In an astonishing twist, the Third Court of Appeals has held that a jury must be given the opportunity to dump any confession they might think is involuntary, even if there is no factual dispute and the judge already ruled it was voluntary.

Read the opinion.

I urge every prosecutor to read this opinion and think about challenging it. It is wrong and bad public policy to tell jurors to act as judges. This opinion is a direct attack on confessions and their place in criminal law.

Will the State Prosecuting Attorney step in?

[This message was edited by John Bradley on 10-27-05 at .]

The 3rd COA is demanding review by requiring an art 38.22 instruction even when the facts are undisputed. Has every other court since the inception of this provision missed this unique quality of 38.22? If the COA is correct, the trial court's role in a jury case involving the voluntariness of a confession has been eliminated. What is the statutory purpose of the trial court considering the voluntariness of a statement if, as the COA says, the jury gets to do it anyway? That is, if the confession gets past the judge, it is always going to the jury.

[This message was edited by John Stride on 10-27-05 at .]

Another reason why we need APPOINTED judges.

Mike, I don't see how appointing judges would necessarily help the situation. At least then they're answerable to the electorate every 4 years. I think appointing judges could very well make things worse. I think probably the larger problem is with judges who have a civil background deciding criminal cases with absolutely no experience or understanding of how things work in a criminal trial, let along in law enforcement. Maybe a better answer would be to have seperate tracks for the intermediate appellate courts like we do in the CCA and Supreme Court?

which is it? is there a difference between having a factual dispute and having no evidence raising an issue of voluntariness? and finally, milkbone dog biscuits, neither milk nor a bone. what's up with that?

[This message was edited by David Newell on 10-28-05 at .]

To "raise an issue" or "raise a question," under article 38.22, sec. 6 & &, surely the matter has to be contested in some manner--whether contradicted, undermined, or rebutted? If not, in EVERY case a confession is offered and in which the defendant requests an instruction, an issue is raised requiring a jury instruction on voluntariness.

If we ignore the requirement of "raising" the matter, which is statutorily required, then it is easy to buy into the reasoning of the 3rd COA. I guess the 25 year old case of Moon v S., 607 sw2d 569 (CCA 80), was overlooked.

On PDR, it would be helpful if the CCA could also clarify/confirm the precise relationship and meaning of subsections 6 & 7.

how does this opinion do away with the requirement that the issue be raised? what factual dispute are we talking about? a factual dispute about the events of the interrogation? is it even a factual dispute if everyone agrees that a statement was taken in compliance with 38.22 but the defendant still says he felt coerced? now my brain is really starting to hurt.

please believe me, i'm not trying to be difficult. i'm totally open to the possibility that this case does turn confession law on its head. i just want someone to explain how and why.

I have a case where my defendant was "theoretically" (not conceding it, but hard to argue otherwise) a target of a grand jury investigation. It is undisputed that he wasn't given target warnings, miranda warnings, written warnings, and his testimony wasn't recorded. What happened?

Now, everybody say it with me. "He lied under oath" shouted the crowd. Thank god he was given the oath said the smartass in the back.

So, the judge has denied the Motion to Suppress. But he has indicated that he probably will give a 38.23 instruction to the jury. buh-wha? There is no fact dispute. And I have given him Mayorga. And Rutherford. And as I start to compose my anticipatory brief in response to expected requested instructions (who says only civil lawyers can give their briefs outlandish names!), I thought, what better than you fine lawyers to guide me to the case I need to shove, er, send up to my retired visiting judge, in addition to my two.

(Not really done venting, trial's in 2 weeks).

The statute requires an issue be raised. In the past, the CCA has interpreted this requirement as meaning a factual dispute must exist as a threshold for obtaining a jury instruction. This the 3rd COA acknowledges, then discards. The 3rd COA has rewritten the law in its jurisdiction to eliminate the threshold requirement of a factual dispute.

Requiring a factual dispute provided a reasonably bright-line rule for deciding when to submit an instruction and, on review, deciding whether the trial court abused its discretion. In the 3rd COA district, however, the standard has now become completely nebulous and the intermediate court has given itself unfettered power to decide the appropriateness of an instruction.

but are you saying there has to be a factual dispute about whether warnings are given properly or whether the defendant felt coerced? Mendoza says a factual dispute about compulsion (in violation of 38.21) triggers the 38.23 instruction and a factual dispute about proper warnings gets an instruction as well. but 38.22 section 6 specifically says the voluntariness issue goes to the jury even after the court has made a determination as a matter of law that the confession is voluntary. and 38.22 section 6 applies to both custodial and non-custodial statements so is there a difference between a 38.22 section 6 instruction and a 38.23 instruction. Vasquez seems to suggest there is. is there?

my overarching concern is that this opinion could suggest re-examination of why 38.23 is limited to factual disputes. i also worry that the justification for this "factual dispute" limitation is as stable as the justification for limiting the state's right to appeal of motions to suppress to those motions excluding illegally obtained evidence. "factual dispute" is not textually based, though it may make logical sense. unfortunately i've been taking cold medications so (as you can read above) my logic engine is kind of running on fumes, which is why i'm asking for help understanding this mess.

Even under Hernandez,which the 3rd COA purports to follow, the CCA stated: "Raising an issue as to the voluntariness of a confession means that SOME evidence must be presented to a jury that the confession was not given voluntarly." 819 sw2d 806 (CCA 91) (emphasis added). Thus, as the State is offering the confession, presumably as a voluntary statement, if there is any evidence indicating otherwise--the voluntariness is contested and a factual dispute exists. It seems a major flaw in the opinion of the 3rd COA is the failure to understand the significance of this language. Indeed, it does NOT follow Hernandez!

Also, Texas satisfied the principal concern in Denno by adopting a system where the trial court first reviews a confession and prepares FOF. Jackson v. Denno, 378 U.S. 368 (64). This process ensures that not every questionable confession reaches jurys, and allows an adequate review process.

The 3rd COA may have confused voluntariness and credibility--something the SCOTUS warned about in Denno. Id at 387 n.13. Only an issue as to the former entitles a defendant to a jury instruction.

[This message was edited by John Stride on 10-31-05 at .]

[This message was edited by John Stride on 10-31-05 at .]

i can feel your frustration (having been in that frame of mind in other instances on other issues before similar courts) and i have no doubt that it is justified, so i join with you. i curse you 3rd court! you will never get to the world series again!

so are you saying that your frustration with Vasquez is that you don't feel that those facts the court pointed to (such as the taking of his boots, the lengthy interrogation, the fact that his requests to speak to his wife were ignored) raise an issue of voluntariness? is the only way to raise voluntariness to have the defendant get on the stand and say "I felt coerced"?

[This message was edited by David Newell on 10-31-05 at .]

Your question addresses a different issue--one that that can be divorced from the court's interpretation of the law before applying it to the facts. I have a HUGE problem with the new law adopted by the court, I have less of a problem with the result on the facts. But I take issue with the absence of any disputed facts--the voluntariness of the confession is undermined by some evidence (however it was elicted). Disputed facts existed and it is at least arguable that an instruction was required. If so, the COA reached beyond what was required and rendered an advisory opinion of potentially profound consequences.

perhaps there's hope then. if there were disputed facts in this case, perhaps this case could be distinguished from one of the profound consequence cases that would come up later where voluntariness is raised upon undisputed facts.

but i really want to know, is there a distinction between a 38.22 section 6 instruction and a 38.23(a)instruction? or has there never been any talk of a 38.22 section 6 instruction until now?

I'm not aware of any CCA case performing the analysis you ponder. Let me know if you find one!

what a relief! i'm not aware of one either. i was worried i was missing something. if there isn't such a case out there, then the Vasquez attempts to distinguish Mendoza as a 38.23 case (as well as Dix and Dawson's) seem pretty shallow. I can see that, now.

OK, so let's assume (as apparently the trial court did) that the facts occurred as described (boots, etc.). And, the reason the trial court is assuming they did occur, is because it was all on videotape.

Well, that means there is no dispute on the facts. Normally, such disputes are subject to review by the jury. But, here, we are all hunkydory.

The next step is to decide whether those facts amount to an involuntary confession. That step is a legal decision.

How, exactly, would this intruction give the jury any sort of roadmap? The only thing it could say is, hey, the courts of Texas, in looking at the constitution, have determined that these facts, while they might make you cringe, do not amount to illegal coercion of a confession.

But, you jury, if you think your version of the constitution is different, then you should feel free to toss the confession. And, you don't even have to tell us your legal theory.

Does that make any sense?

Now, I don't think it is asking too much for the defendant to have to create or identify a conflict of fact that could be submitted to the jury. But he didn't do it.

This is not about trusting juries. Prosecutors trust juries to decide facts. We go every day into the courtroom and submit disputes for resolution. But juries are neither trained nor educated in the law. Their concept of a legal confession is not based on the law; it is based on their emotional reaction to a set of facts.

And we have not been submitting legal questions to juries. That new twist is the invention of three judges on the court of appeals.

For years, judges and lawyers have read 38.22 to require the submission of factual disputes (Did the officer slap the defendant?) and not legal disputes (Did the slap render the confession involuntary?)

Hello David - instead of walking down to your office, I decided to use the internet. Read over the case again - the 3rd CCA (or law student who wrote the opinion) cites all the cases stating the trial court makes the decission and then decides the jury shall. This is what is goading (is that a word?). The CCP says the trial court shall decide "voluntariness" and then MAY submit it to the jury; if the trial court submits the issue of "voluntariness" to the jury, it must instruct them "appropriately". "Voluntariness", over the years, has become a legal term with definite legal parameters and is not the same as street lingo. Over the years, the courts have found that certain facts, disputed or not (such as the police lied that the accomplice already gave a statement), do not render a confession "involuntary" and no instruction is given as the court finds by "conclusion of law", that the confession is voluntary and admissible. Therefore the Court must first find some fact in dispute that would truly render the confession "involuntary" and then "appropriately" charge the jury to decide the factual dispute. To merely charge the jury that it must find the statement voluntary without defining "voluntary" and then having an application paragraph with the proper factual dispute, would create totally erratic cases (which some say we already have). Overall, why require the judge make such a decision and file "finding of facts and conclusions of law" and then tell the jury to make the same decision.
This why the posters are angry - the 3rd CCA seems not to be able to grasp these simple concepts, along with the prior court cases, and instead, renders a decision that is illogical and contrary to well established law. (ie, the judge finds it admissible, and there are no facts in dispute that would render the confession involuntary but give an instruction anyway)
Sort of reminds you of ATKINS, doesn't it.
P.S. I'm disappointed the Prez didn't follow through with your nomination for the United States Supreme Court.

thank you fred. i appreciate your explanation. that is what i was looking for. I now have a better understanding of "why" it's necessary to have a factual dispute, though i've ended up doing more research than i ever wanted to. i guess they saw jury instruction and drew parallels to lesser-includes and defensive instructions, just as i did. i hate the whole question of fact/question of law thing.

p.s.-i wasn't holding my breath about the supreme court thing, president bush responded to my submission of my resume with a restraining order. it's a long story, best not to talk about it here.

[This message was edited by David Newell on 10-31-05 at .]