Chapter 5 - §3. Evidence subject to exclusion under right to counsel

• Jurisdiction: United States

§3. Evidence subject to exclusion under right to counsel

§3.1. Exclusion of statement. Whether a statement obtained in violation of the Sixth Amendment right to counsel must be suppressed depends on why it is offered, as well as how it was obtained.

Note

Under certain circumstances, the court may sanction the prosecution for deliberately violating or circumventing the Sixth Amendment right to counsel by complete dismissal of all charges with prejudice. See, e.g., Morrow v. Superior Ct. (2d Dist.1994) 30 Cal.App.4th 1252, 1263 (conduct of prosecutor who deliberately instructed his investigator to eavesdrop on confidential conversation between D and his counsel during recess in trial was so egregious that mandamus was issued to trial court to dismiss sole charge of residential burglary). The appropriate sanction, however, will depend on the facts of each case. Id. at 1263 n.4.

1. Prosecution's case-in-chief. A statement obtained in violation of the defendant's Sixth Amendment right to counsel cannot be used in the prosecution's case-in-chief. Michigan v. Harvey (1990) 494 U.S. 344, 348; In re Wilson (1992) 3 Cal.4th 945, 951; see Brewer v. Williams (1977) 430 U.S. 387, 406 & n.12 (upholding appellate court's determination that new trial was required and statements could not be used in case-in-chief); Massiah v. U.S. (1964) 377 U.S. 201, 205-06 (basic protections of Sixth Amendment are not met when statements taken in violation of that right are used in case-in-chief).

2. Impeachment. A statement obtained in violation of the defendant's Sixth Amendment right to counsel can be used to impeach the defendant's testimony. Kansas v. Ventris (2009) 556 U.S. 586, 594; Harvey, 494 U.S. at 351. For the statement to be admissible as impeachment evidence, however, it must have been obtained voluntarily. Harvey, 494 U.S. at 351. See "Evidence subject to exclusion for involuntariness," ch. 5-B, §3.

3. Hearings to revoke probation or parole. Constitutional exclusionary rules generally do not apply to probation and parole revocation proceedings, regardless of what constitutional right is at issue. See Pennsylvania Bd. of Prob. & Parole v. Scott (1998) 524 U.S. 357, 369 (Fourth Amendment exclusionary rule does not apply to revocation proceedings); People v. Racklin (1st Dist.2011) 195 Cal.App.4th 872, 881 (Fifth Amendment exclusionary rule does not apply to revocation proceedings). However, neither the U.S. Supreme Court nor California courts have directly addressed...