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Thursday, April 30, 2009

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.

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