Wednesday, April 29, 2009

Statement Obtained In Violation of Massiah Is Admissible at Trial for Impeachment Purposes

Kansas v. Ventris, No. 07-1356 (U.S. Apr. 29, 2009)

The question presented: "whether a defendant's incriminating statement to a jailhouse informant, concededly elicited in violation of Sixth Amendment strictures, is admissible at trial to impeach the defendant's conflicting statement."

The answer: yes.

How we got here: Ventris and an accomplice robbed a man at gunpoint. One of them shot and killed the victim. They both claimed that the other was the shooter. The accomplice copped a plea; in exchange for the State dropping the murder charge against her, the accomplice agreed to testify that Ventris was the shooter.
Prior to trial, officers planted an informant in Ventris’s holding cell, instructing him to "keep [his] ear open and listen" for incriminating statements. Accordingto the informant, in response to his statement that Ventris appeared to have "something more serious weighing in on his mind," Ventris divulged that "[h]e’d shot this man in his head and in his chest" and taken "his keys, his wallet, about $350.00, and . . . a vehicle."
Ventris testified at his trial, claiming that the accomplice was the shooter. The State, over Ventris's objection, called the informant to testify to Ventris's contrary statement in the jail cell. The jury wound up finding Ventris not guilty of felony murder and misdemeanor theft, but found him guilty of aggravated burglary and aggravated robbery.

From trial on up, the State conceded that Ventris's inculpatory statement to the informant was obtained in violation of Massiah v. United States, and therefore not admissible during the prosecution's case-in-chief. (Massiah held that one of the critical pretrial interactions triggering the Sixth Amendment right to the assistance and presence of counsel is when law enforcement officers—or their agents—interrogate a defendant concerning the charges against him.) But the State argued that the statement could nevertheless be introduced to impeach Ventris's contrary testimony on the stand.

"Without affirming whether [the State's] concession was necessary," the Court "accept[ed] it as the law of the case." And the Court went on to hold that the statement could be offered to impeach Ventris.

Justice Scalia, writing for a seven-Justice majority, framed the analysis thusly: "Whether otherwise excluded evidence can be admitted for purposes of impeachment depends upon the nature of the constitutional guarantee that is violated." Here, the violation was of Ventris's Sixth Amendment right to the assistance of counsel during pretrial interrogation concerning the charges against him. That right "is infringed at the time of interrogation."

The question then became, according to the Court, not how to prevent a constitutional violation, but how to remedy one that had already occurred. And to answer that question, the Court conducted a balancing that worked out the way such balancings ususally do: cost of exclusion high, benefit of exclusion low.

[P]reventing 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.

In any event, even if "the officer may be said to have little to lose and perhaps something to gain by way of possibly uncovering impeachment material," we have multiple times rejected the argument that this "speculative possibility" can trump the costs of allowing perjurious statements to go unchallenged. We have held in every other context that tainted evidence—evidence whose very introduction does not constitute the constitutional violation, but whose obtaining was constitutionally invalid—is admissible for impeachment. We see no distinction that would alter the balance here.

Justice Stevens dissented, joined by Justice Ginsburg. To him, "[t]he use of ill-gotten evidence during any phase of criminal prosecution does damage to the adversarial process—the fairness of which the Sixth Amendment was designed to protect."
Today’s decision is lamentable not only because of its flawed underpinnings, but also because it is another occasion in which the Court has privileged the prosecution at the expense of the Constitution. Permitting the State to cut corners in criminal proceedings taxes the legitimacy of the entire criminal process. . . . Although the Court may not be concerned with the use of ill-gotten evidence in derogation of the right to counsel, I remain convinced that such shabby tactics are intolerable in all cases. I respectfully dissent.

I'll add another criticism of the majority's opinion: the Court shouldn't have used such a poor vehicle to decide such an important question. There's no indication in the opinion that Ventris denied making the statement that the informant claimed he did, and the jury apparently didn't give much weight to the informant's testimony anyway since it acquitted Ventris of the murder charge. If you think those things didn't make at least some difference in the outcome, consider that the majority justifies its holding in part by "'the need to prevent perjury and to assure the integrity of the trial process.'" Consider also this footnote near the end of the opinion:
Respondent’s amicus insists that jailhouse snitches are so inherently unreliable that this Court should craft a broader exclusionary rule for uncorroborated statements obtained by that means. Our legal system, however, is built on the premise that it is the province of the jury to weigh the credibility of competing witnesses, and we have long purported to avoid "establish[ing] this Court as a rule-making organ for the promulgation of state rules of criminal procedure." It would be especially inappropriate to fabricate such a rule in this case, where it appears the jury took to heart the trial judge’s cautionary instruction on the unreliability of rewarded informant testimony by acquitting Ventris of felony murder.

Then why grant cert in this case, especially given the majority's not-so-veiled suggestion that there might not have been a Massiah violation here in the first place? You have to wonder if the outcome would have been different, or at least if the vote would have been closer, if the case actually involved a conviction based on questionable informant testimony that the defendant disputed.

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