Suppression of Evidence by Juries in Texas


I mentioned in a teaser here that in Texas we can have the jury decide contested fact issues related to the suppression of evidence.

That right comes from Article 38.23 of the Texas Code of Criminal Procedure, which says in relevant part:

(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

For example, here’s a 38.23 charge to be used when there is a fact issue as to the existence of voluntary consent to search a vehicle:

You are instructed that under our law as applicable to this case any search of the vehicle of the accused without voluntary consent of the defendant to search, written or oral, would not be lawful. Therefore, in this case, should you fail to find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, that consent to the search of the vehicle of the defendant was voluntarily and understandingly given, then such search would be unlawful and you would wholly disregard the same, and any evidence obtained as a result thereof.

Some of the many advantages to the accused should be obvious:

It gives the state an additional way to lose a jury trial (and gives us something to argue even when factual guilt is clear).

It requires the state to prove beyond a reasonable doubt (instead of by a preponderance of the evidence, the usual standard for a motion to suppress) that they obtained evidence legally.

Best of all, it allows us to pick a jury that is “38.23-qualified” — that is, a jury that is committed to following 38.23 and acquitting if there is a reasonable doubt about the legality of a search that revealed key evidence.

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