Wednesday, June 10, 2009

Timing Is (Sometimes) Everything

Today on FindLaw, I have a column discussing the Supreme Court case of Kansas v. Ventris. In this case, the Court held that even when the police obtain a defendant's self-incriminating statement by violating the Sixth Amendment Massiah right to counsel, the statement is nonetheless admissible for the limited purpose of impeaching the defendant's credibility at trial. The column explains what the Massiah right to counsel is and how the Court reaches its conclusion that violations need not necessarily result in suppression. One feature of the decision revolves around the judgment that Massiah violations occur during the suspect's interrogation rather than during the trial, when the resulting evidence is offered. Timing questions like this are not unique to Massiah violations but permeate the law more generally.

In the criminal area, for example, some crimes happen more or less all at once (a gunman shoots a victim, and the victim dies immediately), while others take place over a span of time. Some crimes involve an action whose harmful consequences do not come to fruition until later. One example is the person who sets up an explosive device in a building and schedules its detonation for four hours later, when the building will be full of people.

Though such a person is already guilty of a crime (including, perhaps, attempted murder) at the moment she sets up her device, she becomes guilty of murder only at the point at which the device explodes and one or more people die as a result. Some scholars have questioned whether it is appropriate to punish (or even to classify) criminals and crimes differently, depending on the results, given that an actor's state of mind and actions are the same, regardless of when and whether others suffer death or injury. Yet because the purpose of prohibiting the behavior is to shield victims from injury and death, we do tend to treat the crime as distinctly bad if injury and death follow.

In the torts context, such time-splits are common as well. In products liability, for example, a company that manufactures and releases a defective product has begun the process that will render it liable when consumers suffer injuries as a result of the product. It will not be until later, however, when consumers concretely suffer the consequences (for example, by dying in car explosions caused by a defectively placed gas tank) that the company can be described as liable for wrongful deaths. Though the culpable, negligent or otherwise wrongful behavior can be said to have taken place long before the wrongful deaths occur, the harm is in an important sense not complete unless and until injury and death actually follow. And in some -- though not all -- cases, a timely product recall can render the initial conduct completely harmless.

In many circumstances, it does not matter whether we characterize the misconduct as occurring at the first point (when the culpable/negligent/defective act is performed) or at the second point (when someone suffers untoward consequences). Sometimes, however, the characterization does matter.

In the case of Fourth Amendment violations -- which occur when a state actor performs an unreasonable search and seizure -- the U.S. Supreme Court has held that the entire violation occurs at the time of the unlawful search or seizure. When the prosecution offers the products of that unlawful conduct into evidence, then, there is no further Fourth Amendment violation but instead, a rewarding consequence for a past violation and accordingly, a potential incentive for future violations. It is for this reason that courts suppress the evidence (rather than because the introduction of illegally obtained evidence itself violates the Constitution).

In the case of the Sixth Amendment Massiah right, the Court has held that post-charge interrogations are unlawful in the absence of counsel. It has indicated, in fact, that the same conversation between a state actor and a suspect that violates the Sixth Amendment after the suspect has been charged with the crime at issue could have occurred lawfully prior to the suspect's being charged with the crime. There is therefore nothing inherently objectionable about the conversation itself.

In Ventris, however, the Court said that the Massiah violation takes place at the time of the uncounselled conversation and is therefore a past violation by the time a prosecutor offers the defendant's statements into evidence at trial. As such, as in the Fourth Amendment case, the introduction of the statement into evidence does not itself violate the Constitution. For that reason, both Fourth Amendment violations and Sixth Amendment Massiah violations may yield evidence that is admissible for some purposes (such as impeachment of the defendant's testimony), without implicating the Constitution.

As I argue in my column, however, it makes little sense to characterize the post-charge uncounselled interrogation as itself constituting the violation (before the trial takes place), because the point of counsel's presence is to ensure that the subsequent trial is not tainted by ill-advised (or better, unadvised) responses to state inquiries. If there is no trial, then the nonexistent trial is necessarily not tainted by the suspect's unadvised answers. To say, as the Court does, that the defendant suffers the violation only at the point of the interrogation is tantamount to saying that a consumer who dies after ingesting an unsafe medication suffers only at the point that the manufacturer of the medicine first released the unsafe product to the public.

The entire point of prohibiting the release of unsafe medications is, of course, to avoid the ingestion of such medications by consumers; and the entire point of providing an attorney to a suspect after the latter is charged with a crime is to avoid the introduction of uncounselled, post-charge statements at the defendant's trial.

By stark contrast, when police search without probable cause, they are --in the moment -- inflicting a privacy harm on the person who is searched. The point of prohibiting such searches is not to prevent the prosecution of people using evidence obtained in unlawful searches. Indeed, most searches performed in the absence of probable cause will not yield any evidence, because the people searched are likely to be completely innocent. Far from mitigating the privacy harm of the search, however, the target's innocence aggravates that harm. This is why so many people complain about the exclusionary rule -- it seems only to compensate the people who least deserve compensation, the people on whom evidence implicating them is found (and thus, ex post, who were the ideal targets of investigation).

As I argue in my column, Ventris does not persuasively defend identifying the Sixth Amendment violation as occurring at the time of interrogation. Being told by an undercover informant -- posing as a cell-mate -- that you seem to have something serious weighing on your mind becomes "unfair" -- if it ever does -- only at the point when your confidences become evidence at your trial.

Posted by Sherry Colb

4 comments:

egarber said...

Sherry, I have some random comments / questions, just to see if I really understand this stuff:

1. On prophylactic vs. substantive rules, is it accurate to say that with the fourth amendment, the core constitutional violation takes place only at the time of the illegal search? And the right extends to actual trial through more of a balancing test not grounded as an absolute constitutional right (is it necessary to deter this behavior, etc.)? But self incrimination, on the other hand, carries substantive protections all the way through the trial stage itself?

2. And so in Ventris, the majority further diluted the substantive right to counsel by making the Massiah rule less pure -- i.e., we know Massiah created a strict rule once charges have been filed, but we don't really see it as a firm trial right (the core violation only occurs during the interrogation). [But since there's no recourse without a trial -- unlike with a fourth amendment violation -- that rule seems, well, silly.]

Sorry for my being so dense, but this stuff gives me a headache :)

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