Chapter 5 - §4. Procedure for excluding evidence

• Jurisdiction: United States

§4. Procedure for excluding evidence

When challenging the admissibility of evidence obtained in violation of the Sixth Amendment right to counsel, the defense should consider (1) the available procedural mechanisms for such a challenge and (2) the associated burden of proof.

§4.1. Procedural mechanisms. To exclude evidence based on a violation of the Sixth Amendment right to counsel, the defendant must take affirmative action or risk waiving the issue. The methods for seeking exclusion based on a violation of the right to counsel are procedurally identical to the methods for seeking exclusion of an involuntary statement. See "Procedural mechanisms," ch. 5-B, §4.1. When seeking exclusion, whether by pretrial motion or objection, a practitioner must state the specific legal grounds for the exclusion. People v. Morris (1991) 53 Cal.3d 152, 188, disapproved on other grounds, People v. Stansbury (1995) 9 Cal.4th 824; see Evid. C. §353; People v. Ramos (3d Dist.2013) 216 Cal.App.4th 195, 207; see, e.g., People v. Tully (2012) 54 Cal.4th 952, 992 (objection on ground that D invoked his right to counsel did not preserve objection that statement was involuntary); People v. Polk (1st Dist.2010) 190 Cal.App.4th 1183, 1193 (objection on ground that statement was coerced did not preserve objection that warnings were inadequate). Generic objections to suppress on constitutional grounds are insufficient. E.g., Ramos, 216 Cal. App.4th at 207 (generic objection to suppress on Fifth Amendment grounds was insufficient).

§4.2. Burden of proof.

1. Prosecution. The prosecution has the burden to prove that a waiver of the right to counsel has occurred. Brewer v. Williams (1977) 430 U.S. 387, 404. While the U.S. Supreme Court in Brewer suggested that this was a "heavy burden," it did not specify what that burden would be. See id. at 402-04. Courts considering a similar heavy burden under Miranda, however, have found that waiver must be proved by a preponderance of the evidence. See Colorado v. Connelly (1986) 479 U.S. 157, 167-68; People v. Markham (1989) 49 Cal.3d 63, 67 n.3.

2. Defense. If the defendant seeks to exclude evidence derived from a constitutional violation, the defendant has the burden to make a prima facie case that the statement or evidence was obtained by exploitation of the illegality. People v. Beardslee (1991) 53 Cal.3d 68, 108; People v. Williams (1988)...