Wilson v. State, decided March 3 by the Texas Court of Criminal Appeals (the highest Texas court for criminal matters), involved two Texas statutes. The first is a Texas statutory exclusionary rule (Tex. Code Crim. Proc. § 38.23), first enacted in 1925:
No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case [unless the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause].In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
The second is Tex. Penal Code § 37.09, which provides,
(a) A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he … makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding.(b) This section shall not apply if the record, document, or thing concealed is privileged or is the work product of the parties to the investigation or official proceeding.
Now the facts: Ronald Wilson calls 911 “to report that he had found a man’s body”; a magazine clip is found near the body. The police suspect Wilson might have been the killer, and arrest Wilson on unrelated warrants. Detective Roberts questions Wilson, by getting a copy of a forensic report and then editing it to say, “Examination of Item 1 revealed the Two Latent Prints lifted from the Firearm Magazine belong to those of Ronald Wilson ….” (In fact, no legible fingerprints had been found on the clip.) Wilson then confesses.
The court concludes that the confession should have been thrown out, because Detective Roberts had violated the false document statute: He used a document with knowledge of its falsity and with intent to affect the investigation. Roberts didn’t try to dupe the investigators or officials; he didn’t, for instance, submit the fake document to a judge in order to get a search warrant (which would clearly have been a crime, and which would have invalidated the search warrant). He just duped the suspect with it (and note that lying to a suspect is generally permissible). But this did involve the use of a document to affect the investigation, by affecting the suspect’s willingness to confess.
Seems like a very interesting case to me, for several reasons. First, what’s the history behind the Texas statutory exclusionary rule? I wouldn’t have thought that such a defendant-friendly rule was likely to be legislatively enacted.
Second, as the court reads the statute, it would presumably be a crime for an undercover agent presenting a fake identification card in order to infiltrate a criminal ring (since that would be using a document or thing with knowledge of its falsity to affect the investigation), or engaging in a wide range of similar investigative deceptions. Maybe that’s right under the statute, but it’s certainly a pretty striking result.
Third, and independently of whether Detective Roberts’ conduct was a crime, is there some sort of limitation on the statutory exclusionary rule — like on the federal constitutional exclusionary rule — that limits it to crimes that violate the rights of the defendant? The principal dissent suggests that Texas caselaw has recognized such an exception:
[I]t is a fundamental rule of law that only the person whose primary legal right has been breached may seek redress for an injury. Consequently, [s]tanding consists of some interest peculiar to the person individually and not as a member of the general public…. [T]he right to complain because of an illegal search and seizure is a privilege personal to the wronged or injured party, and is not available to anyone else.
And, the dissent argues, because “Section 37.09 ‘does not shield a person from having his liberty interests infringed, nor were appellant’s privacy or property interests implicated’ by any violation of Section 37.09,” appellant lacks standing to demand the exclusion of evidence gathered in violation of § 37.09. But I don’t know enough about the Texas law of standing under the statutory exclusionary rule to comment on which opinion has it right.
Five Justices were in the majority, one dissented on procedural grounds, and three signed the principal dissent. One of the three also wrote a separate dissent, which I think is unpersuasive. It argues that because “the detective’s educated guess as to the source of the prints turned out lucky: Appellant admitted shooting the victim,” “The detective’s report was not wrong because even though it stated that there were identifiable latent prints lifted when in fact there were no legible prints, Appellant did shoot the victim. And that fact makes it highly likely that the unidentifiable prints on the magazine were indeed his.” Yet this doesn’t make the report “not wrong” (or, as a statutory matter, not a “document, [presented] with knowledge of its falsity). It still falsely asserts that “Examination of Item 1 revealed the Two Latent Prints lifted from the Firearm Magazine belong to those of Ronald Wilson” (emphasis added), and falsely claims that this was a statement of the forensic examiner.
The decision can’t be appealed further, I think. The Texas Court of Criminal Appeals is Texas’s highest court for criminal matters; and the decision is on a matter of state law, so the U.S. Supreme Court lacks jurisdiction to consider it. But the Texas Legislature can certainly change the law going forward, though I don’t know whether it will.
ruuffles says:
There you go. 1925. As you say, today’s tough-on-crime politics (that elected the judges who delivered the 5-4 TCCA decision) would not permit such a statute that was enacted 85 years ago.
March 9, 2010, 1:04 pmBrad Ford says:
Unless the law in Texas has changed recently, Texas does not have an “inevitable discovery” execption to the exclusionary rule. While Texas does not have many pro-defendant rules, it does have a few.
March 9, 2010, 1:16 pmfwb says:
Lying to elicit a response from a suspect is still lying and is an act of dishonor.
Any police officer who lies at any time should be dismissed for lack of integrity and should be considered untrustworthy in every instance.
March 9, 2010, 1:24 pmRoscoe says:
That standard would make a lot of undercover operations kind of hard to manage.
On a related point, I remember a somewhat similar dust-up that occurred about a decade ago. Federal law prohibits giving anything of value in return for testimony. A court determined that the feds violated this law when they agreed to move for a reduced sentence for a defendant who testified against his co-defendants. I think it was finally determined (either by a higher court or a change to the statute) that the law wasn’t aimed at conduct by the government.
March 9, 2010, 1:39 pmSebastian the Ibis says:
Makes sense to me. Otherwise prosecutors and police could fabricate whole mountains of evidence. If you did not rob a liquor store, but the police show you your fingerprints recovered at the scene, your car on the surveillance tape from outside and statements from three witnesses identifying you as the robber. You may be inclined to accept a light sentence recognizing that there is enough evidence to convict you even though you did not do it. Would there be a line drawn at the police admitting the evidence is fake, but telling you it looks really good and threatening to use it at trial? It makes much better sense, to me at least, to not let any intentionally tainted evidence into the system.
March 9, 2010, 1:52 pmDavid Schwartz says:
Sebastian: Nobody is talking about using falsified evidence to get someone to accept a light sentence. I’m not sure what you mean by “into the system” — this document was used purely for interrogation purposes.
March 9, 2010, 2:03 pmhugh says:
Well, so much for Lt Columbo and all those murders he solved by fooling suspects into confessing.
March 9, 2010, 2:08 pmzuch says:
Prof. Volokh quotes Texas law:
Is this badly written law? “… believes, or has a reasonable doubt…”?!?!? Shouldn’t that be “… believes, or has a reasonable basis for believing [at least the possibility]…”?
Cheers,
March 9, 2010, 2:09 pmhugh says:
Well, so much for Lt Columbo and all those murders he solved by fooling suspects into confessing.
I think Miss Marple and Jessica Fletcher are in deep trouble too.
March 9, 2010, 2:09 pmGuest14 says:
Right. Interrogate the subject, using false evidence to convince the subject that conviction is inevitable, irrespective of what he says, and that confession is his only hope for lenience. Videotape the confession, then use it as leverage in plea negotiations. It’s a pretty good system, if all you care about is getting convictions.
March 9, 2010, 2:14 pmzuch says:
Admitting it is false might not be the best strategy. Such admissions might have a habit of coming back to bite you.
Cheers,
March 9, 2010, 2:17 pmSuperSkeptic says:
What about the argument that the falsified fingerprint results fall under the statutory exception for the crime because it was the officer’s “work product” as a “part[y] to the investigation”? It looks to me like he was an official investigating, and he put in a little work.
I think the dissent may have been on firmer ground there rather than citing federal exclusionary rule principles (in interpreting a state exclusionary statute) (and how other countries do not use the exclusionary rule) and twisting some caselaw to create a standing issue. It’s just easier to twist a statute. Plus, this would save/exempt all the tricky lying antics that everybody seems to want the police to be able to do still, i.e., “undercover operations”.
March 9, 2010, 2:17 pmOrenWithAnE says:
You might also be inclined to have your counsel explain the trial odds after discovery.
Say nothing, admit nothing, do nothing. Just sit catatonic — nothing shuts down the interrogation machine like refusing to play.
March 9, 2010, 2:30 pmOrenWithAnE says:
Threatening to frame a suspect (or to introduce false evidence proving your assertion that he is in fact guilty) is clearly a different ballpark than bluffing about your evidence.
March 9, 2010, 2:34 pmPubliusFL says:
“Magazine clip”? I would expect more from a Texan judge. ;)
March 9, 2010, 2:51 pmKenvee says:
Another interesting factoid is that 38.23 prevents the use of anyunlawfully obtained evidence, not just that obtained by the police. It also restricts conduct by private citizens. So there’s no debate about whether the civilian was or wasn’t acting on behalf of the police.
There are a number of restrictions caselaw has put around 38.23, such as the restriction you mentioned about the law broken has to affect the privacy interests of the defendant, not just some unrelated law. There was a recent case involving some tow truck drivers following a drunk hit-and-run suspect and boxing him in until the police arrived. They violated several traffic laws, but the CCA held that 38.23 didn’t apply.
March 9, 2010, 2:53 pmSlippery Slope says:
Apparently, the statutory exclusionary rule was intended to protect moonshiners and other Prohibition violators after the state courts refused to adopt the exclusionary rule.
March 9, 2010, 2:56 pmhttp://www.cca.courts.state.tx.us/opinions/HTMLopinionInfo.asp?OpinionID=16065#N_18_
Mark Jones says:
I’m with OrenWithAnE–just don’t talk to the police. Period. If this suspect had adhered to that rule there would have been no confession to argue about. If they’re looking at you for a crime, nothing you can say will help, and anything you say can be used against you. Just shut your mouth.
March 9, 2010, 3:12 pmArthur Kirkland says:
This officer didn’t bluff. He apparently showed his cards, which were counterfeit. I hope a law prohibits this type of adulteration and misuse of an official record in most jurisdictions, but this case involves Texas, and Texas and justice rarely occupy a single sentence.
March 9, 2010, 3:14 pmCatCube says:
Apparently it’s legal in Virginia. I can’t access the video here at work, but the detective in that “Don’t talk to the police” video by a UVa law professor that was posted here a while back talked about a tactic that he used. He told a suspect (after he’d been mirandized) that he had all kinds of evidence that he had conducted a burglary, and that the homeowner would ask the police to go light on him if he wrote an apology letter. The suspect did, and the detective entered it into the casefile as a confession written in the suspect’s own hand.
March 9, 2010, 3:31 pmjnheath says:
You have to consider the *innocent* suspect: if he never touched the gun, but a Texas LEO showed him a fraudulent forensic report that said his fingerprints were found on the gun, the arrestee could reasonably conclude that the police were railroading him with false evidence. That’s a recipe for a false confession by an arrestee who has no expectation of a fair trial. He cannot expect that his defense attorney will successfully refute a fraudulent forensics report.
This is easily distinguishable from an undercover cop presenting himself as a criminal.
March 9, 2010, 3:39 pmDavid Schwartz says:
That’s only one small part of the problem with lying to a suspect to get a confession.
The biggest problem, IMO, is that it taints facts in the “confession” because when you lie to people, even well-intentioned people respond with falsehoods. “I have a forensic report that proves conclusively that you touched the gun.” “Well then I must have touched the gun.” Is that a confession? Or is that a false conclusion deduced from false information?
This is especially true if the suspect has no idea what kind of statements might be incriminating but the interrogator does. All the interrogator has to do is give false information to the suspect to lead him to deduce the things that would be incriminating and then wait for the suspect to deduce them. These deductions can easily be styled as “confessions”.
Willingham’s “confession” that he poured accelerant on the floor is just this type of “confession”.
March 9, 2010, 4:05 pmKen Arromdee says:
If the suspect is guilty, these are different. If the suspect is innocent, these are pretty much the same–If you bluff about the evidence and the suspect is innocent, he’s going to think that the police are threatening to use fake evidence even if they don’t actually call it fake.
March 9, 2010, 4:06 pmFC says:
Obviously “Arthur Kirkland” has never seen , to say nothing a certain show starring Chuck Norris.
March 9, 2010, 4:09 pmArthur Kirkland says:
This method could be handy in mandatory annual internal affairs reviews for all prosecutors and police officers. Tell the officer or prosecutor that the internal affairs division possesses evidence of misconduct (a gratuity, a favor for a friend, misuse of evidence, excessive force, a false statement) and that (a) a confessed offense will generate a slight penalty or (b) an unadmitted offense will generate imprisonment, disbarment, termination, etc
Make sure that the claim is true periodically, to impart the appropriate level of seriousness to the subject’s consideration of the proposal, and watch the confessions sprout, the deterrent effect blossom.
This (coupled with cameras in every police car, interrogation room, and prosecutor’s office) would improve our law enforcement operations substantially.
March 9, 2010, 4:15 pmArthur Kirkland says:
If you are referring to infomercial huckster Chuck Norris, that fellow is not worthy of carrying Arthur Kirkland’s briefcase, particularly with respect to any point involving justice.
In fairness to Mr. Norris, however, Arthur is probably not in Norris’ league as a candidate to sell a “no gray at 70″ hair miracle product.
To each his true calling.
March 9, 2010, 4:23 pmBill Harshaw says:
No one mentioned “The Wire” where the detectives used a photocopier as lie detector (by putting pages with “true” or “false” in the paper tray and asking questions to correspond to the answers. If I remember correctly David Simon also reported the same thing in “Homicide”.
March 9, 2010, 5:03 pmSebastian the Ibis says:
What do you think the officer offered him with the falsified evidence? More jail time? An (false) offer of a lighter sentence is a reasonable inference as far as I am concerned.
March 9, 2010, 5:24 pmLior says:
Good for Texas to have this law on the books. Wouldn’t it be refreshing if the USSC turned to the Federal Rules of Evidence, pointed out that Congress has enacted no exclusionary rule, and came to the obvious conclusion?
In the same vein, where would the dissent find its “exception”? Assuming that the document was, indeed, illegal to make or use, then the defendant was personally and directly wronged by its use and should have standing to sue. The fraud was perpetrated on the defendant, after all. Certainly, if the accused was indeed the perpetrator then he wasn’t harmed by the violation. But, as others have pointed out, if the confession was elicited by illegal means then the confession itself is suspect.
I don’t understand the way the dissent wants things to work. One statute [criminal code §37.09] has an explicit exception (part (b)) which makes the conduct in question not a crime (perhaps the legislature should be a part (c) addressing false documents produced in order to mislead suspects?). The other statue, on the other hand, has a separate explicit exception and so by implication does not have any other, unlisted, exceptions. Yet, they would rewrite the second statute rather the follow the first.
March 9, 2010, 5:48 pmMark N. says:
According to this reference (p. 49), the statutory exclusionary rule was adopted largely to overrule the 1922 Texas Court of Criminal Appeals decision in Welcheck v. State, which allowed illegally seized moonshine to be entered into evidence, despite the illegal seizure. Interestingly, it had no good-faith exception between 1925 and 1987, either.
March 9, 2010, 5:51 pmSebastian the Ibis says:
Yes, but the only difference is the intent of the police officer. How is the suspect going to know the difference? The average innocent nincompoop has to think awfully hard when the officer says “I have a murder weapon with your fingerprints on it, and X,Y,Z too, sign this document and you will avoid the chair.”
Also, if a court allows fabricated evidence to be used to interrogate suspects how does The court ensure that the fabricated evidence stays out of the courtroom? Every criminal defendant worth his stripes will suggest that any physical evidence was fabricated for interrogation and is now being used intentionally or accidentally to convict him. The court will either have to waste time with hearings to determine the then somewhat credible claim that the evidence was expertly fabricated, or the courts will have to give the police carte blanche. Imagine if an investigator who has previously fabricated interrogation evidence dies or is otherwise unavailable, how can a finder of fact be certain beyond a reasonable doubt that the evidence in the file is genuine without the investigators testimony?
March 9, 2010, 5:54 pmjccamp says:
Not many experienced interrogators here, I see.
The classic: tell one suspect that his friend and fellow suspect has ratted him out. Tell suspect #2 the same thing about #1. Sit back and watch them scramble to hand each other up.
It’s a classic because it works.
In Florida, we have pretty much the same rule as in the OP. Police interrogators can lie to suspects. However, they may not represent articles or documents as something they are not. So, cops may tell a suspect “We have your DNA. You breathed while you were in the crime scene and left your breath behind.” or something equally fatuous, but cops may not show a suspect anything that purports to be a report or record of such unless it is genuine. I’m not suggesting it’s always a useful or valid tactic, only that it’s legal.
Arthur Kirkland @ 4:15 PM
Why would you think that this doesn’t happen all the time? it does.
March 9, 2010, 6:17 pmGuest14 says:
Maybe law enforcement should conduct fake trials with a fake judge and jury, pretend to convict the suspect, and then have the fake judge tell the suspect that he will be required to impose the maximum sentence unless the suspect expresses contrition through, for example, taking responsibility for his actions.
Whatever works, right?
March 9, 2010, 6:40 pmMalvolio says:
If a police officer’s goal is to convict the guilty and acquit the innocent, it would be pretty easy to stick to lies that distinguish them: tell only lies that an innocent man would know are lies.
“We’ve got videotape of you at the crime scene.” It doesn’t take a genius to realize, if he wasn’t at the scene, the police is lying; the criminal has no such assurance.
I suppose some innocent man might be so stupid as to falsely confess at that point, but you can’t save everybody.
March 9, 2010, 7:34 pmArthur Kirkland says:
During many years of representing, interacting with and befriending police officers and prosecutors, I have never heard of that practice. Doesn’t mean it doesn’t happen, but I would have expected to have heard of it.
March 9, 2010, 8:00 pmMark Jones says:
“We’ve got videotape of you at the crime scene.”
What if I was at the crime scene before the crime occurred (or after, assuming no body or other evidence that might grab my attention in passing)?
And we get back to: don’t talk to the police. If they have evidence to convict me, nothing I say will help. If they don’t have evidence, anything I say might be used against me. Anything I have to say in my defense, my lawyer can communicate or I can say at trial, if it gets that far.
March 9, 2010, 8:16 pmhattio says:
Oren with an E says;
How is it any different for an innocent suspect? If you tell me you have a bunch of evidence, that I know you cannot have, you are basically saying that you’re going to frame me with fabricated evidence. Don’t get me wrong, I know that the LEGAL effect of the two actions are different. I’ve just always kind of wondered why that was so.
March 9, 2010, 8:25 pmPintler says:
One of the distressing things about the book ‘Actual Innocence’ was how often the mentally deficient falsely confessed. Falsely convicting the dimwitted because they are easy prey ought to give anyone pause.
March 9, 2010, 8:39 pmjnheath says:
It’s not just the “dimwitted.”
Suppose you were in a third world country and the police planted evidence on you, then offered you a deal. Would you take the deal and plead guilty, or stand on your principles on the assumption you could beat them in a third world court? I bet you’d think hard about it.
For a lot of people, the choice in the US would be exactly the same, when faced with LEOs who have fabricated evidence.
March 9, 2010, 9:06 pmjccamp says:
Arthur K –
Maybe different jurisdictions have different MO’s and different organizational cultures, or maybe seriously different corruption problems. I suspect all three might be valid. IA investigators in Florida were so notorious for lying about investigations, there is now a controlling state statute defining exactly what they can and must provide to an accused officer. Given the number of times it has been suggested that cops routinely violate the rights of the accused, it shouldn’t surprise anyone that IA cops could also violate the rights of other, honest cops.
Guest 14 –
Being a little dramatic, aren’t you? No one is suggesting that the police frame anyone or falsify evidence for actual use in court. What is being done is an interrogation technique wherein the interrogator pretends to have more knowledge that he/she really does, in an effort to trick the suspect into revealing vital information, the suspect mistakenly assuming it is already known to the interrogator. The bogus information assumed by the interrogator may not even represent a criminal act, but may, instead, be something like “I know you were not at work on Monday because someone saw you at XXX.” Sometimes, the tactic isn’t even used to reveal important information; it’s merely to get the suspect talking and admitting to some falsehood, even an insignificant one.
As for false confessions, if the statement provided by a suspect does not corroborate the known facts in all respects, then the statement should be rejected, or at least suffer some serious verification. Generally, a confession, in and of itself, is insufficient to convict without corroborating physical evidence.
And just out of idle curiosity, of those who are critical of police interrogators who use deceit as a tool to gain the truth, how many are equally critical of defense counsel tactics at trial, that might, for instance, suggest (to a jury) that a given prosecution/government witness is a liar/bigot/thief/mental case/blind/stupid/whatever, when in fact defense counsel might know full well the witness is testifying truthfully and completely? Is deceit, when practiced to obscure the truth from the trier of fact, legitimate since defense counsel is bound by ethics to provide the best and most capable defense for the client possible?
March 9, 2010, 9:49 pmjccamp says:
Arthur Kirkland -
Again, just from curiosity, what part of the country did you/do you practice in? My email is linked here somehow, if you can figure out how to get it.
JC
March 9, 2010, 10:02 pmArthur Kirkland says:
Pennsylvania (mostly)
March 9, 2010, 10:06 pmRisk Factor of Insurance Policy says:
[...] The Volokh Conspiracy » Blog Archive » An Unusual Exclusionary … [...]
March 9, 2010, 10:12 pmjccamp says:
AK -
Thanks. One of the places I never had a case, fortunately or unfortunately. Done USDC in N Ill, S NY, PR and Ga (besides all 3 districts of FL), and, of course, Fl circuit court ad nauseum.
Just as well. You might’ve kicked my a**.
March 9, 2010, 11:12 pmSoronel Haetir says:
But to the innocent hauled in for interrogation it looks exactly the same whether the police are actually trying to frame someone or just using a tool hoping for some break. And that’s the major problem I have with investigators being allowed to lie. Just like so many other things the technique must be measured against its impact to an innocent person. If searches and seizures were guaranteed to target only criminals we would be far more tolerant of brutal police tactics, I see the same being true with regard to interrogation.
As for your reliance on verification there have been far too many cases where demonstrably false confessions were riddled with errors when compared against the known facts, yet jurors simply overlooked them for me to give such measures much credit. That applies to statements other than confessions as well, witness the cult child abuse cases as a great example of that, jurors took fantastic and impossible claims as proof of mundane abuse rather than as a discount factor against credibility.
The attitude that someone confessed so they must actually be guilty is very strong. It helps in the disproving now of course that more and more departments are recording interrogations, the steps to a false confession tend to be much more visible when the entire process can be seen rather than just the end result.
March 9, 2010, 11:44 pmnanclin says:
Hello,
Very Nice post
Being a little dramatic, aren’t you? No one is suggesting that the police frame anyone or falsify evidence for actual use in court. What is being done is an interrogation technique wherein the interrogator pretends to have more knowledge that he/she really does, in an effort to trick the suspect into revealing vital information, the suspect mistakenly assuming it is already known to the interrogator. The bogus information assumed by the interrogator may not even represent a criminal act, but may, instead, be something like “I know you were not at work on Monday because someone saw you at XXX.
Thanks for this information
March 10, 2010, 1:06 amNanclin
John Herbison says:
If that were the rule, how would any government staff its police force?
As I tell my clients frequently, if the police question you, reply with four words, and only four words: “I want my lawyer.” If you feel compelled to speak five words, they should be: “I want my lawyer now.
March 10, 2010, 1:26 amSoronel Haetir says:
I will say I see a significant difference between verbal lies and presenting false documents or otherwise fabricated materials in this context. Once a fake forensics report has been produced the innocent interrogee may well think the officer is actively trying to frame them, verbal lies don’t rise to that level. So as far as that goes this CCA decision makes sense to me.
March 10, 2010, 2:22 amjnheath says:
How is an innocent suspect supposed to know that the police do not intend to use the falsified information in court? All an innocent suspect knows is that the police are willing to falsify information, and want him to confess.
Or do you believe there are no innocent suspects?
March 10, 2010, 9:32 amseattle law student says:
JNHeath – I think you just blockquoted a spambot.
March 10, 2010, 10:49 amjnheath says:
Thanks. The content seemed specific to the thread, if obtuse.
March 10, 2010, 12:30 pmjccamp says:
Someone finally approves of my cop point of view, and it’s a stupid spambot???
Round up the usual suspects.
March 10, 2010, 10:08 pmjccamp says:
“As for your reliance on verification there have been far too many cases where demonstrably false confessions were riddled with errors when compared against the known facts, yet jurors simply overlooked them for me to give such measures much credit.”
I’m not disagreeing with this, but the suggested solution seems like tossing the baby with the bathwater. You just can’t create any system that’s stupid-proof, especially if the fault exists at every level of the system as the example would require.
As for recording interrogations, I see the value chiefly as refuting (or maybe confirming) that interrogators provided details to the suspect, allowing him/her to parrot them back. Details within a statement/confession are what separate the real stuff, especially details which could not be known except to one with personal (or second hand but still genuine) knowledge. When a suspect’s answers tend to be multiple choice, you could reasonably assume a problem with that suspect’s actual knowledge.
March 10, 2010, 10:23 pmKevin P. says:
Would you like a beer with your sneer? You must feel so smug.
March 10, 2010, 11:57 pmTexas Trial Advocate says:
Looks simple to me, and the State should have seen this coming in light of the CCA’s ruling in Miles that the statute “means what it says”. I commend the CCA in taking a stand. Laws are too often “overinterpreted” and the plain language should be adhered to.
I am working an interesting 38.23 claim that maybe I could get some educated opinions on.
This case involves the violation of the Criminal Trespass and Burglary Statutes by a private party to obtain evidence. FACTS are supported by both side, so its just a legal question. A wife, who didnt have a key and had “notice” that the entry was forbidden entered her husband’s office(located on property where they lived owned by his parents, who owned the business also)The office was seperated from the couples home and even she agrees the husband had a greater right to possession of the property. She entered and obtained the evidence in questions.
Does 38.23 require suppression of that which she obtained? If that which she obtained was used in a search and arrest warrant probable cause and no other basis was mentioned, would those items then be “poisoned”.
So far we have found that numerous courts of appeals have held Criminal Trespass would invoke 38.23. Also when the entry was made, she stole several other items other than the evidence without intent to turn them over to authorities as well (See Jenscke vs State) Under Miles 2007 CCA, she would be treated as an officer would in her situation, correct? No emergency situation occurred and no other legal justification for violation of these statutes could be asserted.
Comments are welcomed
July 8, 2010, 12:18 pm