See Lacy, No. 03-01-711-CR (6/13/02). Anyone think Lacy was lying when he said he had inserted his finger on two occasions, until his victim started to bleed? Anyone think Myers was lying about what Lacy had said? This case demonstrates why our oral confession statute needs to be changed. While it may occasionally prevent the perjured testimony of a cop from convicting someone, it seems far too often to adversely and unnecessarily prevent enforcement of our laws. I would favor a statute that allowed a defendant to offer whatever testimony he wanted in rebuttal (with either no cross-examination or limited cross-examination) as an alternative to blanket exclusion of the most relevant telling evidence in the case. Let the jury decide whether its a set up or a nail in the coffin.

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This case demonstrates why our oral confession statute needs to be changed .... I would favor a statute that allowed a defendant to offer whatever testimony he wanted in rebuttal (with either no cross-examination or limited cross-examination) as an alternative to blanket exclusion of the most relevant telling evidence in the case.

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I think many people are unhappy with 38.22. I have two observations on your suggestion:

(1) There will probably be several attempts to change 38.22 next session -- but mostly in the wrong direction. Due to the Illinois Capital Punishment Commission and other related "studies" on supposed flaws in the system, I expect there to be calls to require videotaping or audio recording of ALL statements by defendants, whether custodial or not, before those statements can be admissible. The Lacy case will be a good one for us to trot out to show them the downside of such a move, and to support other changes that prosecutors think are necessary, but I expect it to be an uphill battle for us.

(2) Assuming we could push through the change you're suggesting, how would we limit a defendant's un-contestable rebuttal evidence? Is there some kind of precedent we could use to draft something? And if not, is it wise to create such a precedent (allowing a party to present evidence that cannot legally be cross-examined)?

Also, note that last session, the TCDLA tried to float a bill under the guise of the Tulia mess that would've allowed a defendant to introduce ANY evidence of "innocence", without regard to relevance, reliability, or any other rule of evidence. The bill actually got a hearing in a Senate committee, believe it or not, and I expect it to come up again. Do we run the risk of opening that door again if we allow defendants carte blanche to respond to certain evidence any way they please, the Rules be damned?

While I would not prevent the admission of an oral custodial confession if I were king, I do not have great heartburn with our current confession laws. A creative officer and prosecutor can obtain plenty of voluntary, admissible confessions under the various scenarios permitted by Texas law.

If you want some examples, come to one of this summer's TDCAA regional seminars on Confessions. For dates and places, go to the seminar link in this web site.

Nothing fancy is required to have a semi-rational law. Simply repeal Art. 38.22. That leaves the US Sup.Ct. mandated Miranda warnings as the only law on taking confessions. It seems to work swell in other jurisdictions.

Unless you've prosecuted (or policed)outside of Texas, you have no idea what an impediment 38.22 is to the cause of justice. I prosecuted for about one year in New Mexico, which just uses the Miranda Warnings. All cops there--not just the imaginative and well trained ones--routinely Mirandize their suspects as soon as they are arrested, and try to get an oral confession. I would guess that 90 per cent of the time the crooks give a good oral statement, which was almost always inculpatory. The best time to get a statement from a crook is when he is first arrested--not an hour later at the station house, when he's had time to get his wits together.

Our office handled a staggering case load, but I never heard of a defense attorney claiming that a confession was false or coerced.

Art. 38.22 is designed to protect the innocent from crooked cops who would make up a false confession. However, it provides no such protection, because a crooked cop can always falsely claim that the suspect made an incriminating statement prior to arrest, or that he blurted it out on the way to the jailhouse, without being asked any questions,etc.

Art. 38.22 is simply an example of legislative hubris, in that it assumes that a law can be written to protect the innocent from crooked cops. The real solution to a crooked cop is good management in the P.D. which will weed out such cops, not a statute with lots of bells and whistles, that prevents important info from reaching the fact-finder, but is easly skirted by the corrupt cop.


[This message was edited by Terry Breen on 06-19-02 at .]

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The real solution to a crooked cop is good management in the P.D. which will weed out such cops.

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And good training by TDCAA.

Shannon: I am not proposing carte blanche for the defendant, just the idea that he can personally take the stand and say "I didn't say that, the cop's just trying to make a case" or "I wasn't even there when the cop says the conversation occurred" and not open himself to examination on any other subject (if he thinks that strategy will work with the jury). Terry, of course your proposal makes more sense; I was just trying to find a middle ground that would recognize bad cops exist and give someone a means of fighting back without having to waive completely the right to remain silent.

A bill to require all defendant statements to be videotaped was filed by Chairman Hinijosa either last session or the one before. I testified against it at the House committee hearing. As far as I know, it never got further and I do not believe any of the other members I talked to had any interest in it. One major objection was the difficulty and expense of the videotaping for the many, many very small departments we deal with. Shannon, if it is introduced again, I think we could mobilize a lot of opposition from prosecutors and police. I rather think it would be an uphill fight for the sponsors.

Oral admissions of defendants who are not in custody are, of course, admissible in Texas as simple admissions of a party-opponent. Oral admissions of defendants who are in custody still may be admissible if (1) they are not the result of interrogation or (2) resulted in the discovery of additional incriminating evidence.

That only leaves oral admissions resulting from custodial interrogation and the discovery of no new evidence as the type of statements that are not admissible under Texas law. And in that circumstances, a jury is skeptical of the officer. Frankly, as a prosecutor, I like a law that encourages the officer to collect a confession in a manner that is perceived as more reliable (and not a swearing match) in court.

Besides, an oral admission that is not admissible is still available for impeachment, thereby cutting off a defendant's lies. And it often influences an attorney to accept a plea recommendation.

I just don't see cases that get dismissed because of our limitations on the oral admission statute. I'm not saying it is how I would write it, but it is hard to get the legislature to change a law without a bad set of facts.

Martin: It may be possible to draft a statute with a limitation like that -- I was just trying to think through this stuff out loud, not criticize, so bear with me. And if you feel like whipping something up between now and January, please do so and pass it along; every little bit helps.

Bud: I think we should certainly make sure any videotape requirement for non-custodial confessions is an uphill battle of Everest proportions. I just fear that recent false confession/bad cop cases, esp. from other jurisdictions, will add fuel to the fire of those pushing such an unreasonable requirement here.

P.S. - Thanks for the tip. I'm going through all of last sessions "failed" bills right now (what fun!), so if I don't find the one on which you testified, I'll keep going back until I do, so we don't have to reinvent the wheel if the issue arises again.

Shannon, I didn't mean to word my reply in such a way that you would think I was jousting or thought you were being critical. It wouldn't bother me at all if you were criticizing, but no such thought ever crossed my mind.

I don't know if such a critter can be drafted or not. I'd be interested to know if every state is either aligned with Texas or New Mexico. Maybe there's at least a part of a wheel somewhere else. The whole concept just occurred to me as a possible way to answer those endeared to the current statute and actually get a change in the law. I agree with John that the statute is not useless or totally irrational and that we can continue to live with it. But, I am sure he probably tries a case or two where the officer says "he gave me oral consent to search" and the defendant says "that's the biggest lie you'll ever hear". Sure it's easy enough for the officer to say "can I get that in writing" or "will you say that again now that my recorder is going", but society also seems willing to trust the officer on those occasions where that's all we have to go on. Another approach might be to limit the exclusionary rule to certain types of custodial interrogation (I'm not at all sure Lacy was being interrogated in a way contemplated by the statute or Miranda at the time he made his statement). If its considered trustworthy enough to pass the most liberal Supreme Court, why does Texas insist on something different? Are our cops really that much worse than their counterparts in New Jersey? If the original Tulia bill had passed, I would not need to ask that question. The legislature would already have said "yes we think they're that bad", and given what occurred in Dallas maybe they would be right. Maybe the statute made good sense when it was enacted, but hopefully TCLEOSE and criminal justice degrees and better pay (some places) have changed things on the other side of the equation.

Martin:

You wondered if most states are like N.M. (where only Miranda need be followed) or like Texas (with lots of extra requirements.) Its my understanding that Texas has by far the most restrictive confession law in the US. In fact, it may be that the rest of the States simply use Miranda with no additional requirements. That's how the feds do it.

John Bradley says that 38.22 only covers in-custody questioning that does not lead to further evidence. True, but that is where the vast majority of confessions are made (at least, outside of Texas). An oral confession to a cop is hardly weak evidence. I think most juries are inclined to accept it. In any case, there is nothing to prevent a cop from later getting a taped confession from the crook. And he's more likely to get such a confession if the crook has already admitted to the crime.

I hope the Gov's Anti-crime Task Force recommends repeal of this foolish statute, which protects no one but the guilty.

Texas has the dubious distinction of being the only State in the Union that requires a DEF's "confession" to be in writing. When I have been to seminars with prosecutors from around the country they look at me in total disbeief when I tell them about our beloved 38.22. Their usual comment is something like "You've got to be kidding!"

Two things come to mind: (1) Why are we the only State? and (2) isn't it ironic that I can have a cell-mate of the DEF who testifies--usually with a lot of "baggage"--and I have an easier time getting that testimony admitted because I don't have a 38.22 issue, as opposed to trying to admit the DEF's statement with the 10-time decorated, 20-year veteran, who "everybody respects police officer"? Maybe it's just me, but I don't get it. Sadly, however, I am sure another attempt will be made in the upcoming session to make 38.22 even more restrictive in our trial courts.

Yep. Almost as ironic as the idea implicitly expressed by Judge Meyers in Johnson, 939 S.W.2d 586, that in 1925 our legislature decided to enact an exclusionary rule broader than Weeks, when in the previous session they were quite happy with the fact that our constitution had no exclusionary principle built into it, as had just been determined in Welchek. I hear some people joke about them being backward in Louisiana or Arkansas, but I sure don't have to look that far.