throbber
No. 07-1356
`================================================================
`In The
`Supreme Court of the United States
`--------------------------------- ♦ ---------------------------------
`STATE OF KANSAS,
`
`v.
`
`Petitioner,
`
`DONNIE RAY VENTRIS,
`Respondent.
`
`--------------------------------- ♦ ---------------------------------
`On Writ Of Certiorari To The
`Kansas Supreme Court
`--------------------------------- ♦ ---------------------------------
`BRIEF OF AMICI CURIAE STATES OF
`NEW MEXICO, ALABAMA, ARIZONA, COLORADO,
`DELAWARE, FLORIDA, HAWAII, IDAHO, ILLINOIS,
`INDIANA, KENTUCKY, MARYLAND, MICHIGAN,
`MONTANA, NEW HAMPSHIRE, NEW JERSEY,
`NORTH DAKOTA, OKLAHOMA, PENNSYLVANIA,
`SOUTH CAROLINA, SOUTH DAKOTA,
`TENNESSEE, TEXAS, UTAH, AND VIRGINIA
`ON BEHALF OF PETITIONER
`--------------------------------- ♦ ---------------------------------
`GARY K. KING
`Attorney General of New Mexico
`JOEL JACOBSEN
`Counsel of Record
`Assistant Attorney General
`111 Lomas Blvd., NW, Suite 300
`Albuquerque, NM 87102
`(505) 222-9061
`Counsel for Amici Curiae
`[Additional Counsel On Inside Cover]
`================================================================
`COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
`OR CALL COLLECT (402) 342-2831
`
`

`
`TROY KING
`Attorney General
`State of Alabama
`TERRY GODDARD
`Attorney General
`State of Arizona
`JOHN W. SUTHERS
`Attorney General
`State of Colorado
`RICHARD S. GEBELEIN
`Chief Deputy Attorney
` General
`State of Delaware
`BILL MCCOLLUM
`Attorney General
`State of Florida
`MARK J. BENNETT
`Attorney General
`State of Hawaii
`LAWRENCE G. WASDEN
`Attorney General
`State of Idaho
`LISA MADIGAN
`Attorney General
`State of Illinois
`STEVE CARTER
`Attorney General
`State of Indiana
`JACK CONWAY
`Attorney General
`Commonwealth of
` Kentucky
`DOUGLAS F. GANSLER
`Attorney General
`State of Maryland
`
`
`
`MICHAEL A. COX
`Attorney General
`State of Michigan
`MIKE MCGRATH
`Attorney General
`State of Montana
`KELLY A. AYOTTE
`Attorney General
`State of New Hampshire
`ANNE MILGRAM
`Attorney General
`State of New Jersey
`WAYNE STENEHJEM
`Attorney General
`State of North Dakota
`W.A. DREW EDMONDSON
`Attorney General
`State of Oklahoma
`THOMAS W. CORBETT, JR.
`Attorney General
`Commonwealth of
` Pennsylvania
`HENRY D. MCMASTER
`Attorney General
`State of South Carolina
`LAWRENCE E. LONG
`Attorney General
`State of South Dakota
`ROBERT E. COOPER, JR.
`Attorney General and
` Reporter
`State of Tennessee
`GREG ABBOTT
`Attorney General
`State of Texas
`
`

`
`
`
`MARK L. SHURTLEFF
`Attorney General
`State of Utah
`ROBERT F. MCDONNELL
`Attorney General
`Commonwealth of Virginia
`
`

`
`i
`
`QUESTION PRESENTED
`
`
`“voluntary
` Whether a criminal defendant’s
`
`statement obtained in the absence of a knowing and
`voluntary waiver of the [Sixth Amendment] right to
`counsel,” Michigan v. Harvey, 494 U.S. 344, 354
`(1990), is admissible for impeachment purposes – a
`question the Court expressly left open in Harvey, and
`which has resulted in a deep and enduring split of
`authority in the Circuits and state courts of last
`resort?
`
`

`
`ii
`
`TABLE OF CONTENTS
`
`4
`
`Page
`Question Presented ................................................
`i
`Table of Authorities ................................................
`iii
`Interest of the Amici Curiae...................................
`1
`Summary of the Argument.....................................
`1
`Argument ................................................................
`4
`
`I. The Trial Court Properly Allowed Volun-
`tary Statements to Be Used for Impeach-
`ment Purposes .............................................
` II. Prohibiting the Use of Voluntary State-
`ments for Impeachment Purposes Under-
`values the “Truth-Seeking” Function of
`Trials ............................................................
`A. This Kansas Supreme Court’s Opinion
`Failed to Abide by This Court’s Prece-
`dent Requiring a Court to Balance the
`Twin Goals of Substantive Justice and
`Procedural Fairness ..............................
`B. If a Proper Balancing of Interests Were
`Performed, It Would Reveal Marginal
`Benefits but Massive Losses ................. 12
` III. The Kansas Supreme Court’s Majority
`Opinion Improperly Ignored this Court’s
`Recent Sixth Amendment Jurisprudence ... 16
`Conclusion............................................................... 18
`
`9
`
`9
`
`

`
`iii
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`Apprendi v. New Jersey, 530 U.S. 466 (2000)........3, 16
`Banks v. Dretke, 540 U.S. 668 (2004).........................10
`Blackburn v. Alabama, 361 U.S. 199 (1960) ...............7
`Blakely v. Washington, 542 U.S. 296 (2004) ..........3, 17
`Cheney v. United States District Court, 542
`U.S. 367 (2004)..........................................................9
`Crawford v. Washington, 541 U.S. 36
`(2004).........................................................3, 6, 16, 17
`Davis v. Washington, 547 U.S. 813 (2006)...................6
`District of Columbia v. Heller, 554 U.S. ___,
`128 S.Ct. 2783, 171 L.Ed.2d 637 (2008)...................6
`Harris v. New York, 401 U.S. 222 (1971) ...........1, 5, 12
`Hudson v. Michigan, 547 U.S. 586 (2006) .......2, 11, 12
`Jackson v. Denno, 378 U.S. 368 (1964)....................6, 7
`Kuhlmann v. Wilson, 477 U.S. 436 (1986) .........4, 8, 14
`LaChance v. Erickson, 522 U.S. 262 (1998)...............15
`Massiah v. United States, 377 U.S. 201 (1964) ...3, 4, 14
`Mathews v. United States, 485 U.S. 58 (1988)...........15
`Michigan v. Harvey, 494 U.S. 344 (1990) ..............1, 17
`Miller-El v. Dretke, 545 U.S. 231 (2005)....................17
`Mincey v. Arizona, 437 U.S. 385 (1978) ...............5, 6, 8
`Miranda v. Arizona, 384 U.S. 436 (1966) ....................5
`New Jersey v. Portash, 440 U.S. 450 (1979) ........5, 6, 8
`
`

`
`iv
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`Nix v. Whiteside, 475 U.S. 157 (1986)....................1, 15
`Nix v. Williams, 467 U.S. 431 (1984) ...................11, 13
`Oregon v. Hass, 420 U.S. 714 (1975)................5, 12, 13
`Portuondo v. Agard, 529 U.S. 61 (2000) ......................9
`Powers v. Ohio, 499 U.S. 400 (1991) ....................17, 18
`Sparf v. United States, 156 U.S. 51 (1895) ................17
`State v. Swinton, 847 A.2d 921 (Conn. 2004) ..............8
`Terry v. Ohio, 392 U.S. 1 (1968) .................................14
`Texas v. Cobb, 532 U.S. 162 (2001) ........................3, 14
`United States v. Goodlow, 597 F.2d 159 (9th
`Cir. 1979) .................................................................15
`United States v. Henry, 447 U.S. 264 (1980) ...............4
`United States v. Mandujano, 425 U.S. 564
`(1976).......................................................................15
`United States v. Polizzi, 549 F.Supp.2d 308
`(E.D. N.Y. 2008).......................................................17
`Walder v. United States, 347 U.S. 62 (1954) ....1, 4, 5, 12
`Watts v. Indiana, 338 U.S. 49 (1949) ...........................6
`
`CONSTITUTIONAL PROVISIONS
`U.S. Const. amend. IV............................................4, 12
`U.S. Const. amend. V ...................................................6
`U.S. Const. amend. VI........................................passim
`U.S. Const. amend VIII ................................................7
`
`

`
`v
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`RULES OF COURT
`Supr. Ct. Rule 37 ..........................................................1
`
`OTHER AUTHORITIES
`John Paul Stevens, “Foreword, Symposium:
`The Jury at a Crossroad: The American
`Experience,” 78 CHI.-KENT L. REV. 907 (2003).......17
`Roscoe Pound, “The Causes of Public Dissat-
`isfaction with the Administration of Justice,”
`40 AM. L. REV. 729 (1906) .......................................10
`
`

`
`1
`
`INTEREST OF THE AMICI CURIAE
` The Amici Curiae States appear in support of
`
`Petitioner, the State of Kansas. Supr. Ct. Rule 37.1.
`The Amici have a significant interest in the question
`presented by Petitioner’s brief on the merits, the
`answer to which has the potential to affect dramati-
`cally the conduct of criminal trials across the Nation.
`As demonstrated by the Petition for Writ of Certio-
`rari, courts around the country have become hope-
`lessly split on the question presented since this Court
`specifically reserved ruling on it in Michigan v.
`Harvey, 494 U.S. 344, 354 (1990).
`--------------------------------- ♦ ---------------------------------
`
`SUMMARY OF THE ARGUMENT
` When a criminal defendant takes the stand in his
`
`or her own defense, determining his or her credibility
`is usually the jury’s single most important factfinding
`function. The Kansas Supreme Court majority’s
`opinion severely handicaps the jury’s ability to per-
`form that function effectively. In holding that Re-
`spondent was wrongfully impeached by volunteered
`words from his own mouth, the majority effectively
`recognized a constitutional right to commit perjury in
`these circumstances. That result contravenes princi-
`ples affirmed in Nix v. Whiteside, 475 U.S. 157, 173
`(1986); Harris v. New York, 401 U.S. 222, 225 (1971);
`and Walder v. United States, 347 U.S. 62, 65 (1954),
`among other cases.
`
`

`
`2
`
` This Court has previously excluded a criminal
`
`defendant’s statements for all purposes only when the
`statements at issue were compelled. In other situa-
`tions, a witness’s statements, however obtained, may
`be used for impeachment purposes. The different
`treatment of involuntary and voluntary statements is
`based on fundamental constitutional principles whose
`surpassing importance was not recognized in the
`majority’s opinion. Those animating principles in-
`clude the importance of the constitutional text, which
`specifically excludes compelled self-incrimination;
`obvious concerns about the quality of evidence ob-
`tained by compulsion; and the human and political
`rights transgressed when government officials compel
`a suspect to incriminate him- or herself. None of
`those principles is served by the per se rule adopted
`by the Kansas majority.
`
` This Court’s Sixth Amendment precedent re-
`
`quires a court to balance the twin goals of substantive
`justice and procedural fairness to determine what
`course of action promises the greatest benefit at the
`least cost. Hudson v. Michigan, 547 U.S. 586, 591
`(2006). The Kansas Supreme Court failed to perform
`the required balancing. Had it done so, it would have
`recognized its per se rule of inadmissibility did little
`to promote procedural fairness, because the incentive
`for police officers or prison officials knowingly to
`violate the Sixth Amendment in hopes that the ac-
`cused will take the stand and commit perjury on the
`precise subject of investigation is so small. In addi-
`tion, there are legitimate and constitutional reasons
`
`

`
`3
`
`for officials to investigate a person facing pending
`charges. Texas v. Cobb, 532 U.S. 162, 171-72 (2001);
`Massiah v. United States, 377 U.S. 201, 207 (1964).
`Under the Kansas Supreme Court’s per se rule,
`evidence gathered by such permissible means is not
`admissible even if it is unexpectedly made relevant
`by the defendant’s perjurious testimony. But because
`the collection of such evidence is not wrongful, it is
`not in need of deterrence. The majority’s blanket rule
`thus excludes properly-gathered evidence, which
`serves no constitutional or social purpose at all.
`
` In addition, the Sixth Amendment has in recent
`
`years been a focus of this Court’s sustained attention
`in several groundbreaking opinions, such as Craw-
`ford v. Washington, 541 U.S. 36 (2004), and Apprendi
`v. New Jersey, 530 U.S. 466 (2000). Those and many
`other cases have suggested new analytic approaches
`to the interpretation of the various clauses of the
`Sixth Amendment, including a renewed emphasis on
`the constitutional autonomy of the jury as a factfind-
`ing body. Blakely v. Washington, 542 U.S. 296, 305-06
`(2004). The Kansas Supreme Court’s majority opinion
`did not consider any developments in Sixth Amend-
`ment jurisprudence since 1990. Had it done so, it
`would have recognized that its approach, which
`reduces the jury’s authority by severely limiting its
`ability to make the most important of all credibility
`determinations, is inconsistent with Blakely and
`related cases.
`
`--------------------------------- ♦ ---------------------------------
`
`
`

`
`4
`
`ARGUMENT
` This case involves a private conversation be-
`
`tween the Respondent and his cellmate. Because
`charges were pending against Respondent and the
`cellmate was cooperating with authorities, the prose-
`cution conceded that Respondent’s voluntary state-
`ments were inadmissible in its case in chief pursuant
`to the rule established by Massiah v. United States,
`377 U.S. 201 (1964), and United States v. Henry, 447
`U.S. 264 (1980). See also Kuhlmann v. Wilson, 477
`U.S. 436, 459-60 (1986). The Kansas Supreme Court
`held, as a matter of federal constitutional law, that
`the statements also could not be used to impeach
`Respondent after he took the stand in his own de-
`fense and testified to a version of events dramatically
`different than that he had recounted to his cellmate.
`This Court should reverse the Kansas Supreme
`Court.
`
`
`I. The Trial Court Properly Allowed Volun-
`tary Statements to Be Used for Impeach-
`ment Purposes.
` For at least half a century, this Court’s jurispru-
`
`dence has recognized a constitutionally-significant
`distinction between evidence admitted during the
`prosecution’s case in chief and evidence admitted to
`rebut a defendant’s testimony. In Walder v. United
`States, 347 U.S. 62 (1954), involving physical evi-
`dence seized in violation of the Fourth Amendment,
`Justice Frankfurter’s opinion for the Court observed:
`
`

`
`5
`
`It is one thing to say that the Government
`cannot make an affirmative use of evidence
`unlawfully obtained. It is quite another to
`say that the defendant can turn the illegal
`method by which evidence in the Govern-
`ment’s possession was obtained to his own
`advantage, and provide himself with a shield
`against contradiction of his untruths.
`
`Id. at 65.
`
` In Harris v. New York, 401 U.S. 222 (1971), this
`
`Court similarly held that a statement taken in viola-
`tion of Miranda v. Arizona, 384 U.S. 436 (1966), was
`properly used to impeach a testifying defendant. 401
`U.S. at 225-26. That ruling was reaffirmed in Oregon
`v. Hass, 420 U.S. 714, 722-23 (1975).
`
` Only in one specific situation has this Court held
`
`that an illegally-obtained statement cannot be intro-
`duced against a criminal defendant even for purposes
`of impeachment: when the statement in question is
`the defendant’s compelled self-incrimination. Mincey
`v. Arizona, 437 U.S. 385, 398, 401 (1978); New Jersey
`v. Portash, 440 U.S. 450, 458-59 (1979). The former
`case involved the hours-long interrogation of a hospi-
`talized gunshot victim as he passed in and out of
`consciousness. 437 U.S. at 399-400. In the latter case,
`this Court declared it “crucial” and “central” to its
`decision that the defendant’s statement had been
`compelled by a grant of immunity. 440 U.S. at 458-59.
`
` The Kansas Supreme Court majority treated the
`
`Respondent’s private conversation with his cellmate
`
`

`
`6
`
`as if it were a compelled statement. But Mincey and
`Portash are based on three important constitutional
`principles, none of which was considered in the
`majority opinion. First and most significantly, the
`total exclusion of compelled self-incrimination is
`required by the text of the Fifth Amendment. The
`same is not true of voluntary statements obtained in
`violation of Miranda or Massiah. This Court’s recent
`Sixth Amendment jurisprudence has emphasized the
`importance of the ratified text. See, e.g., Crawford v.
`Washington, 541 U.S. 36, 51 (2004); Davis v. Washing-
`ton, 547 U.S. 813, 824 (2006). Rights explicitly guar-
`anteed in the text of the Constitution and thus
`knowingly ratified by the people stand on a different
`footing from rights established by judicial exegesis
`after the passage of centuries. See District of Colum-
`bia v. Heller, 554 U.S. ___, 128 S.Ct. 2783, 2788-2812,
`2821, 171 L.Ed.2d 637 (2008), and id. at 2822-23,
`2846-47 (Stevens, J., dissenting).
`
` Second, disparate treatment is justified by obvi-
`
`ous concerns about the quality of evidence obtained
`by compulsion. See, e.g., Jackson v. Denno, 378 U.S.
`368, 386 (1964) (referring to “the probable unreliabil-
`ity of confessions that are obtained in a manner
`deemed coercive”); Watts v. Indiana, 338 U.S. 49, 59-
`60 (1949) (Jackson, J., concurring in part and dissent-
`ing in part) (“Of course, no confession that has been
`obtained by any form of physical violence to the
`person is reliable and hence no conviction should rest
`upon one obtained in that manner. Such treatment
`not only breaks the will to conceal or lie, but may
`
`

`
`7
`
`even break the will to stand by the truth. Nor is it
`questioned that the same result can sometimes be
`achieved by threats, promises, or inducements, which
`torture the mind but put no scar on the body.”). For
`that reason, the exclusion of statements obtained by
`compulsion will often – perhaps usually – further
`truth-seeking by eliminating distracting falsehood.
`The same generalization cannot be made with regard
`to the exclusion of statements volunteered during a
`private conversation.
`
` Third, the distinction is based on deep-seated
`
`convictions regarding the relationship of the state to
`the individual. Jackson, 378 U.S. at 386. Freedom
`from official maltreatment is the only right guaran-
`teed twice in the Bill of Rights, in both the Fifth and
`Eighth Amendments. The exclusion of compelled
`statements is an expression of “important human
`values” whose significance is at least as great outside
`the courtroom as within it. Blackburn v. Alabama,
`361 U.S. 199, 206 (1960). The same cannot be said of
`the right at issue in this case. Indeed, the Kansas
`majority would have reached the opposite result if the
`cellmate had switched allegiance after rather than
`before the fateful conversation. Pet. App. 22a. In
`other words, nothing directly experienced by Respon-
`dent himself violated his Sixth Amendment right to
`counsel, but only a sequence of events that occurred
`out of his presence and without his knowledge. In-
`deed, the majority’s summary of facts, Pet. App. 8a
`(informant was instructed to “ ‘keep [his] ear open
`and listen’ for incriminating statements”), show the
`
`

`
`8
`
`informant’s instructions complied with the rule laid
`down in Kuhlmann, 477 U.S. at 459-60 (“the defen-
`dant must demonstrate that the police and their
`informant took some action, beyond merely listening,
`that was designed deliberately to elicit incriminating
`remarks”). Apparently the informant crossed the line
`between merely
`listening and actively eliciting
`statements, prompting the prosecution’s trial-court
`concession. Pet. App. 57a; Joint Appendix at 154. But
`the line between proper and improper use of infor-
`mants in the prison setting is a thin one. State v.
`Swinton, 847 A.2d 921, 966 (Conn. 2004) (“there is no
`bright line test by which this determination is
`made”). A right so transitory and conditional is not a
`basic political or human right on the same level as
`the right to be free of official maltreatment.
`
` None of these important reasons for treating
`
`voluntary and involuntary statements differently was
`considered by the Kansas Supreme Court majority.
`Far from considering the triad of important consid-
`erations undergirding the distinction drawn in Min-
`cey and Portash, the majority did not even cite those
`cases. Only the dissent did so. Pet. App. 42a. Rather,
`the majority saw its task as choosing between “two
`analytical approaches”, Pet. App. 19a, and concluded
`that one approach would discourage behavior of
`which it disapproved. Pet. App. 21a. That too-narrow
`focus was constitutional error.
`
`
`
`

`
`9
`
`II. Prohibiting the Use of Voluntary State-
`ments for Impeachment Purposes Under-
`values the “Truth-Seeking” Function of
`Trials.
` Accurate credibility determination by the jury is
`
`not an evil in need of judicial remedy. Perjury, on the
`other hand, is. The Kansas Supreme Court’s majority
`opinion failed to recognize the full implications of its
`categorical elevation of the goal of procedural fairness
`over the equally-important goal of substantive justice.
`A proper weighing would have revealed minimal if
`not wholly illusory benefits achieved at unjustifiably
`great cost.
`
`
`
`A. This Kansas Supreme Court’s Opinion
`Failed to Abide by This Court’s Prece-
`dent Requiring a Court to Balance the
`Twin Goals of Substantive Justice and
`Procedural Fairness.
` “A trial ideally is a search for the truth.” Por-
`
`tuondo v. Agard, 529 U.S. 61, 77 (2000) (Ginsburg, J.,
`dissenting). Self-evidently, the truth cannot be ar-
`rived at by concealing important pertinent informa-
`tion from the jury. On the contrary, this Court has
`recognized that “the need for information in the
`criminal context” is especially weighty. Cheney v.
`United States District Court, 542 U.S. 367, 384
`(2004). The criminal justice system has a “ ‘funda-
`mental’ and ‘comprehensive’ need for ‘every man’s
`evidence.’ ” Id. (quoting United States v. Nixon, 418
`U.S. 683, 709-10 (1974)). The majority of the Kansas
`
`

`
`10
`
`Supreme Court failed to recognize the importance of
`the system’s needs.
`
` In Banks v. Dretke, 540 U.S. 668 (2004), this
`
`Court emphasized “the ‘special role played by the
`American prosecutor in the search for truth in crimi-
`nal trials.’ ” Id. at 696 (quoting Stickler v. Greene, 527
`U.S. 263, 281 (1999)). That is a role embraced by
`most prosecutors as a matter of professional pride.
`But in the following passage the Kansas Supreme
`Court’s majority denied that judges have a compara-
`ble duty to the truth:
`
`Although trial judges are called upon to de-
`termine the admissibility of evidence to ef-
`fectuate the courts’ truth-seeking function,
`there is nothing in our federal or state con-
`stitutions that requires us to make truth-
`seeking the overriding principle that trumps
`our constitutionally protected rights.
`
`Pet. App. 20a.
`
` That passage encapsulates the sporting theory of
`
`courtroom procedure, by which the judge’s sole duty is
`to enforce the rules of the game without regard to
`truth and justice. Roscoe Pound, “The Causes of
`Public Dissatisfaction with the Administration of
`Justice,” 40 AM. L. REV. 729, 738-39 (1906). But while
`procedural fairness is indeed an important goal of the
`American criminal justice system, it is not the sole
`goal. Substantive justice is also important. True
`justice cannot reliably be premised on anything but
`the jury’s appreciation of the significant knowable
`
`

`
`11
`
`facts. Because substantive justice and procedural
`fairness are both goals of the justice system, this
`Court has repeatedly held that evidence should be
`suppressed only “ ‘where
`its deterrence benefits
`outweigh its “substantial social costs.” ’ ” Hudson v.
`Michigan, 547 U.S. 586, 591 (2006) (quoting Pennsyl-
`vania Bd. of Probation and Parole v. Scott, 524 U.S.
`357, 364-65 (1998), which in turn quoted United
`States v. Leon, 468 U.S. 897, 907 (1984)).
`
` The scale metaphor conveys that procedural
`
`fairness and substantive justice are both worthy
`goals. One is not categorically more important than
`the other. When they conflict, a comparison must be
`made of costs and benefits. The correct option is that
`which promises the greatest benefit at the least cost.
`Id.
`
` Far from comparing potential benefits against
`
`certain costs, however, the Kansas Supreme Court’s
`majority adopted an absolute ranking of priorities,
`holding that a non-textual constitutional prohibition
`on certain forms of factual investigation is always a
`higher priority than “truth-seeking” – the pursuit of
`substantive justice. Pet. App. 20a. That absolute
`ranking of priorities was contrary to the interpreta-
`tion of the assistance of counsel clause adopted by
`this Court in Nix v. Williams, 467 U.S. 431, 446
`(1984) (“Williams contends that because he did not
`waive his right to the assistance of counsel, the Court
`may not balance competing values in deciding
`whether the challenged evidence was properly admit-
`ted. . . . We disagree.”).
`
`

`
`12
`
` In creating an absolute ranking of priorities, the
`
`majority informed the Respondent that he could
`provide a version of events under oath at retrial
`without risk that his jury would hear the much
`different version he told in private when his guard
`was down. That ruling effectively recognized a consti-
`tutional right to commit perjury in this uncommon
`but far from unique situation. In the past, this Court
`has not hesitated to use strong words to describe
`similar results. Hass, 420 U.S. at 723 (“inadmissibil-
`ity would pervert the constitutional right into a right
`to falsify free from the embarrassment of impeach-
`ment evidence from the defendant’s own mouth”);
`Harris, 401 U.S. at 225-26 (“The shield provided by
`Miranda cannot be perverted into a license to use
`perjury by way of a defense, free from the risk of
`confrontation with prior inconsistent utterances.”);
`Walder, 347 U.S. at 65 (“Such an extension of the
`Weeks doctrine would be a perversion of the Fourth
`Amendment.”). The word used by this Court in the
`cited cases is equally applicable to the Kansas Su-
`preme Court’s majority opinion.
`
`
`
`B. If a Proper Balancing of Interests
`Were Performed, It Would Reveal Mar-
`ginal Benefits but Massive Losses.
` “[T]he value of deterrence depends upon the
`
`strength of the incentive to commit the forbidden
`act.” Hudson, 547 U.S. at 596. The majority’s opinion
`identifies the targeted incentive: “Allowing the ad-
`mission of this testimony as rebuttal evidence would
`
`

`
`13
`
`invite the State to engage in clandestine behavior in
`gathering evidence in violation of our constitutional
`rights.” Pet. App. 21a. The concern, then, is that the
`State will engage in clandestine evidence-gathering
`despite certain knowledge that evidence so gathered
`cannot be used in its case in chief, based on the hope
`that the defendant will choose to take the witness
`stand and commit perjury regarding the precise
`subject of the illegally-gathered evidence, making it
`usable on rebuttal.
`
` That situation obviously does not arise frequently
`
`in Kansas – otherwise this case would not have raised
`an issue of first impression. See Pet. App. 57a-59a.
`Thus the court was concerned about the incentive
`officials have to clandestinely gather evidence in
`hopes that events beyond their control will follow one
`relatively uncommon course rather than any number
`of other, far more likely courses. But when there is
`“little to gain from taking any dubious ‘shortcuts’ to
`obtain the evidence”, the exclusionary rule can have
`little deterrent effect. Williams, 467 U.S. at 446. See
`also Hass, 420 U.S. at 723 (genuinely abusive official
`misconduct can be recognized and dealt with on a
`case-by-case basis).
`
` The Kansas Supreme Court’s rule will achieve
`
`little real deterrent effect for another reason, too: the
`exclusionary rule cannot deter conduct that is not
`thwarted by its application. A rational prison official
`might have an incentive to obtain information from
`a represented prisoner for purposes wholly unrelated
`to the charges pending against him, such as the
`
`

`
`14
`
`investigation of prisoner misconduct. Although evi-
`dence gathered for such an unrelated purpose might
`occasionally become relevant to a defendant’s credibil-
`ity in a pending case, eliminating its incidental use as
`impeachment will obviously have no tendency to
`deter its collection for the other purpose, even if such
`deterrence were socially desirable. Terry v. Ohio, 392
`U.S. 1, 14 (1968) (the exclusionary rule “is powerless
`to deter invasions of constitutionally guaranteed
`rights where the police either have no interest in
`prosecuting or are willing to forgo successful prosecu-
`tion in the interest of serving some other goal”).
`
` Similarly, a rational police officer or prison
`
`official has a realistic incentive to gather evidence
`from a represented person awaiting trial when inves-
`tigating a different crime. But, self-evidently, sup-
`pressing impeachment evidence in one prosecution
`will not deter investigations into other crimes, even if
`such deterrence were socially desirable. See Massiah,
`377 U.S. at 207 (being accused of one crime provides
`no immunity from investigation for other crimes).
`Accord Texas v. Cobb, 532 U.S. 162, 171-72 (2001)
`(“the Constitution does not negate society’s interest in
`the ability of police to talk to witnesses and suspects,
`even those who have been charged with other of-
`fenses”).
`
` Finally, a rational police officer or prison official
`
`has an incentive to engage in the passive evidence-
`gathering permitted by Kuhlmann. 477 U.S. at 459-
`60. The majority’s blanket rule thus excludes some
`
`

`
`15
`
`properly-gathered evidence, which serves no constitu-
`tional or social purpose at all.
`
` In short, the benefits of the majority’s per se rule
`
`are small and perhaps entirely illusory. Balanced
`against them are costs both mundane and grand. At
`the mundane level, the Kansas majority’s per se rule
`would inevitably produce disputes about the “real”
`purpose of any collateral police investigation or
`prison intelligence-gathering, imposing administra-
`tive costs on the courts to decipher the “real” motive
`and increasing the likelihood of inconsistent and
`hence unpredictable results. Such unpredictability
`could only vitiate any hypothetical deterrent effect.
`
` Moreover, taking “a grander view of our process,”
`
`United States v. Goodlow, 597 F.2d 159, 163 (9th Cir.
`1979) (Kennedy, J., for the court), nothing less than
`justice itself is imperiled by the judicial countenanc-
`ing of perjury. Nix v. Whiteside, 475 U.S. 157, 174
`(1986) (“No system of justice worthy of the name can
`tolerate” a lawyer’s passive acceptance of a client’s
`perjury); United States v. Mandujano, 425 U.S. 564,
`576 (1976) (plurality) (“Perjured testimony is an
`obvious and flagrant affront to the basic concepts of
`judicial proceedings.”). See also Mathews v. United
`States, 485 U.S. 58, 71 (1988) (White, J., dissenting)
`(describing “the scourge of an effective criminal
`justice system: perjury”). That is why “[i]t is well
`established that a criminal defendant’s right to testify
`does not include the right to commit perjury.” La-
`Chance v. Erickson, 522 U.S. 262, 265 (1998). The
`
`

`
`16
`
`majority opinion of the Kansas Supreme Court adds
`an asterisk to that categorical statement.
`
` In short, while the majority’s opinion makes
`
`procedural fairness a higher priority than substantive
`justice, its opinion does little to ensure fairness, at
`least as anyone outside the criminal justice system
`would define that term. But it does much to prevent
`justice, and much to erode the confidence of ordinary
`citizens in their judicial system.
`
`
`III. The Kansas Supreme Court’s Majority
`Opinion Improperly Ignored this Court’s
`Recent Sixth Amendment Jurisprudence.
` In the 181/2 years since the Court expressly left
`
`open the issue presented by this case, Michigan v.
`Harvey, 494 U.S. 344, 354 (1990), this Court has cited
`the Sixth Amendment in no fewer than 174 decisions,
`according to a Westlaw search. Some of those deci-
`sions have revolutionized our understanding of the
`Sixth Amendment, as for example Crawford v. Wash-
`ington, 541 U.S. 36 (2004), and Apprendi v. New
`Jersey, 530 U.S. 466 (2000). While those particular
`decisions and many of the others examined parts of
`the Sixth Amendment other than the assistance of
`counsel clause, it is not self-evident why different
`analytic approaches would be appropriately applied
`to the various clauses of a single-sentence Amend-
`ment.
`
` The Kansas Supreme Court majority did not
`
`consider any of the paradigm-shifting developments
`
`

`
`17
`
`in Sixth Amendment interpretation since Harvey was
`decided in 1990. One major theme to emerge from
`this Court’s recent Sixth Amendment caselaw is the
`political significance of the jury’s traditional auton-
`omy. That recent emphasis is a corrective to the
`single most striking long-term trend in constitutional
`criminal procedure: the systematic diminution of the
`jury’s autonomy, a process that has proceeded apace
`since Sparf v. United States, 156 U.S. 51 (1895).
`Judge Jack Weinstein is only one of several recent
`observers to suggest the pendulum is beginning to
`swing back from its apogee. United States v. Polizzi,
`549

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