30 April 2009

Kansas v. Ventris:
Trimming Protections Against Unconstitutional Interrogations

[1] In Kansas v. Ventris the question presented to the US Supreme Court was whether a confession gained by police instigated interrogation of a defendant after he has an attorney can be used to impeach the defendant's trial testimony.


[2] After Ventris had an attorney, police sent an informant into his cell to get information. The informant reported that Ventris confessed the crime to him. At trial, the defendant testified that he did not commit the crime. The prosecution then used the informant in rebuttal to impeach the defendant. After conviction defendant appealed the planting of the informant in his cell as unconstitutional questioning without the defendant's attorney present (or waiver of his presence).

6th Amendment Right to Counsel

[3] Scope of the Right: The Court makes it extremely clear that the right to counsel is not limited merely to the actual trial. The defendant is definitely entitled to his 6th Amendment right to have his counsel present at any pretrial interrogation.

[4] Scope of the Remedy: Unconstitutionally obtained statements shall be allowed in rebuttal. They are still banned from the prosecutor's case in chief.

~~~~~ Lammers ~~~~~

[5] The entire basis of this decision is the Court devaluing the constitutionally guaranteed right to counsel in favor of the a non-constitutional mandate that courts should be protected against possible perjury and disruption of "the integrity of the trial process." This is poorly reasoned, favoring the discouraging of illegal acts over the forbidding of unconstitutional ones. It is badly out of kilter with modern constitutional cases such a Virginia v. Moore which proclaim that illegalities are irrelevant as long as the constitution is followed.

[7] Not every illegal act is unconstitutional. Perjury started out as a common law crime (Blackstone, Book IV Chapter 10 sec. 16), but has long since been a statutory crime. See 18 USC 1621, Kentucky Revised Statute 523.020, Rhode Island General Law 11-33-1, Michigan Penal Code 750.422, and Alaska Statute 11.56.200. Even Virginia, with its fondness for the common law, has made perjury a statutory offense. In either event, perjury is a criminal offense against the orderly pursuit of justice and the constitution is silent upon whether the government has a right to unperjured testimony. This does not mean it approves of it; it just means that it was a matter left to the legislatures to sort out and thus became a matter of law rather than constitution (as demonstrated by the statues enacted).

[8] As well, perjury as a criminal charge is not within the bosom of the courts. As an initial matter, the decision of whether someone has committed perjury is prerogative of the prosecutor - not the courts. Should a prosecutor have proof that perjury has been committed the statutes clearly lay out the remedies which the various legislatures have allowed prosecutors to seek. All of these require a trial specifically on the matter of perjury and its proof beyond a reasonable doubt. None of them rise to the level of a constitutional matter.

[9] What the Court is actually talking about here is impeachment. It's a handy way of short stopping the entire issue of perjury. The level of proof for impeachment is far lower than would be required in giving someone their constitutional right to a trial on perjury and its requirement of proof beyond a reasonable doubt. Impeachment merely requires some rational quantum of evidence tending to show that the testimony of a witness was not truthful. Of course, impeachment is a valid part of any trial and it's not mutually exclusive of a perjury charge. However, it is instructive about what the court actually decided.

[10] The US Supreme Court decided that presenting evidence which does not rise to the level of proof beyond a reasonable doubt of perjury - merely tending to show that a defendant's testimony was not truthful - is more important than a clearly violated constitutional right to have counsel present during questioning. As the Court acknowledges that violation of this right precludes the use of the evidence gained in a prosecutor's trial in chief, this evidence couldn't even be used in a perjury trial. Thus, the Court creates an exception, allowing criminal procedure alone to trump a constitutional right.

[11] Ultimately, in a most amazing paragraph the Court simply states that no harm will come from this because it's not likely a defendant will testify in his own defense anyway and that an officer won't violate the right because then the evidence gained will only be usable to impeach the defendant's testimony and the officer can't anticipate that the defendant will get on the stand and tell a story inconsistent with the story he'll tell the officer when his right to counsel is violate.
[12] On the other side of the scale, preventing impeachment use of statements taken in violation of Massiah would add little appreciable deterrence. Officers have significant incentive to ensure that they and their informants comply with the Constitution’s demands, since statements lawfully obtained can be used for all purposes rather than simply for impeachment. And the ex ante probability that evidence gained in violation of Massiah would be of use for impeachment is exceedingly small. An investigator would have to anticipate both that the defendant would choose to testify at trial (an unusual occurrence to begin with) and that he would testify inconsistently despite the admissibility of his prior statement for impeachment. Not likely to happen - or at least not likely enough to risk squandering the opportunity of using a properly obtained statement for the prosecution’s case in chief.
[13] That's correct, a US Supreme Court decision is based on a belief that it is unlikely that the defendant will testify. It's backed up by a statement that shows an amazing lack of understanding of why a statement would be taken by a police officer. The exact purpose that an officer would be taking a statement after the defendant has an attorney is to lock him into a particular version of the facts with the thought that the defendant could tell a different story at trial. After all, if the officer expected the defendant to take the stand and testify exactly in the manner most likely to lead to a conviction, why would he waste time trying to get a statement from the defendant?

Practical Application

[14] As a practical matter, this opens up several tactics to law enforcement. Prior to this decision the further development of the case through human information gathering techniques was severely limited after the defendant had a lawyer. Now the Supreme Court has given its imprimatur to the continued use of human information gathering techniques despite a defense attorney's involvement.

[15] Informants, whether they be planted in jail or sent to approach a defendant on bond, are clearly sanctioned by this opinion. Furthermore, this decision's scope seems to allow police to reinterview the defendant after the appointment of an attorney. Neither of these will produce evidence which can be used in the prosecutor's case in chief. However, the mere fact that a charge has been taken should reflect that the prosecutor already has enough evidence for his case in chief. The purpose of the actions taken after a defendant has an attorney will be to preclude the defendant from testifying or build a crushing case against him should he choose to do so. These are all constitutionally valid tactics per the Ventris decision and if these are the rules we lay down for our law enforcement agencies we should expect they will play by the rules we give them.


ParatrooperJJ said...

I was once given some advice by a seasoned homicide detective. he said to wear gloves and to keep your mouth shut and you would get away with commiting any crime. Seems this still holds true today.

Tom McKenna said...

A quibble: I find your concern about abiding by the plain text and meaning of the Constitution, over and above a mere non-constitutional judicial concern (perjury) problematic.

Use of the statements at trial should not be an issue at all, since the Constitution does not forbid their use at trial. Exclusion is a judge-created remedy not found in the Constitution.

In other words, you seem to have a complaint that the Court OKs introduction of the statement so that a fraud is not perpetrated on the Court, but exclusion itself is simply a judge made remedy, not constitutionally mandated, and the Court could just as easily say, consonant with the text of the Constitution, "so long as the statement is voluntary, we don't care how it was obtained, it comes in since we are interested in juries having more information, not less." The real shame is that relevant information is kept from the jury, hampering their truth-finding function.

This entirely too modest departure from exclusion is hardly remarkable.

Defendants should not be able tell varying stories and not be called out for it. If this hampering of their ability to lie makes it inconvenient for them to testify, the blame lies not with the police or the Court, but with the lying defendant.

Ken Lammers said...

I have a problem with the Court promoting violations of the constitution. In this decision the Court states that what the government did was clearly unconstitutional. Then it says "Go ahead and do it anyway. We won't use the only remedy we have for this violation against you."

Anonymous said...

Tom McKenna sure loves his rights without remedies.