William Edward Dreyer v. The State of Texas--Appeal from 284th District Court of Montgomery County
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Affirmed and Majority and Concurring Opinions filed March 30, 2010.
In The
Fourteenth Court of Appeals
___________________
NO. 14-09-00027-CR
___________________
WILLIAM EDWARD DREYER, Appellant
v.
THE STATE OF TEXAS, Appellee
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Court Cause No. 08-04-03478 CR
CONCURRING OPINION
The Court today reaches the correct result. I write separately only to note my
concern about what should have been, but apparently was not, a threshold issue – whether
the prosecutor should have testified at all in this case. This issue is neither novel nor
unique; instead, courts have over time consistently expressed serious concerns about
prosecutors as witnesses.1 See, e.g., United States v. Birdman, 602 F.2d 547, 551–55 (3d
1
The Texas Disciplinary Rules of Professional Conduct also generally discourage the use of
lawyers as witnesses. See Tex. Disciplinary R. Prof’l Conduct 3.08(a), reprinted in Tex. Gov’t Code Ann.,
tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar R. art. X, § 9). Those rules also acknowledge the
Cir. 1979) (echoing disapproval, stated repeatedly by other courts, of the practice of
serving as both prosecutor and witness). Generally, when the practice has been allowed
elsewhere, it has been only for compelling reasons in extraordinary circumstances. See id.
at 553. This case clearly does not fit within that category because the record does not
suggest any compelling reason for one of the prosecutors, who had served as an advocate in
the case, to testify on a subject about which she had no personal knowledge.
I.
In this case, appellant testified that he sincerely sought treatment and rehabilitation,
in lieu of incarceration, for an admitted drug addiction. The State, in opposition to this
request, sought to admit evidence of a contradictory statement allegedly uttered by
appellant while in the custody and presence of sheriff’s deputy Steve Thompson.
The State presumably could have avoided the hearsay and Confrontation Clause
issues raised in this appeal simply by calling Deputy Thompson to repeat the remarks he
allegedly overheard. That is, the record does not suggest Thompson was unavailable to
testify. 2 Instead, the State decided to call two other witnesses who had no personal
knowledge about appellant’s alleged statement, including a prosecutor who had served as
an advocate for the State throughout the case. The State recognized that calling one of its
prosecutors to the stand was ―out of the ordinary‖ but promised its advocate-witness, Barry
Rienstra, would only ―set[] up for [sic] a predicate‖ and would not ―testify to the specifics
about the case.‖
special obligations of prosecutors to ensure not only that justice is served but also that the appearance of
justice is maintained. See Tex. Disciplinary R. Prof’l Conduct 3.08, 3.09 & cmt. 1 (―A prosecutor has the
responsibility to see that justice is done, and not simply to be an advocate.‖); see also Model Rules of Prof’l
Conduct R. 3.8 cmt. 1 (―A prosecutor has the responsibility of a minister of justice and not simply that of an
advocate.‖).
2
Counsel for the State implied, at one point, that Thompson may not have been employed by the
sheriff’s department as of the time of trial, but his status and whereabouts were never made clear.
Whatever his job status at the time, however, there was no suggestion that he was unavailable to testify.
2
It never became clear what, if any, evidentiary predicate was to be uniquely
achieved by using Rienstra as a witness.
Instead, despite the absence of personal
knowledge, the prosecutor-witness did testify about the specifics of the alleged statement
in which, according to Thompson, appellant indicated his intent to continue with illegal
drug activity if given probation.
Even if that hearsay testimony could be considered vital to the State’s case for
punishment, however, the State failed to prove Rienstra was an appropriate witness – much
less the only one – who could offer it. Thus, the record does not justify the decision to
allow one of the prosecutors to testify as a witness.
II.
Moreover, there are multiple reasons why prosecutors should not serve in the dual
role of advocate and witness. First, the tasks are inherently inconsistent because ―the
function of an advocate is to advance or argue the cause of another, while that of a witness
is to state facts objectively.‖ Model Code of Prof’l Responsibility EC 5-9 (1978), quoted
in Birdman, 602 F.2d at 551. Thus, serving in both roles in the same case could confuse
the trier of fact3 as to whether (and when) the prosecutor is acting in the capacity of
advocate, as opposed to witness. See Birdman, 602 F.2d at 554; Tex. Disciplinary R.
Prof’l Conduct 3.08 cmt. 4, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A
(Vernon 2005) (Tex. State Bar R. art. X, § 9) (―It may not be clear whether a statement by
an advocate-witness should be taken as proof or as an analysis of the proof.‖).
Second, a prosecutor may be unable to participate as a fully objective witness to the
extent his interests are aligned with only one of the parties – the State. See Birdman, 602
F.2d at 553. And this is a concern coupled with serious risk. An experienced prosecutor
3
Presumably, this concern is somewhat diminished in cases, as here, tried to the judge rather than a
jury.
3
with an interest in the outcome would be both poised and motivated to wreak maximum
strategic damage to the opposition, if permitted to testify. This concern is magnified not
only by the serious liberty interests at stake, but also the widely-held perception that a
prosecutor, not unlike other law-enforcement officials, may have enhanced credibility with
the public. Id. at 553–54. Thus, the adverse consequences of a prosecutor’s testimony
can be significant.
Third, the prospect of a prosecutor testifying against the accused raises the
appearance of impropriety:
[T]he most frequently cited justification for the [advocate-witness] rule
reflects a broader concern for public confidence in the process of justice.
The chief fear which underlies the ethical rule . . . is not that the testifying
prosecutor actually will overreach a hapless defendant, but that he will
[a]ppear to a skeptical public to have done so. . . . Particularly where the
lawyer in question represents the prosecuting arm of the Government, the
ethical rule serves to implement the maxim that ―justice must satisfy the
appearance of justice.‖
Id. at 554 (citations omitted).
It also places a prosecutor in the presumably very
uncomfortable – and optically questionable – role of advocating her own credibility or that
of a colleague.
III.
Perhaps the most troubling aspect of cases like this one, however, is that it can be
difficult to gauge the full impact of the sudden transformation of a prosecutor from
advocate into witness because some of the effects may be pervasive.
Some are
transparent, even in a case with a limited record like this one. Here, for example, the trial
court and parties grappled with how to apply Texas Rule of Evidence 614, which requires
the exclusion of witnesses from the courtroom ―so that they cannot hear the testimony of
4
other witnesses,‖ to a prosecutor who already sat through – and participated in – the entire
trial.4 See Tex. R. Evid. 614.
Some effects, however, are more difficult to quantify, such as the impact of the
prosecutor’s decision to testify on defense strategy. Here, although defense counsel
voiced concerns, he did not formally object to Rienstra’s testimony and made no effort to
cross-examine her. To what extent, if any, should we attribute counsel’s reticence to a
concern that the advocate-witness might later participate in, and even influence, important
prosecutorial decisions directly and adversely affecting his client?
One can only
speculate.
No guesswork is needed, however, to conclude that there was relatively little
hesitation by the State in calling – or by the trial court in allowing – Rienstra to testify.
The court made no inquiry as to the purpose or scope of the prosecutor’s intended
testimony.5 No one asked about Deputy Thompson’s availability – which could have
obviated any need for the prosecutor’s testimony – or otherwise questioned the wisdom or
necessity of calling Rienstra as a witness.
In part, this may be due to the current Texas standard, which requires a defendant to
show actual prejudice to obtain reversal of a conviction supported by the prosecutor’s
testimony.
See House v. State, 947 S.W.2d 251, 253 (Tex. Crim. App. 1997).
Particularly where the effects of a prosecutor’s testimony may be insidious and
unquantifiable, this standard provides minimal prospective guidance to judges and lawyers
Defense counsel was forced to concede the point: ―I think it’s too late for [the Rule] now.
She’s been in here the whole time [and already heard other witnesses testify].‖
4
5
Because this case was tried to the bench rather than a jury, there may have been fewer concerns
about the potential for prejudice to the factfinder.
5
to set the outer limits of appropriate prosecutor testimony.6 Further, the standard provides
little disincentive for this unfortunate practice.
The scene of one prosecutor calling another as a witness on a material and disputed
fact issue is not a pretty sight. At a minimum, it may leave the impression that the State
has placed its thumb on the scales of justice. As such, absent a showing that the testimony
is necessary and unavailable from another source, unlike here, we simply should not allow
this practice.7
Accordingly, I respectfully concur.
/s/
Kent C. Sullivan
Justice
Panel consists of Justices Frost, Boyce, and Sullivan. (Frost, J., majority)
Publish — TEX. R. APP. P. 47.2(b).
6
We note that both the Texas Supreme Court and Texas Court of Criminal Appeals have struggled
in the past to reach a consensus about the proper handling of this advocate-witness issue. See Anderson
Producing Inc. v. Koch Oil Co., 929 S.W.2d 416 (Tex. 1996) (5-4 decision); Brown v. State, 921 S.W.2d
227 (Tex. Crim. App. 1996) (5-4 decision); see also House v. State, 947 S.W.2d 251 (Tex. Crim. App.
1997) (6-3 decision).
7
Even then, a prosecutor who must testify should withdraw from further participation in the trial.
See Birdman, 602 F.2d at 553 & n. 18.
6
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