Whether a defendant can be impeached at trial with a voluntary statement that he made to an undercover police informant in the absence of a waiver of his Sixth Amendment right to counsel.
Around January 2004, Donnie Ray Ventris was arrested and charged with the murder, burglary, and robbery of Ernest Hicks. At his trial, the prosecution offered the testimony of Ventris's cellmate, whom the prosecution had recruited to uncover incriminating information from Ventris. This testimony was obtained in violation of Ventris's Sixth Amendment right to counsel because his counsel had not been present at the time, nor had he waived his right to counsel beforehand. The trial court therefore did not allow the prosecution to use the testimony in its case-in-chief. It did, however, let the prosecution use the testimony for impeachment purposes. Eventually, Ventris was acquitted of felony murder but convicted of robbery and burglary. The Kansas Court of Appeals affirmed. The Kansas Supreme Court, however, reversed because it held that Ventris's statements to his cellmate should not have been admitted for any purpose, including impeachment. The U.S. Supreme Court will now decide whether voluntary statements obtained in the absence of a waiver of one's Sixth Amendment right to counsel can be used for impeachment purposes. The Court's decision will impact the procedural fairness and truth-finding function of criminal trials.
Questions as Framed for the Court by the Parties
Whether a criminal defendant's "voluntary statement obtained in the absence of a knowing and voluntary waiver of the [Sixth Amendment] right to counsel," Michigan v. Harvey, 494 U.S. 344, 354 (1990), is admissible for impeachment purposes-a question the Court expressly left open in Harvey and which has resulted in a deep and enduring split of authority in the Circuits and state courts of last resort?
On January 7, 2004, Donnie Ray Ventris and his girlfriend, Rhonda Theel, went to Ernest Hicks's home, because Theel wanted to confront Hicks over rumors that he was abusing the children of his live-in girlfriend. While Ventris and Theel were at Hicks's home, "one or both of them shot and killed Hicks" and took his cell phone, wallet, and truck keys. They then drove away in Hicks's truck.
Eventually, Ventris and Theel were arrested and charged with several crimes. Theel entered into a plea bargain with the prosecution and pled guilty to aggravated robbery and aiding a felon. In exchange, she testified against Ventris at his trial and said that he had shot Hicks and stolen his property. Ventris, however, testified to the contrary in his defense and claimed that Theel had been the one to shoot Hicks and take his property.
At trial, the prosecution also offered the testimony of Johnnie Doser, a prison inmate who had shared a cell with Ventris while Ventris was awaiting trial. The prosecution had recruited Doser to discover incriminating information about Ventris. Doser wanted to testify that Ventris told him that he had gone with his girlfriend "to rob somebody and that it went sour." According to Doser, Ventris had also admitted to shooting Hicks and stealing his wallet, keys, and truck. Ventris, however, objected to having Doser testify. He argued that the prosecution had violated his Sixth Amendment right to counsel by using Doser as an undercover informant because Ventris's counsel had not been present when he had spoken with Doser, and Ventris had not waived his right to counsel beforehand. The prosecution conceded that it had violated Ventris's Sixth Amendment right to counsel and that Doser's testimony could not, therefore, be used in its case-in-chief against Ventris. Nevertheless, the prosecution argued that the testimony should be allowed for impeachment p purposes. The trial court agreed and let Doser testify.
The jury acquitted Ventris of felony murder and misdemeanor theft but convicted him of aggravated robbery and aggravated burglary. The Kansas Court of Appeals affirmed. The Supreme Court of Kansas, however, reversed in favor of Ventris because it held that Ventris's incriminating statements to Doser should not have been used for any purpose, including impeachment, as they had been obtained in violation of his Sixth Amendment right to counsel. In particular, the court found that the police had violated Ventris's Sixth Amendment right to counsel by using an undercover informant to elicit incriminating information from him in the absence of counsel though Ventris had never waived his right to counsel.
The State of Kansas appealed, and on October 1, 2008, the U.S. Supreme Court granted certiorari to decide whether statements obtained in the absence of a valid waiver of one's Sixth Amendment right to counsel can be used for impeachment purposes at trial.
The Sixth Amendment
The Sixth Amendment guarantees criminal defendants the right to counsel. A defendant's Sixth Amendment right to counsel attaches upon the initiation of formal charges against him. Once formal criminal proceedings begin, the Sixth Amendment does not allow prosecutors to use statements "deliberately elicited" from a defendant in their case in chief without an express waiver of the right to counsel. A defendant who's right to counsel has attached, however, may execute a knowing and intelligent waiver of that right.
In Massiah v. United States, the Supreme Court held that the use of a defendant's incriminating statements, obtained without his knowledge by a co-defendant upon the police's request, and after the defendant had been indicted and retained counsel, violates his Sixth Amendment rights. This rule also applies to statements obtained through confidential jailhouse informants.
In Michigan v. Harvey, the Court addressed whether statements obtained in violation of a defendant's Sixth Amendment rights could be used to impeach his false or inconsistent trial testimony. In Harvey, the police initiated a conversation with the defendant after he invoked his Sixth Amendment right to counsel, and he subsequently waived his right and made an incriminating statement. The Court held that the statement could be used to impeach the defendant's trial testimony, even though the police violated the prophylactic rule that such a waiver is presumed invalid if secured pursuant to police-initiated conversation. The Court reserved decision, however, on whether such statements would be admissible for impeachment if the police engage in conduct, such as the use of jailhouse informants, that prevents them from obtaining a valid waiver.
The Issue of Defendant Testimony
Petitioner, the State of Kansas, argues that under the principles of Arizona v. Evans, evidence is only to be excluded if doing so will deter future misconduct that would not otherwise be deterred. The benefits of excluding the evidence must be weighed against the costs to the truth-seeking function of the criminal justice system of excluding relevant evidence. Kansas points out that the Court has held that evidence obtained in violation of the Fourth Amendment, the Miranda protections, and the Sixth Amendment in Harvey, may be used for impeachment purposes. Kansas argues that in all of those cases, as in this one, the additional deterrent effects of precluding the evidence for the purpose of impeachment does not outweigh the costs of allowing a defendant to commit perjury. In addition, Kansas argues, the Court has also recognized that making such evidence inadmissible would pervert the right to testify into a right to falsify facts without facing the possibility of contradiction.
Respondent, Donnie Ray Ventris, argues that exclusion of evidence operates differently depending on whether one is talking about the Fourth Amendment, Miranda violations, or the Sixth Amendment. Ventris points out that the Court allows tainted evidence to be used to impeach a defendant's trial testimony only when its use does not violate the accused's constitutional right at trial. The Sixth Amendment right at issue here, Ventris explains, is a trial right designed to preserve the integrity of the adversarial process. Ventris argues that the logic used to justify impeachment in other situations does not apply to this case, and the logical implication is that the text of the Sixth Amendment makes un-counseled statements inadmissible, even if used for impeachment.
Kansas argues that to the extent that allowing impeachment with voluntary statements discourages defendants from testifying, it only prevents them from offering false and inconsistent testimony. Kansas emphasizes that the Sixth Amendment does not include the right to have counsel assist a defendant in committing perjury. In addition, Kansas points out that for more than fifty years, the Court has recognized a fundamental interest in preventing perjury. Therefore, Kansas argues, stopping the government from introducing such evidence as impeachment allows a defendant to use the government's illegal conduct to shield himself from his own fabrications.
Ventris, however, argues that the right to counsel constructed by the Framers is intended to provide the criminal defendants with a champion to test the prosecution's evidence. The right to assistance of counsel represents the Court's feeling that even the educated layman is unable to navigate the complexities of the criminal process unassisted. Ventris argues that "trials should focus on whether the accused actually committed the conduct charged and not whether he could be fooled or forced in a private interrogation into saying he did." Ventris contends that counsel's absence from such interrogations makes it impossible for them to effectively attack the evidence obtained, and without access to counsel during questioning the defendant cannot make an informed decision about whether to make a statement. Ventris also argues that total exclusion does not create a right to commit perjury as human frailty, rather than a desire to lie, may lead a defendant to make an inconsistent statement.
Deterrence and Michigan v. Harvey
Kansan also argues that excluding unconstitutionally obtained voluntary statements from the prosecution's case in chief already provides sufficient deterrence of police misconduct. Kansas contends that total exclusion would have a highly speculative and probably marginal effect on police conduct, and that the ability to use all statements gained within constitutional limits provides police with more than adequate incentives to abide by them. In addition, Kansas argues, it is highly speculative that any particular defendant will testify at trial, as a significant number choose not to do so, even in serious cases. Kansas also points to the fact that individual law enforcement officers and police departments that engage in Sixth Amendment violations already face the possibility of civil liability, which acts as a significant deterrent of unconstitutional conduct. As a result, Kansas argues, as long as the prosecution is prevented from using involuntary or compelled statements at trial, then the defendant's rights are adequately protected.
On the other hand, Ventris argues that the injury placed in the balance here is far greater than Kansas recognizes. Allowing the prosecution to use un-counseled statements at trial, even for impeachment, undermines the Sixth Amendment guarantee of an effective advocate. Ventris contends that use of un-counseled statements for impeachment ties counsel's hands in regard to client testimony even before trial and may prevent defendants from making the informed decision to choose to stay silent at trial on the advice of counsel. In addition, Ventris argues that the prospect of civil liability does not deter prosecutors or police from committing such violations. Ventris points out that prosecutors and police normally enjoy qualified immunity while conducting investigations, which shields them from civil suit.
Kansas, however, points out that the case for exclusion here is weaker than that in Harvey. Kansas argues that in cases such as this one, where the statements are obtained by an informant who as far as the defendant knows has no connection with law enforcement, the possibility of coercion is much smaller than in situations like Harvey, where the defendant is subject to the stress of direct questioning by police officers. Kansas also argues that here it is irrelevant whether it is a "core" right or a "prophylactic" rule as discussed in Harvey, as the "ultimate question in determining the scope of the remedial exclusionary rule is whether a cost-benefit balancing analysis of the competing interests justifies a rule of total, partial, or no exclusion." Kansas contends that here, where the costs of the exclusion of probative evidence are high and there is the risk of encouraging or condoning perjury, the balance weighs in favor of admissibility.
Ventris counters that even if the text of the Sixth Amendment allows an impeachment exception to be crafted, Kansas goes too far as to its content. Ventris argues that Kansas' rule allows the prosecution to introduce an un-counseled statement that is inconsistent in any way with the defendant's trial testimony in order to impeach him, and that these prior statements will almost always reflect negatively on a defendant's credibility. Ventris contends that because credibility is always in issue when a defendant takes the stand, prosecutors have a strong incentive to obtain these statements, and Kansas' proposed rule encourages police and prosecutors to elicit statements before the defendant has an opportunity to consult with counsel. Consequently, Ventris argues, the Court should instead create a more limited rule allowing the prosecution to introduce un-counseled statements only when they are able to demonstrate to a judge that the defendant has in fact testified falsely.
The Supreme Court's decision in this case will have significant implications for the reliability of criminal trials. Petitioner State of Kansas argues that a defendant's incriminating statements to an informant, made in violation of the defendant's Sixth Amendment right to counsel, should be admitted at trial for impeachment purposes because it will increase the trial's reliability. In support of Kansas, the United States contends that if the statements are admitted, the jury can balance and weigh them against the defendant's inconsistent testimony. The United States argues that if the defendant's statements are not admitted into evidence, however, then the jury will be unable to determine the defendant's credibility properly.
Respondent Donnie Ray Ventris, on the other hand, argues that impeachment testimony by undercover informants that is obtained through the violation of the defendant's Sixth Amendment rights should not be admitted. The National Association of Criminal Defense Lawyers ("NACDL") explains that informant testimony is untrustworthy and could lead to unreliable criminal trials, particularly when the informants are "jailhouse informants" as in this case. Jailhouse informants are prison inmates who act as informants on the police's behalf. . Therefore, "by definition," such informants "necessarily are charged with, or have been convicted of, a crime." The NACDL cites evidence indicating that jailhouse informants often lie at trial and fabricate a defendant's confession, because they generally receive benefits from the police in exchange for testifying, such as better prison conditions or reduced sentences. Their testimony, the NACDL argues, is therefore untrustworthy and could result in the conviction of innocent defendants. In fact, according to the NACDL, the use of jailhouse informants is the "leading cause of wrongful conviction in capital cases."
The NACDL also argues that a decision allowing the use of jailhouse informants for impeachment purposes might prevent a defendant from testifying when he otherwise would do so. Since the prosecution can use an informant's impeachment testimony only if the defendant actually testifies, the defendant might choose not to testify in order to avoid having the jury hear the informant's fabricated testimony. Furthermore, the defense counsel might not find out whether an informant is testifying until just before trial, as informants occasionally come forward at the last minute. The NACDL argues that the uncertainty over whether an informant plans to testify will hinder the defense counsel's strategic planning, especially as to whether the defendant himself should testify.
In support of Kansas, however, the United States counters that jailhouse informants should be allowed to impeach a defendant's testimony at trial, because the use of impeachment testimony will deter defendants from testifying falsely and committing perjury. Similarly, twenty-five states ("States") argue that defendants might easily lie on the stand if not for impeachment testimony. According to the States, "This would erode the confidence of ordinary citizens in their judicial system."
In this case, the U.S. Supreme Court will determine whether a statement obtained from a criminal defendant using an informant, without the defendant's knowledge and in violation of his Sixth Amendment rights, may be used to impeach his trial testimony. If the Court finds in favor of Kansas, defendants may be deterred from testifying in their own defense at trial. A decision in favor of Ventris, on the other hand, may prevent the Government from being able to impeach a defendant's false or inconsistent statements at trial.