KANSAS v. VENTRIS

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ORAL ARGUMENT OF STEPHEN R. McALLISTER ON BEHALF OF THE PETITIONER

Chief Justice Roberts: We'll hear argument next in Case 07-1356, Kansas v. Ventris.

General McAllister.

Mr. McAllister: Mr. Chief Justice, and may it please the Court: The Court has always held that a defendant's voluntary statements obtained in violation of constitutional standards may be used for impeachment purposes when the defendant testifies at trial.

The Court has excluded statements for all purposes only when they are involuntary or have been compelled.

The question in this case is whether voluntary statements obtained in violation of the rule of Massiah v. United States should be treated differently than all other voluntary statements.

The answer is no for at least three reasons.

First, permitting the impeachment use of voluntary statements obtained in violation of constitutional standards is necessary to prevent perjury by criminal defendants.

Second, in terms of the effect at trial, there's no basis for distinguishing a voluntary statement obtained in violation of the Massiah rule from Fourth Amendment violations, Miranda violations, or violations of the rule of Michigan v. Jackson.

In all of those situations the resulting evidence may limit defense counsel's options at trial, but there's no basis in that respect for distinguishing a Massiah violation.

It has no different effect than those others.

Also, the Sixth Amendment right to counsel does not include a right to commit perjury or to have the assistance of counsel in presenting false testimony.

Justice Scalia: When does -- when does the Sixth Amendment violation occur?

Mr. McAllister: That question, Your Honor, as you realize, is debated a bit in the briefs.

It's -- Kansas, for purposes of deciding this case, is willing to accept the position of the United States and the Respondent that it occurs when the statement is admitted at trial, although the cases have not necessarily definitively resolved that question.

We, frankly, think it's unnecessary to answer the question because it's a minimal point in terms of potential deterrent -- deterrents that operate in this setting--

Justice Scalia: Do you -- do we have any other situation in which, for purposes of impeaching testimony, a constitutional violation is allowed?

Mr. McAllister: --Well, that's the -- that's one of the intricacies of -- of this particular question, although arguably in the -- in the Fifth Amendment context certainly, the Miranda warnings are given.

The police don't do that.

And -- and if that is the completion of the violation, it's -- it's analogous in many ways, if one looks back at the cases.

The Court has suggested that the actual violation is the use of the statement at trial against the defendant, not simply obtaining it without the necessary warnings being given.

So we would argue that is, in fact--

Justice Scalia: It's parallel to the Fifth.

Mr. McAllister: --It's parallel to the Fifth in this respect, and certainly, distinct from the Fourth in that respect.

But we don't think it matters at the end of the day.

If -- if one were to treat it like the Fourth Amendment, so that the violation is complete when the police send in an informant and he works hard to elicit statements in violation of the Messiah rule, if it's complete at that time, then all of the analysis from the Fourth Amendment cases is equally applicable here.

If the violation does not incur -- occur until it's presented at trial, then it's analogous more to the Fifth Amendment and also to the Michigan v. Jackson and Michigan v. Harvey cases, which were a Sixth Amendment right to counsel violation, in which case the Court says it was wrong for the police to initiate interrogation after he had invoked his rights, but will let the statement be admitted for impeachment purposes.

So it's exactly analogous to what the Court did in Harvey itself.

Justice Ginsburg: It would make no difference, I take it, General McAllister, if this had been a police officer who was pretending to be a cellmate.

In this case it was a snitch, but it could be the police officer doing inside the cell what he couldn't do outside.

That is, the police officer outside who wants to interrogate must inform the arrestee of his Miranda rights, but inside the cell, the police could pretend to be a jailbird and they can -- can get the information that way.

Is that--

Mr. McAllister: Well, Justice Ginsburg, I believe that is correct if -- if it's for example, an undercover officer, someone has gone in -- and in fact, there are cases such as Weatherford v. Bursey that involved an undercover agent who was present for meetings with the defendant and his counsel, and the Court indicated that the presence alone would not violate the right to counsel.

It's the deliberate elicitation and use of statements obtained from the defendant that would violate the Sixth Amendment.

So if a -- a cellmate, another defendant, is the informant who listens and hears, it wouldn't make any difference under the Court's cases if, in fact, it was a police officer pretending to be a cellmate who listens and hears, just as it wouldn't make -- it wouldn't be a violation if there were a recording device in the cell and the defendant talked to himself, which there are cases of that, and it was picked up on the recording device.

The mere listening -- that goes to whether there's a violation at all.

But the who, there is -- it wouldn't matter for our purposes.

Justice Ginsburg: --So the police know that they -- they can get around the clear prohibition on their questioning without Miranda warnings by pretending to be a jailbird.

Mr. McAllister: Potentially, yes.

But, again, the -- the violation would go to what happens in the cell.

So if the police officer is pretending to be another defendant and sits in the cell and the defendant starts telling the officer things, that would not violate the Sixth Amendment at all under the--

Justice Ginsburg: No, I'm -- I'm assuming we're not in the area where the jail mate is -- is simply passive.

In -- in this case, the -- the jail mate made a statement that encouraged the defendant.

He wasn't just passive.

He was encouraging the defendant to speak.

Mr. McAllister: --There is certainly testimony about what he was told to do and what he did.

It does not suggest aggressive efforts, certainly, to find out.

He may not have been completely silent, but he certainly didn't say, tell me what you did, let's talk about your crimes.

But he did make one arguably suggestive statement to the defendant.

Justice Ginsburg: Anyway, your answer is that a police officer could affirmatively elicit testimony?

Mr. McAllister: No, not that he could affirmatively elicit.

That's the dividing line between the Massiah and Kuhlmann case.

If he was in the cell -- well, I guess what I'm suggesting--

Justice Ginsburg: But you're -- you're talking about impeachment only.

We're not talking about the case-in-chief.

So if the police -- he can't -- outside, when he questions the defendant and gives no Miranda warnings, that's inadmissible.

Right?

Mr. McAllister: --Outside of -- well, it would still be admissible for impeachment.

And we're asking for basically the same rule.

So it would be the same thing if he were in the cell, deliberately elicits, knows he's violating Massiah, it couldn't be used in the government's case-in-chief, but it could be used for impeachment purposes.

But that would be true of Miranda.

If the officer deliberately failed to give the warnings, got a statement, they would not be admissible in the case-in-chief; but -- the Court cases are very clear -- they would be admissible for impeachment purposes.

So we're asking for the precise parallel rule.

Justice Ginsburg: But you're -- you're making no distinction, then, between the Fifth and Sixth Amendment.

Mr. McAllister: Well, there may be distinctions, and -- and there is an distinction in the text of the Fifth Amendment -- suggests actually a rule of exclusion when you truly have -- when there truly is a compelled statement.

And the Court has recognized that in cases such as Portash, where the -- the witness is given use immunity, testifies before the grand jury and the government later tries to use it against him.

The Court says, no, you cannot use that testimony for any purpose.

So there is a difference between the Sixth Amendment and Fifth Amendment in that respect.

But what I was suggesting is the way Massiah and Miranda operate is similar in this context, that a violation results in suppression of the evidence from the government's case-in-chief, but it remains available for use as impeachment.

Justice Ginsburg: What about the argument that essentially this is like taking a pretrial deposition, only one side isn't represented?

Mr. McAllister: Well, with all due respect to that argument, Your Honor, we disagree with that.

There are strong incentives for the police, frankly, not to do this.

And in part one of the reasons -- well, there's two.

One is the police know if this is truly in violation of the Sixth Amendment, then nothing can be used in the case-in-chief.

So, at most, it is impeachment if the defendant testifies and if the defendant testifies inconsistently with whatever is elicited.

But furthermore, given the line the court has drawn between Massiah and Kuhlmann and what goes on with the informant in the cell, if they can hear the statements without deliberately eliciting them, if you will, if the informant is present, the defendant wants to talk, starts chatting, they discuss the crime, those statements, the Court has held in Kuhlmann, are admissible for all purposes, because they are not a Sixth Amendment violation at all.

So, the police do have some -- some strong incentives to actually try to gather the evidence, if they're going to, in a way that makes it usable in the prosecution's case-in-chief.

There's much less value to having it solely for impeachment, which is always going to be speculative if it would ever going to be used.

It would depend on if the defendant testifies and if he testifies inconsistently with what he has told an informant.

And in that regard, there are other deterrents I'd like to mention here as well.

The informant in this case, for example, in jail recognized that he did not want to be an aggressive questioner or -- or obvious as a government agent.

In fact, he said, I didn't really want to ask him questions because I was afraid if he felt I was being too nosey, I might get hurt.

And so, the informants have their own incentives to be careful here.

And in this case, it's also important to remember that deterrence is simply one side of the balance.

And the Court has said many times even if there would be some deterrent effect to extending the rule to include impeachment, that doesn't answer the question whether it should, in fact, be excluded.

That still must be weighed against the costs on the other side.

And the Court has numerous cases emphasizing the costs that are present on the other side of this case.

Perjury by criminal defendants is a primary one, but also cases talking about the importance of allowing the jury to hear the truth and to search for truth.

The jury here gets to evaluate and did, I would argue, quite effectively from Mr. Ventris' standpoint, evaluate the informant's credibility.

The jury was -- was informed, cross-examination of the informant's circumstances, what benefit he received, who he was, all -- all the things they might want to know in deciding whether to believe him.

His testimony went not solely but primarily to the question of who was the shooter in the murder in the case, and the jury acquitted Mr. Ventris of the murder charge.

So they did not believe, at least beyond a reasonable doubt, that he in fact was the shooter.

And that is precisely how this should work.

We're not saying informants are always 100 percent reliable, but we're saying the Court has a long tradition, the country has a long tradition of putting this evidence in front of a jury.

It's tested by crossexamination, knowledge of what the incentives are, bringing that out in front of the jury, and then the jury decides.

There are many of these cases where it's -- this was a typical, one codefendant saying, he was the shooter, the other defendant saying, no, she was the shooter.

And the informant simply had information that was relevant to the credibility.

And that's the way it was used in this case, was as impeachment on rebuttal to evaluate Mr. Ventris's testimony and whether the jury believed him or not.

The other thing I would remind the Court is we are simply saying that the rule should be no exclusion under the Sixth Amendment for impeachment purposes, but that does not mean that the normal rules of evidence and other rules of trial procedure do not apply.

They do.

And they might well result in the exclusion of some potential informant's testimony.

So if the government were to want to put on an informant who had been convicted many times of perjury and the judge said, no, I just do not think this evidence is credible enough to even put in front of the jury, not this person, the ordinary rules of evidence and trial procedure would operate.

Furthermore, as happened in this case, the judge can, and often will, give cautionary instructions, limiting instructions.

All of that remains appropriate.

But there's simply no reason to exclude the evidence as a matter of the Sixth Amendment right to counsel.

It would be inconsistent, frankly, with -- with, really, the general tone and holdings of the cases in the -- in the Fourth Amendment, Miranda, and even Sixth Amendment territory, including primarily Michigan v. Harvey and Nix v. Williams.

Unless the Court has further questions, I'll reserve the remainder of my time for rebuttal.

Chief Justice Roberts: Thank you, counsel.

Ms. Saharsky.

ORAL ARGUMENT OF NICOLE A. SAHARSKY ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER

Mr. Saharsky: Mr. Chief Justice, and may it please the Court: This Court has consistently allowed the use of voluntary statements obtained in violation of constitutional standards for impeachment purposes, and that same rule should apply here.

There's no question that Respondent's statements were voluntary, and the substantial societal costs of allowing him to commit perjury unchecked greatly outweigh any speculative deterrence benefits that would flow from a per se rule of exclusion.

The purpose of the right to counsel is to provide an adversary process to ensure the defendant gets a fair trial.

And to effectuate that right, the Court has excluded deliberately elicited statements from the government's case-in-chief.

But not allowing the statements for impeachment purposes doesn't further that right.

Instead, what it does is allow the defendant to distort the truth-seeking process, and that's just too high a price to pay.

Chief Justice Roberts: Well, you say there's no deterrent value, since the police are -- are not going to do this, that they know they're not going to be able to use this in their case-in-chief.

But there's also no down side, is there?

I mean, you say it's only for impeachment purposes, but, you know, why not?

He may take the stand.

He may lie.

Better to have this in the bank instead of not.

Mr. Saharsky: But there is a down side.

I mean, as this Court recognized in cases versus -- like Hudson v. Michigan, for example, the police have their own codes of conduct.

They have training on constitutional rules and standards.

And if they violate those constitutional rules and standards, it has real effect for the police.

It has effect in terms of internal discipline, in -- in terms of limiting their career opportunities.

Justice Ginsburg: Is that really verifiable?

Do police officers who engage snitches, do they get disciplined, especially if they are then able to accomplish what was accomplished here?

That is, the -- the testimony -- the snitch is then able to testify after the defendant testifies.

Mr. Saharsky: I don't think that there's any evidence in the briefs, and I am not aware of specific instances of discipline, but I think that that's because this situation arises pretty infrequently.

You know, when this came up in the Kansas Supreme Court, it was a case of first impression.

And as General McAllister noted, there are a lot of reasons why the police would want to just follow the rule in Kuhlman and send the informant in to be a passive listening post because if--

Justice Ginsburg: At the Federal level, is there anything one way or another, any manual that instructs a U.S. attorney about the use of snitches to extract confessions?

Mr. Saharsky: --I think the Department of Justice manual sets out this Court's rules in terms of the Kuhlman case and the Henry case.

And then, of course, there are also State and the Model Professional Ethics Rules that talk about when a prosecutor can contact a person who is represented by counsel.

And there are limitations there as well, both in terms of the prosecutor contacting a person represented or using an agent contacting a person represented.

But I mean, those are -- those are deterrents.

I think the police discipline is a deterrent.

But I think we also need to -- to focus on this Court's cases in the Fourth and Fifth and Sixth Amendment Jackson context that taking the evidence and making it unavailable in the government's case-in-chief is a substantial deterrent.

This Court said in each of those previous case that not having the evidence available in the government's case-in-chief is a very high price to pay, because that means that the government has to come up with other evidence that can meet its burden of proving all of the elements of the case beyond a reasonable doubt.

And, as General McAllister noted, it's really very speculative, and the police certainly wouldn't know at the time they're asking questions of the defendant, whether this rebuttal impeachment evidence could ever be used.

It's entirely within the control of the defendant.

It's only if the defendant -- if the government first meets its burden of proof with other evidence at trial, and then the defendant decides to testify, and then he testifies inconsistently with his prior statements.

And our position is at that point that the jury should hear the conflicting evidence just as it has heard it in all of these other previous cases and be allowed to make a decision about who's telling the truth.

Justice Stevens: It seems to me you're just confirming the answer to the Chief Justice's question.

There really isn't any down side.

The worst -- the worst that happens is maybe they can't use the stuff.

But what -- what's the down side?

Mr. Saharsky: Again, I -- I think that there is a down side in terms of police discipline and the deterrence--

Justice Stevens: Has any police officer ever been disciplined for doing this, do you know?

Mr. Saharsky: --I -- I--

Justice Stevens: I'd find it rather amazing if he has.

Mr. Saharsky: --Again, I think that most police officers just follow the rule that this Court set forth in Kuhlmann, so that this -- this issue has not arisen frequently.

But, you know, even if you thought that there would be some type of minimal deterrence benefit that would arise from -- from not making the evidence available for impeachment purposes, you have to balance it against the cost to the truth-seeking process that would be incurred if the defendant--

Justice Stevens: Well, defendants sometimes lie, but sometimes people who are in this position in prison are not the most trustworthy people either.

Mr. Saharsky: --I think if they're--

Justice Stevens: You could bring that out on cross-examination.

I understand that.

Mr. Saharsky: --That -- that is what I was going to say.

I mean, as General McAllister noted, that -- that happened in this case.

The prosecutor himself got up and talked about the -- the informant's prior offenses, why the informant was in jail, whether the informant received anything in exchange for his testimony, the fact that the informant had actually gone back to jail after testifying -- or after serving as an informant in this case.

Justice Stevens: It seems to me that -- that all confirms the fact, well, they have nothing to lose.

Maybe we've got one witness who's not very persuasive, but no harm in giving it a try.

Mr. Saharsky: I think that the -- the fact that the evidence would be unavailable in the government's case-in-chief really is a strong price that the government pays.

And -- and this Court recognized it in -- in Havens, in Walder, in Harris, in Hass, in Harvey, and -- and all of those prior cases.

And there's just -- there's not any reason to depart from them because the -- the other side of the balance is that, you know, you're letting a defendant to get up and take the stand and -- and not subject himself to this prior statement.

And this -- this prior statement, if believed by the jury, is incredibly important to his credibility, probative with respect to whether the crimes were committed and the defendant is telling the truth.

Justice Stevens: If it is truthfully reported.

Of course, this is all an issue of credibility in all of these cases.

Mr. Saharsky: Yes.

Every case has a question about someone's credibility, some witness's credibility, and that's for the jury to decide.

And in -- in this case there was ample cross-examination.

There was the limiting instruction that the State mentioned.

I mean, clearly the jury did its job here because it went back and it considered all this information.

And it didn't come back with a -- a verdict -- although you, of course, never know exactly what the jury is thinking, it didn't come back with a verdict suggesting it just reflexively believed the informant's testimony.

So--

Justice Scalia: Ms. Saharsky, I'm -- I'm still a little hung up on -- on whether we would be allowing a constitutional violation.

General McAllister said that in the Fifth Amendment area, we -- we indeed allow -- allow it to be introduced in rebuttal even though that is the actual constitutional violation.

Is that the case other than in the Miranda situation?

I mean, suppose you have a generally coerced confession.

Would we -- would we permit that to go in?

Mr. Saharsky: --Certainly not.

In the Fifth Amendment context, the text of the amendment itself would prohibit the use of that statement for any purposes.

Justice Scalia: Exactly.

Well, why -- why is not that the case with the -- the right to counsel?

Mr. Saharsky: Because the text of the Sixth Amendment doesn't say anything about the exclusion of evidence at trial.

What it does is it guarantees counsel for a purpose, and that purpose is to ensure an adversary process at trial.

And if counsel is not afforded, then it's up to the courts to determine what the remedy is.

Justice Scalia: But its real meaning is that counsel is guaranteed at trial.

Isn't that right?

Mr. Saharsky: I'm sorry.

I missed the first part.

Justice Scalia: Its root purpose is that counsel is guaranteed at trial.

And here we're saying it's okay not to have counsel at trial so long as it's refuting a lie by the defendant.

Mr. Saharsky: That's not true.

I mean, certainly counsel is available at trial.

The question is just whether statements that were obtained without counsel prior to trial can be used for impeachment purposes.

The answer--

Justice Scalia: So you say that -- you say the Sixth Amendment violation occurs before trial.

Mr. Saharsky: --I'm sorry if I suggested that.

No, the Sixth Amendment violation occurs when the statements are introduced in the government's case-in-chief at trial.

Justice Scalia: Right.

Mr. Saharsky: And that's because the government should not be allowed to go behind counsel prior to trial and gather up statements, and then use them to prove guilt at trial.

That subverts the adversary process.

When you're talking about impeachment, you're not talking about proving guilt at trial.

You're not talking about the government distorting the adversary process.

If there's any distortion of the adversary process, it's with the defendant attempting to commit perjury at that point.

The Sixth Amendment is just different from the Fifth Amendment in that it does not say anything about statements that are obtained and if they can be used at trial.

And that means that it's up to courts to balance the costs and benefits of exclusion of evidence.

And in the case of the government's case-in-chief, that balance means that that the statements cannot come in because it would be too much of a cost to the adversary process that the Sixth Amendment guarantees to allow the statements in.

But, when you switch over to looking at impeachment, this Court said 50 years ago impeachment is a very different story than the government's case-in-chief.

The interest that you're talking about furthering there, the adversary process interest, would not be furthered by allowing the defendant to take the stand and be able to commit perjury unchecked.

It would not be furthered, and it would -- it would not lead to greater deterrence by simply allowing the statements to be unavailable for impeachment purposes because the great deterrent comes with the statements being unavailable in the government's case-in-chief.

We just don't think that there's any reason to depart from this Court's rule that so long as statements are not involuntary, they can be used for impeachment purposes.

If there are no further questions, we submit the judgment below should be reversed.

Chief Justice Roberts: Thank you, counsel.

Mr. Edge.

ORAL ARGUMENT OF MATTHEW J. EDGE ON BEHALF OF THE RESPONDENT

Mr. Edge: Mr. Chief Justice, and may it please the Court: I guess I have basically three arguments with the -- or problems with the State's position First of all, what we're dealing with in the Sixth Amendment case here is a violation of a core enumerated trial right, and this makes it a very different animal from all the other cases that we're talking about.

If we're talking about the Fourth Amendment, we're talking about something that isn't a trial right.

It's a right of the people to be secure in their -- in their homes and possessions.

The violation occurs when the police commit whatever misconduct makes the search of the evidence illegal.

But the use of that evidence at trial doesn't work any further constitutional--

Justice Breyer: Wasn't this individual represented by counsel?

Was he represented by counsel?

Mr. Edge: --Yes, he was.

Justice Breyer: And he was represented by counsel at the time that the informant took the statement, got the statement elicited.

Is that right?

Mr. Edge: No, I don't think so.

The--

Justice Breyer: I have my memo that I haven't looked through carefully, but I'd be quite interested.

I -- I thought he asked for counsel.

He was given counsel.

Subsequent to that, this statement was elicited.

I'd like to know that because the Sixth Amendment says you have a right to assistance of counsel in your defense.

Period.

And I guess, if he had a lawyer, the lawyer could have told him, don't talk to informants in the jailhouse.

He could have said, I'm going to talk to who I want.

Or he might not have.

But I'd be interested in knowing, did he have assistance of counsel at the time the statement was elicited?

It's one thing to me if he did; another if he didn't.

Don't know?

Mr. Edge: --No.

Justice Breyer: How can I find out?

Mr. Edge: No, the -- I don't know exactly the day that this happened.

I do know that he was arrested on the 16th of January, 2004, and there was a search of his cell on January 20th.

And we know from that testimony that why that's relevant is that he was cellmates with Mr. Doser by that time, and Mr. Doser testifies that he was the cellmate of Mr. Ventris for 2 days.

And on the second day, Mr. Ventris supposedly made these statements.

So my best guess is that the -- this conversation occurred sometime between the 17th and the 20th.

Now, the order of appointing counsel is entered on January 21st, and counsel doesn't enter his appearance until January 27th.

Justice Breyer: So it might be he asked for counsel but hadn't yet received counsel.

Mr. Edge: Correct, Your Honor.

Chief Justice Roberts: Counsel, do -- do I understand the first sentence on page 6 of your brief to concede that there's no deterrent value from prohibiting the introduction of these statements for impeachment?

The sentence says:

"A Sixth Amendment exclusionary rule that allowed use of uncounseled statements for impeachment would not deter violations of the right to counsel. "

Mr. Edge: That is correct, Your Honor.

And the reason I believe this is that, as long as there's some kind of incentive for the prosecutor to use informants in this manner, then the only -- then even if they're not usable in the case-in-chief, there's still an incentive to use this kind of evidence, and the prosecutor and the police will attempt to obtain it.

There's simply very little downside.

The prosecutor instructs the informant not to deliberately elicit the statement.

The prosecutor is still responsible for the informant because the informant is his agent, so even if -- when the informant goes ahead and deliberately elicits the statement, it's still a constitutional violation.

But so long as you allow it for some kind of purpose, then there isn't a deterrent effect, and--

Justice Alito: So in a situation like we have here where the law enforcement officers do not instruct the informant to do anything that would violate the Sixth Amendment and in fact, according to their testimony, instruct him to engage in conduct that's consistent with the Sixth Amendment, there's no deterrent value in later suppressing the use of the statements for impeachment purposes.

Mr. Edge: --I mean, I guess, maybe I'm confused.

There's a deterrent -- there is a deterrent effect from suppressing it in the case-in-chief, but it's not sufficient unless it's also extended to use in rebuttal as well.

Justice Alito: What do you want to deter?

You want -- you want to deter them from using informants at all, even in -- even in a manner that's consistent with the Sixth Amendment?

Mr. Edge: No, Your Honor.

What I'm attempting to deter is the sort of up-ending of the adversarial system that this represents.

There was a question that was presented earlier about when does this violation occur.

And I think that gets to the manner of -- the nature of the Sixth Amendment violation.

And our contention is that the violation occurs when the statement is extracted, and then it's further aggravated when it's used at trial.

When the police obtain these kinds of statements, even if they're not used at trial, it does work a harm on the defendant and his relationship with counsel.

It affects defendant's--

Justice Breyer: Yes, I see the problem.

I wonder if you have an answer to another question.

You may not.

I can't find it.

It seems to me it's been 20 years since this -- nearly 20 -- since the Court decided the Michigan case.

The other cases were decided even earlier.

And it's just surprising to me that it's never come up or rarely, rarely come up, the -- the question of whether the -- the State can introduce into evidence a -- a statement made when the State questioned an individual who'd asked for counsel or had counsel out of the presence of the counsel.

I mean, does that normally happen, or does it never happen?

Why is there so little law on it?

Have you any idea?

Mr. Edge: --I do not, Your Honor.

And I'm really at a loss to speculate as to why that would be.

Chief Justice Roberts: You -- you agree with the representations on -- from your friends on the other side that there's no case of ours where we've excluded a statement or evidence submitted for impeachment, even though it would have been excluded in this case-in-chief.

If you prevail here, it would be the first time that any evidence or statement has been excluded when submitted for purposes of impeachment.

Mr. Edge: It would be a very different rule.

I think the only rule that this would be the case so far is in Portash with the self-incrimination clause.

We're saying that the same type of rule should apply to the Sixth Amendment.

Otherwise, no, that's correct, whenever you're talking about the Fourth Amendment or one of the prophylactic rules like Miranda or Jackson, then they are admissible for impeachment purposes.

What makes this case different is that it -- it involves a violation of an enumerated Constitutional trial right.

Justice Breyer: That's what I'm not certain about.

And this is why I -- I've been asking these questions.

What I can't figure out in my own mind is this.

I ask for a lawyer.

The State has some period of time to give me a lawyer.

Now, it's one thing if what's going on is once I ask for a lawyer, the State should deal with me through my lawyer.

That's how they're supposed to do it.

But that isn't as basic -- that's like a rule of ethics in most States in the civil context and other contexts.

That's not as basic as if I ask for a lawyer, and then the State just doesn't give me one, though it should.

That's a different violation, a different kind of violation.

One is a kind of a rule of ethics incorporated in the Constitution.

The second is what the cases -- is what the Constitution is really about, give him a lawyer when he asks for one.

And which is this case?

That's why I'm having hard time.

Is it the first or the second?

Mr. Edge: Well, in -- I think one of the complicating factors here, Your Honor, is that the State in this particular case didn't try a straightforward interrogation.

They sent in an undercover informant.

Justice Breyer: No, no.

But that -- that -- I mean, I'll amalgamate that for you.

I'll say they're exactly the same thing.

But what I want to know is what rule was violated, what Sixth Amendment rule -- rule.

You know, you heard what I said, the rule, don't talk to a guy who wants a lawyer until you talk to the lawyer.

No communications with a client.

It's a communication with the lawyer.

That's one rule.

And the other rule is he's asked for a lawyer, but you never gave him one.

Now, which is this case?

I mean, I first thought, well, if he didn't have a lawyer at all, then it must be the second, but then I thought they must have a reasonable time to give him a lawyer, and they haven't violated that second.

If you have any view on that, it would be helpful to me.

Mr. Edge: I don't know whether he had asked for a lawyer or not.

I know that he was entitled to one at the time, and one would be appointed for him.

But otherwise--

Justice Ginsburg: But we do know that unlike the police giving Miranda warnings, there's no warning here at all.

I mean, he thinks he's talking to a cellmate.

Nobody tells him, remember, you've got a right to be represented by counsel, and he's essentially giving a statement without the Miranda warnings.

Mr. Edge: --That's correct, Your Honor.

Justice Ginsburg: But the other side says well, practically the defendant is much more likely to say something that's really involuntary when he's confronting police officers -- that the reason that we exclude in the case of a police officer is the intimidating setting when the defendant is in the police station or in the cell and there are these police officers.

Now he thinks he's just with a cellmate, so there isn't -- there isn't the coercive atmosphere that there is when the police do the questioning.

Mr. Edge: Well, Your Honor, I think that there certainly can be a coercive atmosphere even if you're not talking to a known police agent.

Now, those aren't the facts of this particular case and there is no claim that the statement was involuntary.

However, one of the advantages of speaking to known police officers is that a defendant can simply end the interrogation by invoking his right to counsel, and that is not necessarily a course of action that's available to him if he thinks he's merely talking to a cellmate, somebody who -- whether he wants to speak to him or not, he's going to be in the cell with him for some time.

Chief Justice Roberts: Counsel, you've -- you've emphasized that what distinguishes this case from the other ones where we've allowed evidence that would be excluded from the case-in-chief and for impeachment purposes is that this is a trial right.

But the Sixth Amendment says in criminal prosecutions you have the right to the assistance of counsel.

Well, he had assistance of counsel here, and -- and one of the things that counsel did was point out the problems with relying on the snitch's evidence and all the bad things that he did.

But -- but just like in the case of a Fourth Amendment violation, where we allow the evidence to be admitted at trial, this Sixth Amendment problem, you know -- it doesn't -- I just don't see the -- the strength of that distinction.

Mr. Edge: Your Honor, I think it goes to the nature of the harm that comes from a Sixth Amendment violation.

The Sixth Amendment simply doesn't limit itself to the trial.

The exact wording of the -- the constitutional provision is in all criminal prosecutions and it talks about--

Chief Justice Roberts: Well, it seems to me you're getting away from the basis for your distinction then, saying, well, it's not just at trial.

Well, these other constitutional rights where we've allowed the evidence to come in for impeachment are indistinguishable from the Sixth Amendment right outside of trial.

Mr. Edge: --Well, because the harm isn't something that just affects the outcome of the trial, it also affects -- it affects the litigation in a much, much deeper way.

It affects counsel's trial strategy.

It affects a defendant's decision whether or not to testify.

It also--

Chief Justice Roberts: Just to pause on that, it affects his decision to testify because it makes it more likely that he'll testify truthfully if he is going to testify.

Mr. Edge: --Not necessarily.

Chief Justice Roberts: The focus -- the focus on the trial context is at least a double-edged sword since the harm that we're facilitating under your rule is to allow -- allow perjured testimony.

Mr. Edge: Yes, Your Honor, in some contexts it would.

I think one of the underlying assumptions of the State's argument in this with regard to perjury is that the mere existence of a prior inconsistent statement is necessarily indicative of perjury, and we know that there are many reasons why a defendant may have given a prior inconsistent statement.

Chief Justice Roberts: Yes, and if he has the assistance of counsel at trial, consistent with the Sixth Amendment, those -- those problems could be pointed out.

He wasn't -- he was -- he's not lying now.

The reason he said something different then was, you know, he likes to brag in prison or whatever the basis is.

Mr. Edge: In some cases, it will be possible for counsel to vigorously cross-examine the informant.

In others, it may not.

But in addition to that, Your Honor, I would also say that it doesn't simply affect the decision of whether or not to go to trial or whether or not to testify at trial.

It also affects the litigation in a very deep way, inasmuch as a defendant is burdened in trying to negotiate a favorable plea deal.

Every statement or every piece of evidence that the State has affects their willingness to plea bargain, and when the State obtains this kind of evidence illegally, it puts the defendant in a bind for -- puts their counsel in a bind.

Chief Justice Roberts: Oh, I think it would.

That's -- I think that's quite right.

But I don't see how excluding the evidence, even on impeachment, helps that.

I mean, they've still got the statement, and they -- you know, I guess your point is, you know, maybe they'll get some leads from it even if they can't use it.

But excluding the evidence for impeachment purposes doesn't eliminate that harm.

Mr. Edge: It would, Your Honor, inasmuch as it would remove any disincentive for the police to obtain this evidence by this manner in the first place.

So there would be that marginal deterrent factor.

Justice Alito: Which of the things that you've just said that result from the use of this for impeachment would not be true with respect to the other situations where illegally obtained evidence has been used for impeachment purposes?

Take the Fourth Amendment, for example.

Mr. Edge: I think they would be largely the same, Your Honor.

The difference would be in the interests protected.

The self-incrimination clause in the Fifth Amendment is aimed primarily at the coercion of the defendant; whereas, the Sixth Amendment aims primarily at the preservation of an adversarial process, that relationship between counsel and his attorney.

Justice Alito: You don't dispute that there was a Sixth Amendment violation at the time when the statement was taken, do you?

Mr. Edge: No, I do not.

Justice Ginsburg: You urged a -- a fall-back position.

You said at least there should be a determination by the judge that the defendant intentionally testified falsely.

And I was wondering how that would operate.

You're here in the -- the heat of the trial, and the prosecutor says, I want to call snitch so-and-so.

And then what do we do?

Just interrupt the trial and have kind of a mini-trial to test the credibility of -- of the informant?

Mr. Edge: Yes, you could, Your Honor.

Also, you could have it as part of the pretrial suppression hearings.

I would anticipate that even if the -- if the Court were to adopt our position, these kinds of Sixth Amendment cases are still going to be litigated.

The issue is simply going to be whether or not the -- the States -- or the police agent is deliberately eliciting the statement or not.

So there -- there's likely going to be some kind of pretrial litigation regarding the admissibility of the statements, and it could be handled at that time.

If there are no further questions from the Court, I'll yield my remaining time.

Chief Justice Roberts: Thank you, counsel.

Mr. McAllister, you have 6 minutes remaining.

REBUTTAL ARGUMENT OF STEPHEN R. McALLISTER ON BEHALF OF THE PETITIONER

Mr. McAllister: Two quick points by way of rebuttal.

The balancing of the interests here is sprinkling water under the bridge even in the Sixth Amendment context.

In both Nix v. Williams and Michigan v. Harvey where the Court was dealing with Sixth Amendment interests and -- and Sixth Amendment right-to-counsel violations, both of those cases make clear that the question of what exclusionary effect to give a violation is subject to a balancing analysis.

And that's what we're asking for here.

That's why it's treated for these purposes like the Fourth Amendment in the Miranda context.

And Nix itself, to paraphrase the Court, makes a fundamental point which I think illustrates how this works, and it worked effectively to defendant's advantage in this case.

In Nix v. Williams, the Court said the Sixth Amendment right to counsel -- and I'm paraphrasing slightly -- protects against unfairness by assuring an adversary process in which proffered evidence is tested by crossexamination.

And it's done in front of a jury.

It is not about requiring the exclusion of entire categories of witnesses or types of evidence for all purposes.

So the right to counsel was exercised.

It was exercised effectively in this case when Mr. Doser was strongly cross-examined by defense counsel.

Justice Stevens: Wouldn't that apply equally to use of the statement on--

Mr. McAllister: It could, Your Honor.

I realize a logical extension is you could say just test all of it.

But that's where the -- the police here and the prosecutor paid the price of the way in which the evidence was obtained.

It's excluded from the government's case-in-chief.

Unless there are further questions, we would respectfully ask that this Court reverse the decision below.

Chief Justice Roberts: Thank you, counsel.

The case is submitted.