Only one side can lie and cheat
The Supreme Court decision yesterday in Kansas v. Ventris was not a shock. The Court held that the prosecution could use a statement obtained in violation of the right to counsel to impeach a defendant. The State had placed an informant in the cell with Ventris and told him to listen up. Eventually, Ventris made an admission that he killed the victims. At trial he testified differently, and the Sate was allowed to use the admission he made to the informant.
Kansas conceded that the admission was obtained in violation of the the right to counsel, and therefore could not be used in the case in chief. However, they successfully argued that it could be used to impeach him. After, all he shouldn't be allowed to get up on the stand and get away with perjury should he?
The initial problem I see with that argument is that assumes the statement the informant will testify to is truthful. A jail cell is not exactly the place where people bare their souls. There is lot of bragging and self-promotion, mostly in the interest of self-preservation. Perhaps more importantly, informants are not pillars of the community known for their honesty. They don't get anything out of saying someone denied committing the offense; they only get a benefit if they tell the police something useful to the investigation. Needless to say, you can't believe everything they say.
There is a more fundamental problem with this holding. When a statement is obtained in this manner the police are deliberately choosing to violate the law. They know it's unlawful, and they do it anyway. Why should courts reward that conduct. When anyone else chooses to do something unlawful, they get prosecuted. The State gets a free pass, and obtains a benefit - maybe not the benefit they really want, but a benefit nonetheless. It's simply one more example of the police getting a "pass".
Justice Stevens and Justice Ginsburg were the only two who had a problem with this. In his dissent, Justice Stevens said:
Today’s decision is lamentable not only because of its flawed underpinnings, but also because it is another occasion in which the Court has privileged the prosecution at the expense of the Constitution. Permitting the State to cut corners in criminal proceedings taxes the legitimacy of the entire criminal process....Although the Court may not be concerned with the use of ill-gotten evidence in derogation of the right to counsel, I remain convinced that such shabby tactics are intolerablein all cases. I respectfully dissent.
That's a quote worth saving.
