Tcl - Admissibility of Rebuttal Evidence Against a Non-testifying Criminal Defendant - September 2005 - Evidence
| Publication year | 2005 |
| Pages | 113 |
2005, September, Pg. 113. TCL - Admissibility of Rebuttal Evidence Against A Non-Testifying Criminal Defendant - September 2005 - Evidence
September 2005
Vol. 34, No. 9 [Page 113]
Evidence
Admissibility of Rebuttal Evidence Against A Non-Testifying Criminal Defendant
by Lucky Vidmar
Those interested in submitting an article for publication in the Evidence column should contact the editor, Lawrence M. Zavadil, at (303) 389-4644 orlzavadil@jcfkk.com.
This month's article was written by Lucky Vidmar, Denver, an associate with Holme Roberts & Owen, LLP - (303) 861-7000, lucky.vidmar@hro.com.
Q: Can the prosecution introduce a criminal defendant's unwarned, voluntary, custodial statement to rebut a specific theory of the defense when the defendant does not testify at trial?
A: No. Rebuttal evidence, as opposed to impeachment evidence, is substantive in nature. Therefore, allowing custodial statements to be introduced as rebuttal evidence would violate the defendant's Fifth Amendment right against self-incrimination.
Assumed Facts
On the opening day of baseball season, Rocky D. Fendant broke into the home of his friend, Card Holder, and took from Holder's office a valuable collection of baseball cards. A police officer happened to be passing by as Fendant was exiting Holder's house through the window. Fendant was arrested on suspicion of burglary, but the police officer forgot to read him his Miranda rights.1 On the way to the station, Fendant told the officer that he was angry with Holder for not paying a bet he lost last season, and thought the cards would be fair payment. Fendant said that he knew about Holder's card collection because Fendant gave Holder the cards as a birthday present two years ago.
A few weeks later, after Fendant was charged with burglary, Fendant's story changed. He claimed that Holder merely borrowed the cards from him and refused to return them. Fendant stated that he went to Holder's house to retrieve his cards.
At trial, Fendant did not take the stand. His mother testified that the card collection belonged to Fendant. She also testified that Fendant held the cards in the highest regard and would never have parted with them, especially by giving them as a gift.
After the defense rested, the prosecutor sought to introduce as rebuttal evidence, Fendant's statement to the police officer that...
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