CO: Impeachment exception to exclusionary rule permits defendant to testify truthfully without opening door to suppressed evidence

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 ….”).

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