Bill Would Allow State Case Agent To Stay in Court

By Mary Alice Robbins
Texas Lawyer
Monday, December 11, 2006


Unable to persuade an advisory panel to recommend that the Court of Criminal Appeals amend a rule that prevents the investigator in a criminal case from being in court at trial, prosecutors hope to make a case for such a change with the Texas Legislature.

Under S.B. 121, filed Nov. 27 by state Sen. Florence Shapiro, R-Plano, a prosecutor could designate an investigating officer on a case to serve as the state's "courtroom representative" during a criminal trial. As provided by the bill, the trial court could not apply Texas Rule of Evidence (TRE) 614 to the designated representative. That procedure is commonly called putting witnesses under "the rule" to prevent their testimony from being tainted by hearing the testimony of other witnesses.

Shannon Edmonds, a staff attorney and director of governmental relations at the Texas District and County Attorneys Association (TDCAA), says the idea behind the proposed legislation is to help prosecutors better present their cases.

TRE 614(2) allows a business entity or organization involved in a civil case or a defendant corporation or association in a criminal case to designate an officer or employee as its representative in court. However prosecutors are unable to use that provision. The way TRE 614(2) is written prevents the state from having a case agent in court during trial and puts prosecutors at a disadvantage, Edmonds says.

Shapiro says in a written statement issued by her Senate office on Dec. 5 that under S.B. 121, prosecutors will receive the same benefit that every other litigant in every other case in Texas has � the ability to have their designated case agent, who is also a witness, remain in the courtroom during trial.

"By simply removing the unique language that currently excludes prosecutors, we will put everyone on a level playing field in our courtrooms," Shapiro says in the statement.

Joy Rauls, Shapiro's chief of staff, says a Grapevine law enforcement officer asked Shapiro to make the change in TRE 614.

But earlier this year, prosecutors tried to convince the Rules Advisory Panel of the Court of Criminal Appeals to recommend that the court amend the rule to allow prosecutors to designate a case agent who could assist them in court during a trial.

CCA Judge Cathy Cochran, the court's liaison for rules, says the advisory panel tabled the prosecutor-backed proposal. Panel member Charles "Chuck" Mallin, an assistant district attorney and the appellate section chief in the Tarrant County District Attorney's Office, had provided the panel information on the proposed rule change, she says.

"We decided it seemed more like a solution in search of a problem," Cochran says of the proposal.

Cochran says a current provision in the rule provides prosecutors a way to have their case agent stay in court for a trial. Under TRE 614(3) a trial court cannot exclude from the courtroom "a person whose presence is shown by a party to be essential to the presentation of the party's cause." If a person is essential to the prosecution's case, that person would be exempt from the exclusion-of-witnesses rule, Cochran says.

But Mallin says judges hardly ever exercise that exception under TRE 614. "I don't know any judges that do," he says.

After the advisory panel tabled the proposal, Mallin says that he recommended that the TDCAA start working on a bill for the 2007 legislative session.

Edmonds says a criminal defendant sits at the counsel table to assist his or her lawyer. The prosecution should have the chief investigator on a case available in court to assist prosecutors, he says.

Story of Susanna

"The person who's sitting at the table is not just anybody; he's the defendant," says Austin solo Keith Hampton, chairman of the Legislative Committee for the Texas Criminal Defense Lawyers Association. "The defendant is a party," he says.

If prosecutors are allowed to designate a case agent to aid the prosecution, Hampton says the defense should be allowed to do the same. "The rule ought to keep its integrity," he says.

However, Edmonds notes that Texas is in the minority of U.S. jurisdictions with regard to excluding investigating officers from the courtroom during criminal trials. Federal Rule of Evidence 615 allows a case agent to remain in the courtroom to assist the prosecution at trial, and 37 states, plus the military courts, have a similar provision in their rules, he says.

While the Texas rule provides for the exclusion of investigating officers from the courtroom, certain other potential witnesses can be in court during a criminal trial. TRE 614(4) allows the victim in a criminal case to remain in the courtroom for a trial, unless the trial court determines that hearing witnesses testify would materially affect the victim's testimony.

Hampton traces the origin of the exclusion-of-witnesses rule back to biblical times. The story of Susanna in the Bible's Book of Daniel tells of a young Hebrew woman whom two witnesses accused of adultery, testifying at trial that they saw Susanna lie beneath a tree with a man other than her husband.

As Hampton tells the story, the elders believed the witnesses' testimony and condemned Susanna to death. But Daniel intervened on behalf of Susanna and asked the elders to remove one of the witnesses from the room, Hampton says. When Daniel questioned the two witnesses separately, they disagreed about the type of tree, he says.

"The discrepancy in the witnesses' accounts of the alleged incident shook the elders' confidence in the veracity of their testimony and, consequently, they spared Susanna's life," Hampton says.

Search diligently for that reference to the witness exclusion rule in the book of Daniel; it ain't there. It supposedly appears in an apochryphal version of Daniel that features additional chapters. Anyhow, the story takes place during Daniel's (and the Children of Israel's) Babylonian captivity.

Two men who were attempting to rape Susannah acused her of fornication with a young man. They claimed to have witnessed the act in the palace garden. Daniel was called to question them becuase of his previous success with dream interpretation. He insisted the two be kept seperate during the investigation, not the trial. When questioned, the accusers each insisted the act took place under a different kind of tree.

It seems that Mr. Hampton finds himself aligned with wicked old Nebuchadnezzar on this one. I'll bet Good King Darius alowed the case agent in the courtroom!

This case says that the story comes from the "Book of Susanna contained in the Book of the Apocrypha." Which was removed from the Bible in 1825.
Grab ex rel. Grab v. Dillon, 103 S.W.3d 228, 234-35 (Mo.App. 2003) (citing The Authorized Version and The Apocrypha),
see also 6 John Henry Wigmore, Evidence § 1837 at 455 (James H. Chadbourn ed. 1976).

[This message was edited by david curl on 12-09-06 at .]

The Apocrypha (Greek for "hidden") are the fifteen books included in the Septuagint (the first Greek translation of the Bible) and the Vulgate (Jerome's Latin translation of the Bible), accepted into the Catholic and Greek Orthodox canons, but not in the Hebrew or Protestant Bibles. Probably written between 300 BC. and AD 70, most were written in either Hebrew or Aramaic and contain historical works, additions to various canonical books, devotions, and apocalypses. In the 16th century,Martin Luther and other reformers decided the Bible should include only those books of the Old Testament that were in the Hebrew Cannon. They kept the basic order of the Septuagint, but ended with the Prophets. The books not found in the Hebrew Bible were placed in another category as an appendix to the Old Testament. In 1546,at the Council of Trent, the Catholic church declared these books to be authoritative and included them in their Bible.
As early as 1599 some English copies omitted the books but the King James Version of 1611, however, contained them. "Susanna and the Elders" was one of three additions to Daniel.

In "The Alpha and the Omega" V.3, (Jim A. Cornwell, Copyright � 12/26/1998) we learn that the Book of Daniel has "...three additions (from about 165 to 100 B.C.), that are partly legends about Daniel the Sage and Godfearer and partly liturgical text." *These are:

Bel and the Dragon (which contains two stories in which Daniel proves the fraudulence of the idols worshipped by the Babylonians as a god.).
The Prayer of Aziriah and the Song of the Three Young Men(recounts the prayers of Shadrach, Meschah, and Azariah, and center on the misfortunes encountered by Jews despite God's covenant with them.).
Susanna and the Elders(an attempt to explain the high regard given Daniel by the Babylonians. The book tells the story of how Daniel saved Susannah from a false charge of adultery, prompted by her rejection of the advances of two elders. Daniel's interrogation of the elders proved that they were not telling the true story.).

(* the remaining Books of the Apochrypha are: Esther (not the canonical version), Baruch, 1 & 2 Esdras, Judith, The letter of Jeremiah, 1 & 2 Macabees, The Prayer of Manasseh, Ecclesiasticus, Tobit & The Wisdom of Solomon.)

[This message was edited by BLeonard on 12-10-06 at .]

Here's a link to the text of the Susanna story, for those who are interested:

http://www.usccb.org/nab/bible/daniel/daniel13.htm

Those of you interested in this idea should stay involved. You can track the bill through our Legislative webpage.