Geez; I just typed my reply a few minutes ago (at about 9:00 pm) and you already replied. Remind me not to try to sneekup on you.

i'm batman.

A jury is already given the authority to determine whether the sum of the facts equals a legal definition (in determining whether a witness is an accomplice witness). Nothing in 38.14 says they should be given the right to disregard relevant testimony- from someone the court already determined was not an accomplice- either. But, it is done.

Sec. 6 does not refer [only] to a "question of fact" and thus, to me, implies the question as to voluntariness might still arise on undisputed facts. Yet, it is correct that we do not want juries to have to be determining matters of law, especially when they are to be given only a "general" instruction on the applicable law. Furthermore, the whole purpose of "voluntariness" is to discourage use of police tactics amounting to undue coercion and to help assure that we do not use untrue confessions as evidence of guilt. Thus, the jury should be instructed that if they believe beyond a reasonable doubt that the statement in question was obtained under circumstances free from that type of compulsion or persuasion that would lead to the making of an untrue statement, they may accept the statement as proof of guilt, but not otherwise. Such an instruction would not cause you to lose a case you were otherwise destined to win and would satisfy the purpose of the requirement of "voluntariness" and conform with sec. 7. To me this is a far better explanation than "whether the totality of the circumstances demonstrates that the confessor made the decision to confess of his own free will" or whether the circumstances indicate the statement "was unlikely to have been the product of a rational intellect and a free will." Does anyone know where the "beyond a reasonable doubt" requirement of sec. 6 comes from?

i'm still batman.

Fred, like you, I too am disappointed that Bush did not pull David from the short list and nominate him for the Supremes. Perhaps his legal knowledge, research abilities and most importantly, his commitment to "do the right thing" might overshadow past and present nominees. It's that fixation with hip hop music and so-called "new rock" that probably did him in.

The other thing Fred, a stellar Texas trial attorney, taught me years ago was to put the charge in if there is a doubt about whether it is legally required, regardless of how voluntary the facts may show the statement to be. Your two former assistants, myself and Kathy, used this rationale last week in a trial, surprising the defense attorney but making perfect sense, as we knew it wouldn't bother the jury and indeed, the jury had no issue with the confession or it's voluntariness. Of course, Kathy and I both now practice in the jurisdiction of the 3rd Court.

As a high compiment to you Freddy F, I was accused by the lead attorney last week of "pulling a Fred" on some other issues that I thought needed illuminating by witnesses she was examining. Thanks for the great education!

PS Newell, if you are truly Batman, then undoubtedly The Hon. Judge Ruiz or Wittig is Robin. Who is your sidekick?

i'm the prequel batman, not the adam west batman. i'm still a little scared of bats, but give me a couple of movies and i'm sure i'll be ready to adopt a young ward to help me rebuild wayne manor.

i see now why this opinion turns confession law on its head. jackson vs. denno made a judicial determination of voluntariness mandatory because we don't trust juries to do this type of calculus. they left alone the massachusetts rule which we now apparently follow and seemed to say, hey, as long as you have a judicial determination at the outset, you can let whoever you want make the determination again and it won't offend due process. the 3rd court, however, seems to be moving the other way by trying to make it easier to let juries make these determinations. now i got it.

but, darn it, i still don't see why the 3rd court is so off base reading the statute in such a way that an issue of voluntariness could be raised upon weak, though not contradicted evidence. the statute isn't limited to factual disputes and the legislature is allowed to pass stupid laws if they want. i see the other cases that have interpreted a voluntariness challenge as getting an instruction under 38.23, but the 3rd court seems to think 38.22 has its own jury instruction mandate and 38.22 applies to custodial and non-custodial statements. do i disagree with it, sure. but i'm interested in seeing how it's handled by the court of criminal appeals. i have no doubt that with the fine legal minds working on it (such as those who have been patient enough with me to help me work through this issue) Vasquez won't stand for long.

John B.
If the videotape alone was the entire evidence of the confession, I completely agree with you. There would be no dispute and no instruction required. I was assuming (probably wrongly because I know nothing more about the case other than what is written in the opinion) that the defense attempted to highlight the duration of the interrogation, the removal of his boots, and the denial of access to his wife to demonstrate his statement was involuntary at least by way of cross-examination of the detective who testified at the suppression hearing and presumably at trial. If this occurred, then wouldn't you agree that there was a factual dispute?

Any good lawyer should be able to identify a "factual dispute" in a confession voluntariness challenge. And, when such issues are presented in our cases, we are fairly liberal in accepting the presence of a factual dispute, even if we think it is ridiculously weak or silly. At least, when we draft the jury charge, though, we can focus the jury's attention on an actual dispute to resolve.

But, most of the time (and I suspect in the Vasquez case), the defense attorney either can't or won't spell out the factual dispute. The lawyer just says, I want a charge. I believe that the lawyer has an obligation to state specificially what is in dispute that should be presented to the jury for resolution. And it can't just be, The Confession Was Involuntary.

So, John, in answer to your question, do I think such a dispute could have been identified in Vasquez, even though everything may have been on video. Yes. We have seen such an approach in 38.23 cases in which the audio was difficult to hear, for example, on whether the defendant consented to a search. But, at least in such a case the defense attorney was arguing, "Hey, that guy didn't say he consented." That's a dispute that can be resolved.

In a recent capital murder case, the CCA published the following language in response to a claim that the trial court erred by refusing a voluntariness instruction. Doesn't this show the 3rd Court of Appeals was dead wrong?

"Article 38.23 Instruction on Voluntariness of Statements

In point of error seven, appellant claims that the trial court erroneously refused his request for an Article 38.23 jury instruction on the voluntariness of his statements. When the evidence presented at trial raises a factual issue as to whether a defendant had been warned of his rights and voluntarily waived them prior to making a statement, he is entitled to an instruction on the voluntariness of the confession.*fn75 Appellant argues that he raised a fact issue as to whether his statements were legally obtained by presenting evidence that he lacked education, he had "trouble with the language," and "[h]e was not a native of this country and had no reason to understand the many rights he was spoken to about."*fn76

As noted above, the evidence at trial showed that appellant approached police with information about the case and that he agreed to go from the hotel to the Harris County Sheriff's homicide division office to provide more details about what he had allegedly witnessed. He was taken before a magistrate for his warnings shortly after he was arrested by Det. Ortiz.*fn77 The magistrate read the warnings to appellant in English, an interpreter translated the warnings into Spanish, and appellant indicated that he understood the warnings. Appellant was then transported to the Houston Police Department homicide division office, where he gave a statement to Officers Sosa and Chavez regarding his participation in the murders of Maria Rangel and Roxana Capulin. Prior to taking his statement, these officers again read appellant his rights in compliance with Miranda and Article 38.22. They read his rights in Spanish and appellant indicated that he understood his rights.*fn78 Appellant later gave a statement to Officer Chavez and Det. Ortiz admitting his involvement in Ms. Alvarado's murder. Before asking appellant to make his statement, Officer Chavez again read appellant his rights in Spanish, and appellant again indicated that he understood his rights. Officer Chavez testified that appellant did not seem to have any difficulty understanding him. The officers further testified that they conducted the interviews in Spanish, they neither threatened appellant nor promised him anything, and they never denied him food, drink, or the opportunity to use the bathroom.

Appellant failed to establish at trial that his education, language, or nationality affected the voluntariness of his statements. Thus, the trial court did not err in refusing his request for an Article 38.23 instruction. Point of error seven is overruled."

*fn75 Mendoza v. State, 88 S.W.3d 236, 239 (Tex. Crim. App. 2002); Dinkins v. State, 894 S.W.2d 330, 353-54 (Tex. Crim. App. 1995).

*fn76 Appellant also argues on appeal that his statements were involuntary due to his "fear of police," his "fear of Mr. Cubas," and "the circumstances under which he was held." Appellant did not advance these arguments when he requested the 38.23 instruction at trial; thus, we decline to address them on appeal. TEX. R. APP. P. 33.1.

*fn77 Det. Ortiz testified at the pretrial hearing on the motion to suppress that he took appellant into custody at 1:10 a.m., after a check of his criminal status revealed that he had a "warrant for a Motion to Adjudicate."

*fn78 Defense counsel cross-examined the officers regarding the terminology they used when they read appellant his rights. They acknowledged that they used the term "consejo," a Spanish word for "advice," instead of "advertencia," a Spanish word for "warning." Appellant, however, presented no evidence at trial that the terms used by the officers misled him in any way. Officer Chavez testified that he generally uses these terms interchangeably, and that appellant appeared to understand that he was receiving his legal warnings. Further, a court interpreter testified at the pretrial hearing on the motion to suppress that "consejo" is frequently used for the word "warning" in courtrooms and in the legal system.

article 36.13 says that the jury is the judge of facts, unless otherwise provided in the Code of Criminal Procedure. that also supports your argument.

If this instruction is supposed to focus on the voluntariness of the confession, why is the defense attorney and CCA focusing on 38.23 rather than 38.22?

Well, the matter gave the high court not nearly so much trouble as the comments above would have implicated. The necessity of the instruction depends only on whether the "facts are ones from which a reasonable jury could conclude that the statement at issue was not involuntary. Voluntariness is not a strictly factual question, but it similarly is not a mechanical application of historical facts to a purely objective legal standard."

I throw out these observations for comment:

If jurors believe the confession then they will not dump it. If they don't, then the instruction will likely not hurt the State. I think this opinion Vasquez makes clear that the istruction should not suggest what might make the confession involuntary, but should be more general.

Does the use of the double negative by Judge Meyers imply that the confession is presumed involuntary and place the burden on the State to show otherwise?

I do find it interesting that Hernandez was not considered to conflict with (but only to blur) the line of demarcation. Obviously "raise" has a special meaning in this statute.

Is the Texas statute now broader than the underlying requirement of the Federal Constitution? (Of course, I know our criminals deserve special treatment)

If there is some evidence questioning voluntariness, can that ever be disproved beyond reasonable doubt (since it must constitute a reason to doubt to begin with)?

Unassigned error is very alive and very well. Is appellate counsel not to be considered automatically ineffective (or at least greatly embarassed) where the unassigned error taken up by the court results in a reversal?

The opinion doesn't help. So, an instruction isn't limited to those circumstances in which there are "disputed facts." But, an instruction is not required in every case, only in those in which the evidence "raises" an issue of voluntariness.

What the heck does that mean?

If someone claims the confession was involuntary, then isn't that a "disputed fact" that "raises" an issue on voluntariness? Or, is the court saying that, regardless whether certain facts do not make a confession involuntary as a matter of law, a jury may nonetheless reconsider that issue? Isn't that allowing a jury to decide the law and not the facts?

In this voluntariness instruction, how will it focus the jury's decision? Will it focus the issue of voluntariness on a particular set of facts, or is the jury left to wander through their own minds, deciding for themselves what is and is not appropriate police conduct?

And, can the instruction inform the jury that certain actions do not render a confession involuntary. For example, many jurors likely misunderstand the law when it comes to officers being permitted to obtain a confession.

In short, the Court's opinion raises more questions than it answers. Lots of meaningless phrases.

i like how the opinion doesn't quite come out and say the jury is making a legal determination (even though they essentially are without a factual dispute). sure those are two different sections of the code, but using fuzzy "Dix" language to say it's neither a pure legal question or a pure factual question doesn't change the FACT that if it's all on agreed facts, the jury is making a legal call that the judge has already made.

Rulings that make no sense to bright lawyers/prosecutors, who then have to guess at what it mean are useless - it merely produces chaotic results and ulcers.

I've resurrected this old thread because I ran across it when running a search for prior posts re confession jury issues. I have a case where a defendant is contending that he did not voluntarily give his statement to police and that he was in custody when he was interrogated (no Miranda warnings were given). Trial court has found against him on both issues but I anticipate that he will try to submit these matters to a jury. Jury selection begins Monday. I've looked through TDCAA's Confessions by Stride/Rolator and I've found a standard voluntariness charge but I'm concerned about whether to resist and/or how to submit the custody issue... Does anyone have jury charge language re whether someone was in custody when they were interrogated? I'm looking for a good definition of "custody" so the jury won't be just floundering around with no definition. The 3rd Court which authored Vasquez was recently upheld by the CCA in June. But that pretty much dealt with only voluntariness. Any ideas on how to proceed and any jury charge language would sure be appreciated. My email is NOSPAMdistattorney@co.liberty.tx.us if you prefer to respond in that manner.Thanks.