[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] in two cases Wednesday. In Kansas v. Cheever [transcript, PDF; JURIST report] the court heard arguments on whether it violates the Fifth Amendment [text] right against self-incrimination if a defendant offers expert testimony to show he or she lacked a requisite mental state at the time of the crime due to drug use and the prosecution offers the court-ordered mental evaluation of the defendant to rebut the testimony. Counsel for the state of Kansas argued:

Once the Respondent made the trial decision to make his mental status an issue and then supported his argument by introducing as evidence the testimony of a mental health expert who had examined the Defendant, he no longer could properly claim the protection of the Fifth Amendment to avoid like kind rebuttal by another court-appointed expert.

Counsel for the US government also argued in support of the state: “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.” Counsel for Cheever argued, “that whatever the scope of the Fifth Amendment waiver may be in this case, the prosecution here exceeded it.”

In Kaley v. United States [transcript, PDF; JURIST report], the court was asked to consider, when a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, do the Fifth and Sixth Amendments [text] require a pre-trial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges? Counsel for Kaley argued:

When the government restrains private property, the owner of that property has the right to be heard at a meaningful time and in a meaningful manner. For a criminal defendant who’s facing a criminal trial, whose property has been restrained, that time is now, before the criminal trial, so that he or she can use those assets, that property, to retain and exercise counsel of choice.

Counsel for the US responded:

For over 200 years, the rule in this Court and in all lower courts have been that the grand jury’s determination of probable cause is conclusive for purposes of the criminal case. And that rule has been extended not only to bringing the defendant to trial, but also depriving the defendant of liberty, imposing occupational restrictions on the defendant, imposing firearms restrictions on the defendant.

The US Court of Appeals for the Eleventh Circuit had ruled [opinion] against the Kaleys, concluding that no such pre-trial hearing was necessary.