100 S. Ct. 1912 (1980), which permitted prosecutors to introduce illegally obtained evidence to impeach a defendant's "answers to questions put to him on cross-examination that are plainly within the scope of the defendant's direct examination." at 627.
The Supreme Court, however, declined to follow the Walder line of case in James v. Illinois, 493 U.S. 307, 107 L. Ed. 2d 676, 110 S. Ct. 648 (1990). There, the prosecution introduced eyewitness testimony that James shot the victim while wearing shoulder-length "reddish" hair in a slicked-back "butter" style. At trial, James's hair was short, black, and worn in a "natural" style. James produced a witness who testified that James wore short black hair on the day of the crime. In rebuttal, the prosecution was allowed to introduce James's suppressed statement in which he admitted to wearing long reddish hair on the day of the shooting.
In a five to four decision, the Supreme Court held that illegally obtained evidence could not be used to impeach defense witnesses other than the defendant himself. Justice Brennan wrote for the majority that, while the use of illegally seized evidence to impeach a defendant "generally discourages perjured testimony without discouraging truthful testimony," expanding the impeachment exception to encompass the testimony of all defense witness "would not have the same beneficial effects." Id. at 314.
Justice Brennan reasoned that whatever the case may be with respect to the defendant's testimony, the threat of a criminal prosecution for perjury is sufficient to deter defense witnesses from intentionally lying on a defendant's behalf. On the other hand, allowing defense witnesses to be impeached by illegally seized evidence would likely chill some defendants from putting forth their best defense. Because defendants "sometimes need to call 'reluctant' or 'hostile' witnesses who will not share the defendant's concern for avoiding statements that invite impeachment through contradiction," and also because "defendants often cannot trust even 'friendly' witnesses to testify without subjecting themselves to impeachment, simply due to insufficient care or attentiveness," the Supreme Court concluded that defendants, fearing the impeachment of their witnesses with illegally obtained evidence, will be more hesitant in calling witnesses who would otherwise offer probative evidence. James, 493 U.S. at 315.
Justice Brennan also concluded that the proposed expansion would significantly weaken the exclusionary rule's deterrent effect on police misconduct by vastly increasing the number of occasions on which such evidence could be used since many more defense witnesses take the stand than do defendants. "Due to the chilling effect identified above, illegally obtained evidence holds even greater value to the prosecution for each individual witness than for each defendant." Id. at 318.
The considerations underlying James are not applicable here. Unlike the James situation, the defendant himself is the real witness. As the Advisory Committee Note to Fed. R. of Evid. 806 aptly observes, "the declarant of a hearsay statement which is admitted in evidence is in effect a witness. His credibility should in fairness be subject to impeachment and support as though he had in fact testified." More significantly, the threat of a perjury prosecution does not pose any realistic deterrent to the introduction of out-of-court statements that are fabricated or false. The defense witness does not face a meaningful risk of a perjury conviction because, even if the out-of-court statement attributed to the defendant is fabricated, the only witness to the falsehood is the defendant. On the other hand, if the witness is accurately relating what the defendant said to him, then he is not subject to any prosecution even if the statement to which he is testifying is false. Of course, the prosecution of the defendant for perjury or obstruction of justice is even more unlikely here than when he testifies falsely under oath.
Moreover, in contrast to James, allowing illegally seized evidence to impeach the veracity of a defendant's out-of-court statement, is not likely to unfairly chill defendants from presenting their best defense. While in some circumstances a defendant might reasonably fear that a defense witness would intentionally or accidently make some statement in sufficient tension with the tainted evidence so as to allow the prosecutor to use that evidence for impeachment purposes, it is far less likely that a defense witness on direct examination would, through insufficient care or attentiveness, unexpectedly volunteer an out-of-court statement of the defendant's in conflict with the excluded evidence. While it may be of some concern to a defendant that the prosecutor would deliberately attempt to elicit an exculpatory statement made by the defendant for the purpose of impeaching it, the use of illegally seized evidence for impeachment in the present context could be limited to statements made by defense witness on direct examination.
While "inadmissibility of illegally obtained evidence must remain the rule and not the exception", James, 493 U.S. at 319, the balance of interests between the truth seeking function of the trial and the protections of the exclusionary rule support application of the impeachment exception where a defendant offers his own exculpatory statements through a defense witness. The concern of the James Court, that permitting impeachment of defense witnesses would significantly undermine the deterrent effect of the exclusionary rule, is simply not valid here. Because illegally seized evidence can already be used to impeach the in-court testimony of a defendant, allowing its use to impeach an out-of-court statement by the defendant does not provide an additional incentive for law enforcement officers to obtain evidence illegally.
Moreover, any such incentive is further reduced by the narrow area in which the illegally seized evidence may be used. The out-of-court statement of the defendant must not be elicited by the prosecutor, but must be an assertion intentionally offered on direct examination that is inconsistent with the otherwise inadmissible evidence. Unlike the broad rule allowing impeachment of any testimony offered by a defense witness, which James rejected, the more limited use of illegally seized evidence permitted here would not vastly increase the opportunity for impeachment. The suppressed evidence could be used only in the rare occasion where a defense witness offers an exculpatory out-of-court declaration by the defendant, which is not subject to an objection based on hearsay, or is admitted without objection.
Accordingly, the admission of the illegally obtained statement of Edward Trzaska in order to rebut the out-of-court statement offered by his son Kevin on direct examination, was a proper application of the impeachment exception to the exclusionary rule.
Edward R. Korman
United States District Judge
Dated: Brooklyn, New York
April 13, 1995