Lecture Notes on Proof Beyond a Reasonable Doubt PDF

Lecture Notes on Proof Beyond a Reasonable Doubt in Criminal Trials By Robert Longley. (Robert Longley is a U.S. government and history expert with over 30 years of experience in municipal government. He has written for ThoughtCo since 1997.) Updated August 04, 2019 What D...

Lecture Notes on Proof Beyond a Reasonable Doubt in Criminal Trials By Robert Longley. (Robert Longley is a U.S. government and history expert with over 30 years of experience in municipal government. He has written for ThoughtCo since 1997.) Updated August 04, 2019 What Does Proof Beyond a Reasonable Doubt Mean? In the United States court system, the fair and impartial delivery of justice is based on two fundamental tenets: That all persons accused of crimes are considered to be innocent until proven guilty, and that their guilt must be proven “beyond a reasonable doubt.” While the requirement that guilt must be proven beyond a reasonable doubt is meant to protect the rights of Americans charged with crimes, it often leaves juries with the momentous task of answering the often subjective question — how much doubt is “reasonable doubt?” Constitutional Basis for "Beyond a Reasonable Doubt" Under the Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution, persons accused of crimes are protected from “conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” The U.S. Supreme Court first acknowledged the concept in its decision on the 1880 case of Miles v. United States: “The evidence upon which a jury is justified in returning a verdict of guilty must be sufficient to produce a conviction of guilt, to the exclusion of all reasonable doubt.” While judges are required to instruct juries to apply the reasonable doubt standard, legal experts disagree on whether the jury should also be given a quantifiable definition of “reasonable doubt.” In the 1994 case of Victor v. Nebraska, the Supreme Court ruled that the reasonable doubt instructions given to juries must be clear, but declined to specify a standard set of such instructions. As a result of Victor v. Nebraska ruling, the various courts have created their own reasonable doubt instructions. For example, judges of the Ninth U.S. Circuit Court of Appeals instruct juries that, “A reasonable doubt is a doubt based upon reason and common sense and is not based purely on speculation. It may arise from a careful and impartial consideration of all the evidence, or from lack of evidence.” Considering the Quality of Evidence As part of their “careful and impartial consideration” of evidence presented during the trial, jurors must also evaluate the quality of that evidence. While first-hand evidence such as eyewitness testimony, surveillance tapes, and DNA matching help eliminate doubts of guilt, jurors assume — and are typically reminded by defense attorneys — that witnesses may lie, photographic evidence can be faked, and DNA samples can become tainted or mishandled. Short of voluntary or legally-obtained confessions, most evidence is open to being challenged as invalid or circumstantial, thus helping to establish “reasonable doubt” in the minds of the jurors. 1 "Reasonable" Does Not Mean "All" As in most other criminal courts, the Ninth U.S. Circuit Court also instructs jurors that proof beyond a reasonable doubt is a doubt that leaves them “firmly convinced” that the defendant is guilty. Perhaps most importantly, jurors in all courts are instructed that beyond a “reasonable” doubt does not mean beyond “all” doubt. As Ninth Circuit judges state it, “It is not required that the government (the prosecution) proves guilt beyond all possible doubt.” Finally, judges instruct jurors that after their “careful and impartial” consideration of the evidence they have seen, they are not convinced beyond a reasonable doubt that the defendant actually committed the crime as charged, it is their duty as jurors to find the defendant not guilty. Can "Reasonable" Be Quantified? Is it even possible to assign a definite numeric value to such a subjective, opinion-driven concept as reasonable doubt? Over the years, legal authorities have generally agreed that proof “beyond a reasonable doubt” requires jurors to be at least 98% to 99% certain that the evidence proves the defendant to be guilty. This is in contrast to civil trials on lawsuits, in which a lower standard of proof, known as a “preponderance of the evidence” is required. In civil trials, a party might prevail with little as 51% probability that events involved actually occurred as claimed. This rather wide discrepancy in the standard of proof required can be best explained by the fact that persons found guilty in criminal trials face far more severe potential punishment — from jail time to death — compared to the monetary penalties typically involved in civil trials. In general, defendants in criminal trials are afforded more constitutionally-ensured protections than defendants in civil trials. The "Reasonable Person" Element In criminal trials, jurors are often instructed to decide whether the defendant is guilty or not by applying an objective test in which the defendant’s actions are compared to those of a “reasonable person” acting under similar circumstances. Basically, would any other reasonable person have done the same things the defendant did? This “reasonable person” test is often applied in trials involving so-called “stand your ground” or “castle doctrine” laws that justify the use of deadly force in acts of self-defense. For example, would a reasonable person have also chosen to shoot his or her attacker under the same circumstances or not? Of course, such a “reasonable” person is little more than a fictional ideal based on the individual juror’s opinion of how a “typical” person, possessing ordinary knowledge and prudence, would act in certain circumstances. According to this standard, most jurors naturally tend to consider themselves to be reasonable people and thus judge the defendant’s conduct from a viewpoint of, “What would I have done?” Since the test of whether a person has acted as a reasonable person is an objective one, it does not take into account the particular abilities of the defendant. As a result, defendants who have shown a low level of intelligence or have habitually acted carelessly are held to the same 2 standards of conduct as more intelligent or careful persons, or as the ancient legal principle holds, “Ignorance of the law excuses no one.” Why the Guilty Sometimes Go Free If all persons accused of crimes must be considered innocent until proven guilty beyond a "reasonable doubt," and that even the slightest degree of doubt can sway even a "reasonable person’s" opinion of a defendant’s guilt, doesn’t the American criminal justice system occasionally allow guilty people to go free? Indeed, it does, but this is entirely by design. In crafting the various provisions of the Constitution protecting rights of the accused, the Framers felt it essential that America apply the same standard of justice expressed by renowned English jurist William Blackstone in his often-cited 1760s work, Commentaries on the Laws of England, “It is better that ten guilty persons escape than that one innocent suffer.” An example of the concept of reasonable doubt: The 1995 O.J. Simpson case provides a good example of the concept of reasonable doubt in practice. Simpson was accused of the murder of his ex-wife Nicole Brown Simpson and her friend Ron Goldman. There was a substantial amount of incriminating evidence against Simpson, including his DNA at the crime scene, blood in his car and eyewitnesses. To counter this mountain of evidence, Simpson assembled a legal “Dream Team” that set about trying to create doubts in the jurors’ minds about his guilt. One of the highlights of the trial occurred in the courtroom when Simpson tried on the bloody leather glove that was found at the murder scene, and showed his hand could not fit into it. In his closing arguments, lead defense counsel Johnnie Cochrane famously declared that “If it doesn’t fit, you must acquit.” He also listed 15 points of reasonable doubt in the case. After less than four days of deliberations, the jury found Simpson not guilty on both counts of murder. However, a year later, the families of both victims filed a wrongful death civil lawsuit against Simpson. Based on the lower “preponderance of the evidence” standard of proof, the jury found Simpson liable for the deaths and awarded the families $8.5 million in damages. Legal Standards of Proof By Ruth Maurice The following are the most common standards of proof in civil and criminal cases, from lowest to highest. The standard that applies depends on the type of case. The more serious the consequences, the higher the standard of proof is likely to be. Potential loss of liberty (jail or prison), for example, involves a higher standard of proof than a lawsuit for money. Some legal standards aren’t used by jurors at a trial, but by judges who must make determinations at pretrial hearings. In criminal cases, two such standards are reasonable suspicion and probable cause. These standards are most often at issue when defendants file 3 motions to suppress evidence. Preliminary hearings also involve a determination of probable cause. Substantial Evidence: At an administrative hearing, an administrative law judge (ALJ) reviews the decision of a government agency, such as the DMV or an unemployment agency. A citizen affected by the decision brings a challenge, and the ALJ reviews the decision. Appellate judges who in turn review administrative judges’ decisions often use the "substantial evidence" standard. This standard falls between probable cause and preponderance of the evidence, and requires more than a “mere scintilla of evidence.” Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389 (1971). Preponderance of the Evidence: The preponderance-of-the-evidence standard is the default for most civil lawsuits. In these cases, a plaintiff is typically suing a defendant for lost money because of acts like breaking a contract or causing a car accident (the money loss might be due to vehicle damage and medical bills, for example). Preponderance of the evidence is met if the trier of fact (judge or jury) believes the evidence shows the defendant is more likely than not—more than 50% likely to be—responsible. Clear and Convincing Evidence: The clear-and-convincing-evidence standard goes by descriptions such as “clear, cogent, unequivocal, satisfactory, convincing” evidence. Generally, this standard is reserved for civil lawsuits where something more than money is at stake, such as civil liberties. Examples include: restraining orders dependency cases (loss of parental rights) probate of wills, and conservatorships. (Conservatorship of Wendland, 26 Cal. 4th 519 (2001); Santosky v. Kramer, 455 U.S. 745 (1982).) “Clear and convincing” means the evidence is highly and substantially more likely to be true than untrue; the trier of fact must have an abiding conviction that the truth of the factual contention is highly probable. Colorado v. New Mexico, 467 U.S. 310 (1984). Beyond a Reasonable Doubt: ”Beyond a reasonable doubt” is the highest legal standard. This is the standard the U.S. Constitution requires the government to meet in order to prove a defendant guilty of a crime. In re Winship, 397 U.S. 358, 364 (1970). Courts over the years have debated the extent to which the government has to prove its case to meet this high standard. But it’s clear that, according to the standard, it’s not enough for the trier of fact to simply believe the defendant is guilty. Rather, the evidence must be so convincing that no reasonable person would ever question the defendant’s guilt. The standard requires that the evidence offer no logical explanation or conclusion other than that the defendant committed the crime. Courts sometimes describe this level of confidence in a verdict as a moral certainty. “Beyond a reasonable doubt” doesn’t mean, however, that the prosecution must eliminate all unreasonable doubts a jury could possibly have. Nor must the prosecution prove the case beyond a shadow of a doubt or to an absolute certainty. These would be impossible burdens because only witnesses to an alleged crime can be certain—and even then, not all witnesses 4  can be certain. Rather, this highest of standards requires—after consideration of all facts— only one logical conclusion: that the defendant is indeed guilty. What is “Beyond a Reasonable Doubt” in a Criminal Case? Adapted from the blog of Law Office of Thomas C. Thomasian, Esq., 2022 In a criminal matter, the State is claiming that a defendant broke the law. But simply making that claim is not enough for the State to penalize the defendant for the alleged violation. Just because the State is arguing that an offense happened does not necessarily mean that it did. To pursue criminal penalties, the State (or a prosecutor working on the State's behalf) must back up its claim with evidence or logic that the trier of fact (a judge or jury) can base its decision on. The prosecutor's support is the "proofs," and they must meet a specific standard to establish that the claim of an alleged violation is true. The standard of proof in a criminal case is beyond a reasonable doubt. Where Does the Burden of Proof Lie? For criminal cases, the burden of proof lies with the State. In other words, the prosecutor is the one who must convince the trier of fact that a criminal offense has occurred. Although the defendant has a chance to tell their side of the story, they are not necessarily proving that they are innocent (remember, in the American criminal justice system, those accused of crimes are presumed innocent). The defendant (or their criminal defense lawyer) works to cast doubt on the prosecution's arguments. By casting doubt, the defense attorney challenges the prosecutor's evidence by showing that some other reasonable explanation exists. A lawyer can cast doubt in several ways, including, but not limited to: Exposing procedural errors during the arrest and/or investigation process Challenging witness credibility Highlighting discrepancies in statements Demonstrating that the defendant had an alibi Showing that the defendant acted in self-defense or defense of others Establishing that the defendant was falsely accused Beyond a reasonable doubt means that the evidence is such that the trier of fact can conclude with virtual certainty that the defendant committed the alleged offense. That does not necessarily mean that all doubt is erased, but no other reasonable explanation exists based on the proof provided. It is the highest burden of proof in a legal matter. For instance, in a civil case, the standard of proof is a "preponderance of the evidence," which means it is more than 50% likely that the claims are true. The prosecutor must have sufficient evidence to prove guilt beyond a reasonable doubt. If they don't, the defendant should not be convicted. However, if the defendant is convicted based on insufficient evidence, they may be able appeal the judgment based on that reason. An appeal is a challenge to a verdict or sentence and ensures that the justice process was fair. 5  If the prosecutor has sufficient evidence linking the accused to the offense and they can present it persuasively, it is likely that the judge or jury will be convinced of the defendant's guilt. How Does Beyond a Reasonable Doubt Connect with the Elements of a Crime? As an example, all offenses in the Rhode Island General Laws are comprised of certain elements. Basically, the elements refer to the specific acts involved in a crime. For example, the following are the elements of shoplifting (R.I. General Law § 11-41-20(b)(1)): Taking possession of merchandise sold by a retail merchant, With the intent of depriving the merchant of any part of the merchandise's value When the prosecutor makes their case, they must prove all the elements of the offense beyond a reasonable doubt. Thus, for the shoplifting example, they must show that the defendant took something from a store. Also, they must prove that the defendant planned on keeping the merchant from using or selling any part of the item. If the prosecutor cannot prove all elements beyond a reasonable doubt, the trier of fact must return a not guilty verdict. How Does Beyond a Reasonable Doubt Differ from Reasonable Suspicion and Probable Cause? Note that beyond a reasonable doubt is different and separate from reasonable suspicion or probable cause. Reasonable suspicion and probable cause are relied upon in the earlier parts of a criminal matter, namely the stop, arrest, and investigation. Beyond a reasonable doubt comes into play during the prosecution phase. Essentially, reasonable suspicion is the standard affecting a police officer's decision to stop and detain someone. Probable cause is the standard that must be met before law enforcement officials can arrest someone, conduct a search, or obtain a warrant. It is a higher standard than reasonable suspicion but lower than beyond a reasonable doubt. Like beyond a reasonable doubt, if neither reasonable suspicion nor probable cause existed, the outcome of the defendant's case can be profoundly affected. Lack of either can be grounds for having evidence deemed inadmissible or even for having an entire case dismissed. 6 Lecture Notes on Due Process and Rights Guaranteed by the U.S. Constitution (material taken from Cliffnotes and revised by instructor) Introducing Defendants' Rights Both sides in The People of the State of California v. Orenthal James Simpson (1995), invoked the phrase “search for the truth.” Prosecutors claimed they were searching for the truth and that the defense was trying to hide the truth. Defense attorneys asserted that prosecutors were putting barriers in the path of finding the truth. Were both sides more interested in winning than in discovering the truth? Harvard law professor Alan Dershowitz argues that the criminal courts process features multiple goals. Seeking the truth is an important goal—did the defendant commit the crime that he or she is accused of committing? Protecting innocent citizens is a second goal. Precautions are taken at various stages in the processing of criminal cases so that innocent people aren't convicted. Ensuring fairness is a third goal. Courts in the United States are judged not only on the accuracy of their results, but also on the fairness of their process. Both the Fifth and the Fourteenth Amendments guarantee due process, or fundamental fairness under the law, to all citizens who are accused of crimes. What if truth were the only goal of the courts? Dershowitz argues that, if that were so, the criminal justice system would operate much differently than it does today. Police could torture suspects and their families until the suspects confessed. Police could enter citizens' homes randomly. Courts could force defendants to take the witness stand to testify against themselves. Prosecutors could try a citizen for the same crime over and over again until a jury returned a guilty verdict. Juries could be drawn from only a select segment of the community. Juries could convict on much less evidence than that which would produce proof beyond a reasonable doubt. The adage that “it's better to let 99 guilty people go free than convict one innocent person” expresses the essence of the criminal courts process. This philosophy is reflected in a number of fundamental defendants' rights. These rights level the playing field, giving a defendant a fair chance against the government—with its vast resources—in legal battles. Many of these rights trace their origins to the Bill of Rights, which acts as a restraint on governmental abuse of power. Criminal Procedure and the Constitution As far as they were concerned, Clayton Searle, a Los Angeles narcotics detective, and the federal drug agent with him were just doing their jobs on March 15, 1991, when they noticed a black man walking toward them. The pair had just arrested a suspected drug courier who they believed was there to pick up a shipment of cocaine. When the black man was about 40 feet away, he abruptly turned, set down his attaché case, and walked to a row of pay telephones. The two police officers moved in and began questioning their new suspect. A heated argument followed, which ended with the black man falling or being thrown to the floor. He finally was handcuffed and led off for questioning. 1 The suspect was Joe Morgan, a broadcaster for ESPN and a former Cincinnati Reds second baseman who was inducted into the National Baseball Hall of Fame. Morgan sued the agents and the city of Los Angeles for false arrest, illegal detention, battery, excessive use of force, false imprisonment, and intentional infliction of emotional distress. Morgan claimed the police had unfairly targeted him because of his race and because he fit the profile of a drug courier. A federal jury awarded Morgan $540,000 in this lawsuit. After the trial, Morgan told reporters, “I didn't do it for the money. I believe in law and order, but it has to be applied to the police as well as everyone else.” The late Justice William O. Douglas would agree with Joe Morgan. “A civilized system of law is as much concerned with the means employed to bring people to justice, as it is with ends,” Douglas once said, “A first principle of jurisprudence is that the ends do not justify the means.” Criminal Procedure Criminal procedure is a branch of constitutional law concerned with the rules of law governing the procedures by which authorities investigate, prosecute, and adjudicate crimes. Specific provisions of the U.S. Constitution restrict the police. In addition, state constitutions, federal and state statutes, court decisions, and administrative rules circumscribe how the police gather information and deal with criminal suspects. The framers of the U.S. Constitution sought to balance the government's interest in crime control with the privacy and liberty rights of innocent, suspected, and convicted individuals. Two provisions of the Constitution apply specifically to balancing police powers and citizens' rights—the Fourth and Fifth Amendments. The Fourth Amendment: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fifth Amendment: “No person … shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.” Interpretation of the Constitution Key words and phrases, such as “probable cause,” “unreasonable,” and “compelled,” need to be interpreted. Usually, the U.S. Supreme Court determines what the Fourth and Fifth Amendments mean. The Court decides, for example, whether the police must get prior judicial approval before undertaking a particular action or whether they can exercise discretion in choosing among alternative courses of action. Criminal Procedure as a Zero-Sum Game “Every time we make it easier to convict the guilty,” says Harvard legal scholar Alan Dershowitz, “we also make it easier to convict the innocent.” Making it easier to convict the guilty carries the costs of increasing the convictions of innocents and violating people's individual rights. In other words, there is a zero-sum relationship between crime control and due process. As we expand one, we diminish the other. 2 The Due Process Revolution and the Crime Control Counterrevolution During the 1960s, the Warren Court, led by Chief Justice Earl Warren, interpreted the Fourth and Fifth Amendments in ways that curtailed police powers and extended citizens' rights. Fourth and Fifth Amendment case law produced by the Warren Court's due process revolution (1961–1969) shielded Americans from police abuses of powers and protected individual rights. In the 1970s, 1980s, and 1990s, the composition of the Supreme Court changed. Liberal justices retired and Republican presidents Nixon, Reagan, and Bush named their replacements, leading to the emergence of a new conservative majority on the Court. During the 1970s, under Chief Justice Warren Burger, and then during the 1980s and 1990s, under Chief Justice William Rehnquist, the Court has been lax about enforcing the Fourth and Fifth Amendments. The national trend has been toward increasingly broad latitude for law enforcement. The justices have been inclined to let illegally obtained evidence come before a jury, for the reason that the jury needs to know the facts, however those facts were obtained. The Burger and Rehnquist Courts chipped away at rules established by the Warren Court to safeguard citizens' rights. The result has been an expansion of police powers and a contraction of citizens' rights. This crime control counterrevolution is part of a larger public policy agenda that conservative politicians have been advocating ever since the Warren Court revitalized the Fourth, Fifth, and Sixth Amendments in the 1960s. © 2020 Houghton Mifflin Harcourt. All rights reserved. THE CRIMINAL JUSTICE PROCESS: YOUR CONSTITUTIONAL RIGHTS Authored By: Carl Vinson Institute Excerpted from An Introduction to Law in Georgia, Third Edition, published by the Carl Vinson Institute of Government, 1998 (updated 2001). The Constitution of the United States protects basic rights throughout the criminal justice process. It: guarantees a fair process in all hearings guarantees equal treatment under the law provides for a pretrial hearing by a grand jury in felony cases outlaws a second trial for the same crime (double jeopardy) protects suspects from having to answer questions which could be used against them guarantees fair proceedings when people are threatened by a loss of life, liberty, or property by the government ensures compensation for people whose property is taken by the government protects people from unreasonable police searches and seizures sets requirements for search warrants requires a speedy and public trial by an impartial jury 3  requires someone accused of a crime to be informed of the charges and evidence requires that the accused be present when witnesses testify against him/her provides for the accused to have a lawyer and call witnesses in defense requires the courts to set reasonable and consistent bail requires the courts to suit the sentence to the crime Anyone arrested for a crime enters and is subject to the criminal justice process. Generally, the term criminal justice process includes all proceedings and virtually everything that happens from the time a person is suspected of committing a crime, through the prosecution, until the case is over. This includes formal arrest, preliminary hearings, grand jury indictments, arraignment, and trial. If the person is convicted at trial, the criminal justice process may continue through the appeals process. As a U.S. citizen, you have constitutional protections that are very important to the way you live. The government cannot violate your constitutional rights. A U.S. citizen has the protections of the U.S. Constitution, and also the protections of the state constitution in which they reside. In many ways, they overlap. However, it is not unusual to find greater protection in the state constitution than in its federal counterpart. The first ten (10) amendments to the U.S. Constitution are called the Bill of Rights. They are often referred to as the "fundamental freedoms." The Fourteenth Amendment to the Constitution requires the states, in prosecuting a suspected criminal, to abide by these rights in addition to any rights guaranteed by the state constitution. This amendment also guarantees all citizens equal protection of the laws. Fourteenth Amendment (1868), excerpt …nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. The Fourteenth Amendment requires states to provide due process of law in all actions including criminal laws. This is referred to as the Due Process Clause of the 14th Amendment. give equal protection to all citizens. This is referred to as the Equal Protection Clause of the 14th Amendment. Equal protection must be given to all classes of people. For example, two people are charged with the same crime: employee one works for the government; employee two doesn't. The Fourteenth Amendment guarantees that no preferential treatment is given to employee one because he or she works for the government. Likewise, the treatment of people and their sentences cannot be different, strictly based on their race or age. Regarding the criminal justice process, perhaps the most important constitutional right is the right to due process. This is guaranteed by the Fifth Amendment to the U.S. Constitution as well as in the state constitution. 4 You will often hear criminal defense lawyers protesting that the due process rights of their client are being ignored or violated. Frequently, persons accused of committing crimes are released on technical violations of their constitutional rights-very often, their right to due process. Due process at its most elementary level includes the right to be heard. In other words, the accused has a right to a trial and a right to put up evidence, a right to cross-examine witnesses against him or her, a right to testify if he or she chooses, a right to make people come to court by issuing a subpoena, etc. These are very important rights and are generally classified as due process rights. Fifth Amendment (1791) No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. The Fifth Amendment requires a pretrial hearing by a grand jury in felony cases. outlaws a second trial for the same crime (double jeopardy). protects suspects from having to answer questions which could be used against them. guarantees fair proceedings when people are threatened by a loss of life, liberty, or property by the government. ensures compensation for people whose property is taken by the government. The Fifth Amendment is extremely important. Not only does it guarantee all persons due process of the law, it also guarantees that no one will be subject to double jeopardy: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." This means that a person who is charged with a crime, pleads "not guilty," goes on trial, and is acquitted of the crime cannot be prosecuted a second time. The Fifth Amendment further protects a person from being forced to give testimony against him- or herself, "nor shall [any person] be compelled in any criminal case to be a witness against himself." This is what is meant when a suspect "takes the Fifth." A suspect never has to talk about a crime if that 5 testimony, statement, or confession will expose the suspect to criminal prosecution. In addition to these amendments, there are others that are important particularly in the criminal justice context. The Fourth Amendment deals with arrest and search and seizure (or the authority of the police to stop someone suspected of a crime and to search that person or his or her car). Fourth Amendment (1791) The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The Fourth Amendment protects people from unreasonable police searches and seizures. sets requirements for search warrants. The Sixth Amendment includes the rights to a speedy and public trial, to trial by jury, and to an attorney. Sixth Amendment (1791) In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. The Sixth Amendment guarantees an accused person the right to a speedy and public trial by an impartial jury. to be informed of the charges and evidence. to be present when witnesses testify against him/ her. to have a lawyer and call witnesses in defense. The Eighth Amendment addresses excessive bail. What is excessive? Would $100,000 bail be excessive in a misdemeanor case of marijuana possession? Absolutely. But, what about in a murder case? The Eighth Amendment also 6 prohibits inflicting cruel and unusual punishment. As a result of these protections, a person cannot be sentenced too harshly. Once in jail, he or she cannot be beaten or deprived of medical attention. Eighth Amendment (1791) Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. The Eighth Amendment requires judges to set reasonable and consistent bail. suit the sentence to the crime. 7  Lecture Notes on the Exclusionary Rule and the Fruit of the Poisonous Tree Doctrine (Article prepared by instructor Migdalia Castillo-Gerding, J.D., LL.M. Material taken and revised from Gilbert Law Summaries and Lawshelf Educational Media) The Fourth Amendment to the Constitution of the United States reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized." General Principles The exclusionary rule is a remedy for violations of a person’s Fourth, Fifth and Sixth Amendment rights. The basic principle of the exclusionary rule is that evidence obtained by an illegal search or seizure is not admissible in a criminal proceeding against the victim of the search or seizure as proof of guilt. The rule applies in both federal cases [Weeks v. United States, 232 U.S. 383 (1914)] and state cases [Mapp v. Ohio, 367 U.S. 643 (1961)]. The Fourth Amendment limitations apply to any governmental search or seizure. Accordingly, evidence unlawfully obtained by federal officers is inadmissible in state as well as federal cases, and vice versa. One important corollary to the exclusionary rule is the “fruit of the poisonous tree” doctrine. This rule holds that in addition to the material uncovered during the illegal search being inadmissible, any evidence that is later gathered as an indirect result of the illegal search will also be excluded. [Wong Sun v. United States, 371 U.S. 471 (1963)]. General Scope All evidence that has been illegally obtained must be excluded. In addition, the use of other evidence that has been acquired directly or indirectly as a result of an illegal search or arrest (called the tainted fruit of the poisonous tree) is not allowed. [Nardone v. United States, 308 U.S. 338 (1939); Wong Sun v. United States, 371 U.S. 471 (1963)] Example (1): The police illegally search the defendant’s car and find drugs. The drugs will be excluded as evidence in the case against the defendant in accordance with the exclusionary rule. Example (2): The police conduct an illegal search of the defendant’s home and find a map showing the location of a well-hidden, remotely located outdoor marijuana field. The police go to the field and seize the marijuana. Under the doctrine of "fruit of the poisonous tree," the marijuana will be excluded as evidence in the case against the defendant as it stemmed directly from an illegal search. Dissipation of the Taint Evidence otherwise not admissible may be allowed if the prosecution demonstrates that the taint has been removed. This may be accomplished in three ways: 1 (1) Inevitable discovery: If the police would have discovered the evidence regardless of their illegal action, the evidence will be admissible. The prosecution must show “inevitable discovery” by a preponderance of the evidence. If discovery of the evidence was "inevitable", the evidence may be admitted, as it was not then the illegal search that caused the evidence to be found. “Inevitable” is a strong word, and in order to admit evidence under this exception, a court must find that police would have discovered the evidence whether or not they conducted the unreasonable search. [People v. Fitzpatrick, 32 N.Y.2d 499 (1973); Nix v. Williams, 467 U.S. 431 (1984)] Example (1): The police conduct an illegal search of the defendant’s home and find a map showing the location of an outdoor marijuana field located 50 feet behind the loading dock of a busy commercial strip. The police go to the field and seize the marijuana. The marijuana may be admitted as evidence by a court. Although the police were led to the field by information discovered during an illegal search, a court could find that discovery was inevitable, given the field's proximity to heavily used areas and the fact that the field was not well hidden. Example (2): The police perform an illegal search of Fred’s residence and discover stolen goods. On the counter they find a notepad on which Fred wrote the following: Reminder - place newspaper ad “Computer stuff for sale; cheap and hot! Call Fred 555-1234.” Based on this, the police call the number and that leads them to more evidence against Fred. The discovery was not inevitable as the ad never ran. The evidence will be excluded. (2) Independent source: If the police obtained evidence from an independent source not connected to the illegal search or seizure, the evidence is admissible. [United States v. Crews, 445 U.S. 463 (1980)] Example: If police initially discover evidence during an illegal search of a warehouse, but subsequently discover the same evidence during a valid search, the evidence is admissible. However, to avoid the exclusionary rule, the second search must be totally independent of the first, illegal search. [Murray v. United States, 487 U.S. 533 (1988)] Example: Officer Brady illegally searches Donald’s barn and discovers documents identifying Donald as the culprit behind an internet scam. The next day a confidential informant e-mails Officer Brady the same documents. The documents are admissible as evidence because there was an independent source for the evidence besides the illegal search. (3) Confessions: The illegal taint is also dissipated if there is weak link between the illegal conduct by the police and the challenged evidence. Rationale: The purpose of the exclusionary rule is to deter police misconduct (e.g., illegal arrests) that would result if the police were allowed to use evidence obtained from such misconduct. If the link between the misconduct and the evidence is weak, application of the exclusionary rules serves little purpose since the police did not rely on the illegal conduct to obtain the evidence. Example: Police had probable cause to arrest the defendant for murder. They went to his home without a warrant and arrested him, which violates the Fourth Amendment. [Payton v. New York, 445 U.S. 573 (1980)]. The defendant confessed at home, and then the police took him to the police station, where he confessed again. The Supreme Court held that the first confession must be suppressed as the fruit of an illegal arrest (fruit of the poisonous tree), but the second confession is admissible because it is not a fruit of the unlawful arrest. Because the police had probable cause to arrest the defendant, they didn’t gain anything by the illegal arrest – they could have arrested him the moment he stepped outside of his house and then brought him to the station for a confession. Thus, the subsequent statement was not an exploitation of the illegal 2 entry, i.e., it was not a fruit of the fact that the defendant was arrested at home as opposed to someplace else. [New York v. Harris, 495 U.S. 14 (1990)] But compare: The defendant was arrested without probable cause and brought to the police station. The police read defendant his Miranda warnings three times and permitted him to see two friends. After being at the station for six hours, the defendant confessed. The Supreme Court held that the confession must be excluded because it was the direct result of the illegal arrest – if the defendant had not been arrested illegally, he could not have been in custody and probably he would not have confessed. [Taylor v. Alabama, 457 U.S. 687 (1982)] Enforcement of the Exclusionary Rule The defendant has a right to a suppression hearing outside the jury’s presence, at which a judge decides whether evidence or a confession is admissible. [Jackson v. Denno, 378 U.S. 368 (1964)] If the judge decides that the evidence or confession is admissible, the jury may consider it. A defendant has a right to testify at a suppression hearing, and if he does testify, his testimony may not be used against him at trial on the issue of guilt. [Simmons v. United States, 390 U.S. 377 (1968)] The government bears the burden of establishing admissibility of evidence or a confession by a preponderance of the evidence. [Lego v. Twomey, 404 U.S. 477 (1972)] Exceptions to the Exclusionary Rule (1) Impeachment: Illegally seized evidence may be useful to impeach the defendant’s credibility if he testifies in his own behalf at trial. A defendant’s voluntary confession may be used to impeach him even though he was not given the Miranda warnings before giving the confession.. [Harris v. New York, 401 U.S. 222 (1971)]. An involuntary confession may not be used for impeachment purposes. [Mincey v. Arizona, 437 U.S. 385 (1978)] (2) Physical Evidence: Illegally obtained physical evidence may be used to impeach the defendant’s answers to a prosecutor’s cross-examination questions. Example: At the defendant’s trial for cocaine smuggling, the defendant testified in his own defense. On cross- examination, the defendant denied having cut patches of cotton from one shirt and having sewed them to another shirt to make pockets to conceal cocaine. Furthermore, the defendant denied having a shirt with missing pockets in his luggage when arrested. Over the defendant’s objections, such a shirt found in the defendant’s luggage was allowed to be introduced at trial for the limited purpose of the jury assessing the defendant’s credibility. [United States v. Havens, 446 U.S. 620 (1980)] (3) Private Party Search: Courts will not exclude evidence illegally obtained by a private party acting independently of police direction. However, if the police request or encourage a private party to engage in an illegal search, the exclusionary rule applies. [Burdeau v. McDowell, 256 U.S. 465 (1921)] (4) Police Good Faith: The exclusionary rule does not apply when the police rely in good faith on case law later changed by another judicial opinion. [United States v. Peltier, 422 U.S. 531 (1975)], or on a facially valid statute or ordinance as it then exists, even if the law is later declared unconstitutional or changed by court decision. [Michigan v. DeFillippo, 443 U.S. 31 (1979)]. In addition, evidence will not be excluded where the police rely in good faith on a defective search warrant. [United States v. Leon, 468 U.S. 897 (1984); Massachusetts v. Sheppard, 468 U.S. 981 (1984)] 3 However, there are four exceptions to good faith reliance on a defective search warrant. A police officer cannot get the benefit of the good faith exception if: (a) The affidavit on which the warrant was issued was so lacking in probable cause that no reasonable officer would have relied on it; (b) The warrant is defective on its face (e.g. failure of the warrant to state with particularity the place to be search or the things to be seized), (c) The affiant lied to or misled the magistrate; or (d) The magistrate has wholly abandoned his judicial role. When a search is conducted with a good faith belief that it is a legal search, the evidence discovered may be admitted. [United States v. Leon, 468 U.S. 897 (1984)]. If the officer believes that a warrant is not required for a search, or conducts a search pursuant to a warrant, which he believes to be valid, the officer can be said to be acting in good faith. On the other hand, if he knows or should have known of some defect in the warrant, the good faith exception will not apply. Recently, in Herring v. United States, 555 U.S. 135 (2009), the Supreme Court made clear that in order “[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” In other words, when police are not deliberately violating the Fourth Amendment and are acting under the auspices that their conduct is permissible, suppression is not merited. Example (1): Officer Clark executes a search in accordance with a search warrant obtained from Judge Hatchet. Unknown to Officer Clark, Judge Hatchet issued the warrant after an incorrect finding of probable cause. Although the search was illegal, the evidence is not tainted and does not fall under the exclusionary rule because Officer Clark acted in good faith upon the judge’s finding. If otherwise relevant and admissible, the evidence may be considered. Example (2): Judge Doe issues a warrant based on Officer Ellen’s sworn testimony that he saw Al Bronco removing stolen shoes from his trunk and carrying them into his home in Big Town, California. The warrant is made out for “that property owned by Mr. Al Bronco in Big Town, California.” Unbeknownst to Judge Doe, Al owns several houses in Big Town, one in which his mother lives and the others which he rents out. Officer Ellen is aware of this, and executes the search of the intended home. Because the warrant is not "precise on its face”, Officer Ellen’s search cannot be said to be in good faith and this exception to the exclusionary rule will not apply. Any evidence discovered from the search or stemming therefrom will be excluded. (5) Grand Jury: Grand jury witnesses may not refuse to answer questions based on illegally seized evidence. [United States v. Calandra, 414 U.S. 338 (1974)]. However, grand jury witnesses may refuse to answer questions based on evidence obtained in violation of the federal wiretapping statute. [Gelbard v. United States, 408 U.S. 41 (1972)] (6) Civil Proceedings: The exclusionary rule does not bar the use of evidence illegally seized by an agent of one sovereign in the civil proceedings of another sovereign. [United States v. Janis, 428 U.S. 433 (1976)] Effect of Exclusionary Rule Violation Provided that a defendant has made a timely motion to suppress, it constitutes error for a court to admit illegal obtained evidence. Such an error requires reversal unless the error is determined to be “harmless.” [Chapman v. California, 386 U.S. 18 1967)] The prosecutor must 4 show beyond a reasonable doubt that the admission of the evidence that should have been excluded was harmless error and did not contribute to the conviction. Certain errors, such as a denial of the Sixth Amendment right to counsel at trial, are never harmless, but the admission of an illegally obtained confession may be harmless error if there is overwhelming evidence of guilt, such as other admissible confessions. [Milton v. Wainwright, 407 U.S. 371 (1972)] Useful Terms Probable Cause: The Constitution requires that an arrest (with or without an arrest warrant) be based on probable cause. This requirement is satisfied when, at the time of arrest, the facts and circumstances within the officers’ knowledge and of which they have reasonably trustworthy information are sufficient to warrant a prudent person to believe that the suspect had committed or was committing an offense. [Beck v. Ohio, 379 U.S. 89 (1964)] The police need not obtain a warrant before arresting s person in a public place. In fact, most arrests are made without a warrant (felonies and misdemeanors committed in the presence of the officer). However, police officer must have an arrest warrant to enter a person’s home to arrest him absent exigent (emergency) circumstances or consent. [Payton v. New York, 445 U.S. 573 (1980)] Admissible Evidence: Evidence permitted to be introduced at trial. Only relevant evidence is admissible, which means the evidence must tend to make more or less probable the existence of some fact material to the case, or some fact otherwise of consequence to making a determination in the case. Evidence that tends to establish facts from which one could then infer that some material fact is more or less probable is also admissible as relevant evidence. Excluded Evidence: Evidence that may be otherwise relevant and admissible but is not admitted and may not be considered in the decision-making process for some reason other than irrelevance (e.g., illegally obtained). Fruits of the Poisonous Tree Doctrine: Any evidence gathered as a result of an illegal search, even at a time later than the illegal search itself, will be excluded from evidence. Good Faith: A reasonable, honest belief lacking malice or ill intent and without intention to defraud. The concept of good faith appears in many areas of law, although it is intangible and determined based on the totality of the circumstances rather than some hard and fast rule. The Fourth Amendment and the 'Exclusionary Rule' The Fourth Amendment to the U.S. Constitution prohibits police officers from conducting unreasonable searches and seizures by requiring them to either have a valid warrant or probable cause. But, what happens if a police officer does conduct a search in violation of the Fourth Amendment and subsequently finds incriminating evidence? Well, that's when the "exclusionary rule" comes into play. The Development of the Exclusionary Rule For the more than 100 years after its ratification, the Fourth Amendment was of little value to criminal defendants because evidence seized by law enforcement in violation of the warrant or reasonableness requirements was still admissible during the defendant's prosecution. The U.S. Supreme Court dramatically changed Fourth Amendment jurisprudence in 1914, however, when it handed down its decision in Weeks v. United States. This case involved the 5 appeal of a defendant who had been convicted based on evidence that had been seized by a federal agent without a warrant or other constitutional justification. In reversing the conviction, the Supreme Court effectively created the exclusionary rule. Then, in 1961, the U.S. Supreme Court made the exclusionary rule applicable to the states with its decision in Mapp v. Ohio. Why Do We Have the Exclusionary Rule? Designed to deter police misconduct, the exclusionary rule enables courts to exclude incriminating evidence from being introduced at trial upon proof that the evidence was procured in violation of a constitutional provision. The rule allows defendants to challenge the admissibility of evidence by bringing a pre-trial motion to suppress the evidence. If the court allows the evidence to be introduced at trial and the jury votes to convict, the defendant can challenge the propriety of the trial court's decision denying the motion to suppress on appeal. If the defendant succeeds on appeal, however, the U.S. Supreme Court has ruled that double jeopardy principles do not bar retrial of the defendant because the trial court's error wasn't addressing the question of guilt or innocence. Nonetheless, obtaining a conviction in the second trial would be significantly more difficult if the evidence suppressed by the exclusionary rule is important to the prosecution. Companion to the Exclusionary Rule: Fruit of the Poisonous Tree A legal concept that's related to the exclusionary rule is the "fruit of the poisonous tree" doctrine. Under this doctrine, a court may exclude from trial not only evidence that itself was seized in violation of the U.S. Constitution, but also any other evidence that is derived from an illegal search. For example, suppose a defendant is arrested for kidnapping and later confesses to the crime. If a court subsequently declares that the arrest was unconstitutional, the confession will also be deemed tainted and ruled inadmissible at any prosecution of the defendant on the kidnapping charge. Created by Findlaw’s team of legal writers and editors. The Fruit of the Poisonous Tree Doctrine The “fruit of the poisonous tree” doctrine is an evidentiary rule that, together with the exclusionary rule, gives the Fourth Amendment of the Constitution its teeth. Prior to 1914, warrantless and other shady searches conducted by law enforcement were quite common in America and were detrimental to those facing criminal charges from the evidence obtained during the searches. However, in 1914, things started to change. The United States Supreme Court took up the case of Weeks v. United States, 232 U.S. 383, 34 S. Ct.341, 58 L. Ed. 652 (1914), wherein a warrantless search of a home belonging to a man named Fremont Weeks was searched and the evidence that was found was used to convict him of illegal gambling. The case reached the land’s highest court, where ultimately the justices ruled that evidence obtained in this manner was not able to be used in court. Weeks had his conviction overturned and the exclusionary rule was introduced. The exclusionary rule was the precursor to the fruit of the poisonous tree doctrine. This legal metaphor regards tainted evidence (fruit) obtained through illegal searches or other police misconduct (the poisonous tree) as inadmissible in court. For example, you are driving and are 6  stopped by the police because you were speeding. You are clearly not impaired by drugs or alcohol, yet the police ask to search your vehicle. You politely refuse to grant consent, yet the search is done anyway and the police find a pound of marijuana in the trunk of your car. A good criminal defense attorney should be able to have your charges dismissed because the search itself was illegal. This rule would also apply if, during questioning by police, a suspect asks for access to a lawyer but police ignore the request and keep questioning him or her. Hours later, under duress and tired from the interrogation, the suspect winds up confessing to robbing a bank. Such a confession is now tainted because the police failed to stop questioning the suspect after a request for an attorney was made. As with most rules, however, there are exceptions to this exclusion. The Four Main Exemptions 1. The evidence was found, at least in part, as a result of another untainted or independent source. 2. Despite the tainted source, the evidence would inevitably have been discovered anyway. 3. Attenuation exists between an illegal activity and its discovery by law enforcement. 4. While the search warrant (or lack thereof) was not intrinsically valid, it was executed by agents of the government who were found to be acting in good faith. As you can see, the rules regarding the admissibility of evidence in criminal cases are complex and subject to nuance and interpretation. Prosecutors will argue vociferously in court that the evidence should be introduced at trial, is not tainted and was legally obtained. A defendant without a criminal defense attorney in possession of a vast knowledge of evidentiary rules and exceptions is at a distinct disadvantage at trial. But hope is not lost if you are convicted on bad evidence, as this can be taken up on appeal with the conviction ultimately being overthrown by a higher court’s ruling. © 1995-2019 LawInfo, part of Thomson Reuters. What Does “Fruit of the Poisonous Tree” Mean in Criminal Proceedings? The “fruit of the poisonous tree” doctrine prevents the prosecution from admitting certain evidence into a criminal case after it has been tainted by a primary illegality. This doctrine is meant to remove illegally-acquired evidence from negatively impacting a criminal defendant. Background Information The “fruit of the poisonous tree” is an extension to the exclusionary rule. The exclusionary rule requires that evidence that is illegally obtained should be excluded from admission in a criminal trial. The fruit of the poisonous tree takes the assessment one step further by excluding evidence that stemmed from the primary illegality, the poisonous tree. For example, if there is an illegal interrogation that leads to physical evidence, the exclusionary rule prohibits the introduction of the interrogation in the criminal trial. Additionally, the physical evidence is excluded because it is the fruit of the illegal process. The purpose behind this doctrine is to deter police misconduct. The original illegal evidence is considered to be the poisonous tree, and any evidence that stems from this tree is similarly tainted by the poison. 7 Application The fruit of the poisonous tree doctrine applies to both physical evidence and live testimony that was obtained through illegal means. It also applies to evidence acquired directly from the illegal taint or indirectly from it, with the exceptions noted below. The most common way this doctrine is applied is through a defense motion to exclude evidence that would adversely affect the defendant’s case that derived from an unlawful search. Legal Standard The United States Supreme Court has decided a number of cases related to this doctrine. In the case of United States v. Rey, one justice stated that for the exclusion of evidence to be ordered, the police misconduct must have been “sufficiently deliberate” that future similar conduct would be deterred due to the exclusion and that such future deterrence would be worth the cost to the justice system. The doctrine was designed to deter police misconduct that is reckless, deliberate or grossly negligent. However, it can also be used to correct widespread systemic negligence. Independent Source Doctrine Even if evidence was originally discovered by an unlawful search, the evidence can still be admitted in some cases. This can occur when the same evidence is obtained in an independent manner that was not tainted by the primary illegality. The court assesses whether the evidence that is at stake was discovered by exploitation of the primary and initial illegality or if it was uncovered by independent means that are sufficiently purged of the primary illegality. Because evidence that is acquired through an independent source is not fruit of the poisonous tree, it is not required to be excluded. For example, in one case, an officer entered a home illegally without a valid search warrant. An application for a search warrant was later obtained that was based on factual information that did not rely on the officer’s illegal entry. Evidence was seized from the home. The court ruled that the evidence did not need to be excluded, despite the illegal search. The independent source doctrine is not affected by the public policy concerns of the” fruit of the poisonous tree” doctrine. For example, courts are not concerned with deterring future misconduct when the evidence is independently acquired without relation to the evidence being tainted. Instead, this doctrine allows police to return to the same position as they would have been had there never been any illegal taint. Other Exceptions One more exception to the fruit of the poisonous tree doctrine is inevitable discovery. This exception does not require the exclusion of the illegally-obtained evidence if it was inevitable that it would have eventually been discovered by law enforcement. This means that the police would have found the evidence even without the illegal search. An exception to the exclusionary rule itself is good faith. If the court finds that a law enforcement officer believed in good faith that a search was legal, the court may not exclude the evidence in the criminal trial. Provided by HG.org ©1996-2019 All Rights Reserved HG.org Legal Resources - HGExperts.com 8  Exceptions to the Fruit of the Poisonous Tree Doctrine As we all know, our criminal justice system (courts, law enforcement, jails/prisons) is not perfect, far from it, but it's the best we've got. A big part of what makes our system work at all are the laws, principles, and procedures put in place to create order. They are intended to ensure fairness in how laws are administered and how defendants are treated throughout the criminal justice process. The “fruits of the poisonous tree” doctrine, or rule, is designed to prevent illegal searches. It was created in 1920 as a result of a United States Supreme Court decision, Silverthorne Lumber Co. v. United States. This rule is an extension of the exclusionary rule which says that any evidence that is illegally seized cannot be used in court against the defendant. According to the Fourth Amendment to the Constitution, every citizen has the right to be secure in their persons and homes. What's most important to know for this particular issue is that a search of your body and/or personal property is illegal without a warrant or probable cause. If a cop finds a gun under the seat of your car, but had no reason to pull you over and search your car, the search would be deemed illegal and the gun -- in most cases -- would not be admissible in court. The illegal search itself is considered the poisonous tree, and the gun is considered the fruit. The “fruits of the poisonous tree” doctrine was established to prevent police misconduct, specifically as it relates to searches and seizures. Exceptions to the Rule There are quite a few exceptions to this doctrine, but we'll take a look at the four main categories. The first is the inevitable discovery exception. In this case, evidence can still be admitted into a court of law, even if it was illegally obtained, if the same evidence would have inevitably been discovered anyway. For example, you call 911 regarding a domestic issue. The officer arrives and you invite him into your home. The officer decides to search your home for drugs. During the search, he finds a bag of cocaine laying on the kitchen table in plain sight. Yes, the search was illegal; however, the drugs would have easily been discovered in the absence of an illegal search because it was lying there in clear view of the officer. The second exception is called attenuation. If the link between an illegal search and legally admissible evidence is thin, the evidence is admissible, even if the illegal search may have set in motion the chain of events that led to evidence being revealed. For example, in the case of Wong Sun vs. United States (1963), Sun was arrested for being accused of giving drugs to an acquaintance for distribution. Officers illegally searched his home and arrested him. Sun was released on his own recognizance. Sun voluntarily returned to the police station to tell the cops that he did provide an acquaintance with heroin, but he refused to sign any statements. His verbal statement was used in court against him, so his attorney decided to take this case all the way to the Supreme Court. The Supreme Court ruled that the search was illegal, but the statements that Sun voluntarily gave to officers could still be used in court since he was not forced to give this statement and his Miranda rights were read. In this case, the link between the illegal search and the confession was thin. The third exception is due to independent evidence. If evidence is first discovered illegally, but then legally found later, it is admissible in court. Say you are selling stolen motorcycles. An officer illegally pokes around the back room of your repair shop and finds a Faraday cage, which is used to disable tracking devices. She can't do anything about it. But if another officer later gets a tip from an informant and gets a warrant, they can come, do the search again, and 9 use any evidence they find in court. Note that the officer can't simply get a warrant by saying she saw your Faraday cage -- they have to be unconnected. The fourth major exception is called the good-faith exception. If officers believe they are conducting a legal search with a valid warrant, the evidence stands. Say that they are investigating you for counterfeiting and are awarded a warrant to search your house. They find incriminating records and bring you to court on the strength of the search. Examining the warrant, the judge finds that it's defective -- maybe it provided an inaccurate description of your house -- but not so defective that a 'reasonable person' should have spotted the error and applied for a new warrant. In any poisonous fruit case, there's room for human error. Police can claim that a warrant request is unrelated to a first, illegal search, even if the first search caused them to go looking for informants. They can also claim not to notice a defective warrant if they think time is of the essence. We rely on judges, and in some cases, juries, to make sure justice is served. Summary The “fruits of the poisonous tree” doctrine is a rule that was created to deter law enforcement from engaging in illegal searches and seizures. It protects the defendant from being convicted due to officers' lawbreaking. The rule says that if any evidence is acquired by illegal means, it cannot be used against the defendant in a court of law. There are, however, four major exceptions to this rule: inevitable discovery, attenuation, independent evidence and good faith. This doctrine, based on Fourth Amendment rights, helps to establish order and fairness within the justice system by regulating an officer's code of conduct. It helps to protect an individual's constitutional rights. Though our system is far from perfect, it is workable due to principles like the “fruits of the poisonous tree” doctrine. © Copyright 2003-2019 Study.com. All other trademarks and copyrights are the property of their respective owners. All rights reserved. Brief Summary of Relevant Cases Involving the Exclusionary Rule The exclusionary rule is a judge‐made rule that evidence obtained by the government in violation of a defendant's constitutional rights can't be used against him or her. By filing a motion to suppress before the trial asking the judge to rule the evidence as inadmissible, a defendant may prevent the prosecution from using illegally obtained evidence. The exclusionary rule usually applies to suppression of physical evidence (for example, a murder weapon, stolen property, or illegal drugs) that the police seize in violation of a defendant's Fourth Amendment right not to be subjected to unreasonable search and seizure. Weeks v. U.S. (1914) The exclusionary rule was invented in Weeks v. U.S. Weeks is premised on the idea that when the police exceed their constitutional authority in conducting a search, then that search must be null and void. At the time of Weeks, the Bill of Rights was considered to apply only to the federal government. Mapp v. Ohio (1961) In Mapp, the liberal Warren Court extended the Weeks exclusionary rule to state courts. The Warren Court held that the exclusionary rule is part of a citizen's Fourth Amendment right and 10 that the rule was needed because the states had not devised any effective remedies to the problem of arbitrary searches by police. Some police administrators and politicians denounced Mapp for handcuffing the police. U.S. v. Leon (1984) Lack of support for the rule among conservative U.S. Supreme Court justices who succeeded the liberal members of the Warren Court to the bench has limited the rule's impact. In a series of cases, the Court held that illegally obtained evidence could be used as the basis for grand jury questions, by the Internal Revenue Service in a civil tax proceeding, and in deportation hearings. In U.S. v. Leon, the Court carved out the good faith exception: if the police make an honest mistake in conducting a search—that is, if the police act on the basis of a search warrant which a court later declares invalid—the seized evidence is still admissible. Search and Seizure - The Exclusionary Rule and The Fruit Of The Poisonous Tree Doctrine A criminal defendant's claim of unreasonable search and seizure is usually heard in a suppression hearing before the presiding trial judge. This hearing is conducted before trial to determine what evidence will be suppressed or excluded from trial. When a judge deems a search unreasonable, he or she frequently applies the exclusionary rule. For the entire nineteenth century, a Fourth Amendment violation had little consequence. Evidence seized by law enforcement from a warrantless or otherwise unreasonable search was admissible at trial if the judge found it reliable. This made the Fourth Amendment essentially meaningless to criminal defendants. But in 1914, the U.S. Supreme Court devised a way to enforce the Fourth Amendment. In Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341 (1914), a federal agent conducted a warrantless search for evidence of gambling at the home of Fremont Weeks. The evidence seized in the search was used at trial, and Weeks was convicted. On appeal, the Supreme Court held that the Fourth Amendment barred the use of evidence secured through a warrantless search and seizure. Weeks's conviction was reversed and thus was born the exclusionary rule. The exclusionary rule is a judicially created remedy used to deter police misconduct in obtaining evidence. Under the exclusionary rule, a judge may exclude incriminating evidence from a criminal trial if there was police misconduct in obtaining the evidence. Without the evidence, the prosecutor may lose the case or drop the charges for lack of proof. This rule provides some substantive protection against illegal search and seizure. The exclusionary rule was constitutionally required only in federal court until Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684 (1961). In Mapp, the Court held that the exclusionary rule applied to state criminal proceedings through the Due Process Clause of the Fourteenth Amendment. Before the Mapp ruling, not all states excluded evidence obtained in violation of the Fourth Amendment. After Mapp, a defendant's claim of unreasonable search and seizure became commonplace in criminal prosecutions. The application of the exclusionary rule has been significantly limited by a “good faith” exception created by the Supreme Court in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405 (1984). Under the good faith exception, evidence obtained in violation of a person's Fourth Amendment rights will not be excluded from trial if the law enforcement officer, though mistaken, acts reasonably. For example, if an officer reasonably conducts a search relying on information that is later proved to be false, any evidence seized in the search will not be excluded if the officer acted in good faith, with a reasonable reliance on the information. The 11 Supreme Court has carved out this exception to the exclusionary rule because, according to a majority of the Court, the rule was designed to deter police misconduct, and excluding evidence when the police did not misbehave would not deter police misconduct. A companion to the exclusionary rule is the “fruit of the poisonous tree” doctrine, established by the Supreme Court in Nardone v. United States, 308 U.S. 338, 60 S. Ct. 266 (1939). Under this doctrine, a court may exclude from trial any evidence derived from the results of an illegal search. For example, assume that an illegal search has garnered evidence of illegal explosives. This evidence is then used to obtain a warrant to search the suspect's home. The exclusionary rule excludes the evidence initially used to obtain the search warrant, and the fruit of the poisonous tree doctrine excludes any evidence obtained in a search of the home. Citizens' Rights: A Barrier to Justice? Historically, the U.S. Supreme Court has tried to seek a balance between the rights of the accused and police powers to apprehend criminals. Critics assert that the exclusionary rule and Miranda warnings undermine effective law enforcement. The exclusionary rule and the Miranda warnings should be abolished. The Miranda rule blocks law enforcement from obtaining confessions during police interrogations. It sets free guilty criminals so they can victimize society again. If legal “technicalities” such as the exclusionary rule and the Miranda rule were eliminated, there would be less crime because more criminals would be locked up and restrained from preying upon the public. There are better means of enforcing constitutional protections than Miranda. One replacement for Miranda would be to videotape or record police interrogations. Miranda sends the wrong symbolic message: It is more important to protect criminals' rights than to protect innocent people. There is no empirical evidence to show that the exclusionary rule deters illegal police conduct. Expanding the legal liability of police departments and setting up compensation funds for money damages would make the police respect individual rights more than the exclusionary rule does. The costs of the exclusionary rule are too high—it impedes justice by freeing thousands of criminals each year and by establishing legal grounds for appeals that inundate appellate courts. The exclusionary rule and the Miranda warnings should not be abolished. The Miranda rule has not impeded the flow of confessions. Confessions are given as readily now as they were before Miranda. If the exclusionary rule and the Miranda rule were abolished, innocent persons would have fewer rights. It is impossible to protect the innocent without also protecting the guilty. If we eliminate Miranda, then police officers could ignore a suspect's request not to be interrogated. Miranda is necessary to protect the Fifth Amendment's prohibition against a person's being “compelled in any criminal case to be a witness against himself.” Miranda sends the right message: courts will not condone unlawful police conduct that produces confessions. This judicial integrity argument holds that a court should nullify and distance itself from a constitutional violation rather than admit the evidence and 12  allow the government to profit from its own wrongdoing. This denial of court assistance to perpetuate a constitutional wrong is needed to maintain respect for the Constitution and for the independence of the judiciary. The real value of the exclusionary rule is that it offers a vision of what constitutes good police work. A good police officer is one who looks to the Constitution for guidance in defining his or her mission. The exclusionary rule is less costly than its critics assume. One study estimates that only between 0.6 and 2.35 percent of all felony arrests are lost at any stage in the arrest disposition process (including trials and appeals) because of the exclusionary rule. (The rate of lost arrests is higher in drug possession offenses, but much lower in violent crime cases.) Moreover, the costs of abandoning the exclusionary rule are too high—despite its flaws, the exclusionary rule is the best we can realistically do in enforcing Fourth Amendment rights and protecting civil liberties. Evaluating the exclusionary rule and the Miranda rule Both the exclusionary rule and the Miranda rule block the police from acquiring valuable evidence in some cases. But the predominating view of most academics and most law enforcement professionals is that these rules have relatively little impact on the overall ability of the police to apprehend criminals. Miranda doesn't eliminate police interrogations or confessions. In spite of the Miranda warnings, a substantial number of suspects waive their rights and continue to talk with police. Positive effects of the exclusionary rule and Miranda include increasing citizens' awareness of their constitutional rights and inspiring the police to follow the Constitution. © 2020 Houghton Mifflin Harcourt. 13  Lecture Notes on Interrogations, Confessions and Miranda Warnings1 1. Introduction The Fifth Amendment to the U.S. Constitution provides that no one shall be compelled to be witnesses against themselves in criminal proceedings. In pretrial settings, additional rules and standards apply to confessions obtained by government interrogation of suspects. Such confessions must be voluntary, obtained in compliance with the Miranda decision, corroborated by independent evidence, and must not have violated the suspect’s Sixth Amendment right to counsel. Interrogation law is controversial, in large part because of the conflict between the Crime Control and Due Process models of the criminal justice system. Advocates of the Crime Control Model emphasize the truth-seeking function of criminal investigation and maintain that confessions are generally reliable. As the Supreme Court suggested in Ashcraft v. Tennessee,2 “It probably is the normal instinct to deny and conceal any shameful or guilty act.” Therefore, when a suspect admits guilt, most people assume that the admission is true. Proponents of the Due Process Model question this assumption precisely because confessing runs contrary to normal instincts. Why would a person admit guilt unless coerced into confessing by overbearing police interrogators? Due Process advocates are thus more skeptical of the trustworthiness of confessions and more suspicious of police coercion. 2. Voluntariness of Confessions In early English common law, all confessions, even those obtained by torture, were admissible at trial. Today, a confession must be a voluntary confession, which means that the statement is “the product of an essentially free and unconstrained choice by its maker.” The voluntariness requirement has its roots in common law, Due Process, and the Fifth Amendment itself. For example, an involuntary statement can be viewed as an invalid waiver of the Fifth Amendment privilege against self-incrimination. An involuntary statement also may be inherently untrustworthy under common law rules of evidence; or an involuntary statement may be obtained by government coercion that violates Due Process standards. The voluntariness of a confession is determined by considering the totality of the circumstances, which can be grouped into categories relating to the physical and psychological condition of the suspect, and by police tactics used during interrogation. 3. Physical and Psychological Factors The voluntariness of a confession is not determined by considering how a reasonably prudent person would react to interrogation. The appropriate question for the court is whether the particular individual freely and voluntarily made a decision to speak. Thus the court must consider all of the individual characteristics of the defendant, including (1) intelligence, (2) education, (3) prior experience with police, (4) use of drugs or alcohol prior to interrogation, (5) emotional or mental disability, and (6) whether the suspect was deprived of physical comforts such as sleep, food, or bathroom visits. The mere existence of any of the preceding factors does not render the confession involuntary, but the factors must be 1 Material taken and prepared by instructor from: Bacigal, Ronald, J., Criminal Law & Procedure: An Introduction. Thomson Publishing Company 1996 2 Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921 (1944) 1 weighed in determining whether the suspect was capable of making, and did in fact make, a voluntarily decision to speak. 4. Police Interrogation Tactics In addition to considering the suspect’s physical or psychological condition, the courts must consider whether the police interrogators utilized (1) violence or threats of violence, (2) trickery and deceit, (3) psychological pressures, (4) threats, (5) promises of lenience, or (6) prolonged and intimidating interrogation. The use of these tactics or some other form of police “misconduct” does not automatically render the confession involuntary, but it does require the court to assess what impact these tactics had on the voluntariness of the confession. For example, in Frazier v. Cupp3, although the police falsely informed a suspect that his cousin had implicated the suspect in the crime, the U.S. Supreme Court held that, standing alone, this lie did not render the confession inadmissible. All factors relating to police interrogation tactics and the suspect’s condition must be considered by the trial judge in determining whether the prosecution has proved that the confession was voluntary. The question of voluntariness is initially a question of fact for the trial judge, but ultimately, voluntariness is a legal question subject to independent judicial determination upon appeal. If the trial judge determines that a confession is involuntary, the confession cannot be admitted on the merits of the case. If the trial court finds the confession to be voluntary, the confession is admitted into evidence for the jury’s consideration. As with all evidence, however, the ultimate truth and persuasiveness of the confession are questions for the jury. Although the jury does not determine the issue of voluntariness (the admissibility of a confession), the same factors that the judge considered in determining voluntariness, may be considered by the jury when determining the believability or the weight to be given to the confession. In effect, the defendant enjoys “two bites of the apple” and may argue to the judge that the confession is inadmissible due to factors such as police coercion. Should the judge rule the confession to be admissible in evidence, the defendant may argue to the jury that they should not believe a confession obtained by police coercion. Even though the trial judge has determined that the confession is voluntary and admissible evidence, the judge may not limit the defendant’s right to challenge the confession’s reliability during the course of the trial. 5. The Miranda Decision Miranda v. Arizona4 remains the most controversial and most important case in the area of confessions. In essence, the Miranda decision held that: An individual subjected to custodial interrogation must be advised of certain rights. Although no precise language is required, the substance of the Miranda warnings is that the suspect be informed: (a) of the right to remain silent, (b) that any statements made may be used as evidence against her or him, © that she or he has the right to the presence of an attorney, and (d) that if she or he cannot afford an attorney, one will be appointed prior to any questioning. The prescribed warnings must be given regardless of the defendant’s possible familiarity with constitutional rights. (Even a Supreme Court Justice must be given Miranda warnings when interrogated by law enforcement officials.) 3 Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420 (1969). 4 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966). 2  An individual is free to exercise the right to remain silent by indicating in any manner at any time prior to or during the questioning that the individual wishes to remain silent. If the person does so, questioning must cease immediately. The prosecution bears a “heavy burden” of establishing that the defendant knowingly and intelligently waived the right to silence and chose to make a statement. An accused may not be penalized for exercising the privilege against self- incrimination, thus no adverse inference may be drawn when the suspect chooses to remain silent. (At trial, the prosecution may not suggest to the jury that only guilty people hide behind their Miranda rights.) Any statement obtained in violation of the Miranda decision is not admissible as part of the prosecution’s case-in-chief. In the pre-Miranda era defense lawyers were excluded from police interrogation rooms while the police questioned suspects in private. Perhaps because of the incommunicado nature of the interrogation process, the use of police brutality and the “third degree” were believed to be widespread practices. Miranda characterized interrogation practices as thrusting suspects into an “unfamiliar atmosphere and run through menacing police interrogation procedures” where suspects are “surrounded by antagonistic forces” and kept incommunicado in a “police- dominated atmosphere” where they are “deprived of every psychological advantage.” The Supreme Court concluded that such interrogation “exacts a heavy toll on individual liberty and trades on the weakness of the individuals.” Because Miranda was designed to deter improper interrogation techniques used by U.S. law enforcement officials, Miranda warnings are not required when an independent interrogation is conducted by officials of a foreign government or by private security police. The voluntariness standard, however, may apply to interrogation by such officials because of the possible unreliability of coerced confessions. 6. Custody for Purposes of Miranda The necessity of giving Miranda warnings exists only when an individual is questioned while in custody. According to the Miranda decision, custodial interrogation means “questioning initiated by law-enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Custodial interrogation may take place in a suspect’s own home as in Orozco v. Texas,5 when four police officers entered the suspect’s bedroom and questioned him at 4:00 a.m. But a suspect may not be in custody even though the suspect is at the police station. In Oregon v. Mathiason,6 the defendant was properly interrogated without Miranda warnings after he voluntarily came to the police station and after he was told that he was not under arrest. It is the custodial nature rather than the location of the interrogation that triggers the necessity of giving Miranda warnings. The U.S. Supreme Court has defined custody as “a formal arrest or restraint on freedom of movement associated with a formal arrest.” The question of custody is resolved by examining the following factors: Whether the suspect is questioned in familiar or neutral surroundings The number of police officers present The degree of physical restraint The duration and character of the interrogation Whether or when probable cause to arrest exists If the suspect has become the focus of the investigation 5 Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095 (1969). 6 Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711 (1977). 3  The language used by the officer to summon the individual The extent to which the suspect is confronted with evidence of guilt In determining whether a suspect was in custody, the above factors must be viewed from the vantage point of “how a reasonable man in the suspect’s position would have understood his situation.” Even a suspect in custody in a “technical sense” is not entitled to Miranda warnings if the suspect is unaware of being questioned by law enforcement officials. For example, placing an undercover agent in the suspect’s prison cell did not necessitate Miranda warnings because “when a suspect considers himself in the company of cellmates and not officers, the coercive atmosphere is lacking.” Furthermore, Miranda does not turn upon the nature of the offense –whether classified as a felony or misdemeanor. Instead, Miranda turns upon the nature of the custody imposed on a suspect; even arrests for minor traffic violations may necessitate Miranda warnings. However, custody for purposes of Miranda must be distinguished from seizures of a person for purposes of the Fourth Amendment. Roadside questioning of a motorist detained in a routine traffic stop is a seizure within the meaning of the Fourth Amendment because the motorist is “not free to leave.” But routine traffic stops do not implicate Miranda rights unless “a traffic stop exerts upon a detained person pressures that sufficiently impair his privilege against self- incrimination to require that he be warned of his constitutional rights.” Custody for purposes of Miranda thus requires a Fourth Amendment seizure “plus” a coercive atmosphere. 7. Interrogation Within the Meaning of Miranda Contrary to portrayals on television “cop” shows, Miranda warnings are not required as soon as the suspect is apprehended. Miranda warnings are required only when interrogation is to take place, which the Miranda decision defined as “questioning initiated by a law enforcement officers.” For example, when the police arrest a suspect, the suspect is transported to the police station, booked, and placed in a holding cell, but interrogation may be postponed until the detectives arrive. The suspect need not be given Miranda warnings until the detectives begin the actual interrogation. If the defendant initiates a conversation with the police prior to interrogation, the Miranda decision recognized that “there is no requirement that police stop a person who … states that he wishes to confess to a crime … Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” For example, no interrogation took place when the suspect volunteered to speak with his wife, knowing that a police officer was present and taping the conversation. The officer did not question the defendant or otherwise participate in the conversation. 8. Waiver of Miranda Rights A suspect may waive the right to remain silent and the right to counsel if such waiver is made voluntarily, knowingly, and intelligently. A voluntary waiver of rights, like the voluntariness of a confession, must be determined by the particular circumstances, including the physical and psychological condition of the suspect, and any trickery or deceit utilized by the police. Although the same factors bear upon voluntariness and waiver, the trial court must make separate and distinct findings regarding the voluntariness of the confession and the validity of any waiver. Waivers of Miranda rights “must not only be voluntary, but constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege.” The prosecution bears a “heavy burden” in demonstrating the requisite waiver, thus the police often have the suspect sign the “Miranda rights card” beside the statement, “Sign if you waive 4 these rights.” Such an express written waiver is “strong proof of the validity of waiver,” but even in the absence of an explicit waiver, a waiver can be “inferred from the actions and words of the person interrogated.” For example, in North Carolina v. Butler,7 the defendant refused to sign any waiver form but did agree to talk. This willingness to talk was deemed to be an implied waiver of defendant’s Miranda rights. When a waiver is declined and the suspect chooses to remain silent, this decision must be “scrupulously honored.” Moreover, the Miranda right to counsel precludes the police from re-approaching a defendant who requested a lawyer. A suspect who requests the assistance of counsel “is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police. 9. Corroboration of Confessions A voluntary confession obtained in compliance with Miranda and the Sixth Amendment right to counsel must still be corroborated by other evidence. At common law, corroboration usually consisted of independent proof of the corpus delicti (the body of the crime). The prosecution was required to establish, independent of the confession, that someone committed the offense, and only then could the confession be utilized to identify the offender. In Opper v. United States,8 however, the U.S. Supreme Court rejected the common law corroboration requirement that the prosecution must independently establish the corpus delicti. Instead, the Supreme Court held that the prosecution must produce substantial independent evidence which establishes the trustworthiness of the confession and supports the essential facts admitted. For example, suppose the defendant confesses to using cocaine in the defendant’s apartment, and a subsequent search of the apartment reveals drug paraphernalia, but no residue of cocaine. Under the common law standard, the corpus delicti of illegal drug use has not been established because no illegal drugs were actually found. But under the Opper standard, some independent evidence (the drug paraphernalia) corroborates the trustworthiness of the confession. 10. Suppression of Illegally Obtained Confessions An involuntary confession may be unreliable evidence and therefore inadmissible for any purpose. It cannot be used as part of the prosecution’s case–in-chief, nor can it be used to impeach the testimony of the defendant. However, admission of an illegally obtained confession may be harmless error if the remaining evidence establishes guilt beyond a reasonable doubt. If the defendant makes an involuntary confession, any subsequent confession is presumed to be caused by or derived from the first confession. For example, once the defendant let “the cat out of the bag” in a first confession, the defendant would then have little point in refusing to repeat the statement in a second confession. However, strong and clear evidence may establish that a subsequent confession was not induced by the initial confession. Any statement obtained in violation of Miranda taints all derivative evidence except guilty pleas. Although statements obtained in violation of Miranda cannot be introduced as part of the prosecution’s case-in-chief, such statements can be used to impeach a defendant whose trial testimony is inconsistent with any pretrial statement. Such situations arise when the defendant “opens the door” to impeachment by testifying at trial. For example, when the defendant in Harris v. New York9 testified that he had not possessed heroin, the prosecution introduced an otherwise inadmissible confession (admitting 7 North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755 (1979). 8 Opper v. United States, 348 U.S. 84, 75 S.Ct. 158 (1954). 9 Harris v. New York, 401 U.S. 222, 91 S.Ct. 643 (1971). 5 possession of heroin) as an inconsistent statement which impeached the defendant’s credibility as a witness. The U.S. Supreme Court stated: The privilege to testify in one’s defense cannot be construed to include the right to commit perjury. Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. A number of cases have recognized situations in which the defendant’s silence may or may not be used to impeach trial testimony. Silence aft