TDCAA    TDCAA Community  Hop To Forum Categories  Appellate    Improper Hearing/Appeal
Improper Hearing/Appeal Login/Join 
I have a real problem with the following case. My problem is not with the ruling; it is with the process. Why does the State permit the defendant to seek a pretrial ruling on the admissibility of a recorded statement (of the officer's observations during a DWI investigation)? A motion to suppress is supposed to look at whether the evidence on the recording was improperly OBTAINED. The exclusionary rule would make the recording inadmissible if it was improperly obtained. But that is not the same as deciding BEFORE trial that the State can satisfy some hearsay rule in presenting the contents of the recording to a jury. Such rulings much occur during trial.

If the judge "grants" the "motion to suppress", signaling to the defendant that a particular piece of evidence will not be admitted, there still may be plenty of other evidence (as there certainly was in this case -- namely, the officer's live testimony). What an enormous waste of time to appeal a minor issue and go back for a trial.

Furthermore, why would the State agree to waive a jury trial, knowing the defendant was going to appeal and make them do it all over again? I am baffled by the thinking on this.

Here is the relevant part of the case:

Fischer v. State

(Tex.App. Dist.14 10/31/2006)
Eva M. Guzman Justice

Reversed and Remanded and Majority and Concurring Opinions filed October 31, 2006.

This case presents a question that has never been fully addressed by Texas courts: whether a law enforcement officer's observations of a DWI suspect, dictated on videotape, are admissible as present sense impressions in the suspect's criminal prosecution.*fn1 Appellant John Robert Fischer was arrested for driving while intoxicated in violation of Texas Penal Code Ann. � 49.04 (Vernon 2003). The arresting officer videotaped the traffic stop during which he administered field sobriety tests to Fischer and dictated his observations and conclusions. After the trial court denied Fischer's motion to suppress the audio component of the videotape, Fischer entered a plea of no contest. On appeal, Fischer contends the trial court reversibly erred in admitting the officer's recorded commentary as a present sense impression because the evidence should have been excluded under Texas Rule of Evidence 803(8)(B) as the functional equivalent of an offense report.

We hold that a law enforcement officer may not avoid the restrictions on the evidentiary use of an offense report by simply dictating the substance of that report. Because we conclude the evidence at issue was erroneously admitted as a present sense impression, and that such error affected Fischer's substantial rights, we reverse and remand.
Posts: 7860 | Location: Georgetown, Texas | Registered: January 25, 2001Reply With QuoteReport This Post
posted Hide Post
It appears what happened here is what is known as a conditional plea. The defendant disagreed with the State and the court on the admissibility of the evidence in question, so the defendant preserved his right to challenge the admissibility of the evidence, and then pled so that he could appeal that issue. This is not a new process.

I agree with you that it is a relatively modern development that defendants are challenging the admissibility of evidence in pre-trial motions to suppress evidence other than on grounds that the evidence was obtained in violation of the law or of a constitutional provision. At first I was staunchly against this modern development. But, the State's ability to challenge it was interrupted largely because the CCA, Judge Cochran writing for the majority, wrote the following in a case called State v. Medrano:

"Under article 28.01, a motion to suppress evidence is one in which the defendant (or the State) claims that certain evidence should not be admitted at trial for a constitutional, statutory, evidentiary or procedural reason."

State v. Medrano, 67 S.W.3d 892, 901 (Tex. Crim. App. 2002).

This dicta, in Medrano, makes it very dificult (maybe not impossible) to argue that a defendant is not entitled to raise arguments - other than traditional claims that evidence was obtained improperly - in pre-trial motion to suppress hearings. This opening of the door to other types of complaints is, at a minimum, concerning. Where are the limits, if any? Do we now have to try the whole case before trying the whole case?

On the other hand, when there is a significant issue of law that may be dispositive to a case or at least significantly impact one side or the other's chances of prevailing, it might be judicious to resolve such a matter in a legal setting like a pre-trial appeal, before involving the public with a full scale jury trial.

The conditional plea process is something that developed to allow defendant's to get legal matters before a court of appeals when they believe the resolution of the legal matters are dispositive. I think the conditional plea process helps our system to function more efficiently.

Whether the abiltiy to raise claims other than those arguing that evidence was obtained improperly in a pre-trial hearing on a motion to suppresss evidence is going to benefit our system is still up in the air.

[This message was edited by kyeary on 11-06-06 at .]
Posts: 72 | Location: San Antonio, Texas, USA | Registered: December 13, 2004Reply With QuoteReport This Post
  Powered by Social Strata  

TDCAA    TDCAA Community  Hop To Forum Categories  Appellate    Improper Hearing/Appeal

© TDCAA, 2001. All Rights Reserved.