complaining witness

Indigent Defense: Using Experts

Low-Bono and Indigent Defense and the Use of Experts: Why and How to Do It


If you are poor (the fancy word is “indigent”), and you are accused of a crime, you are entitled to a court appointed attorney (or a public defender when the jurisdiction has an office).  Now that can be dicey, because you cannot choose your court-appointed attorney and there are very limited circumstances in which you can request a new one.  I do the best I can for all clients, court appointed or hired, but I cannot speak for all attorneys.


If you choose to scrape together some money and hire an attorney, you may be able to find one to work with you on a payment plan or for a reduced fee.  We sometimes call this a “low-bono” case.  I do this for some clients.


Bottom line is, you may not have any money to hire an attorney or you may run out of money by hiring an attorney.  You may have nothing left to fund other aspects of your defense.


In complicated cases, and in cases in which there are witnesses, you may need to utilize other professionals in your case to competently and successfully mount your defense.  You may need to use an “expert”.  This can be a psychiatrist/psychologist, a scientist, or an investigator.  These can all help either gather defense evidence or analyze and criticize parts of the state’s evidence. This can be very helpful in negotiations and persuasive with a jury at trial.


If you cannot afford an expert, your attorney can petition the court to order the prosecuting county to pay for your expert.  Under Ake v Oklahoma (a federal case), and State v Briggs (a Texas case) the county (or other relevant jurisdiction) has to provide you with money for a competent expert if you show that: 1) you are indigent (and you can qualify under this prong even if you hired an attorney if you have run out of resources) and 2) you make a substantial showing of material need for this expert. 


If science if a relevant piece of the trial, like in a DWI with a breath or blood test in which the state is going to have a scientist testify to their evidence of a particular Blood Alcohol Content, you can almost always show that you have a material need for your own expert to look at the state’s evidence and form an opinion.  If you have witnesses, you can usually show a need for an investigator as you (as the attorney or defendant) cannot interview these witnesses yourself AND testify to what they said. 


What do you do with an expert?  Choosing the right one is a different matter.  You might want to find one that another attorney can vouch for as effective and qualified.  You can ask them to write a report that you can use in cross-examination.  You can also ask them to testify (this usually costs additional money). 


The point is this:  a good attorney is going to know when and how to utilize an expert.  S/he isn’t going to be afraid to insist that the county pay for it. S/he isn’t going to be intimidated by scientific or pseudo-scientific evidence in your case and insist you plead guilty.  I’d like to think I’m describing myself. 

Dropping the Charges: Fact v Fiction

“Dropping Charges” : Fact vs. Fiction

When someone is charged with a crime against another person – who we call the “complaining witness” -- and an arrest is made and charges filed, there is often talk after the fact about that complaining witness “dropping the charges”. I will explain a little about the realities surrounding this here.


Once the case is accepted by the prosecution, either the County Attorney or the District Attorney, efforts will be made to contact the complaining witness to get his or her input. The complaining witness will be asked if what s/he told the police is true, what happened, what his/her history with the Defendant is, if violence has ever happened before the incident charged in this instance, and what the complaining witness wants done. At this point, the complaining witness can recant, deny the incident happened, change his/her version of the events, and tell the prosecution s/he does not want to pursue a conviction – ie that s/he wants the charges “dropped”.


If the prosecution never talks to the complaining witness, that may or may not be good for the Defendant. It may be interpreted by the prosecution in a way that is helpful to the Defendant because it may mean that if the case is set for trial, the main state’s witness will not be located in order to be subpoenaed, and will therefore be unavailable to testify at trial.


If the witness says s/he will not testify and wants to “drop the charges”, the prosecution will have to evaluate how strong the evidence is against the Defendant if the complaining witness will not testify. There may be evidence that, in the prosecution’s estimation, is enough to convict the Defendant even without the complaining witness. The 911 call, photos, independent witnesses at the scene who witness the alleged crime, and physical evidence among other things all may be enough to try and convict a Defendant without the complaining witness. If that is true, it may be the case that the complaining witness’s wish to “drop the charges” may be disregarded. This will be especially true if the complaining witness does not recant and tells the prosecution that the incident happened as s/he said it did but s/he simply does not want to pursue punishing the Defendant.


The prosecution may go forward even if the complaining witness does not wish to do so. If the defense attorney sets the case for trial, the complaining witness may still be subpoenaed. At that point, if the case is called for trial, the complaining witness is under subpoena, but does not show up, the prosecution at that point may indeed be willing to dismiss the case or severely reduce the harshness of the plea offered. It all depends on the strength of the other pieces of evidence in the state’s possession.


Sometimes, the Defendant may tell his lawyer that the complaining witness wants to sign an “affidavit”. This is referring to an “affidavit of non-prosecution”. This affidavit can be helpful – it is about the same as the complaining witness telling the prosecution that s/he does not want to pursue charges.


Complaining witnesses who have relationships with Defendants often ask the Defendant’s attorney what s/he should do if and when s/he receives a subpoena. Please be aware the Defendant’s attorney cannot advise the complaining witness to disregard that subpoena. It is unethical, as the Defendant’s attorney does not represent the complaining witness and cannot give legal advice. It is also criminal activity that can be charged as “witness tampering”, which is a felony in Texas and punished with possible time in the penitentiary. Lastly, if the Defendant has contact with the complaining witness about the case it may be criminal activity if there is a protective order in place and could possibly lead to charges of Violation of Protective Order. Also, if the state can show that the Defendant did anything that can be interpreted as threatening or intimidating toward the complaining witness to get her/him not to testify, the state can proceed on a "forfeiture" hearing in which they can argue that the Defendant has forfeited his right to confront the witness because of wrongdoing on his/her part -- and if they win the complaining witness's statement gets to come in without her/his presence at trial.


What might happen to a complaining witness if s/he disregards a subpoena? Potentially, technically if the witness is hand served with the subpoena, s/he may be “attached” if s/he disregards the subpoena and taken to court by the police to testify. If at that point s/he refuses to testify, s/he may be held in contempt of court and jailed until s/he agrees to testify. That is theoretically what could happen. This however is rare – but it does happen. Harris County is embroiled in a scandal right now where a complaining witness was jailed for refusing to testify and many in the County disagree with those actions. In reality, in Travis County and most counties, the prosecution is reluctant to attach people it perceives to be victims of crime in fear and hesitation to “revictimize” them. The answer to what is going to happen to a complaining witness who disregards a subpoena is essentially nothing. However, if the complaining witness passes up a chance to testify, it is probably gone forever. Not always, but probably. In very serious cases, if a complaining witness decides to cooperate after the case has been dismissed due to lack of evidence in the form of the testimony of the complaining witness, and the statute of limitations has not run, the case could be refiled. This can happen in very serious child sex abuse cases for example.


The point is: the state does not have to dismiss the case simply because the complaining witness wants the state to do so or because s/he says that s/he is not going to cooperate. That is simply one factor in the calculation the state makes in determining what their offer to the Defendant is going to be. A complaining witness saying s/he wants to “drop the charges” does not at all mean the case ends there.


Also, a word to the wise: just because a complaining witness is telling you s/he wants to drop the charges does not mean s/he told that exact same thing to the state. I have seen many Defendants surprised to find that the complaining witness who promised to “drop the charges” shows up to testify at trial. Its not always wise to count on witnesses not showing up.