Preserving Evidence in a Criminal Case

One of the things that you need to be going through your mind is what evidence is there that is going to be susceptible to being destroyed. Either purposefully or through dis laps in time. If yo u have a theft case then lot of times all of the videos from the surveillance are destroyed after 30 days. So the minute that person walks into your office the minute you realize there is evidence that needs to be preserved, you need to get out a of letter preservation to that police department. Now again I’m talking about the thing that are pre indictment in often pre filing, if its pre filing.

Your going to know who the DA is. You are going to know who, of the judge is. You’re going to have case number. But you are going to know what police department is handling the case. Send a letter to that police department, certified mail return receive requested saying that you want preserved all 911calls. You want preserve in any in car video or in car audio, any interviews that were conducted. You want to make sure that they have preserved all of the video or audio of any independent witnesses that they may have interviewed at the scene. I have come across several times where police officers has tape recorded the interview of the witness on the scene and then just said, it’s not important and tosses it.

Well you send that letter preservation and ask them to preserve it and if they don’t then they got it coming from the dash and explain why they didn’t preserve evidence in the case. When we’re talking about finding out the criminal history of your witnesses. The best thing you can do is to search the local records. What I’ve done in the past is I just go on to, in Dallas we call it for this. I just go on to our county websites and run the name. And if that doesn’t work you run a larger search to something like public data or any of the other paid websites. But one of the things that I have found most effective that I do a freedom of Information at request to local police departments.

Asking for any time they have been called out to a specific residence. Each time they have been called out on a specific person or by a specific person. One time I found out that a women had called out on number of her boyfriends throughout the years, some much said that police quit sending out cars because it was so ridiculous. So you can get that kind of information if you do the freedom of information at request from your police department. Now again that can be little burdensome, I know in Dallas county we have 9 10 870000 different metropolitan areas within our county. But if you just have one city and one county, It’s much easier.

The relationship of the parties is also incredibly important when dealing with any sort of assault case. You need to know whether or not there’s a divorce pending, whether or not there any child support issues, whether or not there child custody issues. And those are all important for a verity of reasons. And a pending divorce, if you are accused of family violence. If your found to have committed family violence within 2 years before filing the divorce or while the suit is pending. Guess what. You get alimony. Otherwise you have to show a whole of the different list of things in order to be qualified for. But if you show your a victim of family violence. You get alimony. If there is a pending divorce or if there is a saboteur or a suit affecting a parent child relationship, whether not you have been accused of, or have been convicted of committing an act a family violence also comes into play, because it can affect how the judge roles on conservator ship.

Whether it’s supervised, whether it’s none at all, whether it is supervised by the pop and 3 nuns. It just depends on what is going on ok. So if you have somebody that is going through divorce, they have a motive to accuse somebody of family violence or any sort of assault case. All right what are you looking for and where do you find it, if there is a divorce or a saboteur pending. You got to go to a court house. You got to go to a court house you have to pull the files, you have to pull all of the pleadings. Those are just ripe with information. Especially day after day that is in protective orders. And many divorce cases people ask for protective wore’s not just because of the financials. But they say, I don’t want them to harass me, I don’t want them to beat on me anymore, I don’t want them to do a whole numbers of things. Get those affidavits, those are sworn statements. They can be used for impeachment. If there have been home steady instead of been required by the court, if there have been social studies, If there have been medical evolves.

Any sort of evaluation that has been required by the court in the divorce case or anything involving children. Get those reports, Depositions. Another one that has a lot of information in it. Pull the admissions, pull the inaragatories Pull everything, those are all sworn statements. Were there any findings of the facts made by magistrate and granting or denying, a request for protective order, get those. You also have to search the court records for any pending alimony or child support battles. But not just those, you have to find out whether or not there were some that may be unsuccessful in the past. A woman was unsuccessful in challenging him for alimony so now she comes up and says he beat her. And file say family violence case against him. She can reopen her alimony case. What about child custody visitation battles from the past? It’s not an un-earned statement when they say he’ll have no fury.

So you check those lost battles to see if there is information in those battles that can help you with your current war. The other thing you need to start checking out, social media. It is absolutely amazing what people would put up on Facebook. Get all of your witnesses run their names. Look em up on Facebook, if they have closed accounts, try to find somebody who may have access to em. And do screen captures. I have one women who had, was bragging about how she got her ex-husband arrested. And that now she was going to take em to claimers. Well all that’s impeachment evidence. Another thing you can get on Facebook is where people have been. Their locations, you go to, for square people like to post when the move from point A to point B all the time.

Twitter, a lot of times people would make the snarky little comments on twitter. Get all that stuff. I think my space is little obsolete but I included it anyway. There are subpoenas but I actually pulling the list together of all of the social medias where you pull the send the subpoenas and also all of the stuff for a lot of the other electronic devices, ATNTN one are as soon as I get all that compiled and put together I’m going to put it upon the list. It’s going to take me a while because there’s a lot out there but there is an investigator been help of me but a great job. With the social media you need to check all your potential witnesses. One of the things I like to do is when I find a witness on social media like Facebook. I pull up their likes, their dislikes, their movies, their books everything. And that actually has come up in a couple of trials and there was one case involving in aggravating assault where a man was accused of assaulting a bicyclist in Dallas going on a ceded Trail. He was accused of slashing em up as he drove by. Well the attorney involved in that case pulled up the Facebook and this little innocent complaining witness turned out he was a member of a bicycle team called the pedal files.

Needless to say that didn’t sit too well with the jury and fortunately he was still convicted because it was overwhelming evidence but the poor innocent victim in this case, I use the term loosely. He didn’t go over with the Jures and he was joking about pedal feila and again you got to get those subpoenas you got to know who you’re sending it to and you post that soon as they get all that compiled. Examining trials, I also like to call these motions for speedy indictment. There are some jurisdictions where you do not get them but the minute you fall from that examining trial the DA’s run down and get the case indicted right away. In Dallas County we’re fortunate we have a lot of examining trials that are available to us. When you have the examining trial that is such good opportunity for discovery, because you get to read the police reports. And also depending on your jurisdiction not only do you get to read the police report sometimes you get to make the copy of it because the officer relied upon it while testifying, you get to tie the police and in some jurisdictions the complaining witness down to a particular story.

And once you get that tied down to particular story should they vary in any way, guess what, Impeachment. You also get to tie them down on their procedures, their practices, what evidence they collected, what evidence they didn’t collect, why they collected it and why they didn’t collect it. You can get their whole standard operating procedure done during that examining trail. And what are the examining trial, get the transcript. All right now after your little angel has been indicted. You send another letter preservation. You send it back to the police but this time you also send it to the DA’s. Make sure that they know that you want this 911 call. That you want that in car video, that you want those interviews that you want those audios and those videos and every bit of that tangible evidence that you can’t imagine that the police may have collected on that day. And another thing you can ask for also could be the preservation of the NDT’s and the 911 logs.

You get all of that, believe it or not, it sounds like a lot of work and it’s worth it and you don’t always find the golden nugget in em but when you do it is definitely that bomb in trial. As I mentioned early you had the examining trials, but you also have a lot of these assault cases, the automatic protective order or you have the DA’s automatically file for a proactive order on behalf of the complainant. I handle a lot of you quarter point of cases and we have a system down in Dallas county where if I’m appointed on a, assault case whether be missed me or felony I will automatically go down and I’ll take care of the protective order hearing as well. I don’t get paid for it but I’ll tell you, it’s the best probe on a work that I do because the information you get at those protective order hearings are just its immeasurable how helpful they are. Because you get un -fended access to that complaining witness.

You get them under oath telling their side of the story, you get to. Your First part of the apple cross examining them and them and then you get the transcript afterwards and if the DVA want out. Guess what. You’re going for the kill. Same with bond hearings, that is great way to get more discovery. One of the things that I’ve done in the past is I wll set the bond hearing knowing that the judge is not going to reduce the bond. It’s within our bond schedule the guy’s a jackass and the bond is probably at in appropriate level or too low. But you can make state come in and say all right I have all, extranets’ as bad ass. I have all these problems in the community with him. I have all of these complaints about him, I have all the step for, he’s at live risk, and you can get a lot of your bad stuff out of the DA at that point that a lot of times they don’t think about including a 4 or 4B or that they will spring on you like a trial. Get the transcripts of those hearings as well. Petron motions, these are the standard Petron motions that I file in every case that I have. And they are pretty standard I knew that they are included on your flash drives so I’m not going to go over them in great detail, but let’s talk about a few of them. My discovery motion, my discovery motion, I always asks for the family violence of the kid information in the DA’s office. I ask for photos, 911 tapes, and medical records. And we’re going to go over this in a li’ll bit more detail later.

Why do I ask for those because a lot of times it’s also Brady evidence. Now the family violence at the kids is what they like to do is they would take the complaining witness into their office and they will interview him about the case. But not just about that case. They interview them about the history between them, and the defendant. They interview them about any and every little thing that the defendant has done bad. That can be used later on the trial. But what else do they talk about, well has this ever happened before? Do you want to prosecute? What do you think should happen with this case. Are you afraid of him? Are you afraid to have your children around him? All of this is possible bradding. You need to ask for it in both your discovery motion and your Brady motions and be specific. I said I have my Brady and my discovery motions included materials. So be specific. It also needs to ask about the protective order intake. Because the DA’s do an in take when they do the protective order. Get all of that.

If you are denied by the judge saying I don’t want it. It’s not Brady or, I’m sorry if your denied by the DA saying that it’s not Brady or I don’t have to turn that over or if it’s worth product. And like I said earlier I don’t give a shit if its wore product, its Brady. Brady is Brady if its sculpatory I get it. And if they still say no then you go to the judge and he asks the judge to hold a camera inspection on it and if the judge holds in camera inspection make sure that all of those records are preserved for record purposes on appeal. Make sure that they turn all of thos over. If not to you, at least to the judge and make sure that all gets in the record. And we’re going to talk about the immigration status of the wittiness in a minute. All right with the family violence and the kids protect order intakes again you need to be specific in your request. You need to ask about any prior applications that were rejected or denied by the DA’s office. You need to find out whether or not the complainant denied or in this case the petitioner denied the offence occurred, was there an affidavit of non-prosecution filed? Now a lot of people think and I say the people mean defendance think that the affidavit is magical. At these ANP’s just waltz on in, they waive their magic wand over indictment and it disappears.

Well I always explain to them the case doesn’t belong to the complainant. The case belongs to the state. And thus complainant is merely the witness for the state. So affidavits of non-prosecution, While they are not magical while they don’t cause a dismissals automatically, they are good information for cross examination. I believe that they might be in some cases Brady material and they also are good for negotiation. So if you have a complainant that doesn’t want to cooperate. You can generally work out a better deal for your client. Also you need to ask from the family violence at the kid and the protective order intake. Is there any other medicating evidence, You always have to add those other mitigating evidence because if you just ask for what you’re asking for, you may just get what your asking for, you got to ask what your asking for and then some. The immigration status of the complaining witness, I have gone round and round and round again and round again with the DA’s In Dallas County about whether or not this is relevant. And finally got a judge to agree with me that the immigration status of complainant is relevant. Because if you are an illegal or undocumented or you have your resident alien.

You can apply for a victim visa if you are a victim of domestic violence or assault. So if you have all of that, I’m sorry. If you are trying to seek citizenship and residency and you have a family violence that expedites it. So not only can you apply but you can apply for an expedieted hearing. Now I’m not going to read over all of the laws this is contained in your paper so, you can read that on your own. But when you including your Brady motion. When you ask about the citizenship status, also include in that whether or not any application for amnesty have been filed. And any request for expedited proceedings. It’s amazing how, any times somebody accuses somebody doing something and then tries to run around and the next breathe and read the benefits of that fall accusation.

Before that accusation ever been gone with the system. So you need to find out if they win an accused then that win an applaud. What other impeachment evidence is there that you can get from the state I believe your Brady. I believe your entitled to. Whether or not the complainant has to ever made any prior false allegations. Whether or not there are any prior complaints that were not prosecuted that the DA’s office rejected it. Whether or not there are any prior cases that are filed and prosecuted but resulted in a not guilty part of it. All of this can go to motives. Were their any allegation convictions or reputations evidence against the complaining witness for acts of violence. So not only has, are you asking whether or not the complainant has ever been a complainant before but your also asking whether or not they have made allegation. Whether or not they have allegations against them. You also want to know about any other prior protective orders that they have saw through the DA’s office. The medical records, you got to get those medical records.

It’s imperative; you got to get em yourself because if you rely on the DA’s they don’t always put all of them on file. They only put those on file that help them. So as soon as you get that notice saying I put medical records on file. Go get em a.s.a.p. Go through them and then do your own request for the medicals on that person. A lot of times the DA’s fooled limited to just the initials intake. So what happens you have the initials intake they have all the stuff and then a week later they have a follow up visit where the complaining witness recounts everything that they said and they first want. Well the DA’s aren’t going to try to put that other one on file. There just going to keep the one that’s in-calpatory you have got to get all of that. But not only that, you have to be vary of police officers standing in the emergency room dictating to the medical personnel their police report and expecting all of that to be included in the what causes injury. Is it really relevant that there’s a history violence between man and wife when man is in a hospital to get stitches.

Is that really used to diagnose a medical problem? How does their history of violence help the doctor diagnose a cut finger? You cannot allow the police to dictate their police reports into these medical records. Just like you cannot allow medical personnel to give legal conclusions in their medical reports. Don’t allow them to come in on whether something is aggravated assault. How the hell do they know the aggravated assault? Did they go to law school? I don’t diagnose appendices you don’t diagnose criminal offences. You got to make sure all of that stuff is redacted and don’t let em, get away with it. Because like I said they are not lawyers. Another thing they like to do is they like to include in their history, extraneous offences. Again does the fact that there was a prior history of abuse, is there a reason that they need that information in order to give somebody stitches. Now there are some situations where that does come into play. In a sexual assaults many times they ask whether not you have prior history with this individual or things that nature just so they can design their treatment around whether not they need to test for STD’S HIV’S in the other number of things.

So when you get those medical records make sure that everything in the record is just tied to that one incident and narrow the medical records as much as possible just to that incident. One of my favorite quotes. So what is said that “if you know your enemies and know yourself, you can win a loss if you only know yourself but not your opponent. You may win or you may lose, if you know neither yourself nor your enemy. You will always endanger yourself. So what have I get out of that? You got to go into trial knowing more than the prosecutor. You got to go into trial armed with as much information as much knowledge as you possibly can. Not just about your case but about your law or the law applied to your case about the facts of the case about the witnesses about anything and everything you can possibly imagine. If you arm yourself with all of that you’re going to come out with a lot more two word vertex then you will one word Vertex and that’s it I knew I was going to give you few minutes bad but I hope you all don’t mind. I have arranged for bunch of people to come in and teach us the Macarena so if you all want to hang out for a while we’ll have a little Macarena session.

The Attorneys
  • Francisco Hernandez
  • Daniel Hernandez
  • Phillip Hall
  • Rocio Martinez