Comments on: Four Nasty Little Surprises

By: jigmeister

jigmeister — Sun, 02 Mar 2008 17:52:00 +0000

You gotta get it by instructed first, that is a legal sufficiency question for the ct. Then of course you get the instruction. If you compare 38.14 and 38.141 they are the same. That will give you an idea of how to research the question of corroberation sufficiency. How many times have you heard the state argue, “Any evidence tending to show the witness is truthful”.

Judge Shaver once threw out one of my cases (actually before the law–but based on his belief that the law should require corroberation of informants) when all I had was a very bad body mike recording. I wouldn’t even file that case today.

By: Mark Bennett

Mark Bennett — Sun, 02 Mar 2008 16:09:00 +0000

I have to disagree -- sorta -- with your last paragraph. I don't care what the judge thinks is corroborative; I care what the jury thinks.

The only guidance we have on what might and might not be corroborative comes from the cases in which a particular jury found sufficient corroboration. We can't search Westlaw for cases in which the jury found the corroboration insufficient.

By: jigmeister

jigmeister — Sun, 02 Mar 2008 06:38:00 +0000

Your right Mark. The state should provide complete discovery. Most good DA's do, particularly when the D.Att has a rep for fair dealing. If for no other reason than the appellate issue is gone.

I advocated, on AHCL's, that OR's be put on the HC intranet, minus rape victims, children's phone numbers (to insure that defendant's don't get that stuff). But, being a retired DA, I would love to see reciprical discovery. Won't hold my breath though.

BTW solicitor, just about anything will corroborate the informant except another informant, i.e. cop who saw the deal, found the dope, tape, pics, etc., but argue it anyway, the judge may not know the law.

By: Mark Bennett

Mark Bennett — Sun, 02 Mar 2008 03:09:00 +0000

jigmeister, it seems like prosecutors spend a lot of time trying to avoid revealing potential Brady material. The better course would be to reveal it all.

solicitor, jigmeister's probably right. It was 2 1/2 years ago that I caught the State with its pants down on Code of Criminal Procedure Article 38.141.

(Of course, at that time CCP 38.141 was already 3 1/2 years old. So maybe jigmeister and I are giving the prosecutors too much credit.)

NLS or not, 38.141 is a powerful bit of law -- one of the many good things about Texas criminal defense practice.

By: jigmeister

jigmeister — Sun, 02 Mar 2008 01:48:00 +0000

Solicitor:
Art.38.141. Testimony of Undercover Peace Officer or Special Investigator
(a) A defendant may not be convicted of an offense under Chapter 481, Health and Safety Code, on the testimony of a person who is not a licensed peace officer or a special investigator but who is acting covertly on behalf of a law enforcement agency or under the color of law enforcement unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.
(b) Corroboration is not sufficient for the purposes of this article if the corroboration only shows the commission of the offense.

But don't get your hopes up. Any DA handling a big dope case knows this.

By: Solicitor

Solicitor — Sat, 01 Mar 2008 18:52:00 +0000

Would you please direct me to a case or code citation for the law mentioned below? I have drug case with an informant and am earnestly seeking an NLS. Thanks.

“2. In a two-kilo cocaine case, the law requiring the State to corroborate the testimony of the police informant.”

By: jigmeister

jigmeister — Sat, 01 Mar 2008 15:28:00 +0000

Mark,

I thought I would do a little research on your comment that it is Brady that the mother of the murder victims wants the defendant to get probation. Didn't find anything (admittedly curisory research). I did find an interesting one though. The question of whether a prosecutor (who has just learned) has to reveal that a necessary witness is unavailable for trial after a plea has been negotiated, but before taken. Apparently the answer is no.

But while looking for material, I happened upon the blog... Austin Criminal Lawyer. The discussion was about William F. Buckley's recent death and a 1996 article he wrote advocating the legalization of drugs. Very interesting. It's something that many conservatives like myself, have been advocating from an economic standpoint for years at least as to small quantities.