There was a little discussion on Twitter this morning, started by Houston DWI lawyer Paul Kennedy, about suppression of illegally obtained evidence in Texas.
In Texas, foreigners are often surprised to learn, juries can decide suppression issues on disputed facts—for example, when the cops say that they stopped the defendant for not wearing a seatbelt and the defendant or a passenger says that the defendant was buckled in.
How does that work? The charge is the thing. Caselaw doesn’t mean squat to a jury; when you want to know how the law applies practically, you begin and end with the instructions that a jury is given.
Here’s a typical Texas jury charge (from Harris County’s charge bank) on jury suppression of evidence under Article 38.23, Texas Code of Criminal Procedure:
You are instructed that 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.
You are further instructed that before an officer has the right to make a temporary investigative detention of a defendant, the officer must have a reasonable suspicion that the defendant is connected with some criminal activity that is or has occurred. To justify an investigative detention, an officer must have specific articulable facts, which taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity. The reasonableness of a temporary detention must be examined in terms of the total of the circumstances. The test for reasonable suspicion is not whether conduct is innocent or guilty, but the degree of suspicion that attaches to noncriminal acts.
Now, therefore, before you consider the testimony of Officers Harmon and Corley concerning their observations of the defendant after his detention, you must first find beyond a reasonable doubt that the officer had such reasonable suspicion, and if you do not so find beyond a reasonable doubt you will disregard such testimony.