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The Right To Counsel Approach

By the mid-1960s, unhappiness with its own voluntariness jurisprudence led the Supreme Court to consider other, more clear-cut and rule-like approaches to the control of putatively improper interrogation techniques. A breakthrough came in 1964, when the Court decided Massiah v. United States (377 U.S. 201 (1964)). Massiah was arrested and, along with one Colson, indicted for possession of narcotics. Unbeknownst to Massiah, Colson thereupon agreed to cooperate with the government and permitted an agent to install a radio transmitter under the front seat of his car. The agent used the transmitter to overhear a lengthy and incriminating conversation between Colson and Massiah. The Supreme Court held that Massiah "was denied the basic protections of [the Sixth Amendment right to counsel] when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel" (377 U.S. at 206).

In some respects, Massiah is a puzzling holding. After all, Massiah had a lawyer at the time of his incriminating conversation. The prosecution had done nothing to prevent Massiah from bringing his lawyer with him when he went to talk with Colson. It was Massiah's bad judgment, rather than government coercion, that led to his misguided discussion in the absence of counsel. Moreover, it is hard to see how the presence of his lawyer would have made that discussion less problematic. Indeed, eavesdropping on discussions between lawyer and client seems more invasive of Sixth Amendment rights than what actually transpired in Massiah. If the government's Massiah tactics were indeed offensive, the difficulty seems to lie not in the absence of a lawyer, but in the deceptive use of a confederate to extract incriminating information. Yet the Court has repeatedly held in the Fourth Amendment context that a defendant who talks to a confederate "assumes the risk" that this information will be conveyed to the police.

But although Massiah rested on debatable doctrinal premises, it nonetheless held out the promise of "solving" the confessions problem. If the Sixth Amendment required the presence of counsel even for a conversation between a defendant and his confederate, then surely it required counsel's presence during a formal police interrogation. And as a practical matter, there was little chance that a suspect would confess with a lawyer sitting at his elbow.

The Supreme Court seemed to be moving in just this direction in Escobedo v. Illinois (378 U.S. 478 (1964)), a case decided a few weeks after Massiah. Unlike Massiah, Escobedo had not yet been formally charged with an offense. He was arrested on suspicion of murder and interrogated in the absence of counsel despite his repeated requests to see his lawyer. Although the facts surrounding his confession could easily have led the Court to find it involuntary under the due process test, the Justices chose instead to focus on the absence of counsel. Even though there had been no formal charge, the Court found that Escobedo had been "accused" because the investigation had focused on him. It followed that he had a right to the presence of a lawyer and that his confession could not be used against him.

When the Supreme Court announced its decision in Miranda v. Arizona (384 U.S. 436 (1966)), some two years after Escobedo, many observers thought that the Court's newly minted self-incrimination approach would subsume its Massiah-Escobedo right to counsel jurisprudence, much as the Court lost interest in enforcing a due process, voluntariness standard in the post-Miranda period. In one important respect, the modern Court has indeed backed away from its earlier Sixth Amendment jurisprudence: subsequent cases have made clear that the Sixth Amendment right to counsel attaches only after adversary criminal proceedings have been formally initiated against the suspect. Despite the Escobedo Court's clear language to the contrary, the Escobedo opinion has been reinterpreted as resting on self-incrimination rather than Sixth Amendment grounds. This limitation on the Sixth Amendment right is important, because most police interrogations are conducted during the time period between the defendant's arrest and the filing of formal charges.

In other important respects, however, the Court has actually expanded upon Sixth Amendment protections against statements made in the absence of counsel. For example, in Brewer v. Williams (430 U.S. 387 (1977)), the Supreme Court reversed the conviction of a defendant convicted of murdering a ten-year-old girl on the ground that the defendant's confession was secured without the presence of counsel. (Williams was subsequently retried without the confession, and the Supreme Court affirmed his resulting conviction.) The murder in question occurred in Des Moines, Iowa, but Williams was arrested and formally charged in Davenport, some 160 miles away. Despite a promise not to interrogate Williams on the trip back to Des Moines, an officer delivered a long monologue designed to appeal to Williams's guilt and religious sensibility. Although Williams had been warned repeatedly of his right to remain silent, he responded to the speech by leading the officer to the body of the murdered child.

The Supreme Court's reversal of Williams's conviction is notable not only for its reaffirmation of Massiah rights in a highly emotional setting, but also for its clarification of the standards for interrogation and waiver in the Sixth Amendment context. Even though the police officer had not directly questioned Williams, the Court nonetheless found that he had been "interrogated" for Massiah purposes because the officer had "deliberately and designedly set out to elicit information" from him (430 U.S. at 399). Since Williams plainly knew that he had a right to remain silent, one might have supposed that he knowingly waived this right when he led the officer to the body. But the Court focused on the fact that the defendant had "effectively asserted his right to counsel" prior to making the statement (430 U.S. at 405). Having claimed this right, Williams was entitled to "every reasonable presumption against waiver" (430 U.S. at 404). In a later case, the Court made this presumption more concrete: once a defendant had been formally charged and had requested counsel, a defendant could waive the right only if the defendant himself initiated a subsequent conversation about the offense.

Chief Justice Warren Burger wrote a bitter dissenting opinion in Williams, but he arguably extended the Massiah doctrine still further in United States v. Henry (447 U.S. 264 (1980)). After Henry had been charged with armed robbery, the government placed an informant in his cell. The informant was told not to initiate conversation with Henry, but to pay attention to anything he might say about the offense. Writing for the majority, Chief Justice Burger held that the government had "deliberately elicited" Henry's statements in violation of the Massiah doctrine. True, the government had told the informant not to initiate conversations with Henry, but the informant testified that he had had "some conversations with Mr. Henry" and that the incriminatory statements were "the product of this conversation." Moreover, because Henry did not know that his cellmate was a government agent, he could not have knowingly and voluntarily waived his right to assistance of counsel.

In subsequent cases, the Court has made clear that Henry does not apply in circumstances where a government informant does no more than listen to the suspect and refrains from "deliberately eliciting" the statements. The Court has also held that the police may legally elicit and introduce statements from a charged defendant concerning a different crime for which the defendant has not yet been charged, and that even when a defendant invokes the right to counsel, the invocation does not bar interrogations about other offenses. Moreover, the Court has held, a defendant who receives Miranda warnings and waives his Miranda rights, discussed below, also waives his Sixth Amendment rights.

Additional topics

Law Library - American Law and Legal InformationCrime and Criminal LawConfessions - The Role Of Confessions, The Voluntariness Approach, The Right To Counsel Approach, The Self-incrimination Approach—historical Background