The Falsely Accused at Trial

What happens at trial determines whether there is a conviction, and a surprising amount of it depends on the accused. In some ways, a trial is like a play. The accused is on stage and the jury is the audience. How the accused comes across can affect how the jury sees everything else in the case. For the full picture of what happens before a case reaches trial, see our guide to what to do if you’re arrested in Texas.

Prosecutors know this. Beyond presenting the evidence, it helps the State if the jury comes to dislike the accused, because a jury that dislikes the accused may find it easier to convict. That makes the accused person’s demeanor, meaning how they dress, how they sit at the defense table, and how they testify, an important part of the defense.

Most people accused of a crime have never been through a trial, and many have never been in a courtroom except for earlier hearings in their own case. A courtroom can be intimidating. This article explains what to expect at a Texas criminal trial and how to conduct yourself, with a focus on people who have been falsely accused.

The Courtroom and Pretrial Motions

Most courtrooms are set up the same way. There are benches in the back for spectators, tables for the defense and the prosecution, a witness stand, a jury box, and the judge’s bench. The accused usually sits at the defense table with their attorney, and the prosecutor sits at the other table.

Before trial begins, the court often hears pending motions. Be prepared for motions by the State to exclude evidence or testimony the defense plans to use. These rulings can have a major effect on the case.

Expert Testimony and the Reliability Test

Suppose the accused had been evaluated for sexual interest with a test such as the Abel Assessment for Sexual Interest, and the defense listed the evaluator as an expert. The State may move to exclude that testimony as unreliable.

Each court system has its own rules for expert testimony. Federal courts and many states follow Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), while some states still use the older Frye “general acceptance” test. Texas criminal courts apply Texas Rule of Evidence 702 and the reliability standard from Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), which is similar to Daubert. In simple terms, the party offering scientific expert testimony must show the judge, outside the jury’s presence, that the underlying theory and technique are valid and were properly applied. An expert’s credentials alone are not enough.

That matters because expert testimony can carry great weight with a jury simply because the witness is called “Doctor.” Texas courts have drawn some important lines:

• An expert generally may not tell the jury that a child is telling the truth, or that a particular child was in fact abused, because deciding credibility is the jury’s job (Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993)).
• Texas courts have, however, allowed experts to describe behavioral characteristics commonly seen in sexually abused children (Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App. 1993)). That is why the defense should be prepared to challenge the reliability and fit of this kind of testimony and to present its own expert when appropriate.
• Sexual-interest tests offered by the defense face the same reliability requirement. Texas appellate courts have found Abel Assessment testimony inadmissible, or upheld its exclusion, where its reliability was not established. Examples include In re C.D.K., 64 S.W.3d 679 (Tex. App.–Amarillo 2002), a civil case, and Figueroa v. State, No. 04-08-00452-CR (Tex. App.–San Antonio 2009) (memorandum opinion).

When a reliability objection is raised, the defense should ask for a hearing outside the presence of the jury and be ready with a qualified expert who can explain the method, its error rate, and its acceptance in the field.

Evidence About the Other Parent

Many abuse allegations arise during heated custody disputes. Suppose the accused is a father who is convinced that the child’s mother coached the child to make a false allegation to gain an advantage in the custody case. Suppose a custody evaluator found that the father was the more fit parent and testing suggested the mother has a serious psychological disorder.

The father will naturally want that evidence in front of the jury in his criminal trial. Do not be surprised if the court limits or excludes it. The court will look at whether the evidence is relevant to the allegation the child made and whether its value outweighs the risk of confusing the issues. A strong theory that the other parent is behind the allegation still has to be supported with admissible evidence.

How to Dress and Act in Court

Dress neatly and conservatively. You do not want your clothing to distract the jury or send the wrong message. Clothing that looks flashy can come across as “look at me.” Wrinkled clothes and scuffed shoes can come across as careless. Your attorney can advise you on what is appropriate for your courtroom.

How you act matters even more. When you are sitting at the defense table, sit calmly with your feet on the floor and your hands on the table. You can take notes, but do not lean back with your legs crossed, which can look as if you do not care. Many jurors watch the accused closely throughout the trial, looking for clues about whether the person is guilty and whether they like them.

When the jury is seated, look at the jurors occasionally, and look at all of them. Do not focus on one juror, and do not stare. When someone is testifying, look at the witness and at the attorney asking the questions, but do not glare at the witness, especially a State’s witness. That can look like an attempt to intimidate. Do not react to evidence or testimony. Even if the accuser says something you know is untrue, do not shake your head or make faces. Any reaction can be misread by the jury.

Jury Selection

When pretrial matters are complete, the judge has the panel of potential jurors brought in. In Texas, a felony jury in district court has 12 jurors, and a misdemeanor jury has six (Code of Criminal Procedure Article 33.01). The panel is usually much larger than the jury itself, and the judge may also seat alternate jurors, up to four in district court and up to two in county court (Article 33.011). An alternate sits through the trial and replaces a juror who becomes unable to serve.

People call it “picking a jury,” but jury selection is really a process of removing people. There are two ways to remove a potential juror:

• Challenges for cause. A juror can be removed for cause when there is a legal reason the person cannot serve fairly. For example, a potential juror who says that, because of a personal experience with abuse, they could not be fair and impartial in this case would likely be removed for cause.
• Peremptory strikes. Each side may also remove a set number of jurors without stating a reason, subject to constitutional limits. In Texas, each side generally has 10 peremptory strikes in a non-capital felony case, and five in a misdemeanor tried in district court or three in county court (Article 35.15).

The key to jury selection is a thorough voir dire, the questioning of the panel by the judge, the prosecutor, and the defense attorney. It is the defense attorney’s chance to learn about potential jurors, to identify people who should not sit on the case, and to begin educating the panel about the issues.

Early in the process, the panel learns what the accused has been charged with, and at that point some people form an immediate dislike for the accused and start watching them closely. There is no reliable “profile” of a person who commits sexual abuse, but some potential jurors will still try to decide whether the accused “looks like” what they imagine.

The defense attorney should be well prepared, and the questions need to go much further than, “Will you all wait until you have heard all the evidence before making a decision?” Questions should be specific to the issues in your case. As they are asked, you and anyone helping you should watch the panel closely. For example, the defense attorney might ask, “Is there anyone here who does not believe a parent could coach a child into making a false allegation of sexual abuse?” Watch for anyone who reacts negatively. The goal is to identify potential problems and to educate the whole panel.

After voir dire, you and your attorney discuss which potential jurors concern you and which you would like to keep. The attorneys then make their challenges and strikes, and the remaining jurors, along with any alternates, are seated.

Opening Statements and the State’s Case

Once the jury is sworn, the judge instructs the jurors not to discuss the case or form an opinion until all of the evidence is in. In Texas, the prosecutor reads the charging instrument to the jury and gives an opening statement. The defense may give its opening statement right after the State’s or wait until the State rests (Article 36.01). The State has the burden of proof. The defense does not have to make an opening statement, call witnesses, or present any evidence, although it usually does.

The State then calls its witnesses, often starting with the accuser. The prosecutor’s questioning is called direct examination, and the defense then has the right to cross-examine. The State may follow with redirect examination, and the defense with recross. Strategy during this phase can change from moment to moment. For example, if a child witness says very little on direct examination, a defense attorney may decide that asking no questions is the best choice, rather than giving the witness an opportunity to say more. Deciding when not to ask questions can be as important as deciding what to ask.

When the State has presented its witnesses and evidence, it rests. The defense will often move for an instructed verdict, asking the court to rule that the evidence is legally insufficient. Most of these motions are denied, and the defense then decides whether to rest or present its case.

During Testimony

In the Courtroom

• Sit at the table with your attorney, feet flat on the floor and hands on the table in front of you.
• Take notes if you need to, but do not write furiously while someone is testifying.
• Do not react to anyone’s testimony, no matter what is said. You may mean one thing, but the jury may read it as something else.
• Do not glare at the witness. That can look like an attempt to intimidate.
• Look at the jury, but do not focus on one juror. Look at all of them.
• Look back and forth between the attorney asking questions and the witness answering them. Look at the judge during objections or when the judge is speaking.
• Spectators often sit behind the side they support. Do not glare at the people sitting behind the prosecutor, and do not smile or laugh with the people sitting behind you.
• Stand when the jury enters or leaves the courtroom and when the judge enters or leaves. It shows respect.

On the Witness Stand, in General

Whether to testify is your decision, made after talking with your attorney. You have a constitutional right not to testify. If you do testify:

• In a jury trial, speak to the jury. In a bench trial, speak to the judge. They are the ones deciding whether you are credible.
• If there is an objection to a question, do not answer until the judge rules and tells you whether to answer.

On the Witness Stand, Direct Examination by Your Attorney

• Your attorney will ask you questions, which may include asking whether you committed the offense you are accused of.
• When you are asked a question, look at your attorney. When you give a longer answer, turn and explain it to the jury. You do not need to move your head back and forth for every short yes or no answer.
• Understand that in Texas, the prosecutor’s cross-examination is not limited to the topics your attorney raised. Under Texas Rule of Evidence 611(b), a witness may be cross-examined on any relevant matter, including credibility. Broad statements can also open the door to evidence that would otherwise be kept out. For example, if you testify that you are a person of good character, the State may be allowed to offer evidence to rebut that claim.

On the Witness Stand, Cross-Examination by the Prosecutor

• Expect the prosecutor to try to get you upset so you come across to the jury as angry. Treat the prosecutor with respect at all times.
• Do not respond in an angry, sarcastic, or snide way, no matter how the prosecutor acts. Stay calm and keep your answers short and direct. If the prosecutor tries to provoke you and you stay calm, the jury is more likely to notice the prosecutor’s behavior than yours.
• Keep your answers to what is asked. Your attorney can clarify things on redirect examination.
• Do not let rapid-fire questions rush you. You can slow things down by asking, “Could you repeat the question?” Make sure you understand each question before you answer.
• The prosecutor may ask a question that needs an explanation but insist on a yes or no answer. Do not get upset. Your attorney can address it on redirect.

Closing Arguments, Deliberations, and the Verdict

When the defense rests, the State may call rebuttal witnesses. In Texas, the judge reads the jury its written instructions, called the charge, before closing arguments begin. The State, which carries the burden of proof, has the right to make the final argument to the jury (Article 36.07).

The jury then deliberates. In Texas, a verdict in a criminal case must be unanimous (Article 36.29 for felonies and Article 37.03 in county court). If the jury cannot agree, the judge may declare a mistrial, which is often called a hung jury (Article 36.31). After the verdict is read, either side may ask to have the jury polled, meaning each juror is asked whether the verdict is their own (Article 37.05).

If the verdict is guilty, the case moves to a separate punishment phase. Punishment is decided by the judge unless the defendant elected in writing, before jury selection began, to have the jury decide it (Article 37.07). Whether the accused can remain free on bond while an appeal is pending depends on the conviction and the sentence. Under Article 44.04, a person convicted of a misdemeanor is entitled to reasonable bail pending appeal, but a person convicted of a felony with a sentence of 10 years or more, or of certain serious offenses, cannot be released on bail pending appeal. The defense can then pursue post-trial motions, such as a motion for new trial, and an appeal.

Be Yourself

Do not overact, and do not respond in ways that could be misread. Be yourself, speak honestly, and do not be afraid to show genuine emotion when you testify. The jury or the judge holds your future in their hands.

If you have been falsely accused and your case may go to trial, Dunham & Jones can help you prepare. For more about how cases move through the courts, see the Texas court process and how to prepare and present yourself in court.

Falsely accused and facing trial in Texas? Call Dunham & Jones 24/7 at 800-499-8455 for a free consultation.

Frequently Asked Questions About Criminal Trials in Texas

Frequently asked questions about criminal trials in Texas.

This article provides general information and is not legal advice. Every case depends on its particular facts, charges, criminal history, court orders, and applicable law.