This post continues from the background to the case which was published previously. Since the Kansas Supreme Court’s decision in State v. Ventris was based on rights guaranteed in the Federal Constitution the U.S. Supreme Court has jurisdiction to review it. The State of Kansas filed a certiorari petition which the Supreme Court granted, and the case will be argued on January 21st 2009.
Before proceeding any further, it should be noted that in the background of this case is a much bigger issue than the immediate concerns of Mr Ventris, or even the main issue of the introduction of this type of evidence for impeachment purposes. The Warren court decided in Massiah v. United States (1964) that once criminal proceedings had commenced (the right to counsel is said to be attached at this point), statements made by the defendant without his lawyer present were inadmissible. Massiah is a far reaching case, but one which the Court has seemed to back away from in more recent years. When the issue was last addressed in Michigan v. Harvey (1990) the Court explicitly noted that it was not addressing the use of such statements for impeachment purposes. Now, that that latter issue is before it there is clearly fear on the part of the Respondents that the U.S. Supreme Court will trim back Massiah if it finds for Kansas.
In its appeal, Kansas argues that the Kansas Supreme Court erred in its application of an exclusionary rule to evidence used for impeachment purposes. The state argues that as it has crafted its exclusionary rules the U.S. Supreme Court has clearly differentiated between evidence that is admissible in the case in chief and evidence that is only available for purposes of impeaching a defendant’s testimony. Citing caselaw concerning the 4th, 5th and 6th amendment exclusionary rules the state argues that to disallow the use of this kind of evidence for this purpose would create a ‘license to commit perjury’ and that any exclusionary rule crafted should balance between the protection of the underlying constitutional rights and the Trial Court’s role as a truth-seeker. The proper balance it says is to block such evidence only in the case in chief. It notes that well known exclusionary rules such as those stemming from illegal seizures and Miranda rights do not prevent the use of such evidence for impeachment purposes.
The State further argues that the purpose of exclusionary rules is to deter future misconduct by police. Losing the evidence for those purposes is bad enough to deter future miss-steps. It is worth noting at this point that this is an appeal of a conviction for aggravated robbery. Had Ventris’ statements to Doser been admissible in the main case, perhaps he would not have been acquitted of felony murder. The State also makes the argument that other deterrents exist given the increasing professionalization of the police and the existence of Bivens actions and 1983 suits.
The State also takes issue with the Kansas Supreme Court’s use of the term ‘prophylactic rule’. It argues that ,while this is a useful analytical term to describe how the U.S. Supreme Court has crafted its rules, citing it in the way it did the Kansas Supreme Court elevated it to the status of a ‘legal talisman’ that it does not warrant. Perhaps this argument is designed to show a lack of textual fidelity to get the attention of the conservative Justices.
Ventris’ argument takes a different approach. His brief draws a distinction between different types of exclusionary rules – those that protect a constitutional right itself and those that are ancillary to the right. It is these latter ones which have exceptions for impeachment purposes. For example, in the case of the Fourth Amendment and an illegal search, it is the police search which was the violation, not the admission of the evidence at trial. Thus the rule excludes the evidence from the case in chief as a deterrent but does not eliminate it altogether. In contrast, the right to avoid self incrimination concerns the trial itself and is therefore totally exclusionary. At its heart, Ventris’ argument is that the 6th Amendment right to counsel is fundamental to the adversarial process which in turn is fundamental to justice, and that since it is inextricably connected to the trial the only remedy for a violation is total exclusion. His brief cites Powell v. Alabama (1932) for an eloquent argument of why a defendant needs a lawyer in the pre-trial process. This case, he reminds the Court, was why the right to counsel was extended to apply before trial, since today much interrogation happens before any trial which was not the case at the time of the Founding.
As a backup position the brief argues that even if the U.S. Supreme Court does find an exception to the exclusionary rule it should not be as broad as that sought by Kansas but should be limited to cases where a defendant is clearly lying.
Kansas is supported by three amicus briefs. The first two of these (from the United States, and from 24 of the States) break no new ground but underpin and expand on Kansas’ core arguments. The third, submitted by the Criminal Justice Legal Foundation is noteworthy. While the first section of this brief ties back to the Ventris case, much of it is devoted to an analysis of Massiah, its origins and an argument that Massiah has been superseded by the Court’s holding in Kuhlmann v. Wilson (1986) which allowed confessions collected by a passive listener. The brief focuses on the voluntary nature of Ventris’ conversation with Doser and makes the argument that it should not be classed as an interrogation at all, and therefore Ventris should have no 6th Amendment rights at issue. The brief suggests that the decision of the Kansas Supreme Court was motivated by hostility to informants.
An interesting piece of trivia is that the same passage from Powell, which the Respondents’ brief cited is contained in the CJLF brief too, where it is used to argue that the purpose of the 6th Amendment is to protect a right which exists in the critical stages of a prosecution and that extending those to include the circumstances of this case is too much.
We will have more coverage of this case, when it is argued before the U.S. Supreme Court.