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Departments : Point of Law

Sixth Amendment Revisited

When can you talk to a charged defendant without his lawyer?

July 22, 2009  |  by Devallis Rutledge - Also by this author

Most interrogations occur before the suspect's Sixth Amendment right to counsel kicks in. During such interrogations, all you have to worry about are the familiar Miranda rules and the due process rules precluding improper treatment and tactics that make statements

Once the Sixth Amendment right to counsel attaches, however, you have an additional set of rules to follow, and these rules are different in significant respects from the Miranda and voluntariness rules. A recent U.S. Supreme Court decision reviews the Sixth Amendment rules and adds a troubling new element that law enforcement officers must take into account.

Massiah v. U.S.

The Miranda decision in 1966 was based on the Fifth Amendment privilege against compelled self-incrimination. Although the Miranda admonition talks about a "right" to an attorney, this is not the constitutional right provided by the Sixth Amendment. The separate Sixth Amendment right of an "accused" to the "assistance of counsel for his defense" only arises with the beginning of adversary judicial proceedings. (Rothgery v. Gillespie County, Texas) In most jurisdictions, this will be by either grand jury indictment or arraignment (or other first court appearance to answer a charge).

Once the Sixth Amendment right to counsel has attached and been asserted by the defendant (such as by his asking for an attorney, hiring one, or having one appointed by the court), police may no longer deliberately elicit incriminating statements from the defendant about that particular case unless the defendant's attorney is present, or a valid waiver is obtained.

Two years before Miranda, the Supreme Court had already created an exclusionary rule for the suppression of statements elicited after the Sixth Amendment became applicable. The court said, "We hold that Massiah was denied the basic protections of the Sixth Amendment guarantee when there was used against him at his trial evidence of his own incriminating words, which agents had deliberately elicited from him after he had been indicted and in the absence of counsel." (Massiah v. U.S.)

Henry and Kuhlmann

In subsequent cases, the court considered two situations in which jailhouse informants reported statements made by a defendant after he was covered by the Sixth Amendment. The first, U.S. v. Henry, involved a paid informant who was placed into defendant Henry's cell, after indictment and retention of counsel, with instructions to report anything Henry said. The informant, having been promised consideration for his help, had an incentive to try to elicit information from Henry, and he in fact did so by "stimulating discussions" from Henry about his case. The Supreme Court ruled these statements inadmissible under Massiah, saying that "By intentionally creating a situation likely to induce Henry to make incriminating statements without the assistance of counsel, the Government violated Henry's Sixth Amendment right to counsel." (U.S. v. Henry)

The second case, Kuhlmann v. Wilson, though similar to Henry, had two distinguishing facts: the informant was not given any incentive to stimulate discussions with his cellmate (Wilson) but was merely told to report any statements he might happen to overhear Wilson make; and the informant did not in fact say or do anything to provoke Wilson into talking about his case. This time, the Supreme Court found no reason to invoke the Massiah exclusionary rule. The court called the informant a "passive listening post" who did no more than listen and report, without encouraging discussions. The court said that "merely listening" does not violate the Sixth A mendment.

Limitations on Massiah

Other decisions of the Supreme Court have defined exceptions and limits to the Massiah exclusionary rule:

  • The Sixth Amendment does not apply simply because the suspect has hired an attorney, if he has not yet been indicted or appeared in court on the case. (Moran v. Burbine)
  • Statements inadmissible in the prosecution case-in-chief under Massiah may be admitted to impeach the defendant, if he gives inconsistent testimony at trial. (Michigan v. Harvey)
  • The Sixth Amendment right to counsel is "offense-specific," meaning that even though a suspect's right may have attached and been asserted as to Case A, this does not preclude police questioning as to uncharged Case B. (Texas v. Cobb)
  • Sometimes police may use a Miranda warning to obtain a valid waiver of the right to counsel and obtain an admissible statement. (Patterson v. Illinois)

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