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My AccountChapter 3
- 3.1 Jury Submission of Issues Relating to Out-of-Court Statements
- 3.2 The Corpus Delicti Rule
- 3.3 When Submission Is Required under Texas Code of Criminal Procedure Article 38.22, Section 6
- 3.4 Content of Instruction Regarding Voluntariness
- 3.5 Instruction—Texas Law Voluntariness
- 3.6 Instruction—Texas Law Voluntariness—Fruits of Contested Statement at Issue
- 3.7 When Submission Is Required under Texas Code of Criminal Procedure Article 38.22, Section 7
- 3.8 Content of Instruction Regarding Warnings and Waivers
- 3.9 Instruction—Possible State Law Right to Counsel During Custodial Interrogation
- 3.10 When Submission of Written Statements Is Required
- 3.11 Warning by Magistrate
- 3.12 Instruction—Written Statement with Warning by Person to Whom Statement Was Made
- 3.13 Instruction—Written Statement with Warning by Magistrate
- 3.14 When Submission of Oral Statements Is Required
- 3.15 Content of Instruction Regarding Oral Recorded Statements
- 3.16 Instruction—Warnings and Waiver Required for Recorded Oral Statement
- 3.17 When Submission of a Claim of Federal Due-Process Involuntariness Is Required
- 3.18 Contents of Instruction Regarding Federal Due-Process Voluntariness
- 3.19 Instruction—Normal Due-Process Voluntariness
- 3.20 Claims of Due-Process Voluntariness Addressing Overbearing of the Will
- 3.21 Instruction—Due-Process Overbearing of the Will Voluntariness
Comment
According to Oursbourn v. State, 259 S.W.3d 159 (Tex. Crim. App. 2008), at least when the due-process claim was a “normal” one, the instruction should be “specific” or “fact-specific.” This means it should ask the jury to determine only the specific fact issue presented—whether the state has proved beyond a reasonable doubt that law enforcement officers did not engage in the claimed inherently coercive practice. Specifically, Oursbourn offered:
A fact-specific, exclusionary-rule instruction might look something like this:
If you find from the evidence that Officer Obie held a gun to the defendant’s head in an effort to make the defendant give him a statement, or if you have a reasonable doubt thereof, you will disregard the defendant’s videotaped statement and not use it for any purpose whatsoever during your deliberations. However, if you find from the evidence, beyond a reasonable doubt, that Officer Obie did not hold a gun to the defendant’s head in an effort to make the defendant give him a statement, then you may consider the defendant’s videotaped statement during your deliberations.
Oursbourn, 259 S.W.3d at 177 n.69.
Contreras v. State, 312 S.W.3d 566 (Tex. Crim. App. 2010), held the trial judge erred in failing to give an instruction of this sort given the defense evidence that an officer, lacking grounds to arrest Contreras’s wife, told Contreras police would arrest his wife unless he made a confession. Contreras, 312 S.W.3d at 576–77. Apparently the court concluded that if such a threat had been made, the statement would necessarily be involuntary under due-process standards. The discussion in Contreras noted that courts have split on whether such a threat is improper only if the threat is to make such an arrest despite the lack of the required probable cause for it.
Burden of Proof. Article 38.23(a) of the Texas Code of Criminal Procedure makes clear that the state has the burden of proof and it is proof beyond a reasonable doubt.