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

By John Wesley Hall, Jr.

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).