Kansas v. Ventris
With all of the decisions cited above (and others) as backdrop, the court issued a ruling in 2009 in a case from Kansas. While awaiting trial for robbery and murder, defendant Donnie Ray Ventris was placed into a cell with a police informant who was told to keep his ears open and listen for anything Ventris might reveal. Going further than instructed, the informant nudged Ventris into talking by telling him "something serious must be weighing on your mind." Ventris admitted shooting the victim and taking his property, and the informant reported this to police.
At trial, the prosecutor did not offer Ventris's admission in the case-in-chief, believing that the informant was closer to Henry's "incentivized stimulator than to Kuhlmann's "passive listening post," and that Ventris's statement would therefore be inadmissible under Massiah. Feeling that the statement should nevertheless be admissible to impeach under Harvey, the prosecutor called the informant to impeach Ventris's contrary trial testimony.
Ventris was convicted on some of the charges and appealed to the Kansas Supreme Court, which reversed the convictions and held that a statement taken in violation of the Sixth Amendment right to counsel could not be used for impeachment. Since this ruling conflicted with Harvey, the state appealed to the U.S. Supreme Court, conceding for purposes of argument that the Sixth Amendment was violated by the informant's actions. The Supreme Court reversed. Said the court:
"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. We hold that the informant's testimony, concededly elicited in violation of the Sixth Amendment, was admissible to challenge Ventris's inconsistent testimony at trial." (Kansas v. Ventris)
Civil Liability Caution
In Ventris, the court acknowledged that its prior cases had been "equivocal" as to whether the Sixth Amendment is violated by the interrogation itself, or only when the resulting statement is used at trial (compare the quotations from Massiah and Henry, above). To clarify, the court has now said unequivocally, "The constitutional violation occurs when the uncounseled interrogation is conducted."
Because federal civil rights liability can be based on an officer's violation of a suspect's constitutional rights under color of authority (42 US Code § 1983), plaintiffs' attorneys may now seek to maintain lawsuits against officers and their agencies for eliciting incriminating statements from a defendant after attachment and assertion of the Sixth Amendment right to counsel, in the absence of the attorney.
To reduce civil liability risks, it is more important than ever that officers be adequately and properly trained as to the clearly established rules regarding Massiah and related case law. (Previous issues of POLICE have included "Point of Law" articles on various aspects of the Sixth Amendment rules and exceptions.)
Devallis Rutledge is a former police officer and veteran prosecutor who currently serves as Special Counsel to the Los Angeles County District Attorney. He is the author of 11 books, including "Courtroom Survival, The Officer's Guide to Better Testimony."