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Massiah v. United States

In Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), the Supreme Court held that in addition to the RIGHT TO COUNSEL at the trial stage, the SIXTH AMENDMENT also affords a defendant the right to legal counsel in pretrial stages. The Court held that this right attaches once the accused has been indicted and that the accused is protected from deliberate elicitation of information, including face-to-face encounters with police officers and approaches by unknown government informants.

Winston Massiah was a merchant sailor who was arrested, arraigned, and indicted for possession of narcotics and for conspiring to possess narcotics aboard a U.S. vessel and to import, conceal, and facilitate the sale of narcotics. Massiah retained a lawyer, pleaded not guilty, and was released on bail. One of the accused coconspirators, Jesse Colson, also retained a lawyer and pleaded not guilty. A few days later, unbeknownst to Massiah, Colson decided to cooperate with the government. Colson and Massiah met in Colson's automobile where Massiah made several incriminating statements during the course of their conversation. A radio transmitter had been secretly installed under the front seat of Colson's car, and a government agent listened to and recorded the conversation. At trial Massiah's incriminating statements were admitted into evidence, and the jury convicted him of several narcotics offenses.

The Massiah Court held that Massiah's basic protections of the Sixth Amendment were violated when his statements were surreptitiously and "deliberately elicited from him after he had been indicted and in the absence of his counsel." In essence, the Massiah doctrine activates the Sixth Amendment right to counsel once the criminal suspect reaches the status of accused and restricts the use of covert tactics by the government in obtaining incriminating evidence.

Since announcing the Massiah doctrine, the Supreme Court has attempted to limit its effect by requiring the accused to show that the government participated in active interrogation. The cases that follow Massiah help determine what constitutes active interrogation.

The Supreme Court held that when an inmate working for the government actively prompts an accused to make incriminating statements, this involves active interrogation and is a violation of the accused's Sixth Amendment right to counsel (United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 [1980]). However, when a government agent passively listens to the accused's incriminating statements, there is no violation of the accused's Sixth Amendment right to counsel (Kuhlmann v. Wilson, 477 U.S. 436, 106 S. Ct. 2616, 91 L. Ed. 2d 364 [1986]). In Kuhlmann, the Court held that, to prove a violation of the Sixth Amendment, "the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks."

The Massiah doctrine effectively limits the types of tactics law enforcement may use in obtaining evidence. Under this doctrine once formal charges have been initiated, the right to counsel attaches and law enforcement may not elicit information, either face-to-face, covertly, or through an undercover agent, without the presence of an attorney.


Howe, Patrick M. 1990. "Cleaning Up the Counsel Clause: Revisiting Massiah v. United States." University of San Francisco Law Review 25.

Tomkovicz, James J. 1989. "The Massiah Right to Exclusion: Constitutional Premises and Doctrinal Implications." North Carolina Law Review 67.


Criminal Law; Criminal Procedure.

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