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Truth, Deterrence and the Impeachment Exception

James L. Kainen

Fordham University School of Law

November 24, 2008

Oregon Law Review, Vol. 86, p. 1017, 2008

James v. Illinois permits illegally-obtained evidence to impeach defendants, but not defense witnesses. Thus far, all courts have construed James to allow impeachment of defendants' hearsay declarations. This article argues against allowing illegally-obtained evidence to impeach defendants' hearsay declarations because doing so unduly diminishes the exclusionary rule's deterrent effect. The distinction between impeaching defendants and defense witnesses disappears when courts allow prosecutors to impeach defendants' hearsay declarations. Because defense witnesses report exculpatory conduct of a defendant who always has a substantial interest in disguising his criminality, their testimony routinely incorporates defendant hearsay. Defense witness testimony thus routinely paves the way for illegally-obtained evidence, contradicting James's intention that substantial deterrence result from prohibiting impeachment of defense witnesses.

Moreover, in the few cases finding that defense witnesses' testimony did not invite illegally-obtained evidence by incorporating defendant hearsay, prosecutors overlooked winning evidentiary arguments or the courts made evidentiary errors. The unpredictable nature of these instances of exclusion adds insult to injury: Because competent defense counsel will refrain from calling a defense witness rather than hope for prosecutorial neglect or judicial error, the prosecution benefits from its illegally-obtained proof, eliminating the deterrence James contemplates. Meanwhile, less than competent counsel will stumble into calling defense witnesses and occasionally reap the benefits of prosecutorial neglect or judicial error when illegally-obtained evidence is not admitted despite its impeaching effect on defendant hearsay. Thus, the status quo imposes costs to the truth without any compensating deterrence of constitutional violations.

By comparison, flipping a coin to decide whether prosecutors can use suppressed evidence to impeach would greatly improve matters. It assures that a limited impeachment exception engenders at least some additional deterrence beyond that already provided by suppression on the prosecution's case in chief to justify its truth seeking costs. Flipping a coin is hardly an acceptable solution. Nonetheless, that it improves the status quo vividly illustrates the error of applying the exception to impeach defendant hearsay and the futility of pursuing an impeachment exception whose parameters purport to promote accurate fact finding without undermining the exclusionary rule's deterrence of constitutional violations.

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Date posted: November 26, 2008  

Suggested Citation

Kainen, James L., Truth, Deterrence and the Impeachment Exception (November 24, 2008). Oregon Law Review, Vol. 86, p. 1017, 2008. Available at SSRN: https://ssrn.com/abstract=1306420

Contact Information

James L. Kainen (Contact Author)
Fordham University School of Law ( email )
140 West 62nd Street
New York, NY 10023
United States
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