State v. Davis’s Empirical Analysis

Citation profile

13 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 14 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “[A] defendant must take the stand and testify and the prosecutor must use the statement to impeach before the defendant can raise a constitutional claim such as we have here that his prior statement could not be used for impeachment because it was involuntary.”

   2 later decisions quote this exact passage
   e.g. State v. Brown · State v. Knapp

2. “The court in State v. Davis, reasoned: First, to hold otherwise would permit an accused to create an alleged error by merely announcing he would have taken the stand but for the trial court’s prior finding.... Merely stating that he would have taken the stand is easy, but would the defendant have actually taken the stand had the prior ruling been the other way? Staying off the witness stand is one of the chief defense tactics in any case. Actually taking the stand constitutes an acid test which transforms the hypothetical to the concrete. Moreover, defendants in criminal cases take the stand or do not take the stand for a variety of reasons.... Second, a prosecutor cannot use a prior statement for impeachment unless the present testimony of the accused is inconsistent with it, and is inconsistent in material respects. Can a court really know that a defendant would have testified at material variance to his prior statement until he actually does so?.... Finally, even if defendant would have taken the stand and testified at material variance, how can we be sure that the state would have used the prior statement to impeach, even if the prosecutor early-on indicated his intention to do so? Prosecutors like defense counsel must continually make tactical decisions during the turns and twists of trial. A prosecutor’s cross-examination without the statement, for example, may be sufficiently successful that he concludes his best tactic is to rest on that and thus obviate a necessity o”

   1 later decision quote this exact passage
   e.g. State v. Knapp

3. “The preferred method of raising claims such as Portask’s would be for the defendant to take the stand and appeal a subsequent conviction, if — following a claim of immunity — the prosecutor were allowed to use immunized testimony for impeachment. Only in this way may the claim be presented to a reviewing court in a concrete factual context. Moreover, requiring that the claim be presented only by those who have taken the stand will prevent defendant with no real intention of testifying from creating artificial constitutional challenges to their convictions.”

   1 later decision quote this exact passage
   e.g. State v. Knapp