KANSAS v. VENTRIS

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Syllabus
KANSAS v. VENTRIS
certiorari to the supreme court of kansas
No. 07–1356. Argued January 21, 2009—Decided April 29, 2009
Respondent Donnie Ray Ventris and Rhonda Theel were charged with
murder and other crimes. Prior to trial, an informant planted in Ven
tris’s cell heard him admit to shooting and robbing the victim, but Ven
tris testified at trial that Theel committed the crimes. When the State
sought to call the informant to testify to his contradictory statement,
Ventris objected. The State conceded that Ventris’s Sixth Amendment
right to counsel had likely been violated, but argued that the statement
was admissible for impeachment purposes. The trial court allowed the
testimony. The jury convicted Ventris of aggravated burglary and ag
gravated robbery. Reversing, the Kansas Supreme Court held that the
informant’s statements were not admissible for any reason, including
impeachment.
Held: Ventris’s statement to the informant, concededly elicited in violation
of the Sixth Amendment, was admissible to impeach his inconsistent
testimony at trial. Pp. 590–594.
(a) Whether a confession that was not admissible in the prosecution’s
case in chief nonetheless can be admitted for impeachment purposes
depends on the nature of the constitutional guarantee violated. The
Fifth Amendment guarantee against compelled self-incrimination is vio
lated by introducing a coerced confession at trial, whether by way of
impeachment or otherwise. New Jersey v. Portash, 440 U. S. 450, 458–
459. But for the Fourth Amendment guarantee against unreasonable
searches or seizures, where exclusion comes by way of deterrent sanc
tion rather than to avoid violation of the substantive guarantee, admissi
bility is determined by an exclusionary-rule balancing test. See Wal
der v. United States, 347 U. S. 62, 65. The same is true for violations
of the Fifth and Sixth Amendment prophylactic rules forbidding certain
pretrial police conduct. See, e. g., Harris v. New York, 401 U. S. 222,
225–226. The core of the Sixth Amendment right to counsel is a trial
right, but the right covers pretrial interrogations to ensure that police
manipulation does not deprive the defendant of “ ‘effective representa
tion by counsel at the only stage when legal aid and advice would help
him.’ ” Massiah v. United States, 377 U. S. 201, 204. This right to be
free of uncounseled interrogation is infringed at the time of the interro
gation, not when it is admitted into evidence. It is that deprivation

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Syllabus
that demands the remedy of exclusion from the prosecution’s case in
chief. Pp. 590–593.
(b) The interests safeguarded by excluding tainted evidence for im
peachment purposes are “outweighed by the need to prevent perjury
and to assure the integrity of the trial process.” Stone v. Powell, 428
U. S. 465, 488. Once the defendant testifies inconsistently, denying the
prosecution “the traditional truth-testing devices of the adversary proc
ess,” Harris, supra, at 225, is a high price to pay for vindicating the
right to counsel at the prior stage. On the other hand, preventing im
peachment use of statements taken in violation of Massiah would add
little appreciable deterrence for officers, who have an incentive to com
ply with the Constitution, since statements lawfully obtained can be
used for all purposes, not simply impeachment. In every other context,
this Court has held that tainted evidence is admissible for impeachment.
See, e. g., Oregon v. Hass, 420 U. S. 714, 723. No distinction here alters
that balance. Pp. 593–594.
285 Kan. 595, 176 P. 3d 920, reversed and remanded.
Scalia, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Kennedy, Souter, Thomas, Breyer, and Alito, JJ., joined. Ste
vens, J., filed a dissenting opinion, in which Ginsburg, J., joined, post,
p. 594.
Stephen R. McAllister, Solicitor General of Kansas, argued
the cause for petitioner. With him on the briefs were Steve
Six, Attorney General, and Jared S. Maag, Deputy Solicitor
General.
Nicole A. Saharsky argued the cause for the United States
as amicus curiae urging reversal. With her on the brief
were former Solicitor General Garre, Acting Assistant At
torney General Friedrich, and Deputy Solicitor General
Dreeben.
Matthew J. Edge, by appointment of the Court, 555 U. S.
1030, argued the cause for respondent. With him on the
brief was Randall L. Hodgkinson.*
*Briefs of amici curiae urging reversal were filed for the State of New
Mexico et al. by Gary K. King, Attorney General of New Mexico, and
Joel Jacobsen, Assistant Attorney General, by Richard S. Gebelein, Chief
Deputy Attorney General of Delaware, and by the Attorneys General for
their respective States as follows: Troy King of Alabama, Terry Goddard

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588 KANSAS v. VENTRIS
Opinion of the Court
Justice Scalia delivered the opinion of the Court.
We address in this case the question whether a defendant’s
incriminating statement to a jailhouse informant, conced
edly elicited in violation of Sixth Amendment strictures,
is admissible at trial to impeach the defendant’s conflicting
statement.
I
In the early hours of January 7, 2004, after two days of no
sleep and some drug use, Rhonda Theel and respondent Don
nie Ray Ventris reached an ill-conceived agreement to con
front Ernest Hicks in his home. The couple testified that
the aim of the visit was simply to investigate rumors that
Hicks abused children, but the couple may have been in
spired by the potential for financial gain: Theel had recently
learned that Hicks carried large amounts of cash.
The encounter did not end well. One or both of the pair
shot and killed Hicks with shots from a .38-caliber revolver,
and the companions drove off in Hicks’s truck with approxi
mately $300 of his money and his cell phone. On receiving
a tip from two friends of the couple who had helped transport
them to Hicks’s home, officers arrested Ventris and Theel
and charged them with various crimes, chief among them
murder and aggravated robbery. The State dropped the
of Arizona, John W. Suthers of Colorado, Bill McCollum of Florida, Mark
J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Lisa Madigan of
Illinois, Steve Carter of Indiana, Jack Conway of Kentucky, Douglas F.
Gansler of Maryland, Michael A. Cox of Michigan, Mike McGrath of Mon
tana, Kelly A. Ayotte of New Hampshire, Anne Milgram of New Jersey,
Wayne Stenehjem of North Dakota, W. A. Drew Edmondson of Oklahoma,
Thomas W. Corbett, Jr., of Pennsylvania, Henry D. McMaster of South
Carolina, Lawrence E. Long of South Dakota, Robert E. Cooper, Jr., of
Tennessee, Greg Abbott of Texas, Mark L. Shurtleff of Utah, and Robert
F. McDonnell of Virginia; and for the Criminal Justice Legal Foundation
by Kent S. Scheidegger.
Amy Howe, Kevin K. Russell, Thomas C. Goldstein, Pamela S. Karlan,
and Jeffrey L. Fisher filed a brief for the National Association of Criminal
Defense Lawyers as amicus curiae urging affirmance.

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Opinion of the Court
murder charge against Theel in exchange for her guilty plea
to the robbery charge and her testimony identifying Ventris
as the shooter.
Prior to trial, officers planted an informant in Ventris’s
holding cell, instructing him to “keep [his] ear open and lis
ten” for incriminating statements. App. 146. According to
the informant, in response to his statement that Ventris ap
peared to have “something more serious weighing in on his
mind,” Ventris divulged that “[h]e’d shot this man in his head
and in his chest” and taken “his keys, his wallet, about
$350.00, and . . . a vehicle.” Id., at 154, 150.
At trial, Ventris took the stand and blamed the robbery
and shooting entirely on Theel. The government sought to
call the informant, to testify to Ventris’s prior contradictory
statement; Ventris objected. The State conceded that there
was “probably a violation” of Ventris’s Sixth Amendment
right to counsel but nonetheless argued that the statement
was admissible for impeachment purposes because the viola
tion “doesn’t give the Defendant . . . a license to just get on
the stand and lie.” Id., at 143. The trial court agreed and
allowed the informant’s testimony, but instructed the jury to
“consider with caution” all testimony given in exchange for
benefits from the State. Id., at 30. The jury ultimately ac
quitted Ventris of felony murder and misdemeanor theft but
returned a guilty verdict on the aggravated burglary and
aggravated robbery counts.
The Kansas Supreme Court reversed the conviction, hold
ing that “[o]nce a criminal prosecution has commenced, the
defendant’s statements made to an undercover informant
surreptitiously acting as an agent for the State are not ad
missible at trial for any reason, including the impeachment
of the defendant’s testimony.” 285 Kan. 595, 606, 176 P. 3d
920, 928 (2008). Chief Justice McFarland dissented, id., at
611, 176 P. 3d, at 930. We granted the State’s petition for
certiorari, 554 U. S. 944 (2008).

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Opinion of the Court
II
The Sixth Amendment, applied to the States through the
Fourteenth Amendment, guarantees that “[i]n all criminal
prosecutions, the accused shall . . . have the Assistance of
Counsel for his defence.” The core of this right has histori
cally been, and remains today, “the opportunity for a defend
ant to consult with an attorney and to have him investigate
the case and prepare a defense for trial.” Michigan v. Har
vey, 494 U. S. 344, 348 (1990). We have held, however, that
the right extends to having counsel present at various pre
trial “critical” interactions between the defendant and the
State, United States v. Wade, 388 U. S. 218, 224 (1967), in
cluding the deliberate elicitation by law enforcement officers
(and their agents) of statements pertaining to the charge,
Massiah v. United States, 377 U. S. 201, 206 (1964). The
State has conceded throughout these proceedings that Ven
tris’s confession was taken in violation of Massiah’s dictates
and was therefore not admissible in the prosecution’s case in
chief. Without affirming that this concession was necessary,
see Kuhlmann v. Wilson, 477 U. S. 436, 459–460 (1986), we
accept it as the law of the case. The only question we an
swer today is whether the State must bear the additional
consequence of inability to counter Ventris’s contradictory
testimony by placing the informant on the stand.
A
Whether otherwise excluded evidence can be admitted for
purposes of impeachment depends upon the nature of the
constitutional guarantee that is violated. Sometimes that
explicitly mandates exclusion from trial, and sometimes it
does not. The Fifth Amendment guarantees that no person
shall be compelled to give evidence against himself, and so
is violated whenever a truly coerced confession is introduced
at trial, whether by way of impeachment or otherwise. New
Jersey v. Portash, 440 U. S. 450, 458–459 (1979). The Fourth

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Amendment, on the other hand, guarantees that no person
shall be subjected to unreasonable searches or seizures, and
says nothing about excluding their fruits from evidence; ex
clusion comes by way of deterrent sanction rather than to
avoid violation of the substantive guarantee. Inadmissibil
ity has not been automatic, therefore, but we have instead
applied an exclusionary-rule balancing test. See Walder v.
United States, 347 U. S. 62, 65 (1954). The same is true for
violations of the Fifth and Sixth Amendment prophylactic
rules forbidding certain pretrial police conduct. See Harris
v. New York, 401 U. S. 222, 225–226 (1971); Harvey, supra,
at 348–350.
Respondent argues that the Sixth Amendment’s right to
counsel is a “right an accused is to enjoy a[t] trial.” Brief
for Respondent 11. The core of the right to counsel is in
deed a trial right, ensuring that the prosecution’s case is sub
jected to “the crucible of meaningful adversarial testing.”
United States v. Cronic, 466 U. S. 648, 656 (1984). See also
Powell v. Alabama, 287 U. S. 45, 57–58 (1932). But our opin
ions under the Sixth Amendment, as under the Fifth, have
held that the right covers pretrial interrogations to ensure
that police manipulation does not render counsel entirely im
potent—depriving the defendant of “ ‘effective representa
tion by counsel at the only stage when legal aid and advice
would help him.’ ” Massiah, supra, at 204 (quoting Spano v.
New York, 360 U. S. 315, 326 (1959) (Douglas, J., concurring)).
See also Miranda v. Arizona, 384 U. S. 436, 468–469 (1966).
Our opinion in Massiah, to be sure, was equivocal on what
precisely constituted the violation. It quoted various au
thorities indicating that the violation occurred at the mo
ment of the postindictment interrogation because such ques
tioning “ ‘contravenes the basic dictates of fairness in the
conduct of criminal causes.’ ” 377 U. S., at 205 (quoting Peo
ple v. Waterman, 9 N. Y. 2d 561, 565, 175 N. E. 2d 445, 448
(1961)). But the opinion later suggested that the violation

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occurred only when the improperly obtained evidence was
“used against [the defendant] at his trial.” 377 U. S., at 206–
207. That question was irrelevant to the decision in Mas
siah in any event. Now that we are confronted with the
question, we conclude that the Massiah right is a right to
be free of uncounseled interrogation, and is infringed at the
time of the interrogation. That, we think, is when the “As
sistance of Counsel” is denied.
It is illogical to say that the right is not violated until trial
counsel’s task of opposing conviction has been undermined
by the statement’s admission into evidence. A defendant is
not denied counsel merely because the prosecution has been
permitted to introduce evidence of guilt—even evidence so
overwhelming that the attorney’s job of gaining an acquittal
is rendered impossible. In such circumstances the accused
continues to enjoy the assistance of counsel; the assistance is
simply not worth much. The assistance of counsel has been
denied, however, at the prior critical stage which produced
the inculpatory evidence. Our cases acknowledge that real
ity in holding that the stringency of the warnings necessary
for a waiver of the assistance of counsel varies according to
“the usefulness of counsel to the accused at the particular
[pretrial] proceeding.” Patterson v. Illinois, 487 U. S. 285,
298 (1988). It is that deprivation which demands a remedy.
The United States insists that “post-charge deliberate elic
itation of statements without the defendant’s counsel or a
valid waiver of counsel is not intrinsically unlawful.” Brief
for United States as Amicus Curiae 17, n. 4. That is true
when the questioning is unrelated to charged crimes—the
Sixth Amendment right is “offense specific,” McNeil v. Wis
consin, 501 U. S. 171, 175 (1991). We have never said, how
ever, that officers may badger counseled defendants about
charged crimes so long as they do not use information they
gain. The constitutional violation occurs when the uncoun
seled interrogation is conducted.

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Opinion of the Court
B
This case does not involve, therefore, the prevention of a
constitutional violation, but rather the scope of the remedy
for a violation that has already occurred. Our precedents
make clear that the game of excluding tainted evidence for
impeachment purposes is not worth the candle. The inter
ests safeguarded by such exclusion are “outweighed by the
need to prevent perjury and to assure the integrity of the
trial process.” Stone v. Powell, 428 U. S. 465, 488 (1976).
“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 . . . provide himself
with a shield against contradiction of his untruths.” Wal
der, supra, at 65. Once the defendant testifies in a way that
contradicts prior statements, denying the prosecution use of
“the traditional truth-testing devices of the adversary proc
ess,” Harris, supra, at 225, is a high price to pay for vindica
tion of the right to counsel at the prior stage.
On the other side of the scale, preventing impeachment
use of statements taken in violation of Massiah would add
little appreciable deterrence. Officers have significant in
centive to ensure that they and their informants comply with
the Constitution’s demands, since statements lawfully ob
tained can be used for all purposes rather than simply for
impeachment. And the ex ante probability that evidence
gained in violation of Massiah would be of use for impeach
ment is exceedingly small. An investigator would have to
anticipate both that the defendant would choose to testify at
trial (an unusual occurrence to begin with) and that he would
testify inconsistently despite the admissibility of his prior
statement for impeachment. Not likely to happen—or at
least not likely enough to risk squandering the opportunity
of using a properly obtained statement for the prosecution’s
case in chief.
In any event, even if “the officer may be said to have little
to lose and perhaps something to gain by way of possibly

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uncovering impeachment material,” we have multiple times
rejected the argument that this “speculative possibility” can
trump the costs of allowing perjurious statements to go un
challenged. Oregon v. Hass, 420 U. S. 714, 723 (1975). We
have held in every other context that tainted evidence—evi
dence whose very introduction does not constitute the consti
tutional violation, but whose obtaining was constitutionally
invalid—is admissible for impeachment. See ibid.; Walder,
347 U. S., at 65; Harris, 401 U. S., at 226; Harvey, 494 U. S.,
at 348. We see no distinction that would alter the balance
here.*
* * *
We hold that the informant’s testimony, concededly elicited
in violation of the Sixth Amendment, was admissible to chal
lenge Ventris’s inconsistent testimony at trial. The judg
ment of the Kansas Supreme Court is reversed, and the case
is remanded for further proceedings not inconsistent with
this opinion.
It is so ordered.
Justice Stevens, with whom Justice Ginsburg joins,
dissenting.
In Michigan v. Harvey, 494 U. S. 344 (1990), the Court
held that a statement obtained from a defendant in violation
*Respondent’s amicus insists that jailhouse snitches are so inherently
unreliable that this Court should craft a broader exclusionary rule for
uncorroborated statements obtained by that means. Brief for National
Association of Criminal Defense Lawyers 25–26. Our legal system, how
ever, is built on the premise that it is the province of the jury to weigh
the credibility of competing witnesses, and we have long purported to
avoid “establish[ing] this Court as a rule-making organ for the promulga
tion of state rules of criminal procedure.” Spencer v. Texas, 385 U. S. 554,
564 (1967). It would be especially inappropriate to fabricate such a rule
in this case, where it appears the jury took to heart the trial judge’s cau
tionary instruction on the unreliability of rewarded informant testimony
by acquitting Ventris of felony murder.

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of the Sixth Amendment could be used to impeach his testi
mony at trial. As I explained in a dissent joined by three
other Members of the Court, that holding eroded the princi
ple that “those who are entrusted with the power of govern
ment have the same duty to respect and obey the law as the
ordinary citizen.” Id., at 369. It was my view then, as it
is now, that “the Sixth Amendment is violated when the
fruits of the State’s impermissible encounter with the repre
sented defendant are used for impeachment just as it is when
the fruits are used in the prosecutor’s case in chief.” Id.,
at 355.
In this case, the State has conceded that it violated the
Sixth Amendment as interpreted in Massiah v. United
States, 377 U. S. 201, 206 (1964), when it used a jailhouse
informant to elicit a statement from the defendant. No Mi
randa warnings were given to the defendant,1 nor was he
otherwise alerted to the fact that he was speaking to a state
agent. Even though the jury apparently did not credit the
informant’s testimony, the Kansas Supreme Court correctly
concluded that the prosecution should not be allowed to ex
ploit its pretrial constitutional violation during the trial it
self. The Kansas court’s judgment should be affirmed.
This Court’s contrary holding relies on the view that a
defendant’s pretrial right to counsel is merely “prophylactic”
in nature. See ante, at 591. The majority argues that any
violation of this prophylactic right occurs solely at the time
the State subjects a counseled defendant to an uncounseled
interrogation, not when the fruits of the encounter are used
against the defendant at trial. Ante, at 592. This reason
ing is deeply flawed.
The pretrial right to counsel is not ancillary to, or of lesser
importance than, the right to rely on counsel at trial. The
Sixth Amendment grants the right to counsel “[i]n all crimi
1 See Miranda v. Arizona, 384 U. S. 436 (1966).

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nal prosecutions,” and we have long recognized that the
right applies in periods before trial commences, see United
States v. Wade, 388 U. S. 218, 224 (1967). We have never
endorsed the notion that the pretrial right to counsel stands
at the periphery of the Sixth Amendment. To the contrary,
we have explained that the pretrial period is “perhaps the
most critical period of the proceedings” during which a de
fendant “requires the guiding hand of counsel.” Powell v.
Alabama, 287 U. S. 45, 57, 69 (1932); see Maine v. Moulton,
474 U. S. 159, 176 (1985) (recognizing the defendant’s “right
to rely on counsel as a ‘medium’ between him and the State”
in all critical stages of prosecution). Placing the prophylac
tic label on a core Sixth Amendment right mischaracterizes
the sweep of the constitutional guarantee.
Treating the State’s actions in this case as a violation of a
prophylactic right, the Court concludes that introducing the
illegally obtained evidence at trial does not itself violate the
Constitution. I strongly disagree. While the constitu
tional breach began at the time of interrogation, the State’s
use of that evidence at trial compounded the violation. The
logic that compels the exclusion of the evidence during the
State’s case in chief extends to any attempt by the State
to rely on the evidence, even for impeachment. The use of
ill-gotten evidence during any phase of criminal prosecution
does damage to the adversarial process—the fairness of
which the Sixth Amendment was designed to protect. See
Strickland v. Washington, 466 U. S. 668, 685 (1984); see
also Adams v. United States ex rel. McCann, 317 U. S. 269,
276 (1942) (“[The] procedural devices rooted in experience
were written into the Bill of Rights not as abstract rubrics
in an elegant code but in order to assure fairness and jus
tice before any person could be deprived of ‘life, liberty or
property’ ”).
When counsel is excluded from a critical pretrial interac
tion between the defendant and the State, she may be unable
to effectively counter the potentially devastating, and poten

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Stevens, J., dissenting
tially false,2 evidence subsequently introduced at trial. In
explicably, today’s Court refuses to recognize that this is a
constitutional harm.3 Yet in Massiah, the Court forcefully
explained that a defendant is “denied the basic protections
of [the Sixth Amendment] guarantee when there [is] used
against him at his trial evidence of his own incriminating
words” that were “deliberately elicited from him after he
had been indicted and in the absence of his counsel.” 377
U. S., at 206. Sadly, the majority has retreated from this
robust understanding of the right to counsel.
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 ex
pense of the Constitution. Permitting the State to cut cor
ners in criminal proceedings taxes the legitimacy of the en
tire criminal process. “The State’s interest in truthseeking
is congruent with the defendant’s interest in representation
by counsel, for it is an elementary premise of our system of
criminal justice ‘ “that partisan advocacy on both sides of a
case will best promote the ultimate objective that the guilty
be convicted and the innocent go free.” ’ ” Harvey, 494 U. S.,
at 357 (Stevens, J., dissenting) (quoting United States v.
Cronic, 466 U. S. 648, 655 (1984)). Although the Court may
2 The likelihood that evidence gathered by self-interested jailhouse in
formants may be false cannot be ignored. See generally Brief for Na
tional Association of Criminal Defense Lawyers as Amicus Curiae. In
deed, by deciding to acquit respondent of felony murder, the jury seems
to have dismissed the informant’s trial testimony as unreliable.
3 In the majority’s telling, “simply” having counsel whose help is
“not worth much” is not a Sixth Amendment concern. Ante, at 592. Of
course, the Court points to no precedent for this stingy view of the
Counsel Clause, for we have never held that the Sixth Amendment only
protects a defendant from actual denials of counsel. Indeed our venerable
ineffective-assistance-of-counsel jurisprudence is built on a more realistic
understanding of what the Constitution guarantees. See Strickland v.
Washington, 466 U. S. 668 (1984); McMann v. Richardson, 397 U. S. 759,
771, n. 14 (1970) (“[T]he right to counsel is the right to the effective assist
ance of counsel”).

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not be concerned with the use of ill-gotten evidence in dero
gation of the right to counsel, I remain convinced that such
shabby tactics are intolerable in all cases. I respectfully
dissent.