Listen to this closing argument by the prosecutor in a case in which the defendant was charged with resisting arrest:
"The defendant basically admitted the resisting, delaying, challenging the officer when he was interviewed by Officer Bui at the hospital. Do you remember Officer Bui asked the defendant, 'Why did you resist?' A reasonable person at that time would offer their side of the story if they were not good for it, if they were not guilty. If they were guilty, if they were challenging the officer, if they were threatening the officer, they would continue doing that. And this defendant said to the officer, 'Fuck you.' That's how he responded when he asked to explain his actions. That's an adoptive admission where he basically, in essence, admits that he resisted."
A pretty persuasive argument to a jury, huh? Particularly since it was consistent with both the judge's instructions regarding adoptive admissions as well as the evidence that the judge let in.
The only problem with this argument -- and the problem with admitting the evidence in the first place -- is that the prosecutor's closing argument leaves out one tiny little thing. The defendant didn't say "Fuck you." He said: "Fuck you. I want to talk to my lawyer."
Oops. That's not an admission that you're guilty. It's instead a constitutionally protected statement. And one that should never have been admitted into evidence. Much less one one that should have been distorted by the prosecutor -- whose duty is to secure justice, not merely a conviction -- during closing arguments.
Which is what Judge Walsh (sitting by designation from the Santa Clara County Superior Court) rightly holds in this case.
P.S. - Random thought: Should California really allow judges to sit by designation on appeals from their own court? Here, Judge Walsh is reviewing an opinion from the Santa Clara County Superior Court and, as a result, the propriety of the conduct of one of his colleagues -- and, quite potentially, a friend -- on this bench. It seems to me that this is a danger that we could, and should, easily avoid, if only through a broad prophylactic rule against it. Just a thought.