions in her previous statements, if any, with her therapist.   From my reading of the news articles, her therapist apparently wrote notes that she claimed there were four people in the room, and one male pulled Judge Kavanaugh off of her.  However, her recent statements are that there were two males in the room and she personally escaped after they all rolled off the bed to the ground.

On cross examination, these contradictions would be raised as “impeachment,” or discrediting the witness with prior inconsistent statements.  Under Rule 801(d)(1) (A), these statements are not hearsay if they are prior inconsistent statements to her actual testimony.  The rule states:  “(d) [a] statement that meets the following conditions is not hearsay: (1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement: (A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition.”

Professor Ford can either admit to or deny such statements.  If she admits to making the the prior inconsistent statement, the cross examination ends there.  However, from the articles I have read, she appears to claim that the therapist wrote the notes wrong, and that she said the same thing she is saying now.  In this instance, the Federal Rules allow the admission of extrinsic evidence regarding the prior inconsistent statement.  If Professor Ford denies making inconsistent statements, Under Rule 613, Judge Kavanaugh could present the therapist and his notes as evidence.

kavanaughThe last-minute presentation of sexual assault evidence against Judge Brett Kavanaugh has put his Supreme Court nomination limbo.   Judge Kavanaugh was not my first choice, of those on the Trump list, but I see problems on both sides of the accusation.  Sexual assault cases can be the most difficult to defend and prosecute, as they often rely on judging he-said/she-said opposite testimony with no forensic evidence.

In child cases, this is very difficult for the defendant, because jurors tend to want to believe the child. Thus, they want to force a defendant to prove that he didn’t do it, rather than following the presumption of innocence and true proof beyond a reasonable doubt burden that they would use in any other assaultive case.  In adult cases, the burden is often on the accuser, where it belongs, to prove beyond a reasonable doubt that his or her statements are truthful.  But, there can be extra emotional burden based on people’s experiences.

In this case, Professor Ford accuses Judge Kavanaugh of forcing her on a bed, attempting to unclothe her, and putting his hand over her mouth to conceal her screams.  Under Texas law and most state laws, this is attempted sexual assault.   Sexual assault and its lesser included offenses are not normally Federal crimes unless committed on Federal land such as a national park or Native American Reservation.  Additionally, the Senate hearings in which Professor Ford is supposed to testify will not be bound by the Federal Rules of Evidence as a criminal trial would be.


Under the affirmative defenses, you can YouTube/Napster/whatever music all day long apparently and be okay under this statute. Although, this is not advised.  You may also GPS your directions, report illegal activity or report an emergency, not by calling 911, but apparently texting or emailing them or another person.  You may also read a message you believe to be emergency, even though you would not know it was one until you read it, and can check the weather.  Thus, it stops far short of a “hands free rule” that has been adopted in many cities.

Further, this article preempts (or supersedes by superior power) the hands free laws in many jurisdictions under subsection (j).   The officer also may not take your phone unless authorized by other law, and under Federal constitutional law he is prohibited from searching your phone without your consent or a warrant.  Under subsection (e), the punishment is $25-99 for a first offense and $100-200 for a second offense under this statute.  Finally, under subsection (f), a person who causes death or serious bodily injury in the course of violating this section is guilty of a class A misdemeanor, with a punishment range of a year in the county jail and up to a $2,000 fine.  However, under those facts the prosecutor will likely charge his choice of felony aggravated assault with a deadly weapon, manslaughter, or criminally negligent homicide.

valentine-sms-1312776-300x200Six years ago, Texas Governor Rick Perry vetoed a ban on texting while driving as an affront to personal liberty.   This year, a Republican legislature and Republican governor said that personal liberty needs to be curtailed in the sake of their view of public safety.  As of September 1, 2017, texting and in the act driving in Texas is a traffic-ticket level, Class C offense.   Although the legislature created several exceptions that will be noted below, an officer who suspects that you are texting and driving, no matter what you are doing, will have a reasonable suspicion that you are violating the law and be able to pull you over for further investigation.

However, as worded, this does not simply ban driving and “texting.”   Under the new Section 545.4251(b) of the Texas Transportation Code, “[a]n operator commits an offense if the operator uses a portable wireless communication device to read, write, or send an electronic message while operating a motor vehicle unless the vehicle is stopped. To be prosecuted, the behavior must be committed in the presence of or within the view of a peace officer or established by other evidence.”  Thus, the statute bans reading, writing or sending electronic messages driving.

An electronic message is defined as “data that is read from or entered into a wireless communication device for the purpose of communicating with another person.” A wireless communication device is “a device that uses a commercial mobile service, as defined by 47 U.S.C. Section 332.”

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