Release Date:  April 29, 2009
Contact:  Michael Rushford
(916) 446-0345

A 7-2 decision by the United States Supreme Court has upheld the use of testimony from a jailhouse informant to impeach statements made on the witness stand by a criminal defendant.  The Court’s holding in Kansas v. Ventris overturned a 2008 Kansas Supreme Court ruling, which had announced that the testimony of a jailhouse informant was not admissible at trial “for any reason.”

The California-based Criminal Justice Legal Foundation had filed a “friend of the court” brief in the case arguing that the Kansas decision misinterpreted Supreme Court precedent to improperly exclude evidence.

In the Court’s majority opinion, Associate Justice Antonin Scalia wrote, “Our precedents make clear that the game of excluding tainted evidence for impeachment purposes is not worth the candle.  The interests safeguarded by such exclusion are ‘outweighed by the need to prevent perjury and to assure the integrity of the trial process,’ ” quoting a 1976 opinion by Justice Lewis Powell.

“In some cases the testimony of a jailhouse informant provides the jury with independent evidence that supports the testimony of other witnesses,” said attorney Lauren Altdoerffer, who authored the CJLF brief.  “A confession recorded by an informant wearing a wire, or the video-taped conversation between a defendant and an informant, would have also been barred if the Kansas ruling had been upheld,” she added.

The case involved the robbery and murder of a Montgomery County, Kansas man.  In January 2004, Donnie Ray Ventris and his live-in girlfriend, Rhonda Theel, devised a plan to rob Ernest Hicks, an acquaintance Theel claimed always carried a lot of cash. 

The pair were driven to Hicks’ home by a witness who later testified that Ventris and Theel both entered the house.  After one or both of them shot and killed Hicks, Ventris and Theel left the scene with Hicks’ wallet, approximately $300, his cell phone and pickup truck.  At trial, both Ventris and Theel accused the other of killing Hicks. 

In rebuttal to Ventris’ testimony, his cellmate, Johnnie Doser, testified that Ventris told him that he “and his girlfriend, Rhonda, had went to rob somebody and that it went sour.  He’d shot this man in the head and chest.  That he took his keys, his wallet, about $350, and took a vehicle.”  Doser admitted that the police placed him in Hicks’ cell and told him to keep his ears open.  The defense unsuccessfully objected to the testimony as unconstitutional.

After an instruction from the judge warning them to consider the testimony of both Theel and Doser with caution, the jury found Ventris not guilty of the murder, but convicted him of aggravated robbery and burglary.  Ventris was sentenced to 23.4 years.  In 2008, the Kansas Supreme Court ruled that Doser’s testimony was unconstitutional because he had been planted in the cell by police after Ventris was charged, which the Court concluded violated his Sixth Amendment right to an attorney.  When the U. S. Supreme Court agreed to hear the state’s appeal, the Criminal Justice Legal Foundation joined the case.  The Foundation argued for a decision to overturn the Kansas court’s ruling, noting that it had established a blanket prohibition against incriminating statements to an informant by a defendant after he has been charged with a crime.  The Foundation’s brief pointed out that this prohibition went beyond Supreme Court precedent, which allows the testimony of a person who overhears a defendant’s uncoerced, voluntary confession.