By Collin County Criminal Defense Attorney Jeremy Rosenthal
Generally speaking a statement made to police in the course of an investigation can be considered by the police, a judge, or a jury for it’s full meaning. Recanting the statement might call the original statement into question… then again it might not.
Who Made the Statement?
Statements of the Accused
Important in the analysis is who made the statement, what role that person plays in the proceedings, and the timing of the statement or statements.
A statement by an accused is referred to as an admission by a party opponent under Tex.R.Evid. 801(e)(2). If the statement is relevant to a jury then it’s fully admissible. The person or person(s) the statement was made to can testify to what was said by the accused or can have a written statement admitted.
Practically speaking, an accused and his or her lawyer would have to explain their reason for recanting such a statement although the burden of proof never shifts to the defendant under any circumstance. Many judges and jurors would be naturally skeptical — and police tend to believe statements which fit their theory of the case.
A statement by a witness or an alleged victim is a different and far more complicated matter. The defendant in a case has the right to confront accusers in open court. A witness who gives inconsistent statements to police — or attempts to recant a previous statement to police could be impeached or cross examined on the inconsistent statements before a judge or jury.
Suppressions of Statements
An accused’s remedy to have a prior statement nullified is usually a motion to suppress. This would be in a situation where the original statement was taken illegally in violation of Miranda rights (or in Texas known as Tex.Code.Crim.P. Art. 38.22). Those provisions do not apply to statements made prior to custodial interrogation (arrest).
Warnings about Inconsistent, Changed, or Recanted Statements to Law Enforcement
Depending on the situation — a person might not have a duty to cooperate with law enforcement. An accused person, for example, always has the right to remain silent. If you are cooperating with law enforcement, however, you have the legal duty to do so honestly. Making inconsistent statements or admitting that previous statements were false could result in a person being prosecuted for criminal offenses of making false statements to law enforcement, obstruction of justice, or even perjury in some circumstances.
If you’re in the situation where you are considering in good faith recanting or amending a statement to law enforcement — you should have an attorney involved to counsel you.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about this or any circumstance you should contact an attorney directly. Contacting the attorney through this forum does not create an attorney-client relationship nor are communications or postings in this forum privileged.