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Exclude defendant's refusal to consent to a search.

By Marks & Katz, LLC

  Bill of Rights (From public domain.) A suspect's right to refuse a search is as sacred as a suspect's right to refuse to talk with the police. Therefore, such refusal by a criminal defendant should generally be excluded at trial. Whether or not the refusal follows advice from cops about the right to refuse, the jury is not permitted to consider the refusal for purposes of inferring any guilt. Sampson v. Nevada, 122 P.3d 1255, 121 Nev. Adv. Rep. 80 (2005).  The Nevada Supreme Court in 2005 confirmed that the federal courts are in agreement as follows concerning evidence of refusal to consent to a warrantless search as evidence of guilt:  The Fifth Circuit, when determining that it was constitutional error for a trial court to permit the prosecutor to comment or present testimony on a defendant's refusal to consent to a warrantless search to support an inference of guilt, pointed out that all of the circuit courts that have addressed this issue have determined that a defendant's refusal to consent to a warrantless search may not be used as evidence of guilt...continue to full post

Full post as published by Underdog on June 04, 2008 (boomark / email).