The Supreme Court has given the police as green a light as possible to recruit jailhouse snitches to inform on accused criminals awaiting trial. In Kansas v. Ventris, decided this morning, the Court held that a jailhouse informant, recruited specifically by the police to get Donnie Ray Ventris to admit to pulling the trigger (the snitch was offered his freedom in return) could testify against Ventris for the purpose of impeaching Ventris's testimony that he wasn't the triggerman.
Mind you, this wasn't the "typical" snitch scenario, where a prisoner "just happens" to hear the accused admit to pulling the trigger after a soul-searching conversation. The informant was recruited. He was acting as a police agent.
Although Kansas conceded that its tactics were in violation of Ventris's Sixth Amendment right to counsel (the law requires that, once charged, a defendant be informed of his right to an attorney unless he knowingly waives it in every interaction with the police), the Court held that excluding the testimony of a covert police agent (the usual remedy for a confession obtained without informing the accused of his right to an attorney) just isn't worth the bother if it's offered after the defendant has testified, rather than before.
As Justice Scalia writes for the majority:
In such circumstances [covert police interrogation without his knowledge] the accused continues to enjoy the assistance of counsel; the assistance is simply not worth much.
And so we're given a future in which the police may recruit jailhouse snitches to conduct covert interrogations for them, assured that the testimony will be admissible, so long as the accused exercises his right to testify in his own defense. (According to Justice Scalia, it's a rare defendant indeed who chooses to testify in his own defense.)
But why stop there? If the Constitution only requires that a defendant have the benefit of a lawyer, even if it's "simply not worth much," why not allow the police to bug the courthouse and jail conference rooms where attorneys meet with their clients? Since, according to Justice Scalia, most defendants choose not to testify in their own defense, most defendants need not worry that their statements to attorneys might be recorded and used against them. As for those who do choose to testify, well, they may commit perjury by denying their guilt, which is a serious offense, a much greater problem than the speculative deterrent benefit of excluding illegally obtained confessions.
And why limit the rule to jailhouse informants? Why not allow the police, who have greater credibility on the witness stand than mere convicts, to pose as inmates and enter cells directly, where they can interrogate defendants to their hearts' content free from meddling lawyers.
And of course, speaking of deterring police misconduct (the reason for the exclusionary rule against illegal confessions), the Court points out that the rule prohibiting the prosecution from using such evidence during its case in chief already deters police misconduct sufficiently.
Just as it did in the case of Donnie Ray Ventris.
Of course, cynics may doubt that prohibiting the government from introducing illegally obtained evidence directly but allowing the government to use it on rebuttal, will actually deter the police from this sort of abuse in the slightest. A cynic would predict that, after Kansas v. Ventris every defendant charged with a serious crime will have his own personal police agent, locked in his cell 24 hours a day, asking:
"Did you do it?"