A Statute That Is Every Criminal's Friend

Consider this example: The police enter a murder suspect's home without a warrant or any other legal justification and find a bloody knife. Subsequent DNA tests reveal that the blood on the knife is the same as that of the murder victim who had been stabbed only hours earlier. There were no witnesses and simply no other evidence that directly links the suspect to the murder victim other than knife. Is it important? You bet. Might it be the critical piece of evidence that will lead to a conviction? Sure. Will a judge let it into evidence during the criminal trial of the murderer? No way.

Before you scream about a "technicality", you may wish to consider the Fourth Amendment to the United States Constitution. That law protects a citizen from unreasonable searches and seizures by the government. In the example above, it protects the suspect just like it would his saintly and innocent grandmother. Moreover, if the Fourth Amendment is violated, as in the case of entering a suspect's home without a warrant, the Supreme Court has fashioned a potent remedy called the "exclusionary rule". Simply put, it means that no evidence seized by the government (i.e. police) may be used against a person whose constitutional rights were violated. In theory, it should discourage police from engaging in illegal activity even if their motive is to protect the public.

Interestingly enough, the State of Texas, known for its executions of capital murderers and "tough on crime" stance, takes the exclusionary rule to bizarre extremes. Despite the fact that the Texas Legislature did not need to create a statute to make the exclusionary rule "law" in this state, it did so. Unfortunately, it did a pathetic job of drafting the statute. Recall that the Fourth Amendment applies to the government. Can your neighbor violate your right to free speech, or to assemble, or to worship. No. The only entity that can violate those sacred rights is the government. However, the Texas legislature forgot this when it enacted article 38.23 of the Texas Code of Criminal Procedure.

That particular statute reads, in part, as follows:

"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."

You obviously cannot miss the emphasized portion of the statute that read "or other person". The Texas Court of Criminal Appeals, the highest court in Texas to hear criminal appellate cases, certainly noticed it last year when it ruled in Johnson v. State, 939 S.W.2d 586 (Tex.Crim.App. 1996) that the statute, as drafted, provided a defendant with more rights than the United States Supreme Court has granted citizens under the Fourth Amendment. Because of the wording of the statute, if a private citizen obtains evidence illegally from a defendant (suppose he trespassed on the suspect's land and overhead the defendant confess to the crime), that evidence cannot be used in a Texas court. Forget the fact that it could be in Oklahoma or Alaska or any other state, it cannot be used in Texas simply because of the above statute which controls all Texas criminal prosecutions.

The Bill of Rights protects us from the government. I'm glad it does. If it happens to occasionally protect a criminal, so be it. It's a price that we pay in order to live in a free society. However, article 38.23 provides protection which cannot be justified, and it should be amended immediately to delete the "or other person" language. After all, the victim of the crime a defendant committed should not have to further suffer because some private citizen, who has no connection with law enforcement, happens to discover incriminating evidence while he "victimizes" the defendant. Let's leave criminal protection to the Bill of Rights. It, as has been proven, needs no assistance in doing so.

Barry Green is the District Attorney for the 271st Judicial District.

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