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Personal writings of a defendant

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November 08, 2004, 12:24
ML
Personal writings of a defendant
Police ran a warrant on a murder suspect's home and found incriminating personal writings of the defendant. I realize that I probably can't use them at the guilt phase of trial but I'm hoping to use them to impeach the defendant if he takes the stand. We've found no cases on point yet. Has anybody run across any case law that might shed some light on this issue? Thanks.
November 08, 2004, 15:43
david curl
Since nobody else will respond, I'll take a shot. I wonder if Bower v. State, 769 S.W.2d 887 (Tex. Crim. App.), cert. denied, 492 U.S. 927, 109 S.Ct. 3266 (1989), overruled on other grounds, 815 S.W.2d 681 (Tex.Crim.App.1991), helps you.

Among the stuff seized in that case were
"documents, forms, records and personal writings *906 of the appellant". The Court rejected a CCP 18.01(c), 18.02(10) complaint because:

"An officer may seize mere evidence of a crime even though such property is not particularly described in the search warrant when the objects discovered and seized are reasonably related to the offense in question, when the officer at the time of the seizure has a reasonable basis for drawing a connection between the observed objects and the crime which furnished the basis for the search warrant, and the discovery of such property is made in the course of a good faith search conducted within the perimeters of the search warrant."
Bower v. State, 769 S.W.2d at 906
November 08, 2004, 18:19
Martha W. Warner
I may be missing the boat here but aren't the Defendant's writings admissions against interest? Assuming you can prove they are his why couldn't you offer them in the case in chief? Wouldn't it have been helpful if Scott Peterson had left detailed notes of how to keep a body from floating?
November 08, 2004, 19:36
ML
18.02(10) (CCP) worries me since they are probably considered "personal writings of the accused." They weren't specifically listed in the search warrant but the crime scene folks thought the notebook might have blood on it and seized it. The notebook contained the incriminating statements. I think David's case (listed above) might be useful to use it at all stages though. But I agree... I think they would be admissions against interest and they would be useful evidence at the guilt stage as well. My thinking was that even if they couldn't be used in my case in chief if violative of 18.02(10) that they might could be used to impeach the defendant if he testifies... somewhat akin to using a voluntary unwarned confession as impeachment evidence per 38.22.
November 09, 2004, 08:09
Tim Cole
I've always wondered just what that "personal writings of the accused" phrase in 18.02 means. A quick Lexis search did not reveal any cases reversed or evidence suppressed based on the language. Can anyone give a scenario in which something is taken in violation of the language? It does not seem to make sense that you could not take a defendant's handwritten confession if you came across it while executing a search warrant for, say, bloody clothing or other evidence of a crime. I don't think admissibility is the issue. Clearly, a personal writing of the accused is an admission by a party opponent. The issue seems to be one of seizure -- how it was obtained, not whether it is admissible under the Rules of Evidence.
November 09, 2004, 09:43
JB
It is quite common to seize a defendant's personal writings from his jail cell and use those admissions of a party opponent during his trial. No right to privacy in a jail cell, so no Fourth Amendment violation.
November 09, 2004, 14:11
Paul McWilliams
Mike,
Back in the old days we used personal writings in a couple of cases. Travis v. State at 921 SW2nd 559 and Lockhart v. State 847 SW2d 568. The defense didn't argue personal writings in Lockhart although it was day book with notes about where the defendant had been. There was a motion to suppress in Travis which was denied and the facts of that case sound somewhat like yours. It was my position in those cases that just because you can't obtain a search warrant for it doesn't mean that it cannot be seized under other circumstances.
November 09, 2004, 17:06
BLeonard
I, too, have often wondered just what "personal writings" means. I've seen case after case where "dope notes" are seized although I've not had a case go to trial where they exist. A few years ago, I did have a capital murderer who had left his "diary" at a girlfriend's house where d had been staying off and on. We had overwhelming proof so I had my investigator pick it up and seal it without reading until I could figure out what 18.01(10) meant. Like Tim, I never found out. I let the defense copy it and never opened the thing for fear of the statute. I suppose I could have argued the property was abandoned but it was only abandoned because the d could not make bond. Additionally, it was not seized pursuant to a warrant but through girlfriend but I really was not trying to make new law on a death case. By the way, how do "dope notes" fugure into this?
November 09, 2004, 18:19
Tim Cole
Paul's idea comes as close to explaining this as I've seen. Maybe you can't get a warrant for the stuff but you can seize it if you are there legally and see it. Suppose, however, that I have a murder case wherein the girlfriend of the defendant tells the police that her boyfriend is a serial killer and he keeps a diary. Just look under his mattress and you will find everything you want to know. You mean I can't get a warrant to go seize that diary? Pardon my french, BUT THAT'S CRAZY!!! I have used dope notes in a trial. Defense never objected so this section never came up.
November 09, 2004, 23:10
BLeonard
Come to think of it, I have seen warrants which specifically refer to notes and other memoranda indicitive of commercial drug transactions, as well as computers and other devices for the storage of electronic data because the affiant knows these are used to store such information. "Writings" on a computer are no less writings than those on a Big Chief tablet, I guess. Wasn't there a recent case where a child molester or possesser of child porn was revoked for his fantasy diary? As I recall, the case was reversed, not on the personal writings issue but because merely writing about the abuse of children was not a violation of the law or his terms and condtions.
November 10, 2004, 08:08
Tim Cole
Well, you're right. We always put that language in the warrant. I'm sooooo confused.
November 14, 2004, 18:30
Martha W. Warner
It is my understanding that the authorities must return a computer even though that computer has been used to download child porn on it if there is a "novel" or the pervert kept written details of his escapades on the computer. That makes no sense at all. Surely that is not what is intended. It would certainly be good impeachment evidence.Did this originally have something to do with the press protecting their confidential sources?????
April 19, 2005, 15:52
J. Cleveland
I don't think you have to return a computer that contains child porn if their is a "novel" or "story" on there. It contains contraband at that point. You may have to return the "story" at the very least but I wouldn't return the computer with the contraband.

JK
April 19, 2005, 17:11
BLeonard
This is the one thread I can recall that seemed to collapse under its own weight without an answer to a substantive question of law. Could a detiled confession buried in a defendant's journal really be unavailable to us?

Where are our great minds? I would like to know what the statute means and I, too, have Westlawed and Lexised without luck. TDahoney? Martin? Wes? You there? If David Curl doesn't answer a question, the answer must not exist.
April 20, 2005, 10:45
J Ansolabehere
At least one court recently held that pornographic images of children on the defendant's computer were not "personal writings of the accused." The court characterized the writings as items which are illegal to possess. They are also property or items constituting evidence of an offense. However, according to the court, "Personal writings refers to writings like diaries, memos, and journals that were not intended by the writer to be published to third parties." The case is Millican v. State from the Second Court of Appeals.

Janette Ansolabehere
April 29, 2005, 10:42
ASG
Mullican vs. State is my case. The defense attorney has filed a PDR. It was a strange but novel argument for the defense to say that a child porn collection is the same as "personal writings."