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  • Writer's pictureBrian Foley

Use this one weird trick to get the jury to throw out evidence and find you NOT GUILTY! Art. 38.23

Every time you see an article that says "use this one weird trick" you know it's a scam. But this one really isn't! The trick is called Article 38.23 of the Texas code of criminal procedure and that really is a provision where you can request the jury to make a decision regarding the legality of the traffic stop or search in your case. If they find that the search was performed in an illegal manner then the judge instructs them not to consider any evidence that resulted from the search and they will likely find you NOT GUILTY!

If you don't have an experienced defense attorney representing you at trial you will likely not get this charge. If you should have gotten the charge but didn't, it is almost an automatic reversal on appeal. Call now to learn more about how this could be applied to your case and to set up a free consultation. 936-596-0407.

Back to the one weird trick.

Art. 38.23. EVIDENCE NOT TO BE USED.  (a)  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.
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
(b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Amended by Acts 1987, 70th Leg., ch. 546, Sec. 1, eff. Sept. 1, 1987.

The most important legal opinion on this case is Madden v. State 242 S.W.3d 504 (Tex. Crim. App. 2007). The Court of Criminal Appeals (the highest criminal court in Texas) held in Madden that in order to get the jury to consider dismissing the evidence in your case, there are three requirements that your lawyer must help you satisfy:

(1) The evidence heard by the jury must raise an issue of fact;

(2) The evidence on that fact must be affirmatively contested; and

(3) That contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence.

So how does this work in practice.

  1. Your lawyer has to question the police officer to determine the reason for the traffic stop or the search. For example you may have been pulled over because you failed to use a turn signal continuously within 100 feet of your turn.

  2. Your lawyer has to introduce evidence that raises an issue of fact. This can be done by getting the officer to make a favorable statement to you through skilled cross examination. Most lawyers believe that the cross examination alone creates the issue of fact but this is not true. It must be created through the answer of the witness. If the police officer does nothing but agree that you did violate the turn signal requirement then cross examination questions from your lawyer will get you nowhere. Another way to introduce evidence in this case would be to go to the scene of the traffic stop and mark distances from objects visible in the officer's patrol video and use those measurements to introduce evidence that your signal was in fact on for the proscribed distance.

  3. If you testify to the issue then your lawyer must make sure that the issue is actually contested as opposed to saying, "I'm not sure if I signaled for 100 feet but I know I turned it on." There is almost never a need for the client to testify to raise a 38.23 special instruction jury charge but I have seen lawyers throughout my career fail to realize this, and worse fail to adequately make an affirmative contest to the facts that lead to the special instruction.

  4. Your lawyer must exclude all other legal grounds for the traffic stop to be validated. For example if your lawyer can prove that your signal was in fact used continuously for 100 feet prior to your turn but the officer also says you were speeding and there is no evidence to contest the speeding issue then you will have failed the materiality issue in factor number three of the Madden decision. Here it is critical to have a smart defense lawyer by your side so that these issues are handled the right way.

  5. Your lawyer should submit a jury instruction to the court to be used in your case and which specifically applies the law to the facts of your case asking the jurors to believe or disbelieve a specific fact beyond a reasonable doubt.

Point number five above is really important. Most lawyers fail for their client when the do not properly request the jury instruction be applied to specific facts in the case. A trial judge can deny your request for a 38.23 instruction based solely on this and the appellate courts will let your conviction stand unless there was "egregious error." This means that the appellate court could decide that your trial judge made an error but you still get convicted anyway!

In our example a proper 38.23 charge would ask the jurors that if they do not find beyond a reasonable doubt that the defendant failed to signal continuously for 100 feet prior to the turn then they shall not consider any evidence collected by the officer after that time in considering their verdict. You cannot simply ask the jury, "if you believe the traffic stop was illegal then you shall not consider any evidence obtained from the traffic stop." You have to ask the jury to make a decision about a specific fact and not engage in their own separate legal analysis.

If this procedure is done right it will start with a suppression hearing just to the trial judge and then if that fails the strategy continues on through trial and a request for this special jury instruction prior to closing arguments.

I know as a prosecutor I hated having to deal with 38.23 issues and I knew that the defendant's likelihood of prevailing shot through the roof when their lawyer effectively argued for a 38.23 special instruction.


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