From the Front Porch: As Simple as 2 x 2 = 4; Making the Fourth Amendment Relevant to a Jury by Doubling Down on the Second Amendment

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How do we make our client’s right to be free from illegal search and seizure under the Fourth Amendment important to jurors who feel that they have nothing in common with our client?  How do we help them understand that a constitutional right is not a mere “technicality”, and that we are not just attempting to use it to “avoid responsibility”? 

In Texas, and more particularly in rural areas, you will get the interest of many members of the jury panel by just mentioning the Second Amendment, “gun rights.” Here in East Texas, where some of us practice, gun rights can serve as an effective tool to focus the attention of jurors. The fear of the government taking away people’s guns is pervasive, and ignites strong passions from many potential jurors. The public is inundated with information from political campaigns on issues involving firearms. These beliefs are reinforced by television commercials, direct mail ads, Facebook ads, and speeches which stress the importance of protecting the right to bear arms. If that isn’t enough, advocacy groups such as the N.R.A. vet candidates and give ratings based on how pro-gun the candidates are, then mail the ratings to every registered voter (juror pool).

If you were to poll an average jury panel, it would be surprising if even a few could list the amendments to the U.S. Constitution and the corresponding rights that are associated with them. However, the one thing that Texans are more passionate about than BBQ and football is guns. Ask a panel what the Second Amendment protects and 9 out of 10 potential jurors would likely answer correctly.

So how does a criminal defense attorney get a panel member to be as passionate about a client’s Fourth Amendment rights as he or she is regarding their own Second Amendment rights? You must connect the importance of the juror’s Second Amendment rights to your client’s Fourth Amendment rights. They must understand that only by preserving the defendant’s constitutional rights can they preserve their own.

Relevant Rights:

Regardless of your interpretation of the Second Amendment, in Texas it is widely believed to be a safeguard of one of our most important individual rights. That belief presents an excellent opportunity for criminal defense lawyers to relate to jurors the importance of our other individual rights. If applied in the appropriate setting, such a discussion could help potential jurors appreciate and value other constitutional rights such as the Fourth  (or Fifth, Sixth, etc.) Amendments to the U.S. Constitution (as well as Article 1, Sections 9 and 10 of the Texas Constitution).

Most of us have little or no experience trying cases with actual Second Amendment implications, which makes it easy to dismiss the subject as having little to no relevance to our practice. However, after a recent acquittal in a misdemeanor DWI trial, we were surprised by a post-trial question from the foreman of the jury. The foreman asked: “Do you practice Second Amendment Law?” Mike was a bit perplexed but responded: “Yes, I practice criminal defense law which includes many different areas including issues related to the protection of individual’s constitutional rights.” The foreman went on to say that while deliberating, the jury disregarded evidence of intoxication due to their concerns about possible government abuses of the defendant’s constitutional rights, which were presented to the jury by the inclusion of an instruction in the jury charge under Article 38.23 Texas Code of Criminal Procedure. These concerns were bolstered by the foreman’s inherent distrust of the government due to his belief that the government was attempting to violate his rights under the Second Amendment.

This led us to understand that jurors in Texas believe strongly in their own individual rights when they feel they are threatened by the government and they will enforce violations of the rights of others, when they make the connection. The key is engaging the jury early in voir dire regarding potential law enforcement overreach regarding the rights that Texans are most passionate about. You can force an all or nothing approach to protect everyone’s constitutional rights, including your client’s.

Getting them to care early:

Many attorneys miss opportunities to plant seeds early on in the trial process. Voir dire is the best opportunity for establishing trust and laying the groundwork for the “ah ha” moment for those that will serve on the jury. Introducing Article 38.23 to the panel in a carefully crafted manner is an effective way to lay such a foundation. The Texas Code of Criminal Procedure Article 38.23(a) states:

Art. 38.23. EVIDENCE NOT TO BE USED.  (a)  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.

If you have a case predicated on a traffic stop or any other encounter with the government that does not involve a warrant, consider whether you can make an Article 38.23 argument. It is important that you not only expose the panel to this concept, but also locate those who will, and those who will not, uphold the Constitution.

Remember, Texas gives us two “bites” at the suppression “apple”. Even if the Judge denies your Motion to Suppress in a pre-trial hearing, you can still argue the suppression issue to the jury. The following is an excerpt from a transcript of a voir dire in a trial that resulted in an acquittal in a felony drug charge tried to a jury:

“[I]n Texas, the people who established our laws a long time ago felt that they trusted jurors to make decisions about the legality of stops, searches and seizures. They put in the law what’s called Article 38.23 of the Code of Criminal Procedure. What it says is that if you as a juror hear evidence but then you believe that the evidence was seized by the government illegally, or if you have a question about the legality of that seizure of the evidence, then you’re required by law to disregard that evidence that you have already heard, and you cannot consider it for any purpose.”

After explaining the general nature of Texas Code of Criminal Procedure Article 38.23, the next key step is explaining what it requires of the jurors. Using an extreme hypothetical can demonstrate the importance of the law to the panel. An example used in the same voir dire:

“So, hypothetically, if you were to serve on a murder case and you’re a juror in a murder case and the only evidence that you see is a video recording of the murder taking place that undoubtedly shows the person to be guilty but that video recording was seized illegally by the police officer, you would be required by law to disregard that evidence and find that person not guilty.

That is a difficult concept because in Texas we value our Constitution, we value our rights to be free from illegal searches and we trust jurors to help make that decision.”

It is important that you phrase this in a way that lets the panel know this is a difficult concept, but a worthy one. Like most difficult concepts, when you ask someone on the panel if they can follow the law, you will get a lot of these types of responses: “maybe”, “I think I could”, and “I guess I need to know more about the facts.” You must press for a commitment that the juror will follow the law or, in the alternative, a statement that they will not commit to follow the law, making the juror subject to a challenge for cause.

This is where the Second Amendment comes in again. Another voir dire excerpt showing the transition:

Mike: Do y’all agree that the Constitution is important? How many of us believe the provisions of the Constitution should be upheld? How many of us possess firearms? Own guns? Mr. May, what would you do if the government came to get your gun?

Venireperson May: I’d probably raise a lot of hell when the police showed up.

Mike: And, Mr. May, who do you think enforces the Constitution against the government if they come to get your guns?

Venireperson May: Who enforces it?

Mike: Yes, sir.

Venireperson May: People.

Mike: Do you think if the people won’t stand up for the Fourth Amendment that they’re going to stand up for the Second Amendment?

Venireperson May: Probably not.

Mike: And is the constitution there to protect us or to protect the government?

Venireperson May: To protect the people.

Mike: And what does it protect the people from?

Venireperson May: The government.

Mike: And are police officers a branch of the government?

Venireperson May: I guess.

Mike: Thank you, Mr. May. So how many of us are willing to stand up for our Constitution? And how many of us are willing to do that by serving on a jury and applying the law as it relates to the Constitution? And how many feel like if we’re not willing to do it, nobody else is going to do it? I can tell you, it’s a difficult concept, but it is why in Texas we trust jurors to do that.

Using the murder hypothetical may appear extreme, but you want to make sure that each potential juror will follow the law in even the most extreme circumstances. This works for two reasons: 1) by getting the potential juror to accept the idea of disregarding evidence of a murder, disregarding evidence of methamphetamine, etc. is less of a problem; and 2) it “smokes out” jurors who truly cannot follow the law even if they thought they could.

Tailoring to fit your facts:

Once this point is established, the next step is to relate it back to a hypothetical more similar to the facts of your case. The following was taken from the same transcript and shows a transition from the murder hypothetical to a traffic stop:

[Let’s s]ay the officer said, I stopped the car because the right taillight wasn’t working. You get the video as the juror, you look at the video, and the right taillight is working. Don’t know why he said it wasn’t, but it was. Now, any evidence obtained as a result of that stop, what would we do with that evidence? We would disregard it. Okay? And if you couldn’t tell whether or not it was working and you had a reasonable doubt as to whether or not the stop was legal, those doubts as to whether or not the stop was legal, those doubts are taken against the government, against the State. And if you’re not sure whether or not it was legally obtained, you throw it out. Okay? That’s the way the law is set up in Texas. That’s what is required.

Beware, though, of Standifer v. State, 59 S.W.3rd 177 (Tex. Crim. App. 2001), which prohibits improper “commitment questions”.  Be sure you are familiar with those limitations! 

Sample Charge:

The inclusion of an Article 38.23 charge must be based on a question of fact that can be answered by the jury. Again, this requires a conflict within the evidence/testimony. Something as simple as an officer stating “I thought your lights may not have been on” should be enough for the argument and inclusion of the instruction. A sample charge:

You are instructed that 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.

You are further instructed that before an officer has the right to make a temporary investigative detention of a defendant, the officer must have a reasonable suspicion that the defendant is connected with some criminal activity that is or has occurred.  To justify an investigative detention, an officer must have specific articulable facts, which taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity. The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances.  The test for reasonable suspicion is not whether conduct is innocent or guilty, but the degree of suspicion that attaches to noncriminal acts.

Now, therefore, before you consider the testimony of Officer “X” concerning their observations of the defendant after his detention, you must first find beyond a reasonable doubt that the officer had such reasonable suspicion, and if you do not so find beyond a reasonable doubt you will disregard such testimony.

This instruction allows you to make a dual layer argument for an acquittal by telling the jury to first make a decision regarding the Article 38.23 charge before even considering the ultimate question of guilt/innocence. The goal is to get the jurors to deliberate on the legality of the stop, which creates an additional hurdle for the prosecutor.

In closing argument, you can then argue the jury has a “short” analysis or a “long” analysis depending on their Article 38.23 decision. Argue that each analysis will ultimately reach the same conclusion. We refer to this argument as a “parallel argument.” The arguments are consistent but involve a separate analysis to reach the same conclusion, “not guilty”.

Conclusion

Closing argument will allow you to bring your case back around to the foundation that you laid in voir dire.  Conclude the Second Amendment and Fourth Amendment comparison in a manner something similar to this:

The government is not here today to take away your Second Amendment rights, but what they are asking you to do would deprive him of his Fourth Amendment rights.  Are you going to stand up for the Constitution today?  More importantly, if you do not stand up, who will?  The sacrifice of the Fourth Amendment today forfeits the Second Amendment tomorrow.  Only you have the power to stop it.

This connection of the Second Amendment to the Fourth Amendment may sway a juror who might feel that they have nothing in common with your client and no empathy for your client’s situation to your side.  Help them understand they are defending their Second Amendment rights because in Texas, rural Texas especially, Second Amendment defenders are not likely to back down from an opportunity to defend their rights!

TCDLA
TCDLA
Mike Head
Mike Head
Mike Head is board certified in Criminal Law by the Texas Board of Legal Specialization and is an invited member of the faculty of the Texas Criminal Trial College. He has been recognized as a Texas Super Lawyer by Thomson Reuters in the area of criminal defense. He is a member of TCDLA and NACDL. He has practiced law in Athens, Texas and the surrounding area since becoming licensed in 1990. He has four children, and lives south of Athens. Email Mike at:
Justin Weiner
Justin Weiner
Justin Weiner is board certified in Criminal Law by the Texas Board of Legal Specialization. He is the former Assistant District Attorney who now defends those charged with crimes throughout East Texas.Justin also has a significant amount of experience from previously serving as the Municipal Prosecutor in Eustace, Log Cabin, and Caney City. He has been honored and recognized by a number of local and state-wide organizations for his efforts. Justin is proud to dedicate time towards bettering the community. Justin and his wife have been married for over 14 years and are the proud parents of two sons. Email Justin at:

Mike Head is board certified in Criminal Law by the Texas Board of Legal Specialization and is an invited member of the faculty of the Texas Criminal Trial College. He has been recognized as a Texas Super Lawyer by Thomson Reuters in the area of criminal defense. He is a member of TCDLA and NACDL. He has practiced law in Athens, Texas and the surrounding area since becoming licensed in 1990. He has four children, and lives south of Athens. Email Mike at:

Justin Weiner is board certified in Criminal Law by the Texas Board of Legal Specialization. He is the former Assistant District Attorney who now defends those charged with crimes throughout East Texas.Justin also has a significant amount of experience from previously serving as the Municipal Prosecutor in Eustace, Log Cabin, and Caney City. He has been honored and recognized by a number of local and state-wide organizations for his efforts. Justin is proud to dedicate time towards bettering the community. Justin and his wife have been married for over 14 years and are the proud parents of two sons. Email Justin at:

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