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No. 07-1356

 

In the Supreme Court of the United States

STATE OF KANSAS, PETITIONER

v.

DONNIE RAY VENTRIS

ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF KANSAS

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER

GREGORY G. GARRE
Solicitor General
Counsel of Record
MATTHEW W. FRIEDRICH
Acting Assistant Attorney
General
MICHAEL R. DREEBEN
Deputy Solicitor General
NICOLE A. SAHARSKY
Assistant to the Solicitor
General
J. CAM BARKER
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

 

 

 

QUESTION PRESENTED

Whether a voluntary statement deliberately elicited from a criminal defendant in the absence of a valid waiv er of the Sixth Amendment right to counsel may be used to impeach the defendant if he testifies at trial.

 

 

In the Supreme Court of the United States

No. 07-1356

STATE OF KANSAS, PETITIONER

v.

DONNIE RAY VENTRIS

ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF KANSAS

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents the question whether a voluntary statement obtained from a criminal defendant in the ab sence of a valid waiver of the Sixth Amendment right to counsel may be used to impeach the defendant at trial. Because the Sixth Amendment applies to the federal gov ernment as well as to the States (through the Fourteenth Amendment), resolution of the question presented will have substantial implications for the conduct of federal criminal investigations and trials. The United States therefore has a significant interest in the Court's disposi tion of this case.

STATEMENT

1. Early in the morning of January 7, 2004, respon dent and his girlfriend, Rhonda Theel, went to the home of local resident Ernest Hicks, ostensibly to confront him about rumors that he was abusing the children of his live- in girlfriend. Pet. App. 4a. Respondent and Theel were using methamphetamine and marijuana at the time, and neither had slept for days. Ibid. Theel verified that Hicks was home alone, then arranged for a friend to drive her and respondent to Hicks's home. Ibid.

Theel knocked on Hicks's front door, Hicks answered, and respondent and Theel went inside. Pet. App. 6a. One or both of them then shot Hicks with a .38 revolver and took his wallet and a cell phone. Ibid. They fled in Hicks's truck, then abandoned the truck and discarded the murder weapon. Ibid. They then walked to a conve nience store and obtained a ride home. Ibid. They even tually were arrested and charged with several crimes in connection with the robbery and murder. Ibid.

While respondent was in jail awaiting trial, a state law enforcement officer arranged for another inmate in the jail, Johnny Doser, to be placed in the same cell as re spondent. Pet. App. 8a. Doser was told that respondent "was under suspicion of some charges" and was instruc ted "[j]ust to keep [his] ear open and listen" for any in criminating statements. J.A. 146. On their second day together, Doser told respondent "that [he] could tell by the look in [respondent's] eyes that he had something more serious weighing in on his mind." J.A. 154. Re spondent asked Doser if he could trust him, and Doser replied that he could. J.A. 149, 154. Respondent then told Doser that "him and his girlfriend, Rhonda, had went to rob somebody and that it went sour" and that "[h]e'd shot this man in his head and in his chest" and "took his keys, his wallet, about $350.00, and * * * a vehicle." J.A. 150. Doser reported those statements to the police. J.A. 150, 155.

2. Respondent's case proceeded to trial. Both he and Theel testified, presenting competing accounts of the events at Hicks's home. Pet. App. 6a-7a. According to Theel, when Hicks opened the front door, respondent rushed into the home, confronted Hicks with a gun, asked Hicks for money, and then shot Hicks in Hicks's bed room. Id. at 7a. According to respondent, Theel entered Hicks's house first, confronted Hicks about the alleged child abuse, drew the gun, demanded money from Hicks, and then shot him. Id. at 7a-8a.

The prosecution sought to call Doser as a witness. Pet. App. 8a. Respondent objected, arguing that because the police placed Doser in his jail cell in order to obtain an incriminating statement, introducing that statement for any purpose would violate his Sixth Amendment right to counsel. J.A. 142-143. The prosecutor conceded that Doser "was placed in there and there's probably a viola tion," but argued that respondent's statement was admis sible for impeachment purposes, because even if the po lice had obtained the statement illegally, "that doesn't give [respondent] * * * a license to just get on the stand and lie." J.A. 143. The trial court agreed and al lowed Doser to testify. Ibid.

The jury convicted respondent of aggravated bur glary and aggravated robbery, and the court sentenced him to 281 months of imprisonment. Pet. App. 9a; Pet. 4 n.*; J.A. 15-16. In a post-verdict motion, respondent re newed his contention that his jailhouse statement was not admissible at trial for any purpose. J.A. 31-35. The trial court again rejected the claim, holding that respondent's statement could be used for impeachment purposes at trial as long as it was given voluntarily. J.A. 161-162. The trial court then found, based on Doser's uncontro verted trial testimony, that respondent's statement to Doser "was a complete, spontaneous, [and] voluntary statement." J.A. 162.

3. The Kansas Court of Appeals affirmed. Pet. App. 49a-64a. It noted the State's "conce[ssion] that through the use of an informant, it initiated a discussion with [re spondent] in violation of his Sixth Amendment right to counsel." Id. at 57a. The court observed, however, that respondent "has never argued his statements were invol untary, nor would such an argument seem reasonable under the facts here." Ibid. The court then agreed with the majority of courts that have considered the issue that "statements taken in violation of the Sixth Amendment right to counsel (as opposed to the prophylactic rule) can be used for impeachment." Id. at 58a. To hold other wise, the court explained, "would weaken the integrity of a trial as a truth-seeking process" by permitting a defen dant to commit perjury without consequence. Id. at 59a.

4. The Kansas Supreme Court reversed. Pet. App. 1a-48a. Like the court of appeals, it accepted the State's concession that the police failed to respect respondent's right to counsel when they placed Doser in a cell with him "as a human listening device." Id. at 10a.1 But un like the court of appeals, it concluded that the effect of that violation was to render respondent's statements in admissible at trial for any purpose. Id. at 20a-21a.

The state supreme court observed that this Court has permitted the use of physical evidence obtained in viola tion of the Fourth Amendment, as well as statements obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and Michigan v. Jackson, 475 U.S. 625 (1986), for impeachment purposes when a defendant testifies at trial. Pet. App. 10a-15a (citing Walder v. United States, 347 U.S. 62 (1954), Harris v. New York, 401 U.S. 222 (1971), Oregon v. Hass, 420 U.S. 714 (1975), and Michi gan v. Harvey, 494 U.S. 344 (1990)). The court observed that, in each of those cases, this Court concluded that the "truth-seeking function" of a criminal trial outweighed the deterrence that would be achieved by excluding the evidence for all purposes. Id. at 11a-14a.

But rather than weigh the societal costs and deter rence benefits of excluding statements like respondent's for all purposes at trial, the state supreme court simply adopted a per se rule of exclusion. Pet. App. 19a-20a. It explained that "in Harris, Hass, and Harvey, the de fendant dealt directly with law enforcement officers," whereas "the statements at issue in this case were made to a jailhouse informant." Id. at 15a. That fact is "signif icant," in the court's view, because the surreptitious na ture of the questioning made it impossible for the police to obtain a knowing and voluntary waiver of the right to counsel from respondent. Id. at 15a, 19a-20a. And "[w]ithout a knowing and voluntary waiver of the right to counsel," the court concluded, "the admission of the de fendant's uncounseled statements to an undercover infor mant who is secretly acting as a State agent violates the defendant's Sixth Amendment rights." Id. at 20a-21a. In so holding, the court rejected the State's argument that it could use respondent's statements to impeach him so long as they were voluntary. Id. at 21a.

Chief Justice McFarland dissented. Pet. App. 27a- 48a.2 She noted that this Court "has repeatedly and con sistently allowed the admission of evidence and state ments otherwise inadmissible in the prosecution's case in chief to be used for purposes of impeachment" except where the statement "was obtained by coercion or was otherwise involuntary," because "the deterrence policy supporting exclusion is outweighed by the importance of impeachment to the proper functioning of the truth-find ing process." Id. at 27a.

After weighing those interests in this case, Chief Jus tice McFarland concluded that respondent's statements to Doser were properly admitted at trial. Pet. App. 44a- 48a. In her view, the majority's "per se rule of exclusion" placed undue weight on "the surreptitious nature of the police conduct," id. at 28a-37a; improperly treated the lack of a waiver of the right to counsel as dispositive, id. at 37a-40a; and failed to account for the fact that respon dent's statements were made voluntarily, id. at 40a-43a. Further, she cautioned that the majority's rule "expands exclusion jurisprudence beyond the limits of that ever recognized by the Supreme Court" and "seriously under mines the truth finding process of the adversary system." Id. at 47a-48a.

SUMMARY OF ARGUMENT

The Sixth Amendment permits the use of voluntary statements deliberately elicited from a criminal defen dant in the absence of counsel for the limited purpose of impeaching the defendant once he testifies at trial.

A. This Court has permitted the introduction of ille gally obtained evidence to impeach a testifying defendant in a number of circumstances. For example, the Court has long recognized that evidence obtained in violation of the Fourth Amendment's prohibition on unreasonable searches and seizures need not be excluded for all pur poses at trial, because exclusion in the government's case in chief is sufficient to remedy the constitutional viola tion. The Court came to the same conclusion in the con text of the Fifth Amendment, where it held that state ments obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), while not admissible as affirmative evi dence, could be used for impeachment. And the Court applied the same principles in the Sixth Amendment con text in Michigan v. Harvey, 494 U.S. 344 (1990), where the Court determined that statements police elicited from a criminal defendant whose waiver of the right to counsel was invalid under Michigan v. Jackson, 475 U.S. 625 (1986), are admissible at trial for impeachment.

In each of those situations, the Court excluded the evidence from the government's case in chief and then weighed the benefits of prohibiting the use of the evi dence for impeachment of a testifying defendant against the substantial societal costs of exclusion. Because only marginal benefits would be achieved by completely ex cluding material, probative evidence, at the great cost of permitting criminal defendants to commit perjury with out being confronted with their prior inconsistent state ments, the Court struck the balance in favor of admission for impeachment purposes.

B. Whether statements deliberately elicited from a criminal defendant in violation of Sixth Amendment stan dards are admissible for impeachment purposes depends on weighing the costs of exclusion against its benefits. The core purpose of the Sixth Amendment right to coun sel is to ensure a fair trial through an adversary process. To achieve that purpose, this Court has extended the right to counsel to certain critical pre-trial stages. In particular, the Court has held that, once formal criminal proceedings have begun, the Sixth Amendment prohibits the prosecution from using as substantive evidence state ments deliberately elicited from a defendant unless the defendant has validly waived his right to counsel. When evidence is elicited in that manner, the Court excludes the evidence from the government's case in chief be cause, if statements could be gathered before trial in cir cumvention of the right to counsel, the value of the right to have counsel at trial would be seriously diminished.

It does not follow, however, that statements deliber ately elicited from a criminal defendant in the absence of a valid waiver of counsel are inadmissible at trial for all purposes. The Sixth Amendment does not, by its text, prohibit the introduction of certain evidence; instead, it leaves to the courts the question of how to enforce the guarantee of the assistance of counsel. Accordingly, this Court has tailored Sixth Amendment remedies to the injury suffered and has accounted for competing inter ests.

In Harvey, this Court determined that the statements at issue could be used to impeach the defendant after balancing the benefits of exclusion against its costs. That balancing of costs and benefits is applicable to the ques tion presented here as well. Although Harvey considered a violation of a "prophylactic" Sixth Amendment rule that invalidated a waiver, and this case involves no waiver at all, both the prophylactic protection at issue there and the prohibition on use of statements deliberately elicited from an uncounseled defendant reflect constitutional rulings, and in both cases, the Constitution does not re quire exclusion but leaves it to the courts to determine whether the statements may be used for impeachment.

C. In this case, as in each of the other Fourth, Fifth, and Sixth Amendment cases where this Court has consid ered the question, the costs that excluding the defen dant's material, probative statements would impose on the truth-seeking function of criminal trials significantly outweigh any benefits.

The costs of precluding impeachment with voluntary, deliberately elicited statements would be substantial. The criminal trial process is a search for the truth, and excluding a defendant's prior statements from his trial would greatly impede the jury's ability to find the truth. Although a criminal defendant has a right to testify, he does not have a right to testify falsely. Yet a prohibition on impeachment use of deliberately elicited statements would permit a criminal defendant to take the stand and lie without fear of confrontation with his own prior con flicting statements. Moreover, there is nothing unfair about permitting the use of deliberately elicited state ments for impeachment, because the government is only able to use those statements once the defendant decides to testify and does so inconsistently with his prior state ments.

In contrast, the purposes of the Sixth Amendment right to counsel would not be furthered by prohibiting use of voluntary, deliberately elicited statements for im peachment. Indeed, prohibiting the prosecution from using such statements would hinder the goal of a fair trial that the right to counsel is designed to protect. When a defendant takes the stand, he puts his credibility in issue, and keeping probative, reliable evidence from the jury would make it difficult for the jury to evaluate credibility, thus impairing the fairness of the trial. More over, a bar on impeachment cannot be justified on the theory that incremental deterrence is warranted. The government already cannot use the statements to prove its own case. And police officers have significant disin centives to disregard a suspect's right to counsel, includ ing possible suppression of fruits, the increasing profes sionalism of the police force, and the possibility of inter nal discipline.

In the context of statements deliberately elicited from an uncounseled criminal defendant, therefore, the costs of making the statements unavailable for impeachment greatly outweigh any benefits to the protection of the right to counsel. In this case, then, the trial court prop erly admitted respondent's statements for impeachment.

ARGUMENT

A VOLUNTARY OUT-OF-COURT STATEMENT DELIBER ATELY ELICITED IN THE ABSENCE OF A VALID WAIVER OF THE RIGHT TO COUNSEL IS ADMISSIBLE TO IMPEACH A CRIMINAL DEFENDANT WHO TESTIFIES AT TRIAL

While respondent was awaiting trial in this case, law enforcement officials placed an informant in his jail cell to listen for any incriminating statements he might make. The State conceded that the informant deliberately elic ited statements from respondent in violation of Sixth Amendment standards, and it did not seek to use those statements in its case in chief at trial. Respondent then took the stand and testified in a manner that directly conflicted with what he had told the informant. The question presented is whether the Sixth Amendment per mitted the prosecution to use respondent's statements to impeach his credibility. The answer is yes.

A. This Court Has, In Numerous Contexts, Permitted Evi dence Improperly Obtained From A Criminal Defendant To Be Used For Impeachment Purposes

The Fourth, Fifth, and Sixth Amendments provide a variety of limitations on the government's ability to col lect and use evidence from a criminal defendant to prove the government's case. But the Court has not required that the evidence be excluded for all purposes. In partic ular, when a defendant testifies, the Court has permitted the evidence to be used for the limited purpose of im peachment, so long as the evidence was not obtained through coercion or compulsion.

1. This Court has long held that evidence obtained in violation of the Fourth Amendment may be used to impeach a defendant's testimony at trial. In Walder v. United States, 347 U.S. 62 (1954), the Court determined that the Fourth Amendment exclusionary rule should not be extended to bar the use of illegally seized evidence for impeachment. The Court explained that the conse quence of an illegal search is exclusion of the evidence from the government's case in chief. Id. at 64-65 (the government cannot "use the fruits of such unlawful con duct to secure a conviction"). But, the Court continued, the fact of the violation does not require the evidence to be excluded for all purposes: "It is one thing to say that the Government cannot make an affirmative use of evi dence unlawfully obtained," but "[i]t is quite another to say that the defendant can turn the illegal method by which evidence in the Government's possession was ob tained to his own advantage, and provide himself with a shield against contradiction of his untruths." Id. at 65. That, in the Court's view, "would be a perversion of the Fourth Amendment." Ibid.

The Court came to the same conclusion in United States v. Havens, 446 U.S. 620 (1980), where it permitted the use of illegally seized drugs in rebuttal in order to impeach the defendant's testimony that he had not been involved in drug smuggling. Id. at 622. The Court again weighed the deterrence value of excluding the evidence against the costs of permitting the defendant's testimony to go unchecked. It determined that the need to deter police illegality is served "by denying the government the use of the challenged evidence to make out its case in chief," and that the "incremental furthering" of that goal that might be achieved by prohibiting the use of the evi dence for impeachment is outweighed by the costs of such a rule. Id. at 627. The Court explained that "arriv ing at the truth is a fundamental goal of our legal sys tem," id. at 626, and that goal would be substantially impaired by permitting a criminal defendant's "false tes timony [to] go unchallenged," id. at 627.

2. This Court employed the same analysis, and came to the same conclusion, with respect to evidence obtained in violation of the Fifth Amendment protections afforded by Miranda v. Arizona, 384 U.S. 436 (1966). In Harris v. New York, 401 U.S. 222 (1971), the Court concluded that statements a defendant made immediately following his arrest, but before he was given the warnings required by Miranda, could be used for impeachment purposes at trial. Id. at 223-226. Although "Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effec tively waiving counsel," the Court explained, "[i]t does not follow" that evidence obtained "is barred for all pur poses." Id. at 224. Instead, the Court weighed the de terrence benefits and societal costs of completely exclud ing the statements. It determined that "[t]he impeach ment process here undoubtedly provided valuable aid to the jury in assessing petitioner's credibility," and "the benefits of this process should not be lost * * * because of the speculative possibility that impermissible police conduct will be encouraged thereby." Id. at 225. And it concluded that admission of the statements for impeach ment was justified so that "[t]he shield provided by Miranda" is not "perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances." Id. at 226.

The same principles guided the Court in Oregon v. Hass, 420 U.S. 714 (1975), where it permitted the im peachment use of statements that a criminal defendant made to police after receiving Miranda warnings and requesting counsel. "As in Harris," the Court explained, the violation of Miranda rendered the illegally obtained evidence unavailable in the government's case in chief, but it did not mean the evidence "is barred for all pur poses." Id. at 722. Barring the evidence for impeach ment, the Court concluded, "would pervert the constitu tional right into a right to falsify free from the embar rassment of impeachment evidence from the defendant's own mouth." Id. at 723.

3. The same approach has governed under the Sixth Amendment. In Michigan v. Harvey, 494 U.S. 344 (1990), the Court held that statements taken from a de fendant in police-initiated interrogation, after the defen dant was charged and counsel was appointed for him, violated the rule in Michigan v. Jackson, 475 U.S. 625 (1986), but the Court concluded that the defendant's statements made after a knowing and voluntary waiver of the right to counsel were admissible to impeach his trial testimony. "[O]nce formal criminal proceedings be gin," the Court explained, "the Sixth Amendment ren ders inadmissible in the prosecution's case in chief state ments deliberately elicited from a defendant without an express waiver of the right to counsel." 494 U.S. at 348 (internal quotation marks omitted). Under Jackson, the Court added, even an express waiver of the right to coun sel is "presumed invalid"-and the evidence therefore unavailable in the government's case in chief-when, af ter the defendant "requests assistance of counsel," police initiate the discussion. Id. at 349-350.

Relying on its decisions in Harris and Hass, however, the Court held that the costs of precluding impeachment with such evidence outweighed the deterrence benefits of such a rule: "[T]he search for truth in a criminal case outweighs the speculative possibility that exclusion of evidence might deter future violations." 494 U.S. at 351- 352 (internal quotation marks omitted). In particular, the Court observed, "[i]f a defendant exercises his right to testify on his own behalf, he assumes a reciprocal obli gation to speak truthfully and accurately," and he should not be allowed to use the fact of the government's im proper action to "provide himself with a shield against contradiction of his untruths." Id. at 351 (quoting Har ris, 401 U.S. at 225).

4. This Court's decisions in Walder, Havens, Harris, Hass, and Harvey reflect the general principle that the rules that constrain the government in its direct case do not necessarily apply to matters of rebuttal and impeach ment. That is because of the reality that, when a defen dant becomes a witness, the paramount interest in pre venting the distortion of the fact-finding process gener ally dictates that the jury be afforded the opportunity to hear evidence that may cast doubt upon the credibility of his testimony. Particularly in light of the great costs it exacts on the truth-seeking function of a criminal trial, complete exclusion of the improperly obtained evidence has not generally been deemed warranted or necessary to protect the underlying constitutional rights at stake.3

B. The Admissibility For Impeachment Of Voluntary State ments Deliberately Elicited In Violation Of Sixth Amendment Standards Turns On A Balance Of The Costs Of Exclusion Against Its Benefits

1. The Sixth Amendment provides, in pertinent part, that "[i]n all criminal prosecutions, the accused shall en joy the right * * * to have the Assistance of Counsel for his defence." U.S. Const. Amend. VI. As this Court has repeatedly noted, "the core purpose of the [Sixth Amend ment] counsel guarantee was to assure 'Assistance' at trial, when the accused was confronted with both the in tricacies of the law and the advocacy of the public prose cutor." United States v. Cronic, 466 U.S. 648, 654 (1984) (quoting United States v. Ash, 413 U.S. 300, 309 (1973)).

The Sixth Amendment guarantee of counsel exists "not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial." Cronic, 466 U.S. at 658. The "fair trial" that the right to counsel seeks to ensure is a trial in which "a defendant has the assistance necessary to justify reliance on the outcome of the proceeding." Strickland v. Washington, 466 U.S. 668, 692 (1984). Thus, the Sixth Amendment guarantees the right to counsel "because it envisions counsel's play ing a role that is critical to the ability of the adversarial system to produce just results." Id. at 685.

2. In order to protect the adversary process leading to criminal punishment, the Court has extended the right to the assistance of counsel to "certain critical pretrial proceedings," in which "the accused [is] confronted, just as at trial, by the procedural system, or by his expert adversary, or by both." United States v. Gouveia, 467 U.S. 180, 189 (1984) (internal quotation marks omitted; brackets in original). The purpose of the extension is to provide the assistance of counsel in situations "where the results might well settle the accused's fate and reduce the trial itself to a mere formality." United States v. Wade, 388 U.S. 218, 224 (1967).

In a line of cases beginning with Massiah v. United States, 377 U.S. 201 (1964), this Court has held that, once formal criminal proceedings have begun, the Sixth Amendment "renders inadmissible in the prosecution's case in chief statements 'deliberately elicited' from a de fendant," unless the defendant has voluntarily, know ingly, and intelligently waived the right to counsel. Har vey, 494 U.S. at 348-349; see Fellers v. United States, 540 U.S. 519, 523-524 (2004); Kuhlmann v. Wilson, 477 U.S. 436, 457 (1986); Maine v. Moulton, 474 U.S. 159, 172-173 (1985); United States v. Henry, 447 U.S. 264, 270 (1980); Brewer v. Williams, 430 U.S. 387, 400-401 (1977). That rule rests on the view that the introduction at trial of such statements undermines the ability of counsel to ren der assistance that contributes to a fair trial. See Har vey, 494 U.S. at 348.

Statements may be "deliberately elicited" in violation of Sixth Amendment standards by government infor mants acting undercover or by law enforcement officials in overt encounters with the defendant.4 For a defendant to establish a violation in the acquisition of statements obtained by a jailhouse informant, he must show that "the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks." Kuhlmann, 477 U.S. at 459. "[S]imply * * * showing that an informant, either through prior arrangement or voluntarily, reported [the defendant's] incriminating statements to the police" is not enough. Ibid. But an informant's seeking out infor mation through questioning may create Sixth Amend ment issues.5

3. When statements are deliberately elicited from a criminal defendant in the absence of counsel or a valid waiver of the right to counsel, the Court has determined that the statements must be excluded from the govern ment's case in chief at trial. The theory behind the exclu sion is that, if the government could gather evidence from the defendant before trial through circumvention of the defendant's right to counsel, the availability of coun sel at the trial itself would be an illusory protection. The exclusion of statements obtained in the absence of a valid waiver of counsel is thus thought to further the funda mental goal of the right to counsel, which is to protect "the integrity or fairness of [the] criminal trial." Nix v. Williams, 467 U.S. 431, 446 (1984).

It does not follow, however, that statements obtained in violation of Sixth Amendment standards are unavail able to impeach a criminal defendant once he testifies at trial. The Sixth Amendment right to counsel is not a tex tual prohibition against the introduction of evidence at trial. Instead, it requires that counsel must be afforded to the accused, and it leaves to the courts the question of the appropriate means of enforcing that guarantee. In that respect, the Sixth Amendment is like the Fourth Amendment, which prohibits unreasonable searches and seizures, but does not explicitly provide a remedy for its violation. U.S. Const. Amend. IV. Just as this Court has fashioned the exclusionary rule "as a judicially created remedy designed to safeguard against future violations of Fourth Amendment rights," Arizona v. Evans, 514 U.S. 1, 10 (1995), so it has balanced the costs and benefits of the exclusion of evidence in the Sixth Amendment con text as well. See Nix v. Williams, 467 U.S. at 442-448. The impeachment use of evidence obtained in violation of the Sixth Amendment, like that obtained in violation of the Fourth Amendment, does not violate the express terms of any constitutional provision, but simply brings into question whether to apply a court-made exclusionary rule.

4. As a general matter, the Court has explained, rem edies for Sixth Amendment violations "should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing inter ests," United States v. Morrison, 449 U.S. 361, 364 (1981), such as "the public interest in having the guilty brought to book," id. at 366 n.3 (quoting United States v. Blue, 384 U.S. 251, 255 (1966)). The Court has thus "tailor[ed] relief appropriate in the circumstances to as sure the defendant the effective assistance of counsel and a fair trial." Id. at 365. When Sixth Amendment stan dards are violated, normally "[t]he remedy * * * is lim ited to denying the prosecution the fruits of its transgres sion." Id. at 366. The remedy does not extend, however, to exclusion for all purposes, because that "would do nothing whatever to promote the integrity of the trial process, but would inflict a wholly unacceptable burden on the administration of criminal justice." Nix v. Wil liams, 467 U.S. at 447.

Just as in Michigan v. Harvey, supra, where this Court permitted impeachment with statements taken in violation of Michigan v. Jackson, supra, the Sixth Amendment does not mandate complete exclusion of re spondent's statements here. Harvey concerned a viola tion of the "prophylactic" rule announced in Jackson, 494 U.S. at 353, where the defendant waived his right to counsel but the waiver was invalid because it occurred in police-initiated questioning. The Court left open "the admissibility for impeachment purposes of a voluntary statement obtained in the absence of a knowing and vol untary waiver of the right to counsel." Id. at 354. But the same analysis applies in both contexts. While the rule at issue in Jackson may be described as "prophylac tic," this Court has made clear in the Fifth Amendment context that rules described as "prophylactic" may be constitutional in nature. See Dickerson v. United States, 530 U.S. 428, 437-441 (2000) (explaining that, while the requirements of Miranda v. Arizona, supra, have been referred to as "prophylactic," Miranda is "constitution ally based"). Similarly, this Court's interpretations of the Sixth Amendment, whether they involve preclusion of the use of statements deliberately elicited without any waiver of counsel (Massiah) or preclusion of the use of statements obtained in police-initiated interrogation de spite a waiver of counsel (Jackson), reflect constitutional rulings. In both contexts, the Sixth Amendment does not, by its terms, require the exclusion of certain evi dence at trial. Rather, the determination whether to bar the use of evidence turns on the purposes that would be served by exclusion, balanced against its costs.6

In this respect, the Sixth Amendment differs from the Fifth Amendment. Only the Fifth Amendment prohibits the admission of certain evidence by its text. See U.S. Const. Amend. V (prohibiting a defendant from being "compelled * * * to be a witness against himself"). The Court has accordingly held that evidence that is com pelled in violation of the Fifth Amendment is inadmissi ble for any purpose. See, e.g., New Jersey v. Portash, 440 U.S. 450, 458-459 (1979) (any use at trial of grand jury testimony compelled under a grant of immunity would violate the Fifth Amendment prohibition against compelled self-incrimination). The Court has similarly held that evidence that is coerced in violation of the Due Process Clause may not be used for any purpose. See Mincey v. Arizona, 437 U.S. 385, 398-399 (1978) ("any criminal trial use" of statements coerced from a seriously wounded criminal defendant would violate the Due Pro cess Clause). In the case of a coerced confession, the bal ancing of costs and benefits always favors exclusion of the evidence, because coerced confessions are gener ally thought inherently unreliable, see, e.g., Jackson v. Denno, 378 U.S. 368, 385-386 (1964), and strong interests support deterring coercive police practices, see, e.g., Blackburn v. Alabama, 361 U.S. 199, 206-207 (1960). Those reasons do not apply to deliberately elicited state ments from an uncounseled defendant: statements may be deliberately elicited without any coercion, and the probative value of the defendant's own voluntary state ments is generally quite high. Here, for example, a defen dant's jailhouse statements made to a trusted informant may be entirely free of coercive influence, entirely volun tary, and highly reliable.

5. The Kansas Supreme Court's proffered reasons also do not justify a per se rule of exclusion. The state supreme court believed that complete exclusion is re quired unless the defendant has voluntarily, knowingly, and intelligently waived the right to counsel. Pet. App. 19a-21a. But the absence of a valid waiver affects whe ther the defendant's statements were obtained in contra vention of Sixth Amendment standards; it does not an swer the separate question whether those statements are inadmissible for all purposes. See Harvey, 494 U.S. at 351; Pet. App. 37a-39a (McFarland, C.J., dissenting). That question is answered by weighing the costs and ben efits of exclusion, except where the constitutional right itself guarantees the exclusion of evidence. The state supreme court also suggested that complete exclusion was warranted because respondent's statements were obtained surreptitiously. Pet. App. 19a-22a. But the Sixth Amendment right to counsel does not prohibit the use of undercover investigative techniques; it protects a represented defendant against the use of statements de liberately elicited, whether the elicitor is an undercover operative or a uniformed law enforcement official. Kuhl mann, 477 U.S. at 458. In both contexts, the Sixth Amendment is implicated because of the government's interaction with the accused without the adversarial protections afforded by counsel. And the remedial ques tion must be answered by determining whether the un derlying purposes of the adversarial system that the Counsel guarantee protects necessitate excluding evi dence, even at a high cost to the trial's ability to ferret out the truth.

C. The Costs Of Precluding Impeachment With Voluntary But Uncounseled Statements Substantially Outweigh Any Benefits

Because the Sixth Amendment does not mandate the exclusion of the statements at issue here for all purposes, the appropriate inquiry is whether the costs that exclud ing respondent's statements would impose on the truth- seeking function of the criminal trial are outweighed by any benefits. Here, as in each of the other Fourth, Fifth, and Sixth Amendment cases where the Court has consid ered that question, that weighing strongly favors admis sion of the statements for impeachment.

1. The costs of precluding impeachment with volun tary, deliberately elicited statements would be great. "[T]he central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence." Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986); ac cord Havens, 446 U.S. at 626; Stone v. Powell, 428 U.S. 465, 490 (1976). Society has a weighty public interest in "prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth." Alderman v. United States, 394 U.S. 165, 175 (1969). Thus, as this Court has ob served repeatedly, a constitutional violation warrants the exclusion of evidence only if the benefits from exclusion are worth "the enormous societal cost of excluding truth in the search for truth in the administration of justice." Nix v. Williams, 467 U.S. at 445; see Hudson v. Michi gan, 547 U.S. 586, 591 (2006); Pennsylvania Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 363 (1998); Oregon v. Elstad, 470 U.S. 298, 312 (1985); Solem v. Stumes, 465 U.S. 638, 650 (1984); Havens, 446 U.S. at 626-628; Hass, 420 U.S. at 722; Harris, 401 U.S. at 224-226; Alderman, 394 U.S. at 174-175.

The societal cost of excluding evidence is particularly great when the evidence is intended to aid the jury in assessing the credibility of a defendant's testimony. In that setting, the general interest in promoting accurate factfinding is enhanced by the special need to guard against perjury. This Court has long recognized that a defendant's right to testify in his own defense includes the obligation to testify truthfully. Harvey, 494 U.S. 351; Havens, 446 U.S. at 626; Hass, 420 U.S. at 723; Harris, 401 U.S. at 225; Walder, 347 U.S. at 65. The introduction of evidence for impeachment enforces that obligation by allowing the contradiction of "seemingly false state ments" that the defendant makes on the stand. Havens, 446 U.S. at 627. The right to assistance of counsel, which exists "to assure that the accused's interests will be pro tected consistently with our adversary theory of criminal prosecution," Wade, 388 U.S. at 227, does not justify bar ring the prosecution from using the "traditional truth- testing devices of the adversary process," Harris, 401 U.S. at 225, to root out perjury. When a defendant makes false statements on the witness stand, he jeopar dizes the "ability of the adversarial system to produce just results." Strickland, 466 U.S. at 685.

The use of prior inconsistent statements is one of the most effective techniques available to the advocate to expose perjury. See Havens, 446 U.S. at 627. The ad missibility of prior inconsistent statements for impeach ment no doubt prevents much perjured testimony from ever being offered, by dissuading witnesses who would otherwise be tempted to fabricate or shade their testi mony.

A defendant has no valid interest in avoiding impeach ment with probative evidence that might expose perjury. Although "[e]very criminal defendant is privileged to testify in his own defense, or to refuse to do so," "that privilege cannot be construed to include the right to com mit perjury." Harris, 401 U.S. at 225; see Nix v. White side, 475 U.S. 157, 174-175 (1986) (trial counsel may not assist his client in presenting perjured testimony). As this Court noted many years ago, the advantages that a defendant enjoys in a criminal case must be "counter weighted with * * * conditions to keep the advantage from becoming an unfair and unreasonable one"; "[t]he price a defendant must pay for attempting to prove [a fact] * * * is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him." Mich elson v. United States, 335 U.S. 469, 479 (1948); see Ha vens, 446 U.S. at 626-627 ("It is essential * * * to the proper functioning of the adversary system that when a defendant takes the stand, the government must be per mitted proper and effective cross-examination in an at tempt to elicit the truth.").

The defendant has substantial control over the ability of the prosecution to make use of pre-trial statements for impeachment. The prosecution can offer such prior statements only after the defendant, with the assistance of counsel, makes a voluntary decision to testify. More over, impeachment is permissible only if the defendant gives testimony that contradicts his previous statements. In addition, the defendant has the ability to explain the circumstances under which he made the impeaching statements, and defense counsel can ensure that defen dant's explanation of any inconsistency is fully aired. Presumably, the jury will be able to recognize honest in consistencies and appropriately discount the prosecu tion's reliance on minor discrepancies among the defen dant's statements. There would thus be substantial soci etal costs to making reliable, probative evidence unavail able for impeachment purposes.

2. On the other side of the balance, the purposes of the Sixth Amendment right to counsel would not be served by preventing impeachment with evidence delib erately elicited from an uncounseled defendant, just as they are not served by preventing impeachment with statements obtained in violation of Jackson. Exclusion of the evidence obtained in violation of Sixth Amendment standards from the government's case in chief serves to "assure fairness in the adversary criminal process." Morrison, 449 U.S. at 364; see Harvey, 494 U.S. at 351 ("evidence acquired in contravention of" both "constitu tional guarantees" and "their corresponding judicially created protections" is inadmissible in the government's case in chief). But prohibiting the prosecution from us ing such evidence for impeachment would hinder, rather than further, that goal by permitting a defendant to tes tify falsely without fear of contradiction by his own prior inconsistent statements. The jury would thus be de prived of a full picture needed to assess the defendant's credibility. Harvey, 494 U.S. at 351-352; see Cronic, 466 U.S. at 655-656 (right to counsel relies on the premise that "partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be con victed and the innocent go free" (quoting Herring v. New York, 422 U.S. 853, 862 (1975)).

When a defendant takes the stand, and thus places his credibility in issue, the defendant is often exposed to the admission of evidence that would otherwise be inadmissi ble. For example, the Fifth Amendment protects the de fendant against being compelled to testify, but once a defendant elects to testify, he cannot bar relevant cross- examination. See Brown v. United States, 356 U.S. 148, 154-155 (1958); Rogers v. United States, 340 U.S. 367, 373 (1951). The paramount interest in exposing the truth, once a defendant decides to testify, dictates that the jury be entitled to learn of facts that it otherwise would not hear. See Mitchell v. United States, 526 U.S. 314, 322 (1999); Brown, 356 U.S. at 156. The same principle ap plies when a defendant takes the stand and testifies con trary to previous voluntary statements made in violation of Sixth Amendment standards. "[A] criminal defen dant's right to testify does not include the right to com mit perjury." LaChance v. Erickson, 522 U.S. 262, 266 (1998). And the defendant's testimony "open[s] the door, solely for the purpose of attacking the defendant's credi bility," Walder, 347 U.S. at 64, to the admission of his prior statements. While a defendant deciding whether to testify may thereby face a difficult choice, such choices are common in the criminal justice system, and the Con stitution does not inherently forbid them. See Jenkins v. Anderson, 447 U.S. 231, 236-238 (1980).

Nor would any incremental deterrent effect from bar ring the impeachment use of statements deliberately elic ited from an uncounseled criminal defendant justify the damage to the truth-seeking function of the trial. The statements are already unavailable to prove the govern ment's case. Here, as in this Court's previous decisions, there is only a "speculative possibility" that police offi cers may have some incentive to disregard a suspect's right to counsel in order to gain impeachment material, Hass, 420 U.S. at 723, and officers have significant disin centives to obtaining evidence in that fashion. To the extent that the Court requires the exclusion of "fruits" of such uncounseled statements, see Nix v. Williams, 467 U.S. at 442, officers risk the suppression of physical evi dence that might otherwise have come to light by lawful means. And officers cannot reliably anticipate that such evidence would be admissible on inevitable discovery principles. Id. at 445.

The increasing professionalism of the police force and the possibility of internal discipline-which may limit police officers' careers and salary-will have an addi tional deterrent effect. See Hudson, 547 U.S. at 598-599. And prosecutors, who are bound by ethical obligations that limit contacts with indicted defendants in the ab sence of counsel, will be deterred from such conduct by the prospect of discipline by their employer and state bar. See, e.g., Kan. Rules of Prof'l Conduct 4.2 (prohibit ing attorneys from knowingly contacting a represented party without counsel's presence or valid consent); Model Rules of Prof'l Conduct 4.2 (same); see also 28 U.S.C. 530B(a) (federal government attorneys are subject to State rules of professional conduct); 28 C.F.R. 77.4(f) (2007) (Department of Justice attorneys may not direct an investigative agent under their supervision to engage in conduct that would violate the attorney's own ethical obligations). That array of disincentives lessens the like lihood that the impeachment exception will promote mis conduct. See Hudson, 547 U.S. at 596-599.7

3. In the context of statements deliberately elicited from an uncounseled defendant, then, the cost of barring impeachment use of the defendant's statements substan tially outweighs any benefit to the protection of Sixth Amendment rights. Sixth Amendment interests are ade quately protected by excluding the defendant's state ments from the government's case in chief. It is unneces sary to go further and impair the ability of a trial to dis close the truth by testing a defendant's testimony against his own contradictory, voluntary words. Accordingly, such statements may be introduced at trial for the lim ited purpose of impeaching the defendant once he testi fies. In this case, there is no question that respondent's statements were voluntary, see J.A. 164, and the trial court therefore properly admitted those statements for impeachment.

CONCLUSION

The judgment of the Kansas Supreme Court should be reversed.

Respectfully submitted.

GREGORY G. GARRE
Solicitor General
MATTHEW W. FRIEDRICH
Acting Assistant Attorney
General
MICHAEL R. DREEBEN
Deputy Solicitor General
NICOLE A. SAHARSKY
Assistant to the Solicitor
General
J. CAM BARKER
Attorney

 

NOVEMBER 2008

1 In accepting the State's concession, both the court of appeals (Pet. App. 57a) and the state supreme court (id. at 10a, 20a-21a) cited State v. McCorgary, 543 P.2d 952, 956-958 (Kan. 1975), cert. denied, 429 U.S. 867 (1976), which held that the State contravenes the Sixth Amendment when it places an informant in the defendant's jail cell to report on his statements, even if the informant does not take any active steps to elicit them. McCorgary is of questionable vitality in light of this Court's decision in Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986). See Pet. App. 35a (McFarland, C.J., dissenting).

2 As an initial matter, Chief Justice McFarland observed that "there is a legitimate issue" regarding whether the State even acted illegally in placing Doser in respondent's jail cell. Pet. App. 35a-37a; see note 5, infra.

3 In a number of other cases, this Court has implicitly struck the same balance, permitting the government to use evidence for impeach ment purposes even if the government would not be permitted to use the same evidence affirmatively. See, e.g., Tennessee v. Street, 471 U.S. 409, 413-416 (1985) (government may offer into evidence a co-defen dant's confession, otherwise inadmissible under Bruton v. United States, 391 U.S. 123 (1968), to correct a potentially misleading impres sion created by the defendant's testimony); Jenkins v. Anderson, 447 U.S. 231, 235-238 (1980) (government may impeach a testifying defen dant with his failure to tell his exculpatory story before his arrest); Doyle v. Ohio, 426 U.S. 610, 619 n.11 (1976) (government may impeach a defendant with his failure to tell his exculpatory story after receiving Miranda warnings if the defendant testifies that he did tell that story to the police after his arrest).

4 The post-charge deliberate elicitation of statements without the defendant's counsel or a valid waiver of counsel is not intrinsically un lawful, nor must evidence of such statements be excluded from un charged cases. The Sixth Amendment is "offense specific," McNeil v. Wisconsin, 501 U.S. 171, 175 (1991), and "[t]he police have an interest . . . in investigating new or additional crimes [after an individual is formally charged with one crime]." Id. at 175-176 (quoting Moulton, 474 U.S. at 179-180 (punctuation altered)). Thus, the police often act entirely properly in acquiring statements pertaining to such new crimes, even if the statements are also incriminating on charged crimes, and the Sixth Amendment does not bar use of those statements in a trial on those new offenses. Id. at 176.

5 In light of those standards, the record in this case suggests that the State did not deliberately elicit respondent's statements. See Pet. App. 35a-37a (McFarland, C.J., dissenting). Doser testified without contra diction that he was told "[j]ust to keep [his] ear open and listen," J.A. 146, and that he did not "push" respondent "for any information" and "didn't ask anything that wasn't volunteered." J.A. 155. Doser did at one point say to respondent "that [he] could tell by the look in [respon dent's] eyes that he had something more serious weighing in on his mind." J.A. 154. But that statement is roughly equivalent to the state ment of the informant in Kuhlmann that the defendant's explanation of his role in the charged offenses "didn't sound too good"-a statement that did not convert the informant's interactions with the defendant into deliberate elicitation. 477 U.S. at 460-461. Thus, while the question is not presented by this case because the State "does not challenge the concession below that there was a Sixth Amendment right to counsel violation," Pet. Br. 18-19 & n.*, the better view appears to be that Doser did not function as anything other than a permissible listening post, and accordingly, there was no threshold violation of Sixth Amendment standards. See Pet. App. 35a-37a (McFarland, C.J., dissenting).

6 The distinction between prophylactic rules and underlying rights can lead to different results under the Fifth Amendment, where the constitutional text explicitly excludes "compelled" statements. See pp. 21-22, infra. But that distinction does not necessarily lead to different results under the Sixth Amendment, where the constitutional text does not speak to exclusion. The Jackson and Massiah rules share a com mon purpose: safeguarding the right to the assistance of counsel at trial. In each case, the goal is to prevent the government from exploit ing uncounseled encounters, after the right to counsel has attached, in order to obtain statements to prove its case. But in both contexts, these rules are subject to limitations to prevent defendants from undermining the truth-seeking process-as would transpire if defendants could testify without impeachment with their own prior, inconsistent volun tary statements.

7 Because the Sixth Amendment is not violated absent the improper use of evidence at trial, see Harvey, 494 U.S. at 363 (Stevens, J., dis senting), a defendant could not seek damages under 42 U.S.C. 1983 based on a claim of alleged improper deliberate elicitation, standing alone. If, however, a court allowed a damages action based solely on deliberate elicitation in violation of "Sixth Amendment standards," Fel lers, 540 U.S. at 525, then Section 1983 actions (and related actions un der Bivens v. Six Unknown Named Agents of Fed. Bureau of Narco tics, 403 U.S. 388 (1971)) would provide an additional deterrent.