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

Arthur Kirkland:
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.

Would you like a beer with your sneer? You must feel so smug.

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.

Round up the usual suspects.

seattle law student: JNHeath — I think you just blockquoted a spambot.

Thanks. The content seemed specific to the thread, if obtuse.

nanclin: Hello,Very Nice postBeing 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 informationNanclin

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?

fwb: 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.

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.

Thanks for this information
Nanclin

jccamp:  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

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.

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**.

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

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?

Pintler: 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.

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.

I suppose some innocent man might be so stupid as to falsely confess at that point, but you can’t save everybody.

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.

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.

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.

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.

jccamp: Arthur Kirkland @ 4:15 PMWhy would you think that this doesn’t happen all the time? it does.

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.

“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.

Whatever works, right?

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.

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.

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?

Eugene Volokh: what’s the history behind the Texas statutory exclusionary rule?

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.

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.

Nobody is talking about using falsified evidence to get someone to accept a light sentence.

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.

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.

Obviously “Arthur Kirkland” has never seen , to say nothing a certain show starring Chuck Norris.

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.

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.

OrenWithAnE: 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.

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.

Guest14:
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.

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”.

This is easily distinguishable from an undercover cop presenting himself as a criminal.