Lawfully Obtained Evidence

Even if a witness has the requisite proper knowledge (Step 1) and the testimony or exhibit they offer the jurors is accurate (Step 2), the practitioner must next establish that the evidence was "Lawfully Obtained" in Step 3. Texas' Exclusionary Rule states that "any evidence "obtained by an officer or other person in violation of any provisions of the 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 evdience against the accused on the trial of any criminal case." Tex. Code Crim. Proc. Art. 38.23. 

The Exclusionary Rule is most commonly litigated in three areas of our law: Search and Seizure (4th Amendment of the U.S. Constitution, Art. 1, Sec. 9 of the Texas Constitution), Confession (5th Amendment, Art. 1, Sec. 9), and the Confrontation Clause (6th Amendment, Art. 1, Sec. 9). Thus, Article 38.23 would prohibit the admissibility of a piece of evidence obtained in violation of either constitutions prohibition against unlawful searches and seizures, even if the officer sponsoring the admission of the piece of evidence had proper knowledge (Step 1) and his description of it was accurate (Step 2). The same would go for a confession. 38.23 would prohibit the introduction of a video taped confession if the officer who interrogated the in custody defendant did not properly advise him of his rights, even if the officer established that he was present in the room during the confession (Step 1), and says that the videotape is an accurate depiction of the confession (Step 2) and also identifies the defendant was the one making the statements thus qualifying as an admission by a party opponent (Step 2).

Practioners most often raise search and seizure or confession issues pretrial either  as a motion to suppress the evidence. Even if they lose the motion, the defense has the right to have the jury consider the motion to suppress with the trial. Another pretrial strategy to consider is a motion in Limine where the practitioner to instruct the other side not to bring up the potentially objectionable material until the court has made a ruling on it's admissibility. The strategic considerations for either as a method to exclude evidence is beyond the scope of this work, but the practioner needs to be aware of them as a potential avenue of attack on the evidence. 

In this heading, we will focus on the Confrontation Clause. Our Constitutions guarantee that the defendant in a criminal case have the right to confront the witnesses against them in court. The rule is satisfied when the witness is present in court and is subject to cross examination. But what about all of those scenarios invoolving hearsay where the witness is recounting for the jury some out-of-court statement made by an out of court declarant? The Confrontation Clause would seem to prohibit all statements by such a declarant since they are not present in court and subject to cross examination. However, we will see that not all statements made by an out of court declarant are prohibited by the Confrontation Clause - only statements the founders of the US Constitution would define as testimonial statements made by an out of court declarant are prohibited by the Confrontation Clause. Beginning with the landmark case of Crawford v. Washington, if the founders would define the statement as testimonial, the Confrontation Clause applies, meaning unless the declarant is subject to cross examination, the statement is inadmissible. If the founders would have determined that the statement is not testimonial, the Confrontation Clause does not apply, and the practitioner can proceed along our 4 step analysis from Step 3 to Step 4, Relevance. 

The guiding rule on the Confrontation Clause from Crawford and Davis can be summarized like this: unconfronted testimonial statements are not admissible. For our purposes, unconfronted means that the defense has not had the chance to cross examine the declarant. Obviously, whether the declarant has either been cross examined or not isn't really a debateable point, so our study will focus on the real issue: whether the statement is testimonial. To answer this question, courts ask whether the statement's primary purpose was for use in a future prosecution. If so, the statement is testimonial. Crawford and Davis show that a sworn affidavit by a witness about the crime would be an example of a statement made for purposes of future prosecution. Another example of a testimonial statement comes from Burch where the Court found that the primary purpose of a forensic drug report prepared by a crime lab was for future prosecution and therefore testimonial. In both of those cases where the statements were determined to be testimonial, since the delcarant did not testify the confrontation clause barred the admission of the statements.

On the other side of the testimonial coin, we'll study cases where the court found that the primary purpose of the statement was for something besides future prosecution and therefore not testimonial. Examples will be parole certificates (Segundo), classification and incident records from a jail (Smith and Grey). Since the statements were not testimonial, the Confrontation Clause would not bar the admission of the statement even if the declarant did not appear for cross examination. 

We'll round out this heading by answering this question: does the Confrontation Clause bar the admission of an opinion given by a testifying expert that is based on the opinions or findings of other experts? Courts call this type of witness a "surrogate" expert. The answer from Burch and Paredes is yes, so long as they are providing their own expert opinion and not disclosing to the jury some other expert's opinion.