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  • Writer's pictureBrian Foley

Houston Criminal Defense Attorney - Texas Code of Criminal Procedure Art. 1.24-1.25

Houston Criminal Defense Attorney - Brian Foley - Board Certified in Criminal Law.


If you're looking for a criminal defense attorney in Houston, Texas then make sure to check out www.houstoncriminaldefenseattorneyspllc.com. If you're looking to watch a trial then you're in luck because Texas Code of Criminal Procedure Article 1.24 provides that all trials must be public!


Today on our blog series we will be discussing the right of a public trail under Article 1.24 as well as the right to confrontation and cross examination of witnesses under the 6th Amendment and Article 1.25.


This right is critical to the protections of freedom of speech in political speech contexts. The public criminal trial is often the most obvious example of government oppression and if it is not held in public then it cannot be criticized. Although grand jury proceedings are kept secret the fundamental right to a speedy public trial holds firm.


The Supreme Court of the United States has ruled, “Even with findings adequate to support closure, the trial court's orders denying access to voir dire testimony failed to consider whether alternatives were available to protect the interests of the prospective jurors that the trial court's orders sought to guard. Absent consideration of alternatives to closure, the trial court could not constitutionally close the voir dire .” 464 U.S., at 511, 104 S.Ct. 819. Presley v. Georgia, 558 U.S. 209, 214 (2010). This is of course under the 6th amendment right to a public trial.


The 6th Amendment reads "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." And yes they spell defense with a "c."


Courts will violate the right to a public trial when they close the courtroom, restrict access, or remove a defendant but they normally have to take some affirmative action. See Presley, 130 S.Ct. at 722 (where a single observer was asked to leave during jury selection); Waller, 467 U.S. at 42, 104 S.Ct. 2210 (where the court closed a suppression hearing to any members of the public); Andrade v. State, 246 S.W.3d 217, 225 (Tex.App.-Houston [14th Dist] 2007, pet. ref'd) (where the defense attorney was removed from the courtroom for arguing)." Lilly v. State, 337 S.W.3d 373, 378 (Tex. App. 2011).

Article 1.25 continues the statement of legal rights for defendants by holding that "The defendant, upon a trial, shall be confronted with the witnesses, except in certain cases provided for in this Code where depositions have been taken." Now the criminal deposition is for sure a rarity. But they do occur and the 6th amendment jurisprudence on the right to confrontation would also include an exception for instances where some lawyer or party with a similar motive to cross examine was able to perform a cross examination on the witness at the deposition or prior trial testimony. Take a look at Texas Rule of Evidence 801 for more instructions on how to get in prior testimony.


Generally this means that in order for the statement of a witness to be used against you in a criminal trial that person must testify in person at your trial. The test is that the statement be "Testimonial." “[W]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation.” Crawford v. Washington, 541 U.S. 36, (2004).


There are exceptions however. For example courts have held that testimony by close circuit two way television in certain circumstances could satisfy the right of confrontation.


"[I]f the State makes an adequate showing of necessity, the state interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant.The requisite finding of necessity must of course be a case-specific one: The trial court must hear evidence and determine whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify." Haggard v. State, 612 S.W.3d 318, 325 (Tex. Crim. App. 2020).


Ultimately in Haggard v. State, the prosecutors did not develop a record for why the case had to be done by closed circuit television and it was therefore deemed to have violated the defendant's rights. “The closest thing to a necessity finding in the record is when the judge suggested that DeVore should be allowed to testify because the State did not have time to subpoena her given her late notice.” Haggard v. State, 612 S.W.3d 318, 327 (Tex. Crim. App. 2020).


I hope you've enjoyed this preview into confrontation in Texas and Public Trials. Tune in tomorrow for another exciting Texas Code of Criminal Procedure Blog post from Houston Criminal Defense Attorneys PLLC!


Art. 1.24. PUBLIC TRIAL. The proceedings and trials in all courts shall be public. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.


Art. 1.25. CONFRONTED BY WITNESSES. The defendant, upon a trial, shall be confronted with the witnesses, except in certain cases provided for in this Code where depositions have been taken. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.


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