I've picked the brains of some of the TDCAA community about this already and received very helpful feedback, but here's my APB in case someone can point me to a case-on-point. It has eluded me thus far.
Is there a case that specifically addresses whether CCP 28.01, Sec. 1(6), by its plain language, allows a party to a suppression hearing to insist a judge consider only evidence contained in oral testimony, opposing affidavits, or the motions themselves?
I know that as a matter of practice, most all jurisdictions frequently allow the presentation of videos, exhibits, etc at suppression hearings. But has anyone ever objected, saying that the only evidence permitted by the pre-trial statute is one of those three types?
More to the point, has an appeals court ever considered an appeal where either the defense or the state objected to the consideration of evidence not contained in an affidavit, in the motions themselves, or in oral testimony, on the grounds that the statute limits suppression hearings only to those categories?
Maybe I've just gone soft since I left TDCAA but I can't find a specific answer to this question anywhere. Any help would be appreciated.
My immediate impression is that the statute says "may determine," not "must determine." "Only" is also missing from the statute. But, I guess you could argue this is one of those instances where may actually means shall where "may" is followed by three specific "on" options.
Considering TRE 101(e)(1) and 104(a)normally make the evidence to be considered as wide open as the court wants, I do not accept the idea that only "oral testimony" can be used. I do not know why that terminology is used, but it cannot really be for the purpose of excluding relevant, material evidence that happens to be in another form.
Many outlandish claims have simply not yet been addressed by the courts. This seems to be one of those.
In support of what I said: "in a pre-trial motion to suppress hearing, a trial court may rely upon any relevant, reliable, and credible information . . ." Ford v. State, 305 S.W.3d 530, 531 (Tex.Crim.App. 2009)(documentary evidence)
Don't forget the Code Construction Act, too:
Gov't Code Sec. 311.016. "MAY," "SHALL," "MUST," ETC. The following constructions apply unless the context in which the word or phrase appears necessarily requires a different construction or unless a different construction is expressly provided by statute:
(1) "May" creates discretionary authority or grants permission or a power.
Martin's case dealt with a hearsay issue, but the reasoning is specific enough to my question that I think it resolves it pretty clearly.
"The statutory rule states that a motion to suppress 'may' be resolved by considering different possible means of acquiring information. The rule does not state that the motion 'shall be' or 'must be' resolved by these specific means. There is no suggestion in the plain language of the rule that this is an exclusive list. Instead, the statutory language supports the notion that a motion to suppress is an informal hearing in which the trial judge, in his discretion, may use different types of information, conveyed in different ways, to resolve the contested factual or legal issues."
Ford v. State, 305 S.W.3d 530, 537-38 (Tex. Crim. App. 2009)
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