This case deals with the 5th amendment protection against self incrimination and poses some fairly interesting questions in that regard. Arguments were held before the US Supreme Court on October 16th. The case is Kansas v. Cheever

The story begins in January 2005 when Mr. Cheever shot and killed Greenwood County Sheriff Matt Samuels. Cheever was charged with murder and various drug charges by the state of Kansas.

However the Kansas Supreme Court had ruled the death penalty unconstitutional and so the state of Kansas decided to defer charges and instead asked federal authorities to prosecute Cheever under the federal death penalty act.

In his federal trial Cheever indicated that he would introduce evidence related to his use of methamphetamine and contend that it negated his ability to form the specific intent to commit murder (in other words not guilty because of intoxication).

As provided for by federal law the District Court ordered a psychiatric evaluation of Cheever by Dr. Michael Welner to determine the validity of this defense and specifically to what degree methamphetamine use on the day of the crime impacted Cheever’s actions.

The federal trial began on schedule but ended in a mistrial because defense counsel was unable to proceed with the case. During this time the death penalty had been reinstated in Kansas and so the federal case was dismissed and Kansas once again proceeded with its case against Cheever.

During the trial the state admitted testimony of the various law enforcement officers involved in the event and Cheever himself admitted that he had killed Sheriff Samuels and that he had possessed the weapons in question and that he and produced methamphetamine.

However he again raised the defense of voluntary intoxication because his use of methamphetamine made it impossible for him to premeditate the crimes. He also produced expert testimony which support of this contention.

In rebuttal state prosecutors produced testimony from the psychiatrist who examined him in the federal case and that witness contended that in his expert opinion Cheever retained the ability to form intent to commit murder at the time of the crime.

Cheever was convicted on all counts and sentenced to death for the murder charge.

He appealed his conviction based on his Fifth Amendment right against self-incrimination arguing that the psychiatrist from the federal case should not have been allowed to testify.

The Kansas Supreme Court agreed with this argument and reversed the conviction. The reason the court made this determination is because they determined under Kansas law his defense of voluntary intoxication was not the same as a claim of mental disease or defect and therefore under Kansas law it would not have justified a court ordered mental examination.

Since the Kansas courts would not have been able to order that examination his assertion of that defense would not have waived his Fifth Amendment rights against self-incrimination or allow the testimony of the federal psychiatrist.

The Kansas Supreme Court also discussed whether it was error to allow the state to introduce such testimony to impeach the defendant’s own testimony and noted that there was a split in the circuits on this issue.

The state of Kansas appealed this ruling to the US Supreme Court arguing in part that the Kansas Supreme Court erred in basing the ruling on Kansas law since the waiver of a federal right should be controlled by federal law.

We all know that the Fifth Amendment protects against self-incrimination but when a defendant starts asserting certain defenses and it is necessary for the state to examine the defendant in order to challenge those assertions how do we balance things out with the Fifth Amendment?

Although there remains a split on this subject there have been some cases which provides some guidance on this matter.

The first is Estelle v. Smith (1981) 451 US 454. In that case the court held that evidence from a court ordered competency examination could not be used against the defendant in a capital sentencing proceeding because he had not initiated the examination nor put his mental state issue at the trial.

However in Buchanan v. Kentucky (1987) 483 US 402 the court sought to clarify Smith holding that if the defendant put his or her mental state at issue using it as a defense then the Fifth Amendment would not prevent the government from requesting a competency examination since they would need to conduct such an examination in order to determine if the defense was valid.

The court extended this logic in the case of Powell v Texas (1989) 492 US 680 stating that to hold otherwise would mean that the only testimony would come from the defense and the state would have no power to rebut.

In essence these three cases follow the logic that if the defendant chooses to introduce a defense of mental defect that he is in effect making himself a witness in the case and therefore the state has the right to cross examine him because he is voluntarily chosen to put himself on the stand.

Looking to Cheever there are several arguments raised by both his attorneys and various amicus briefs.

The first argument is that the Kansas Supreme Court was correct in its interpreting things based on Kansas law and since they would not have been able to bring in a court ordered psychiatric examination had the case been tried entirely in Kansas they should not be able to do so now

The theory is that this would allow state prosecutors to bypass state prohibitions against such examinations by simply having a pro forma federal prosecution that could then bring in this testimony.

This is a fairly persuasive argument to me although it would not address the broader issue of the federal rule allowing for court ordered psychiatric testimony when mental defect defenses are raised.

The second argument made is that even under the current Buchanan Powell line of thinking rebuttal witnesses should only be allowed to testify directly on point to what the defense witnesses stated.

In this case it is alleged that the federal psychiatrist raised issues well beyond that limitation making statements about the defendant’s personal character and therefore his testimony went beyond the current doctrine.

The third and broadest argument raised most strongly by the amicus briefs is of his entire doctrine should be either reversed or at least severely restricted. The basic point being made is that a defendant should not be forced to choose between protect himself against punishment (in this case the death penalty) and retaining his Fifth Amendment rights.

This is a fairly interesting point and does show the complexity of constitutional issues when you are forced to balance between the rights of the state rights of the people as well as conflicting constitutional rights issues.

Personally I do think the current doctrine makes sense provided that it is applied in as restrictive a manner as possible (in other words generally following the point of the second argument that you can rebut the testimony but you can’t go beyond that).

Although you can never predict what the Justices will do based on what they say in arguments the language and questions posed do suggest the court is leaning in a particular direction.

During the arguments Justice Sotomayor asked the attorney for Mr. Cheever to tell the court “which way would you rather lose”.

Justices Alito, Scalia and Kennedy also expressed doubt as to whether they should reverse the current doctrine, relying on the general argument that to do so would lead to an unfair situation (IE defendant being able to raise defense but the state being unable to rebut it).

However Justices Ginsburg, Breyer and Kennedy also made comments suggesting sympathy with the argument of the Kansas court that the doctrine does not apply due to the differences in Kansas law.

So if I had to predict I would say the court is likely to uphold the current rules but also hold that the doctrine does not apply here because the defendant did not, under Kansas law, raise the issue.

So this suggests that the court is unlikely to reverse the current doctrine.