We all know that the inevitable discovery doctrine has been rejected under art. 38.23. See Garcia v. S., 829-796 (CCA 92). But, reading the case over again, the CCA recognized the doctrine as a "species of harmless error" and held that no exceptions could be added to the statute. Since then, however, the CCA has adopted Texas Rule of Appellate Procedure 44.2(b) (substantial rights analysis) and Cain v. S., 947-642(CCA 97)(and all its wonderful progeny). If harmless error now has the broad reach that the Court has told us over the last few years, is the time ripe (and the argument sound) to argue that the Court was wrong in Garcia? After all the Court hadn't fully and properly employed harmless error at the time, and Cain informs us that "no error, whether it relates to jurisdiction, voluntariness of a plea, or any other mandatory requirement, is categorically immune to a harmless error analysis." Id. at 264. In other words, we should adopt the inevitable discovery doctrine. Thoughts?
I think Garcia itself and several other cases illustrate why there should be an additional exception when the police investigation was reasonable, but illegal. I do not think you can argue that subsequent court-made changes in the harmless error rule or how it is applied will change the outcome in such cases as Garcia though. The Legislature (unwisely) has still not exercised its prerogative to amend the statute. It will be very hard to get around the "judicial oligarchy" language used by Judge Benavides. Didn't a similar argument fail as recently as 1998 in Daugherty, 968 S.W.2d 487?
The more interesting issue to me is why Texas recognizes the attenuation of the taint doctrine- which to me seems as much at tension with 38.23 as any other exception. Do our courts consider that to be an exception to the core prohibitions of the Fourth Amendment? Or maybe the "derivative evidence" doctrine is recognized as a court-made exclusionary rule (which the courts are then "at liberty to impose exceptions upon").
[This message was edited by Martin Peterson on 08-01-04 at .]
I share your view on the inconsistency in the CCA's interpretation under article 38.23 of attenuation of the taint and inevitable discovery. Now that the attentuation doctrine has become firmly established in Texas law, isn't this just further support for adopting inevitable discovery? While the CCA is unlikely to adopt the doctrine immediately, if we began to use this argument as an alternative at trial and on appeal perhaps we could start attracting (or counting)votes (rather like Judge Clinton put an idea in a dissent, then in a majority footnote, then finally in a majority opinion--as if it were the law!). It is a waste of an excellent doctrine that fits into the CCAs updated thinking on harmless error and its omission probably results in the denial of fair and proper punishment in a significant number of cases.
