SO MUCH FOR THE SIXTH AMENDMENT

The Supreme Court, last week, in Kansas v. Ventris ruled that statements given to jailhouse informants in violation of the Sixth Amendment can be used to impeach a defendant at trial.

In 1964 the Supreme Court ruled in Massiah v. United States that it was a violation of the Sixth Amendment right to counsel to allow a police informant to elicit incriminating evidence from a defendant after the defendant has been indicted and in the absence of the defendant’s attorney.

But now the Supreme Court has ruled that while a prosecutor cannot use the illegally gained evidence in its case in chief it can use it to impeach the defendant. Donnie Ray Ventris and Rhonda Theel were charged with various crime including the murder of Ernest Hicks. Theel plead guilty to robbery and her murder charge was dismissed. The prosecutor placed an informant in Ventris’ cell who elicited comments from Ventris incriminating himself on the murder charge. After Ventris testified at trial that Theel committed the murder, the informant testified as to what he had been told by Ventris in the cell.

Justice Scalia, speaking for a seven member majority of the Supreme Court compared the Sixth Amendment violation to a Fourth Amendment violation. He said that since exclusion of the illegally seized evidence in both cases was not directly mandated by the Constitution, a defendant should not be allowed to take advantage of the fact that the government illegally obtained evidence to lie at trial and therefore the illegally obtained evidence should be usable for impeachment.

But the problem with Scalia’s analogy to the Fourth Amendment, is that evidence illegally seized under the Fourth Amendment it is excluded solely because of the government’s wrong doing. There is no question about its validity. In the Case of Massiah error not only is the evidence seized illegally but there is considerable question about its credibility. An informant who is being rewarded in one way or another by the government for providing incriminating evidence against someone such as Ventis has considerable reason to lie. The government is not going to dismiss his case or give him favors if he does not provide them with incriminating evidence.

Also, a defendant, such as Ventris has reason to lie when talking to a cellmate who he does not know to be working for the police. A person in jail has considerable reason to want to appear to be tough in jail. Jails are not nice places and your cell mates may not be nice people. By telling them that you killed someone, they are less likely to attack you. After all would you want to attack someone who killed a man in cold blood. Thus Ventris may have lied to the agent/cellmate just to protect himself.