Here is a bill that was voted out of committee unanimously. Note that the rules of evidence would apply to suppression hearings. Never mind that the defendant can "guarantee" examination of witnesses by subpoenaing them to appear at a hearing where HE bears the burden of production.

H.B. 1425 amends the Code of Criminal Procedure to guarantee that a party in a criminal case can examine witnesses pursuant to a motion to suppress. A court can still dispose of a motion to suppress evidence without testimony if neither the state nor defense objects. H.B. 1425 would also clarify that the Texas Rules of Evidence, applicable to criminal proceedings, likewise apply to hearings on motions to suppress evidence, a confession, or a statement.

Voted out of committee 7-0

You can see the committee discussion of this bill here:

http://www.house.state.tx.us/fx/av/committee79/50503p09.ram

It's at the very end (about 2:12). It was opposed by Harris County, Tarrant County and Williamson County. No witness was in favor of the bill. It also got out of the house committee last term but died in the Senate.

The bill was filed in response to a case from the Court of Criminal Appeals, Granados v. State. Defense sought to suppress evidence that the defendant stabbed his girlfriend and her son, killing the son, when told to move out of her apartment. At the hearing on the motion to suppress, defendant challenged the information gathered to justify entering the apartment, where defendant was still watching over his bleeding girlfriend.

State, as is often done, had a single officer summarize the basis for the information. On direct appeal, defendant complained that the officer was relying on hearsay from other officers.

That was a stupid argument, as an officer may rely on hearsay in forming the basis for such an entry. But, the CCA bypassed that reply and simply held that the Rules of Evidence, as amended several years ago, do not apply to a decision on a motion to suppress.

As you suggest, the defendant can deal with that rule exception by simply subpoenaing the missing officers himself or by pressing the issue during trial, where the rules apply.

The rule exception benefits the defense as much as the state. Many times, the defense wants to establish certain issues, like standing, without calling the defendant or putting him in an awkward or inconsistent position.

To me, the bill is a knee-jerk reaction to a case that was won by the State. Even with the Rule of Evidence in place, the State would have been able to establish the information. Remember, it's not hearsay if it isn't offered for the truth of the matter asserted but merely to explain why the officer could reasonably form the opinion he had enough information to go in and search.

The bill also shows a continuing lack of respect for the judiciary. Twenty years ago, the Leg delegated rule-making authority to the courts but continues to second-guess those decisions because of individual complaints by losing parties. Not a great way to run a ship.

The other change made by the bill would prevent a judge from requiring a motion to suppress be decided by affidavits, at least during pretrial hearings. This is being done in response to a policy of some courts (former Judge Ted Poe in Houston, for example) to hold those hearings by affidavit. That practice saves a lot of time and helps both sides get to the point.

Again, if a defendant doesn't like the absence of live testimony, he can subpoena and cross-examine witnesses during trial. Contrary to the information provided in the bill analysis, there is no right to cross-examination before trial. Frankly, this practice also helps the defense avoid having the judge find the defendant not credible after actually hearing him and avoids submitting defendant to cross-examination.

Does anyone over at the defense table think these things through?

This same bill was filed last session and rejected.

[This message was edited by John Bradley on 05-09-05 at .]

[This message was edited by John Bradley on 05-09-05 at .]

JB, I know you have a greater familiarity with the facts of Granados than I do. Wasn't the defendant kind of an "extended guest" whose license to be in the apartment the adult victim/girlfriend had revoked? For anyone who hasn't read the opinion, watch out. Even for one who has seen the worst crime scenes and read many a horrific rendition of fact, Granados makes for heart-wrenching reading. Hard to believe that case produced a "poster boy' for any legislation except maybe a return to drawing and quartering.

[This message was edited by BLeonard on 05-09-05 at .]

We did make a standing argument, as you suggest. Granados had only been in the apartment for a couple of weeks, at his girlfriend's invitation. She withdrew his invitation, but the defense argued he had obtained "property rights" by putting the phone in his name. That's a cold approach, given that he had stabbed her a bunch of times and was waiting for her to bleed to death.

Update: HB 1425 has been calandared for floor debate in the House on Thursday, May 12 (the last day House bills can be taken up on the House floor).

Our judges typically refuse to hear motions to suppress until the time of trial. I imagine that prosecutors might not have trouble getting their judges to go along with this policy if such a rule is passed. While it is a two-edged sword, in that once the trial begins the State essentially loses her right to appeal from a suppression, it forces the defendant to decide whether to accept our plea offer before he gets his motion heard, and it forces us to make a decision as to whether to go forwards and waste a jury on a case in which the evidence is likely to be suppressed.