3.9: Chapter 30 - The Sixth Amendment- Massiah Doctrine and Waiver of Rights

INTERROGATIONS

Chapter 30

The Sixth Amendment: Massiah Doctrine & Waiver of Rights

In Massiah v. United States, the Court held that the petitioner was denied the protections of the Sixth Amendment’s guarantee of assistance of counsel when prosecutors used his own words against him at trial, words which federal agents had deliberately elicited from him in the absence of his counsel after he had been indicted. Further, we read for our last chapter that indictment is not the only way that the right to counsel can “attach”—other formal proceedings will do. The Massiah Court did not define what it meant for government agents to “deliberately elicit” incriminating statements. We turn to that question in this chapter.

After reviewing the leading cases on deliberate elicitation, we will turn to the rules governing waiver of rights under the Sixth Amendment Assistance of Counsel Clause.

Supreme Court of the United States

United States v. Billy Gale Henry

Decided June 16, 1980 – 447 U.S. 264

Mr. Chief Justice BURGER delivered the opinion of the Court.

We granted certiorari to consider whether respondent’s Sixth Amendment right to the assistance of counsel was violated by the admission at trial of incriminating statements made by respondent to his cellmate, an undisclosed Government informant, after indictment and while in custody.

I

The Janaf Branch of the United Virginia Bank/Seaboard National in Norfolk, Va., was robbed in August 1972. Witnesses saw two men wearing masks and carrying guns enter the bank while a third man waited in the car. No witnesses were able to identify respondent Henry as one of the participants. About an hour after the robbery, the getaway car was discovered. Inside was found a rent receipt signed by one “Allen R. Norris” and a lease, also signed by Norris, for a house in Norfolk. Two men, who were subsequently convicted of participating in the robbery, were arrested at the rented house. Discovered with them were the proceeds of the robbery and the guns and masks used by the gunman.

Government agents traced the rent receipt to Henry; on the basis of this information, Henry was arrested in Atlanta, Ga., in November 1972. Two weeks later he was indicted for armed robbery. He was held pending trial in the Norfolk city jail. Counsel was appointed on November 27.

On November 21, 1972, shortly after Henry was incarcerated, Government agents working on the Janaf robbery contacted one Nichols, an inmate at the Norfolk city jail, who for some time prior to this meeting had been engaged to provide confidential information to the Federal Bureau of Investigation as a paid informant. Nichols was then serving a sentence on local forgery charges. The record does not disclose whether the agent contacted Nichols specifically to acquire information about Henry or the Janaf robbery.

Nichols informed the agent that he was housed in the same cellblock with several federal prisoners awaiting trial, including Henry. The agent told him to be alert to any statements made by the federal prisoners, but not to initiate any conversation with or question Henry regarding the bank robbery. In early December, after Nichols had been released from jail, the agent again contacted Nichols, who reported that he and Henry had engaged in conversation and that Henry had told him about the robbery of the Janaf bank. Nichols was paid for furnishing the information.

When Henry was tried in March 1973, an agent of the Federal Bureau of Investigation testified concerning the events surrounding the discovery of the rental slip and the evidence uncovered at the rented house. Other witnesses also connected Henry to the rented house, including the rental agent who positively identified Henry as the “Allen R. Norris” who had rented the house and had taken the rental receipt described earlier. A neighbor testified that prior to the robbery she saw Henry at the rented house with John Luck, one of the two men who had by the time of Henry’s trial been convicted for the robbery. In addition, palm prints found on the lease agreement matched those of Henry.

Nichols testified at trial that he had “an opportunity to have some conversations with Mr. Henry while he was in the jail,” and that Henry told him that on several occasions he had gone to the Janaf Branch to see which employees opened the vault. Nichols also testified that Henry described to him the details of the robbery and stated that the only evidence connecting him to the robbery was the rental receipt. The jury was not informed that Nichols was a paid Government informant.

On the basis of this testimony, Henry was convicted of bank robbery and sentenced to a term of imprisonment of 25 years. On appeal he raised no Sixth Amendment claims. His conviction was affirmed and his petition to this Court for a writ of certiorari was denied.

On August 28, 1975, Henry moved to vacate his sentence. At this stage, he stated that he had just learned that Nichols was a paid Government informant and alleged that he had been intentionally placed in the same cell with Nichols so that Nichols could secure information about the robbery. Thus, Henry contended that the introduction of Nichols’ testimony violated his Sixth Amendment right to the assistance of counsel. The District Court denied the motion without a hearing. The Court of Appeals, however, reversed and remanded for an evidentiary inquiry into “whether the witness [Nichols] was acting as a government agent during his interviews with Henry.”

On remand, the District Court requested affidavits from the Government agents. An affidavit was submitted describing the agent’s relationship with Nichols and relating the following conversation:

“I recall telling Nichols at this time to be alert to any statements made by these individuals [the federal prisoners] regarding the charges against them. I specifically recall telling Nichols that he was not to question Henry or these individuals about the charges against them, however, if they engaged him in conversation or talked in front of him, he was requested to pay attention to their statements. I recall telling Nichols not to initiate any conversations with Henry regarding the bank robbery charges against Henry, but that if Henry initiated the conversations with Nichols, I requested Nichols to pay attention to the information furnished by Henry.”

The agent’s affidavit also stated that he never requested anyone affiliated with the Norfolk city jail to place Nichols in the same cell with Henry.

The District Court again denied Henry’s motion, concluding that Nichols’ testimony at trial did not violate Henry’s Sixth Amendment right to counsel. The Court of Appeals reversed and remanded, holding that the actions of the Government impaired the Sixth Amendment rights of the defendant under Massiah v. United States. The court noted that Nichols had engaged in conversation with Henry and concluded that if by association, by general conversation, or both, Nichols had developed a relationship of trust and confidence with Henry such that Henry revealed incriminating information, this constituted interference with the right to the assistance of counsel under the Sixth Amendment.

II

This Court has scrutinized postindictment confrontations between Government agents and the accused to determine whether they are “critical stages” of the prosecution at which the Sixth Amendment right to the assistance of counsel attaches. The present case involves incriminating statements made by the accused to an undisclosed and undercover Government informant while in custody and after indictment. The Government characterizes Henry’s incriminating statements as voluntary and not the result of any affirmative conduct on the part of Government agents to elicit evidence. From this, the Government argues that Henry’s rights were not violated, even assuming the Sixth Amendment applies to such surreptitious confrontations; in short, it is contended that the Government has not interfered with Henry’s right to counsel.

This Court first applied the Sixth Amendment to postindictment communications between the accused and agents of the Government in Massiah v. United States. The question here is whether under the facts of this case a Government agent “deliberately elicited” incriminating statements from Henry within the meaning of Massiah. Three factors are important. First, Nichols was acting under instructions as a paid informant for the Government; second, Nichols was ostensibly no more than a fellow inmate of Henry; and third, Henry was in custody and under indictment at the time he was engaged in conversation by Nichols.

The Court of Appeals viewed the record as showing that Nichols deliberately used his position to secure incriminating information from Henry when counsel was not present and held that conduct attributable to the Government. Nichols had been a paid Government informant for more than a year; moreover, the FBI agent was aware that Nichols had access to Henry and would be able to engage him in conversations without arousing Henry’s suspicion. The arrangement between Nichols and the agent was on a contingent-fee basis; Nichols was to be paid only if he produced useful information. This combination of circumstances is sufficient to support the Court of Appeals’ determination. Even if the agent’s statement that he did not intend that Nichols would take affirmative steps to secure incriminating information is accepted, he must have known that such propinquity likely would lead to that result.

The Government argues that the federal agents instructed Nichols not to question Henry about the robbery. Yet according to his own testimony, Nichols was not a passive listener; rather, he had “some conversations with Mr. Henry” while he was in jail and Henry’s incriminatory statements were “the product of this conversation.” While affirmative interrogation, absent waiver, would certainly satisfy Massiah, we are not persuaded, as the Government contends that Brewer v. Williams modified Massiah’s “deliberately elicited” test. In Massiah, no inquiry was made as to whether Massiah or his codefendant first raised the subject of the crime under investigation.

It is quite a different matter when the Government uses undercover agents to obtain incriminating statements from persons not in custody but suspected of criminal activity prior to the time charges are filed. But the Fourth and Fifth Amendment claims [possible] in those [situations] are not relevant to the inquiry under the Sixth Amendment here—whether the Government has interfered with the right to counsel of the accused by “deliberately eliciting” incriminating statements. Our holding today does not modify [Fourth or Fifth Amendment jurisprudence on this issue].

It is undisputed that Henry was unaware of Nichols’ role as a Government informant. The government argues that this Court should apply a less rigorous standard under the Sixth Amendment where the accused is prompted by an undisclosed undercover informant than where the accused is speaking in the hearing of persons he knows to be Government officers. That line of argument, however, seeks to infuse Fifth Amendment concerns against compelled self-incrimination into the Sixth Amendment protection of the right to the assistance of counsel. An accused speaking to a known Government agent is typically aware that his statements may be used against him. The adversary positions at that stage are well established; the parties are then “arms’ length” adversaries.

When the accused is in the company of a fellow inmate who is acting by prearrangement as a Government agent, the same cannot be said. Conversation stimulated in such circumstances may elicit information that an accused would not intentionally reveal to persons known to be Government agents. Indeed, the Massiah Court noted that if the Sixth Amendment “is to have any efficacy it must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse.” The Court pointedly observed that Massiah was more seriously imposed upon because he did not know that his codefendant was a Government agent.

Moreover, the concept of a knowing and voluntary waiver of Sixth Amendment rights does not apply in the context of communications with an undisclosed undercover informant acting for the Government. In that setting, Henry, being unaware that Nichols was a Government agent expressly commissioned to secure evidence, cannot be held to have waived his right to the assistance of counsel.

Finally Henry’s incarceration at the time he was engaged in conversation by Nichols is also a relevant factor.¹ [T]he mere fact of custody imposes pressures on the accused; confinement may bring into play subtle influences that will make him particularly susceptible to the ploys of undercover Government agents. The Court of Appeals determined that on this record the incriminating conversations between Henry and Nichols were facilitated by Nichols’ conduct and apparent status as a person sharing a common plight. That Nichols had managed to gain the confidence of Henry, as the Court of Appeals determined, is confirmed by Henry’s request that Nichols assist him in his escape plans when Nichols was released from confinement.

Under the strictures of the Court’s holdings on the exclusion of evidence, we conclude that the Court of Appeals did not err in holding that Henry’s statements to Nichols should not have been admitted at trial. 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. This is not a case where, in Justice Cardozo’s words, “the constable … blundered”; rather, it is one where the “constable” planned an impermissible interference with the right to the assistance of counsel. The judgment of the Court of Appeals for the Fourth Circuit is [a]ffirmed.

Mr. Justice POWELL, concurring.

The rule of Massiah serves the salutary purpose of preventing police interference with the relationship between a suspect and his counsel once formal proceedings have been initiated. But Massiah does not prohibit the introduction of spontaneous statements that are not elicited by governmental action. Thus, the Sixth Amendment is not violated when a passive listening device collects, but does not induce, incriminating comments. Similarly, the mere presence of a jailhouse informant who had been instructed to overhear conversations and to engage a criminal defendant in some conversations would not necessarily be unconstitutional. In such a case, the question would be whether the informant’s actions constituted deliberate and “surreptitious interrogatio[n]” of the defendant. If they did not, then there would be no interference with the relationship between client and counsel.

On balance [] I accept the view of the Court of Appeals and of the Court that the record adequately demonstrates the existence of a Massiah violation. I could not join the Court’s opinion if it held that the mere presence or incidental conversation of an informant in a jail cell would violate Massiah. To demonstrate an infringement of the Sixth Amendment, a defendant must show that the government engaged in conduct that, considering all of the circumstances, is the functional equivalent of interrogation.

Because I understand that the decision today rests on a conclusion that this informant deliberately elicited incriminating information by such conduct, I join the opinion of the Court.

Mr. Justice BLACKMUN, with whom Mr. Justice WHITE joins, dissenting.

In this case the Court, I fear, cuts loose from the moorings of Massiah v. United States and overlooks or misapplies significant facts to reach a result that is not required by the Sixth Amendment, by established precedent, or by sound policy. Because I view the principles of Massiah and the facts of this case differently than the Court does, I dissent.

Massiah mandates exclusion only if a federal agent “deliberately elicited” statements from the accused in the absence of counsel. The word “deliberately” denotes intent. Massiah ties this intent to the act of elicitation, that is, to conduct that draws forth a response. Thus Massiah, by its own terms, covers only action undertaken with the specific intent to evoke an inculpatory disclosure.

Faced with Agent Coughlin’s unequivocal expression of an intent not to elicit statements from respondent Henry, but merely passively to receive them, the Court, in its decision to affirm the judgment of the Court of Appeals, has no choice but to depart from the natural meaning of the Massiah formulation. [W]hile claiming to retain the “deliberately elicited” test, the Court really forges a new test that saps the word “deliberately” of all significance. The Court’s extension of Massiah would cover even a “negligent” triggering of events resulting in reception of disclosures. This approach, in my view, is unsupported and unwise.

The unifying theme of Massiah cases [] is the presence of deliberate, designed, and purposeful tactics, that is, the agent’s use of an investigatory tool with the specific intent of extracting information in the absence of counsel. Thus, the Court’s “likely to induce” test fundamentally restructures Massiah. Even if the agent engages in no “overreaching,” and believes his actions to be wholly innocent and passive, evidence he comes by must be excluded if a court, with the convenient benefit of 20/20 hindsight, finds it likely that the agent’s actions would induce the statements.

For several reasons, I believe that the Court’s revamping of Massiah abrogates sound judicial policy. First, its test will significantly broaden Sixth Amendment exclusion; yet, as THE CHIEF JUSTICE has stressed before, the “high price society pays for such a drastic remedy” as exclusion of indisputably reliable evidence in criminal trials cannot be denied. Second, I think the Court’s approach fails to appreciate fully and to accommodate adequately the “value” and the “unfortunate necessity of undercover work.” Third, I find it significant that the proffered statements are unquestionably voluntary. Fourth, the Court condemns and punishes police conduct that I do not find culpable. Fifth, at least absent an active, orchestrated ruse, I have great difficulty perceiving how canons of fairness are violated when the Government uses statements flowing from a “wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.”

Finally, I note the limits, placed in other Sixth Amendment cases, of providing counsel to counterbalance prosecutorial expertise and to aid defendants faced with complex and unfamiliar proceedings. While not out of line with the Court’s prior right-to-counsel cases, Massiah certainly is the decision in which Sixth Amendment protections have been extended to their outermost point. I simply do not perceive any good reason to give Massiah the expansion it receives in this case.

In my view, the Court not only missteps in forging a new Massiah test; it proceeds to misapply the very test it has created. The new test requires a showing that the agent created a situation “likely to induce” the production of incriminatory remarks, and that the informant in fact “prompted” the defendant. Even accepting the most capacious reading of both this language and the facts, I believe that neither prong of the Court’s test is satisfied.

In holding that Coughlin’s actions were likely to induce Henry’s statements, the Court relies on three facts: a contingent-fee arrangement; Henry’s assumption that Nichols was just a cellmate; and Henry’s incarceration.

The Court states: “The arrangement between Nichols and the agent was on a contingent-fee basis; Nichols was to be paid only if he produced useful information.” The District Court, however, made no such finding, and I am unconvinced that the evidence of record establishes such an understanding.

The Court also emphasizes that Henry was “unaware that Nichols was a Government agent.” One might properly assign this factor some importance, were it not for Brewer v. Williams (Chapter 29). In that case, the Court explicitly held that the fact “[t]hat the incriminating statements were elicited surreptitiously in the Massiah case, and otherwise here, is constitutionally irrelevant.” The Court’s teeter-tottering with this factor in Massiah analysis can only induce confusion.

It merits emphasis that the court’s resurrection of the unawareness factor is indispensable to its holding. For, in Brewer, substantial contact and conversation with a confined defendant preceded delivery of the “Christian burial speech.” Yet the Court clearly deemed the speech critical in finding a Massiah violation; it thus made clear that mere “association” and “general conversation” did not suffice to bring Massiah into play. Since nothing more transpired here, principled application of Brewer mandates reversal of the judgment in this case.

Finally, the Court notes that Henry was incarcerated when he made his statements to Nichols. The Court’s emphasis of the “subtle influences” exerted by custody, however, is itself too subtle for me. This is not a case of a custodial encounter with police, in which the Government’s display of power might overcome the free will of the accused. The relationship here was “social” and relaxed. Henry did not suspect that Nichols was connected with the FBI. Moreover, even assuming that “subtle influences” might encourage a detainee to talk about his crime, there are certainly counter-balances of at least equal weight. Since, in jail, “official surveillance has traditionally been the order of the day,” and a jailmate has obvious incentives to assist authorities, one may expect a detainee to act with corresponding circumspection.

All Members of the Court agree that Henry’s statements were properly admitted if Nichols did not “prompt” him. The record, however, gives no indication that Nichols “stimulated” Henry’s remarks with “affirmative steps to secure incriminating information.” Certainly the known facts reveal nothing more than “a jailhouse informant who had been instructed to overhear conversations and to engage a criminal defendant in some conversations.” Indeed, to the extent the record says anything at all, it supports the inference that it was Henry, not Nichols, who “engaged” the other “in some conversations,” and who was the moving force behind any mention of the crime. I cannot believe that Massiah requires exclusion when a cellmate previously unknown to the defendant and asked only to keep his ears open says: “It’s a nice day,” and the defendant responds: “It would be nicer if I hadn’t robbed that bank.” The Court of Appeals, however, found it necessary to swallow that bitter pill in order to decide this case the way it did, and this Court does not show that anything more transpired.

In sum, I think this is an unfortunate decision, which disregards precedent and stretches to the breaking point a virtually silent record. Whatever the bounds of Massiah, that case does not justify exclusion of the proof challenged here.

Mr. Justice REHNQUIST, dissenting.

The Court today concludes that the Government through the use of an informant “deliberately elicited” information from respondent after formal criminal proceedings had begun, and thus the statements made by respondent to the informant are inadmissible because counsel was not present. The exclusion of respondent’s statements has no relationship whatsoever to the reliability of the evidence, and it rests on a prophylactic application of the Sixth Amendment right to counsel that in my view entirely ignores the doctrinal foundation of that right. The Court’s ruling is based on Massiah v. United States, which held that a postindictment confrontation between the accused and his accomplice, who had turned State’s evidence and was acting under the direction of the Government, was a “critical” stage of the criminal proceedings at which the Sixth Amendment right to counsel attached. While the decision today sets forth the factors that are “important” in determining whether there has been a Massiah violation, I think that Massiah constitutes such a substantial departure from the traditional concerns that underlie the Sixth Amendment guarantee that its language, if not its actual holding, should be re-examined.

* * *

In Kuhlmann v. Wilson, the Court considered police activity that occurred before United States v. Henry was decided but nonetheless might seem—depending on one’s views of the facts—as though it were directed by officers guided by Henry’s holding. Although the facts of the two cases are similar, the Kuhlmann majority found an important distinction that justified the opposite result.

Supreme Court of the United States

R.H. Kuhlmann v. Joseph Allan Wilson

Decided June 26, 1986 – 477 U.S. 436

Justice POWELL announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, IV, and V, and an opinion with respect to Parts II and III in which THE CHIEF JUSTICE, Justice REHNQUIST, and Justice O’CONNOR join.

This case requires us to define the circumstances under which federal courts should entertain a state prisoner’s petition for writ of habeas corpus that raises claims rejected on a prior petition for the same relief.

I

In the early morning of July 4, 1970, respondent and two confederates robbed the Star Taxicab Garage in the Bronx, New York, and fatally shot the night dispatcher. Shortly before, employees of the garage had observed respondent, a former employee there, on the premises conversing with two other men. They also witnessed respondent fleeing after the robbery, carrying loose money in his arms. After eluding the police for four days, respondent turned himself in. Respondent admitted that he had been present when the crimes took place, claimed that he had witnessed the robbery, gave the police a description of the robbers, but denied knowing them. Respondent also denied any involvement in the robbery or murder, claiming that he had fled because he was afraid of being blamed for the crimes.

After his arraignment, respondent was confined in the Bronx House of Detention, where he was placed in a cell with a prisoner named Benny Lee. Unknown to respondent, Lee had agreed to act as a police informant. Respondent made incriminating statements that Lee reported to the police. Prior to trial, respondent moved to suppress the statements on the ground that they were obtained in violation of his right to counsel. The trial court held an evidentiary hearing on the suppression motion, which revealed that the statements were made under the following circumstances.

Before respondent arrived in the jail, Lee had entered into an arrangement with Detective Cullen, according to which Lee agreed to listen to respondent’s conversations and report his remarks to Cullen. Since the police had positive evidence of respondent’s participation, the purpose of placing Lee in the cell was to determine the identities of respondent’s confederates. Cullen instructed Lee not to ask respondent any questions, but simply to “keep his ears open” for the names of the other perpetrators. Respondent first spoke to Lee about the crimes after he looked out the cellblock window at the Star Taxicab Garage, where the crimes had occurred. Respondent said, “someone’s messing with me,” and began talking to Lee about the robbery, narrating the same story that he had given the police at the time of his arrest. Lee advised respondent that this explanation “didn’t sound too good,” but respondent did not alter his story. Over the next few days, however, respondent changed details of his original account. Respondent then received a visit from his brother, who mentioned that members of his family were upset because they believed that respondent had murdered the dispatcher. After the visit, respondent again described the crimes to Lee. Respondent now admitted that he and two other men, whom he never identified, had planned and carried out the robbery, and had murdered the dispatcher. Lee informed Cullen of respondent’s statements and furnished Cullen with notes that he had written surreptitiously while sharing the cell with respondent.

After hearing the testimony of Cullen and Lee, the trial court found that Cullen had instructed Lee “to ask no questions of [respondent] about the crime but merely to listen as to what [respondent] might say in his presence.” The court determined that Lee obeyed these instructions, that he “at no time asked any questions with respect to the crime,” and that he “only listened to [respondent] and made notes regarding what [respondent] had to say.” The trial court also found that respondent’s statements to Lee were “spontaneous” and “unsolicited.” Under state precedent, a defendant’s volunteered statements to a police agent were admissible in evidence because the police were not required to prevent talkative defendants from making incriminating statements. The trial court accordingly denied the suppression motion.

The jury convicted respondent of common-law murder and felonious possession of a weapon. On May 18, 1972, the trial court sentenced him to a term of 20 years to life on the murder count efand to a concurrent term of up to 7 years on the weapons count. The Appellate Division affirmed without opinion, and the New York Court of Appeals denied respondent leave to appeal.

On December 7, 1973, respondent filed a petition for federal habeas corpus relief. Respondent argued, among other things, that his statements to Lee were obtained pursuant to police investigative methods that violated his constitutional rights. After considering Massiah v. United States, the District Court for the Southern District of New York denied the writ on January 7, 1977. The record demonstrated “no interrogation whatsoever” by Lee and “only spontaneous statements” from respondent. In the District Court’s view, these “fact[s] preclude[d] any Sixth Amendment violation.” A divided panel of the Court of Appeals for the Second Circuit affirmed.

Following this Court’s decision in United States v. Henry, respondent decided to relitigate his Sixth Amendment claim. On September 11, 1981, he filed in state trial court a motion to vacate his conviction. The judge denied the motion, on the grounds that Henry was factually distinguishable from this case, and that under state precedent Henry was not to be given retroactive effect. The Appellate Division denied respondent leave to appeal.

On July 6, 1982, respondent returned to the District Court for the Southern District of New York on a habeas petition, again arguing that admission in evidence of his incriminating statements to Lee violated his Sixth Amendment rights. Respondent contended that the decision in Henry constituted a new rule of law that should be applied retroactively to this case. The District Court found it unnecessary to consider retroactivity because it decided that Henry did not undermine the Court of Appeals’ prior disposition of respondent’s Sixth Amendment claim. A different, and again divided, panel of the Court of Appeals reversed.

We granted certiorari to consider the Court of Appeals’ decision that the “ends of justice” required consideration of this successive habeas corpus petition and that court’s application of our decision in Henry to the facts of this case. We now reverse.

II and III

[In Parts II and III, Justice POWELL, joined by THE CHIEF JUSTICE, Justice REHNQUIST, and Justice O’CONNOR wrote “that the Court of Appeals erred in concluding that the ‘ends of justice’ would be served by consideration of respondent’s successive petition. The court conceded that the evidence of respondent’s guilt ‘was nearly overwhelming.’” The constitutional claim argued by respondent does not itself raise any question as to his guilt or innocence. The District Court and the Court of Appeals should have dismissed this successive petition under on the ground that the prior judgment denying relief on this identical claim was final.” Because this portion of the opinion did not receive majority support, the remainder of the opinion addresses the merits of the Massiah claim.]

IV

Even if the Court of Appeals had correctly decided to entertain this successive habeas petition, we conclude that it erred in holding that respondent was entitled to relief under United States v. Henry. As the District Court observed, Henry left open the question whether the Sixth Amendment forbids admission in evidence of an accused’s statements to a jailhouse informant who was “placed in close proximity but [made] no effort to stimulate conversations about the crime charged.” [T]his question must, as the District Court properly decided, be answered negatively.

[T]he primary concern of the Massiah line of decisions is secret interrogation by investigatory techniques that are the equivalent of direct police interrogation. Since “the Sixth Amendment is not violated whenever—by luck or happenstance—the State obtains incriminating statements from the accused after the right to counsel has attached,” a defendant does not make out a violation of that right simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police. Rather, the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.

It is thus apparent that the Court of Appeals erred in concluding that respondent’s right to counsel was violated under the circumstances of this case. Its error did not stem from any disagreement with the District Court over appropriate resolution of the question reserved in Henry, but rather from its implicit conclusion that this case did not present that open question. That conclusion was based on a fundamental mistake, namely, the Court of Appeals’ failure to accord to the state trial court’s factual findings the [appropriate] presumption of correctness.

The state court found that Officer Cullen had instructed Lee only to listen to respondent for the purpose of determining the identities of the other participants in the robbery and murder. The police already had solid evidence of respondent’s participation. The court further found that Lee followed those instructions, that he “at no time asked any questions” of respondent concerning the pending charges, and that he “only listened” to respondent’s “spontaneous” and “unsolicited” statements. The only remark made by Lee that has any support in this record was his comment that respondent’s initial version of his participation in the crimes “didn’t sound too good.” Without holding that any of the state court’s findings were not entitled to the presumption of correctness, the Court of Appeals focused on that one remark and gave a description of Lee’s interaction with respondent that is completely at odds with the facts found by the trial court. In the Court of Appeals’ view, “[s]ubtly and slowly, but surely, Lee’s ongoing verbal intercourse with [respondent] served to exacerbate [respondent’s] already troubled state of mind.” After thus revising some of the trial court’s findings, and ignoring other more relevant findings, the Court of Appeals concluded that the police “deliberately elicited” respondent’s incriminating statements. This conclusion conflicts with the decision of every other state and federal judge who reviewed this record, and is clear error.

V

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

Chief Justice BURGER, concurring.

I agree fully with the Court’s opinion and judgment. This case is clearly distinguishable from United States v. Henry. There is a vast difference between placing an “ear” in the suspect’s cell and placing a voice in the cell to encourage conversation for the “ear” to record.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

The Court holds that the Court of Appeals erred with respect to the merits of respondent’s habeas petition. According to the Court, the Court of Appeals failed to accord [the appropriate] presumption of correctness to the state trial court’s findings that respondent’s cellmate, Lee, “at no time asked any questions” of respondent concerning the pending charges, and that Lee only listened to respondent’s “spontaneous” and “unsolicited” statements. As a result, the Court concludes, the Court of Appeals failed to recognize that this case presents the question, reserved in Henry, whether the Sixth Amendment forbids the admission into evidence of an accused’s statements to a jailhouse informant who was “placed in close proximity but [made] no effort to stimulate conversations about the crime charged.” I disagree with the Court’s characterization of the Court of Appeals’ treatment of the state court’s findings and, consequently, I disagree with the Court that the instant case presents the “listening post” question.

In Henry, we found that the Federal Government had “deliberately elicited” incriminating statements from Henry based on the following circumstances. In the instant case, as in Henry, the accused was incarcerated and therefore was “susceptible to the ploys of undercover Government agents.” Like Nichols, Lee was a secret informant, usually received consideration for the services he rendered the police, and therefore had an incentive to produce the information which he knew the police hoped to obtain. Just as Nichols had done, Lee obeyed instructions not to question respondent and to report to the police any statements made by the respondent in Lee’s presence about the crime in question. And, like Nichols, Lee encouraged respondent to talk about his crime by conversing with him on the subject over the course of several days and by telling respondent that his exculpatory story would not convince anyone without more work. However, unlike the situation in Henry, a disturbing visit from respondent’s brother, rather than a conversation with the informant, seems to have been the immediate catalyst for respondent’s confession to Lee. While it might appear from this sequence of events that Lee’s comment regarding respondent’s story and his general willingness to converse with respondent about the crime were not the immediate causes of respondent’s admission, I think that the deliberate-elicitation standard requires consideration of the entire course of government behavior.

The State intentionally created a situation in which it was foreseeable that respondent would make incriminating statements without the assistance of counsel—it assigned respondent to a cell overlooking the scene of the crime and designated a secret informant to be respondent’s cellmate. The informant, while avoiding direct questions, nonetheless developed a relationship of cellmate camaraderie with respondent and encouraged him to talk about his crime. While the coup de grace was delivered by respondent’s brother, the groundwork for respondent’s confession was laid by the State. Clearly the State’s actions had a sufficient nexus with respondent’s admission of guilt to constitute deliberate elicitation within the meaning of Henry. I would affirm the judgment of the Court of Appeals.

Notes, Comments, and Questions

Together, Kuhlmann and Henry provide useful guidance to law enforcement officers wondering how they may secretly obtain information from a suspect whose right to counsel has attached. The facts of Henry constitute deliberate elicitation and accordingly a Sixth Amendment violation. By contrast, the informant in Kuhlmann acted more like a listening post and was just careful enough to honor the rule of Massiah. One can imagine the difficulty in determining exactly how active the undercover agent was in eliciting a confession, should this later be disputed at a hearing. The careful reader will note that the rules are different under Miranda prior to the attachment of the right to counsel.

Waiver of Rights under the Assistance of Counsel Clause

In Michigan v. Jackson, 475 U.S. 625 (1986), the Court set forth a rule governing waiver of rights under the Sixth Amendment’s Assistance of Counsel Clause similar to that established under the Miranda Rule. The Jackson Court recalled that in Edwards v. Arizona (Chapter 27), the Court had “rejected the notion that, after a suspect’s request for counsel, advice of rights and acquiescence in police-initiated questioning could establish a valid waiver.”

Turning to the Assistance of Counsel Clause case before it, the Court held: “We find no warrant for a different view under a Sixth Amendment analysis. Indeed, our rejection of the comparable argument in Edwards was based, in part, on our review of earlier Sixth Amendment cases. Just as written waivers are insufficient to justify police-initiated interrogations after the request for counsel in a Fifth Amendment analysis, so too they are insufficient to justify police-initiated interrogations after the request for counsel in a Sixth Amendment analysis.”

Two decades later, the Court considered whether Michigan v. Jackson should remain good law or should instead be altered—or overruled entirely.

Supreme Court of the United States

Jesse Jay Montejo v. Louisiana

Decided May 26, 2009 – 556 U.S. 778

Justice SCALIA delivered the opinion of the Court.

We consider in this case the scope and continued viability of the rule announced by this Court in Michigan v. Jackson, forbidding police to initiate interrogation of a criminal defendant once he has requested counsel at an arraignment or similar proceeding.

I

Petitioner Jesse Montejo was arrested on September 6, 2002, in connection with the robbery and murder of Lewis Ferrari, who had been found dead in his own home one day earlier. Suspicion quickly focused on Jerry Moore, a disgruntled former employee of Ferrari’s dry cleaning business. Police sought to question Montejo, who was a known associate of Moore.

Montejo waived his rights under Miranda v. Arizona and was interrogated at the sheriff’s office by police detectives through the late afternoon and evening of September 6 and the early morning of September 7. During the interrogation, Montejo repeatedly changed his account of the crime, at first claiming that he had only driven Moore to the victim’s home, and ultimately admitting that he had shot and killed Ferrari in the course of a botched burglary. These police interrogations were videotaped.

On September 10, Montejo was brought before a judge for what is known in Louisiana as a “72-hour hearing”—a preliminary hearing required under state law. Although the proceedings were not transcribed, the minute record indicates what transpired: “The defendant being charged with First Degree Murder, Court ordered N[o] Bond set in this matter. Further, Court ordered the Office of Indigent Defender be appointed to represent the defendant.”

Later that same day, two police detectives visited Montejo back at the prison and requested that he accompany them on an excursion to locate the murder weapon (which Montejo had earlier indicated he had thrown into a lake). After some back-and-forth, the substance of which remains in dispute, Montejo was again read his Miranda rights and agreed to go along; during the excursion, he wrote an inculpatory letter of apology to the victim’s widow. Only upon their return did Montejo finally meet his court-appointed attorney, who was quite upset that the detectives had interrogated his client in his absence.

At trial, the letter of apology was admitted over defense objection. The jury convicted Montejo of first-degree murder, and he was sentenced to death.

The Louisiana Supreme Court affirmed the conviction and sentence. As relevant here, the court rejected Montejo’s argument that under the rule of Jackson, the letter should have been suppressed. Jackson held that “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” We granted certiorari.

II

Montejo and his amici raise a number of pragmatic objections to the Louisiana Supreme Court’s interpretation of Jackson. We agree that the approach taken below would lead either to an unworkable standard, or to arbitrary and anomalous distinctions between defendants in different States. Neither would be acceptable.

Under the rule adopted by the Louisiana Supreme Court, a criminal defendant must request counsel, or otherwise “assert” his Sixth Amendment right at the preliminary hearing, before the Jackson protections are triggered. If he does so, the police may not initiate further interrogation in the absence of counsel. But if the court on its own appoints counsel, with the defendant taking no affirmative action to invoke his right to counsel, then police are free to initiate further interrogations provided that they first obtain an otherwise valid waiver by the defendant of his right to have counsel present.

This rule would apply well enough in States that require the indigent defendant formally to request counsel before any appointment is made, which usually occurs after the court has informed him that he will receive counsel if he asks for it. That is how the system works in Michigan, for example, whose scheme produced the factual background for this Court’s decision in Michigan v. Jackson. Jackson, like all other represented indigent defendants in the State, had requested counsel in accordance with the applicable state law.

But many States follow other practices. In some two dozen, the appointment of counsel is automatic upon a finding of indigency; and in a number of others, appointment can be made either upon the defendant’s request or sua sponte by the court. Nothing in our Jackson opinion indicates whether we were then aware that not all States require that a defendant affirmatively request counsel before one is appointed; and of course we had no occasion there to decide how the rule we announced would apply to these other States.

The Louisiana Supreme Court’s answer to that unresolved question is troublesome. The central distinction it draws—between defendants who “assert” their right to counsel and those who do not—is exceedingly hazy when applied to States that appoint counsel absent request from the defendant. How to categorize a defendant who merely asks, prior to appointment, whether he will be appointed counsel? Or who inquires, after the fact, whether he has been? What treatment for one who thanks the court after the appointment is made? And if the court asks a defendant whether he would object to appointment, will a quick shake of his head count as an assertion of his right?

To the extent that the Louisiana Supreme Court’s rule also permits a defendant to trigger Jackson through the “acceptance” of counsel, that notion is even more mysterious: How does one affirmatively accept counsel appointed by court order? An indigent defendant has no right to choose his counsel so it is hard to imagine what his “acceptance” would look like, beyond the passive silence that Montejo exhibited.

III

But if the Louisiana Supreme Court’s application of Jackson is unsound as a practical matter, then Montejo’s solution is untenable as a theoretical and doctrinal matter. Under his approach, once a defendant is represented by counsel, police may not initiate any further interrogation. Such a rule would be entirely untethered from the original rationale of Jackson.

A

It is worth emphasizing first what is not in dispute or at stake here. Under our precedents, once the adversary judicial process has been initiated, the Sixth Amendment guarantees a defendant the right to have counsel present at all “critical” stages of the criminal proceedings. Interrogation by the State is such a stage.

Our precedents also place beyond doubt that the Sixth Amendment right to counsel may be waived by a defendant, so long as relinquishment of the right is voluntary, knowing, and intelligent. The defendant may waive the right whether or not he is already represented by counsel; the decision to waive need not itself be counseled. And when a defendant is read his Miranda rights (which include the right to have counsel present during interrogation) and agrees to waive those rights, that typically does the trick, even though the Miranda rights purportedly have their source in the Fifth Amendment.

The only question raised by this case, and the only one addressed by the Jackson rule, is whether courts must presume that such a waiver is invalid under certain circumstances. We created such a presumption in Jackson by analogy to a similar prophylactic rule established to protect the Fifth Amendment-based Miranda right to have counsel present at any custodial interrogation. Edwards v. Arizona decided that once “an accused has invoked his right to have counsel present during custodial interrogation … [he] is not subject to further interrogation by the authorities until counsel has been made available,” unless he initiates the contact.

The Edwards rule is “designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.” It does this by presuming his postassertion statements to be involuntary, “even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards.” This prophylactic rule thus “protect[s] a suspect’s voluntary choice not to speak outside his lawyer’s presence.”

Jackson represented a “wholesale importation of the Edwards rule into the Sixth Amendment.” The Jackson Court decided that a request for counsel at an arraignment should be treated as an invocation of the Sixth Amendment right to counsel “at every critical stage of the prosecution,” despite doubt that defendants “actually inten[d] their request for counsel to encompass representation during any further questioning” because doubts must be “resolved in favor of protecting the constitutional claim.” Citing Edwards, the Court held that any subsequent waiver would thus be “insufficient to justify police-initiated interrogation.” In other words, we presume such waivers involuntary “based on the supposition that suspects who assert their right to counsel are unlikely to waive that right voluntarily” in subsequent interactions with police.

B

With this understanding of what Jackson stands for and whence it came, it should be clear that Montejo’s interpretation of that decision—that no represented defendant can ever be approached by the State and asked to consent to interrogation—is off the mark. When a court appoints counsel for an indigent defendant in the absence of any request on his part, there is no basis for a presumption that any subsequent waiver of the right to counsel will be involuntary. There is no “initial election” to exercise the right that must be preserved through a prophylactic rule against later waivers. No reason exists to assume that a defendant like Montejo, who has done nothing at all to express his intentions with respect to his Sixth Amendment rights, would not be perfectly amenable to speaking with the police without having counsel present. And no reason exists to prohibit the police from inquiring. Edwards and Jackson are meant to prevent police from badgering defendants into changing their minds about their rights, but a defendant who never asked for counsel has not yet made up his mind in the first instance.

In practice, Montejo’s rule would prevent police-initiated interrogation entirely once the Sixth Amendment right attaches, at least in those States that appoint counsel promptly without request from the defendant.

IV

So on the one hand, requiring an initial “invocation” of the right to counsel in order to trigger the Jackson presumption is consistent with the theory of that decision, but (as Montejo and his amici argue) would be unworkable in more than half the States of the Union. On the other hand, eliminating the invocation requirement would render the rule easy to apply but depart fundamentally from the Jackson rationale.

We do not think that stare decisis requires us to expand significantly the holding of a prior decision—fundamentally revising its theoretical basis in the process—in order to cure its practical deficiencies. To the contrary, the fact that a decision has proved “unworkable” is a traditional ground for overruling it.

Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned. The first two cut in favor of abandoning Jackson: The opinion is only two decades old, and eliminating it would not upset expectations.

Which brings us to the strength of Jackson’s reasoning. When this Court creates a prophylactic rule in order to protect a constitutional right, the relevant “reasoning” is the weighing of the rule’s benefits against its costs. “The value of any prophylactic rule … must be assessed not only on the basis of what is gained, but also on the basis of what is lost.” We think that the marginal benefits of Jackson (viz., the number of confessions obtained coercively that are suppressed by its bright-line rule and would otherwise have been admitted) are dwarfed by its substantial costs (viz., hindering “society’s compelling interest in finding, convicting, and punishing those who violate the law”).

What does the Jackson rule actually achieve by way of preventing unconstitutional conduct? Recall that the purpose of the rule is to preclude the State from badgering defendants into waiving their previously asserted rights. The effect of this badgering might be to coerce a waiver, which would render the subsequent interrogation a violation of the Sixth Amendment. Even though involuntary waivers are invalid even apart from Jackson, mistakes are of course possible when courts conduct case-by-case voluntariness review. A bright-line rule like that adopted in Jackson ensures that no fruits of interrogations made possible by badgering-induced involuntary waivers are ever erroneously admitted at trial.

But without Jackson, how many would be? The answer is few if any. The principal reason is that the Court has already taken substantial other, overlapping measures toward the same end. Under Miranda’s prophylactic protection of the right against compelled self-incrimination, any suspect subject to custodial interrogation has the right to have a lawyer present if he so requests, and to be advised of that right. Under Edwards’ prophylactic protection of the Miranda right, once such a defendant “has invoked his right to have counsel present,” interrogation must stop. And under Minnick’s prophylactic protection of the Edwards right, no subsequent interrogation may take place until counsel is present, “whether or not the accused has consulted with his attorney.”

These three layers of prophylaxis are sufficient. Under the Miranda-Edwards-Minnick line of cases (which is not in doubt), a defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given the Miranda warnings. At that point, not only must the immediate contact end, but “badgering” by later requests is prohibited. If that regime suffices to protect the integrity of “a suspect’s voluntary choice not to speak outside his lawyer’s presence” before his arraignment, it is hard to see why it would not also suffice to protect that same choice after arraignment, when Sixth Amendment rights have attached. And if so, then Jackson is simply superfluous.

It is true, as Montejo points out in his supplemental brief, that the doctrine established by Miranda and Edwards is designed to protect Fifth Amendment, not Sixth Amendment, rights. But that is irrelevant. What matters is that these cases, like Jackson, protect the right to have counsel during custodial interrogation—which right happens to be guaranteed (once the adversary judicial process has begun) by two sources of law. Since the right under both sources is waived using the same procedure, doctrines ensuring voluntariness of the Fifth Amendment waiver simultaneously ensure the voluntariness of the Sixth Amendment waiver.

Montejo also correctly observes that the Miranda-Edwards regime is narrower than Jackson in one respect: The former applies only in the context of custodial interrogation. If the defendant is not in custody then those decisions do not apply; nor do they govern other, noninterrogative types of interactions between the defendant and the State (like pretrial lineups). However, those uncovered situations are the least likely to pose a risk of coerced waivers. When a defendant is not in custody, he is in control, and need only shut his door or walk away to avoid police badgering. And noninterrogative interactions with the State do not involve the “inherently compelling pressures” that one might reasonably fear could lead to involuntary waivers.

Jackson was policy driven, and if that policy is being adequately served through other means, there is no reason to retain its rule. Miranda and the cases that elaborate upon it already guarantee not simply noncoercion in the traditional sense, but what Justice Harlan referred to as “voluntariness with a vengeance.” There is no need to take Jackson’s further step of requiring voluntariness on stilts.

On the other side of the equation are the costs of adding the bright-line Jackson rule on top of Edwards and other extant protections. The principal cost of applying any exclusionary rule “is, of course, letting guilty and possibly dangerous criminals go free ….” Jackson not only “operates to invalidate a confession given by the free choice of suspects who have received proper advice of their Miranda rights but waived them nonetheless,” but also deters law enforcement officers from even trying to obtain voluntary confessions. The “ready ability to obtain uncoerced confessions is not an evil but an unmitigated good.” Without these confessions, crimes go unsolved and criminals unpunished. These are not negligible costs, and in our view the Jackson Court gave them too short shrift.

In sum, when the marginal benefits of the Jackson rule are weighed against its substantial costs to the truth-seeking process and the criminal justice system, we readily conclude that the rule does not “pay its way.” Michigan v. Jackson should be and now is overruled.

V

Although our holding means that the Louisiana Supreme Court correctly rejected Montejo’s claim under Jackson, we think that Montejo should be given an opportunity to contend that his letter of apology should still have been suppressed under the rule of Edwards. If Montejo made a clear assertion of the right to counsel when the officers approached him about accompanying them on the excursion for the murder weapon, then no interrogation should have taken place unless Montejo initiated it. Even if Montejo subsequently agreed to waive his rights, that waiver would have been invalid had it followed an “unequivocal election of the right.”

Montejo understandably did not pursue an Edwards objection, because Jackson served as the Sixth Amendment analogy to Edwards and offered broader protections. Our decision today, overruling Jackson, changes the legal landscape and does so in part based on the protections already provided by Edwards. Thus we think that a remand is appropriate so that Montejo can pursue this alternative avenue for relief. Montejo may also seek on remand to press any claim he might have that his Sixth Amendment waiver was not knowing and voluntary, e.g., his argument that the waiver was invalid because it was based on misrepresentations by police as to whether he had been appointed a lawyer. These matters have heightened importance in light of our opinion today.

We do not venture to resolve these issues ourselves, not only because we are a court of final review, “not of first view,” but also because the relevant facts remain unclear. Montejo and the police gave inconsistent testimony about exactly what took place on the afternoon of September 10, 2002, and the Louisiana Supreme Court did not make an explicit credibility determination. Moreover, Montejo’s testimony came not at the suppression hearing, but rather only at trial, and we are unsure whether under state law that testimony came too late to affect the propriety of the admission of the evidence. These matters are best left for resolution on remand.

This case is an exemplar of Justice Jackson’s oft quoted warning that this Court “is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.” We today remove Michigan v. Jackson’s fourth story of prophylaxis.

The judgment of the Louisiana Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

Justice STEVENS, with whom Justice SOUTER and Justice GINSBURG join, and with whom Justice BREYER joins [except for a footnote not included in this book], dissenting.

Even if Jackson had never been decided, it would be clear that Montejo’s Sixth Amendment rights were violated. Today’s decision eliminates the rule that “any waiver of Sixth Amendment rights given in a discussion initiated by police is presumed invalid” once a defendant has invoked his right to counsel. Nevertheless, under the undisputed facts of this case, there is no sound basis for concluding that Montejo made a knowing and valid waiver of his Sixth Amendment right to counsel before acquiescing in police interrogation following his 72-hour hearing. Because police questioned Montejo without notice to, and outside the presence of, his lawyer, the interrogation violated Montejo’s right to counsel even under pre-Jackson precedent.

Our pre-Jackson case law makes clear that “the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused’s right to have counsel present in a confrontation between the accused and a state agent.” The Sixth Amendment entitles indicted defendants to have counsel notified of and present during critical confrontations with the State throughout the pretrial process. Given the realities of modern criminal prosecution, the critical proceedings at which counsel’s assistance is required more and more often occur outside the courtroom in pretrial proceedings “where the results might well settle the accused’s fate and reduce the trial itself to a mere formality.”

The Court avoids confronting the serious Sixth Amendment concerns raised by the police interrogation in this case by assuming that Montejo validly waived his Sixth Amendment rights before submitting to interrogation. It does so by summarily concluding that “doctrines ensuring voluntariness of the Fifth Amendment waiver simultaneously ensure the voluntariness of the Sixth Amendment waiver”; thus, because Montejo was given Miranda warnings prior to interrogation, his waiver was presumptively valid. Ironically, while the Court faults Jackson for blurring the line between this Court’s Fifth and Sixth Amendment jurisprudence, it commits the same error by assuming that the Miranda warnings given in this case, designed purely to safeguard the Fifth Amendment right against self-incrimination, were somehow adequate to protect Montejo’s more robust Sixth Amendment right to counsel.

A defendant’s decision to forgo counsel’s assistance and speak openly with police is a momentous one. Given the high stakes of making such a choice and the potential value of counsel’s advice and mediation at that critical stage of the criminal proceedings, it is imperative that a defendant possess “a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it” before his waiver is deemed valid. Because the administration of Miranda warnings was insufficient to ensure Montejo understood the Sixth Amendment right he was being asked to surrender, the record in this case provides no basis for concluding that Montejo validly waived his right to counsel, even in the absence of Jackson’s enhanced protections.

The Court’s decision to overrule Jackson is unwarranted. Not only does it rest on a flawed doctrinal premise, but the dubious benefits it hopes to achieve are far outweighed by the damage it does to the rule of law and the integrity of the Sixth Amendment right to counsel. Moreover, even apart from the protections afforded by Jackson, the police interrogation in this case violated Jesse Montejo’s Sixth Amendment right to counsel. I respectfully dissent.

Notes, Comments, and Questions

The different results in Montejo and Edwards illustrate that different rules apply depending on who is in custody. Montejo overruled Michigan v. Jackson—which governed Sixth Amendment waivers—but did not overrule Edwards v. Arizona—which still governs Miranda Rule waivers after a suspect invokes the right to counsel. Accordingly, if a suspect who has been indicted invokes his right to counsel during custodial interrogation, police must cease the interrogation and cannot return later to seek a waiver outside the presence of counsel. If that suspect is released, however, Miranda will no longer apply because the suspect is not “in custody.” Under Montejo, police would be free to visit the suspect at home in hope of obtaining a valid waiver.

Students should note that Montejo did not overrule any of the Sixth Amendment cases concerning informants whom suspects do not realize are working for police, such as Massiah, Henry, and Kuhlmann. Once the Sixth Amendment right to counsel attaches, defendants are entitled to counsel during interrogation, and an undercover agent cannot obtain a valid waiver.

This chapter concludes our unit on interrogation. In our next chapter, we begin our examination of the exclusionary rule, by which the Court prevents prosecutors from using certain unlawfully-obtained evidence against criminal defendants.

Before turning to the next chapter, students may wish to review their knowledge of interrogations with a flowchart exercise, which begins on the next page.

Interrogation Flowchart Exercise

Flowcharts can help students visualize what they have learned. The goal is not to memorize the example chart presented here but instead to create a new chart that helps one to connect material from throughout the book. Your authors recommend that when students make their own charts, they add additional detail, such as case names or chapter numbers. For example, in the box asking whether a statement was “voluntary,” a student might refer to cases from Chapter 22, such as Brown v. Mississippi, and especially Arizona v. Fulminante, which is a particularly helpful case because its facts are so close to the line separating a voluntary confession from an inadmissible, involuntary confession.

This chart focuses on the Miranda Rule. A separate chart might depict Sixth Amendment law set forth in Massiah and related cases.

These charts have two primary purposes. One is that when the charts are finished, they can serve as study aids. The other is that the creation of the charts—even if students never review them after finishing them—forces students to consider material more carefully than they otherwise might, which helps with learning and with retention of information. Also, fellow students can help spot misunderstandings that, were they not in a chart, would remain uncorrected. Study group members might wish to bring charts to share with classmates.

Interrogation Review

The Fifth and Sixth Amendments: Constitutional Regulation of Interrogation

Before moving to the next chapter, students may wish to review what we have learned about how police interrogation practices are regulated by constitutional law.

Instructions: For each problem, indicate which if any doctrines likely prohibit the conduct described. The answer choices are: (1) Miranda Rule, (2) Massiah doctrine, (3) voluntariness requirement, (4) multiple doctrines (indicate which ones), and (5) none (i.e., the suspect has no good arguments based on interrogation law presented so far in this book). Jot down your reasoning briefly. If you are not sure, note why.

Each problem is independent of all other ones.

1) Police suspect someone of dealing drugs but lack good evidence. Officers hide a microphone in the pocket of an undercover agent disguised as a drug buyer. The suspect welcomes the undercover agent into the suspect’s home. However, when the undercover agent asks about drugs, the suspect says, “You must be confused. I don’t have anything to do with drugs.” Frustrated, the agent brandishes a pistol and shouts, “Tell me the truth or I’ll shoot.” The suspect says, “Fine, fine. I sell weed. How much do you need?”

2) A suspect has been indicted for tax evasion. Unable to make bail, the suspect returns to jail. Police plant an undercover agent in the suspect’s cell, disguised as a fellow inmate. The agent asks the suspect about tax evasion and learns important details about the suspect’s crimes.

3) A suspect has been indicted for embezzlement. Released on bail, the suspect goes home. Police send an undercover agent to the suspect’s home. (The agent is a co-conspirator who, without the suspect’s knowledge, has decided to cooperate with prosecutors.) The agent records the suspect describing the embezzlement scheme.

4) A suspect has been indicted for cocaine distribution. Released on bail, the suspect goes to a favorite public park and begins calling friends, sharing the good news about the bail hearing. Police have hidden a microphone on the underside of the suspect’s favorite park bench. Using that device, police overhear the suspect tell friends about continuing illegal activity.

5) A suspect is arrested for robbery. While driving the suspect to the police station, officers converse with one another. One officer says, “Can you believe this guy? I can’t believe I’m stuck in a car with someone who robbed a gas station mini mart, a boy scout troop, and a church. What a piece of human garbage!” Impulsively, the suspect responds, “Listen, I’m not perfect, but I definitely didn’t rob any boy scouts.”