Category Archives: Sixth Amendment

Coy v. Iowa

487 U. S. 1012

June 29, 1988

In cases of alleged sexual assault against children, Iowa allowed a screen to be put up in a courtroom when the children testified. It allowed the accused to see the children, but not the other way around. One defendant argued that the screen placement violated his confrontation clause rights – it literally took away his ability to confront the witness face to face. Iowa responded that face to face confrontation was not a core guarantee of the clause, and that it was justified by the need to protect deeply traumatized child victims.

The Court ruled 6-2 that the screen violated the confrontation clause (Kennedy did not participate). Scalia waxed poetic about the ineffable value of having to make an accusation to someone’s face, and how it would be helpful in letting the jury assess witness credibility. He found that this face to face confrontation was, in fact, a core central value of the Sixth Amendment that the state could not so easily escape with its vague contention that some child victims will be traumatized by seeing their abuser. He remanded the case for harmless error analysis.

O’Connor, joined by White, concurred, and noted that Iowa might use alternative methods of protecting child witnesses like closed circuit television. She also said that the presumption of a face to face right could be overcome in extreme cases for an especially traumatized witness. Blackmun, joined by Rehnquist, dissented. Reviewing precedents, he found no basis for concluding that face to face confrontation was a core value of the Sixth Amendment. He noted that protecting terrified child witnesses was a compelling interest, and observed that the screen actually burdened it far less than the admission of hearsay evidence under various hearsay exceptions. He also slapped down an argument not reached by the majority that the screen would cause the jury to draw an inference of guilt.



Patterson v. Illinois

487 U. S. 285

June 24, 1988

A gang member was indicted for murder. Subsequently, but before he received a lawyer, this gang member made inculpatory statements upon being given the Miranda warning. At trial, he moved to suppress these statements on the grounds that his Sixth Amendment right to counsel had been violated by the interview, and that he had not been duly informed of the consequences of waiving his right to a lawyer by the Miranda warning.

The Supreme Court ruled 5-4 that his confessions were admissible. White said that there was nothing wrong with initiating an interview with an indicted suspect as long as he was always free to cut off the interview by requesting a lawyer. This was the rule in Edwards, and White would not disturb it. As to the sufficiency of the waiver, White pointed out that the Miranda warning summarized the dangers of making statements without counsel quite accurately and succinctly. He further noted that no one had been able to come up with a better warning that the suspect could have been presented with before making the decision to waive his rights. White concluded with the argument that indictment did not make the need for a lawyer more weighty than the need for a lawyer in the pre-indictment investigation context.

Blackmun, in dissent, said that a lawyer must be appointed before any post-indictment questioning begins. Stevens, joined by Brennan and Marshall, argued that questioning a party in a case without their lawyer is universally considered unethical in the civil context. Once the indictment occurs, there are formal adversarial proceedings, and taking advantage of an unrepresented party requires a very well informed waiver. Stevens said that Miranda’s bare warnings were not sufficient to really alert the suspect of the dangers of talking without a lawyer. Furthermore, he found a conflict of interest in the police offering the Miranda warning at all after an indictment. He said it was effectively the prosecution offering the defense legal advice.

There’s something messed up about being so dead set against voluntary confessions. Voluntary confessions are something to be encouraged, and not something to be thwarted at every turn. There’s very little gain to society in making it needlessly difficult to convict people who will openly admit to their guilt.

Arizona v. Roberson

486 U. S. 675

June 15, 1988

When arrested for burglary, the suspect invoked his Edwards v. Arizona right to not be questioned without a lawyer. Later, the police gave him another Miranda warning, and questioned him about a different burglary. Roberson moved that his incriminating statements about the different burglary be excluded from trial because his original request to not be questioned without a lawyer still stood. The Court had to decide whether the Edwards rule extended to questioning about unrelated crimes.

The Court ruled 6-2 that the rule did extend that far (O’Connor did not participate). Stevens distinguished some seemingly contrary precedents because they did not precisely involve the Edwards right to have no custodial questioning after a request for a lawyer. That the Miranda warning was re-administered did not matter, because the coercive pressures of several days in custody might weaken the suspect’s resolve. Stevens felt that a suspect who had requested a lawyer once should be properly resumed to desire one in other cases.

Kennedy, joined by Rehnquist dissented. Because Edwards was a prophylactic rule, rather than a Constitutional command, and because the dangers Edwards meant to address did not seem present, Kennedy did not think the rule properly covered the police conduct. There was no reason to presume that a Miranda warning would not assure a suspect that he could re-invoke his right to a lawyer. Neither should it be presumed that one suspect will necessarily want a lawyer for every single case.

Kennedy is probably right. It’s surprising to see Scalia going along with the majority. A few years later, he would dissent in another case about extending prophylactic rules, saying that the various extensions had created “a veritable fairyland castle of imagined constitutional restriction.”

McCoy v. Court of Appeals of Wis., Dist. 1

486 U. S. 429

June 6, 1988

If a criminal client with court-appointed representation wishes to file a frivolous appeal, the lawyer has an ethical obligation to inform the appeals court that the filing is frivolous. A Wisconsin law mandated that court-appointed lawyers explain precisely why the appeal would be frivolous when informing the court of their professional judgment. One lawyer thought this law was unconstitutional, because it seemed to require the client’s lawyer to effectively act as advocate against the client.

Nonetheless, the Supreme Court upheld the Wisconsin law in a 5-3 vote (Kennedy did not participate). Stevens stressed that lawyers already had the obligation to warn appeals courts of frivolous appeals. Surely, he thought, it did no harm to a client to merely explain the basic reasoning behind this legally mandated disclosure. Indeed, the process of writing an explanation would force the lawyer to review the case very carefully in search for any colorable claim. Such a careful review might even convince the lawyer that non-frivolous grounds for appeal existed – thus, the explanation requirement could even work to the benefit of clients in some cases.

Brennan, joined by Marshall and Blackmun, dissented. He agreed that a court-appointed lawyer had to inform the court about frivolous appeals, but found the written explanation law contrary to the Sixth Amendment. For one thing, it discriminated against the poor, because a paid lawyer was never required to file such a written explanation. For another thing, a written explanation effectively did the prosecutor’s work, throwing the client under the bus by openly offering extended legal arguments against their interests. In any event, striking down the Wisconsin law would be no great loss, contended Brennan, because a truly frivolous appeal will almost always be immediately apparent to appeals courts anyway.

Here’s another one of those rare cases where Brennan is actually right. Cases like this really frustrate me. If moderates like Powell or White are determined to give Brennan a majority in a criminal case every now and then, why don’t they choose one like this, instead of horrible rulings like Mills?

Satterwhite v. Texas

486 U. S. 249

May 31, 1988

In a case called Estelle v. Smith, the Supreme Court ruled that it was Constitutional error to allow psychiatric examination of a defendant in a capital case without notifying the defendant’s counsel. John Satterwhite was examined without notification of his counsel. The doctor who examined him testified at trial that Satterwhite was irredeemably dangerous, and he was sentenced to death. The question was whether this violation was harmless error, given that many other witnesses had provided ample evidence of how dangerous and sociopathic Satterwhite was.

The Court ruled unanimously that the error was not harmless (Kennedy did not participate). O’Connor, writing for a five Justice majority, said that violation of Estelle could sometimes be genuinely harmless, because the error only infects a small portion of the trial rather than the whole ordeal. Nonetheless, the harmlessness of the error had to be beyond a reasonable doubt. Because of the especially impressive and authoritative nature of the doctor’s court testimony, O’Connor was not prepared to conclude that it had not affected the jury’s final decision.

Marshall, joined by Brennan and Blackmun, said that any violation of Estelle should always result in the death sentence being vacated. Because it was usually too difficult to determine whether or not the error was harmless, harmless error analysis should never be undertaken. Furthermore, Estelle itself, and other precedents suggested that harmless error analysis was inappropriate for this particular violation. In a section not joined by Blackmun, Marshall went farther, and contended that absolutely any Constitutional violation in a capital case, even if harmless, must result in the death sentence being overturned. In a separate opinion, Blackmun briefly registered his continuing skepticism of psychiatric testimony in general.

Even though I usually favor upholding death sentences on the basis of harmless error, I must agree with the unanimous Court that this error might not have been harmless. Nevertheless, I’m not at all sure that Estelle was correct in deeming the psychiatric evaluation error in the first place. Certainly, it’s best practices to notify the defendant’s counsel, but to call it a Sixth Amendment violation might go a bit too far.

Wheat v. United States

486 U. S. 153

May 23, 1988

Mark Wheat was involved in a huge drug trafficking conspiracy. A lawyer named Eugene Iredale represented two of Wheat’s co-conspirators. Wheat wanted Iredale to represent him too. The District Court refused to allow this, because of the conflict of interest, even though Wheat and the other two co-conspirators signed waivers indicating their consent. The question was whether the District Court’s determination violated Wheat’s Sixth Amendment rights.

The Court ruled 5-4 that the District Court’s ruling was acceptable. Rehnquist stressed that lower court decisions of this sort needed deference, especially because predicting which conflicts of interest would really derail a trial was tricky and murky prognostication indeed. Also significant was that trial courts often got burned on appeal for allowing representation when conflicts of interest existed, even when waiver had been obtained. The potential for devastating conflict was there, and the District Court had not acted unreasonably in response, concluded Rehnquist.

Marshall, joined by Brennan, would have none of this. Citing some earlier decisions, he said that conflict of interest decisions of the trial court deserved no deference at all, because of how fundamental importance of a defendant’s right to the counsel of their choice. Digging into the facts, Marshall said that the real potential for conflict of interest during Wheat’s trial was almost non-existent. Stevens, joined by Blackmun, was prepared to grant some deference, but also thought, based on the facts, that the alleged conflicts of interest were too trivial to deny Wheat his first choice of counsel.

It’s possible that the District Court really was just trying to screw over Wheat, but I can’t shed too many tears for him. Because Rehnquist is right that the lower courts often face an unwinnable guessing game. Had they allowed Iredale to represent Wheat, and had Wheat lost, he might well have appealed based on the argument that the trial court should have disqualified Iredale. If defendants like Wheat are going to appeal a guilty verdict no matter how the trial court rules on conflict of interest questions, then the courts do deserve a healthy degree of deference.

United States v. Owens

484 U. S. 554

February 23, 1988

A prison guard named John Foster was brutally assaulted in an attack which resulted in enormous memory loss. One day at the hospital though, Foster was briefly able to identify a man named Owens as the assailant. At trial, Owens objected to the introduction of this identification under the confrontation clause, and the Rule of Evidence against hearsay. Even though Foster was available for cross-examination, Owens argued that it was useless because he had no real memory of making the identification.

The Court ruled 6-2 that the identification was admissible (Kennedy did not participate). Scalia cited precedents which showed that forgetfulness of a witness had never been considered a confrontation clause violation. And indeed, because cross-examination allowed Owens to show that Foster’s identification was potentially untrustworthy, Owens was able to use his confrontation clause rights to great effect. With respect to the hearsay argument, it was once again basically dispositive that Foster was there for cross-examination. Although the Federal Rules of Evidence were slightly murky on the point, allowing for Foster’s out-of-court statement was, in the end, the most straightforward reading of them.

The two dissenters were Brennan and Marshall (but you already knew that, didn’t you?). Brennan argued that because virtually all of Foster’s memories were gone, he really shouldn’t be considered the same person who had made the out-of-court identification. Because Owens could get nothing out of Foster in court except ‘I don’t remember,’ the cross-examination was basically useless. While the Court had allowed for fading and dimming memories in past cases, Brennan said that Foster’s memory loss was simply a different order of magnitude. Thus, he found a confrontation clause violation.

As is par for me, I find myself agreeing with the inclusionists in a ruling about evidence. Whether the piece of evidence favors the alleged victim or the defendant (see, e.g. Rock), I think a judge or jury should be apprised of all relevant information, provided that they are told when the information could be dubious.

Taylor v. Illinois

484 U. S. 400

January 25, 1988

In a trial for attempted murder, the defense counsel sprung a surprise witness on the court at the last minute. The judge, who was highly annoyed by this, heard the witness give some testimony away from the jury. Not finding the witness credible, the judge precluded him from testifying to the jury. When the defendant was convicted, he argued that the exclusion of the witness violated his Sixth Amendment rights.

In a 5-3 vote, the Court held that the judge was within his discretion to exclude the witness. Although the Sixth Amendment generally granted a defendant the right to have his witnesses heard, the right could be circumscribed if abused. In this case, bringing in an unreliable witness at the 11th hour crossed the boundary. Justice Stevens said that courts must be able to take harsh measures to preserve their integrity, and thus was unmoved by claims that a lesser remedy such as a continuance should have been imposed instead. Finally, Stevens rejected the claim that the defendant was being punished for the lawyer’s mistake, noting that clients suffer all the time due to ill-conceived trial tactics.

Brennan, joined by Marshall and Blackmun, dissented. As a preliminary matter, he noted that the the case’s justiciability was iffy, but wisely brushed these worries aside (I badly wish this would happen more often). He took great offense at the notion of a judge determining the credibility of a witness. Furthermore, since the outcome of the trial hung in balance, Brennan felt exclusion was a horrendously unfair remedy, disproportionate to the offense. He also stressed at length that there was no proof the defendant was behind the late disclosure of the witness; it was simply wrong to effectively punish the defendant when his lawyer was guilty of not merely poor tactics, but outright legal misconduct. Blackmun’s brief dissent noted that there could be rare cases where exclusion would be warranted.

This is a case where I’m genuinely torn. As I’ve said before, I’m very much in favor of as much evidence as possible coming in, and hate it when arbitrary rules keep important testimony out. On the other hand, the words of Justice Stevens about preserving a court’s integrity had an unexpected resonance. When a defense lawyer starts using amoral, juvenile, and hardback stalling tactics that make a mockery of the judicial system, one does start to want a truly effective remedy. Ultimately, I think I lean slightly to Brennan’s side, if only because there probably are other remedies out there to effectively deter surprise witness abuse.

Buchanan v. Kentucky

483 U. S. 402

June 24, 1987

In the course of robbing a gas station, David Buchanan and Kevin Stanford repeatedly raped a 20 year old woman. Stanford then murdered the victim. The pair was tried jointly, and because Kentucky sought the death penalty for Stanford, the jury was ‘death qualified’ – i.e., no one who objected completely to the death penalty was allowed on it. Buchanan complained that having a ‘death qualified’ jury for his non-capital offenses was unfair, since it was more likely to convict. He also objected to the admission of statements by a psychologist who had performed a competency evaluation on him. They had been introduced by the prosecution to rebut statements from a different psychologist, who was testifying on Buchanan’s behalf.

The Court rejected both of Buchanan’s claims 6-3. With regard to the jury, Blackmun stressed the logistical, financial, and equitable problems that would result from having the co-defendants tried separately, with different juries. Furthermore, because a ‘death-qualified’ jury had been previously ruled a fair jury for a capital defendant, there was a Constitutional presumption of fairness for a non-capital defendant as well. With regard to the psychologist statements, Buchanan had opened up the door by having another psychologist testify in his favor – the state therefore had the right to rebut. Importantly, Buchanan had consented to the interview with the psychologist whose statements he objected to. Buchanan’s lawyer knew of this interview. Finally, none of the statements touched the crime at hand, skirting any self-incrimination issues.

Marshall dissented, and was joined by Brennan and Stevens. On the jury issue, Marshall found the ‘death qualification’ both highly prejudicial, and unnecessary. Because joint trials with one capital and one non-capital defendant happened so rarely, the extra cost and difficulty of different juries was ultimately an inadequate reason for consolidation. On the psychologist issue, Marshall argued that the statements were inapposite because they went only to his competency for trial, and not to his mental state at the time of the crime. Because neither Buchanan nor his lawyer could have anticipated the statements being used in the manner they were, they should have been ruled inadmissible (Stevens did not join this section – probably because he thought it was moot in light of the jury issue).

I think I’ve reached the point where the Brennan/Marshall shtick in criminal cases has finally lost all residue of charm and heroism. For a while it was still vaguely admirable in a strange way. But now I only find it tiring, pathetic, obtuse, and morally disgusting. Isaiah 5:20 summed it up: “Woe to those who call evil good, and good evil; Who substitute darkness for light and light for darkness; Who substitute bitter for sweet and sweet for bitter!

Bourjaily v. United States

483 U. S. 171

June 23, 1987

An undercover FBI agent made plans to sell cocaine to Lonardo, who in turn was to pass on the drug to Bourjaily. Both Lonardo and Bourjaily were arrested when the transfer took place, as planned, in a hotel parking lot. Bourjaily then objected to the admission as evidence of an inculpatory recorded telephone conversation between Lonardo and the FBI agent on the grounds of hearsay. The prosecutors argued that statements made in furtherance of a conspiracy were not hearsay under 801(d)(2)(E) of the Federal Rules of Evidence. The ultimate question was whether the recorded conversation itself could be used to prove the existence of a conspiracy.

The Court ruled 6-3 that the telephone conversation could be used to establish conspiracy, and that its subsequent admission was not hearsay. Rehnquist, who wrote the opinion, distinguished a 1942 case called Glasser, which seemed to suggest that conspiracy could only be established by evidence independent of the alleged hearsay. To the contrary, the alleged hearsay could work with independent evidence to establish a conspiracy, and this by a mere preponderance of the evidence.  Rehnquist found it conclusive that another rule, 104(a), said that these sorts of preliminary determinations could be made without use of the ordinary rules of evidence. The Court also rejected Bourjaily’s claim that he had the right to confront Lonardo at trial, and cited recent precedent holding that no confrontation was required when testimony against the accused fell within a “firmly rooted hearsay exception.”

Stevens said in concurrence that Glasser, despite interpretations to the contrary, had never been intended to mean that only independent evidence could be used to determine conspiracy. Blackmun, joined by Brennan and Marshall, disagreed, and further pressed that the conspiracy exception was rooted in agency law (i.e., because conspirators are united in a cause, a statement by one is a statement by all). Somehow (I don’t quite follow the logic), the agency justification meant the plain meaning of 104(a) didn’t apply. Blackmun continued that conspirator statements could easily be overinterpreted, or blown out of proportion, and that the independent evidence requirement is an important safeguard. Finally, he thought there was a confrontation clause violation. Because the Court abandoned the traditional interpretation of the Glasser rule in its decision, they had no business saying that admission of conspiracy evidence was a “firmly rooted” hearsay exception.

Call me obtuse, but I’ve never really understood why hearsay is so diabolical and verboten. In general, I think the good outweighs the bad, and that judges and juries can usually take out-of-court statements for what they are. Blackmun’s arguments regarding agency are hard to understand, but even if he’s correct, I can’t say I shed any tears.