Tuesday, May 12, 2009

Opinion crimes


1.a belief or judgment that rests on grounds insufficient to produce complete certainty.
2.a personal view, attitude, or appraisal.
3.the formal expression of a professional judgment: to ask for a second medical opinion.
4.Lawthe formal statement by a judge or court of the reasoning and the principles of law used in reaching a decision of a case.
5.a judgment or estimate of a person or thing with respect to character, merit, etc.: to forfeit someone's good opinion.
6.a favorable estimate; esteem: I haven't much of an opinion of him.

There are two opinion crimes contained in the Texas Penal Code: driving while intoxicated and obscenity.

There is rarely, if ever, any direct evidence of intoxication in a DWI case. An officer may testify as to some bad driving facts, the odor of alcohol on the driver's breath, the driver's admission of drinking and the driver's performance on NHTSA's standardized field sobriety tests. The state may even put an expert on the stand to testify as to the alcohol concentration found in the driver's breath or blood sometime after the arrest. But when it comes down to whether or not the driver was intoxicated, the officer, and the state's expert, can only give their opinions.

Make the jury understand that they're only hearing the officer's opinion and that his opinion is no more valid than their own. Make the point during voir dire. Make the point during your opening. Make the point when crossing the officer. Make the point during your close.

Opinions are like, well, you know. We all have them. Should one man's opinion be enough to brand a fellow citizen a criminal for life?


Mark Bennett said...

Then there's evading in a motor vehicle, which is a felony opinion crime.

Paul B. Kennedy said...

Good point, but, I think reasonable people have in their mind what "evading" means and what it is. For DWI and obscenity, I think we're talking about much fuzzier concepts.