This four-part post discusses when a statement may be used against a defendant in a criminal trial in Texas. Read Part 1 here. Read Part 2 here. Read Part 3 here.

If the statement is an oral statement, it must be recorded.  The warnings above must be included as part of the recording.

Sec. 3.  (a)  No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:

(1) an electronic recording, which may include motion picture, video tape, or other visual recording, is made of the statement;

(2) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning;

(3) the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered;

(4) all voices on the recording are identified;  and

(5) not later than the 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article.

Miranda requires the same warnings as Article 38.22, except that it does not require the warning that the suspect can terminate the interview at any time.

What happens if a person is not read their Miranda warnings or if law enforcement fails to comply with article 38.22?

The statement should not be admissible at trial. The general mechanism for keeping the evidence out of trial is a motion to suppress based upon a violation of both the defendant’s federal constitutional rights and his or her rights under Texas law.  In state court, motions to suppress may be heard before the trial or during the trial, and do not require a formal pretrial motion.  In federal court, failure to file a pretrial motion to suppress waives the right to challenge the admissibility of the evidence at trial.

What if the person is not in custody?

If the person is not in custody, as discussed, Miranda and 38.22 do not apply. Any statements may be admissible as an admission of a party opponent under Texas Rule of Evidence 801(d)(2).

What if the statements are not made in response to interrogation?

If the statements are res gestae of the offense or otherwise not in response to police questioning, such statements will not likely be considered for Miranda or 38.22 purposes, and may be admissible as an admission of a party opponent under Texas Rule of Evidence 801(d)(2).  Statements that a person makes, even while in custody, will likely be admissible if they are made outside of the context of questioning by law enforcement.

© 2021 David A. Nachtigall, Attorney at Law, PLLC