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)

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


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 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.




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.


, 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.

April 30, 2009 in Confessions and Interrogation | Permalink | Comments (0) | TrackBack (0)

Thursday, November 27, 2008

Temple case still haunting

For nearly eight weeks in the late spring and summer of 1993, he was Juror No. 3 in the trial of a young man accused of the worse mass murder in Arizona history.

When deliberations ended on July 13, the eight-woman, four-man panel of which Richard Noel was a part found then 19-year-old Johnathan Andrew Doody guilty of the execution-style slaughter of nine people at a Buddhist temple west of Phoenix.

"We didn't talk to reporters afterwards," Noel told me. "We were so emotionally drained it was like everyone just wanted to go home and cry."

Continue reading

November 27, 2008 in Confessions and Interrogation | Permalink | Comments (0) | TrackBack (0)

Friday, November 21, 2008

Experts: Interrogation of boy, 8, 'out of bounds'

The third-grader's legs dangle at times from an overstuffed chair as he answers the questions of two female police officers. His manner and voice are casual, even helpful, but his words are shocking.

And so, legal analysts say, were the methods police used to obtain them.

By the time the boy was finished talking, say police in St. Johns, Arizona, he'd confessed to a premeditated double murder.

The 8-year-old is charged in juvenile court with killing his father, Vincent Romero, 29, along with Tim Romans, 39, a man who rented a room in Romero's home. Police have said the boy confessed to shooting the men. He has not entered a plea.

Continue reading

November 21, 2008 in Confessions and Interrogation | Permalink | Comments (2) | TrackBack (0)

Thursday, November 20, 2008

Hearing Slated for Boy Charged with Fatally Shooting Dad

A court hearing is scheduled Wednesday afternoon for an 8-year-old boy accused of shooting his father and another man in rural Arizona.

A dramatic police videotape released Tuesday shows a tearful boy in St. Johns, Ariz., confessing to murder, then burying his face in his shirt after more than an hour of questioning by detectives.

"I think, um, I think I shot my dad because he was suffering, I think," the third-grader says on the tape. "So I may have shot him."

Continue reading

November 20, 2008 in Confessions and Interrogation | Permalink | Comments (0) | TrackBack (0)

Thursday, October 16, 2008

False Confession: Devine on his 12 Years in Office

Outgoing Cook County State's Attorney Dick Devine says he knows innocent people sometimes confess to crimes they didn't commit. He says it's one of the things he's learned in his time as the county's top prosecutor.

Continue reading

October 16, 2008 in Confessions and Interrogation | Permalink | Comments (0) | TrackBack (0)

Sunday, September 21, 2008

Police tactics in '75 murder case debated

Three weeks out of a mental hospital, Curtis Jasper Moore spent the night of Jan. 8, 1975, at the Emporia police station asking for his mother.

He sang "The Ballad of Paladin," the theme song of an old television Western, and his focus wandered. According to a transcript of the interrogation, Greensville County Sheriff Earl D. Sasser kept telling him, "Look at me. Look at me."

Losing his patience, Sasser said: "You're not half as damn nuts as you act like you are, you know that? You know what happened last week, don't you? Huh?"

Continue reading

September 21, 2008 in Confessions and Interrogation | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 16, 2008

'First 48' airs confession, draws criticism from Lester guardian

1lester_t220 In an interrogation aired on national television Tuesday night, Lt. Toney Armstrong of the Memphis Police Department drew a confession from 33-year-old Jessie Dotson for the Lester Street mass murder.

The confession came at the end of an hourlong episode of "The First 48," an A&E Television reality show that follows homicide detectives in several cities, including Memphis.

Continue reading

July 16, 2008 in Confessions and Interrogation | Permalink | Comments (1) | TrackBack (0)

Saturday, April 12, 2008

New Article Spotlight: Charles Weisselberg on Mourning Miranda

Berkeley CrimProf Charles Weisselberg has published Mourning Miranda on SSRN.  The abstract: "The article presents new field research about police interrogation tactics and training and discusses that research in light of recent science literature and judicial decisions. I argue that the safeguards of Miranda v. Arizona have become ineffective, not because police are deliberately disobeying Miranda, but because officers have learned how to take advantage of rulings that have critically weakened Miranda's supposed protections.

Miranda's warnings and waivers were intended to afford custodial suspects an informed choice between speech and silence, and prevent involuntary statements. But there never was evidence to show that a system of warnings and waivers could actually protect the Fifth Amendment privilege against self-incrimination. Since Miranda was decided, the Supreme Court has encouraged police practices that have effectively gutted Miranda's safeguards. This paper presents police training materials that are not generally available to the public. Training is a primary link between the Court's pronouncements and the way in which interrogations are actually conducted. Combined with the social science literature, these training resources demonstrate how the warning and waiver regime coheres with a sophisticated psychological approach to police interrogation, rather than operate apart from it, as the Court intended.

I also argue that Miranda is now detrimental to our criminal justice system. It is bad enough that Miranda's vaunted safeguards appear not to afford meaningful protection to suspects. But following Miranda's hollow ritual often forecloses a searching inquiry into the voluntariness of a statement. I am skeptical that the courts may retool Miranda's procedures. I suggest other possibilities, including legislation."  Full article here. [Jack Chin] 

April 12, 2008 in Confessions and Interrogation | Permalink | Comments (0) | TrackBack (0)

Saturday, February 16, 2008

En Banc Ninth Circuit Holds That When a Suspect in Custody Says "I Plead the [F]ifth," He Has Invoked His Miranda Right to Remain Silent

The en banc Ninth Circuit yesterday reversed a denial of habeas relief to a state prisoner convicted after his statements to police were admitted into evidence, where those statements were the result of an interogation during which he said, "I plead the [F]ifth."  The California Court of Appeals had determined that this apparent invocation of the right to remain silent was ambiguous inasmuch as it may have referred only to a single line of questioning regarding the suspect's drug use rather than the murder for which he ultimately was convicted.  That court also determined that the police officer's follow-up question -- "Plead the [F]ifth?  What's that?" -- was a legitimate clarifying question rather than an effort to "play dumb" and keep the suspect talking.  The Ninth Circuit held that the former conclusion was an unreasonable application of Miranda and the latter was an unreasonable determination of the facts.  You can read the opinion here. [Mike Mannheimer]

February 16, 2008 in Confessions and Interrogation | Permalink | Comments (0) | TrackBack (0)

Thursday, February 14, 2008

Seton Hall Law Students Discover the Government Records Guantanamo Bay Interrogations

Seton Hall Law’s Center for Policy and Research has discovered new evidence of a longstanding government practice of recording interrogations at Guantánamo Bay. In light of the national debate about the Central Intelligence Agency’s (CIA) destruction of video recordings, the report proves that the two CIA tapes that were destroyed were only a tiny fraction of perhaps 24,000 recorded interrogations.

A May 2005 report by Lieutenant General Kevin Kiley confirms that each interrogation at Guantánamo was videotaped. Lieutenant General Randall Schmidt issued a report the following month stating that more than 24,000 interrogations of detainees took place at Guantánamo over a three-year period. In the meantime, the Bush administration has announced it will pursue the death penalty for six detainees who will stand trial for crimes related to the attacks of September 11, 2001.

Professor Mark Denbeaux, Director of the Center for Policy and Research at Seton Hall Law, commented, “Our students proved that Guantánamo interrogations were videotaped, which impacts the impending trials of the six detainees. We all want to see the perpetrators of 9/11 punished. But if the tapes of those interrogations still exist, it is imperative that we understand, before these trials start, whether the information was obtained through standard interrogation procedures or through torture.”

Captured on Tape, the Center’s seventh Guantánamo Report, is based entirely on the government’s own documents, most of which were procured through Freedom of Information Act suits. The prior Reports have been cited by the Senate Armed Services Committee, the House Armed Services Committee, the House Appropriations Committee, and the Senate Judiciary Subcommittee on Terrorism, Technology and Homeland Security; and introduced into the Congressional Record.

[Mark Godsey]

February 14, 2008 in Confessions and Interrogation | Permalink | Comments (0) | TrackBack (0)

Sunday, April 1, 2007

Should Suspect Interviews be Tape-Recorded?

A brutal crime on a Navajo reservation in Arizona has intensified the debate over whether suspect interviews should be tape recorded.  The crime involves a Navajo man charged with beating his girlfriend nearly to death and then hanging her by a rope outside their Arizona trailer home to make the attack look like a suicide attempt.

Paul K. Charlton, the United States attorney in Arizona, was ousted after spending months protesting a FBI policy that, for practical purposes, forbids the taping of almost all confessions, in stark contrast to the practice of many local law enforcement agencies in Arizona and other locations across the country.

Mr. Charlton blamed the F.B.I. policy for the resulting plea bargain in the Navajo reservation assault case, as well as the acquittal of a defendant in a child sexual abuse case and a suspect in a prison murder indictment.

Eight states, by law or court action, mandate taping of interviews with suspects in at least serious felony cases, turning a tape recorder or video camera into an important tool in convictions, like DNA tests, fingerprints and ballistics. More than 450 law enforcement agencies in major cities and smaller jurisdictions also require the taping of certain interrogations. The FBI, however, has strenuously resisted the practice unless special permission is granted by supervisors, under the theory that it may discourage suspects from talking and expose juries to interrogation methods that the department would rather not highlight.

But many prosecutors believe that the inability to tape suspects, especially those accused of sexual abuse and domestic violence, can seriously compromise a case. Story here from . . [Michele Berry]

April 1, 2007 in Confessions and Interrogation | Permalink | Comments (0) | TrackBack (0)

Thursday, March 29, 2007

Guantanamo Confessions Scrutinized under the World's Microscope

Just how significant were the recent Guantanamo confessions?  Jonathan Hafetz, an attorney with NYU Law's Brennan Center for Justice, who represents Guantanamo prisoners calls the confessions the result of "justice on the fly" while Berkeley LawProf John Yoo views the confessions as the result of a balance between protecting national security/gathering wartime intelligence and administering a fair trial with due process protections. Full story. . . [Michele Berry] 

March 29, 2007 in Confessions and Interrogation, Homeland Security | Permalink | Comments (0) | TrackBack (0)

Thursday, October 19, 2006

The Right to Silence Questioned in New Zealand

In New Zealand, the Police Association is calling for the right to silence to be reviewed and possibly revoked so that the police can compel people to talk. (I don't know if their proposal calls for a change in the law that would allow the right to silence to be used against people who invoked it--ie. to infer guilt--or if the New Zealand police would be allowed to use more aggressive "techniques," so to speak, to compel people to talk...probably the former, but the full story doesn't elaborate).

Two recent child homicide cases in New Zealand, in which the police say parents have refused to be interviewed, spurred the Police Association's call for review of the right to silence. Full story. . .

Mark Godsey's most recent article (Reformulating the Miranda Warnings in Light of Contemporary Law and Understandings) has a portion discussing how, internationally, inferring guilt from one's assertion of the right to silence (if a right to silence even exists) isn't an uncommon phenomenon.  In fact, many people in the U.S. think that invoking the right to silence will be used against them in some way, even though such inferences of guilt are unconstitutional.  [Michele Berry]

October 19, 2006 in Confessions and Interrogation, International | Permalink | Comments (0) | TrackBack (0)

Sunday, September 10, 2006

Bush Administration Attempts to Legalize Harsh Interrogation Techniques

From Many of the harsh interrogation techniques repudiated by the Pentagon on Wednesday would be made lawful by legislation put forward the same day by the Bush administration. And the courts would be forbidden from intervening.

The proposal is in the last 10 pages of an 86-page bill devoted mostly to military commissions, and it is a tangled mix of cross-references and pregnant omissions.

But legal experts say it adds up to an apparently unique interpretation of the Geneva Conventions, one that could allow C.I.A. operatives and others to use many of the very techniques disavowed by the Pentagon, including stress positions, sleep deprivation and extreme temperatures.

Rest of Article. . . [Mark Godsey]

September 10, 2006 in Confessions and Interrogation | Permalink | Comments (0) | TrackBack (1)

Wednesday, June 21, 2006

Freed Man Testifies About The Reality of False Confessions

From Seventeen years ago, Christopher Ochoa told a Texas jury exactly how he and a friend repeatedly raped 20-year-old Nancy DePriest and then shot her dead at her workplace. But Ochoa's story was a lie — a total lie. He had been threatened with the death penalty by a police detective if he did not admit to the murder. The fact that Ochoa confessed falsely did not come to light until 2000, four years after the real killer told police that he was responsible for the young woman's death.

Today, Ochoa is testifying in Los Angeles at a hearing of the state's Commission on the Fair Administration of Justice about the ramifications of their experience for California. In particular, they want to express their strong feelings about a subject that many people find difficult to grasp: that innocent people sometimes really do confess to crimes they did not commit.

"Cases like this reveal in very dramatic terms that this does happen — not just with people who are mentally ill or of limited intelligence or otherwise vulnerable, such as children," said  University of Wisconsin School of Law CrimProf Keith A. Findley, who played an instrumental role in securing freedom for Ochoa and Danziger. "It happens with mentally healthy, intelligent people like Chris Ochoa," who last month graduated from the law school where Findley teaches, the professor said.

Indeed, of the 180 inmates in the United States exonerated by DNA testing in the last two decades, 44 had falsely confessed, said New York attorney Barry Scheck, a co-founder of the Innocence Project at New York's Benjamin N. Cardozo School of Law who also played a key role in the case.

Rest of Article. . . [Mark Godsey]

June 21, 2006 in Confessions and Interrogation | Permalink | Comments (1) | TrackBack (0)

Wednesday, April 26, 2006

Why Innocent People Confess

LA Times story here.  [Mark Godsey]

April 26, 2006 in Confessions and Interrogation | Permalink | Comments (0) | TrackBack (0)

Friday, April 21, 2006

New Blog on False Confessions

Williams College Prof./ Yale Law School grad Alan Hirsch has a new website on false confessions,  It is worth checking out

April 21, 2006 in Confessions and Interrogation | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 22, 2006

Courts, Congress, DOJ Scrutinize Witness Detention Law

After reports that it has been abused in terrorism investigations, a 22-year-old federal law that allows people to be held without charges if they have information about others' crimes is coming under fresh scrutiny in the courts, in Congress, and within the Justice Department. The law allows so-called material witnesses to be held long enough to secure their testimony if there is reason to think they will flee. But lawyers for material-witness-detainees say the law has been used to hold people who the government fears will commit terrorist acts in the future, but whom it lacks probable cause to charge with a crime.

Concerns about how the law has been used have prompted calls from across the political spectrum for a reassessment. That debate has also ignited a broader one: whether the United States should join the several Western nations that have straightforward preventive detention laws. More from NYTimes. . . [Mark Godsey]

March 22, 2006 in Confessions and Interrogation, Homeland Security, Search and Seizure | Permalink | Comments (0) | TrackBack (0)

Saturday, March 4, 2006

Are Compelled Confessions from Foreign Lands Admissible in US Courts?

A Chicago case raises the question: A man interrogated over a long period by Israeli intelligence officers is challenging his statements.

March 4, 2006 in Confessions and Interrogation | Permalink | Comments (0) | TrackBack (0)