In Part 1 of my continuing series on how Texas law is actually more pro-accused than Washington law
, I talked about the right to a jury trial in all cases, including juvenile cases. Now, I'll move on to an even more prevalent issue--the admissibility of custodial statements of an accused. When I first started reading the police reports in my cases, I would read about how the respondent (as they are called in juvenile cases) had been given a Miranda
warning, then chose to answer questions, and admitted all guilt, and I would think, "Well, they can't use that." But, that was just my freedom-loving, Texas-trained legal mind working. I quickly learned that, in fact, anything my client said after that point can be used. In Texas, statements made as a result of custodial interrogation are inadmissible unless there is a written, knowing, and voluntary acknowledgment and waiver of Miranda
rights, and the statement is either recorded or in writing witnessed by someone other than the interrogating officer. The statement can be recorded on audio or video and the writing can either be in the hand of the accused or written by someone else and signed by the accused. Now, if the accused testifies at his trial, then any prior statements he made (as long as they were voluntary) can be used to impeach him. But if he chooses to remain silent at trial, no statement that doesn't meet these guidelines is coming in. I think this is a great rule because you don't have to rely on the truthfulness of the officer to determine if the individual really did receive the proper warnings and waive them or to know exactly what the accused said. If it has to be recorded or in writing, there is very little room for dispute. In Washington, as you have surely already deduced, this is not the case. An oral waiver of Miranda
rights, followed by an unrecorded, oral statement is perfectly admissible. This means that almost every motion to suppress a statement based on a failure to give Miranda
will end up being a swearing match between the accused and the officer. Gee, I wonder who will win. And because these statements usually aren't in writing or recorded, the accused is forced to confront not what he actually said, but what the officer remembered him saying by the time the officer sat down to write his report. I don't think the Constitution requires anything more than the protection Washington provides, but I do think that the Texas rule is more effective in protecting the 5th Amendment rights at the heart of the Miranda
Next up in the series . . . whither the grand jury?