In one episode the cops searched a suspect’s car and found incriminating evidence - traces of the victim’s vomit, etc.
Defense counsel successfully challenged the legality of the search and the evidence was thrown out.
Later in the trial, during cross-examination, the accused states that the victim had never been in his car. Jack McCoy pounces. “How do you then account for the fact that her vomit was found in your car?”
Over the indignant objections of the defense counsel the judge allows the question. Cut. The next scene shows the jury chairman solemnly announcing a verdict of Guilty. McCoy has turned the case around and snatched victory from the jaws of defeat by finding a way to get the contents of the car in.
Now the legal question/s. Is this kosher? Would a judge really allow evidence that he had previously thrown out to be introduced in this manner? We’re not shown the response of the accused but if he’d said, “There was no vomit found in my car” could they have proved him a liar by using the tainted evidence?
I find it a little puzzling because surely all evidence that had been excluded because it was improperly obtained could be introduced in this manner, simply by asking the accused a question about it.
Haven’t seen the episode, but from your description, it sounds like McCoy is using the evidence to IMPEACH the witness. That’s certainly allowable. The basic policy is that we don’t allow people to get up and perjure themselves on the stand and get away with it.
So … if a smoking gun is found and then excluded, McCoy could not bring it up to prove the accused is guilty.
However … if a smoking gun is found and then excluded, and then the accused takes the stand and says, “there is no smoking gun”, McCoy could use the excluded gun to show that the accused is a liar, in order to impeach his testimony.
It’s not so much a back door as a penalty for perjury.
A defendant’s statements made in response to proper cross-examination are subject to impeachment by the government, even by evidence that has been illegally obtained and would be inadmissible as substantive evidence of guilt. US v. Haven, 446 U.S. 620 (1980), see similar reasoning for hearsay admission in Harris v. New York, 401 U.S. 222 (1971); see also Oregon v. Hass, 420 U.S. 714 (1975).
That’s what I wondered about. If the prosecution can bring excluded evidence in simply by asking the accused a question about it there hardly seems much point in excluding it.
Is the only recourse for the defense that they not put the accused up to testify at all? (Thus inevitably raising questions in the jurors’ minds, even though they’re not supposed to let that influence them).
It just looks as if the bases are loaded against the defense, it’s a win-win situation for the prosecutor. He wins if the evidence isn’t excluded, he also wins if it is as he simply has to bring it up in cross-examination, or force the defense to create a bad impression by the defendant not testifying.
I think that a lot of the time, the excluded evidence is basically the only evidence against the defendant. So in theory, the defendant could elect not to testify, wait until the close of the prosecution’s case, and then have the judge enter a verdict in his or her favor. No?
For example, imagine the typical situation in which a random dude is drivin alone in his car and is caught with narcotics and drug paraphanelia, and the narcotics and drug paraphanelia are both supressed. In that case, what sort of case would the prosecution present? What witnesses would be called?
I looks to me like the prosecutor would have to drop the case.
I am not a lawyer, but I have watched a lot of ‘Law and Order’.
McCoy doesn’t simply ask direct questions about the excluded evidence. There will be a prompt objection by defence counsel. If McCoy persists, he gets told off in the Judge’s chambers.
However if the accused introduces the topic (like when a accused terrorist claimed he’s never killed anyone), McCoy can introduce a rebuttal witness.
In the light of this I’m not quite sure about your objections. If the accused makes lying statements about the excluded evidence, then it seems perfectly fair the prosecution can refute them.
It’s important to note a couple of things about my quote above: A defendant’s statements made in response to proper cross-examination are subject to impeachment by the government… (emphasis added).
Proper cross-examination is limited to questions reasonably suggested by the testimony elicited during direct examination. A prosecutor can’t, as glee’s post explains nicely, simply bring up evidence that was ruled inadmissible by asking a question. However, in the summary of the episode (which I haven’t seen either, so I’m going only by what’s been said by the OP), we see:
We can assume that the defendant’s claim that the victim was never in his car was in response to a proper question – that is, the defendant’s direct testimony either explictly offered that claim, or the implication of his testimony was very clear. If it wasn’t – if McCoy’s initial question, the one that elicited the “…he was never in my car,” testimony, did not reasonably relate to the direct examination, then the defense should have objected to it. And if the defendant just blurted it out as a non-responsive answer to a permissible question… well, then he has to live with the results.
To which McCoy responds with a copy of the forensics report which shows that the victim’s vomit was found in the car. That portion of the report may have been excluded initially but, as has been noted, can be introduced to show that the witness has lied.
Even in a wide-open cross jurisdiction, the prosecutor can’t ask a witness about supressed evidence. But all of that changes if the witness brings the topic up. If the witness, as in this example says, “the dead guy was never in my car.” The prosecutor can challenge that statement, even with suppressed evidence. This is called “opening the door.”
Actually, a good point. The objection is “no foundation.” But since McCoy can make an offer of proof – in fact, he hardly needs to, since both the judge and the defense are fully conversant with the issue – then it’s likely the judge will permit the question, since he knows that McCoy has and can lay a foundation for the question.
Or even, if we want to get hyper-technical, “assumes facts not in evidence.” Then, when McCoy waives the report in the defendant’s face, “hearsay.” No foundation, in most cases, means conditional relevance has not been established (not the case here), this witness hasn’t been qualified as an expert on this topic (possibly works here), or you haven’t laid the foundation for a hearsay exception (most likely in this case).
Of course, if all of those objections get made in front of the jury, the jurors are thinking, “The defense lawyer really doesn’t want me to hear about this, I’d better pay attention.”
Actually, I came back to say that it probably doesn’t matter because the Court sort of embedded the “reasonably suggested” standard in Havens:
And the Court explained what it meant:
Id.
In other words, if the defendant takes the stand and lies, otherwise-excludable evidence is admissible to attack his credibility, but not to establish the prosecution’s case-in-chief. This is true whether the evidence is relevant to the crime in question or a collateral matter. http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=volpage&court=us&vol=401&page=225
I assume you’re thinking of the 1991 episode “The Troubles”, in which Anthony Heald plays an imprisoned Sinn Fein member who is suspsected of killing another Federal prisoner. He claimed to not be a member of the IRA. Ben Stone (not McCoy) impeached him by introducing details of an IRA bombing in 1981 that killed three Britons, described by the surviving family member who pointed out Heald as the man who left the exploding satchel on a street-corner.
As for the episode the OP is asking about, 1995’s “Guardian”, I always wondered why the title character, played by Jon Cypher, testified at all, or how his lawyer (who knew about the suppressed forensics report, being the one who successfully challenged it) would let him testify untruthfully. Seems to me Cypher could have easily spun the facts to make himself look sympathetic - the boy, an aspiring med student, got high with his sister (a known and troublesome drug addict) and called Cypher, who’d been cleaning up the family’s messes for years. Cypher then told the boy to get lost and drove the overdosed sister to a hospital but she expired along the way. Not wanting the boy’s promising medical career to be destroyed, he dropped the body off in a schoolyard and hoped it would look entirely like her own fault. If anyone was complicit in her death, it was her brother.
That’s indeed the episode.
However I’m pretty sure that the IRA guy actually claimed never to have killed anyone (because you can legally be in Sinn Fein - the IRA’s political wing).
The refutation was the witness whose family the guy blew up.
What I’ve seen is the judge admonishing the defense attorney, “Your client opened the door,” meaning if he’d kept his mouth shut, the evidence would have stayed out.
Are judges allowed to point out objectionable statements? I was on a jury once and a witness said that someone told her about a message someone else had left on her machine and talked about what that person had said in the message. That seemed hearsay to me, but the defense didn’t object and the judge didn’t say anything.
It’s only hearsay if it is admitted for the truth of the matter asserted in the statement. And even if it is hearsay, it mat fall into a recognized exception to the hearsay rules.
