(Slip Opinion)              OCTOBER TERM, 2008                                       1

                                       Syllabus

         NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
       being done in connection with this case, at the time the opinion is issued.
       The syllabus constitutes no part of the opinion of the Court but has been
       prepared by the Reporter of Decisions for the convenience of the reader.
       See United States v. Detroit Timber & Lumber Co., 

, 337.


SUPREME COURT OF THE UNITED STATES

                                       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
  Ventris’s cell heard him admit to shooting and robbing the victim, but
  Ventris 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 aggra
  vated burglary and aggravated robbery. Reversing, the Kansas Su
  preme Court held that the informant’s statements were not admissi
  ble for any reason, including impeachment.
Held: Ventris’s statement to the informant, concededly elicited in viola
 tion of the Sixth Amendment, was admissible to impeach his incon
 sistent testimony at trial. Pp. 3–7.
    (a) Whether a confession that was not admissible in the prosecu
 tion’s case in chief nonetheless can be admitted for impeachment
 purposes depends on the nature of the constitutional guarantee vio
 lated. The Fifth Amendment guarantee against compelled self
 incrimination is violated by introducing a coerced confession at trial,
 whether by way of impeachment or otherwise. New Jersey v. Por
 tash, 

, 458–459. But for the Fourth Amendment guar
 antee against unreasonable searches or seizures, where exclusion
 comes by way of deterrent sanction rather than to avoid violation of
 the substantive guarantee, admissibility is determined by an exclu
 sionary-rule balancing test. See Walder v. United States, 

, 65. The same is true for violations of the Fifth and Sixth
 Amendment prophylactic rules forbidding certain pretrial police con
 duct. See, e.g., Harris v. New York, 

, 225–226. The core
2                          KANSAS v. VENTRIS

                                  Syllabus

    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 representation by counsel at
    the only stage when legal aid and advice would help him.’ ” Massiah
    v. United States, 

, 204. This right to be free of uncoun
    seled interrogation is infringed at the time of the interrogation, not
    when it is admitted into evidence. It is that deprivation that de
    mands the remedy of exclusion from the prosecution’s case in chief.
    Pp. 3–6.
       (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, 

, 488. Once the defendant testifies inconsistently, denying
    the prosecution “the traditional truth-testing devices of the adversary
    process,” 

, is a high price to pay for vindicating
    the right to counsel at the prior stage. On the other hand, preventing
    impeachment use of statements taken in violation of Massiah would
    add little appreciable deterrence for officers, who have an incentive to
    comply 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, 

, 723. No dis
    tinction here alters that balance. Pp. 6–7.

, 

, 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.
STEVENS, J., filed a dissenting opinion, in which GINSBURG, J., joined.
                       Cite as: 556 U. S. ____ (2009)                              1

                            Opinion of the Court

    NOTICE: This opinion is subject to formal revision before publication in the
    preliminary print of the United States Reports. Readers are requested to
    notify the Reporter of Decisions, Supreme Court of the United States, Wash
    ington, D. C. 20543, of any typographical or other formal errors, in order
    that corrections may be made before the preliminary print goes to press.


SUPREME COURT OF THE UNITED STATES
                                  _________________

                                  No. 07–1356
                                  _________________


  KANSAS, PETITIONER v. DONNIE RAY VENTRIS
    ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

                       KANSAS

                                [April 29, 2009] 


  JUSTICE SCALIA delivered the opinion of the Court.
  We address in this case the question whether a defen
dant’s incriminating statement to a jailhouse informant,
concededly elicited in violation of Sixth Amendment stric
tures, 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
Donnie Ray Ventris reached an ill-conceived agreement to
confront 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
inspired 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 re
volver, and the companions drove off in Hicks’s truck with
approximately $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,
2                    KANSAS v. VENTRIS

                     Opinion of the Court

chief among them murder and aggravated robbery. The
State dropped the murder charge against Theel in ex
change 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
listen” for incriminating statements. App. 146. According
to the informant, in response to his statement that Ventris
appeared 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.” 

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 contradic
tory 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 violation “doesn’t give the Defendant . . . a
license to just get on the stand and lie.” 

The
trial court agreed and allowed the informant’s testimony,
but instructed the jury to “consider with caution” all tes
timony given in exchange for benefits from the State. 

The jury ultimately acquitted Ventris of felony
murder and misdemeanor theft but returned a guilty
verdict on the aggravated burglary and aggravated rob
bery counts.
   The Kansas Supreme Court reversed the conviction,
holding that “[o]nce a criminal prosecution has com
menced, the defendant’s statements made to an under
cover informant surreptitiously acting as an agent for the
State are not admissible at trial for any reason, including
the impeachment of the defendant’s testimony.” 

, 606, 

, 928 (2008).            Chief Justice
McFarland dissented, 

176 P. 3d, at 930. We
                 Cite as: 556 U. S. ____ (2009)            3

                     Opinion of the Court

granted the State’s petition for certiorari, 554 U. S. ___
(2008).
                              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 historically been, and remains today, “the oppor
tunity for a defendant to consult with an attorney and to
have him investigate the case and prepare a defense for
trial.” Michigan v. Harvey, 

, 348 (1990). We
have held, however, that the right extends to having
counsel present at various pretrial “critical” interactions
between the defendant and the State, United States v.
Wade, 

, 224 (1967), including the deliberate
elicitation by law enforcement officers (and their agents) of
statements pertaining to the charge, Massiah v. United
States, 

, 206 (1964). The State has conceded
throughout these proceedings that Ventris’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, 

, 459–460 (1986), we
accept it as the law of the case. The only question we
answer today is whether the State must bear the addi
tional consequence of inability to counter Ventris’s contra
dictory 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 some
times 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 con
4                    KANSAS v. VENTRIS

                     Opinion of the Court

fession is introduced at trial, whether by way of impeach
ment or otherwise. New Jersey v. Portash, 

,
458–459 (1979). The Fourth 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; exclusion comes by
way of deterrent sanction rather than to avoid violation of
the substantive guarantee. Inadmissibility has not been
automatic, therefore, but we have instead applied an
exclusionary-rule balancing test. See Walder v. United
States, 

, 65 (1954). The same is true for viola
tions of the Fifth and Sixth Amendment prophylactic rules
forbidding certain pretrial police conduct. See Harris v.
New York, 

, 225–226 (1971); 

–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
indeed a trial right, ensuring that the prosecution’s case is
subjected to “the crucible of meaningful adversarial test
ing.” United States v. Cronic, 

, 656 (1984).
See also Powell v. Alabama, 

, 57–58 (1932).
But our opinions under the Sixth Amendment, as under
the Fifth, have held that the right covers pretrial interro
gations to ensure that police manipulation does not render
counsel entirely impotent—depriving the defendant of
“ ‘effective representation by counsel at the only stage
when legal aid and advice would help him.’ ” 

(quoting Spano v. New York, 

,
326 (1959) (Douglas, J., concurring)). See also Miranda v.
Arizona, 

, 468–469 (1966).
    Our opinion in Massiah, to be sure, was equivocal on
what precisely constituted the violation. It quoted various
authorities indicating that the violation occurred at the
moment of the postindictment interrogation because such
questioning “ ‘contravenes the basic dictates of fairness in
                  Cite as: 556 U. S. ____ (2009)            5

                      Opinion of the Court

the conduct of criminal causes.’ 

(quot
ing People v. Waterman, 

561, 565, 

, 448 (1961)). But the opinion later suggested that the
violation occurred only when the improperly obtained
evidence was “used against [the defendant] at his 

–207. That question was irrelevant to the
decision in Massiah in any event. Now that we are con
fronted 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 “Assistance 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 un
dermined by the statement’s admission into evidence. A
defendant is not denied counsel merely because the prose
cution 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 assis
tance 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 evi
dence. Our cases acknowledge that reality in holding that
the stringency of the warnings necessary for a waiver of
the assistance of counsel varies according to “the useful
ness of counsel to the accused at the particular [pretrial]
proceeding.” Patterson v. Illinois, 

, 298
(1988). It is that deprivation which demands a remedy.
   The United States insists that “post-charge deliberate
elicitation 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. Wisconsin, 

, 175 (1991). We have
never said, however, that officers may badger counseled
6                    KANSAS v. VENTRIS

                     Opinion of the Court

defendants about charged crimes so long as they do not
use information they gain. The constitutional violation
occurs when the uncounseled interrogation is conducted.
                              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, 

, 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 un
truths.” 

. Once the defendant testi
fies in a way that contradicts prior statements, denying
the prosecution use of “the traditional truth-testing de
vices of the adversary process,” 

, is a
high price to pay for vindication 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
incentive to ensure that they and their informants comply
with the Constitution’s demands, since statements law
fully obtained 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
impeachment 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 admissibil
ity of his prior statement for impeachment. Not likely to
                     Cite as: 556 U. S. ____ (2009)                   7

                         Opinion of the Court

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 uncovering impeachment material,” we have
multiple times rejected the argument that this “specula
tive possibility” can trump the costs of allowing perjurious
statements to go unchallenged. Oregon v. Hass, 

, 723 (1975). We have held in every other context that
tainted evidence—evidence whose very introduction does
not constitute the constitutional violation, but whose
obtaining was constitutionally invalid—is admissible for
impeachment. See ibid.; 

; 

; 

. 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 admis
sible to challenge Ventris’s inconsistent testimony at trial.
The judgment of the Kansas Supreme Court is reversed,
and the case is remanded for further proceedings not
inconsistent with this opinion.
                                             It is so ordered.
——————
  * Respondent’s amicus insists that jailhouse snitches are so inher
ently 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, however, 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 promulgation of state rules of criminal procedure.” Spencer v.
Texas, 

, 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 cautionary instruction on the unreliability of
rewarded informant testimony by acquitting Ventris of felony murder.
                      Cite as: 556 U. S. ____ (2009)       1

                         STEVENS, J., dissenting

SUPREME COURT OF THE UNITED STATES
                               _________________

                               No. 07–1356
                               _________________


   KANSAS, PETITIONER v. DONNIE RAY VENTRIS
    ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

                       KANSAS

                             [April 29, 2009] 


   JUSTICE STEVENS, with whom JUSTICE GINSBURG joins,
dissenting.
   In Michigan v. Harvey, 

(1990), the Court
held that a statement obtained from a defendant in viola
tion of the Sixth Amendment could be used to impeach his
testimony at trial. As I explained in a dissent joined by
three other Members of the Court, that holding eroded the
principle that “those who are entrusted with the power of
government have the same duty to respect and obey the
law as the ordinary citizen.” 

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 represented defendant are used for impeachment
just as it is when the fruits are used in the prosecutor’s
case in chief.” 

   In this case, the State has conceded that it violated the
Sixth Amendment as interpreted in Massiah v. United
States, 

, 206 (1964), when it used a jailhouse
informant to elicit a statement from the defendant. No
Miranda 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
——————
 1 See   Miranda v. Arizona, 

(1966).
2                    KANSAS v. VENTRIS

                     STEVENS, J., dissenting

be allowed to exploit its pretrial constitutional violation
during the trial itself. 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 “prophylac
tic” in nature. See ante, at 4. The majority argues that
any violation of this prophylactic right occurs solely at the
time the State subjects a counseled defendant to an un
counseled interrogation, not when the fruits of the encoun
ter are used against the defendant at trial. Ante, at 5.
This reasoning 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 criminal prosecutions,” and we have long recog
nized that the right applies in periods before trial com
mences, see United States v. Wade, 

, 224
(1967). We have never endorsed the notion that the pre
trial 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 defendant “requires the
guiding hand of counsel.” Powell v. Alabama, 

, 57, 69 (1932); see Maine v. Moulton, 

, 176
(1985) (recognizing the defendant’s “right to rely on coun
sel as a ‘medium’ between him and the State” in all critical
stages of prosecution). Placing the prophylactic 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
constitutional 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
                      Cite as: 556 U. S. ____ (2009)                     3

                         STEVENS, J., dissenting

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 adver
sarial process—the fairness of which the Sixth Amend
ment was designed to protect. See Strickland v. Washing
ton, 

, 685 (1984); see also Adams v. United
States ex rel. McCann, 

, 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 justice before any
person could be deprived of ‘life, liberty, or property’ ”).
   When counsel is excluded from a critical pretrial inter
action between the defendant and the State, she may be
unable to effectively counter the potentially devastating,
and potentially false,2 evidence subsequently introduced at
trial. Inexplicably, 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

——————
  2 The likelihood that evidence gathered by self-interested jailhouse

informants may be false cannot be ignored. See generally Brief for
National Association of Criminal Defense Lawyers as Amicus Curiae.
Indeed, 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 5. 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, 

(1984); McMann v. Richard
son, 

, 771, n. 14 (1970) (“[T]he right to counsel is the right
to the effective assistance of counsel”).
4                    KANSAS v. VENTRIS

                     STEVENS, J., dissenting

him after he had been indicted and in the absence of coun

. 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 occa
sion 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. “The State’s interest in truth
seeking 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 objec
tive that the guilty be convicted and the innocent go free.’ ”

(STEVENS, J., dissenting) (quot
ing United States v. Cronic, 

, 655 (1984)).
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 intolerable
in all cases. I respectfully dissent.