The Supreme Court today decided the case of Kansas v. Ventris. The issue was whether a statement of the defendant is admissible for impeachment of the defendant's trial testimony when it is excluded from the prosecution's case in chief under the rule of Massiah v. United States, 377 U.S. 201 (1964). The Court continued its three-decade practice of limiting the damage caused by anti-truth Warren Court precedents without overruling them, in particular by allowing supposedly "tainted" evidence to impeach the defendant when he gets on the stand and tells a story different from a statement he made voluntarily but contrary to some court-created rule.
In its 1964 decision in the case of that oddly named thug, the Warren Court decided that when a jailhouse informant asks questions of a cellmate after formal charges have been filed, that is a violation of the Sixth Amendment right to counsel, even though the same procedure is perfectly legal if (1) the D.A. just holds off filing the formal charges, or (2) the informant just listens and doesn't ask. So the difference between perfectly legal investigation and a violation of our fundamental law turns on the splitting of hairs.
In its 1964 decision in the case of that oddly named thug, the Warren Court decided that when a jailhouse informant asks questions of a cellmate after formal charges have been filed, that is a violation of the Sixth Amendment right to counsel, even though the same procedure is perfectly legal if (1) the D.A. just holds off filing the formal charges, or (2) the informant just listens and doesn't ask. So the difference between perfectly legal investigation and a violation of our fundamental law turns on the splitting of hairs.
In today's Ventris case, the prosecution conceded early that the informant's obtaining of the statement was, in fact, a violation of the Massiah rule despite the "just listen" qualification. We at CJLF think that was a mistake and said so in our brief. The opinion today expressly refrained from endorsing the notion that there was a violation here.
In an interesting footnote at the end of the opinion, the Court rejects the argument of NADCL that it should craft rules of evidence for jailhouse informants based on reliability.
Without affirming that this concession was necessary, see Kuhlmann v. Wilson, 477 U. S. 436, 459-460 (1986), we accept it as the law of the case. The only question we answer today is whether the State must bear the additional consequence of inability to counter Ventris's contradictory testimony by placing the informant on the stand.The answer is no. First, the Court rejects the idea that the violation at issue here occurs at trial, rather than when the statement is obtained. Then the Court goes into the cost-benefit analysis that we have seen many times before. The cost is too high.
Our precedents make clear that the game of excluding tainted evidence for impeachment purposes is not worth the candle. The interests safeguarded by such exclusion are "outweighed by the need to prevent perjury and to assure the integrity of the trial process." Stone v. Powell, 428 U. S. 465, 488 (1976). "It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can . . . provide himself with a shield against contradiction of his untruths." Walder, supra, at 65. Once the defendant testifies in a way that contradicts prior statements, denying the prosecution use of "the traditional truth-testing devices of the adversary process," Harris, supra, at 225, is a high price to pay for vindication of the right to counsel at the prior stage.How about the benefits?
On the other side of the scale, preventing 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.That last part is a bit of an overstatement. If the evidence is admissible for impeachment, it is useful for the prosecution both for dissuading the defendant from testifying and for impeaching him if he does.
In an interesting footnote at the end of the opinion, the Court rejects the argument of NADCL that it should craft rules of evidence for jailhouse informants based on reliability.
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." Spencer v. Texas, 385 U. S. 554, 564 (1967). 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.
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