Crews v. United States

NEBEKER, Associate Judge,

dissenting with whom HARRIS, Associate Judge, joins:

This case was decided correctly and for the right reasons by Judge Harris’ earlier majority opinion for the division. Crews v. United States, D.C.App., 369 A.2d 1063 (1977). Since then what was arguably the subject of disagreement has been resolved by the recent decision of the Supreme Court in United States v. Ceccolini, 435 U.S. 268 , 98 S.Ct. 1054 , 55 L.Ed.2d 268 (1978). It is earnestly to be hoped that the instant case will become the subject of further review where surely it may be disposed of on the authority of Ceccolini in the same manner used by the Court in deciding Pennsylvania v. Mimms, 434 U.S. 106 , 98 S.Ct. 330 , 54 L.Ed.2d 331 (1977).

Stripped of its labored and burdened analysis, the majority opinion holds that an illegal arrest bars the government from producing at trial a victim who readily and willingly can identify the accused from observation and memory of the criminal event. The perpetual disability is imposed in the face of the inescapable fact that “the testimony given by the witness was an act of her own free will in no way coerced or even induced by official authority as a result of” the illegal arrest. Ceccolini, supra, 435 U.S. at 279 , 98 S.Ct. at 1062 . Contrary to the assertion of the majority, the official misconduct did not “lead . to the identification evidence in this case.” At 303. That evidence existed from the moment of the robbery and came directly and independently to the trial. At most, it was the government’s ability to have the accused present at trial which “stems from” (at 291) the illegal arrest. No prior authoritative decision has carried the exclusionary rule over such a precipice of unacceptability.

[T]he remedy does not extend to barring the prosecution altogether. So drastic a step might advance marginally some of the ends served by exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book. [United States v. Blue, 384 U.S. 251, 255 , 86 S.Ct. 1416, 1419 , 16 L.Ed.2d 510 (1966).]

Wisdom and the integrity of the judicial process cry out against this holding. Its cost to society, on balance, is too great. See Ceccolini, supra, 435 U.S. at 275 -278, 98 S.Ct. at 1060-61 , citing United States v. Calandra, 414 U.S. 338, 348 , 94 S.Ct. 613 , 38 L.Ed.2d 561 (1974), McCormick on Evidence § 71, at 150 (1954), and Michigan v. Tucker, 417 U.S. 433, 450-51 , 94 S.Ct. 2357 , 41 L.Ed.2d 182 (1974). See also Dickerson v. United States, D.C.App., 296 A.2d 708 (1972) (Nebeker, J., concurring).