The impeachment exception to the exclusionary rule does not bar truthful testimony under the right to present a defense. The trial court has to tailor working around suppressed evidence to enable the defendant to testify truthfully, albeit incompletely because of the suppressed evidence. People v. Johnson, 2021 CO 35, 2021 Colo. LEXIS 366 (May 24, 2021):
[*P29] This case requires us to resolve the tension among the deterrent purpose animating the exclusionary rule, Johnson’s right to present a complete defense, and the court’s truth-seeking function. The trial court, applying CRE 403, concluded that the admission of Carrethers’s positive GSR test results was misleading because it could imply that Johnson did not test positive for GSR or that he was not tested and the investigation was “subpar.” Thus, if Johnson introduced such evidence, it would open the door for the prosecution to admit his previously suppressed positive GSR test results.
[*P30] Judge Taubman concluded that the trial court’s ruling was correct because Johnson sought to use his suppressed GSR evidence to “obfuscate the court’s truth-seeking function.” Johnson, ¶ 73 (Taubman, J., concurring in part and dissenting in part). The People ask, for the same reason, that we expand the impeachment exception to the exclusionary rule to reach truthful testimony elicited by the defense that could mislead the jury. For the reasons detailed below, we decline to expand the impeachment exception to truthful testimony.
[*P31] The Supreme Court outlined the contours of the impeachment exception in Walder and James. While the facts presented here do not perfectly align with those of Walder or James, the relevant language from those cases convince us that the division majority got it right: “[T]he [impeachment] exception cannot possibly permit the use of [suppressed] evidence to counter truthful testimony.” Johnson, ¶ 27. We reach this conclusion because the expansion of the impeachment exception sought by the People would undermine the purpose of the exclusionary rule and chill defendants’ rights to present a complete defense through truthful testimony.
[*P32] Permitting the prosecution to introduce Johnson’s GSR evidence could undermine the exclusionary rule’s “sole purpose,” which is “to deter future Fourth Amendment violations.” Davis, 564 U.S. at 236-37. As the division majority observed, such practice would “arguably encourage[] future violations” by “effectively shield[ing] potentially exculpatory evidence from use by the defense.” Johnson, ¶ 28. If we expand the impeachment exception to include a defendant’s truthful testimony, the expected value of illegally obtained evidence would be enhanced, and an uptick in police misconduct may occur. See James, 493 U.S. at 318 (explaining that it is “far more than a ‘speculative possibility’ that police misconduct will be encouraged by permitting such use of illegally obtained evidence” because “police officers and their superiors would recognize that obtaining evidence through illegal means stacks the deck heavily in the prosecution’s favor” (quoting Harris, 401 U.S. at 225)).
[*P33] More significantly, expanding the impeachment exception to encompass defendants’ truthful testimony “likely would chill some defendants from presenting their best defense and sometimes any defense at all.” Id. at 314-15. That is precisely what occurred here. In effect, the trial court, through its CRE 403 ruling, expanded the impeachment exception to preclude Johnson from presenting truthful testimony that supported his alternate suspect theory. And in so doing, Johnson’s constitutional right to present a complete defense was violated. See Walder, 347 U.S. at 65 (“[T]he Constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it ….”).
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)