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Counsel should not argue the nonexistence of evidence after a successful suppression motion

  1. uscourtmartiallawyers55ABA Standards for Criminal Justice, Standard 4-7.8 and its Commentary:A lawyer who has successfully urged the court to exclude evidence should not be allowed to point to the absence of that evidence to create an inference that it does not exist.The few reported cases on this issue take the position that such an argument misrepresents the facts to the tribunal.
  2. Counsel may not mention evidence that has been suppressed or suggest that other evidence exists.
    United States v. Clifton, 15 M.J. 26 (C.M.A. 1983).
  3. State v. McNeely, 664 P.2d 277 (Idaho Ct. App. 1983). After the defense successfully suppressed currency and cocaine, the prosecution filed a motion in limine to prevent the defense from arguing that the state produced no evidence because it had no evidence. The trial court granted the motion, and the Idaho Court of Appeals affirmed, citing treatises and commentary for the proposition that it is a form of misrepresentation for counsel to argue the absence of evidence when it is absent only because it was suppressed.
  4. Pritchard v. State, 673 P.2d 291 (Alaska Ct. App. 1983) (“Defense counsel clearly has the right to argue in support of a Scotch verdict,i.e., that the prosecution has failed to sustain its burden of proof. . . . He may not, however, state to be true something he knows to be false. Thus, for example, he may not base his argument on the nonexistence of evidence which in fact was present but was suppressed on motion by the defense.”)
  5. State v. Provost, 741 A.2d 295 (Conn. 1999). The defense claimed the prosecutor had committed misconduct by suppressing the statements of several witnesses and then arguing that the defense produced no evidence that a witness had an improper motivation for identifying the defendant. Citing, inter alia, the McNeely case for the proposition that it is improper to argue the nonexistence of suppressed evidence, the court nevertheless held under the facts of the instant case, the prosecutor had not argued improperly.
  • Trial counsel may not comment on the probable effect of the court-martial’s findings on relations between the military and civilian community. R.C.M. 919(b) discussion.