Supreme Court Watch: Summary Of Oral Argument In Kansas v. Cheever

Argument focused on whether use of statements obtained from a court-ordered mental evaluation of the defendant is the product of compulsion or a waiver under the Fifth Amendment; additional questions concern the government should be given parity to introduce expert testimony after the "defendant affirmatively introduces expert testimony that he lacked the requisite mental state," the scope of any rebuttal permitted, and the constitutionality of Fed. R. Crim. P. 12.2 (Notice Of An Insanity Defense; Mental Examination), among other issues, in Kansas v. Cheever (No. 12-609) (Oct. 16, 2013)

On October 16, 2013, the Supreme Court heard argument in a case that concerns the ability of the government to compel and use a defendant's statements after the defendant presents expert testimony concerning his mental state under the Fifth Amendment. Specifically, the question presented in the case is:

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?

However, based on the tenor of the argument, it seemed that the case was not faring well for the respondent. Justice Elena Kagen asked respondent's counsel, Neal Katyal (who previously served as Acting Solicitor General from May 2010 until June 2011), "assuming the incredulity of my colleagues continues with your argument, which way would you rather lose?" Cheever Transcript, at 48:23-25.

As an overview, some of the key issues noted during the oral argument are highlighted:

  • Compulsion?: One aspect of the argument focused on whether there was any compulsion under the Fifth Amendment when the defendant was making an election to present mental health expert testimony. Justice Samuel Alito, Jr. shared this view by asking "whether there was unconstitutional compulsion at the time when the statements were obtained." Transcript, at 8:23-25. Kansas Attorney General Derek Schmidt argued by analogy that the facts were "much closer to what happens when a defendant makes a trial decision to offer himself as a witness and go on the stand, and then, as a matter of operation of law, must subject himself to cross-examination." Transcript, at 8:13-17. Assistant to the Solicitor General Nicole Saharsky, who argued for the United States as amicus curiae in support of the petitioner, agreed with the analogy. As she framed the issue, "The Fifth Amendment does not allow a defendant to put on his side of the story and then deprive the prosecution of any meaningful chance to respond." Transcript, at 17:18-23. As she noted, the court-ordered examination of the defendant occurs "as a result of the Defendant's choice" of asserting a mental defect defense and the examination evidence is not introduced "until he puts on his evidence first." Transcript. at 19:18-23. Consequently, once "the defendant opens the door, the Fifth Amendment just doesn't give him any right to ... stop the prosecution from responding." Transcript, at 20:3-6; see also Transcript, at 35-36.

    In response to questioning from Justice Kagan on whether compulsion occurred in light of the the court-ordered examination, Ms. Saharsky responded: "if the Court wants to say that there is sufficient compulsion here in the ordering of the mental state exam, despite the fact that there was the initial choice by the defendant, we would say the defendant's choice at trial to put on his testimony is what makes this -- this evidence available to the government to use in rebuttal." Transcript, at 23:5-11. Justice Antonin Scalia also noted the compulsion occurred by requiring "the defendant to speak to a psychiatrist." Ms. Saharsky stressed the unique nature of the evidence: "The implication is that the ... State has the same access to the defendant as the defense expert had, because the State's expert is unable to come up with an opinion without a personal examination of the defendant." Transcript, 24-25. Justice Scalia echoed this point during questioning of the respondent's counsel: "It's only the psychiatrist who can get into the defendant's mind when he is -- when he is raising a mental capacity defense." Transcript, at 37:21-23. The respondent's position was that the Fifth Amendment is violated "[w]hen a defendant is forced to undergo a psychological examination as the price for putting on his mental state defense." Transcript, at 42-43.

  • Scope Of Any Waiver: Justice Kagan asked if the defendant was being compelled to speak with a psychiatrist, how there could be any waiver? Ms. Saharsky stated that the Court's cases described a waiver when the defendant elects to testify despite his Fifth Amendment protection. Transcript, at 25:6-20. She added that the government did not believe that the "label matters." Transcript, at 26:2-3.

    Justice Sonia Sotomayor asked about where the line would be drawn concerning any waiver: Is the "waiver whenever you put in your mental state at issue or is it a waiver only when you use an expert and then the government is free to respond with a compelled statement." Transcript, at 16:4-8. However, Justice Ginsburg asked if this was "an academic question in this case" since on the facts and application of the federal rules the rebuttal was limited to the defense evidence presented. Transcript, at 16-17.

  • Rule of Parity and Impact on the Truth-Seeking Function: Kansas Attorney General Derek Schmidt noted at the outset of his argument that an affirmance of the Kansas Supreme Court would "undermin[e] the truth-seeking function of the trial by excluding relevant evidence from the jury, especially in the mental health context, where the jury has" heard evidence after "the defendant has opened the door by putting his own expert on, the government may respond in kind." In essence, he asked the Court "for a rule of parity." Transcript, at 3-4. Ms. Saharsky, Assistant to the Solicitor General, also noted the "parity principle" that had been applied by the Court in other cases. Transcript, at 19-20; at 26:19. By comparing the cross-examination cases, Justice Kagan noted that a defendant cannot "become a witness halfway" and similarly cannot participate in psychiatric evidence by providing an examination to a defense expert but not a government expert. Transcript, at 49:1-13.

    Justice Ginsburg highlighted the choice being made by the defendant: "if you introduce this testimony, then the government can follow where you have led; if you don't introduce the testimony, then of course the government has nothing to rebut." Transcript, at 35:2-5; see also Transcript, at 40:16-20 (referring to United States v. Byers, 740 F.2d 1104, 1114 (D.C. Cir. 1984) (en banc) (Scalia, J.) (noting “the state must be able to follow where [the defendant] has led.”)).

  • Constitutionality of Fed. R. Crim. P. 12.2 (Notice Of An Insanity Defense; Mental Examination): Justice Alito asked since the examination of the defendant was obtained under the procedure set forth in Fed. R. Crim. P. 12.2, if "the question here whether Rule 12.2 is constitutional?" Transcript, at 20:17-24. Ms. Saharsky, Assistant to the Solicitor General, suggested that the rule was constitutional since it was developed "in response" to the Court's Fifth Amendment cases. Transcript, at 21:1-7.

    In response to questions from Justice Ginsburg about whether the respondent's argument was "that Rule 12.2 violates the Fifth Amendment, Mr. Katyal, respondent's counsel, agreed that "our argument ultimately does invalidate a small part of the application of 12.2(d)" but "the Court should avoid that constitutional question by focusing on the scope question." Transcript, at 28-29; 34. Since the rule permits the trial court to exclude defense evidence for failure to submit to an examination with a government psychiatrist, the rule could interfere with the right to present a meaningful defense. Justice Alito viewed this issue as a due process question, not one under the Fifth Amendment. Transcript, at 29-30.

  • Rebuttal Beyond The Scope: Justice Ruth Bader Ginsburg identified the issue of whether the government rebuttal "went beyond the scope of the direct" which is not permitted under Fed. R. Crim. P. 12.2. Transcript, at 11:10-16. According to Kansas Attorney General Schmidt, the rebuttal could not exceed what was "reasonably related" to the defense evidence. Transcript, at 14:3-15. The respondent agreed with the "reasonably related" standard. Transcript, at 31.
  • Expert-for-Expert Testimony: Chief Justice John G. Roberts, Jr. asked if the opportunity to rebut defense evidence should be implicated "even if the defendant does not submit an expert of his own, but simply puts his mental state in issue?" Ms. Saharsky, Assistant to the Solicitor General, responded that this was a different question than presented by the facts of the case or in prior cases, noting that "the specific rationale there is that this mental health opinion testimony is different in that you really can't have an expert give an opinion without examining the defendant." Transcript, 18:5-23.
  • Application of Other Rules: Another issue concerned whether state or other rules could have barred the government rebuttal expert testimony. Justice Ginsburg asked if there had been no federal case before charges were resumed in state court whether "there would have been no prosecution expert, because it wouldn't have been allowed under Kansas's own rules?" Transcript, at 6:15-18. In following this point, Justice Scalia asked whether other state rules may have prohibited the rebuttal evidence independent of the Fifth Amendment. Transcript, at 10. In fact, the Kansas Supreme Court may have been able to avoid the Fifth Amendment issue altogether but did not. Justice Scalia asked if the case was remanded to the Kansas Supreme Court whether it could "decide that, under Kansas law, the testimony was not introducible?" Kansas Attorney General Schmidt responded that other state law issues may need to be resolved on remand. Transcript, at 11:2-9; see also id. at 12:10-14 (noting Kansas law may resolve any issue about exceeding the scope of direct).
  • Ungranted Question: On a couple of occasions, some of the questioning touched upon the government's use of the defendant's statement for impeachment. See, e.g., Transcript, at 5-6 (Justice Anthony Kennedy), 18-19 (Chief Justice Roberts), 26-27 (Justice Sotomayor). However, as noted during argument, in granting certiorari review, 568 U.S. _, 133 S.Ct. 1460, 185 L.Ed.2d 360 (Feb. 25, 2013) (No. 12-609), the Court expressly declined to consider a second question: "When a criminal defendant testifies in his own defense, does the State violate the Fifth Amendment by impeaching such testimony with evidence from a court ordered mental evaluation of the defendant?"
  • Distinguishing Simmons: Respondent's counsel argued that the case was similar to Simmons v. United States, 390 U.S. 377 (1968), which allows a defendant to testify at a suppression hearing under the Fourth Amendment without the testimony being introduced at trial. Transcript, at 29:17-22. Kansas Attorney General Schmidt contended that Simmons was distinguishable under a "rule of parity" because the government should be "able to rebut what the defendant himself put in issue in front of the jury." Transcript, at 58-59.


The issues presented in Kansas v. Cheever touch on some core aspects of the Fifth Amendment privilege against self-incrimination. A decision is expect by July 2014. The Federal Evidence Blog will continue to monitor developments in the case.

In addition to the transcript of the oral argument, the audio of the oral argument may be heard.


Federal Rules of Evidence