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Criminal Law

: Fourth Amendment

IA: Admission of refusal of consent was evidentiary error because it was ambiguous and prejudicial

By John Wesley Hall, Jr.

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Using defendant's refusal of consent against her was prejudicial and reversible error. The court expressly did not decide the issue as a constitutional violation, but decided it as an evidentiary error. State v. Thomas, 2009 Iowa App. LEXIS 283 (April 8, 2009): On the other hand, when such evidence is probative for some purpose other than to simply penalize the defendant for exercising a constitutional right, then notions of fair play and the need to preserve the truth-testing functions of the adversarial process may outweigh the prejudice. For instance, evidence of refusal to consent to a warrantless search has been admitted as "fair response" to rebut a defendant's theory. See Leavitt v. Arave, 383 F.3d 809, 828 (9th Cir. 2004) (noting that comments regarding one's exercise of Fourth Amendment rights are generally improper unless such comments fairly rebut a claim by defendant--in this case, evidence showing that defendant was the only suspect who refused to voluntarily give a blood sample was properly admitted to rebut defendant's claim that he cooperated with the investigation); United States v...continue to full post

Full post as published by Fourth Amendment on April 12, 2009 (boomark / email).

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