I respectfully dissent. There is no question that appellant is guilty of sexually assaulting his two minor daughters in Texas. While Texas authorities were investigating these offenses in Texas, appellant fled the jurisdiction. Appellant later made voluntary and reliable incriminating oral statements about these offenses to a federal officer in Montana. With the exception of an outstanding Texas arrest warrant for appellant that apparently caused this federal officer to detain and question appellant in Montana, Texas had no connection whatsoever to the making of these oral statements. These oral statements are not excludable under Montana or federal law. They are, however, excludable under Texas law solely because they were not electronically recorded as required by Article 38.22, Section 3(a), V.A.C.C.P. Do Montana and federal law ("nonforum law") or Texas law ("forum law") apply to the excludability of these statements in a Texas prosecution?

The Full Faith and Credit Clause does not command Texas to apply nonforum law primarily because there is nothing "arbitrary nor fundamentally unfair" about applying forum law. ⁽¹⁾ This does not mean Texas is constitutionally prohibited from applying nonforum law, and choice-of-law principles serve as an analytical guide in deciding which law to apply. ⁽²⁾ It also is necessary to consider under choice-of-law and comity principles whether nonforum law offends the public policy of Texas or the general interests of Texas citizens. ⁽³⁾

CHOICE OF LAW

In deciding forum law applies, the linchpin of the analysis in the Court's opinion is its affixation of a "procedural" or "evidentiary" label to Article 38.22, Section 3(a). Having quickly affixed this "procedural" or "evidentiary" label to Article 38.22, Section 3(a), it becomes a simple matter for the Court to apply the choice-of-law rule that forum law "determines the admissibility of evidence." ⁽⁴⁾ Affixing a procedural or evidentiary label to Article 38.22, Section 3(a), actually avoids the "choice of law process" because this process is devised for "substantive" issues when both the forum and the nonforum "have had substantial contacts with the transaction and the parties." ⁽⁵⁾

Some rules are easily characterized as "wholly procedural" such as manner of service, mode of trial and evidentiary "housekeeping devices." ⁽⁶⁾ The "characterization" process for most other rules, however, is not so easy and requires more than simply the affixation of a "procedural" label. For example,

"The statute of limitations just treated is among the best examples of how misleading it can be to try to resolve an issue by affixing a label to it--what the conflict of laws calls `characterization.' A simple-minded version of this labeling phenomenon is to conclude quickly that the statute of limitations is `procedural' and that a forum will therefore apply its own statute of limitations automatically, to foreign and domestic claims alike. Since the choice of law process is devised for `substantive' issues, goes this notion, the process would be avoided by simply affixing a `procedural' label to an issue. Only a brain in a total state of rest would trust such reasoning." ⁽⁷⁾

Most rules of evidence that are "merely housekeeping devices designed to direct the court along the best route to the truth" are properly characterized as "strictly procedural." ⁽⁸⁾ There are, however, various exceptions to this. ⁽⁹⁾ Sometimes "a rule phrased in terms of evidence may in fact be a rule of substantive law." ⁽¹⁰⁾

Article 38.22, Section 3(a), is one of those legislative substantive rules "phrased in terms of evidence." It is more than a "housekeeping" device designed to promote "efficiency and convenience" during the course of the trial. ⁽¹¹⁾ Article 38.22, Section 3(a), sets out various substantive preconditions to the admissibility of oral statements that fall within its provisions. Article 38.22, Section 3(a), is a legislative substantive exclusionary rule. ⁽¹²⁾

With Article 38.22, Section 3(a), properly characterized as a substantive rule, the choice of which law to apply is an easy one. The relevant transaction here in making this choice is not the Texas prosecution but the making of the oral statements in Montana. Texas had no "substantial contacts" with this transaction or the parties to it. ⁽¹³⁾ Choice-of-law principles, therefore, require Texas to apply Montana and federal law to the excludability of appellant's oral statements unless doing so would violate Texas public policy. ⁽¹⁴⁾

PUBLIC POLICY CONSIDERATIONS

The "public policy" issue should not be "carelessly applied." ⁽¹⁵⁾

The Court's opinion decides that admitting appellant's oral statements would violate legislative public policy to declare inadmissible the type of statements in this case "unless an electronic recording is made of them." ⁽¹⁶⁾ This, however, is tantamount to deciding that nonforum law violates Texas public policy because nonforum law does not have a forum counterpart. This misapplies the "public policy" analysis.

"It is impossible to define a state's `public policy.' Presumably it is the entirety of the state's law, whether embodied in statutes, rules, decisions, ordinances, or any other equivalent compilation. If that is its definition, then it could be argued that any foreign claim or rule of law not having a precise counterpart in forum law would violate forum `policy,' and that would mean in turn that a state would `never enforce different laws of another state' (citation omitted). That is of course not the case.

"A foreign law need not be shown to have a local counterpart before it is recognized and applied. Before a foreign claim or law is rejected on the ground that it violates forum `public policy,' the forum feeling about the matter must be shown to be a deep one, to touch on something the forum deems to involve moral values rather than just a different way of doing things." ⁽¹⁷⁾

And it is seriously doubtful that the legislative policy of Article 38.22, Section 3(a), is to require "electronic recording" of oral statements just for the sake of electronically recording them. The obvious policy advanced here is to assure reliability and voluntariness of the statements. Those purposes have been accomplished here. It, therefore, does not violate Texas public policy or some "fundamental principle of justice" to admit appellant's oral statements. ⁽¹⁸⁾ Nor would admitting these statements adversely affect the general interests of Texas citizens.

I respectfully dissent.

McCormick, Presiding Judge

(Delivered May 24, 2000)

En Banc

Publish

Keller and Keasler, JJ., join this dissent

1. See generally Sun Oil Co. v. Wortman, 486 U.S. 717, 108 S.Ct. 2117, 2122-24, 100 L.Ed.2d 743 (1988); Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105 S.Ct. 2965, 2978, 86 L.Ed.2d 628 (1985) (Full Faith and Credit Clause provides "modest restrictions" on application of forum law).

2. See Sun Oil, 108 S.Ct. at 2122 fn 1 (Full Faith and Credit Clause did not radically change the principles of conflicts law; it made these principles enforceable as a matter of constitutional command rather than leaving enforcement to the forum's view of comity); Phillips Petroleum, 105 S.Ct. at 2977-78 ("a particular set of facts giving rise to litigation could justify, constitutionally, the application of more than one jurisdiction's laws" with the Due Process Clause and the Full Faith and Credit Clause providing only "modest restrictions" on the application of forum law); David D. Siegel, Conflicts In A Nutshell, Section 56 at p. 153-55 (2d ed. 1994) ("if two states have interests in the case, and even strong policies underlying the different rules of law they would apply to an issue, and one will have to give way, the decision of which one that will is the forum's, unhindered by the full faith and credit clause").

3. See Safety-Kleen v. Canadian Universal Ins., 631 N.E.2d 475, 483 (Ill.App.2 Dist. 1994) (judicial comity is the principle whereby courts of one jurisdiction may give effect to the laws and judicial decisions of another, not as a matter of obligation, but out of deference and respect).

4. Davidson v. State, S.W.2d Slip op. at 5 (Tex.Cr.App. Nos. 1253/54-98, delivered this date); see David D. Siegel, Conflicts In A Nutshell, Section 63 at p. 186 (2d ed. 1994) ("most rules of evidence are strictly procedural and come from forum law alone"); see also Restatement (Second) Of Conflicts of Laws, Section 138 at p. 384-85(1971).

5. See David Siegel, Conflicts In A Nutshell, Section 5 at p. 5-6 (whenever two or more states have a connection to a case and an issue arises as to which their respective laws differ, a choice of law must be made with the law-choosing process undertaken only for "substantive" issues; as far as procedure is concerned, each forum follows its own), and Section 55 at p. 149 (the uncomplicated exemplar of a choice of law situation is a case where both the forum and another state "have had substantial contacts with the transaction and the parties").

6. See David D. Siegel, Conflicts In A Nutshell, Section 62 at p. 185, and Section 63 at p. 186.

7. David D. Siegel, Conflicts In A Nutshell, Section 62 at p. 183.

8. See David D. Siegel, Conflicts In A Nutshell, Section 63 at p. 186; Restatement (Second) Of Conflicts of Laws, Section 138 at p. 384 (1971).

9. See David D. Siegel, Conflicts In A Nutshell, Section 62 at p. 184 (if purpose of a given rule, otherwise safely treatable as one of "procedure" is not one of bookkeeping or mechanics but rather one whose very design is to decide between life and death, its application in a conflicts setting "needs thinking, not labeling"), and Section 63 at p. 186-87 (some presumably "housekeeping" evidentiary rules "can take a turn for the substantive"); Restatement (Second) Of Conflicts of Laws, Section 138 at p. 384, and Section 139 at p. 385 (evidentiary privileges against the disclosure of confidential communications are "substantive").

10. Restatement (Second) Of Conflicts of Laws, Section 138, comment c at p. 384.

11. See David D. Siegel, Conflicts In A Nutshell, Section 63 at p. 186; Restatement (Second) Of Conflicts of Laws, Section 138 at p. 384 (considerations of "efficiency and convenience" require that questions relating to admissibility of evidence should usually be determined by forum law).

12. See David D. Siegel, Conflicts In A Nutshell, Section 55 at p. 150 (a legislature seldom considers choice-of-law issues because legislators "are almost always preoccupied with substantive rights and issues"); but see Alvarado v. State, 853 S.W.2d 17, 19 fn 3 (Tex.Cr.App. 1993) (stating in dicta that Article 38.22, V.A.C.C.P., is viewed "as an evidentiary rule not an exclusionary rule").

13. See David D. Siegel, Conflicts In A Nutshell, Section 55 at p. 149 ("uncomplicated exemplar of a choice of law situation is a case" in which both the forum and the nonforum "have had substantial contacts with the transaction and the parties"); cf. Phillips Petroleum Co., 105 S.Ct. at 2976-80 (Kansas' application of its substantive forum law violated Full Faith and Credit Clause because of its lack of "significant contact or significant aggregation of contacts" to the parties and the transactions at issue); Alvarado, 853 S.W.2d at 22 (finding it significant that Texas authorities played no part in obtaining the defendant's written confession in Mexico).

14. See Safety-Kleen, 631 N.E.2d at 483; cf. Phillips Petroleum, 105 S.Ct. at 2978 (Full Faith and Credit Clause required forum to respect the laws and judgments of other states "subject to the forum's own interests in furthering its public policy").

15. See David D. Siegel, Conflicts In A Nutshell, Section 55 at p. 153:

"There is also the threshold question, when foreign law is relevant, of how a party gets the court to apply it. And there is the important `public policy' matter, which, carelessly applied, could easily become an excuse for a forum to refuse to apply any foreign law at all. That has not come to pass, and only judicial reins on this wild `public policy' creature account for that."

16. The Court's own characterization of this public policy appears to be a substantive one which undermines the Court's claim that Article 38.22, Section 3(a), is "procedural" or "evidentiary."

17. David D. Siegel, Conflicts In A Nutshell, Section 57 at p. 166-67.

18. David D. Siegel, Conflicts In A Nutshell, Section 57 at p. 167 (setting out the "classic formulation" of the "public policy" standard: nonforum law does not violate forum public policy unless it violates "some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal").