If there is one thing I have learned since becoming a lawyer, it is that old habits die hard. My aim in writing this article is to help end one such old habit and to arm prosecutors with the ability to end it in every jurisdiction. How many times have you heard objections on hearsay or relevance grounds (those based on the rules of evidence) at a suppression hearing? If you are like me, the answer is, “Countless times.” Well, I object to those objections! The rules of evidence do not apply at suppression hearings.1 There is one exception to that rule with respect to privileges (marital, attorney-client, etc.); any objection as to privilege is a valid one. But other than that—save it for the jury.
I tried to make this point in court once and my judge said, “Well, surely some of the rules apply.” Old habits, my friends. Let’s stop the insanity! All we should need are Rules 101 and 104.2
Rule 101 covers the title and scope of the Rules of Evidence, and subsection (d) covers special rules of applicability in criminal proceedings where it announces that the “[r]ules [are] not applicable in certain proceedings.”3 These rules, except with respect to privileges, do not apply in the “determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104.”4 Hearings under Rule 104 are suppression hearings. The list also includes proceedings before grand juries, the initial bail hearing, and hearings on the issuance of a search or arrest warrant, among others. The only exception is that the “rules with respect to privileges apply at all stages of all actions, cases, and proceedings.”5
Rule 104 covers preliminary questions, and subsection (a) covers questions of admissibility generally. It removes all doubt from our minds as to whether the rules of evidence apply at a suppression hearing when it announces, for the second time in the first four rules, “Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b) [(conditional admissibility doctrine during trial in front of the jury).] In making its determination the court is not bound by the rules of evidence except those with respect to privileges”6 (emphasis added). “Well, that was easy,” one might say. Why don’t we prosecutors just show defense counsel and the judge those two rules before? Well, I have. Old habits, my friends.
History of the Rules
So why would the text of Rules 101 and 104 not be enough to end the string of hearsay or other objections? Because that hasn’t always been the rule. And when a lawyer has a funny feeling that says, “Hmm, that sounds pretty drastic and I am fairly certain that I have heard that is not correct,” it’s going to require a little more evidence to change one’s mind.
The current Texas Rules of Evidence became effective March 1, 1998. Prior to the 1980s, the common law governed the law of evidence in Texas. But in 1983 the Texas Rules of Civil Evidence were created, followed by the Texas Rules of Criminal Evidence in 1986.7 The old rule governing the applicability of the rules was Tex. R. Crim. Evid. 1101(d)(4), which provided: “In the following proceedings these rules apply: … (4) motions to suppress confessions or to suppress illegally obtained evidence under Texas Code of Criminal Procedure art. 38.23.”8
Under the old rules, the Court of Criminal Appeals held that objections based on hearsay or other rules were valid at suppression hearings through McVickers v. State.9 But former Rule 1101(d)(4) was not incorporated into the current rules of evidence.
In Granados v. State, the Court of Criminal Appeals held that the McVickers analysis no longer applied and that courts should not give effect to the old rule or any common-law principle that applied the rules of evidence to suppression hearings “because suppression hearings involve the determination of preliminary questions concerning the admissibility of evidence, [so] the language of the current rule indicates that the rules of evidence (except privileges) no longer apply to suppression hearings.”10 The dissent in Granados helps explain why the applicability of the Rules has a lingering effect in today’s courts: “The dissent contended that the parties relied upon the old rule and will now be surprised by our holding. Presumably, however, the parties were aware—or ought to have been aware—that [the old rule] had been deleted.”
“Old habits” was almost argued as a legal point outright by the dissent. “Rule 1101(d)(4) has been absent from the rules since 1997. By my watch, it is now 2002. In those five or so years, no party, including the parties before the court today, has argued that the Rules of Evidence do not apply to suppression hearings.” If you encounter an attorney who wants to re-argue the dissent’s point, let the court know that he differs from “the conclusion drawn by both [the Court of Criminal Appeals] and the United States Supreme Court.”11 His objection should be overruled.
What appellate courts say
The federal rules of evidence have been explicitly inapplicable to federal suppression hearings since United States v. Matlock in 1974.12 But even prior to the federal rules’ creation, the Supreme Court of the United States ruled in 1949 that “the rules of evidence normally applicable in criminal trials do not operate with full force at hearings before the judge to determine admissibility of evidence.”13 The principle is so fundamental that the U.S. Supreme Court noted the broad agreement within the legal community by citing treatises and law journal articles dating back to 1927.14 That is why the Supreme Court held in Matlock that “where the judge himself is considering the admissibility of evidence, the exclusionary rules, aside from rules of privilege, should not be applicable; and the judge should receive the evidence and give it such weight as his judgment and experience counsel.”15
The Texas Supreme Court followed this rationale in State v. Petropoulos,16 several years after the Court of Criminal Appeals reaffirmed its ruling in Granados in Hernandez v. State.17 The Advisory Committee’s Note to Federal Rule 104(a) quotes Dean McCormick, as did the Supreme Court in Matlock: “Dean Wigmore relied upon the common-law distinction between preliminary proceedings and jury trials in stating that in all interlocutory proceedings, even when responsory and not ex parte, the usual system of rules is ignored, again partly because of the subsidiary and provisional nature of the inquiry, but chiefly because there is no jury, and the rules of evidence are, as rules, traditionally associated with a trial by jury.”18
Indeed, the principle goes so far that lots of things are different at a suppression hearing. For example:
• Even an unsworn police report may be admitted and serve as the basis for a judge to rule evidence admissible.19
• A judge may decide questions on the admissibility of expert testimony independent of the rules of evidence.20
• Defense counsel cannot be found ineffective for failure to object to hearsay and leading questions at suppression hearings.21
• Lack of independent knowledge by a police officer about the event surrounding an investigative stop does not make him incompetent as a witness at a suppression hearing.22
• Sufficiency of a witness’s oath may be made without regard to the rules of evidence.23
• A trial court may admit a witness’s lay opinion testimony without predicate requiring it to be “rationally based.”24
• And National Crime Information Center (NCIC) reports may be admitted without business record predicate to determine whether a defendant’s prior conviction was admissible under Tex. R. Evid 609.25
The only instance of a rule of evidence applying at a suppression hearing in any court comes from the Ninth Circuit when it held that Federal Rule 615 (“The Rule” excluding witnesses from the courtroom while other witnesses are testifying) properly applied at a suppression hearing.26 This is procedural in nature and presumably would have been within the judge’s discretion under common law anyway without the necessity of the rules applying.
Another indication that pre-trial suppression hearings are different is that the Supreme Court of the United States ruled in McCray v. Illinois that the right of confrontation does not apply at suppression hearings.27 In McCray’s suppression hearing, police proved probable cause for the arrest by testifying to the out-of-court statements of an unidentified informer. The Supreme Court specifically rejected the claim that the defendant’s right to confrontation under the Sixth Amendment and Due Process Clause of the Fourteenth Amendment had in any way been violated. This opinion has not been disturbed post-Crawford. However, there is a split in the Texas courts of appeals: Curry v. State determined that the suppression hearing is a “critical phase” in which the right should apply,28 whereas Vanmeter v. State held that the constitutional right of confrontation is a trial right, not a pretrial one.29 The court in Curry admitted that “there is authority for [the] proposition [of the Vanmeter court].”30 Curry then cites to a 1996 (pre-Crawford) Fifth Circuit opinion that held the aims and interests involved in a suppression hearing are just as pressing as those in the actual trial. Since Crawford, the Ninth Circuit has held confrontation to be inapplicable at suppression hearings.31 And of course Vanmeter cited the U.S. Supreme Court.
A judge’s discretion
Suppression hearing determinations are subject to the discretion of the trial court, and a trial court’s ruling on the admission or exclusion of evidence will not be disturbed unless the record clearly demonstrates an abuse of discretion.32 An abuse of discretion occurs when the trial court acts arbitrarily and without reference to guiding principles.33
So is all of this caselaw for nothing? If the judge has the exclusive right to admit or exclude anything within an abuse of discretion standard, then where are we left? I submit we are left with common sense and logic. Even if a judge has discretion to exclude evidence from the hearing, why on earth would he? Let’s say a hearing is based on whether the officer had reasonable suspicion to pull over a driver because after running his plates through dispatch, he discovered the car had been stolen. Defense counsel objects based on hearsay, that anything the dispatcher told the officer was hearsay, that the reading on her screen was hearsay, and that she had no personal knowledge that the car was stolen. Mountains of hearsay can be found. Put aside the fact that the State is using it, not for the truth of the matter asserted, but to show the mindset of the officer and whether his actions were reasonable in pulling the defendant’s car over. The trial judge may exclude this evidence—but why would he? The judge has the power to believe or disbelieve any of the evidence that he hears; he may judge the credibility of the officer, and defense counsel may ask questions of that officer. Even the judge may question the officer. If the judge doesn’t believe in the officer’s credibility, then he may find that the stop was unreasonable. That is a different story from not admitting or reviewing the evidence at all.
What if the judge applies the rules of evidence at a suppression hearing within his discretion? Then the defense lawyer objects that a statement is hearsay. Won’t the judge have to listen to the statement and entertain more hearsay statements as to whether an exception is met? Will the judge apply the rules of evidence to the preliminary examination within a preliminary examination he has created? If he doesn’t apply them, isn’t he acting “arbitrarily and without reference to guiding principles?”34 Put in this light, the entire notion is silly and appears more like a judicial version of “talk to the hand.” It ought to be eradicated from the courts of our state.
When we know we are correct on the law and rulings don’t go our way, it can be very frustrating, but it’s even worse if we aren’t aware that the law goes in our favor. If this issue plagues your courts as much as I have seen it in my short time as a prosecutor, then I hope this article will give you what you need to convince any doubters.
1 Tex. R. Evid. 101(d)(1); Tex. R. Evid. 104(a); Granados v. State, 85 S.W.3d 217, 227 (Tex. Crim App. 2002); Hernandez v. State, 116 S.W.3d 26 (Tex. Crim App. 2003); State v. Petropoulos, 346 S.W. 3d 525 (Tex. 2011); United States v. Matlock, 415 U.S. 164, 175 (1974).
2 Yes, admittedly there is a logical problem with relying on the Rules to say that they do not apply, but the purpose of Rules 101 and 104 are to set out the applicability of the Rules. You don’t have to ignore their existence to understand their applicability.
3 Tex. R. Evid. 101(d)(1).
4 Tex. R. Evid. 101(d)(1)(A).
5 Tex. R. Evid. 101(d)(2).
6 Tex. R. Evid 104(a) & 104(b).
7 Mark K. Sales, New Evidence Rules, Part I, Dallas Bar Association Resources for Dallas Attorneys and the Public (March 1998).
8 Tex. R. Crim. Evid. 1101(d)(4) (now replaced by Tex. R. Evid. 101 and 104).
9 McVickers v. State, 874 S.W.2d 662 (Tex. Crim. App. 1993).
10 Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002).
12 United States v. Matlock, 415 U.S. 164, 173 (1974).
13 Brinegar v. United States, 338 U.S. 160, 172-174 (1949).
14 5 J. Wigmore, Evidence §1385 (3d ed. 1940); C. McCormick, Evidence §53, p. 122 n. 91 (2d ed. 1972). See also Maguire & Epstein, Rules of Evidence in Preliminary Controversies as to Admissibility, 36 Yale L. J. 1101 (1927).”
15 United States v. Matlock, 415 U.S. 164, 173 (1974).
16 State v. Petropoulos, 346 S.W. 3d 525 (Tex. 2011).
17 Hernandez v. State, 116 S.W.3d 26 (Tex. Crim App. 2003).
18 Ford v. State, 305 S.W.3d 530 (Tex. Crim. App. 2009); 1 John Henry Wigmore, Evidence, §5 at 14 (1904).
19 Ford v. State, 305 S.W.3d 530 (Tex. Crim. App. 2009); Caballero v. State, 2005 Tex. App. LEXIS 1865 (Tex. App.—El Paso Mar. 10, 2005 no pet.).
20 Hernandez v. State, 116 S.W.3d 26, 31 n.11 (Tex. Crim. App. 2003).
21 Piper v. State, 2004 Tex. App. LEXIS 7601 (Tex. App.—Texarkana Aug. 25 2004 no pet.).
22 Belcher v. State, 244 S.W.3d 531 (Tex. App.— Fort Worth 2007 no pet.).
23 Scott v. State, 80 S.W.3d 184 (Tex. App.— Waco 2002 pet ref’d.).
24 Denton v. State, 2007 Tex. App. LEXIS 1706 (Tex. App.—Tyler Mar. 7 2007 pets ref’d.); Tex. R. Evid. 701.
25 Gay v. State, 2004 Tex. App. Lexis 5448 (Tex. App.—Dallas June 18 2004 no pet.).
26 United States v. Brewer, 947 F.2d 404 (9th Cir. Cal. 1991).
27 McCray v. Illinois, 386 U.S. 300 (1967).
28 Curry v. State, 228 S.W.3d 292, 297-98 (Tex. App.—Waco 2007 pet. ref’d).
29 Vanmeter v. State, 165 S.W.3d 68, 74-75 (Tex. App.—Dallas 2005 pet. ref’d).
30 Curry v. State, 228 S.W.3d 292 (Tex. App.—Waco 2007 pet. ref’d).
31 Peterson v. California, 604 F.3d 1166 (9th Cir. 2010) (citing Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) (holding that “the right to confrontation is a trial right” and “[n]ormally the right to confront one’s accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses”); California v. Green, 399 U.S. 149, 157 (1970) (“[I]t is th[e] literal right to ‘confront’ the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause[.]”)).
32 Pina v. State, 38 S.W.3d 730 (Tex. App.—Texarkana 2001 pet. ref’d).