Comment

The apparent general nature of a voluntariness instruction raises some question whether that general approach should be modified if specific aspects of state voluntariness law are invoked.

Oursbourn v. State, 259 S.W.3d 159 (Tex. Crim. App. 2008), commented concerning the content of an instruction on this type of issue:

Oursbourn, 259 S.W.3d at 175. Oursbourn also made clear the instruction is to be general rather than specific.

Apparently this type of instruction need not, and seemingly must not, address specific considerations bearing on voluntariness. In Rocha v. State, 16 S.W.3d 1 (Tex. Crim. App. 2000), for example, the court of criminal appeals held the trial court properly refused to add the following to a general statement of voluntariness in the jury instructions:

Rocha, 16 S.W.3d at 19–20.

The court explained:

Rocha, 16 S.W.3d at 19–20.

Rocha was decided before Oursbourn. Nothing in Oursbourn, however, casts doubt on the continued vitality of Rocha’s analysis. See also Gallo v. State, 239 S.W.3d 757, 769 (Tex. Crim. App. 2007) (“The trial court instructed the jury in compliance with Articles 38.21, 38.22, and 38.23. It would have been improper for the trial court to include the issue of mental retardation in its voluntariness instruction. An instruction that focuses on a particular factor that may render a statement involuntary is an impermissible comment on the weight of the evidence.”).

Special Problem—Promises. Texas law—apparently Texas voluntariness law—has long set out a specific analysis for determining when a promise made to a suspect will render a confession inadmissible. A promise will render a confession “invalid” and inadmissible if, but only if, it is “(1) positive, (2) made or sanctioned by someone in authority, and (3) of such an influential nature that it would cause a defendant to speak untruthfully.” Monge v. State, 315 S.W.3d 35, 42–43 (Tex. Crim. App. 2010) (quoting Henderson v. State, 962 S.W.2d 544, 564 (Tex. Crim. App. 1997)).

Should a Texas law voluntariness instruction ever address promises as a basis for a contention of state law involuntariness? If an instruction should address this, should it specifically inform the jury of the analysis summarized in Monge? Traditional instructions on statements often mentioned promises. E.g., Cross v. State, 101 S.W. 213, 214 (Tex. Crim. App. 1907) (“[T]he [trial] court distinctly told the jury that the statements must have been made voluntarily, and without being induced by any threats or promise of assistance, before same could be used and considered by the jury against appellant.”).

Fisher v. State, 379 S.W.2d 900 (Tex. Crim. App. 1964), perhaps the leading early promise case, indicates at least some instructions on promise law are required. Fisher held the trial court erred in failing to give the requested instruction or “one of similar import.” The requested instruction was:

Fisher, 379 S.W.2d at 901. See also Blake v. State, 379 S.W.2d 899, 900 (Tex. Crim. App. 1964) (error not to instruct jury “that the oral confession of the appellant to his employer could not be considered if induced by his employer’s promise or threat”); Cordes v. State, 257 S.W.2d 704, 705 (Tex. Crim. App. 1953) (instruction error because it did not make clear promise of help alone would make confession involuntary).

In contrast, Burdine v. State, 719 S.W.2d 309 (Tex. Crim. App. 1986), rejected Burdine’s complaint that the trial court erred by not submitting the issue of whether a statement was obtained through a promise. The jury was instructed:

Burdine, 719 S.W.2d at 320.

“[T]he jury was properly charged on the issue of voluntariness,” the court held, “and no error in the trial judge’s instructions has been shown.” Burdine, 719 S.W.2d at 320. Alternatively, it noted the lack of a trial objection and added: “Assuming, arguendo, that the charge on voluntariness was erroneous, the error was clearly insufficient to meet the ‘egregious harm’ standard under Almanza.” Burdine, 719 S.W.2d at 320 n.8.

The Committee concluded that current law is unclear on whether a Texas law voluntariness instruction can or should be specific when the evidence before the jury raises a question of whether it was stimulated by a promise. It decided to offer no instruction calling the jury’s attention to this aspect of state law voluntariness. A trial judge who believes such specificity is permissible and appropriate could easily add a paragraph telling the jury that a statement is involuntary if it was stimulated by a promise meeting the three requirements set out in the case law.

Burden of Proof. Under section 6 of article 38.22 of the Texas Code of Criminal Procedure, the burden of proof is on the state, and it must prove the statement is voluntary by proof beyond a reasonable doubt.

“Fruits” of an Involuntary Statement. Section 6 of article 38.22 of the Texas Code of Criminal Procedure makes clear that if a defendant has challenged the propriety of the jury’s consideration of evidence the defendant contends was acquired as a result of an involuntary statement, the jury should be instructed on this. Specifically, the jury should be told that if it finds the state has not proven the challenged statement is voluntary, the jury “shall not consider such statement for any purpose nor any evidence obtained as a result thereof.” Tex. Code Crim. Proc. art. 38.22, § 6. See Morales v. State, 427 S.W.2d 51, 55 (Tex. Crim. App. 1968) (“[T]he [trial] court should have responded to appellant’s objection to the charge that the court had failed to instruct the jury to disregard ‘any evidence obtained as a result thereof’ if the jury found the confessions were not voluntarily made.”).

CPJC 3.5 and CPJC 3.6 are two versions of a state law voluntariness instruction. The first is appropriate for use when the defendant challenges only the jury’s ability to consider the statement itself. The second is for use where the defendant also challenges the jury’s ability to consider other evidence the defendant contends is “fruit” of an involuntary statement.

If the jury is instructed concerning evidence the defendant claims was obtained as a result of an involuntary statement, the facts may raise questions regarding independent source, attenuation of taint, or other matters sometimes raised when exclusionary rule issues are raised before the judge. In such jury submission situations, the instructions may need to address these matters.