{"id":2547,"date":"2008-10-15T05:39:03","date_gmt":"2008-10-14T07:07:06","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-10-14T07:07:06","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=2547","title":{"rendered":"Defendant’s cross-examination at suppression hearing did not impede his right to testify at trial"},"content":{"rendered":"

Defendant was subjected to a wideranging cross-examination at his suppression hearing, but it was all legitimate and went to his credibility. Also, he knew it was going to be extensive before he testified. Some of that ended up being used to impeach him when he testified at trial. It was not a violation of the Simmons<\/em><\/a> rule and did not unconstitutionally impede his right to testify. United States v. Vaughn, 2008 U.S. Dist. LEXIS 79830 (E.D. Cal. September 2, 2008):<\/p>\n

The defendant was warned, by one of the prosecutors, the day before taking the stand that government counsel anticipated extensive cross-examination. When defense counsel questioned how the government’s cross-examination could possibly span hours longer than his direct, the prosecutor explained, and the Court agreed, that matters relevant to the defendant’s credibility would be proper subjects of inquiry. Despite this warning, the defendant chose to take the stand knowing that, although his testimony in support of the suppression motion would not be admitted against him at trial on the issue of guilt, Simmons v. United States<\/em>, 390 U.S. 377, 394 (1968), it would be admissible to impeach his credibility if he offered testimony inconsistent with his prior testimony. As the Ninth Circuit explained in United States v. Beltran-Gutierrez<\/em>, 19 F.3d 1287 (9th Cir. 1994), Defendant:<\/p>\n

[W]as not forced to testify at his suppression hearing. He did so voluntarily in order to preclude the use of incriminating evidence at his trial. Thus, he did not face ‘the cruel trilemma of self-accusation, perjury or contempt.’ Murphy v. Waterfront Comm’n, 378 U.S. 52, 55 … (1964). [Defendant] cites no authority to support the proposition that a defendant’s decision to take the stand to protect a constitutional right precludes the use of his testimony for purposes of impeachment. The Supreme Court has instructed us that “every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury.” Harris v. New York<\/em>, 401 U.S. 222, 225 … (1971).<\/p><\/blockquote>\n

Beltran-Gutierrez<\/em>, 19 F.3d at 1291. Contrary to his assertion, the defendant’s right to testify at trial was not impeded by the answers he gave under oath in support of his motion to suppress. Instead, those answers merely exposed him to impeachment if his trial testimony was inconsistent<\/em> with his testimony at the suppression hearing. The defendant cannot complain that his strategic choice to testify at the suppression hearing enabled the government to obtain “information that tended to incriminate” him or “prejudice his defense for trial.” Defendant’s Motion at p. 13:10-11.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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