Any comments on this new opinion from the Court of Criminal Appeals.

LINK

DWI case; the Trooper dictated his observations into his body mike during his investigation and the tape was later played for the jury. The CCA found that the officer's observations were hearsay, and were not present sense impressions which would allow admission of the audio under the hearsay exception. I have already had calls from our officers asking if they can still do this. I can't see that it effects the field officer except that the audio of the officer's observations would not be admissible at trial.

Thoughts? Concerns?

Janette A

Seemed like a policy decision not a legal one.

I don't have any problem with the notion that the video parts that included the officer's descriptions could be subject to a hearsay objection. It is sort of like a recorded offense report.

So what. Surely the officer would just have testified about the same thing after refreshing his memory from watching the video. [Indeed, Judge Cochran notes that would likely take place.]

Oh, wait, that didn't happen. If you go back to the court of appeals decision, you find that the issue was raised and addressed in a pretrial motion to suppress. What the heck?

Why the heck would a judge agree to hear a motion that seeks to rule on the admissibility of a piece of evidence pretrial when it has nothing to do with HOW the evidence was collected. In other words, there was no allegation that the initial stop or the information used to make that stop was insufficient. The allegation was that, if this video was offered at trial certain parts, including the officer's hearsay descriptions, should be deleted (turn off the audio).

Over and over, in this forum, we have reminded prosecutors that a motion to suppress is not a place to test the application of the rules of evidence BEFORE trial. Yet, over and over, we see judges doing it.

So, after the judge agreed to let in the video, including the descriptive audio, surely there was a jury trial that showed the whole thing was harmless because the officer just testified to the same thing anyway, right? Oh, no. Turns out the defendant decided to plead guilty after learning that the video would come into evidence.

So, why the heck isn't that harmless? The same evidence would have come in regardless of the judge's ruling, right?

The court of appeals didn't look at it that way. The court of appeals reversed, looking into the defendant's mind and determining that he only pleaded guilty because of the pretrial ruling (a ruling that never should have taken place).

Once again, the lesson: educate your judges that they shouldn't be wasting their time with pretrial motions to suppress that don't deal with the legality of the collection of evidence. Pretrial motions are not designed to give advance rulings on the application of the rules of evidence. Stop it already. For example, see this thread or this
thread.

Bottom line: if you don't let the defendant have such a bogus pretrial hearing, or if your judge allows such a hearing and you don't agree to a plea bargain, then you won't have to deal with appeals that don't consider the obvious harmless error involved.

Our practice is this: if you want to litigate a legal issue, then you are going to have to do it after a jury trial takes place. Otherwise, let's work the legal issue into the balance considered by a plea bargain and avoid an appeal by waiver of the appeal.

Think about it this way. If the defendant pulled out a recorder at the point of arrest and started narrating his view of the investigation, would you want him to be able to introduce that recording? No. You would rather have him testify and be subject to cross-examination. You would not consider his recording sufficiently reliable to bypass the 6th Amendment. Well, then, the same rule has to apply to the State's witnesses.

Officers should still continue the practice. It is a good way of memorializing their observations. And, with today's software, it isn't hard to mute the sound for those spots where he is talking. (And, why not prepare a transcript of those muted statements, making them available to refresh the memory of the officer while he is on the witness stand?)

If the witness is impeached, the recording also could become admissible as a prior consistent statement. If the witness can't remember, the recording could become admissible as a recorded recollection.

In other words, it's not a big deal and, frankly, is a reasonable interpretation of the Rules of Evidence. The split on voting on the case is a bit surprising, Judge Cochran (the author of a book on the Rules of Evidence) once again being the swing vote.

[This message was edited by JB on 01-17-08 at .]

I have advised our folks to continue to record their impressions on the video and then use the video when they write the case report. It also is there is help them review for trial. The officer has to testify anyway, as JP pointed out, so all the prosecutor has to do is mute the audio during the portion of the tape that contains the officer's commentary if the prosecutor decides to show the video at trial.

Janette A

Surely no one is really surprised or upset by a ruling that an officer's contemporaneous commentary is merely another way to memorialize events and, therefore, equivalent to written notes prepared for a later-generated offense report used for litigation/trial purposes? And the sensible and commendable in-field practice is not forbidden. To have ruled otherwise would have substantially changed the rules of evidence and undermined the important requirement of reliability. (Though I do recognize--and we should always be wary about--that the TRE can be an impediment to revealing the truth to the trier of fact)

JAS

[This message was edited by JAS on 01-17-08 at .]

I agree with all of the above--read closely, the case is not damaging. But this case has already been used in a suppression hearing with us to imply that our entire video (with no notations made on the video, only conversations between defendant and officer and another officer) should be suppressed.

These discussions help us smaller offices predict our responses! In our case, the defense attorney presented evidence as though we were doing a suppression hearing and then in argument told the judge that he agrees we had no 4th amendment issues, but cited this case and started arguing suppression of our entire video. The judge didn't rule on it yet, but we anticipate having to prepare...As usual, this forum tends to anticipate our issues before we come across them!

I'm confused that the hearsay issue is allowed on appeal when there was no jury there to hear it--or it was never actually improperly entered into evidence against the defendant? Isn't that sort of like an advisory opinion?

Hearsay is allowed in suppression for purposes of probable cause--so are they saying it was error for it to be allowed in the suppression hearing?

Isn't that like trying to argue Crawford issues--suppressing statements before trial assuming the victim will not show? If the victim shows, it's moot. JB brings all this up--why wouldn't that even be mentioned in the opinion?

Or if the trooper's statements were attacked as fabrications (he testifies to things not in his written report, for example) then the hearsay would become admissible anyway as prior consistent statements. It seems like cart before the horse?

At least the opinion didn't call the officer a Cretan liar.

What I don't understand is how the Court can say that these statements are inadmissible under 803(1) without also saying that 803(8)(b) trumps 803(1) (which the court specifically denies saying). 803(1) allows otherwise hearsay statements that describe or explain an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. There is no exception built into the rule for statements made by law enforcement officers in the course of investigating crimes, as there is for 803(8)(b). Note that in 803(8)(b), law enforcement records are explicitly excluded from the exception. It was apparently important in writing the rules to set that out in the text of the rule.

Nevertheless, the Court writes "Although Rule 803(8)(B) does not 'trump' Rule 803(1), the basis for exclusion of police reports and investigative recordings is exactly the same under both rules." Doesn't this statement ignore the fact that 803(8)(b) excludes police reports, but 803(1) does not?

The Court goes on: "The recorded factual observations made by police officers investigating a suspected crime are not the type of 'non-reflective' street-corner statements of objective observers that the present sense impression exception is designed to allow. Courts admit present sense impression statements precisely because they are non-narrative, off-hand comments made without any thought of potential litigation by a neutral and detached observer without any motive to fabricate, falsify, or otherwise exaggerate his observations." Assuming for the sake of argument that police officers are biased witnesses with motive to lie, 803(1) contains no provision which would require the exclusion of statements which otherwise meet the definition of present sense impressions.

There can surely be read into the rule a requirement that the court must first determine that the statement was "non-reflective" because the phrase "while perceiving...or immediately thereafter" can be easily interpreted as excluding statements made after time to reflect has passed. But I do have a real problem with the Court saying "Rule A has a provision in it which would make sense if it were also included in Rule B. But since it is not included in Rule B, we will simply treat Rule B as if the provision was included."

How about this? The Murder statute has a provision which reduces the offense to a 2nd degree felony if sudden passion is proved at punishment. I think it would make sense to include that provision in the Aggravated Assault statute as well. Would the Court of Criminal Appeals hold that it was error for a trial court to deny a charge to the jury on sudden passion in a 1st degree Agg Assault case? To paraphrase Fisher: "The basis for including the charge is exactly the same under both rules." Reducing the sentence range for violence committed by persons acting under sudden passion makes sense in both instances. Can you deny a motion by the defense simply because the law isn't written to accomodate it?

There may be a Crawford issue involved in narrating DWI videos if the officer is not going to be present to testify. But if he is testifying, and the court finds the statements to be immediate enough to qualify under 803(1), then how can the Court simply decide to apply 803(8(B) and exclude them?

By the way, JB, Crawford satisfies me that I will get a chance to cross-examine the defendant on any such statements by himself that he wants to offer, so it would not bother me if he did pull out his own tape recorder. But you will note that the Court did not say anything about the defendant not having this tactic available to him, the Court only argues that police officers' contemporaneous statements are unreliable. Your fear that defendants will start pulling this stunt should not be alleviated by this opinion, it should make you more afraid; now they can do it without fear that the police officers could do the same thing.

This whole issue should be a fact question for the trial court: "is the statement immediate enough to qualify as a present sense impression?" , If so (absent a Crawford violation), it's in, if not, it's out. As reasonable as Fischer may appear to be, the fact is that the Court has rewritten the rule, adding an 803(8)(b)-type exception to 803(1) without ever changing the text of the rule itself.

If I'm reading the case correctly, the issue seems to be with an "out of court oral narrative." What if the statements are a product of a discussion with the defendant? Example: "Well, sir, I smell a strong odor of alcohol coming from your breath." vs "Narrating" on tape away from the defendant: "I smell alcohol."

It also appears that the fact that Trooper Martinez kept returning to his vehicle to record the statments, was of particular interest to the CCA. One must wonder if it would make any difference if the statements were made while still at the suspect vehicle...

Or does 803(8)(B)kill it either way?

quote:

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Originally posted by Brent:
One must wonder if it would make any difference if the statements were made while still at the suspect vehicle...

Or does 803(8)(B)kill it either way?

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That's a very good point.

Your honor, I would like to rephrase my previous narrative in the form of a question. "Umm, Mr. Drunk Guy, would you say that the smell of alcohol on your breath is light or strong?" "Oh my goodness, did you just drop your foot sixteen times?" "How many times have you done these tests before, sir, because you look like you have had practice?"

Why is a motion to suppress that is based on a rule of evidence bogus:


Under article 28.01, a motion to suppress evidence is one in which the defendant (or the State) claims that certain evidence should not be admitted at trial for a constitutional, statutory, evidentiary or procedural reason.

State v. Medrano, 67 S.W.3d 892, 901(Tex. Crim. App. 2002)

Pretrial suppression hearings aren't so bad: the State can appeal if it loses.

Pre-trial hearings on the admissibility of evidence serve a purpose only if the ruling will influence one side or the other to dispose of the case without a trial. Otherwise, they merely take up valuable time, often on cases that are not going to trial anyway. Because Medrano may allow them, does not mean a court should conduct them, at least not routinely. Objections outside the exclusionary rule could often be cured at trial to begin with.

A ruling that determines the application of a rule of evidence is not a motion to suppress. It would more accurately be titled a pretrial trial on the predicate for the admission of evidence. That is not what was intended by the right to appeal for the State.

Furthermore, a judge is not likely to have all the details about the predicate in such a hearing. Only a trial is actually designed to provide the context for the admission of evidence. Finally, a judge is much more likely to give the benefit of the doubt to the defendant at a pretrial motion. We've all seen such pretrial fudging.

So your point is that Medrano was wrongly decided:

The trial court's ruling in this case does not involve evidence which would normally be considered "illegally obtained." Still, the ruling excluding Jennifer's identification testimony-which was a legal ruling excluding evidence-is appealable under article 44.01(a)(5) if it could be determined pretrial under article 28.01, § 1(6). Relying on the standards concerning the admissibility of post-hypnotic testimony set out in Zani v. State, 758 S.W.2d 233 (Tex. Crim. App. 1988), the trial court orally ruled that Jennifer's identification of Mr. Medrano was inadmissible.
* * *
. . . we vacate the decision by the court of appeals which held that it had no jurisdiction to hear the State's appeal . . . .

67 S.W.3d at 903 (footnote omitted); see also 43A Texas Practice § 43.216 ("in State v. Medrano, . . . the Court of Criminal Appeals held that under art. 44.01(a)(5), the State may appeal any adverse pre-trial ruling suppressing evidence, a confession or admission regardless of whether the ruling responded to a claim that the evidence was illegally obtained.").

That is not my point. Medrano correctly decided the appellate jurisdiction issue. But, that does not mean a trial judge should be determining whether to "suppress" evidence on predicate grounds ahead of trial. I guess we need clarification as to what "motions to suppress" as used in 28.01 sec. 1(6) means. The CCA noted some time ago that the statute fails to detail the scope of such hearings. Bosley, 414 S.W.2d at 470.

[This message was edited by Martin Peterson on 02-22-08 at .]

Are you now redacting videos upon a motion by the defendant or fighting the motions in court? If fighting, what argument are you using?