Jury Suppression in Texas
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.
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I tried a DWI test case against Karen Barney years ago where the jury, thankfully, did not get past the stop issue. The judge wanted to give a general charge — something to the effect that the officer did not observe a traffic violation. I insisted that he take the cop’s words right out of the record and instruct the jury that if they did not find that THAT exact behavior occurred, then they had to suppress. (I had photographs of the roadway & testimony that showed that the officer was mistaken, or lying, about those curves on Shepherd in the River Oaks area.) The jury came back with a not guilty. 38.23 is a great tool that a jury will use when they want a reason for the defense to win.
That’s something I didn’t know. I always thought it was up to the judge to determine whether something was admissible. Does this apply to detention/stops only, or do Texas juries also get to decide if a search was reasonable, given the available evidence? Personally, I would likely be against no-knock warrants, and the State doesn’t want me on a property seizure jury at all, given my belief that those are truly bad laws.
Ross,
Any search issue that hinges on a question of fact (rather than a question of law) can be resolved by a jury. Here are some of the 38.23 jury charges that have been used in Harris County.
So does defense counsel get two bites at the suppression apple — put it to the judge first, and if the judge admits it, put it to the jury? Or are these fact-based suppression issues the exclusive province of the jury?
Two bites.
Jury suppression, jury sentencing…Texas doesn’t sound bad.
Haha, Lee, you just haven’t met our juries yet!
Jury members are not generally attorneys or experts in the law. Why is Texas treating them like they are?
Alright, I think I’ve got to end the Texas bashing I’ve recently engaged in on my blog. This is awesome. I’d love the trier of fact in a suppression hearing not be someone who is afraid of career repercussions if he/she rules that an officer acted unlawfully.