Shields, swords, and fulfilling the exclusionary rule's deterrent function.

AuthorKainen, James L.

INTRODUCTION I. THE FLIGHT OF THE EXCLUSIONARY RULE II. ACCURATE FACTFINDING AND SUPPRESSED EVIDENCE A. Opening the Door to Suppressed Evidence B. Contradicted Inferences or Proof C. The Inference That Suppressed Evidence Does Not Exist D. When Defendants Waive Protection Against Suppressed Proof III. THE INTEGRITY OF THE TRIAL PROCESS AND ETHICAL RULES CONCLUSION INTRODUCTION

When the exclusionary rule prevents the prosecution from using evidence necessary to bring a case to trial, the rule deters illegality while raising no issue about how it might interfere with usual factfinding processes. However, when a case proceeds to trial although a court has suppressed some prosecution evidence, courts need to decide the extent to which the defendant may benefit from the absence of the proof without opening the door to its admission. The exclusion of any relevant evidence raises similar questions, and courts often say the exclusionary rule is a shield from suppressed evidence, but not a sword with which the defendant can inflict damage on the prosecution's remaining case. (1) Nonetheless, this Article argues courts err when they analyze whether the defendant "opened the door" to suppressed evidence with a metaphor appropriate for rules excluding evidence for different--and less weighty--reasons than encouraging respect for individual constitutional rights. Employing usual evidentiary tests for opening the door unduly diminishes the effectiveness of exclusion as a deterrent of police misconduct when investigators expect the potential evidentiary payoff will not be necessary to bring the case to trial, but will nonetheless be useful to obtain a conviction.

Whether the defendant has opened the door to suppressed evidence is a related, though distinct question from what the boundaries of the exclusionary rule should be. The Supreme Court has defined the scope of the exclusionary rule to the extent of holding suppressed evidence can be used to impeach a testifying defendant, but not to establish the prosecution's case-in-chief or to impeach other defense witnesses. (2) Besides the direct questions of scope are questions about how defendants may exploit the absence of suppressed evidence before a court will hold that the defendant opened the door to its admission. This Article criticizes recent decisions finding a defendant opens the door to suppressed evidence merely by highlighting the absence of that evidence or by offering other evidence to which the suppressed proof is relevant rebuttal. (3) It argues those decisions erroneously assume relevance, probative value, and unfair prejudice are the only factors that should influence this decision. While this is true enough for evidence originally excluded to promote accurate factfinding, it is not true for evidence excluded to promote other policy objectives or to respect other principles.

Whether and how a party can take advantage of the exclusion of suppressed evidence is a question whose answer depends upon a contextual analysis of how "opening the door" decisions affect the deterrence promoted by exclusion in the first instance, not upon whether they divert the factfinder in its quest for truth. Thus, courts contravene the prohibition against impeaching defense witnesses when they invoke Rule 403 of the Federal Rules of Evidence to preclude the defendant from admitting evidence that contradicts suppressed proof, because preclusion has the same effect as rebuttal. Similarly, courts improperly extend the prosecution's use of illegally-obtained evidence when they allow it to discourage counsel from arguing inferences the suppressed proof contradicts by permitting its admission if he does. In either case, the prosecution quickly learns obtaining evidence illegally has a payoff in excess of that contemplated by the Supreme Court. Prosecutors routinely find the suppressed evidence useful to deter or rebut defenses even when not introduced in the prosecution's case-in-chief or to impeach a testifying defendant. (4) This is precisely the result rejected by the Court in James v. Illinois because of the increased incentive to obtain the evidence illegally. (5)

It may seem obvious that factfinding accuracy or completeness is not itself sufficient reason to admit evidence whose exclusion was mandated in the first instance despite interference with--rather than in pursuit of--those goals. However, courts too frequently forget the point when they hold fairness or the integrity of the trial process justifies holding a defendant has taken improper advantage of evidence's suppression and thus invited its admission. (6) Using muscle memory to rule, they interpret fairness as adversarial fairness, which always counsels in favor of admitting relevant rebuttal. Similarly, they interpret the integrity of the trial process to require advocates to refrain from using evidence's exclusion to (mis)lead the factfinder to a conclusion inconsonant with the excluded evidence. That approach, too, always counsels in favor of admitting as rebuttal the evidence that was excluded in the first instance. Lost in the analysis is the effect holding the door opened has on the goal promoted by the exclusionary rule. Courts apparently assume no damage will be done if they allow the defendant to use exclusion only as a shield from illegally-obtained evidence, but not as a sword to advance an inference or elicit proof contradicted by the excluded evidence. (7)

This Article shows the question is more complex than the sword and shield metaphor suggests. Discouraging the defendant from arguing inferences from the proof's absence, or from presenting his own evidence that excluded evidence may contradict, imposes a cost on the defendant and creates a benefit for the prosecution that can interfere as unacceptably with the goals advanced by exclusion as allowing the evidence in the first instance. That is the lesson of ordinary evidence rules that, like the constitutional exclusionary rule, justify exclusion for reasons besides factfinding accuracy. They prohibit uses of evidence that interfere with goals besides accurate factfinding even when the protected party advances claims that make the excluded evidence particularly probative. As those rules show, there can be no general "opening the door" standard because the issue depends on the contextual effect on exclusion's goal. Questions about whether the door has been opened require courts to consider the same kind of factors that enter into framing exclusionary rules in the first place, not general notions of fairness and integrity or the metaphoric difference between using exclusion as a shield, not as a sword.

Part I shows how a court recently used a finding that counsel opened the door to weaken--indeed, effectively to ignore--a holding by the Supreme Court that specifically prohibits the use of suppressed evidence, even as impeachment or rebuttal. By failing to recognize how suppressed evidence is useful to deter as well as rebut defenses, courts fail to appreciate how ruling that a defendant opens the door to suppressed evidence by capitalizing on its absence can give the prosecution much, if not all, of the benefit that exclusion was meant to prevent.

Part II shows how courts apply an improperly broad view of what it takes to open the door to suppressed evidence when they treat such evidence as if it was excluded for reasons of factfinding accuracy. Instead, such decisions need to be made specifically to avoid undermining the goal of exclusion that has already been placed ahead of factfinding accuracy, even as some limited circumstances support finding defendants waived their protection against illegally-obtained evidence. The idea of taking unfair advantage of exclusion must respect the compromise to factfinding that the Court holds necessary to deter illegal investigative actions. Even just a few cases improperly holding counsel opened the door have a dramatic effect unless explicitly repudiated. The threat of forfeiting the defendant's immunity from suppressed evidence encourages defense counsel to avoid taking any advantage of the absence of the proof a court might possibly interpret as opening the door. Therefore, the prosecution will always benefit from foreclosing potential defenses unless courts reverse course to make clear how defendants can exploit the absence of the suppressed evidence without risking the evidence's admission.

Part III shows that a narrower view of opening the door in this circumstance is not at odds with the integrity of our factfinding process nor with the advocate's accepted ethical role within it. The integrity of that process is relative to the limited task of jurors: considering only the universe of evidence admitted at trial, rather than pursuing a self-directed quest for truth. Restrictions on the evidence juries hear reflect the systematic pursuit of justice of which accurate factfinding is not the exclusive component. Jurors, lawyers and judges fulfill critical yet limited roles in this pursuit even when they reach, advocate, or countenance verdicts that deviate from accurate factfinding in pursuit of other goals. Allowing the defense to emphasize the absence of suppressed evidence, therefore, can be a necessary part of the integrity of the factfinding process, not its antithesis.


    The assumption that defendants open the door to suppressed evidence when they increase its probativity by capitalizing on its absence to offer contrary evidence, or to argue a contrary inference, can effectively eviscerate the deterrent effect of exclusion. As a practical matter, the "opening the door" policy has its largest impact on incentives to conduct improper custodial interrogations, which are typically undertaken after the prosecution concludes it has or will have sufficient evidence besides that obtained from the interrogation to take the defendant to trial. (8) Still, the courts'...

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