January 21st. The United States Supreme Court today heard oral arguments in Kansas v. Ventris, an appeal by the State of Kansas against the ruling of the Kansas Supreme Court that evidence gathered by a police informant in violation of a defendant’s Sixth Amendment right to counsel could not be admitted to contradict the defendant’s testimony at trial (impeachment purposes). Background on this case can be read here and here. Argument time was divided between Stephen McAllister (Solicitor General of Kansas), Nicole Saharsky (of the United States Solicitor General’s Office, in support of Kansas) and Matthew Edge (Kansas Appellate Defenders Office).
The argument was surprisingly muted – normally counsel appearing before the Court have a great deal of trouble getting through their arguments without questions from the Justices. On this occasion however pages of the transcript go by between questions! Perhaps the most memorable thing about it will be that Justice Ginsburg used the word ‘snitch’ instead of the more neutral ‘informant’ no fewer than six times.
Justice Scalia’s questioning revolved around where the Sixth Amendment violation occurred – with the informant in the cell or with the testimony at trial, something that none of the three lawyers arguing the case was able to answer in a convincing manner. This will be important since Ventris’ argument depends upon casting the Sixth Amendment as a right which guarantees certain procedural aspects of the entire prosecution process, while Kansas and the United States argue that the rule against questioning someone without a lawyer present from Massiah is more akin to Miranda rights, evidence gathered in violation of which can be brought up for impeachment purposes. However, Scalia left few hints about which way he was thinking.
This distinction will also be important to Justice Breyer, who stated that he viewed the purpose of the Right to Counsel to be to ensure that if you ask for a lawyer you get one. He thought that the conduct of the police here was more akin to an ethical violation (talking to someone without a lawyer present after they had asked for one/were eligible for one) but did not seem willing to constitutionalize that ethical rule.
In addition, Justices Thomas, Souter and Kennedy asked no questions at all, making the case a hard one to predict. However, since Justice Alito and the Chief Justice were clearly on the side of Kansas while only Justice Ginsburg was on Ventris’ side, coupled with the fact that expansions of the exclusionary rule are pretty uncommon these days, I’d expect a reversal. Several of the Justices were a little uneasy about the idea of appearing to license the police to violate the constitution so if they do reverse, we might expect some narrowing language that talks about the specifics of this case.