Friday, April 15, 2011

Eviscerating the rule

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of:
(1) a party who is a natural person or in civil cases the spouse of such natural person;
(2) an officer or employee of a party in a civil case or a defendant in a criminal case that is not a natural person designated as its representative by its attorney;
(3) a person whose presence is shown by a party to be essential to the presentation of the party's cause; or
(4) the victim in a criminal case, unless the victim is to testify and the court determines that the victim's testimony would be materially affected if the victim hears other testimony at the trial.

-- Texas Rule of Evidence 614

The purpose of Rule 614 is to ensure that witnesses in a criminal trial testify only to those things of which they have actual knowledge. It prevents a witness from changing his or her testimony to fit that of a previous witness. It means that once an attorney "invokes the rule," all witnesses must leave the courtroom and may not discuss their testimony with any other witness until the trial is concluded.

Of course it means that jurors will sometimes hear contradictory testimony from the state's witnesses. Officers and eyewitnesses may have different memories of what they saw, or thought they saw. The result can be an acquittal or a hung jury on occasion.

But here comes the state legislature to the rescue of the hapless prosecutor. HB96 proposes that this language be added to Rule 614:

        (f)The prosecuting attorney may designate one person who is
an officer or employee of a party that is not a natural person to
 serve as the state's courtroom representative during a criminal
 proceeding. Notwithstanding Rule 614, Texas Rules of Evidence, a
 court may not exclude under this article or that rule a person who
 has been designated as a courtroom representative under this

The proposed legislation would allow a prosecutor to designate the lead investigator as the state's courtroom representative during the trial. That person would be allowed to listen to all of the testimony and would allow him to tailor his testimony to that of the other witnesses. It would also allow him to talk to the state's other witnesses since he wouldn't be bound by "the rule." The bill passed out of the House Criminal Jurisprudence Committee on a 9 to 0 vote. The author of the House bill is Rep. Cindy Burkett (R-Mesquite). Ms. Burkett experience running several Subway sandwich shops apparently qualifies her to propose changes to the rules of evidence.

State Sen. Joan Huffman (R-Southside Place) authored the Senate's version of the proposal (SB1011). It was referred to the Senate Jurisprudence Committee on March 16, 2011. Coincidentally enough, Ms. Huffman is a former prosecutor and state district judge. According to her biography, Ms. Huffman "earned a reputation as a fair and tough enforcer of the law." I guess we can overlook the fact that a judge's role is to sit as a neutral arbiter; it's the job of the police and prosecutors to enforce the law.

These proposed bills are a solution for a problem that doesn't exist. The only purpose is to make it easier for the state to obtain convictions. Allowing the state's witness to corroborate (openly) their testimony means that jurors won't hear what a witness remembers -- they will hear what a witness is told they remember.

There is a reason the burden on the state is so high in a criminal proceeding. The state is attempting to take away someone's freedom and liberty. That attempt should never be taken lightly. Apparently the members of the House Criminal Jurisprudence Committee find it amusing.


Thomas Hobbes said...

It looks like this change has been kicking around It looks like tor at least four years, but hasn't gotten a lot of traction. It looks better for the change this year, with only one person testifying against it for the record in a February hearing.

Paul B. Kennedy said...

Thanks for the comment.

It was a bad idea then and it's a bad idea today.

Thomas Hobbes said...

Retrospectively, I'm beginning to think English isn't even my third language . . .

Anonymous said...

After testifying in many courts as a law enforcement officer, I feel think that they should let "the rule" alone and not change it.
Sounds like a kangaroo court attempt.
We don't need it changed in Texas.