Using Non Mirandized Statement to Impeach a Testimony
Since Miranda v. Arizona (1966) the high court has reexamined, and limited, the sweeping effect of the Miranda rule. (See People v. Simpson (1998) 65 Cal. App. 4th 854, 859 76 Cal. Rptr. 2d 851, and authorities cited there.) Pertinent here is Harris v. New York (1971) 401 U.S. 222 91 S. Ct. 643, 28 L. Ed. 2d 1 (hereafter Harris).
In Harris, the court held that although the prosecution may not introduce an unMirandized statement as part of its case-inchief, it may use such a statement to impeach a defendant's inconsistent testimony, if he or she elects to testify.
The court explained that "every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege 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.
Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment.
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." (Id. at pp. 225-226 91 S. Ct. at pp. 645-646, fn. omitted.)
In support of its analysis, the court cited Walder v. United States (1954) 347 U.S. 62 74 S. Ct. 354, 98 L. Ed. 503, a Fourth Amendment case, where the court permitted physical evidence, inadmissible in the case-in-chief, to be used for impeachment purposes.
In Walder, the court stated, "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. . ... . 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 p. 65 74 S. Ct. at p. 356.)
In Harris, the court found no "difference in principle" between Walder and the circumstances before it. (Harris, supra, 401 U.S. at p. 225 91 S. Ct. at p. 645.)
The court further opined that the impeachment process provided a "valuable aid to the jury in assessing petitioner's credibility, and the benefits of this process should not be lost, in our view, because of the speculative possibility that impermissible police conduct will be encouraged thereby.
Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief." (Ibid. 91 S. Ct. at p. 645.)