C.D.Cal.: Defense counsel can’t make a false argument belied by evidence the govt. agreed to suppress

Defense counsel’s closing argument that was flatly contradicted by evidence the government elected to not put in in response to a motion to suppress maybe could have come in. Defense counsel can’t make a false argument to the jury without consequence. United States v. Ibarra, 2023 U.S. Dist. LEXIS 108174 (C.D. Cal. June 21, 2023):

James is distinguishable from the present circumstances. Whereas James concerned the impeachment of a witness’s false testimony, the issue here is the persistence of counsel that he ought to be able to make knowingly false arguments to the jury. James is silent on the question of rebutting an attorney’s knowingly false arguments, and the Court is aware of no binding precedent resolving this issue. Therefore, the Court applies the test from James to determine whether an exception to the exclusionary rule is warranted in this situation. The Court concludes that suppressed evidence may be admitted for the specific and limited purpose of rebutting an attorney’s closing arguments that are in direct contradiction to the contents of suppressed evidence and perpetrates a fraud on the jury. See Harris, 401 U.S. at 224 (court cannot allow defendant to use exclusionary rule as a “shield against contradiction of his untruths”).

A court may “carve[] out exceptions to the exclusionary rule … where the introduction of [1] reliable and probative evidence would [2] significantly further the truthseeking function of a criminal trial and [3] the likelihood that admissibility of such evidence would encourage police misconduct is but a ‘speculative possibility.'” James, 493 U.S. at 311 (quoting Harris, 401 U.S. at 225); see also People v. Edwards, 11 Cal. App. 5th 759, 768-69, 217 Cal. Rptr. 3d 782 (2017) (applying James test and concluding that the impeachment exception to the exclusionary rule applies to a psychiatrist expert witness’s testimony based on the defendant’s own statements to the expert); People v. Johnson, 183 Cal. App. 4th 253, 282-83, 107 Cal. Rptr. 3d 228 (2010) (applying James test and concluding that an exception to the exclusionary rule applies where introduction of suppressed evidence is necessary to prevent defendant from “extrapolating a false argument from truthful testimony”). Under this test, a court may conclude that an exception to the exclusionary rule applies only if three criteria are satisfied: (1) the evidence must be reliable and probative, (2) its use at trial must “significantly further the truthseeking function of a criminal trial,” and (3) the likelihood that recognizing the exception would encourage police misconduct must be no more than a “speculative possibility.”

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. . . defense counsel here sought to make an objectively false argument to the jury—that Defendant did believe he was carrying money and was tricked by Mayfield, all of which was contradicted by the recording.

V. CONCLUSION AND ORDER

It bears emphasis that defense counsel in fact made no improper closing argument and did not open the door to admitting the suppressed recording. The United States never moved to admit the suppressed recording, and the jury never learned of the recording or its contents. But if defense counsel had advanced the knowingly false argument, which was squarely contradicted by the suppressed recording, the Court could have properly admitted the recording for the specific and limited purpose of rebutting the false argument. Accordingly, Defendant’s motion for new trial is DENIED.