REEXAMINING THE ADMISSIBILITY OF THE DEFENDANT'S NON-INCULPATORY STATEMENTS AT TRIAL.

Author:Porter, Wes Reber
 
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  1. Introduction a. How it currently works? b. An illustrative example of the Ponzi schemer's confession c. Proposed trial uses of the accused's pretrial statement II. Defendant's "Theory of the Defense" at Trial a. Defendant's theory of the defense is constitutional b. Evidence in support of the defendant's theory c. Sparse appellate relief on the defendant's theory instruction d. Viable theories of the defense i. Defense theories based upon elements, defenses and the burden proof ii. Defense theories related to the government's investigation III. Fundamental Fairness and Trial-Related Constitutional Rights a. Fundamental fairness and violations of due process b. Enumerated constitutional rights at the criminal trial i. Right to a jury trial before an impartial jury ii. Right to confront witnesses against the accused iii. Fifth Amendment privilege against self-incrimination IV. Defendant's Constitutional Right to Independent Admission of His Non-inculpatory Statements at Trial a. Constitutional right to advance a "theory of the defense" b. Fundamental fairness during the criminal trial c. Sixth Amendment right to trial before an unbiased jury d. Better timing in the defense case-in-chief e. The reliability of the defendant's statement f. The Ponzi scheme promoter example V. Defendant's Non-Inculpatory Statements Contemporaneously Admitted during the Government's presentation a. Fundamental fairness b. Common law evidentiary doctrine i. The common law "rule of completeness" VI. Using Portions of the defendant's Non inculpatory statements on Cross-Examination of Government Witnesses a. No constitutional right to confront yourself b. Oddly honoring the rules of evidence c. Defendant's attempt to "subvert the rules" with "self-serving" statements d. Preserving the privilege against self-incrimination VII. Limitations and a Proposed Balancing Test a. Limitations totheproposals b. A proposed balancing test The powerful machine of our criminal justice system feeds off of the accused's own incriminating statements. An overwhelming percentage of criminal cases are resolved by the defendant's admission of guilt at a plea colloquy. (2) In the rare criminal case that proceeds to trial, the government's evidence regularly includes a presentation of the defendant's pre-trial statement, his "confession." (3) By guilty plea or at trial, one way or another, the government most certainly will use the accused's own words against him. (4)

    The accused, by contrast, may struggle to tell his (5) side of the story at trial. Forgoing any meaningful constitutional analysis, trial courts rely instead on an inflexible application of the rules of evidence. (6) The criminal defendants have lodged primarily evidentiary arguments to make use of the favorable, non-incriminating portions of their pre-trial statements. (7) Trial courts categorically exclude the criminal defendant from independently admitting any part of his pretrial statement at trial. (8) Most trial courts similarly prohibit the defendant from contemporaneously presenting the non-inculpatory portions of his pretrial statement that have been omitted from the government's presentation. (9) Lastly, trial courts will forbid the defendant from even referring to the non-inculpatory portions of his pretrial statement in questioning government witnesses during cross-examination. (10)

    To make some use of the non-inculpatory portions of his pretrial statement, this Article argues that the criminal defendant deserves a more meaningful constitutional analysis from the lower court. (11) The analysis draws upon the defendant's constitutional right to advance a "theory of the defense," (12) the doctrine of fundamental fairness (13) grounded in the Due Process Clause, (14) and trial-related, constitutional protections enumerated in the Bill of Rights, particularly under the Sixth Amendment. (15) Common law evidentiary doctrines (16) and the codified rules of evidence (17) that govern our adversarial trial system similarly support a criminal defendant's wider use of his own pretrial statements at trial. This Article urges trial courts to reexamine, through the lens of fairness to the criminally accused at trial, the constitutional protections and evidentiary rules that govern the accused's use of his own non-inculpatory, pretrial statements at trial.

    The introduction in Part I of this Article outlines how the trial courts currently treat the defendant's use of his pretrial statements. When excluding the non-inculpatory portions of the defendant's pretrial statement, lower courts fail to conduct any meaningful constitutional analysis and rely instead upon a strict application of the rules of evidence. Part II summarizes the defendant's constitutional right to present his "theory of the defense" at trial. Lower courts readily agree that the defendant is entitled to present his theory of the defense, yet too often limit his ability to support his theory with evidence other than his own testimony under oath at trial.

    Part III outlines the constitutional considerations relating to the accused's ability to present his theory of the defense. This section first discusses the doctrine of fundamental fairness under the Due Process Clause and then discusses the Supreme Court's renewed focus on two trial-related, constitutional protections under the Sixth Amendment: the defendant's right to a trial before an impartial jury and his right to confront the witnesses against him. Last, this section explores the faulty judicial reasoning that continues to improperly compel the defendant to waive his privilege against self-incrimination to realize these other constitutional protections afforded to him at trial.

    Part IV contends that the defendant has a constitutional right, consistent with his theory of the defense, to independently admit some of his non-inculpatory, pretrial statements at trial. Part V discusses how fundamental fairness and common-law evidentiary doctrine support the contemporaneous admission into evidence of the defendant's non-inculpatory, pretrial statements when the government presents his confession at trial. Part VI argues that the defendant's constitutional right to a meaningful cross-examination of government witnesses, particularly law enforcement witnesses, similarly embraces a permissible use for his pretrial statements. Trial courts must allow the accused, during cross-examination, to refer to portions of his pretrial statement that, consistent with his theory of the defense, challenge the nature and quality of the investigation.

    Lastly, Part VII sets out proposed discrete limitations on the defendant's use at trial of his non-inculpatory, pretrial statements and a proposed balancing test to apply in ruling on the admissibility of such statements so as not to subvert the fundamental underpinnings of the criminal justice system.

  2. INTRODUCTION

    The American criminal justice system requires a sea-change in criminal procedure and policy related to trial courts' admissibility determinations governing the criminal defendant's pretrial statements. Trial courts effectively gloss over any meaningful constitutional analysis and proceed to a one-sided, government-oriented application of the rules of evidence. (18) More is required from a criminal justice system which is designed to ensure constitutional protections for the accused at trial and preserve an adversarial jury system that is premised on fairness to all parties. (19)

    a. How it currently works?

    The accused, prior to trial, may move to suppress his incriminating pretrial statement on constitutional grounds under the voluntariness standard (20) of the Fifth Amendment and the proscriptions of Miranda v. Arizona. (21) Once the defendant's suppression motions are denied, (22) however, the trial court almost exclusively relies upon the rules of evidence to determine admissibility of the defendant's pretrial statements during the criminal trial. (23) Trial courts, adhering to a strict construction of the rules of evidence, only allow the government to admit the defendant's pretrial statement. (24) The government, moreover, may redact the defendant's statement so as to present a version of the accused's confession to the jury that is most favorable to the government. (25)

    By contrast, under current judicial interpretation, the accused can make almost no use of his own pretrial statements during trial. The governing rules of evidence do not distinguish the criminal defendant from any other "party" on trial, including parties to a civil action. (26) The portions of the defendant's pretrial statement to law enforcement that do not incriminate him, unless the government otherwise agrees, (27) are categorically excluded at trial under the rules of evidence. (28) Trial courts also preclude the jury from contemporaneously considering the non-inculpatory portions of the defendant's pretrial statement when the government presents the incriminating portions in its case-in-chief. (29) Lastly, lower courts even limit the defense's viable avenues of cross-examination and questions that may be asked during cross-examination of government witnesses if the line of inquiry touches upon his non-inculpatory, pretrial statements. (30)

    The drafters of the rules of evidence intended this outcome for the criminally accused, (31) but, as argued in this Article, the Framers of Constitution did not. (32)

    The criminal defendant deserves a more meaningful constitutional analysis regarding the admission of his non-inculpatory, pretrial statements so that he may properly support and argue his theory of the defense at trial. (33) As it stands now, if his trial were a motion picture, the portions of the accused's pretrial statements potentially favorable to him which align with his theory of the defense end up on the cutting room floor. But why?

    b. An illustrative example of the Ponzi schemer's confession

    For illustrative purposes, consider a fraud case...

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