Oral Argument Recap: Kansas v. Ventris

Stanford student Scott Noveck discusses oral argument in Kansas v. Ventris.  Scott’s earlier discussion of the case is available here, on SCOTUSwiki.

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? McAllister indicated 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.

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.