Opinion Recap: Kansas v. Ventris

Stanford student Scott Noveck summarizes the opinion in Kansas v. Ventris.  Briefs in the case are available here, on SCOTUSwiki.

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, jointed 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.”