Wednesday, May 26, 2021
Supreme Court of Colorado Finds Impeachment Exception to Exclusionary Rule Doesn't Cover Truthful But Misleading Testimony
The Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution protect against “unreasonable searches and seizures.” However, because the Fourth Amendment is silent regarding how this right is to be enforced, the Supreme Court adopted the “exclusionary rule,” which serves as a “deterrent sanction that bars the prosecution from introducing evidence obtained by way of a Fourth Amendment violation.”...The exclusionary rule's purpose is to deter future Fourth Amendment violations “by removing the incentive to disregard” the Amendment's constitutional guarantee....
Because the exclusionary rule bars the prosecution from introducing evidence obtained through a Fourth Amendment violation, there is tension between the Fourth Amendment rights the exclusionary rule protects and the future search and seizure violations it seeks to deter, on the one hand, and the courts' truth-seeking function, on the other. People v. Johnson, 2021 WL 2069732 (Colo. 2021).
Based on this tensions, courts have found that the exclusionary rule does not apply to the prosecution's use of evidence obtained in violation of the Fourth Amendment to impeach a defendant, i.e., show that her testimony is lacking in credibility. But does this impeachment exception apply to truthful testimony that could mislead the jury? That was the question of first impression addressed by the Supreme Court of Colorado in its recent opinion in Johnson.
In Johnson, Elmo Johnson
lived in an apartment with his sister, Toni Carrethers, and Carrethers's husband. One night, Johnson's girlfriend, Danielle Griego, stayed at the apartment and was shot and killed.
The next day, Griego's mother discovered Griego's body on a couch in the apartment. Johnson was laying next to Griego, unconscious due to his consumption of alcohol and drugs. Griego's mother called 911. Before police officers arrived, Carrethers picked up two shell casings that were near Griego's body, rinsed them, returned them to where she had found them, and then washed her hands.
Johnson was transported to the hospital, where officers collected swabs from his hands and face while he remained unconscious. These swabs tested positive for gunshot residue (“GSR”), as did swabs the police subsequently collected from Carrethers and Griego's mother. After he regained consciousness, Johnson denied killing Griego....[T]he prosecution charged Johnson with first degree murder. Before trial, Johnson moved to suppress the GSR evidence that the officers collected from his hands and face at the hospital without a warrant. The trial court granted Johnson's motion concerning the GSR evidence. In ruling, the trial court noted that it would not allow Johnson “to use the Fourth Amendment as both a shield and a sword.” Concerned that Johnson may “mislead[ ] the jury into believing that ... [he] was never tested or he was not positive” for GSR, the court indicated that if Johnson offered evidence regarding Carrethers's positive GSR test, he would open the door for the prosecution to admit his suppressed positive test results.
At trial, the court asked whether Johnson intended to introduce evidence that Carrethers tested positive for GSR. Johnson's counsel responded that he planned to do so as part of Johnson's alternate suspect defense. He explained that he would lay the proper foundation through two of the prosecution's witnesses: the crime scene investigator, who swabbed Carrethers for GSR, and the GSR analyst, who tested Carrethers's swabs.
The trial court ruled that if Johnson elected to introduce evidence of Carrethers's positive GSR test results, then the prosecution would be allowed, under CRE 403, to introduce evidence with respect to all the GSR test results, including Johnson's, notwithstanding the court's previous suppression order.
After he was convicted, Johnson appealed, claiming that this ruling violated the Fourth Amendment. The Supreme Court of Colorado agreed, concluding that
“[T]he [impeachment] exception cannot possibly permit the use of [suppressed] evidence to counter truthful testimony.”...We reach this conclusion because the expansion of the impeachment exception sought by the People would undermine the purpose of the exclusionary rule and chill defendants' rights to present a complete defense through truthful testimony.
Permitting the prosecution to introduce Johnson's GSR evidence could undermine the exclusionary rule's “sole purpose,” which is “to deter future Fourth Amendment violations.”