Argument Preview: Kansas v. Ventris

Stanford student Scott Noveck previews this morning’s second argument, Kansas v. Ventris.

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.

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.

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.