3.7: Chapter 29 - The Sixth Amendment- The Massiah Doctrine

The text of the Sixth Amendment says nothing about interrogations. But it does have at least one useful hint about its applicability—the phrase “in all criminal prosecutions.” If there is no “prosecution,” there is no Sixth Amendment. The Court has clarified that “prosecution” is not limited to trials, and it has also stated that mere arrest isn’t enough. There must be some sort of formal proceeding.

The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.” The Court has held that once a defendant’s right to counsel has “attached”—a concept we will examine later—additional rules restrict interrogations. These rules differ from the Miranda Rule in important ways. For example, the Assistance of Counsel Clause applies regardless of whether a suspect is in custody. Further, the restrictions imposed under the Clause apply to undercover agents as well as to interrogators whom suspects know to be police officers.

The cases beginning with Massiah v. United States compose the third and final interrogation doctrine included in this book. Students should recall that the Due Process Clauses, the Miranda Rule, and the Massiah doctrine impose overlapping commands that police must obey during their investigations of crime.

Supreme Court of the United States

Winston Massiah v. United States

Decided May 18, 1964 – 377 U.S. 201

Mr. Justice STEWART delivered the opinion of the Court.

The petitioner was indicted for violating the federal narcotics laws. He retained a lawyer, pleaded not guilty, and was released on bail. While he was free on bail a federal agent succeeded by surreptitious means in listening to incriminating statements made by him. Evidence of these statements was introduced against the petitioner at his trial over his objection. He was convicted, and the Court of Appeals affirmed. We granted certiorari to consider whether, under the circumstances here presented, the prosecution’s use at the trial of evidence of the petitioner’s own incriminating statements deprived him of any right secured to him under the Federal Constitution.

The petitioner, a merchant seaman, was in 1958 a member of the crew of the S.S. Santa Maria. In April of that year federal customs officials in New York received information that he was going to transport a quantity of narcotics aboard that ship from South America to the United States. As a result of this and other information, the agents searched the Santa Maria upon its arrival in New York and found in the afterpeak of the vessel five packages containing about three and a half pounds of cocaine. They also learned of circumstances, not here relevant, tending to connect the petitioner with the cocaine. He was arrested, promptly arraigned, and subsequently indicted for possession of narcotics aboard a United States vessel. In July a superseding indictment was returned, charging the petitioner and a man named Colson with the same substantive offense, and in separate counts charging the petitioner, Colson, and others with having conspired to possess narcotics aboard a United States vessel, and to import, conceal, and facilitate the sale of narcotics. The petitioner, who had retained a lawyer, pleaded not guilty and was released on bail, along with Colson.

A few days later, and quite without the petitioner’s knowledge, Colson decided to cooperate with the government agents in their continuing investigation of the narcotics activities in which the petitioner, Colson, and others had allegedly been engaged. Colson permitted an agent named Murphy to install a Schmidt radio transmitter under the front seat of Colson’s automobile, by means of which Murphy, equipped with an appropriate receiving device, could overhear from some distance away conversations carried on in Colson’s car.

On the evening of November 19, 1959, Colson and the petitioner held a lengthy conversation while sitting in Colson’s automobile, parked on a New York street. By prearrangement with Colson, and totally unbeknown to the petitioner, the agent Murphy sat in a car parked out of sight down the street and listened over the radio to the entire conversation. The petitioner made several incriminating statements during the course of this conversation. At the petitioner’s trial these incriminating statements were brought before the jury through Murphy’s testimony, despite the insistent objection of defense counsel. The jury convicted the petitioner of several related narcotics offenses, and the convictions were affirmed by the Court of Appeals.

The petitioner argues that it was an error of constitutional dimensions to permit the agent Murphy at the trial to testify to the petitioner’s incriminating statements which Murphy had overheard under the circumstances disclosed by this record. This argument is based upon two distinct and independent grounds. First, we are told that Murphy’s use of the radio equipment violated the petitioner’s rights under the Fourth Amendment, and, consequently, that all evidence which Murphy thereby obtained was, under the rule of Weeks v. United States, 232 U.S. 383 (1914), inadmissible against the petitioner at the trial. Secondly, it is said that the petitioner’s Fifth and Sixth Amendment rights were violated by the use in evidence against him of incriminating statements which government agents had deliberately elicited from him after he had been indicted and in the absence of his retained counsel. Because of the way we dispose of the case, we do not reach the Fourth Amendment issue.

It was said [in the Spano v. New York concurrence] that a Constitution which guarantees a defendant the aid of counsel at such a trial could surely vouchsafe no less to an indicted defendant under interrogation by the police in a completely extrajudicial proceeding. Anything less, it was said, might deny a defendant “effective representation by counsel at the only stage when legal aid and advice would help him.” Ever since this Court’s decision in the Spano case, the New York courts have unequivocally followed this constitutional rule. “Any secret interrogation of the defendant, from and after the finding of the indictment, without the protection afforded by the presence of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime.”

This view no more than reflects a constitutional principle [] that “…during perhaps the most critical period of the proceedings … that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation [are] vitally important, the defendants … [are] as much entitled to such aid [of counsel] during that period as at the trial itself.” And since the Spano decision the same basic constitutional principle has been broadly reaffirmed by this Court.

Here we deal not with a state court conviction, but with a federal case, where the specific guarantee of the Sixth Amendment directly applies. We hold that the petitioner was denied the basic protections of that guarantee 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. It is true that in the Spano case the defendant was interrogated in a police station, while here the damaging testimony was elicited from the defendant without his knowledge while he was free on bail. But, as Judge Hays pointed out in his dissent in the Court of Appeals, “if such a rule is to have any efficacy it must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse. In this case, Massiah was more seriously imposed upon … because he did not even know that he was under interrogation by a government agent.”

The Solicitor General, in his brief and oral argument, has strenuously contended that the federal law enforcement agents had the right, if not indeed the duty, to continue their investigation of the petitioner and his alleged criminal associates even though the petitioner had been indicted. He points out that the Government was continuing its investigation in order to uncover not only the source of narcotics found on the S.S. Santa Maria, but also their intended buyer. He says that the quantity of narcotics involved was such as to suggest that the petitioner was part of a large and well-organized ring, and indeed that the continuing investigation confirmed this suspicion, since it resulted in criminal charges against many defendants. Under these circumstances the Solicitor General concludes that the Government agents were completely “justified in making use of Colson’s cooperation by having Colson continue his normal associations and by surveilling them.”

We may accept and, at least for present purposes, completely approve all that this argument implies, Fourth Amendment problems to one side. We do not question that in this case, as in many cases, it was entirely proper to continue an investigation of the suspected criminal activities of the defendant and his alleged confederates, even though the defendant had already been indicted. All that we hold is that the defendant’s own incriminating statements, obtained by federal agents under the circumstances here disclosed, could not constitutionally be used by the prosecution as evidence against him at his trial.

Mr. Justice WHITE, with whom Mr. Justice CLARK and Mr. Justice HARLAN join, dissenting.

The current incidence of serious violations of the law represents not only an appalling waste of the potentially happy and useful lives of those who engage in such conduct but also an overhanging, dangerous threat to those unidentified and innocent people who will be the victims of crime today and tomorrow. This is a festering problem for which no adequate cures have yet been devised. At the very least there is much room for discontent with remedial measures so far undertaken. And admittedly there remains much to be settled concerning the disposition to be made of those who violate the law.

But dissatisfaction with preventive programs aimed at eliminating crime and profound dispute about whether we should punish, deter, rehabilitate or cure cannot excuse concealing one of our most menacing problems until the millennium has arrived. In my view, a civilized society must maintain its capacity to discover transgressions of the law and to identify those who flout it. This much is necessary even to know the scope of the problem, much less to formulate intelligent counter-measures. It will just not do to sweep these disagreeable matters under the rug or to pretend they are not there at all.

It is therefore a rather portentous occasion when a constitutional rule is established barring the use of evidence which is relevant, reliable and highly probative of the issue which the trial court has before it—whether the accused committed the act with which he is charged. Without the evidence, the quest for truth may be seriously impeded and in many cases the trial court, although aware of proof showing defendant’s guilt, must nevertheless release him because the crucial evidence is deemed inadmissible. This result is entirely justified in some circumstances because exclusion serves other policies of overriding importance, as where evidence seized in an illegal search is excluded, not because of the quality of the proof, but to secure meaningful enforcement of the Fourth Amendment. But this only emphasizes that the soundest of reasons is necessary to warrant the exclusion of evidence otherwise admissible and the creation of another area of privileged testimony. With all due deference, I am not at all convinced that the additional barriers to the pursuit of truth which the Court today erects rest on anything like the solid foundations which decisions of this gravity should require.

The importance of the matter should not be underestimated, for today’s rule promises to have wide application well beyond the facts of this case. The reason given for the result here—the admissions were obtained in the absence of counsel—would seem equally pertinent to statements obtained at any time after the right to counsel attaches, whether there has been an indictment or not; to admissions made prior to arraignment, at least where the defendant has counsel or asks for it; to the fruits of admissions improperly obtained under the new rule; to criminal proceedings in state courts; and to defendants long since convicted upon evidence including such admissions. The new rule will immediately do service in a great many cases.

Whatever the content or scope of the rule may prove to be, I am unable to see how this case presents an unconstitutional interference with Massiah’s right to counsel. Massiah was not prevented from consulting with counsel as often as he wished. No meetings with counsel were disturbed or spied upon. Preparation for trial was in no way obstructed. It is only a sterile syllogism—an unsound one, besides—to say that because Massiah had a right to counsel’s aid before and during the trial, his out-of-court conversations and admissions must be excluded if obtained without counsel’s consent or presence. The right to counsel has never meant as much before, and its extension in this case requires some further explanation, so far unarticulated by the Court.

Since the new rule would exclude all admissions made to the police, no matter how voluntary and reliable, the requirement of counsel’s presence or approval would seem to rest upon the probability that counsel would foreclose any admissions at all. This is nothing more than a thinly disguised constitutional policy of minimizing or entirely prohibiting the use in evidence of voluntary out-of-court admissions and confessions made by the accused. Carried as far as blind logic may compel some to go, the notion that statements from the mouth of the defendant should not be used in evidence would have a severe and unfortunate impact upon the great bulk of criminal cases.

Viewed in this light, the Court’s newly fashioned exclusionary principle goes far beyond the constitutional privilege against self-incrimination, which neither requires nor suggests the barring of voluntary pretrial admissions. The Fifth Amendment states that no person “shall be compelled in any criminal case to be a witness against himself …” The defendant may thus not be compelled to testify at his trial, but he may if he wishes. Likewise he may not be compelled or coerced into saying anything before trial; but until today he could if he wished to, and if he did, it could be used against him. Whether as a matter of self-incrimination or of due process, the proscription is against compulsion—coerced incrimination. Under the prior law, announced in countless cases in this Court, the defendant’s pretrial statements were admissible evidence if voluntarily made; inadmissible if not the product of his free will. Hardly any constitutional area has been more carefully patrolled by this Court, and until now the Court has expressly rejected the argument that admissions are to be deemed involuntary if made outside the presence of counsel.

The Court presents no facts, no objective evidence, no reasons to warrant scrapping the voluntary-involuntary test for admissibility in this area. Without such evidence I would retain it in its present form.

Applying the new exclusionary rule is peculiarly inappropriate in this case. At the time of the conversation in question, petitioner was not in custody but free on bail. He was not questioned in what anyone could call an atmosphere of official coercion. What he said was said to his partner in crime who had also been indicted. There was no suggestion or any possibility of coercion. What petitioner did not know was that Colson had decided to report the conversation to the police. Had there been no prior arrangements between Colson and the police, had Colson simply gone to the police after the conversation had occurred, his testimony relating Massiah’s statements would be readily admissible at the trial, as would a recording which he might have made of the conversation. In such event, it would simply be said that Massiah risked talking to a friend who decided to disclose what he knew of Massiah’s criminal activities. But, if, as occurred here, Colson had been cooperating with the police prior to his meeting with Massiah, both his evidence and the recorded conversation are somehow transformed into inadmissible evidence despite the fact that the hazard to Massiah remains precisely the same—the defection of a confederate in crime.

Reporting criminal behavior is expected or even demanded of the ordinary citizen. Friends may be subpoenaed to testify about friends, relatives about relatives and partners about partners. I therefore question the soundness of insulating Massiah from the apostasy of his partner in crime and of furnishing constitutional sanction for the strict secrecy and discipline of criminal organizations. Neither the ordinary citizen nor the confessed criminal should be discouraged from reporting what he knows to the authorities and from lending his aid to secure evidence of crime. Certainly after this case the Colsons will be few and far between; and the Massiahs can breathe much more easily, secure in the knowledge that the Constitution furnishes an important measure of protection against faithless compatriots and guarantees sporting treatment for sporting peddlers of narcotics.

Meanwhile, of course, the public will again be the loser and law enforcement will be presented with another serious dilemma. The general issue lurking in the background of the Court’s opinion is the legitimacy of penetrating or obtaining confederates in criminal organizations. For the law enforcement agency, the answer for the time being can only be in the form of a prediction about the future application of today’s new constitutional doctrine. More narrowly, and posed by the precise situation involved here, the question is this: when the police have arrested and released on bail one member of a criminal ring and another member, a confederate, is cooperating with the police, can the confederate be allowed to continue his association with the ring or must he somehow be withdrawn to avoid challenge to trial evidence on the ground that it was acquired after rather than before the arrest, after rather than before the indictment?

Undoubtedly, the evidence excluded in this case would not have been available but for the conduct of Colson in cooperation with Agent Murphy, but is it this kind of conduct which should be forbidden to those charged with law enforcement? It is one thing to establish safeguards against procedures fraught with the potentiality of coercion and to outlaw “easy but self-defeating ways in which brutality is substituted for brains as an instrument of crime detection.” But here there was no substitution of brutality for brains, no inherent danger of police coercion justifying the prophylactic effect of another exclusionary rule.

Notes, Comments, and Questions

Because under Massiah police cannot use undercover agents to question a suspect whose right to counsel has “attached,” two suspects in the same jail can have different rules apply to them. If one has been arrested but not yet indicted or brought before a judge, chances are that Miranda applies to her and Massiah does not. In that case, because undercover questioning is not “interrogation” under Miranda, a secret informant could freely question the suspect, with only the Due Process Clauses regulating the tactics. A cellmate who had been indicted—or for whom adversary proceedings had otherwise commenced—would be protected by Massiah doctrine, which applies regardless of whether a suspect is in custody.

In Brewer v. Williams, the Court was forced to decide whether to apply the Massiah doctrine in the case of a murder of a ten-year-old child. Perhaps because the straightforward application of the rule would lead to such an unappealing outcome—the state’s inability to punish a killer whose guilt was seemingly in little doubt—the case caused sharp disagreements among the Justices.

Supreme Court of the United States

Lou V. Brewer v. Robert Anthony Williams

Decided March 23, 1977 – 430 U.S. 387

Mr. Justice STEWART delivered the opinion of the Court.

An Iowa trial jury found the respondent, Robert Williams, guilty of murder. The judgment of conviction was affirmed in the Iowa Supreme Court by a closely divided vote. In a subsequent habeas corpus proceeding a Federal District Court ruled that under the United States Constitution Williams is entitled to a new trial, and a divided Court of Appeals for the Eighth Circuit agreed. The question before us is whether the District Court and the Court of Appeals were wrong.

I

On the afternoon of December 24, 1968, a 10-year-old girl named Pamela Powers went with her family to the YMCA in Des Moines, Iowa, to watch a wrestling tournament in which her brother was participating. When she failed to return from a trip to the washroom, a search for her began. The search was unsuccessful.

Robert Williams, who had recently escaped from a mental hospital, was a resident of the YMCA. Soon after the girl’s disappearance Williams was seen in the YMCA lobby carrying some clothing and a large bundle wrapped in a blanket. He obtained help from a 14-year-old boy in opening the street door of the YMCA and the door to his automobile parked outside. When Williams placed the bundle in the front seat of his car the boy “saw two legs in it and they were skinny and white.” Before anyone could see what was in the bundle Williams drove away. His abandoned car was found the following day in Davenport, Iowa, roughly 160 miles east of Des Moines. A warrant was then issued in Des Moines for his arrest on a charge of abduction.

On the morning of December 26, a Des Moines lawyer named Henry McKnight went to the Des Moines police station and informed the officers present that he had just received a long-distance call from Williams, and that he had advised Williams to turn himself in to the Davenport police. Williams did surrender that morning to the police in Davenport, and they booked him on the charge specified in the arrest warrant and gave him the warnings required by Miranda v. Arizona. The Davenport police then telephoned their counterparts in Des Moines to inform them that Williams had surrendered. McKnight, the lawyer, was still at the Des Moines police headquarters, and Williams conversed with McKnight on the telephone. In the presence of the Des Moines chief of police and a police detective named Leaming, McKnight advised Williams that Des Moines police officers would be driving to Davenport to pick him up, that the officers would not interrogate him or mistreat him, and that Williams was not to talk to the officers about Pamela Powers until after consulting with McKnight upon his return to Des Moines. As a result of these conversations, it was agreed between McKnight and the Des Moines police officials that Detective Leaming and a fellow officer would drive to Davenport to pick up Williams, that they would bring him directly back to Des Moines, and that they would not question him during the trip.

In the meantime Williams was arraigned before a judge in Davenport on the outstanding arrest warrant. The judge advised him of his Miranda rights and committed him to jail. Before leaving the courtroom, Williams conferred with a lawyer named Kelly, who advised him not to make any statements until consulting with McKnight back in Des Moines.

Detective Leaming and his fellow officer arrived in Davenport about noon to pick up Williams and return him to Des Moines. Soon after their arrival they met with Williams and Kelly, who, they understood, was acting as Williams’ lawyer. Detective Leaming repeated the Miranda warnings, and told Williams:

“[W]e both know that you’re being represented here by Mr. Kelly and you’re being represented by Mr. McKnight in Des Moines, and … I want you to remember this because we’ll be visiting between here and Des Moines.”

Williams then conferred again with Kelly alone, and after this conference Kelly reiterated to Detective Leaming that Williams was not to be questioned about the disappearance of Pamela Powers until after he had consulted with McKnight back in Des Moines. When Leaming expressed some reservations, Kelly firmly stated that the agreement with McKnight was to be carried out that there was to be no interrogation of Williams during the automobile journey to Des Moines. Kelly was denied permission to ride in the police car back to Des Moines with Williams and the two officers.

The two detectives, with Williams in their charge, then set out on the 160-mile drive. At no time during the trip did Williams express a willingness to be interrogated in the absence of an attorney. Instead, he stated several times that “[w]hen I get to Des Moines and see Mr. McKnight, I am going to tell you the whole story.” Detective Leaming knew that Williams was a former mental patient, and knew also that he was deeply religious.

The detective and his prisoner soon embarked on a wide-ranging conversation covering a variety of topics, including the subject of religion. Then, not long after leaving Davenport and reaching the interstate highway, Detective Leaming delivered what has been referred to in the briefs and oral arguments as the “Christian burial speech.” Addressing Williams as “Reverend,” the detective said:

“I want to give you something to think about while we’re traveling down the road. … Number one, I want you to observe the weather conditions, it’s raining, it’s sleeting, it’s freezing, driving is very treacherous, visibility is poor, it’s going to be dark early this evening. They are predicting several inches of snow for tonight, and I feel that you yourself are the only person that knows where this little girl’s body is, that you yourself have only been there once, and if you get a snow on top of it you yourself may be unable to find it. And, since we will be going right past the area on the way into Des Moines, I feel that we could stop and locate the body, that the parents of this little girl should be entitled to a Christian burial for the little girl who was snatched away from them on Christmas [E]ve and murdered. And I feel we should stop and locate it on the way in rather than waiting until morning and trying to come back out after a snow storm and possibly not being able to find it at all.”

Williams asked Detective Leaming why he thought their route to Des Moines would be taking them past the girl’s body, and Leaming responded that he knew the body was in the area of Mitchellville a town they would be passing on the way to Des Moines. Leaming then stated: “I do not want you to answer me. I don’t want to discuss it any further. Just think about it as we’re riding down the road.”

As the car approached Grinnell, a town approximately 100 miles west of Davenport, Williams asked whether the police had found the victim’s shoes. When Detective Leaming replied that he was unsure, Williams directed the officers to a service station where he said he had left the shoes; a search for them proved unsuccessful. As they continued towards Des Moines, Williams asked whether the police had found the blanket, and directed the officers to a rest area where he said he had disposed of the blanket. Nothing was found. The car continued towards Des Moines, and as it approached Mitchellville, Williams said that he would show the officers where the body was. He then directed the police to the body of Pamela Powers.

Williams was indicted for first-degree murder. Before trial, his counsel moved to suppress all evidence relating to or resulting from any statements Williams had made during the automobile ride from Davenport to Des Moines. After an evidentiary hearing the trial judge denied the motion. He found that “an agreement was made between defense counsel and the police officials to the effect that the Defendant was not to be questioned on the return trip to Des Moines,” and that the evidence in question had been elicited from Williams during “a critical stage in the proceedings requiring the presence of counsel on his request.” The judge ruled, however, that Williams had “waived his right to have an attorney present during the giving of such information.”

The evidence in question was introduced over counsel’s continuing objection at the subsequent trial. The jury found Williams guilty of murder, and the judgment of conviction was affirmed by the Iowa Supreme Court, a bare majority of whose members agreed with the trial court that Williams had “waived his right to the presence of his counsel” on the automobile ride from Davenport to Des Moines.

Williams then petitioned for a writ of habeas corpus in the United States District Court for the Southern District of Iowa. Counsel for the State and for Williams stipulated that “the case would be submitted on the record of facts and proceedings in the trial court, without taking of further testimony.” The District Court made findings of fact as summarized above, and concluded as a matter of law that the evidence in question had been wrongly admitted at Williams’ trial.

The Court of Appeals for the Eighth Circuit, with one judge dissenting affirmed this judgment and denied a petition for rehearing en banc. We granted certiorari to consider the constitutional issues presented.

II

[T]here is no need to review in this case the doctrine of Miranda v. Arizona, a doctrine designed to secure the constitutional privilege against compulsory self-incrimination. It is equally unnecessary to evaluate the ruling of the District Court that Williams’ self-incriminating statements were, indeed, involuntarily made. For it is clear that the judgment before us must in any event be affirmed upon the ground that Williams was deprived of a different constitutional right—the right to the assistance of counsel.

This right, guaranteed by the Sixth and Fourteenth Amendments, is indispensable to the fair administration of our adversary system of criminal justice. Its vital need at the pretrial stage has perhaps nowhere been more succinctly explained than in Mr. Justice Sutherland’s memorable words for the Court 44 years ago in Powell v. Alabama, 287 U.S. 45 (1932):

“[D]uring perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself.”

There has occasionally been a difference of opinion within the Court as to the peripheral scope of this constitutional right. But its basic contours, which are identical in state and federal contexts, are too well established to require extensive elaboration here. Whatever else it may mean, the right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him “whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.”

There can be no doubt in the present case that judicial proceedings had been initiated against Williams before the start of the automobile ride from Davenport to Des Moines. A warrant had been issued for his arrest, he had been arraigned on that warrant before a judge in a Davenport courtroom, and he had been committed by the court to confinement in jail. The State does not contend otherwise.

There can be no serious doubt, either, that Detective Leaming deliberately and designedly set out to elicit information from Williams just as surely as and perhaps more effectively than if he had formally interrogated him. Detective Leaming was fully aware before departing for Des Moines that Williams was being represented in Davenport by Kelly and in Des Moines by McKnight. Yet he purposely sought during Williams’ isolation from his lawyers to obtain as much incriminating information as possible. Indeed, Detective Leaming conceded as much when he testified at Williams’ trial:

“Q. In fact, Captain, whether he was a mental patient or not, you were trying to get all the information you could before he got to his lawyer, weren’t you?

“A. I was sure hoping to find out where that little girl was, yes, sir.

“Q. Well, I’ll put it this way: You was [sic] hoping to get all the information you could before Williams got back to McKnight, weren’t you?

“A. Yes, sir.”

The state courts clearly proceeded upon the hypothesis that Detective Leaming’s “Christian burial speech” had been tantamount to interrogation. Both courts recognized that Williams had been entitled to the assistance of counsel at the time he made the incriminating statements. Yet no such constitutional protection would have come into play if there had been no interrogation.

The circumstances of this case are thus constitutionally indistinguishable from those presented in Massiah v. United States. That the incriminating statements were elicited surreptitiously in the Massiah case, and otherwise here, is constitutionally irrelevant. Rather, the clear rule of Massiah is that once adversary proceedings have commenced against an individual, he has a right to legal representation when the government interrogates him. It thus requires no wooden or technical application of the Massiah doctrine to conclude that Williams was entitled to the assistance of counsel guaranteed to him by the Sixth and Fourteenth Amendments.

III

The Iowa courts recognized that Williams had been denied the constitutional right to the assistance of counsel. They held, however, that he had waived that right during the course of the automobile trip from Davenport to Des Moines. The state trial court explained its determination of waiver as follows:

“The time element involved on the trip, the general circumstances of it, and more importantly the absence on the Defendant’s part of any assertion of his right or desire not to give information absent the presence of his attorney, are the main foundations for the Court’s conclusion that he voluntarily waived such right.”

In the federal habeas corpus proceeding, the Court of Appeals [disagreed, stating]:

“[T]his court recently held that an accused can voluntarily, knowingly and intelligently waive his right to have counsel present at an interrogation after counsel has been appointed. … The prosecution, however, has the weighty obligation to show that the waiver was knowingly and intelligently made. [T]he state here failed to so show.”

[I]t was incumbent upon the State to prove “an intentional relinquishment or abandonment of a known right or privilege.” That standard has been reiterated in many cases. We have said that the right to counsel does not depend upon a request by the defendant. This strict standard applies equally to an alleged waiver of the right to counsel whether at trial or at a critical stage of pretrial proceedings.

We conclude [] that, judged by these standards, the record in this case falls far short of sustaining petitioner’s burden. It is true that Williams had been informed of and appeared to understand his right to counsel. But waiver requires not merely comprehension but relinquishment, and Williams’ consistent reliance upon the advice of counsel in dealing with the authorities refutes any suggestion that he waived that right.

Despite Williams’ express and implicit assertions of his right to counsel, Detective Leaming proceeded to elicit incriminating statements from Williams. Leaming did not preface this effort by telling Williams that he had a right to the presence of a lawyer, and made no effort at all to ascertain whether Williams wished to relinquish that right. The circumstances of record in this case thus provide no reasonable basis for finding that Williams waived his right to the assistance of counsel.

IV

The crime of which Williams was convicted was senseless and brutal, calling for swift and energetic action by the police to apprehend the perpetrator and gather evidence with which he could be convicted. No mission of law enforcement officials is more important. Yet “[d]isinterested zeal for the public good does not assure either wisdom or right in the methods it pursues.” Although we do not lightly affirm the issuance of a writ of habeas corpus in this case, so clear a violation of the Sixth and Fourteenth Amendments as here occurred cannot be condoned. The pressures on state executive and judicial officers charged with the administration of the criminal law are great, especially when the crime is murder and the victim a small child. But it is precisely the predictability of those pressures that makes imperative a resolute loyalty to the guarantees that the Constitution extends to us all. The judgment of the Court of Appeals is affirmed.

Mr. Justice MARSHALL, concurring.

I concur wholeheartedly in my Brother STEWART’s opinion for the Court, but add these words in light of the dissenting opinions filed today. The dissenters have, I believe, lost sight of the fundamental constitutional backbone of our criminal law. They seem to think that Detective Leaming’s actions were perfectly proper, indeed laudable, examples of “good police work.” In my view, good police work is something far different from catching the criminal at any price. It is equally important that the police, as guardians of the law, fulfill their responsibility to obey its commands scrupulously. For “in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.”

Mr. Justice STEVENS, concurring.

Underlying the surface issues in this case is the question whether a fugitive from justice can rely on his lawyer’s advice given in connection with a decision to surrender voluntarily. The defendant placed his trust in an experienced Iowa trial lawyer who in turn trusted the Iowa law enforcement authorities to honor a commitment made during negotiations which led to the apprehension of a potentially dangerous person. Under any analysis, this was a critical stage of the proceeding in which the participation of an independent professional was of vital importance to the accused and to society. At this stage as in countless others in which the law profoundly affects the life of the individual the lawyer is the essential medium through which the demands and commitments of the sovereign are communicated to the citizen. If, in the long run, we are seriously concerned about the individual’s effective representation by counsel, the State cannot be permitted to dishonor its promise to this lawyer.

Mr. Chief Justice BURGER, dissenting.

The result in this case ought to be intolerable in any society which purports to call itself an organized society. It continues the Court by the narrowest margin on the much-criticized course of punishing the public for the mistakes and misdeeds of law enforcement officers, instead of punishing the officer directly, if in fact he is guilty of wrongdoing. It mechanically and blindly keeps reliable evidence from juries whether the claimed constitutional violation involves gross police misconduct or honest human error.

Williams is guilty of the savage murder of a small child; no member of the Court contends he is not. While in custody, and after no fewer than five warnings of his rights to silence and to counsel, he led police to the concealed body of his victim. The Court concedes Williams was not threatened or coerced and that he spoke and acted voluntarily and with full awareness of his constitutional rights. In the face of all this, the Court now holds that because Williams was prompted by the detective’s statement—not interrogation but a statement—the jury must not be told how the police found the body.

Today’s holding fulfills Judge (later Mr. Justice) Cardozo’s grim prophecy that someday some court might carry the exclusionary rule to the absurd extent that its operative effect would exclude evidence relating to the body of a murder victim because of the means by which it was found.

[Chief Justice Burger’s dissent then raised two main points. First, he argued that Williams’s statements were voluntary. Second, he urged that the exclusionary rule should not be applied to “non-egregious police conduct.”]

Mr. Justice WHITE, with whom Mr. Justice BLACKMUN and Mr. Justice REHNQUIST join, dissenting.

The respondent in this case killed a 10-year-old child. The majority sets aside his conviction, holding that certain statements of unquestioned reliability were unconstitutionally obtained from him, and under the circumstances probably makes it impossible to retry him. Because there is nothing in the Constitution or in our previous cases which requires the Court’s action, I dissent.

The issue in this case is whether respondent who was entitled not to make any statements to the police without consultation with and/or presence of counsel validly waived those rights. In order to show that a right has been waived [], the State must prove “an intentional relinquishment or abandonment of a known right or privilege.” The majority creates no new rule preventing an accused who has retained a lawyer from waiving his right to the lawyer’s presence during questioning. The majority simply finds that no waiver was proved in this case. I disagree. That respondent knew of his right not to say anything to the officers without advice and presence of counsel is established on this record to a moral certainty. He was advised of the right by three officials of the State—telling at least one that he understood the right and by two lawyers. Finally, he further demonstrated his knowledge of the right by informing the police that he would tell them the story in the presence of McKnight when they arrived in Des Moines. The issue in this case, then, is whether respondent relinquished that right intentionally.

Respondent relinquished his right not to talk to the police about his crime when the car approached the place where he had hidden the victim’s clothes. Men usually intend to do what they do, and there is nothing in the record to support the proposition that respondent’s decision to talk was anything but an exercise of his own free will. Apparently, without any prodding from the officers, respondent—who had earlier said that he would tell the whole story when he arrived in Des Moines—spontaneously changed his mind about the timing of his disclosures when the car approached the places where he had hidden the evidence. However, even if his statements were influenced by Detective Leaming’s above-quoted statement, respondent’s decision to talk in the absence of counsel can hardly be viewed as the product of an overborne will. The statement by Leaming was not coercive; it was accompanied by a request that respondent not respond to it; and it was delivered hours before respondent decided to make any statement. Respondent’s waiver was thus knowing and intentional.

The majority’s contrary conclusion seems to rest on the fact that respondent “asserted” his right to counsel by retaining and consulting with one lawyer and by consulting with another. How this supports the conclusion that respondent’s later relinquishment of his right not to talk in the absence of counsel was unintentional is a mystery. The fact that respondent consulted with counsel on the question whether he should talk to the police in counsel’s absence makes his later decision to talk in counsel’s absence better informed and, if anything, more intelligent.

The majority recognizes that even after this “assertion” of his right to counsel, it would have found that respondent waived his right not to talk in counsel’s absence if his waiver had been express—i.e., if the officers had asked him in the car whether he would be willing to answer questions in counsel’s absence and if he had answered “yes.” But waiver is not a formalistic concept. Waiver is shown whenever the facts establish that an accused knew of a right and intended to relinquish it. Such waiver, even if not express, was plainly shown here. The only other conceivable basis for the majority’s holding is the implicit suggestion that the right involved in Massiah v. United States, as distinguished from the right involved in Miranda v. Arizona, is a right not to be asked any questions in counsel’s absence rather than a right not to answer any questions in counsel’s absence, and that the right not to be asked questions must be waived before the questions are asked. Such wafer-thin distinctions cannot determine whether a guilty murderer should go free. The only conceivable purpose for the presence of counsel during questioning is to protect an accused from making incriminating answers. Questions, unanswered, have no significance at all. Absent coercion—no matter how the right involved is defined—an accused is amply protected by a rule requiring waiver before or simultaneously with the giving by him of an answer or the making by him of a statement.

The consequence of the majority’s decision is, as the majority recognizes, extremely serious. A mentally disturbed killer whose guilt is not in question may be released. Why? Apparently the answer is that the majority believes that the law enforcement officers acted in a way which involves some risk of injury to society and that such conduct should be deterred. However, the officers’ conduct did not, and was not likely to, jeopardize the fairness of respondent’s trial or in any way risk the conviction of an innocent man the risk against which the Sixth Amendment guarantee of assistance of counsel is designed to protect. The police did nothing “wrong,” let alone anything “unconstitutional.” To anyone not lost in the intricacies of the prophylactic rules of Miranda v. Arizona, the result in this case seems utterly senseless; and for the reasons stated [above] even applying those rules as well as the rule of Massiah v. United States, the statements made by respondent were properly admitted. In light of these considerations, the majority’s protest that the result in this case is justified by a “clear violation” of the Sixth and Fourteenth Amendments has a distressing hollow ring. I respectfully dissent.

Mr. Justice BLACKMUN, with whom Mr. Justice WHITE and Mr. Justice REHNQUIST join, dissenting.

What the Court chooses to do here, and with which I disagree, is to hold that respondent Williams’ situation was in the mold of Massiah v. United States, that is, that it was dominated by a denial to Williams of his Sixth Amendment right to counsel after criminal proceedings had been instituted against him. The Court rules that the Sixth Amendment was violated because Detective Leaming “purposely sought during Williams’ isolation from his lawyers to obtain as much incriminating information as possible.” I cannot regard that as unconstitutional per se.

First, the police did not deliberately seek to isolate Williams from his lawyers so as to deprive him of the assistance of counsel. The isolation in this case was a necessary incident of transporting Williams to the county where the crime was committed.

Second, Leaming’s purpose was not solely to obtain incriminating evidence. The victim had been missing for only two days, and the police could not be certain that she was dead. Leaming, of course, and in accord with his duty, was “hoping to find out where that little girl was” but such motivation does not equate with an intention to evade the Sixth Amendment. Moreover, the Court seems to me to place an undue emphasis and aspersion on what it and the lower courts have chosen to call the “Christian burial speech,” and on Williams’ “deeply religious” convictions.

Third, not every attempt to elicit information should be regarded as “tantamount to interrogation.” I am not persuaded that Leaming’s observations and comments, made as the police car traversed the snowy and slippery miles between Davenport and Des Moines that winter afternoon, were an interrogation, direct or subtle, of Williams. Contrary to this Court’s statement, the Iowa Supreme Court appears to me to have thought and held otherwise and I agree. Williams, after all, was counseled by lawyers, and warned by the arraigning judge in Davenport and by the police, and yet it was he who started the travel conversations and brought up the subject of the criminal investigation. Without further reviewing the circumstances of the trip, I would say it is clear there was no interrogation.

In summary, it seems to me that the Court is holding that Massiah is violated whenever police engage in any conduct, in the absence of counsel, with the subjective desire to obtain information from a suspect after arraignment. Such a rule is far too broad. Persons in custody frequently volunteer statements in response to stimuli other than interrogation. When there is no interrogation, such statements should be admissible as long as they are truly voluntary.

The Massiah point thus being of no consequence, I would vacate the judgment of the Court of Appeals and remand the case for consideration of the issue of voluntariness, in the constitutional sense, of Williams’ statements, an issue the Court of Appeals did not reach when the case was before it.

Notes, Comments, and Questions

Compare the outcome in Williams to Rhode Island v. Innis (Chapter 25). Why are the outcomes different in these cases?

The Court in Williams took the defendant’s guilt for granted, which one can understand because Williams was seen leaving the YMCA with a body and eventually led police to the hidden body of the victim. Subsequent research, however, suggests another possibility—that a different YMCA resident killed Pamela Powers and put her body in Williams’s room, after which Williams panicked and tried to hide the evidence. For a discussion of the facts, see Tom N. McInnis, Nix v. Williams and the Inevitable Discovery Exception: Creation of a Legal Safety Net, 28 St. Louis U. Pub. L. Rev. 397, 417-27 (2009). While Williams may well be guilty, his guilt is not as obvious as the Justices seemed to believe. The title of Professor McInnis’s article refers to this case as “Nix v. Williams,” the name under which we will see the case again later in the semester.

Double Jeopardy and the “Offense-Specific” Sixth Amendment

In McNeil v. Wisconsin, 501 U.S. 171 (1991) the Court stated that the Sixth Amendment right to the assistance of counsel “is offense-specific.” Accordingly, even if a suspect’s right to counsel has attached for one crime, the Sixth Amendment does not preclude questioning by law enforcement about a different offense. Under the Miranda Rule, a suspect who invokes his right to counsel cannot be questioned about any crime,¹ but in situations where Miranda does not apply (for example, when a suspect is not in custody or is questioned by an undercover officer), the offense-specific nature of the Massiah doctrine may allow questioning about some crimes while preventing questioning about others. The Court explained this principle further in Texas v. Cobb, which appears below.

Cobb will be easier to understand following a brief review of decisions interpreting the Double Jeopardy Clause of the Fifth Amendment. That amendment provides, “No person shall … be subject for the same offence to be twice put in jeopardy of life or limb.” In “Double Jeopardy Law Made Simple,” Professor Akhil Amar observed, “The Double Jeopardy Clause speaks of the ‘same’ offense, and yet the Court casually applies the Clause to offenses that are not the same but obviously different.”² Professor Amar’s criticism cannot be denied. Rather than consider the strengths and weaknesses of double jeopardy jurisprudence, we will focus on the basic definition of “same offense” articulated by the Court.

In Blockburger v. United States, 284 U.S. 299 (1932), the Court set forth a test for determining whether, “where the same act or transaction constitutes a violation of two distinct statutory provisions,” someone has committed two separate crimes for double jeopardy purposes. If the two statutes charge the defendant with committing the “same offense,” then the defendant may be punished for violating only one of them. If, however, the two statutes do not describe the “same offense,” then the defendant’s conduct can be punished under both statutes. “[T]he test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.”

A few examples will illustrate how the test works in practice:

If a suspect possesses cocaine with intent to sell it, she likely could be charged either with “simple possession” of the contraband or with “possession with intent to distribute.” Often, the elements of “possession with intent to distribute” are exactly the same as those of “simple possession”—other than the culpable mental state of “intent to distribute.” If so, then these two crimes are the “same offense” under Blockburger. (As Professor Amar and others have noted, these are certainly not the “same offense” under plain English.) They are the same offense because while “possession with intent to distribute” has an element that “simple possession” lacks, “simple possession” has no element that is not part of “possession with intent to distribute.” In other words, “simple possession” is a lesser included offense of “possession with intent to distribute.” This example shows the general principle that lesser included offenses are the “same offense” as the greater offenses in which they are included.

Note that the “same offense” definition is symmetric. If Crime A is the same offense as Crime B, then Crime B is the same offense as Crime A.

Continuing with the theme of lesser included offenses, negligent homicide is the “same offense” as involuntary manslaughter—assuming that the only difference between the crimes is the culpable mental state that the prosecution must prove. Both crimes require a homicide, and negligent homicide is the lesser included offense of reckless (involuntary) manslaughter. (Recall that anyone who is reckless is also by definition negligent.)

By contrast, consider a devious business owner who burns down his rival’s warehouse and accidentally kills a security guard who was inside during the fire. If the malefactor were tried for arson, could he later be tried for negligent homicide? Yes. Arson has an element that negligent homicide lacks—burning. And negligent homicide has an element that arson lacks—a death. Thus, even though the charges arise from the same transaction, they are not the “same offense” under Blockburger. Therefore, regardless of the result of the arson trial, prosecutors may freely charge the defendant for negligent homicide without offending the Court’s double jeopardy doctrine.

Here, now, is a trickier one: Imagine that the same warehouse arsonist is not charged with the crimes listed above, but is instead charged with felony murder. If he is acquitted, may frustrated prosecutors charge him with arson? Probably not. Chances are that when he was charged with felony murder, the predicate felony was arson. In that case, the elements of the offense included all the elements of arson, along with the death arising from the crime. Therefore, ordinary arson, standing alone, is a lesser included offense of the felony murder charge for which the defendant was put in jeopardy.

The result of this doctrine is that if the defendant is tried first for arson, the prosecution may not subsequently charge him with felony murder (because that is the “same offense” as arson), but may subsequently charge him with negligent homicide or reckless manslaughter (which are not the “same offense”).

To determine whether two charges arising from the same conduct are the “same offense,” a student should list the elements of each crime. If each crime has an element that the other lacks, then the crimes are not the “same offense.” If one crime’s elements are fully included among those of the other crime, then they are the “same offense.”

Note that if two charges arise from separate events—for example, two different bank robberies—a defendant may be tried for both of them (in whatever order) without offending the Double Jeopardy Clause. For instance, a suspect observed selling cocaine to ten different buyers may be tried separately for each of the sales.

One last point: In Gamble v. United States, 139 S. Ct. 1960 (2019), the Court upheld the longstanding “dual-sovereignty doctrine.” Under this doctrine, a state prosecution does not preclude a subsequent federal prosecution for the same conduct, regardless of the elements of the crimes charged. Similarly, a federal prosecution does not preclude a subsequent state prosecution.

Armed with a basic understanding of double jeopardy law, students will better grasp the importance of Texas v. Cobb, which imports this jurisprudence into Sixth Amendment doctrine.

Supreme Court of the United States

Texas v. Raymond Levi Cobb

Decided April 2, 2001 – 532 U.S. 162

Chief Justice REHNQUIST delivered the opinion of the Court.

The Texas Court of Criminal Appeals held that a criminal defendant’s Sixth Amendment right to counsel attaches not only to the offense with which he is charged, but to other offenses “closely related factually” to the charged offense. We hold that our decision in McNeil v. Wisconsin meant what it said, and that the Sixth Amendment right is “offense specific.”

In December 1993, Lindsey Owings reported to the Walker County, Texas, Sheriff’s Office that the home he shared with his wife, Margaret, and their 16-month-old daughter, Kori Rae, had been burglarized. He also informed police that his wife and daughter were missing. Respondent Raymond Levi Cobb lived across the street from the Owings. Acting on an anonymous tip that respondent was involved in the burglary, Walker County investigators questioned him about the events. He denied involvement. In July 1994, while under arrest for an unrelated offense, respondent was again questioned about the incident. Respondent then gave a written statement confessing to the burglary, but he denied knowledge relating to the disappearances. Respondent was subsequently indicted for the burglary, and Hal Ridley was appointed in August 1994 to represent respondent on that charge.

Shortly after Ridley’s appointment, investigators asked and received his permission to question respondent about the disappearances. Respondent continued to deny involvement. Investigators repeated this process in September 1995, again with Ridley’s permission and again with the same result.

In November 1995, respondent, free on bond in the burglary case, was living with his father in Odessa, Texas. At that time, respondent’s father contacted the Walker County Sheriff’s Office to report that respondent had confessed to him that he killed Margaret Owings in the course of the burglary. Walker County investigators directed respondent’s father to the Odessa police station, where he gave a statement. Odessa police then faxed the statement to Walker County, where investigators secured a warrant for respondent’s arrest and faxed it back to Odessa. Shortly thereafter, Odessa police took respondent into custody and administered warnings pursuant to Miranda v. Arizona. Respondent waived these rights.

After a short time, respondent confessed to murdering both Margaret and Kori Rae [in detail].

Respondent later led police to the location where he had buried the victims’ bodies.

Respondent was convicted of capital murder for murdering more than one person in the course of a single criminal transaction. He was sentenced to death. On appeal to the Court of Criminal Appeals of Texas, respondent argued, inter alia, that his confession should have been suppressed because it was obtained in violation of his Sixth Amendment right to counsel. [R]espondent contended that his right to counsel had attached when Ridley was appointed in the burglary case and that Odessa police were therefore required to secure Ridley’s permission before proceeding with the interrogation.

The Court of Criminal Appeals reversed respondent’s conviction by a divided vote and remanded for a new trial. The court held that “once the right to counsel attaches to the offense charged, it also attaches to any other offense that is very closely related factually to the offense charged.” Finding the capital murder charge to be “factually interwoven with the burglary,” the court concluded that respondent’s Sixth Amendment right to counsel had attached on the capital murder charge even though respondent had not yet been charged with that offense.

The State sought review in this Court, and we granted certiorari to consider first whether the Sixth Amendment right to counsel extends to crimes that are “factually related” to those that have actually been charged, and second whether respondent made a valid unilateral waiver of that right in this case. Because we answer the first question in the negative, we do not reach the second.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.” In McNeil v. Wisconsin, we explained when this right arises:

“The Sixth Amendment right [to counsel] … is offense specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.”

Accordingly, we held that a defendant’s statements regarding offenses for which he had not been charged were admissible notwithstanding the attachment of his Sixth Amendment right to counsel on other charged offenses.

Some state courts and Federal Courts of Appeals, however, have read into McNeil’s offense-specific definition an exception for crimes that are “factually related” to a charged offense. Respondent predicts that the offense-specific rule will prove “disastrous” to suspects’ constitutional rights and will “permit law enforcement officers almost complete and total license to conduct unwanted and uncounseled interrogations.” Besides offering no evidence that such a parade of horribles has occurred in those jurisdictions that have not enlarged upon McNeil, he fails to appreciate the significance of two critical considerations. First, there can be no doubt that a suspect must be apprised of his rights against compulsory self-incrimination and to consult with an attorney before authorities may conduct custodial interrogation. In the present case, police scrupulously followed Miranda’s dictates when questioning respondent. Second, it is critical to recognize that the Constitution does not negate society’s interest in the ability of police to talk to witnesses and suspects, even those who have been charged with other offenses.

“Since the ready ability to obtain uncoerced confessions is not an evil but an unmitigated good, society would be the loser. Admissions of guilt resulting from valid Miranda waivers ‘are more than merely “desirable”; they are essential to society’s compelling interest in finding, convicting, and punishing those who violate the law.’”

Although it is clear that the Sixth Amendment right to counsel attaches only to charged offenses, we have recognized in other contexts that the definition of an “offense” is not necessarily limited to the four corners of a charging instrument. In Blockburger v. United States, we explained that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” We have since applied the Blockburger test to delineate the scope of the Fifth Amendment’s Double Jeopardy Clause, which prevents multiple or successive prosecutions for the “same offence.” We see no constitutional difference between the meaning of the term “offense” in the contexts of double jeopardy and of the right to counsel. Accordingly, we hold that when the Sixth Amendment right to counsel attaches, it does encompass offenses that, even if not formally charged, would be considered the same offense under the Blockburger test.

It remains only to apply these principles to the facts at hand. At the time he confessed to Odessa police, respondent had been indicted for burglary of the Owings residence, but he had not been charged in the murders of Margaret and Kori Rae. As defined by Texas law, burglary and capital murder are not the same offense under Blockburger. Accordingly, the Sixth Amendment right to counsel did not bar police from interrogating respondent regarding the murders, and respondent’s confession was therefore admissible.

The judgment of the Court of Criminal Appeals of Texas is reversed.

Justice BREYER, with whom Justice STEVENS, Justice SOUTER, and Justice GINSBURG join, dissenting.

This case focuses upon the meaning of a single word, “offense,” when it arises in the context of the Sixth Amendment. Several basic background principles define that context.

First, the Sixth Amendment right to counsel plays a central role in ensuring the fairness of criminal proceedings in our system of justice.

Second, the right attaches when adversary proceedings, triggered by the government’s formal accusation of a crime, begin.

Third, once this right attaches, law enforcement officials are required, in most circumstances, to deal with the defendant through counsel rather than directly, even if the defendant has waived his Fifth Amendment rights.

Fourth, the particular aspect of the right here at issue—the rule that the police ordinarily must communicate with the defendant through counsel—has important limits. In particular, recognizing the need for law enforcement officials to investigate “new or additional crimes” not the subject of current proceedings, this Court has made clear that the right to counsel does not attach to any and every crime that an accused may commit or have committed. The right “cannot be invoked once for all future prosecutions,” and it does not forbid “interrogation unrelated to the charge.” In a word, as this Court previously noted, the right is “offense specific.”

This case focuses upon the last-mentioned principle, in particular upon the meaning of the words “offense specific.” These words appear in this Court’s Sixth Amendment case law, not in the Sixth Amendment’s text. The definition of these words is not self-evident. Sometimes the term “offense” may refer to words that are written in a criminal statute; sometimes it may refer generally to a course of conduct in the world, aspects of which constitute the elements of one or more crimes; and sometimes it may refer, narrowly and technically, just to the conceptually severable aspects of the latter. This case requires us to determine whether an “offense”—for Sixth Amendment purposes—includes factually related aspects of a single course of conduct other than those few acts that make up the essential elements of the crime charged.

We should answer this question in light of the Sixth Amendment’s basic objectives as set forth in this Court’s case law. At the very least, we should answer it in a way that does not undermine those objectives. But the Court today decides that “offense” means the crime set forth within “the four corners of a charging instrument,” along with other crimes that “would be considered the same offense” under the test established by Blockburger v. United States. In my view, this unnecessarily technical definition undermines Sixth Amendment protections while doing nothing to further effective law enforcement.

For one thing, the majority’s rule, while leaving the Fifth Amendment’s protections in place, threatens to diminish severely the additional protection that, under this Court’s rulings, the Sixth Amendment provides when it grants the right to counsel to defendants who have been charged with a crime and insists that law enforcement officers thereafter communicate with them through that counsel.

[T]he Sixth Amendment right at issue is independent of the Fifth Amendment’s protections; and the importance of this Sixth Amendment right has been repeatedly recognized in our cases. The majority’s rule permits law enforcement officials to question those charged with a crime without first approaching counsel, through the simple device of asking questions about any other related crime not actually charged in the indictment. Thus, the police could ask the individual charged with robbery about, say, the assault of the cashier not yet charged, or about any other uncharged offense (unless under Blockburger’s definition it counts as the “same crime”), all without notifying counsel. Indeed, the majority’s rule would permit law enforcement officials to question anyone charged with any crime in any one of the examples just given about his or her conduct on the single relevant occasion without notifying counsel unless the prosecutor has charged every possible crime arising out of that same brief course of conduct. What Sixth Amendment sense—what common sense—does such a rule make? What is left of the “communicate through counsel” rule? The majority’s approach is inconsistent with any common understanding of the scope of counsel’s representation. It will undermine the lawyer’s role as “‘medium’” between the defendant and the government. And it will, on a random basis, remove a significant portion of the protection that this Court has found inherent in the Sixth Amendment.

At the same time, the majority’s rule threatens the legal clarity necessary for effective law enforcement. That is because the majority, aware that the word “offense” ought to encompass something beyond “the four corners of the charging instrument,” imports into Sixth Amendment law the definition of “offense” set forth in Blockburger v. United States, a case interpreting the Double Jeopardy Clause of the Fifth Amendment, which Clause uses the word “offence” but otherwise has no relevance here. Whatever Fifth Amendment virtues Blockburger may have, to import it into this Sixth Amendment context will work havoc.

In theory, the test says that two offenses are the “same offense” unless each requires proof of a fact that the other does not. That means that most of the different crimes mentioned above are not the “same offense.” Under many States’ laws, for example, the statute defining assault and the statute defining robbery each requires proof of a fact that the other does not. Hence the extension of the definition of “offense” that is accomplished by the use of the Blockburger test does nothing to address the substantial concerns about the circumvention of the Sixth Amendment right that are raised by the majority’s rule.

But, more to the point, the simple-sounding Blockburger test has proved extraordinarily difficult to administer in practice. Judges, lawyers, and law professors often disagree about how to apply it. The test has emerged as a tool in an area of our jurisprudence that THE CHIEF JUSTICE has described as “a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator.” Yet the Court now asks, not the lawyers and judges who ordinarily work with double jeopardy law, but police officers in the field, to navigate Blockburger when they question suspects. Some will apply the test successfully; some will not. Legal challenges are inevitable. The result, I believe, will resemble not so much the Sargasso Sea as the criminal law equivalent of Milton’s “Serbonian Bog … Where Armies whole have sunk.”

There is, of course, an alternative. We can, and should, define “offense” in terms of the conduct that constitutes the crime that the offender committed on a particular occasion, including criminal acts that are “closely related to” or “inextricably intertwined with” the particular crime set forth in the charging instrument. This alternative is not perfect. The language used lacks the precision for which police officers may hope; and it requires lower courts to specify its meaning further as they apply it in individual cases. Yet virtually every lower court in the United States to consider the issue has defined “offense” in the Sixth Amendment context to encompass such closely related acts. These courts have found offenses “closely related” where they involved the same victim, set of acts, evidence, or motivation. They have found offenses unrelated where time, location, or factual circumstances significantly separated the one from the other.

One cannot say in favor of this commonly followed approach that it is perfectly clear—only that, because it comports with common sense, it is far easier to apply than that of the majority. One might add that, unlike the majority’s test, it is consistent with this Court’s assumptions in previous cases. And, most importantly, the “closely related” test furthers, rather than undermines, the Sixth Amendment’s “right to counsel,” a right so necessary to the realization in practice of that most “noble ideal,” a fair trial.

The Texas Court of Criminal Appeals, following this commonly accepted approach, found that the charged burglary and the uncharged murders were “closely related.” All occurred during a short period of time on the same day in the same basic location. The victims of the murders were also victims of the burglary. Cobb committed one of the murders in furtherance of the robbery, the other to cover up the crimes. The police, when questioning Cobb, knew that he already had a lawyer representing him on the burglary charges and had demonstrated their belief that this lawyer also represented Cobb in respect to the murders by asking his permission to question Cobb about the murders on previous occasions. The relatedness of the crimes is well illustrated by the impossibility of questioning Cobb about the murders without eliciting admissions about the burglary. Nor, in my view, did Cobb waive his right to counsel. These considerations are sufficient. The police officers ought to have spoken to Cobb’s counsel before questioning Cobb. I would affirm the decision of the Texas court. Consequently, I dissent.

Notes, Comments, and Questions

When Has the Right to Counsel Attached?

In Rothgery v. Gillespie County, 554 U.S. 191 (2008), the Court reviewed when the Sixth Amendment right to counsel attaches. After reiterating that “it does not attach until a prosecution is commenced,” the Court quoted precedent stating that commencement occurs upon “the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.”

Turning to the issue presented in Rothgery, the Court held that “the right to counsel guaranteed by the Sixth Amendment applies at the first appearance before a judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his liberty,” regardless of whether a prosecutor attends this hearing or is even aware of it.

Students should note that mere arrest does not trigger the right to counsel. Accordingly, for an arrested suspect who has not been indicted—or otherwise the subject of formal proceedings—the primary regulation of interrogation will come from Miranda, not Massiah. For a suspect in custody whose right to counsel has attached, both doctrines will apply.

Consider these scenarios:

A suspect is arrested and taken to jail. Police place an undercover agent (disguised as a fellow prisoner) in the suspect’s cell. The agent asks the suspect questions about the crimes leading to the suspect’s arrest. Permissible? Why or why not?

Assume this same suspect is taken the next day to the courthouse. A judge sets bail, which the suspect cannot afford, and the suspect returns to jail. The same undercover agent asks the suspect questions about the crimes leading to the suspect’s arrest. Permissible? Why or why not?

In our next chapter, we continue our study of the Massiah doctrine. In particular, we examine how undercover agents can obtain information from a suspect whose right to counsel has attached without violating the Sixth Amendment.