Comment

Federal due process, of course, bars consideration by the trier of fact of an out-of-court statement that is involuntary under that body of law. This law does not, however, itself provide for submission of voluntariness to juries. A statement rendered involuntary under this body of law by the overreaching of law enforcement officers is, however, obtained in violation of the Constitution of the United States of America within the meaning of Texas Code of Criminal Procedure article 38.23(a). Jury submission of a claim of involuntariness under this body of law is thus provided for and governed by the terms of Tex. Code Crim. Proc. art. 38.23(a). Oursbourn v. State, 259 S.W.3d 159 (Tex. Crim. App. 2008).

Since article 38.23(a)’s standard for jury submission is applied, submission is appropriate only if the evidence before the jury presents a contested issue regarding a fact controlling in the due-process analysis. The contest must be regarding a fact which, if true, would make the statement inadmissible as a matter of law.

“[D]ue process voluntariness instructions could come in myriad forms, depending upon the facts of particular cases.” Contreras v. State, 312 S.W.3d 566, 575–76 (Tex. Crim. App. 2010). Contreras specifically seemed to distinguish two major kinds of due-process voluntariness instructions. These are considered separately in CPJC 3.19 and CPJC 3.21.

Normally, Oursbourn commented, a claim of due-process involuntariness will be based on a contention that the statement was obtained by “inherently coercive [law enforcement] practices.” Oursbourn, 259 S.W.3d at 178. This apparently means a practice that, if used, renders the statement involuntary without inquiry into the actual impact of that practice on the defendant’s decision to confess. There is no need for any “sweeping inquiries into the state of mind of a criminal defendant who has confessed.” Oursbourn, 259 S.W.3d at 171 (quoting Colorado v. Connelly, 479 U.S. 157 (1986)).