Kansas v. Ventris

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Authorship: Scott M Noveck

Contents

[edit] Briefs and Documents

Docket: 07-1356

Issue: Whether prosecutors may use a defendant’s statement - made in the absence of a knowing and voluntary waiver of the right to counsel - to impeach a witness, as opposed to during its case-in-chief.

Merit briefs

Amicus briefs

Oral Argument: Transcript

Decision: Reversed and Remandedin an opinion by Justice Scalia

[edit] Pre-Argument Articles

[edit] Argument Preview

In No. 07-1356, Kansas v. Ventris, the Supreme Court will consider whether a criminal defendant’s voluntary statements made to a jailhouse informant—an inmate recruited by the police to surreptitiously obtain incriminating information—can be used at trial for purposes of impeachment, despite a conceded violation of his Sixth Amendment right to counsel.


[edit] Background and Proceedings Below

In January 2004, respondent Donnie Ray Ventris and his girlfriend confronted Ernest Hicks at Hicks’s home. In the course of this confrontation, Hicks was shot and killed, and several of his possessions were stolen. Upon arrest, Ventris and his girlfriend each claimed that the other had been responsible for the shooting.

While in prison awaiting trial, Ventris shared a cell with Johnnie Doser, a probation violator who had been specifically recruited by the police to listen for any incriminating information from Ventris. In exchange for this information, the prosecution offered to release Doser from probation and spare him the possibility of serving additional prison time. Doser subsequently told police that Ventris privately admitted to being the one who shot Hicks and took his possessions.

At trial, Ventris took the stand and testified that it was his girlfriend who drew the gun and shot Hicks. The prosecution then called Doser to testify about Ventris’s alleged jailhouse confession. Ventris objected to this testimony on the ground that the police had violated his Sixth Amendment rights because Doser, acting as an undercover informant, had effectively interrogated him in the absence of his counsel and without a knowing and voluntary waiver of his Sixth Amendment rights. The prosecution conceded that Ventris’s Sixth Amendment rights had been violated, but it argued that the testimony should nonetheless be admissible for purposes of impeachment – that is, to contradict Ventris’s own testimony and thereby call his truthfulness into question. The trial court agreed with the prosecution, and Ventris was ultimately convicted of aggravated robbery and aggravated battery (although he was acquitted on other charges of felony murder and theft).

The Kansas Supreme Court reversed the convictions, holding that statements obtained in violation of a defendant’s Sixth Amendment right to counsel should not be admitted for any purpose, including impeachment. The court acknowledged that most other courts to address this issue have deemed such statements admissible for purposes of impeachment, but it sided with the minority view that Sixth Amendment violations require total exclusion.

Kansas filed a petition for certiorari, noting that the Supreme Court’s decision in Michigan v. Harvey (1990) has expressly left open the question of “the admissibility for impeachment purposes of a voluntary statement obtained in the absence of a knowing and voluntary waiver of the right to counsel.” The petition was granted on October 1, 2008.

[edit] Merits Briefing

Kansas begins by emphasizing that the Court’s exclusionary rule cases have sought to strike a balance between the need to deter future police misconduct and the very high costs of excluding potentially truthful and relevant information. Though Kansas concedes that it violated Ventris’s Sixth Amendment rights, the State argues that although here the cost-benefit analysis calls for the unlawfully obtained evidence (that is, the alleged incriminating statements about which Doser would testify) to be excluded from the prosecution’s case in chief, the evidence should be admissible if instead used for purposes of impeachment. Kansas cites previous Fourth and Fifth Amendment cases, as well as some Sixth Amendment cases, in which the Court has applied this balancing analysis to draw the same line between a state’s use of evidence for its case in chief and its use of the same evidence for impeachment purposes.

According to the State, a rule of total exclusion would have a very high cost because it allows defendants in these circumstances to present false testimony to the jury without contradiction, effectively giving these defendants free rein to commit perjury. On the other side of the balancing analysis, the State argues that because the prohibition on using unlawfully obtained evidence in the prosecution’s case in chief already provides significant deterrence, further excluding this evidence from being used for impeachment purposes would have at most a very small and speculative marginal effect in deterring police misconduct. In addition, Kansas argues that any necessary deterrence can be obtained through less drastic means than total exclusion of probative and relevant evidence, such as civil liability for the offending officers under a Section 1983 suit or internal discipline within law enforcement agencies. As a result, Kansas contends that any marginal benefit from a rule of total exclusion is outweighed by its substantial cost.

Finally, the State argues that although the Court has applied a rule of total exclusion for involuntary or compelled statements in violation of the Fifth Amendment right against self-incrimination, the voluntary statements at issue in this case call for a less restrictive rule. When the defendant is speaking to a cellmate and does not believe that police are present, there is no risk of police coercion or intimidation. In addition, whereas the Fifth Amendment right is phrased as a direct prohibition, which may suggest that exclusion is strictly required in every instance, the Sixth Amendment right to counsel is posed as an affirmative right and may not require as harsh a remedy. Moreover, the State points out, to the extent that its conduct in this case violated Ventris’s Sixth Amendment right, this was “police misconduct that, at most, is at the edge of constitutionality, just on the [impermissible] side of the line,” and a lesser violation may call for a lesser remedy.

The Solicitor General, representing the views of the federal government, filed an amicus brief in support of Kansas. The Solicitor General’s brief echoes many of the same arguments advanced by the State, emphasizing that even when a Sixth Amendment violation takes place, exclusion is not the appropriate remedy unless the benefits from additional deterrence of police misconduct outweigh the substantial societal costs of exclusion. Like Kansas, the Solicitor General argues that there would be little incremental deterrence achieved through total exclusion, both because police are already deterred when this evidence is excluded from the prosecution’s case in chief and because the police already take substantial measures to prevent misconduct through officer training and internal discipline. The costs of exclusion, on the other hand, would be substantial, because prohibiting impeachment would protect a defendant who gives false testimony and undermine the trial’s truth-seeking function. The Solicitor General also emphasizes that a defendant can prevent this evidence from being introduced at all simply by declining to take the stand and put his credibility in issue.

Ventris’s argument takes a very different tack, disputing at the onset that the test for applying the exclusionary rule to violations of the Sixth Amendment right to counsel should follow the same cost-benefit analysis applied in Fourth Amendment cases. The right to counsel is unique, Ventris argues, because it not only protects an important liberty interest, but also goes to the fundamental reliability of the evidence and the integrity of the adversarial process. By allowing a defendant’s uncounseled statements to be used against him, the outcome of a trial may be determined by “whether [the defendant] could be fooled or forced in a private interrogation” into saying something that sounds incriminating, rather than by whether the evidence shows he actually committed the charged offense. Moreover, if pretrial interrogations are held without defense counsel present, then it is impossible for the attorney to know what the precise circumstances of the interrogation were, determine whether those circumstances were fair, and attack the reliability of the evidence if the interrogation was unfair or coercive. Ventris therefore contends that because the right to counsel is fundamental to the idea of a fair trial, it is logically incompatible with the sort of balancing test that applies to the violation of other liberty interests, and any testimony elicited through an uncounseled interrogation must be thrown out as fundamentally unreliable.

[edit] Oral Argument Recap

Kansas Solicitor General Stephen R. McAllister led off with a brief oral argument that saw only sparse questioning from the justices. McAllister began with two main points. First, he argued that any voluntary statement by the defendant should be admissible for impeachment in order to prevent the defendant from engaging in perjury, even if the statement was made in the absence of counsel. Second, McAllister asserted that statements obtained in violation of the Sixth Amendment right to counsel should be treated identically to evidence obtained in violation of similar provisions in the Fourth and Fifth Amendments, which the Court has permitted the prosecution to use for impeachment but not for its case in chief.

McAllister faced an initial question from Justice Scalia concerning the question of when exactly the Sixth Amendment violation occurs. Does the violation arise as soon as the police solicit the uncounseled statement, or not until that statement is introduced at trial? McAllisterindicated that this is a question that the Court has not previously answered, but that it is “unnecessary” to address that issue to resolve this case. He also engaged in a brief exchange with Justice Ginsburg over whether the police could have a jailhouse snitch “affirmatively elicit” statements from the defendant, or if the police may only listen for information without actively soliciting it. McAllister responded that the police would not be allowed to affirmatively elicit this information. McAllister received no questions from the other justices.

More...Representing the United States as amicus curiae, Assistant to the Solicitor General Nicole A. Saharsky also asserted that the line between forbidding uncounseled statements from the prosecution’s case in chief and permitting them for impeachment is a sound one. Saharsky emphasized the need to balance the truth-seeking value of these statements, which she contended is very substantial when used for impeachment, against the marginal deterrence that could be achieved through exclusion, which Saharsky argued will be low because there is already substantial deterrence due to exclusion from the case in chief.

Chief Justice Roberts questioned Saharsky over whether exclusion would truly achieve any meaningful deterrence. Roberts suggested that the police face a decision between collecting uncounseled statements that may turn out to be inadmissible at trial, on the one hand, or simply not collecting these statements at all, in which case they will not have access to any of this potential evidence. In other words, even with total exclusion, there would be “no downside” if the police commit a constitutional violation here, because “it is better to have this in the bank instead of not.” Saharsky was reluctant to concede this point, responding that police officers would not risk a constitutional violation even if it would have no detrimental impact on the outcome of the trial, because individual officers will face internal discipline for these violations. Under further questioning from Justices Ginsburg and Stevens, Saharsky was unable to point to a specific instance in which an officer had been disciplined for the sort of violation at issue in this case.

Justice Scalia asked again about when exactly the Sixth Amendment violation occurs. Saharsky answered that the violation does not arise until the uncounseled statements are actually introduced at trial. Scalia indicated he was “a little hung up” on whether the right to counsel is a trial right. If so, Scalia suggested, then admitting uncounseled statements for impeachment would be tantamount to “saying it’s okay not to have counsel at trial so long as it’s refuting a lie by the defendant.”

Representing respondent Donnie Ray Ventris, assistant appellate defender Matthew J. Edge focused on the right to counsel as a “core enumerated trial right,” which he described as “a very different animal from all the other cases” regarding rights that protect a mere liberty or property interest. Instead, he argued, the right to counsel should be treated liked the Fifth Amendment right against self-incrimination, where the court has imposed a rule of total exclusion that applies both for the government’s case in chief and for impeachment.

Under questioning from the Chief Justice, Edge argued that permitting the use of uncounseled statements even just for impeachment would fail to offer any deterrence against the constitutional violation at issue here. Picking up on Roberts’s earlier point that there is little downside to violating the right to counsel here, Edge explained that “as long as there’s some incentive for the prosecutor to use informants in this manner . . . the prosecutor and the police will attempt to obtain it.” Excluding uncounseled statements from the prosecution’s case in chief would not deter these violations unless those statements are excluded from use in impeachment as well.

The Chief Justice also asked whether Ventris’s right to counsel may have been fully satisfied when he was appointed counsel for trial. Even though his earlier statements were made in the absence of counsel, Ventris’s trial attorney was able to “point out all the problems with relying on the snitch’s evidence.” This led to a spirited exchange in which Edge argued that when the state uses uncounseled statements, “the harm isn’t something that effects the outcome of the trial, it also affects litigation in a much deeper way.” While Roberts contended that any questions about the reliability of uncounseled statements could be adequately addressed by pointing them out at trial, Edge responded that the state’s actions affect other matters, such as plea bargaining, where the Sixth Amendment violation cannot be overcome with a vigorous cross-examination.

Justice Ginsburg asked Edge whether it is significant that in prison informant cases, the defendant does not know that he may be talking to a police officer. On the one hand, Ginsburg indicated, the lack of any warning means that even defendants who are aware of their right to counsel during interrogations may not know that they are talking with the police and should exercise this right. On the other hand, if the defendant is unaware that his cellmate’s questions are actually coming from the police, he does not face the coercive atmosphere of a formal interrogation that could otherwise lead him to make unreliable statements in the absence of guidance from his counsel. Edge countered that questions from a cellmate may actually be more coercive than a formal police interrogation, because the cellmate is always present and the defendant cannot easily terminate the interrogation.

Kansas Solictor General McAllister ended with a brief rebuttal in which he echoed Chief Justice’s skepticism about whether a Sixth Amendment violation had occurred in this case at all. McAllister argued that because the Sixth Amendment is about ensuring an adversarial process in which the defendant can test the evidence through cross-examination, and because Ventris had an adequate opportunity to conduct cross-examination here, the right to counsel might not have been violated in the first instance.

[edit] Opinion Analysis

In its decision Wednesday in Kansas v. Ventris (No. 07-1356), the Supreme Court ruled that the government may impeach a defendant’s testimony using statements obtained during an interrogation that violated his Sixth Amendment right to counsel, even though the prosecution would be barred from using such tainted evidence as part of its case in chief.

The case arose after respondent Donnie Ray Ventris and his companion, Rhonda Theel, confronted Ernest Hicks in Hicks’s home. Hicks was shot and killed during the confrontation, and Ventris and Theel made off with several hundred dollars in cash and other possessions. After they were arrested and charged with murder, aggravated robbery, and several lesser offenses, Ventris and Theel each claimed that the other was responsible for pulling the trigger and killing Hicks. The police placed Ventris in a prison cell together with a jailhouse informant, who was offered a lesser sentence in his own case in exchange for reporting any incriminating statements made by Ventris. The informant subsequently told the police that when he asked Ventris what was “weighing in on his mind,” Ventris admitted to being the shooter. When Ventris took the stand at trial and blamed the shooting on Theel, the state called the informant to testify about this prior contradictory statement.

Upon Ventris’s objection, the state conceded that it had violated his Sixth Amendment rights when it recruited an informant to question him in the absence of counsel, but it contended that the alleged statements were nonetheless still admissible when used for impeachment. (The Court accepted the state’s concession that its actions violated the Sixth Amendment, but emphasized that it did so “without affirming that this concession was necessary.”)

In an opinion by Justice Scalia, the Court held that evidence obtained in violation of the Sixth Amendment right to counsel is admissible for purposes of impeachment, even though it would not be admissible if offered as part of the prosecution’s case in chief. Scalia began by dividing the right to counsel into two components. The “core” component is a trial right, which guarantees that the prosecution’s case will be subject to “meaningful adversarial testing” at trial. The second, peripheral component is the Massiah right “to be free of uncounseled interrogation” at the pretrial stage (named after Massiah v. United States (1964)). Scalia explained that unlike the Fifth Amendment right against self-incrimination, which directly governs what evidence may be offered at trial, the Massiah right is instead a “prophylactic rule[] forbidding certain pretrial police conduct.” Because the constitutional violation at issue involves pretrial conduct rather than a trial right, admissibility is determined by “an exclusionary-rule balancing test,” which compares the gains from deterring police misconduct against the costs of excluding potentially truthful and relevant evidence.

Applying this test, the Court held that any benefits from exclusion in these circumstances are greatly outweighed by its costs. The costs of exclusion are substantial, as it would offer a shield to defendants who take the stand at trial and then commit perjury. The marginal deterrence achieved through exclusion, on the other hand, would be small, since the prosecution is already significantly deterred when these uncounseled statements are barred from its case in chief. By prohibiting the affirmative use of such “tainted evidence” while permitting it to be used for impeachment, the Court’s decision places Massiah violations under the same rule it has applied for Fourth Amendment and Miranda violations.

Justice Stevens dissented, joined by Justice Ginsburg. Stevens objected to the Court’s characterization of the Massiah right as a mere prophylactic right. While Stevens would find a Sixth Amendment violation as soon as the state elicits an uncounseled statement, he would also find the violation “compounded” by an additional “constitutional harm” when this evidence is later admitted at trial. If counsel is not present during an interrogation and cannot observe the conditions under which that interrogation takes place, “she may be unable to effectively counter the potentially devastating, and potentially false, evidence subsequently introduced at trial.” Because the admission of these uncounseled statements “does damage to the adversarial process-the fairness of which the Sixth Amendment was designed to protect,” Stevens would eschew the Court’s balancing test and instead hold “that such shabby tactics are intolerable in all cases.”

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