In my previous post, I discussed the Court’s recent Fourth Amendment decisions. Here are this term’s other criminal cases that also center on constitutional issues (excluding habeas decisions):
- Kansas v. Cheever, 571 U.S. __ (2013) (prosecutors could use testimony based on court-ordered mental examination of defendant in order to rebut defendant’s intoxication defense).
- Hall v. Florida, 572 U.S. __ (2014) (in capital case, state may not categorically limit intellectual disability defense to individuals with an IQ score of 70 or lower — see my earlier post here).
- Kaley v. United States, 571 U.S. __ (2014) (when trying to overturn pretrial asset freeze affecting funds to be used for legal representation, defendant may not challenge grand jury’s probable cause determination).
- Martinez v. Illinois, 572 U.S. __ (2014) (after jury empaneled and sworn, judge’s grant of defendant’s motion for “directed findings of not guilty” counted as acquittal for double jeopardy purposes and precluded appeal by state).
A notable recurring theme across this set of decisions is the Court’s desire to maintain a particular competitive balance at criminal trials.
For instance, in Cheever, the defendant introduced expert evidence in support of an intoxication defense. The question was whether the state could offer rebuttal testimony from an expert who performed a court-ordered mental examination of the defendant. Since the defendant had not consented to this examination, its use at trial arguably implicated the Fifth Amendment privilege against self-incrimination. However, a unanimous Supreme Court had little difficulty rejecting this argument, observing simply, “When a defendant presents evidence through a psychological expert who has examined him, the government likewise is permitted to use the only effective means of challenging that evidence: testimony from an expert who has also examined him.”
This kind of sensibility can work in favor of defendants, too. In Martinez, the Court had little patience for the state’s argument that it would suffer some unfairness if further prosecution of the defendant were barred by the Double Jeopardy Clause:
On the day of trial, the court was acutely aware of the significance of swearing a jury. It repeatedly delayed that act to give the State additional time to find its witnesses. It had previously granted the State a number of continuances for the same purpose. See supra, at 2. And, critically, the court told the State on the day of trial that it could “move to dismiss [its] case” before the jury was sworn. Tr. 3. Had the State accepted that invitation, the Double Jeopardy Clause would not have barred it from recharging Martinez. Instead, the State participated in the selection of jurors and did not ask for dismissal before the jury was sworn. When the State declined to dismiss its case, it “‘took a chance[,] . . . enter[ing] upon the trial of the case without sufficient evidence to convict.’” Downum v. United States, 372 U.S. 734, 737 (1963). Here, the State knew, or should have known, that an acquittal forever bars the retrial of the defendant when it occurs after jeopardy has attached.
No unfairness here, state, you knowingly took a chance on going to trial, and you lost — don’t expect us to bail you out now. Just as Cheever had to live with the consequences of proceeding with his intoxication defense, so the state in Martinez had to live with the consequences of proceeding to trial without all of its witnesses.
Kaley was a complicated, and much more closely contested, decision, but a key consideration also seems to have been a desire to maintain the established competitive balance between prosecution and defense. The defendants sought a pretrial hearing to relitigate the grand jury’s probable cause determination; their purpose was to regain access to funds they intended to use to pay for legal representation. The Court refused, noting the potential effect on the government’s ability to present its case most effectively at trial:
To ensure a favorable result at the [probable cause] hearing, the Government could choose to disclose all its witnesses and other evidence. But that would give the defendant knowledge of the Government’s case and strategy well before the rules of criminal procedure—or principles of due process, see, e.g., Brady v. Maryland, 373 U. S. 83 (1963)—would otherwise require. See Fed. Rules Crim. Proc. 26.2(a), 16(a)(2); Weatherford v. Bursey, 429 U. S. 545, 559–561 (1977) (“There is no general constitutional right to discovery in a criminal case”). And sometimes (particularly in organized crime and drug trafficking prosecutions, in which forfeiture questions often arise), that sneak preview might not just aid the defendant’s preparations but also facilitate witness tampering or jeopardize witness safety.
Kaley not only provides a further illustration of the Court’s desire to maintain the competitive balance at criminal trials, but also demonstrates that the Court’s efforts in this area often have a certain artificiality and arbitrariness to them. After all, our conventional understandings of what constitutes a fair balance between prosecution and defense come not from Holy Writ, but from the Court’s own prior decisions. The metaphor of a “level playing field” is just that — a metaphor. There are no tools available to measure the fairness of a trial in the sort of precise, objective way that we might measure the flatness of, say, a soccer pitch.
Thus, in Kaley, the Court relies, in part, on the weakness of the prosecution’s constitutional obligations to turn over evidence to the defense. But that weakness is itself only a product of the Court’s own prior decisions in Brady v. Maryland and its progeny — a line of cases that is hardly uncontroversial or self-evidently correct.
Likewise, the Court in Kaley downplays the value of retaining a lawyer of one’s own choice; the Court’s decision will have the effect of relegating some defendants to court-appointed counsel who otherwise might have been able to pay for their own lawyers. Why, one might wonder, is it more important to the fairness of a trial to allow the government to hide its cards for as long as possible than it is to allow the defendant to hire a lawyer he knows and trusts? The Court has no real answer to this challenge but to point to its own earlier decisions that had already circumscribed the Sixth Amendment right to counsel in cases subject to federal forfeiture statutes. Again, we find ourselves less on a level playing field than on something akin to an obstacle course full of unexpected pitfalls.
It is possible that the unique pitfalls facing each side do roughly balance out — and the double jeopardy pitfall highlighted by Martinez is a very significant one facing prosecutors — but we can never really know whether this is true or have confidence that any given criminal procedure decision enhances or diminishes the overall evenness of the contest.