Category Archives: criminal procedure

We’ll admit that the title to this post is a little incendiary, and actually Texas has several features that recommend it to superheroes, particularly of the gun-wielding variety.  But we happened across a law that, especially in light of its history, might make a superhero think twice about moving to the Lone Star State.  That law is Texas Code § 38.23(a) (emphasis added):

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

“Or other person” is the clincher here.  Effectively, Texas applies the exclusionary rule to everyone, not just state actors, and it broadens it to cover not just Fourth Amendment-type privacy violations but violations of all state and federal laws and constitutional rights.  This means that, in Texas, it doesn’t matter whether Batman or other crime-fighting superheroes work with the police or not.  Heck, they can even be actively opposed by the police, à la the Punisher.  If they break the law while collecting evidence, that evidence is inadmissible.  In fact, if there’s even reasonable doubt that the evidence was obtained lawfully, that’s enough for the jury to disregard it.  Given how often superheroes break or at least bend the law, that’s a big problem.

The application of this law to superheroes is especially interesting in light of its history, summarized in Miles v. State, 241 S.W.3d 28, 34-35 (Tex. Ct. Crim. App. 2007) (emphasis added):

The Texas Legislature enacted an exclusionary rule broader than its federal counterpart precisely because of … the widespread problem of vigilante-type private citizens acting in concert with the police conducting illegal searches for whiskey.  Long before national Prohibition laws were enacted, Texas had created its own local-option liquor and prohibition laws.  Enforcement of these local-option laws led to the formation of various citizen groups, including the “Law and Order League,” whose members pledged to aid officers to enforce the laws, especially local-option laws, and to clean up their town and county of crime.   

Presumably, the Legislature foresaw that, if the exclusionary rule applied only to government officials or their agents, these “Law and Order League” members might well continue their illegal search-and-seizure operations without the participation or supervision of police officers.  Then these vigilante members would hand over the illegally seized evidence, on a “silver platter,” to government officers for use in criminal trials.  To avoid the prospect of implicitly encouraging or condoning vigilante action by these citizen groups, the Legislature applied its statutory exclusionary rule to both law-enforcement officers and private persons.

If you replace “Law and Order League” with “Justice League,” you can see just how closely that history fits many superhero stories.  If superheroes were common, many states would likely follow Texas’s example and pass similarly expansive exclusionary rule statutes.

We should note that there is a glimmer of hope.  With the responsibilities imposed by § 38.23 come additional privileges.  The Texas courts have held that “a private person can do what a police officer standing in his shoes can legitimately do, but cannot do what a police officer cannot do.”  Miles, 241 S.W.3d at 39.  Thus, a private person can invoke doctrines such as exigent circumstances and the reasonableness standard of the Fourth Amendment as a defense to, for example, violating traffic laws while pursuing a suspect in order to make a citizen’s arrest.  Id. at 45-46.  Nonetheless, the rule remains significantly stricter in Texas than in other states.  Maybe that’s why there are so few Texan superheroes.

As an historical side-note, there was a brief period in Montana history where the Montana Supreme Court held that the state Constitution extended the exclusionary rule to private citizens.  The rule was articulated in State v. Helfrich, 183 Mont. 484 (1979), affirmed in State v. Hyem, 193 Mont. 51 (1981), and finally overruled in State v. Long, 216 Mont. 65 (1985).  The rule was derived from the Montana Constitution’s affirmative right to privacy, which is unusual among state constitutions.  Extending the exclusionary rule to the acts of private citizens at the constitutional level is even more unusual, and Montana was the only state to ever take that approach.  As far as we can tell, Texas is the only state to do so by statute.