A hobson’s choice–to testify or not where evidence or statements have been suppressed

Colorado v. Johnson, No. 2021 CO 35, 396 P.3d ____ (2021), requires us to visit the Hobson’s choice where you have successfully had evidence or statements suppressed but there is much value added if the client testifies. The issue then becomes one of potential impeachment with the suppressed evidence.

Mil. R. Evid. 304(e)(1) gives us a partial answer.

(e) Limited Use of an Involuntary Statement. A statement obtained in violation of Article 31 or Mil. R.
Evid. 305(b)-(c) may be used only:

(1) to impeach by contradiction the in-court testimony of the accused[.]

Walder v. United States, 347 U.S. 62 (1954)n and James v. Illinois, 493 U.S. 307 (1990), help further to frame the issue for discussion. This brings us to Colorado v.  Johnson, a new decision of the Colorado Supreme Court on point for the question. In summary,

In this opinion, the supreme court reviews a decision of a divided panel of the court of appeals holding that the trial court reversibly erred by forcing the defendant to choose between excluding unconstitutionally seized evidence and fully pursuing an alternate suspect theory at trial, thereby violating the defendant’s right to present a complete defense. The supreme court holds that the impeachment exception to the exclusionary rule does not extend to a defendant’s truthful, yet incomplete, presentation of evidence: A defendant may offer such evidence, under the particular circumstances here, without opening the door to previously suppressed evidence.

The court then

[C]oncludes that a defendant may offer truthful, albeit potentially incomplete, evidence without opening the door to previously suppressed evidence.  This is because the important truth-seeking rationale that prohibits a defendant from turning the exclusion of illegally obtained evidence into a shield for perjury does not apply with equal force to truthful but potentially misleading testimony.  Accordingly, we affirm the judgment of the court of appeals.

The dissent argues that, by its decision, the court creates a situation where a defendant can exploit the exclusionary rule in an affirmatively misleading manner.

There you go. A question the military and civilian defense counsel have to consider at court-martial under the UCMJ.

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