Opening the Door to Excluded Evidence

From Criminal Defense Wiki
Jump to navigationJump to search

In the United States, a criminal defense attorney may prevent certain evidence from being admitted to court if it is prejudicial or in any other way inadmissible. However, the defense attorney must take great care to make sure the evidence remains inadmissible. A common error is for the criminal defense attorney to open the door to the readmission of evidence in one of several ways. The most common way supressed statements come into evidence is through the prosecution's impeachment of a defendant.

In Wade v. United States the court explained how a defendant could open the door to otherwise inadmissible evidence:

It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. Such an extension of the Weeks doctrine would be a perversion of the Fourth Amendment. [T]here is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government's disability to challenge his credibility.Wade v. United States, 347 U.S. 62, 65 (1954)</ref>

This rationale was affirmed in Harris v. New York

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. . . . Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. . . . Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment.[1]

The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner's credibility was appropriately impeached by use of his earlier conflicting statements.

Traditionally the rule has been restricted to impeachment of defendants. As a result, the excluded evidence cannot be used against other witnesses.



  1. Harris v. New YOrk, 401 U.S. 222 (1975)