CrimProf Blog

More Thoughts on Kansas v. Ventris

Last week, I wrote about

Kansas

v. Ventris in which the U.S. Supreme Court decided that statements taken from a criminal defendant in the absence of counsel can be used to impeach his testimony at trial without violating his Sixth Amendment right to the assistance of counsel during interrogations, first articulated in Massiah v.

United States

.  In my prior post, I discussed why I thought the Court was wrong to place the locus of the constitutional violation at the point of the uncounseled interrogation, as opposed to the use of the fruits of that interrogation at trial.  In this regard, the Court distinguished the Fifth Amendment right against compelled self-incrimination from the Sixth Amendment right to counsel:  the former is violated at trial while the latter is violated at the time of the interrogation.   In my prior post, I discussed why both provisions are violated at trial.  In this post, I want to discuss why the Court has it exactly backwards:  legally compelled statements – both those actually compelled and those that are merely un-Mirandized – should be useable for impeachment while uncounseled statements should not.

 

Let us begin with a flub the Court makes on p.3, which none of the nine Justices seems to have caught, and which I have not heard anyone comment upon:  “The Fifth Amendment guarantees that no person shall be compelled to give evidence against himself . . . .”  Wrong.  The Fifth Amendment provides that “[n]o person shall . . . be compelled in any criminal case to be a witness against himself.”  The difference is more than semantic.  A number of state constitutions at the time of the framing and ratifying of the Bill of Rights prohibited compelling a person to “give evidence” or “furnish evidence” against himself.  That the Fifth Amendment provides instead that no one can be compelled to “be a witness” against himself seems to have been the result of a conscious decision to limit its scope.  This provides one justification for the Court’s limitation of the scope of the Self-Incrimination Clause to “testimonial” evidence, that which communicates or makes an assertion of fact or value.

 

This distinction makes a difference when we are talking about impeachment.  Donald Dripps has pointed out that when the prosecution wishes to use a defendant’s compelled words against him, but only for impeachment purposes, they are not being used for a testimonial purpose.  That is to say, the jurors are not asked to believe that the compelled statement is true; they are merely being told that it is something the defendant said, and, because it is inconsistent with his in-court testimony, it makes it less likely that the latter is true.  Of course, the statement can also be used for its truth, but that is no different from the slurred statement of a DWI suspect:  “I’m really drunk.”  If used for the truth of its contents, it is testimonial, while if used only to show his speech was slurred, it is non-testimonial.  The jury can be instructed to use the evidence for one purpose but not another (whether the jury can truly follow such an instruction is another question).

 

Thus,

New Jersey

v. Portash was wrong.  And Harris v.

New York

was right for the wrongs reasons.  Chavez v.

Martinez

tells us that the Self-Incrimination Clause is violated when incriminating testimonial evidence that was compelled from someone is used against that person at trial.  Dickerson v.

United States

tells us that the Miranda rule – excluding from trial all incriminating testimonial statements not preceded by the Miranda warnings and waiver – is constitutionally required.  Together, Chavez  and Dickerson tell us that the Self-Incrimination Clause is violated when un-Mirandized statements are used at trial.  But that is true only when they are used for a testimonial purpose, and impeachment is a non-testimonial purpose.  This is a much better explanation for Harris than the deterrence rationale given by the Court in that case.  Indeed, the deterrence rationale makes no sense after Chavez:  since the police do not do anything “wrong” by failing to read a suspect his Miranda rights and secure a waiver, there is nothing to deter.

 

But by this reasoning, Ventris is still wrong if, as I have argued, the Sixth Amendment is not violated until trial.  The Assistance of Counsel Clause does not merely protect a defendant from the use of compelled testimonial evidence at trial.  It protects him against the use at trial of any evidence that was secured from him while he was uncounseled – e.g., impeachment evidence, the location of physical evidence, or the identities of witnesses – for surely counsel’s job is first and foremost to prevent her client from assisting the State in any way, shape, or form [Mike Mannheimer]

Thoughts on Kansas v. Ventris

The U.S. Supreme Court yesterday decided that statements taken from a criminal defendant in the absence of counsel can be used to impeach his testimony at trial without violating his Sixth Amendment right to the assistance of counsel during interrogations, first articulated in Massiah v.

United States

.  The vote in

Kansas

v. Ventris was 7-2, with Justice Scalia writing the opinion for the Court and Justice Stevens writing a dissenting opinion joined by Justice Ginsburg.

 

Hiding within this resolution of a very narrow issue, covering a mere seven pages for the Court and four for the dissent, is a very interesting window into how the Justices view each of the different kinds of constitutional violations that can occur with regard to the investigative stage of criminal proceedings.  My Criminal Procedure students will tell you that I stress heavily the distinction between constitutional violations in the gathering of evidence and constitutional violations in the use of evidence.  Few Supreme Court decisions discuss, or even recognize, the distinction, but both the majority and the dissent in Ventris see this issue as central to the resolution of the case.

 

Ventris wanted the Court to characterize his Massiah right as essentially a trial right:  if the Sixth Amendment is violated only when uncounseled statements deliberately elicited from a defendant are used at trial, it stands to reason that all such use at trial, including use for impeachment, would violate the Sixth Amendment.  Instead, the Court determined that “the Massiah right is a right to be free from uncounseled interrogation, and is infringed at the time of the interrogation” (slip op.at 5).  After characterizing the Massiah exclusionary rule merely as a remedy for a constitutional violation that had already taken place, it was relatively easy for the Court to conclude that exclusion should not extend to use for impeachment purposes, for the costs of exclusion under those circumstances outweigh the benefits of any expected deterrent effect (see slip op. at 6-7).

 

This seems wrong to me.

 

First, it directly contradicts what the Massiah Court itself characterized as the holding of that case, grammatically awkward as it was:  “We hold that the petitioner was denied the basic protections of th[e] [Sixth Amendment] when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.”  And the Massiah Court concluded the opinion: 

 

We do not question that in this case, as in many cases, it was entirely proper to continue an investigation of the suspected criminal activities of the defendant and his alleged confederates, even though the defendant had already been indicted. All that we hold is that the defendant's own incriminating statements, obtained by federal agents under the circumstances here disclosed, could not constitutionally be used by the prosecution as evidence against him at his trial.

 

In contradistinction to this pretty clear holding, the Ventris Court quoted other language from Massiah that indicates that the Sixth Amendment violation took place during the interrogation:  “Any secret interrogation of the defendant, from and after the finding of the indictment, without the protection afforded by the presence of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime.”  But here, the Court was simply quoting the New York Court of Appeals without necessarily approving of its view of the nature of the Sixth Amendment right.

 

            Second,

Maine

v. Moulton holds that when the police deliberately elicit incriminating statements regarding both charged and uncharged crimes, the statements regarding the former are inadmissible but those regarding the latter are admissible.  One would think that if the police violate the Sixth Amendment at the time of the interrogation, that violation would taint all the evidence that results.  The Court gets around this, without specifically discussing Moulton, by pointing out that the Sixth Amendment is offense specific, and so in those circumstances the Sixth Amendment is violated as to the charged crimes but not the uncharged crimes.  That is one possible reading of Moulton.  But it is passing strange to think that the police can both violate and not violate the Sixth Amendment simultaneously.  True, it is possible for police to violate and not violate the Fourth Amendment simultaneously, but only because different people have different reasonable expectations of privacy.  In what other context do the police simultaneously violate and not violate a single constitutional provision by doing the exact same thing at the exact same time to the exact same person?  At all events, it is far simpler to conclude that the Sixth Amendment is never violated in such a situation so long as the statements relating to the charged crimes are never introduced at trial.

 

            Third, it would also be strange to think that someone could sue a police officer pursuant to section 1983 just because the officer interrogated him in the absence of counsel after charges had been brought.  As noted, both the Massiah  and Moulton Courts strongly suggest that the police do nothing wrong, and everything right, by sometimes questioning defendants in the absence of counsel.

 

Finally, on the same score, Ventris appears to be in some tension with Chavez v.

Martinez

, in which a majority of the Court concluded, among other things, that a section 1983 action would not lie for an un-Mirandized interrogation.  That, of course, was because Miranda is grounded in the Self-Incrimination Clause, and Chavez held that the Self-Incrimination Clause is not violated until trial.  But, then, on the Ventris Court’s view, un-Mirandized statements should not be useable for impeachment purposes at trial and

New York

v. Harris was wrongly decided.  Ventris also disregards the central holding of Chavez by characterizing Miranda as “forbidding certain pretrial police conduct” (slip op. at 4).  So either Chavez is wrong or Ventris is:  either use for impeachment is acceptable even if the Constitution is not violated until trial, which is what Chavez (together with Harris) teaches; or use for impeachment is barred when the Constitution is not violated until trial, which is the underlying premise of Ventris.  Instead, the Court wants to have its cake and eat it, too:  Massiah is violated during the interrogation, so uncounseled statements can be used for impeachment; and Miranda is not violated until trial, but un-Mirandized statements can be used for impeachment anyway.

Constitution Project Study IDs Flaws in Public Defense System

The American legal system guarantees "equal justice under law." Those words, carved in stone on the facade of the Supreme Court, are a constitutional promise that everyone will have the same opportunity for justice.

But a new report by the bipartisan Constitution Project says the United States has broken that promise for poor people accused of crimes. The report is the most in-depth study of indigent defense in decades.

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Courts Look to Fines and Fees in Tough Budget Times

Valerie Gainous paid her debt to society, but almost went to jail because of a debt to Florida’s courts.

In 1996, she was convicted of writing bad checks; she paid restitution, performed community service and thought she was finished with the criminal justice system. Earlier this year, however, she received a letter from Collections Court telling her that she was once again facing jail time — this time, for failing to pay $240 in leftover court fees and fines, which she says she cannot afford.

Ms. Gainous has been caught up in her state’s exceptionally aggressive system to collect the court fines and fees that keep its judiciary system working. Judges themselves dun citizens who have fallen behind in their payments, but unlike other creditors, they can throw debtors in jail — and they do, by the thousands.

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Judge Prohibits Blackberry Use by Jurors

There will be no Twittering in the courtroom.

As jury selection in the blockbuster trial of famed philanthropist Brooke Astor's son opened Monday, a Manhattan judge told 200 potential jurors to put away their BlackBerrys.

"I understand there is a temptation to review [news] stories," Supreme Court Justice Kirke Bartley said as he ordered panel members to stay away from their computers. "You are not to conduct research...particularly on the Internet."

"Blogging, BlackBerrys, whatever," are prohibited, he said in the nearly 10-minute lecture.

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Supreme Court Rejects Peremptory Challenge Claim

The U.S. Supreme Court today decided Rivera v. Illinois, No. 07-9995, unanimously rejecting the defendant's claim that the state trial court's erroneous denial of his peremptory challenge required a new trial. Justice Ginsburg delivered the opinion of the Court, and the introduction to her opinion summarizes the Court's holding:

This case concerns the consequences of a state trial court's erroneous denial of a defendant's peremptory challenge to the seating of a juror in a criminal case. If all seated jurors are qualified and unbiased, does the Due Process Clause of the Fourteenth Amendment nonetheless require automatic reversal of the defendant's conviction?

Following a jury trial in an Illinois state court, defendant-petitioner Michael Rivera was convicted of first-degree murder and sentenced to a prison term of 85 years. On appeal, Rivera challenged the trial court's rejection of his peremptory challenge to venire member Deloris Gomez. Gomez sat on Rivera's jury and indeed served as the jury's foreperson. It is conceded that there was no basis to challenge Gomez for cause. She met the requirements for jury service, and Rivera does not contend that she was in fact biased against him. The Supreme Court of Illinois held that the peremptory challenge should have been allowed, but further held that the error was harmless and therefore did not warrant reversal of Rivera's conviction. We affirm the judgment of the Illinois Supreme Court.

The right to exercise peremptory challenges in state court is determined by state law. This Court has "long recognized" that "peremptory challenges are not of federal constitutional dimension." United States v. Martinez-Salazar, 528 U. S. 304, 311 (2000). States may withhold peremptory challenges "altogether without impairing the constitutional guarantee of an impartial jury and a fair trial." Georgia v. McCollum, 505 U. S. 42, 57 (1992). Just as state law controls the existence and exercise of peremptory challenges, so state law determines the consequences of an erroneous denial of such a challenge. Accordingly, we have no cause to disturb the Illinois Supreme Court's determination that, in the circumstances Rivera's case presents, the trial court's error did not warrant reversal of his conviction.

[Brooks Holland]

Liptak Previews Strip Search Case

Savana Redding still remembers the clothes she had on — black stretch pants with butterfly patches and a pink T-shirt — the day school officials here forced her to strip six years ago. She was 13 and in eighth grade.

An assistant principal, enforcing the school’s antidrug policies, suspected her of having brought prescription-strength ibuprofen pills to school. One of the pills is as strong as two Advils.

The search by two female school employees was methodical and humiliating, Ms. Redding said. After she had stripped to her underwear, “they asked me to pull out my bra and move it from side to side,” she said. “They made me open my legs and pull out my underwear.”

Ms. Redding, an honors student, had no pills. But she had a furious mother and a lawyer, and now her case has reached the Supreme Court, which will hear arguments on April 21.

The case will require the justices to consider the thorny question of just how much leeway school officials should have in policing zero-tolerance policies for drugs and violence, and the court is likely to provide important guidance to schools around the nation.

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New Mexico Repeals Death Penalty

As the New York Times reported yesterday, New Mexico became the second State in eighteen months to repeal the death penalty.  Thirty-five States now authorize the death penalty while fifteen States and the District of Columbia do not [Mike Mannheimer].

New Phenomenon: "Google Mistrials?"

 Last week, a juror in a big federal drug trial in Florida admitted to the judge that he had been doing research on the case on the Internet, directly violating the judge’s instructions and centuries of legal rules. But when the judge questioned the rest of the jury, he got an even bigger shock.

Eight other jurors had been doing the same thing. The federal judge, William J. Zloch, had no choice but to declare a mistrial, wasting eight weeks of work by federal prosecutors and defense lawyers.

“We were stunned,” said the defense lawyer, Peter Raben, who was told by the jury that he was on the verge of winning the case. “It’s the first time modern technology struck us in that fashion, and it hit us right over the head.”

It might be called a Google mistrial. The use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges.

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Tamara Lawson on Hate Crimes and Prosecutorial Discretion

Tamara F. Lawson, a professor at St. Thomas University School of Law (Florida), has posted an interesting article draft to SSRN, "'Whites Only Tree,' Hanging Nooses, No Crime? Limiting the Prosecutorial Veto for Hate Crimes in Louisiana and Across America,"slated for publication in the University of Maryland Law Journal of Race, Religion, Gender & Class. Here is the abstract:

News coverage of three nooses hanging from the "whites only tree" at Jena High School, in Jena, Louisiana, created public outcry. Criticism rose as the public learned that District Attorney Reed Walters exercised his prosecutorial discretion to decline to press charges against the white students that admitted hanging the nooses, yet over zealously charged black students with attempted murder for conduct normally considered a battery or a school-yard-fight. The apparent lack of equity in the exercise of prosecutorial discretion became the focus of heated debate. Although the Jena High School incidents occurred in 2006, the Jena story is unpleasantly reminiscent of an older and uglier part of American history. A hanging noose is a universal symbol of racist threats of violence. District Attorney Reed Walter's proclamation that this type of conduct was not criminal sent a message of condoning racial intimidation and sparked a wave of copy-cat offenses across the country. This type of prosecutorial indifference toward hate crime negatively frames societal norms of acceptable conduct. Law enforcement's failure to condemn racially motivated criminal also encourages future violence and vigilantism.

This review addresses the prosecutorial veto's negative ripple-effect in hate crime cases. It suggests that unilateral prosecutorial discretion in hate crimes should be limited. Since hate crimes create an enormous impact upon the community as a whole, well-beyond any one individual victim, the community should be given a formal role with regard to charging decisions for hate crimes. This article suggests two ways the legislature can statutorily incorporate community input into the prosecutorial decision-making process: 1) mandating grand jury participation, or 2) authorizing a community enforcement task force for hate crimes. Additionally, this article advocates a third alternative of allowing the use of private prosecutors to pursue hate crime violators when the public prosecutor is unwilling or unable.

Heller "Firing Blanks?"

About nine months ago, the Supreme Court breathed new life into the Second Amendment, ruling for the first time that it protects an individual right to own guns. Since then, lower federal courts have decided more than 80 cases interpreting the decision, District of Columbia v. Heller, and it is now possible to make a preliminary assessment of its impact.

So far, Heller is firing blanks.

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Crim. Prof. Gerard Lynch May be Heading to Second Circuit

The New York Times reported on Tuesday:  "For the United States Court of Appeals for the Second Circuit, based in New York, [Obama administration] officials said the White House had settled on elevating Judge Gerard E. Lynch, a Columbia law professor, from the District Court."  Judge Lynch currently serves as U.S. District Judge for the S.D.N.Y. and continues to teach criminal law and related courses at Columbia Law School.  If appointed to the Second Circuit, he would join Columbia Law crim. prof. Debra Livingston, appointed by the second President Bush [Mike Mannheimer].

SCOTUS Decides Speedy Trial Clause Case

On Monday, the U.S. Supreme Court decided Vermont v. Brillon.  At issue was whether delays in bringing a defendant to trial that are attributable to his court-appointed lawyers should be counted against the prosecution for purposes of the Speedy Trial Clause of the Sixth Amendment, as incorporated against the States by the Fourteenth Amendment.  By a vote of 7-2, the Court held that such delays generally cannot be charged to the prosecution. [Mike Mannheimer]

Fatal Police Shooting of Mentally Ill Hostage-Taker Did Not Violate ADA

Police officers did not violate the Americans with Disabilities Act when they fatally shot a mentally ill hostage-taker, the U.S. Court of Appeals for the Fourth Circuit held Feb. 12 (Waller v. Danville, Va., 4th Cir., No. 07-2099, 2/12/09).

The decedent's sister argued that the officers did not face exigent circumstances because they waited two hours before taking action. She also contended that they should have reasonably accommodated his disability by not banging on the door and yelling at the decedent, but instead calling mental health professionals, contacting his family members, or seeking to administer medications to him.

But Judge J. Harvie Wilkinson III, while stopping short of recognizing an “exigent circumstances” exception to ADA liability, said that the officers' reasonable belief “ ‘that this was a potentially violent hostage situation' … cannot help but inform” the ADA inquiry. He further concluded that the accommodations proposed by the sister were unreasonable, while the steps taken by the officers—including speaking with their supervisors, deploying a hostage negotiator, and attempting to calm the situation by waiting at least two hours before entering the premises—were reasonable under the totality of the circumstances, and thus satisfied any ADA duty of accommodation.

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Study Shows Immigration Offenses Increasing the Number of Latino Federal Convicts

The sharp growth in illegal immigration and increased enforcement of immigration laws have dramatically altered the ethnic composition of offenders sentenced in federal courts. In 2007, Latinos accounted for 40 percent of all those convicted of federal crimes and one third of all federal prison inmates, according to a new study by the Pew Research Center, a non-partisan think tank.

Nearly half of all Latino offenders, or about 48 percent, were convicted of immigration crimes. Drug offenses were the second-most prevalent charge among Latino federal convicts, according to the report, which was made public on Wednesday.

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