Dennis R. Boren
Hey Judge, IGNORE That Evidence!
I’m Dennis Boren, a criminal defense attorney and former felony prosecutor. And today I want to talk to you about what and when evidence can be excluded. That means the judge has to ignore it.
First of all, this is all rooted in an analysis of the Fourth Amendment of the US Constitution, and it’s been adopted by the Texas Constitution as well.
THE PRESUMPTION THAT ANY EVIDENCE IS ILLEGAL
With any arrest and any evidence gathered, there’s a presumption that it’s illegal. It can be rebutted, but the state has that burden. So to make a search or arrest, whether it’s with a warrant or warrantless, the state has to prove that they had probable cause.
THERE MUST BE PROBABLE CAUSE
That means that a law enforcement officer acting reasonably, believed that a crime had been committed or was about to be committed. Now, if the court finds that probable cause does not exist or did not exist, then the judge should exclude or not accept any evidence that was gathered from that illegality.
FRUITS OF THE POISONOUS TREE
Now that includes anything that may come from that illegality. These items are called fruits of the poisonous tree. This means that if information is gathered that led to some more information or to another person that was incriminating to the defendant, that this should also be excluded or not considered in that case.
An illegal interview is also something that can be excluded. Even a confession, if it was gathered in such a way that was illegal. Here is a good example:
AN EXAMPLE OF AN ILLEGAL INTERVIEW
I just have a case right now, where the police interrogator continued to interrogate my client after my client had said three times that he wanted to talk to a lawyer. That is a sacred phrase. And if you’re ever in doubt or uncomfortable, just say, “Look, I want to talk to an attorney.” Be sure that this is recorded.
HOW YOU CAN PROTECT YOURSELF
In the case of my current client, it was on videotape. The state, the police recorded it. Otherwise, you need to record it, and you need to put that on a video app or an audio app, but preferably a video app on your smartphone, so that you can show that you did invoke and asked for an attorney or counsel.
I hope this was helpful. And I know it’s kind of distasteful to some people to think that evidence would be excluded, but we live in a country of laws and not men. The police should not operate as a Gestapo. It’s strange that some people are offended by this concept of exclusion of evidence… until it’s somebody they care about.
So this is personal. You need to know it. If this doesn’t help you, maybe it’ll help somebody you know and care about. And as always, record any interaction with police on your video or audio app on your smartphone.