CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, May 6, 2009

More Thoughts on Kansas v. Ventris

Last week, I wrote about


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).



New Jersey

v. Portash was wrong.  And Harris v.

New York

was right for the wrongs reasons.  Chavez v.


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]

May 6, 2009 in Confessions and Interrogation | Permalink | Comments (0) | TrackBack (0)