The day after a shooting which left one of a group of eight boys
dead and another seriously injured, police took petitioner James
into custody as a suspect. James, who then had black curly hair,
admitted under police questioning that the previous day his hair
had been reddish-brown, long, and combed straight back, and that he
had just dyed and curled it in order to change his appearance.
After James was indicted for murder and attempted murder, the trial
court sustained his motion to suppress the statements about his
hair as fruit of an unlawful arrest. At trial, five members of the
group of boys testified that the shooter had slicked-back,
shoulder-length, reddish hair, and that they had seen James several
weeks earlier with hair that color and style. Each boy identified
James as the shooter even though at trial he had black hair worn in
a "natural" style. James did not testify in his defense, but called
one Henderson, who testified that, on the day of the shooting James
had had black hair. The court permitted the State to introduce
James' illegally obtained statements to impeach Henderson's
testimony. James was convicted on both counts. The Illinois
Appellate Court reversed the convictions on the ground that the
exclusionary rule barred the admission of the illegally obtained
statements for the purpose of impeaching a defense witness'
testimony. The State Supreme Court reversed, reasoning that the
impeachment exception to the exclusionary rule -- which permits the
prosecution to introduce illegally obtained evidence to impeach the
defendant's own testimony -- should be expanded to include the
testimony of other defense witnesses in order to deter the
defendant from engaging in perjury "by proxy."
Held: The State Supreme Court erred in expanding the
impeachment exception to encompass the testimony of all defense
witnesses. Such expansion would frustrate, rather than further, the
purposes underlying the exclusionary rule. The truthseeking
rationale supporting the impeachment of defendants does not apply
with equal force to other witnesses. The State Supreme Court's
"perjury by proxy" premise is suspect, since the threat of a
criminal prosecution for perjury is far more likely to deter a
witness from intentionally lying than to deter a defendant, already
facing conviction, from lying on his own behalf. Moreover, some
defendants likely would be chilled from calling witnesses who would
otherwise offer probative evidence out of fear that those witnesses
might make
Page 493 U. S. 308
some statement in sufficient tension with the tainted evidence
to allow the prosecutor to introduce that evidence for impeachment.
Finally, expansion of the exception would significantly weaken the
exclusionary rule's deterrent effect on police misconduct by
enhancing the expected value to the prosecution of illegally
obtained evidence, both by vastly increasing the number of
occasions on which such evidence could be used and also, due to the
chilling effect, by deterring defendants from calling witnesses in
the first place, and thereby keeping exculpatory evidence from the
jury. The exclusion of illegal evidence from the prosecution's case
in chief would not provide sufficient deterrence to protect the
privacy interests underlying the rule. When police officers
confront opportunities to obtain illegal evidence after they have
legally obtained sufficient evidence to sustain a
prima
facie case, excluding such evidence from only the case in
chief would leave officers with little to lose and much to gain by
overstepping the constitutional limits on evidence gathering. Pp.
493 U. S.
311-319.
123 Ill. 2d
523, 124 Ill.Dec. 35,
528 N.E.2d
723, reversed and remanded.
BRENNAN, J., delivered the opinion of the Court, in which WHITE,
MARSHALL, BLACKMUN, and STEVENS, JJ., joined. STEVENS, J., filed a
concurring opinion,
post, p.
493 U. S. 320.
KENNEDY, J., filed a dissenting opinion, in which REHNQUIST, C.J.,
and O'CONNOR and SCALIA, JJ., joined,
post, p.
493 U. S.
322.
Justice BRENNAN delivered the opinion of the Court.
The impeachment exception to the exclusionary rule permits the
prosecution in a criminal proceeding to introduce illegally
Page 493 U. S. 309
obtained evidence to impeach the defendant's own testimony. The
Illinois Supreme Court extended this exception to permit the
prosecution to impeach the testimony of all defense witnesses with
illegally obtained evidence.
123 Ill. 2d
523, 124 Ill.Dec. 35,
528 N.E.2d
723 (1988). Finding this extension inconsistent with the
balance of values underlying our previous applications of the
exclusionary rule, we reverse.
I
On the night of August 30, 1982, eight young boys returning home
from a party were confronted by a trio of other boys who demanded
money. When the eight boys refused to comply, one member of the
trio produced a gun and fired into the larger group, killing one
boy and seriously injuring another. When the police arrived, the
remaining members of the larger group provided eyewitness accounts
of the event and descriptions of the perpetrators.
The next evening, two detectives of the Chicago Police
Department took 15-year-old Darryl James into custody as a suspect
in the shooting. James was found at his mother's beauty parlor
sitting under a hair dryer; when he emerged, his hair was black and
curly. After placing James in their car, the detectives questioned
him about his prior hair color. He responded that the previous day
his hair had been reddish-brown, long, and combed straight back.
The detectives questioned James again later at the police station,
and he further stated that he had gone to the beauty parlor in
order to have his hair "dyed black and curled in order to change
his appearance." App. 11.
The State subsequently indicted James for murder and attempted
murder. Prior to trial, James moved to suppress the statements
regarding his hair, contending that they were the fruit of a Fourth
Amendment violation because the detectives lacked probable cause
for his warrantless arrest. After an evidentiary hearing, the trial
court sustained this
Page 493 U. S. 310
motion and ruled that the statements would be inadmissible at
trial.
At trial, five members of the larger group of boys testified for
the State, and each made an in-court identification of the
defendant. Each testified that the person responsible for the
shooting had "reddish" hair, worn shoulder length in a slicked-back
"butter" style. Each also recalled having seen James several weeks
earlier at a parade, at which time James had the aforementioned
hair color and style. At trial, however, his hair was black and
worn in a "natural" style. Despite the discrepancy between the
witnesses' description and his present appearance, the witnesses
stood firm in their conviction that James had been present and had
fired the shots.
James did not testify in his own defense. He called as a witness
Jewel Henderson, a friend of his family. Henderson testified that,
on the day of the shooting, she had taken James to register for
high school and that, at that time, his hair was black. The State
then sought, over James' objection, to introduce his illegally
obtained statements as a means of impeaching the credibility of
Henderson's testimony. After determining that the suppressed
statements had been made voluntarily, the trial court overruled
James' objection. One of the interrogating detectives then reported
James' prior admissions that he had reddish hair the night of the
shooting and he dyed and curled his hair the next day in order to
change his appearance. James ultimately was convicted of both
murder and attempted murder and sentenced to 30 years'
imprisonment.
On appeal, the Illinois Appellate Court reversed James'
convictions and ordered a new trial. 153 Ill.App.3d 131, 106
Ill.Dec. 327, 505 N.E.2d 1118 (1987). The appellate court held that
the exclusionary rule barred admission of James' illegally obtained
statements for the purpose of impeaching a defense witness'
testimony, and that the resulting constitutional error was not
harmless. However, the Illinois Supreme Court reversed.
Page 493 U. S. 311
The court reasoned that, in order to deter the defendant from
engaging in perjury "by proxy," the impeachment exception to the
exclusionary rule ought to be expanded to allow the State to
introduce illegally obtained evidence to impeach the testimony of
defense witnesses other than the defendant himself. The court
therefore ordered James' convictions reinstated. We granted
certiorari. 489 U.S. 1010 (1989).
II
"There is no gainsaying that arriving at the truth is a
fundamental goal of our legal system."
United States v.
Havens, 446 U. S. 620,
446 U. S. 626
(1980). But various constitutional rules limit the means by which
government may conduct this search for truth in order to promote
other values embraced by the Framers and cherished throughout our
Nation's history.
"Ever since its inception, the rule excluding evidence seized in
violation of the Fourth Amendment has been recognized as a
principal mode of discouraging lawless police conduct. . . .
[W]ithout it, the constitutional guarantee against unreasonable
searches and seizures would be a mere 'form of words.'"
Terry v. Ohio, 392 U. S. 1,
392 U. S. 12
(1968), quoting
Mapp v. Ohio, 367 U.
S. 643,
367 U. S. 655
(1961). The occasional suppression of illegally obtained yet
probative evidence has long been considered a necessary cost of
preserving overriding constitutional values:
"[T]here is nothing new in the realization that the Constitution
sometimes insulates the criminality of a few in order to protect
the privacy of us all."
Arizona v. Hicks, 480 U. S. 321,
480 U. S. 329
(1987).
This Court has carved out exceptions to the exclusionary rule,
however, where the introduction of reliable and probative evidence
would significantly further the truthseeking function of a criminal
trial and the likelihood that admissibility of such evidence would
encourage police misconduct is but a "speculative possibility."
Harris v. New
York, 401 U.S.
Page 493 U. S. 312
222,
401 U. S. 225
(1971). [
Footnote 1] One
exception to the rule permits prosecutors to introduce illegally
obtained evidence for the limited purpose of impeaching the
credibility of the defendant's own testimony. This Court first
recognized this exception in
Walder v. United States,
347 U. S. 62
(1954), permitting the prosecutor to introduce into evidence heroin
obtained through an illegal search to undermine the credibility of
the defendant's claim that he had never possessed narcotics. The
Court explained that a defendant
"must be free to deny all the elements of the case against him
without thereby giving leave to the Government to introduce by way
of rebuttal evidence illegally secured by it, and therefore not
available for its case in chief. Beyond that, however, there is
hardly justification for letting the defendant affirmatively resort
to perjurious testimony in reliance on the Government's disability
to challenge his credibility."
Id. at
347 U. S. 65. In
Harns v. New York, supra, and
Oregon v. Hass,
420 U. S. 714
(1975), the Court applied the exception to permit
Page 493 U. S. 313
prosecutors to impeach defendants using incriminating yet
voluntary and reliable statements elicited in violation of
Miranda requirements. [
Footnote 2] Finally, in
United States v. Havens,
supra, the Court expanded the exception to permit prosecutors
to introduce illegally obtained evidence in order to impeach a
defendant's "answers to questions put to him on cross-examination
that are plainly within the scope of the defendant's direct
examination."
Id. 446 U.S. at
446 U. S.
627.
This Court insisted throughout this line of cases that
"evidence that has been illegally obtained . . . is inadmissible
on the government's direct case, or otherwise, as substantive
evidence of guilt."
Id. at 628. [
Footnote
3] However, because the Court believed that permitting the use
of such evidence to impeach defendants' testimony would further the
goal of truthseeking by preventing defendants from perverting the
exclusionary rule "
into a license to use perjury by way of a
defense,'" id. at
446 U. S. 626 (citation omitted), and because the Court
further believed that permitting such use would create only a
"speculative possibility that impermissible police conduct will be
encouraged thereby," Harris, supra, 401 U.S. at
401 U. S. 225,
the Court concluded that the balance of values underlying the
exclusionary rule justified an exception covering impeachment of
defendants' testimony.
III
In this case, the Illinois Supreme Court held that our balancing
approach in
Walder and its progeny justifies expanding the
scope of the impeachment exception to permit prosecutors to use
illegally obtained evidence to impeach the credibility of defense
witnesses. We disagree. Expanding the class of impeachable
witnesses from the defendant alone to all defense witnesses would
create different incentives affecting the behavior of both
defendants and law enforcement officers. As a result, this
expansion would not promote the truthseeking function to the same
extent as did creation of the original exception, and yet it would
significantly undermine
Page 493 U. S. 314
the deterrent effect of the general exclusionary rule. Hence, we
believe that this proposed expansion would frustrate, rather than
further, the purposes underlying the exclusionary rule.
The previously recognized exception penalizes defendants for
committing perjury by allowing the prosecution to expose their
perjury through impeachment using illegally obtained evidence. Thus
defendants are discouraged in the first instance from
"affirmatively resort[ing] to perjurious testimony."
Walder,
supra, 347 U.S. at
347 U. S. 65.
But the exception leaves defendants free to testify truthfully on
their own behalf; they can offer probative and exculpatory evidence
to the jury without opening the door to impeachment by carefully
avoiding any statements that directly contradict the suppressed
evidence. The exception thus generally discourages perjured
testimony without discouraging truthful testimony.
In contrast, expanding the impeachment exception to encompass
the testimony of all defense witnesses would not have the same
beneficial effects. First, the mere threat of a subsequent criminal
prosecution for perjury is far more likely to deter a witness from
intentionally lying on a defendant's behalf than to deter a
defendant, already facing conviction for the underlying offense,
from lying on his own behalf. Hence the Illinois Supreme Court's
underlying premise that a defendant frustrated by our previous
impeachment exception can easily find a witness to engage in
"perjury by proxy" is suspect. [
Footnote 4]
More significantly, expanding the impeachment exception to
encompass the testimony of all defense witnesses likely would chill
some defendants from presenting their best defense
Page 493 U. S. 315
-- and sometimes any defense at all -- through the testimony of
others. Whenever police obtained evidence illegally, defendants
would have to assess prior to trial the likelihood that the
evidence would be admitted to impeach the otherwise favorable
testimony of any witness they call. Defendants might reasonably
fear that one or more of their witnesses, in a position to offer
truthful and favorable testimony, would also make some statement in
sufficient tension with the tainted evidence to allow the
prosecutor to introduce that evidence for impeachment. First,
defendants sometimes need to call "reluctant" or "hostile"
witnesses to provide reliable and probative exculpatory testimony,
and such witnesses likely will not share the defendants' concern
for avoiding statements that invite impeachment through
contradictory evidence. Moreover, defendants often cannot trust
even "friendly" witnesses to testify without subjecting themselves
to impeachment, simply due to insufficient care or attentiveness.
This concern is magnified in those occasional situations when
defendants must call witnesses to testify despite having had only a
limited opportunity to consult with or prepare them in advance. For
these reasons, we have recognized in a variety of contexts that a
party "cannot be absolutely certain that his witnesses will testify
as expected."
Brooks v. Tennessee, 406 U.
S. 605,
406 U. S. 609
(1972). [
Footnote 5] As a
result,
Page 493 U. S. 316
an expanded impeachment exception likely would chill some
defendants from calling witnesses who would otherwise offer
probative evidence. [
Footnote
6]
Page 493 U. S. 317
This realization alters the balance of values underlying the
current impeachment exception governing defendants' testimony. Our
prior cases make clear that defendants ought not be able to
"pervert" the exclusion of illegally obtained
Page 493 U. S. 318
evidence into a shield for perjury, but it seems no more
appropriate for the State to brandish such evidence as a sword with
which to dissuade defendants from presenting a meaningful defense
through other witnesses. Given the potential chill created by
expanding the impeachment exception, the conceded gains to the
truth-seeking process from discouraging or disclosing perjured
testimony would be offset to some extent by the concomitant loss of
probative witness testimony. Thus, the truth-seeking rationale
supporting the impeachment of defendants in
Walder and its
progeny does not apply to other witnesses with equal force.
Moreover, the proposed expansion of the current impeachment
exception would significantly weaken the exclusionary rule's
deterrent effect on police misconduct. This Court has characterized
as a mere "speculative possibility,"
Harris v. New York,
401 U.S. at
401 U. S. 225,
the likelihood that permitting prosecutors to impeach defendants
with illegally obtained evidence would encourage police misconduct.
Law enforcement officers will think it unlikely that the defendant
will first decide to testify at trial and will also open the door
inadvertently to admission of any illegally obtained evidence.
Hence, the officers' incentive to acquire evidence through illegal
means is quite weak.
In contrast, expanding the impeachment exception to
all
defense witnesses would significantly enhance the expected value to
the prosecution of illegally obtained evidence. First, this
expansion would vastly increase the number of occasions on which
such evidence could be used. Defense witnesses easily outnumber
testifying defendants, both because many defendants do not testify
themselves and because many, if not most, defendants call multiple
witnesses on their behalf. Moreover, due to the chilling effect
identified above,
see supra at
493 U. S.
315-316, illegally obtained evidence holds even greater
value to the prosecution for each individual witness than for each
defendant. The prosecutor's access to impeachment evidence would
not just deter perjury; it would also deter defendants from calling
witnesses in the first place, thereby keeping from the jury much
probative exculpatory evidence. For both of these reasons, police
officers and their superiors would recognize that obtaining
evidence through illegal means stacks the deck heavily in the
prosecution's favor. It is thus far more than a "speculative
possibility" that police misconduct will be encouraged by
permitting such use of illegally obtained evidence.
The United States argues that this result is constitutionally
acceptable because excluding illegally obtained evidence solely
from the prosecution's case in chief would still provide a quantum
of deterrence sufficient to protect the privacy interests
underlying the exclusionary rule. [
Footnote 7] We disagree. Of course, a police officer might
in certain situations believe that obtaining particular evidence
through illegal means, resulting
Page 493 U. S. 319
sulting in its suppression from the case in chief, would prevent
the prosecution from establishing a
prima facie case to
take to a jury. In such situations, the officer likely would be
deterred from obtaining the evidence illegally for fear of
jeopardizing the entire case. But much if not most of the time,
police officers confront opportunities to obtain evidence illegally
after they have already legally obtained (or know that they have
other means of legally obtaining) sufficient evidence to sustain a
prima facie case. In these situations, a rule requiring
exclusion of illegally obtained evidence from only the government's
case in chief would leave officers with little to lose and much to
gain by overstepping constitutional limits on evidence gathering.
[
Footnote 8] Narrowing the
exclusionary rule in this manner, therefore, would significantly
undermine the rule's ability "to compel respect for the
constitutional guaranty in the only effectively available way -- by
removing the incentive to disregard it."
Elkins v. United
States, 364 U. S. 206,
364 U. S. 217
(1960). So long as we are committed to protecting the people from
the disregard of their constitutional rights during the course of
criminal investigations, inadmissibility of illegally obtained
evidence must remain the rule, not the exception.
IV
The cost to the truth-seeking process of evidentiary exclusion
invariably is perceived more tangibly in discrete prosecutions than
is the protection of privacy values through deterrence of future
police misconduct. When defining the precise scope of the
exclusionary rule, however, we must focus on systemic effects of
proposed exceptions to ensure
Page 493 U. S. 320
that individual liberty from arbitrary or oppressive police
conduct does not succumb to the inexorable pressure to introduce
all incriminating evidence, no matter how obtained, in each and
every criminal case. Our previous recognition of an impeachment
exception limited to the testimony of defendants reflects a careful
weighing of the competing values. Because expanding the exception
to encompass the testimony of all defense witnesses would not
further the truthseeking value with equal force, but would
appreciably undermine the deterrent effect of the exclusionary
rule, we adhere to the line drawn in our previous cases.
Accordingly, we hold that the Illinois Supreme Court erred in
affirming James' convictions despite the prosecutor's use of
illegally obtained statements to impeach a defense witness'
testimony. The court's judgment is reversed, and the case is
remanded for further proceedings not inconsistent with this
opinion.
It is so ordered.
[
Footnote 1]
See generally Illinois v. Krull, 480 U.
S. 340,
480 U. S. 347
(1987) (when evaluating proposed exceptions to the exclusionary
rule, this Court "has examined whether the rule's deterrent effect
will be achieved, and has weighed the likelihood of such deterrence
against the costs of withholding reliable information from the
truth-seeking process");
United States v. Leon,
468 U. S. 897,
468 U. S.
908-913 (1984) (discussing balancing approach).
Certain Members of the Court have previously expressed their
view that the exclusionary rule is designed not merely to deter
police misconduct but also to prevent courts from becoming parties
to the constitutional violation by admitting illegally obtained
evidence at trial.
See United States v. Leon, supra, at
468 U. S.
931-938 (BRENNAN, J., joined by MARSHALL, J.,
dissenting);
id at
468 U. S.
976-978 (STEVENS, J., concurring in judgment in part and
dissenting in part).
[
Footnote 2]
See Miranda v. Arizona, 384 U.
S. 436 (1966).
[
Footnote 3]
See also Oregon v. Hass, 420 U.
S. 714,
420 U. S. 721
(1975) ("[T]rial court instructed the jury that the statements
attributed to [defendant] could be used only in passing on his
credibility and not as evidence of guilt");
Harris v. New
York, 401 U. S. 222,
401 U. S. 223
(1971) (same);
Walder v. United States, 347 U. S.
62,
347 U. S. 64
(1954) (same).
[
Footnote 4]
The dissent concedes, as it must, that "of course, false
testimony can result from faulty recollection" as opposed to
intentional lying.
Post at
493 U. S. 326.
Even assuming that Henderson's testimony in this case (as opposed
to the detective's contrary testimony) was indeed false nothing in
the record suggests that Henderson intentionally committed perjury
rather than honestly provided her best (even if erroneous)
perception and recollection of events.
[
Footnote 5]
These reasons to doubt a party's ability to control the
testimony of her own witnesses led long ago to abandonment of the
common-law rule that a party automatically "vouches for" and hence
is inexorably bound by what the witnesses say.
See, e.g.,
Fed.Rule Evid. 607 ("The credibility of a witness may be attacked
by any party, including the party calling him");
see
generally 3A J. Wigmore, Evidence § 899, p. 655 (J. Chadbourn
rev.1970) (hereinafter Wigmore) (citation omitted) ("[E]very
experienced lawyer knows that he is often required to call
witnesses who happen to have some knowledge of the facts but whose
trustworthiness he could not guarantee. There are also many
occasions upon which a lawyer is surprised by the witness
testifying in direct contradiction to a prior statement given to
the attorney");
cf. Chambers v. Mississippi, 410 U.
S. 284 (1973) (state evidentiary rule precluding
defendant from impeaching own witness after witness offered
incriminating testimony violated due process).
See also Imbler
v. Pachtman, 424 U. S. 409,
424 U. S. 426
(1976) (holding prosecutors absolutely immune from damages
liability for having knowingly presented perjured witness testimony
against criminal defendants, observing that the "veracity of
witnesses in criminal cases frequently is subject to doubt before
and after they testify. . . . If prosecutors were hampered in
exercising their judgment as to the use of such witnesses by
concern about resulting personal liability, [they often would
refrain from calling such witnesses and hence] the triers of fact
in criminal cases often would be denied relevant evidence");
id. at
424 U. S. 446
(WHITE, J., concurring in judgment)("[O]ne of the effects of
permitting suits for knowing use of perjured testimony will be
detrimental to the [truth-seeking] process -- prosecutors may
withhold questionable but valuable testimony from the court").
[
Footnote 6]
Apparently to minimize this concern, the Illinois Supreme Court
suggested that prosecutors could impeach witnesses only with
respect to statements that are "purposely presented by the
defendant."
123 Ill. 2d
523, 537, 124 Ill.Dec. 35, 41,
528 N.E.2d
723, 729 (1988). However, the court did not even purport to
determine whether James had "purposely presented" Henderson's
testimony that his hair had been black on the day of the shooting,
an omission that clearly highlights "the difficulty of determining
whether particular testimony elicited from a defense witness was
purposely presented' by the defendant." Brief for United States
as Amicus Curiae 21, n. 5. Given the inherent subjectivity
of this proposed test, a defendant could hardly be confident that
all witness statements that are actually inadvertent or surprising
to the defendant will be found to be such by the trial court, so as
not to open the door to impeachment. This proposed limitation thus
would not meaningfully blunt the chill imposed on defendants'
presentation of witnesses.
The Illinois Supreme Court also suggested that prosecutors could
be allowed to impeach witnesses only with respect to statements
offered on direct examination, perhaps recognizing that defendants
likely would feel even more insecure about their witnesses' ability
to avoid statements triggering admissibility of suppressed evidence
when responding to cross-examination by the prosecutor. We need not
decide whether there is a salient distinction between direct and
cross-examination in this context,
cf. United States v.
Havens, 446 U. S. 620
(1980) (rejecting such distinction with respect to defendants'
testimony), because even the more limited expansion of the
impeachment exception would palpably inhibit defendants'
presentation of a defense.
Finally, the dissent embraces the Illinois Supreme Court's
suggestion that prosecutors could be allowed to impeach witnesses
only when their testimony is in "direct conflict" with the
illegally seized evidence.
Post at
493 U. S. 325.
The dissent suggests that judicial inquiry as to the inconsistency
of various statements is "commonplace" under various rules of
evidence.
Id. at
493 U. S. 325,
n. 1. But the result of such an inquiry distinguishing between
"direct" and "indirect" evidentiary conflicts is far from
predictable. Indeed, the authority upon which the dissent relies to
define a direct evidentiary conflict observes that "[s]uch is the
possible variety of statements that it is often difficult to
determine whether this inconsistency exists." 3A Wigmore § 1040.
The
ex ante uncertainty whether a court might find a
witness' testimony to pose a "direct" conflict and therefore
trigger the impeachment exception likely will chill defendants'
presentation of potential witnesses in many cases.
[
Footnote 7]
Brief for United States as
Amicus Curiae 18.
[
Footnote 8]
Indeed, the detectives who unlawfully detained James and
elicited his incriminating statements already knew that there were
several eyewitnesses to the shooting. Because the detectives likely
believed that the exclusion of any statement they obtained from
James probably would not have precluded the prosecution from making
a
prima facie case, an exclusionary rule applicable only
to the prosecution's case in chief likely would have provided
little deterrent effect in this case.
Justice STEVENS, concurring.
While I join the opinion of the Court, certain comments in the
dissent prompt this postscript. The dissent answers the wrong
question when it states that "[t]he interest in protecting the
truth-seeking function of the criminal trial is every bit as strong
in this case as in our earlier cases."
Post at
493 U. S. 324.
This is self-evident. The State always has a strong interest in the
truth-seeking function. The proper question, however, is whether
the admission of the illegally obtained evidence in this case would
sufficiently advance the truth-seeking function to overcome the
loss to the deterrent value of the exclusionary rule. With respect
to this issue, the dissent overestimates the benefit of the
exclusionary rule, even to the defendant bent on presenting
perjured testimony, and exaggerates the injury that exclusion of
unlawfully obtained evidence causes to the truth seeking
function.
In "contested criminal trials,"
post at
493 U. S. 326,
the urge to win can unfortunately lead both sides to overstate
their case. As
Page 493 U. S. 321
the Court properly observes, the ability of the dishonest
defendant to procure false testimony is tempered by the
availability of the illegally obtained evidence for use in a
subsequent perjury prosecution of the defense witness.
Ante at
493 U. S. 314.
A witness who is not on trial faces a far different calculus than
one whose testimony can mean the difference between acquittal and a
prison sentence. He or she will think long and hard before
accepting a defendant's invitation to knowingly offer false
testimony that is directly contradicted by the State's evidence.
The dissent ignores this "hard reality,"
post at
493 U. S. 326,
in presuming that a defense witness will offer false testimony when
that testimony is immunized from rebuttal at trial.
While the dissent assumes false testimony or, at least, faulty
recollection with respect to defense witnesses, it is unwilling to
entertain the same assumption with respect to the prosecution's
witnesses. The evidentiary issue in this case involves the
testimony of a police officer about a statement that he allegedly
heard the defendant make at the time of his arrest. An officer
whose testimony provides the foundation for admission of an oral
statement or physical evidence may be influenced by his interest in
effective law enforcement or may simply have faulty recollection.
It is only by giving 100 percent credence to every word of the
officer's testimony that the dissent can so categorically state
that "the defendant himself revealed the witness' testimony to be
false,"
post at
493 U. S. 324,
that "James . . . said his hair was previously red,"
post
at
493 U. S. 327,
n. 2, or that information presented to the jury was "known to be
untrue."
Post at
493 U. S. 327.
That assumption is no more warranted in the case of prosecution
witnesses than the opposite assumption is warranted in the case of
defense witnesses.
In this case, in which the guilty verdict is supported by the
testimony of five eyewitnesses, it is highly probable that these
characterizations are accurate. But the testimony of those five
witnesses, on which the dissenters rely for their conclusion that
any error committed by the trial court was
Page 493 U. S. 322
harmless,
post at
493 U. S. 330,
would also seem to be sufficient to obviate the need to rely on the
officer's rebuttal to discredit the witness Henderson's testimony.
Were the officer's testimony not so corroborated, it would surely
be improper to presume -- as the dissenters do -- that the conflict
between the testimony of the officer and Henderson should
necessarily be resolved in the officer's favor, or that exclusion
of the evidence would result in a decision by jurors who are
"positively misled."
Post at
493 U. S.
324.
Justice KENNEDY, with whom THE CHIEF JUSTICE, Justice O'CONNOR,
and Justice SCALIA join, dissenting.
To deprive the prosecution of probative evidence acquired in
violation of the law may be a tolerable and necessary cost of the
exclusionary rule. Implementation of the rule requires us to draw
certain lines to effect its purpose of deterring unlawful conduct.
But the line drawn by today's opinion grants the defense side in a
criminal case broad immunity to introduce whatever false testimony
it can produce from the mouth of a friendly witness. Unless
petitioner's conviction is reversed, we are told, police would
flout the Fourth Amendment, and as a result, the accused would be
unable to offer any defense. This exaggerated view leads to a
drastic remedy: The jury cannot learn that defense testimony is
inconsistent with probative evidence of undoubted value. A more
cautious course is available, one that retains Fourth Amendment
protections and yet safeguards the truth-seeking function of the
criminal trial.
Our precedents establish that the exclusionary rule does not
apply where the interest in pursuing truth or other important
values outweighs any deterrence of unlawful conduct that the rule
might achieve.
See, e.g., Illinois v. Krull, 480 U.
S. 340,
480 U. S.
347-348 (1987);
United States v. Leon,
468 U. S. 897,
468 U. S.
906-907 (1984);
Stone v. Powell, 428 U.
S. 465,
428 U. S.
486-489 (1976);
United States v. Calandra,
414 U. S. 338,
414 U. S.
347-348 (1974). One instance is a defendant's attempt to
take advantage by presenting testimony in outright contradiction of
excluded
Page 493 U. S. 323
facts, secure in the knowledge that the inconsistency will not
be revealed to the jury. As we said over 35 years ago:
"It is one thing to say that the Government cannot make an
affirmative use of evidence unlawfully obtained. It is quite
another to say that the defendant can turn the illegal method by
which evidence in the Government's possession was obtained to his
own advantage, and provide himself with a shield against
contradiction of his untruths. Such an extension of the
Weeks
[v. United States, 232 U. S. 383 (1914)] doctrine
would be a perversion of the Fourth Amendment."
Walder v. United States, 347 U. S.
62,
347 U. S. 65
(1954). Under this rationale, our consistent rule has been that a
defendant's testimony is subject to rebuttal by contradicting
evidence that otherwise would be excluded. The principle applies to
suppressed physical evidence, as in
Walder itself and
United States v. Havens, 446 U. S. 620
(1980), and to statements obtained in violation of the law, so long
as the statements are voluntary and reliable,
see Oregon v.
Hass, 420 U. S. 714
(1975);
Harris v. New York, 401 U.
S. 222 (1971).
Petitioner argues that the rationale of these cases is confined
to "impeachment" of testimony presented by the defendant himself,
because these cases involve only "impeachment by
self-contradiction." Brief for Petitioner 13. The theory, it seems,
is that excluded evidence introduced in opposition to the
defendant's testimony impeaches by means of the contradiction
itself; the substantive truth or falsity of the suppressed evidence
is irrelevant. Our cases do not bear this reading. In
Havens, the defendant was charged as an accomplice in the
smuggling of narcotics. A codefendant hid the drugs in a T-shirt
constructed with special pockets. The pockets were made of patches
cut from another T-shirt found in the defendant's luggage during an
illegal search. When the defendant denied having possessed the
T-shirts, the cut
Page 493 U. S. 324
T-shirt, which had been excluded at the outset, was admitted as
rebuttal evidence. We upheld its admission.
See 446 U.S.
at
446 U. S. 623,
446 U. S. 628.
There was no "self-contradiction" involved, for the rebuttal of the
defendant's testimony could only have been based on the jury's
belief in the substantive truth of the fact that the altered
T-shirt was used in the smuggling, and that it belonged to the
defendant. The same was true in
Walder, where we upheld
the admission of illegally seized heroin from an unrelated
investigation to impeach the defendant's statement that he had
never possessed the drug. In sum, our cases show that introduction
of testimony contrary to excluded but reliable evidence subjects
the testimony to rebuttal by that evidence.
I agree with the majority that the resolution of this case
depends on a balance of values that informs our exclusionary rule
jurisprudence. We weigh the "
likelihood of . . . deterrence
against the costs of withholding reliable information from the
truthseeking process.'" Ante at 493 U.S. 312, n. 1 (quoting
Illinois v. Krull, supra, 480 U.S. at 480 U. S.
347). The majority adopts a sweeping rule that the
testimony of witnesses other than the defendant may never be
rebutted with excludable evidence. I cannot draw the line where the
majority does.
The interest in protecting the truth-seeking function of the
criminal trial is every bit as strong in this case as in our
earlier cases that allowed rebuttal with evidence that was
inadmissible as part of the prosecution's case in chief. Here a
witness who knew the accused well took the stand to testify about
the accused's personal appearance. The testimony could be expected
to create real doubt in the mind of jurors concerning the
eyewitness identifications by persons who did not know the accused.
To deprive the jurors of knowledge that statements of the defendant
himself revealed the witness' testimony to be false would result in
a decision by triers of fact who were not just kept in the dark as
to excluded evidence, but positively misled. The potential for harm
to the truth-seeking process resulting from the majority's new
rule
Page 493 U. S. 325
in fact will be greater than if the defendant himself had
testified. It is natural for jurors to be skeptical of self-serving
testimony by the defendant. Testimony by a witness said to be
independent has the greater potential to deceive. And if a defense
witness can present false testimony with impunity, the jurors may
find the rest of the prosecution's case suspect, for ineffective
and artificial cross-examination will be viewed as a real weakness
in the State's case. Jurors will assume that if the prosecution had
any proof the statement was false, it would make the proof known.
The majority does more than deprive the prosecution of evidence.
The State must also suffer the introduction of false testimony and
appear to bolster the falsehood by its own silence.
The majority's fear that allowing the jury to know the whole
truth will chill defendants from putting on any defense seems to me
far too speculative to justify the rule here announced. No
restriction on the defense results if rebuttal of testimony by
witnesses other than the defendant is confined to the introduction
of excludable evidence that is in direct contradiction of the
testimony. If mere "tension with the tainted evidence,"
ante at
493 U. S. 315,
opened the door to introduction of
all the evidence
subject to suppression, then the majority's fears might be
justified. But in this context, rebuttal can and should be confined
to situations where there is direct conflict, which is to say
where, within reason, the witness' testimony and the excluded
testimony cannot both be true. [
Footnote 2/1]
Page 493 U. S. 326
Also missing from the majority's analysis is the almost certain
knowledge that the testimony immunized from rebuttal is false. The
majority's apparent assumption that defense witnesses protected by
today's rule have only truth-telling in mind strikes me as far too
sanguine to support acceptance of a rule that controls the hard
reality of contested criminal trials. The majority expresses the
common sense of the matter in saying that presentation of excluded
evidence must sometimes be allowed because it "penalizes defendants
for committing perjury."
Ante at
493 U. S.
314.
In some cases, of course, false testimony can result from faulty
recollection. But the majority's ironclad rule is one that applies
regardless of the witness' motives, and may be misused as a license
to perjure. Even if the witness testifies in good faith, the
defendant and his lawyer, who offer the testimony, know the facts.
Indeed, it is difficult here to imagine the defense attorney's
reason for asking Henderson about petitioner's hair color if he did
not expect her to cast doubt on the eyewitness identification of
petitioner by giving a description of petitioner's hair color
contrary to that contained in his own (suppressed) statement.
The suggestion that the threat of a perjury prosecution will
provide sufficient deterrence to prevent false testimony,
ante
Page 493 U. S. 327
at
493 U. S. 314
(opinion of BRENNAN, J.);
ante at
493 U. S.
320-321 (opinion of STEVENS, J.), is not realistic.
See generally Dunn v. United States, 442 U.
S. 100,
442 U. S. 108
(1979) (describing proof of perjury as "exceptionally difficult").
A heightened proof requirement applies in Illinois and other
States, making perjury convictions difficult to sustain.
See
People v. Alkire, 321 Ill. 28, 151 N.E. 518 (1926);
People
v. Harrod, 140 Ill.App.3d 96, 94 Ill.Dec. 490, 488 N.E.2d 316
(1986). Where testimony presented on behalf of a friend or family
member is involved, the threat that a future jury will convict the
witness may be an idle one.
The damage to the truthseeking process caused by the majority's
rule is certain to be great whether the testimony is perjured or
merely false. In this case, there can be little doubt of the
falsity, since petitioner's description of his own hair was at
issue. And as a general matter, the alternative to rebuttal is
endorsement of judicial proceedings conducted in reliance on
information known to be untrue. Suppressed evidence is likely to
consist of either voluntary statements by the defendant himself or
physical evidence. Both have a high degree of reliability, and
testimony in direct conflict to such evidence most often will
represent an attempt to place falsehoods before the jury. [
Footnote 2/2]
Page 493 U. S. 328
The suggestion that all this is so far beyond the control of the
defendant that he will put on no defense is not supported. As to
sympathetic witnesses, such as the family friend here, it should
not be too hard to assure the witness does not volunteer testimony
in contradiction of the facts. The defendant knows the content of
the suppressed evidence. Even in cases where the time for
consultation is limited, the defense attorney can take care not to
elicit contradicting testimony. And in the case of truly neutral
witnesses, or witnesses hostile to the accused, it is hard to see
the danger that they will present false testimony for the benefit
of the defense.
The majority's concerns may carry greater weight where
contradicting testimony is elicited from a defense witness on
cross-examination. In that situation, there might be a concern that
the prosecution would attempt to produce such testimony as the
foundation to put excluded evidence before the jury. We have found
that possibility insufficient to justify immunity for a defendant's
own false testimony on cross-examination.
United States v.
Havens, 446 U. S. 620
(1980). As to cross-examination of other witnesses, perhaps a
different rule could be justified. Rather than wait for an
appropriate case to consider this or similar measures, however, the
majority opts for a wooden rule immunizing all defense testimony
from rebuttal, without regard to knowledge that the testimony
introduced at the behest of the defendant is false or perjured.
I also cannot agree that admission of excluded evidence on
rebuttal would lead to the "disregard of . . . constitutional
rights," by law enforcement officers,
ante at
493 U. S. 319,
that the majority fears. This argument has been raised in our
previous cases in this area of the law.
See Havens, supra,
at
446 U. S.
633-634 (BRENNAN, J., dissenting);
Hass, 420
U.S. at 725 (BRENNAN, J., dissenting);
Harris, 401 U.S. at
401 U. S. 232
(BRENNAN, J., dissenting). To date, we have rejected it. Now the
spectre appears premised on an assumption that a single slip of the
tongue by any defense witness will open the door to
Page 493 U. S. 329
any suppressed evidence at the prosecutor's disposal. If this
were so, the majority's concern that officers would be left with
little to lose from conducting an illegal search would be
understandable. And the argument might hold more force if, as the
majority speculates,
ante at
493 U. S. 319,
police confront the temptation to seize evidence illegally "much if
not most of the time" after gathering sufficient evidence to
present proof of guilt beyond a reasonable doubt in the case in
chief. Again, however, I disagree with the predictions.
It is unrealistic to say that the decision to make an illegal
search turns on a precise calculation of the possibilities of
rebuttal at some future trial. There is no reason to believe a
police officer, unschooled in the law, will assess whether evidence
already in his possession would suffice to survive a motion for
acquittal following the case in chief. The officer may or may not
even know the identity of the ultimate defendant. [
Footnote 2/3] He certainly will not know anything
about potential defense witnesses, much less what the content of
their testimony might be. What he will know for certain is that
evidence from an illegal search or arrest (which may well be
crucial to securing a conviction) will be lost to the case in
chief. Our earlier assessments of the marginal deterrent effect are
applicable here.
"Assuming that the exclusionary rule has a deterrent effect on
proscribed police conduct, sufficient deterrence flows when the
evidence in question is made unavailable
Page 493 U. S. 330
to the prosecution in its case in chief."
Harris, supra, at
401 U. S.
225.
In this case, the defense witness, one Jewel Henderson,
testified that petitioner's hair was black on the date of the
offense. Her statement, perjured or not, should not have been
offered to the jurors without giving them the opportunity to
consider the unequivocal and contradicting description by the
person whose own hair it was. I would allow the introduction of
petitioner's statement that his hair was red on the day of the
shootings. The result is consistent with our line of cases from
Walder to
Havens, and compelled by their
reasoning.
The prosecution, it is true, did not limit itself to
petitioner's description of his hair color. It went beyond this to
introduce petitioner's statement that he went to the beauty shop to
"change his appearance." App. 11. The prosecutor used this
statement to suggest that petitioner had a guilty mind and an
intention to evade capture by disguise. This goes beyond what was
necessary to rebut Henderson's testimony, and raises many of the
concerns expressed in the majority opinion. Nonetheless, there was
overwhelming evidence of petitioner's guilt in this case, including
the testimony of five eyewitnesses. In view of these circumstances,
I agree with the Illinois Supreme Court that any error as to the
additional statements or the prosecutor's argument had no effect on
petitioner's trial, and may be considered harmless.
Where the jury is misled by false testimony, otherwise subject
to flat contradiction by evidence illegally seized, the protection
of the exclusionary rule is
"'perverted into a license to use perjury by way of a defense,
free from the risk of confrontation with prior inconsistent
utterances.'"
Havens, supra, 446 U.S. at
446 U. S. 626
(quoting
Harris, supra, 401 U.S. at
401 U. S.
226). The perversion is the same where the perjury is by
proxy. I would affirm the judgment of the Illinois Supreme
Court.
[
Footnote 2/1]
Defining the proper scope of rebuttal is a task that trial
judges can be expected to perform without difficulty, for this type
of inquiry is a familiar one. In a different context, for example,
Federal Rule of Evidence 801(d)(1) provides that a prior statement
under oath is not hearsay if "the statement is . . . inconsistent
with the declarant's testimony." Likewise, Rule 613(b) contemplates
the admission of extrinsic evidence of a "prior inconsistent
statement." Trial judges apply these and similar state rules every
day, and general formulations of the principles involved are
commonplace. For example, the relevant question has been described
as whether two statements "cannot at the same time be true. . . .
Thus, it is not a mere difference of statement that suffices; nor
yet is an absolute oppositeness essential; it is an inconsistency
that is required." 3A J. Wigmore, Evidence § 1040 (J. Chadbourn
rev.1970).
The trial court's handling of the rebuttal in this case provides
an illustration. There is no suggestion that the trial court
considered witness Jewel Henderson's testimony about petitioner's
hair color to be a basis for admitting petitioner's other
statements about the shootings. Henderson also testified that she
was with petitioner at his home on the night of the shooting, and
that petitioner had arrived there between 10 and 11 p.m., but that
she could not be specific about the time. The State sought to rebut
this testimony with petitioner's suppressed statements about the
shooting, contending that Henderson's testimony established an
alibi for the shooting, which occurred around 11:00. The court
concluded that no alibi was established, and refused to allow
introduction of the suppressed statements on rebuttal. The trial
court thus refused to introduce excluded evidence on the basis of
mere tension with the witness' statement.
[
Footnote 2/2]
Justice STEVENS takes exception to the "assumption" that the
police officer's recollection of James' statement about his hair
was reliable.
Ante at
493 U. S. 321.
But one need hardly be credulous to so describe the officer's
testimony. James, it must be remembered, said his hair was
previously red and straight just after he emerged from the dryer
with curlers still in his hair. Moreover, in cases involving the
suppression of physical evidence, which the majority's rule must
also govern, the reliability of the suppressed evidence itself will
not be in question, since the evidence is not testimonial. In any
event, the issue here is not credibility. Perhaps a jury in this
case would also find reasons to be skeptical of the rebuttal
testimony. My point is that the factfinder should be given the
chance to do so. This will not happen under the majority's
approach, by which, as I have said, the verdict will be delivered
by jurors who have been misled.
[
Footnote 2/3]
In this case, contrary to the impression conveyed by the
majority,
ante at
493 U. S. 319, n. 8, the arresting officers knew almost
nothing of the state of a future prosecution case. The officers did
know there were several eyewitnesses to the shooting. But these
eyewitnesses had made no identification of any suspect. The
officers did not know petitioner's real name or his true
appearance, but had sought him out at the beauty parlor on an
anonymous tip. They could not know what physical evidence, such as
the murder weapon, they might find on petitioner, or might lose to
the case in chief as a result of illegal conduct. The suggestion
that the officers' calculated assessment of a future trial allowed
them to ignore the exclusionary rule finds no support in the record
and, in fact, is pure speculation.