For years, we have been flailing about when defense attorneys ask for an instruction on article 38.23, CCP. The statute gives the defendant the right to submit factual disputes to the jury (a distinctly Texas development in the law) on the issue of the legality of an arrest. The problem has been forcing the defendant to identify what the heck he thinks is in dispute. Most of the time, he just disagrees with the judge's ruling on the law and wants a second shot before the nonlawyer jurors.
Well, now we have a unanimous opinion by Judge Cochran to guide us. In a brilliant, tightly written opinion, she pulls together all the concepts related to this issue and provides prosecutors and judges with a roadmap in court to figure this stuff out. This case is the sort of helpful decision-making that justifies the existence of the CCA.
It is great guidance on the issue. I have had this come up and my judge has struggled to really understand that just because the defense says "'taint true" doesn't mean there's an affirmative dispute.
quote: Even the most vigorous cross-examination implying that Officer Lily is the Cretan Liar does not raise a disputed issue.
It sounds like the clerks had a bet going at the Court to see who could get "Cretan Liar" written into an opinion. I've seen similar bets for trial attorneys and closing arguments.
quote: This lack of visual clarity is not surprising. Dashboard-mounted video cameras do not create Cecil B. DeMille productions.
I think I'm going to use this (complete with source credit) in voir dires and closing arguments.
Posts: 1089 | Location: UNT Dallas | Registered: June 29, 2004
Was the defendant's statement on the tape as to his supposed speed sufficient to raise an issue of fact as to the reasonableness of the officer's belief about the speed? The statement, it appears to me, was hearsay or was not offered to prove the truth of the matter asserted. While any admissions made on the tape are admissible, do recorded self-serving statements constitute probative evidence? To me, there should have been independent evidence controverting the vehicle's speed before any issue was raised as to reasonable suspicion to stop. Obviously, the defendant could testify for this limited purpose, but he apparently did not.
If the defendant's statement on the tape about his speed came into evidence without objection, then it was available for any purpose. Perhaps the prosecutor should have edited out that statement or requested an instruction as to whatever limited other purpose it might serve. That would have forced the defendant to testify before the jury on the issue if he wanted an instruction on that factual dispute.
Notice, also, that it was the judge, not the defense attorney, who volunteered that there was a conflict of evidence on that issue. That's not the judge's job. He should have required the defense to identify an issue.
