Douglas K. Norman 2014-11-28 08:50:38
How to draft clear and effective findings. One problem that continues to plague the bench and bar is that of reducing a trial court’s ruling to a set of discrete factual findings that can easily be reviewed on appeal. We often struggle with the difference between a “finding of fact” and a “conclusion of law.” The distinction is not merely academic, as the degree of appellate deference is near absolute for findings of fact and zero for conclusions of law. CATEGORIZING FINDINGS The following is my attempt to categorize findings that could be made in connection with a bench-tried issue in a criminal case, though they could also apply to most civil findings. An example of each is provided after the categorization explanation. Recitations of the Record. These can be seen from the record and are beyond dispute. They are often included upfront in findings and conclusions to aid the court by placing the issues in context and setting up the true findings of fact and their significance. “The defendant pled ‘guilty’ to count one and ‘not guilty’ to counts two and three.” Findings of Fact From Direct Evidence. These are the meat of the findings of fact and generally reflect the trial court’s credibility findings concerning witness testimony. “The court finds credible officer Jones’s testimony at the suppression hearing that he saw the defendant carrying a knife in his hand.” Inferential Findings of Fact. While still within the realm of findings of fact, these involve some allowable inference or conclusion drawn from primary facts to a secondary factual conclusion, in the nature of circumstantial evidence. These findings should generally be prefaced by findings concerning the credibility of those testifying to the primary facts. “Based on officer Gonzalez’s testimony that it was his normal practice to read Miranda warnings before taking a statement, the court finds as a reasonable inference that he read Miranda warnings to Smith before taking the statement in question.” Conclusory Findings. These should be avoided and are generally worthless. A conclusory finding is so broad that it begs the question, “What specific facts led you to make this broad assertion?” It is often drafted to answer issues that are falsely assumed to be “mixed questions” in order to avoid the tedious process of breaking the issue down into component facts that add up to such things as reasonable suspicion or probable cause. “The court finds that officer Smith detained the defendant by the manner in which he spoke to him.” [What specifically did officer Smith say, how did he say it, and what were the surrounding circumstances?] Findings on Mixed Questions. Mixed questions can be tricky and often require subjective and normative judgments by the trial court. They generally involve the application of a legal principle or test that gives the trial court some amount of discretion above merely finding true the underlying historical facts. Whether it is ultimately a mixed question or a pure legal question dependent upon underlying historical facts turns on the amount of discretion the law gives to the trial court and how the courts have interpreted the issue. For instance, whether to apply the excited utterance exception to the hearsay rule is subject not only to the historical facts of the situation but also allows for some discretion by the trial court as to whether the totality of the circumstances justify this exception—giving rise to a mixed question. On the other hand, “reasonable suspicion,” though it might at first appear to be a mixed question, has consistently been interpreted as a legal question subject to de novo review based on the historical facts. “The trial court finds that when the declarant yelled, ‘Homer, how could you have done this?’ he was still under the stress of excitement caused by his having witnessed the murder and that his declaration amounted to an excited utterance.” OTHER CONSIDERATIONS Identifying the Dispositive Issues. Findings should be crafted based on the dispositive legal issues. As stated earlier, some background findings may be helpful to place those issues in context, but you should resist the temptation to turn every bit of testimony into a discreet finding of fact. For example, if time is not an issue, you do not need a finding that the officer responded to the call at 4:59 a.m. However, you should be vigilant to include findings on every truly dispositive issue, even if it appears that the issue is uncontested, as the judge generally has the discretion to disbelieve even uncontroverted testimony.1 Sequence of Findings. Whether to organize the findings chronologically or in the order of witness testimony is generally a matter of style and personal preference. While chronological order is more helpful when reviewing findings, findings in the order of witness testimony relieve the reviewer of having to jump around in the record. The complexity of the issues and the evidence may suggest which method is more appropriate. In complex cases, subheadings may be useful to identify the issues and the testifying witnesses. Burden of Proof. Determining who has the burden of proof is critical because it controls the default when not enough facts have been developed to make a determination of the question at issue. For example, it is the defendant’s burden to show that he or she had a privacy interest in a place that was searched. Accordingly, unless there is some evidence to justify a privacy interest finding, questions regarding the reasonableness of a search are premature and irrelevant. However, after the trial court has found the defendant’s proof credible, the burden shifts to the state to show that the search was reasonable. Generally, the burden of proof on suppression issues and preliminary questions concerning admissibility is merely by a preponderance of the evidence.2 Accordingly, trial court findings are assumed to be by a preponderance in the absence of some indication to the contrary. However, certain issues, such as the voluntariness of consent to search, must be proven by clear and convincing evidence. 3 Findings on these issues should reflect that higher standard of proof. Phraseology. Findings may be phrased in several commonly accepted ways, such as “The court finds credible Smith’s testimony that Jones coughed,” “The court believes Smith’s testimony that Jones coughed,” and “The court finds that Jones coughed.” Global Credibility Findings and Inconsistent Credibility Findings. Nothing prevents the trial court from making a global finding that a particular witness has given credible testimony and that all factual assertions are true. However, these should probably be followed by more specific findings concerning the dispositive facts testified to by that witness. Moreover, care should be taken to avoid global findings when there are internal inconsistencies in the witness’s testimony concerning dispositive issues, such as when the witness changes testimony in some manner on cross-examination. Likewise, care should be taken to avoid global findings on more than one witness where similar inconsistencies are present. Findings require you to know something about your case—specifically, the legal issues to which they apply, the burden of proof, the facts deemed relevant to the legal issues, and how much discretion the trial court has to weigh those facts in applying the legal standard. Although proper findings may be difficult to draft, they are critical to appellate review. Making the effort to do it right the first time may help you to avoid either a remand for supplemental findings or an adverse judgment. TBJ NOTES 1. State v. Elias, 339 S.W.3d 667, 674 (Tex. Crim. App. 2011). 2. York v. State, 342 S.W.3d 528, 543 (Tex. Crim. App. 2011); Vinson v. State, 252 S.W.3d 336, 340 n.14 (Tex. Crim. App. 2008) (citing Tex. R. Evid. 104(a)). 3. State v. Ibarra, 953 S.W.2d 242 (Tex. Crim. App. 1997). DOUGLAS K. NORMAN has been an appellate prosecutor with the Nueces County District Attorney’s Office for the past 14 years. Before that he served as chief staff attorney for the 13th Court of Appeals. He is a 1987 graduate of the University of Texas School of Law.
Published by State Bar of Texas. View All Articles.
This page can be found at http://mydigimag.rrd.com/article/Justifying+the+Ruling/1874140/236493/article.html.