Supreme Court Watch: Waiver Of Fifth Amendment Privilege Case Set For Argument

The oral argument set for October 16, 2013 in Kansas v. Cheever will consider if "a criminal defendant affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant's methamphetamine use, does the State violate the defendant's Fifth Amendment privilege against self-incrimination by rebutting the defendant's mental state defense with evidence from a court-ordered mental evaluation of the defendant?" The case could possibly clarify the Fifth Amendment waiver, as well as the interplay of state and federal law in construing the scope of a waiver.

With the merit briefs of the parties filed, oral argument before the Court on October 16, 2013 draws near. The question posed for the parties and the court to consider at that session is:

Question Addressed:

On February 25, 2013, the Supreme Court granted certiorari review of the following question:

When a criminal defendant affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant's methamphetamine use, does the State violate the defendant's Fifth Amendment privilege against self-incrimination by rebutting the defendant's mental state defense with evidence from a court-ordered mental evaluation of the defendant?

Kansas v. Cheever, 568 U.S. _, 133 S.Ct. 1460, 185 L.Ed.2d 360 (Feb 25, 2013) (No. 12-609).


To a great extent, the briefing by the parties suggests a battle concerning whether the defendant waived his privilege against self-incrimination by challenging whether he had the requisite mens rea to be guilty of murdering a sheriff. Broadly speaking, the state as petitioner seems to suggest that waiver of the Fifth Amendment right is an all or nothing proposition, and that by disputing his mental state at the time of the killing, the defendant effectively waived his right not to provide evidence that might tend to incriminate him, although at the time of the killing, providing the evidence would not have had such an effect. In contrast, the defendant's contention that the Supreme Court of Kansas had correctly assessed his Fifth Amendment right, turns on a question of scope. The defendant did not waive the privilege, but even if he did, it was a narrowly circumscribed waiver that the prosecution violated.

Background - Alleged Offenses

The defendant was charged with capital murder, attempted murder, the manufacture of drugs and the possession of weapons as a felon. These charges concern an early 2005 incident in which the a county sheriff and deputies tried to arrest the defendant at his residence in the rural Kansas countryside. Allegedly the defendant had been on a methamphetamine binge at the time and had been drugged for much of the week before the sheriff's raid.

When officers first entered the defendant's premises, the defendant hid in the upper story of the structure. However, as the sheriff, who led the raid tried to gain entry into the room in which the defendant was hiding, the defendant shot and wounded him. The defendant continued firing at the disabled sheriff and at deputies trying to aid their downed chief. While the deputies were able to convince the defendant to stop firing so that the sheriff could be aided, the defendant resisted surrendering. Police were able to gained control of the situation after they had stormed the house, and finally arrest the defendant who had run out of ammunition.

Initial Prosecutions

The prosecution of the defendant for the murder of the sheriff as well as for attempted murder, the manufacture of drugs and the possession of weapons, seemed to take an erratic path. An initial state prosecution of the defendant was dropped when it seemed that the state's procedures for imposing the death penalty could not constitutionally stand, at least in the estimation of the Kansas Supreme Court.

However, the prosecution was picked up by the federal prosecutor and the defendant was indicted in federal court and tried under the Federal Death Penalty Act. The defense's theory of the case claimed, in part, that the defendant suffered from "intoxication by methamphetamine" and so he was unable to form the requisite mental state for the charged crime. Pursuant to a Fed. R. Crim. P. 12.2(b) notice to this effect, the federal court required a psychiatric examination. The examination was made by a psychiatrist (Wilner) designated by the government, who presented a report after an extensive interview with the defendant.

Back To State Court For Murder Trial

During jury selection for his federal murder trial, defense counsel's illness rendered continued representation of the defendant ill-advised. However, the state was ready to step in to continue because it had become clear that the state procedure would not pose a constitutional barrier to imposition of the death penalty. See Kanas v. Marsh, 548 U.S. 163 (2006) (Reversing the state Supreme Court's conclusion that the state's capital punishment law was unconstitutional).

The change of forum did not appreciably change the defense theory. The defendant pressed his theory that the defendant was not guilty because at the time of the killing the defendant was suffering from voluntary intoxication as a result of his methamphetamine use. In short, the defendant could not have formed the state of mind that is necessary to convict a person for murder. In support of this contention, the defendant presented testimony by its expert witness (Evans), who claimed that the defendant's use of methamphetamine at the time of the murder had placed the defendant in a state of psychosis. This condition was an aftermath of the defendant's prolonged use of methamphetamine prior to the shooting. It rendered the defendant unable to plan the killing of the sheriff. Instead, the expert opined that the defendant had acted automatically and when confronted by the sheriff. He "just did it [the resistance and shooting]" without reflection.

State Rebuttal Evidence

In light of the defendant's evidence that the defendant had been unable to form the requisite mental state required for the charged murder, the prosecutor presented testimony by the psychiatrist Welner who had evaluated the defendant at the time he was being prosecuted in the federal court for the murder. The exam came about as a result of procedures outlined by Fed. R. Crim. P. 12.2(b) which required the defendant to provide notice of an insanity defense. The federal court ordered a psychiatric examination by Welner, despite the defendant's objections. The judge reasoned that by raising a voluntary intoxication defense the defendant effectively open the door to the issue of the defendant's mental status at the time of the sheriff's killing. In addition, it was only fair to allow prosecution rebuttal with the Welner evidence because even the defense expert witness (Evans) had relied on Welner's Fed. R. Crim. P. 12.2(b) examination in his assessment that the defendant could not form the culpable mental state for murder.

In essence, the rebuttal witness opined that the defendant did not have an impaired capacity to appreciate his acts at the time of the shooting of the sheriff. Rather, he opined that the defendant engaged in a type of role-playing, taking pride in acting with the skill and cunning of the "outlaws" he so admired and wished to emulate. As a result, the psychiatrist testified that the defendant was not suffering from a panic due to his use of drugs and that the defendant could well-appreciate the implications of his shooting exchange with the officers on the day of his arrest.

Appellate Deliberations

The jury returned a guilty verdict, which the court entered, as well as the jury finding that the defendant should be executed for the killing. On direct appeal of the verdict, the defense actually had some success. The state Supreme Court unanimously reversed his conviction for murder and attempted murder. The trial judge should have excluded the state's rebuttal witness Wilmer since the psychiatrist had violated the defendant's Fifth Amendment right against self-incrimination by testifying about the Fed. R. Crim. P. 12.2(b) examination of the defendant.

The Kansas Supreme Court acknowledged the defendant could have waived his Fifth Amendment right by placing his mental state in issue. But the court concluded that did not happen, since Cheever contended it was only a "temporary mental incapacity due to voluntary intoxication," preventing the formation of the requisite mens rea for the murder charge. In addition, the court disagreed with the prosecutor's contention that defense witness Evans, in testifying about an alleged temporary mental incapacity of the defendant, addressed the defendant's state of mind. Rather, there could be no waiver as the defendant had only raised temporary mental incapacity as a failure of the prosecution's proof of murder, but not as ground that could excuse the offense, that the defense had to prove.

Certiorari Review Granted

Kansas sought a writ of certiorari , disputing the Kansas Supreme Court's interpretation of the Fifth Amendment waiver. It claimed that the court's decision in the case was in conflict "with decisions of this [U.S. Supreme] Court, as well as with the decisions of several Circuits and a majority of state courts." In particular, Kansas alleged that the state court had "erred" by "relying on state rather than federal law in determining whether Cheever had waived his Fifth Amendment privilege." By taking an action that raised the issue of the defendant's mental state at the time of the crime, the state contended that the defendant necessarily waived his Fifth Amendment privilege.

Cheever's opposition to the grant of the petition focused on the trial record. The defendant disputed the state's contention that the issue was ready for review, contending that the Kansas Supreme Court had not resolved all issues in the case. There was no final determination and there were still other matters to be resolved by the state court. Additionally, the defendant suggested that, to the extent any issue had finally been determined by the state court, the prosecution had forfeited its objection when it failed to make the argument in its state appeal.

The Parties' Contentions On The Merits

On February 25, 2013 the Supreme Court granted the state's certiorari petition. However, the grant limited the case to the first question propounded by the petitioner. The question that the court disregarded concerned the state's claim that the case would provide the opportunity to resolve a division among the courts on "whether evidence from a court-ordered mental evaluation may be used to impeach a defendant's own trial testimony. Rather, the question asked involved whether a prosecutor could present expert evidence drawn from information gained in conducting a court-ordered examination of the defendant for the federal court. Could it be used to rebut the defense presentation of expert evidence that the defendant lacked the required mens rea due to suffering from voluntary intoxication at the time of the charged crime?

State's Waiver Theory

The briefs presented by the petitioner argued that the defendant's Fifth Amendment rights had not been violated, contrary to the Kansas Supreme Court's conclusion. The defendant had waived any Fifth Amendment right by presenting a mental status defense. This necessarily waived the privilege against self-incrimination and opened the door to the state rebutting the defendant's contentions as to his mental status. This was particularly true because the defendant knew that raising a voluntary intoxication defense would result most likely in a psychological examination. The petitioner's briefing seemed to dismiss "what if" hypotheticals about the application of a waiver in future cases.

Because the defendant chose to present in the state court a voluntary intoxication defense, he opened the door to rebuttal of this evidence. The state contended that state law did not establish the proper bounds of the privilege. Rather it was the federal constitution that determined the scope of any waiver. Federal law, rather than state law, should guide whether the privilege was waived. In this sense, it did not matter that under state law voluntary intoxication was not evidence of a mental disease. The court should examine the substance of a defense's application and not how state law defined its terms. It would be troublesome if one's Fifth Amendment privilege against self-incrimination would have different meanings according to the specific forum state in which a case is tried; a uniform federal Fifth Amendment standard was preferred.

Defendant's Arguments

In arguing that the state Supreme Court should be affirmed in its determination that there had been no Fifth Amendment waiver, the defendant noted that even had there been a waiver, it was necessarily limited in nature. Accordingly the prosecution's rebuttal had to fit within the scope of the defendant's presentation. Under this interpretation, when the prosecution expert opined that the shooting of the sheriff was prompted by defendant's admiration of, and desire to emulate, famous outlaws, this considerably exceeded the narrow scope of evidence the defendant presented as to the temporary voluntary intoxication.

In a expansion of this argument, the defendant suggested very strict limits on waiver. If the defendant presented evidence to show an affirmative defense the waiver should apply. This was not the case where the defendant is suggesting the prosecution presented no evidence which would meet all the elements of the crime charged. In this view, while raising the voluntarily intoxication issue served to undermining the prosecution ability to prove the charged crime, this was not the same as where a defendant raises an affirmative defense, to which, if the prosecution had satisfied its burden, the defendant would be able to show evidence that the crime occurred under conditions that excused the defendant's otherwise criminal act. This was not disproof of an element of the charged crime, it was evidence that an excuse to the crime should apply. The defendant contended that he should have been able to put the prosecution to its proof that the crime occurred as charged, reflecting the requirements for conviction. This was a different situation from that in which there was no question as to the defendant's action, the only issue was whether it was excused through an affirmative defense.

Of course, the defense challenged that there had been a waiver by the defendant. In other contexts the Fifth Amendment right against self-incrimination is carefully limited. Its vindication should not rest on a legal catch-22, which might well be the case if the defendant had no way to present a defense to the murder charge based on the theory of voluntary intoxication, because to do so would open the gates to self-incrimination. Similarly, waiver was not an all or nothing proposition. At the time of undergoing the Rule 12.2 examination, the defendant had no way of contemplating that by introducing evidence concerning methamphetamine effect, this would open up the door to the state using the information from the court-ordered exam against him.


Merits Briefs

Amicus Curiae Briefs on the Merits

  • May 20, 2013: Brief Amici Curiae of the Criminal Justice Legal Foundation in Support of the Petitioner
  • May 17, 2013: Brief Amicus Curiae of National District Attorneys Association in Support of Petitioner
  • May 20, 2013: Brief Amicus Curiae of the United States in Support of Petitioner
  • May 20, 2013: Brief Amici Curiae of Twenty Seven States, Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia,Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia,Washington, West Virginia, Wisconsin, Wyoming in Support of Petitioner
  • July 29, 2013: Brief Amicus Curiae for Judge Bazelon Center for Mental Health Law in Support of Respondent
  • July 29, 2013: Brief Amicus Curiae of National Association of Criminal Defense Lawyers in Support of Respondent
  • July 29, 2013: Brief Amici Curiae of American Civil Liberties Union, ACLU Of Kansas and Western Missouri, in Support of Respondent

CertiorariPetition Briefs

State Court Ruling and Record

  • August 24, 2012: Supreme Court of Kansas Opinion Under Review: State v. Cheever, 295 Kan. 229, 284 P.3d 1007 (2012) (per curiam) (No. 99,988)
  • Supreme Court Docket


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