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Fictional Fifth Amendment Waiver: Kansas v. Cheever

JURIST Guest Columnists Jeffrey T. Green and Jeffrey S. Beelaert of Sidley Austin LLP discuss the waiver of a criminal defendant's Fifth Amendment privilege against self incrimination...

In Kansas v. Cheever, the US Supreme Court granted certiorari to consider whether a criminal defendant waives his Fifth Amendment privilege against self-incrimination when he introduces expert testimony that he could not have intended to kill a law enforcement officer because he was in a state of voluntary intoxication. Counsel succinctly explained the issue at oral argument [PDF]: Kansas "is trying to use Scott Cheever's words to execute him."

JURIST previously noted that this case presents an important question of criminal procedure that may have far-reaching consequences for criminal defendants. The court's decision will affect the defendant's fundamental right to present evidence in mounting a defense and the Fifth Amendment right not to incriminate himself. If the court holds that presenting mental state evidence amounts to waiver, criminal defendants may face difficult choices in future cases.

The Fifth Amendment protections at issue are so integral to our adversarial system that, absent a knowing, intelligent and voluntary waiver, a defendant cannot relinquish his Fifth Amendment rights. Kansas nevertheless urges the Supreme Court to adopt a per se rule that criminal defendants "necessarily waive" [PDF] their Fifth Amendment privilege against compulsory self incrimination when they present mental state evidence. The state's expansive view misreads the court's precedents and would reverse the long-standing presumption against waiver.

The facts of this case are straightforward. On January 19, 2005, Scott Cheever had been awake for eight or nine days straight cooking and injecting himself with methamphetamine. When a sheriff entered the house where he was hiding, Cheever shot and killed him. Kansas charged Cheever with capital murder under Kansas' capital murder statute, which contains an offense for the "intentional and premeditated killing of a law enforcement officer."

The procedural background of this case is somewhat unique. Had the trial remained in state court, the case would not have reached the Supreme Court. The case was filed initially in Kansas state court, but the prosecution dismissed it after the Kansas Supreme Court held the state's death penalty unconstitutional. The government then filed charges in federal court under the Federal Death Penalty Act. While the case was in federal court, the district court ordered Cheever, pursuant to the federal rules of criminal procedure, to undergo a psychiatric examination conducted by a forensic psychiatrist hired by the government. Such an examination would not have occurred under Kansas state law.

The case was eventually moved back to state court after Kansas restored the death penalty. At trial in state court, Cheever admitted that he killed the sheriff, and his only defense was that his methamphetamine abuse prevented him from forming the premeditation required for capital murder. The state called the forensic psychiatrist who conducted the court-ordered examination, and he testified about Cheever's mental state. In addition to providing his opinion about Cheever's drug abuse, the psychiatrist gave a "detailed narration" [PDF] of the murder which he "sometimes delivered in the first person."

The jury found Cheever guilty and sentenced him to death. The Kansas Supreme Court unanimously reversed because, under state law, Cheever raised a voluntary intoxication defense and did not present evidence of a mental disease or defect. In its opinion, the court concluded that Cheever did not waive his Fifth Amendment privilege against compulsory self incrimination.

Waiver of the Fifth Amendment is a question governed by federal law. Kansas argues [PDF] that the court's classification of Cheever's defense as one of voluntary intoxication has no bearing on whether he waived his federal constitutional right against self-incrimination. Attorney General Derek Schmidt suggested at oral argument that Cheever's actions, rather than compulsion by the prosecution, resulted in waiver of his Fifth Amendment privilege because Cheever "opened the door" [PDF] by presenting evidence of his mental state.

The problem with this argument is that an effective waiver "must be voluntary" and made as a "free and unconstrained choice." Furthermore, the state's proposed rule is inconsistent with the court's long-standing "presumption against waiver."

The court seesawed [PDF] at oral argument. First, Justice Elena Kagan suggested that Kansas might be "overread[ing] the cases" because the psychiatric examination in this case was undoubtedly "compelled." In United States v. Byers, then-judge Antonin Scalia (joined by then-judge Ruth Bader Ginsburg when they both served on the DC Circuit) echoed this view when he wrote that it is "at best a fiction to say that when the defendant introduces his expert's testimony he 'waives' his Fifth Amendment rights." Notwithstanding this fiction, however, Ginsburg explained at oral argument that the Byers court ultimately held that "where the defendant leads, the government may follow."

The court then moved away from Cheever's arguments because other justices suggested that it would be unfair to allow a defendant to present a mental health defense without giving the state an opportunity to have an expert examine him. Chief Justice John Roberts, for example, compared the situation to the cross-examination of a "ballistics testing," where it would be "unfair" to give only the defendant access to the evidence but not the state. And Justice Stephen Breyer even suggested that the government would be put in "an impossible position" if it were not allowed to use its psychiatric experts to examine the defendant. Justice Sonya Sotomayor recognized the court's hostility toward Cheever's arguments and asked his counsel, "which way would you rather lose?"

Even if the court agrees with the state in this case, the Kansas Supreme Court will still need to address the scope of Cheever's waiver on remand. The state's rebuttal testimony cannot exceed the scope of the defense expert's testimony, and it appears that it did in this case because the Kansas Supreme Court previously concluded that the state's forensic psychiatrist "virtually put words into Cheever's mouth" and gave a "moment-by-moment recounting" of the crime from Cheever's perspective. Though five justices may reverse the Kansas Supreme Court's waiver holding, it is possible that Cheever may still win his case in state court because the state's expert exceeded the bounds of rebuttal testimony.

Jeffrey T. Green is a partner at Sidley Austin with extensive experience in criminal defense and appeals. He successfully argued two cases before the United States Supreme Court and frequently participates in cases before the Court. Mr. Green co-chairs the National Association of Criminal Defense Lawyers Amicus Committee and co-instructs the Supreme Court Practicum at the Northwestern University School of Law.

Jeffrey S. Beelaert is a litigation associate at Sidley Austin, where he focuses on appeals, commercial disputes, and government enforcement actions. Mr. Beelaert devotes a substantial amount of his time to pro bono appellate matters.

Suggested citation: Jeffrey T. Green and Jeffrey S. Beelaert, Fictional Fifth Amendment Waiver: Kansas v. Cheever, JURIST - Sidebar, Nov. 5, 2013, http://jurist.org/sidebar/2013/11/green-beelaert-fifth-amendment-waiver.php.

This article was prepared for publication by Stephanie Kogut, Section Head of JURIST's Professional Commentary Section. Please direct any questions or comments to her at professionalcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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