Massiah v. United States

377 U.S. 201 (1964), argued 3 Mar. 1964, decided 18 May 1964 by vote of 6 to 3; Stewart for the Court, White in dissent. Massiah was decided at a time when the Warren Court's “revolution in American criminal procedure” was accelerating. According to Massiah, after the initiation of adversary judicial proceedings (by indictment, as in Massiah's case, or by information, preliminary hearing or arraignment), the Sixth Amendment guarantees a defendant the right to rely on counsel as the “medium” between himself and the government. Thus, once adversary proceedings have begun, the government cannot bypass the defendant's lawyer and deliberately elicit statements from the defendant himself.

The Burger Court revived and even expanded the Massiah doctrine in Brewer v. Williams (1977) and United States v. Henry (1980). As a result, the doctrine has become a more potent force than it had ever been during the Warren Court years.

After he had been indicted for federal narcotics violations, Winston Massiah retained a lawyer, pled not guilty, and was released on bail. Jesse Colson, a codefendant who had also pled not guilty and been released on bail, invited Massiah to discuss the pending case in Colson's car. Unknown to Massiah, his codefendant had become a government agent and had hidden a radio transmitter in his car. The Massiah‐Colson conversation was broadcast to a nearby federal agent. As expected, Massiah made several incriminating statements.

The Massiah facts are a far cry from a typical confession case. Massiah was neither in “custody” nor subjected to “police interrogation” as that term is normally used. Indeed, Massiah thought he was simply talking to a friend and a partner in crime. Nevertheless, a 6‐to‐3 majority held that the defendant's statements could not be used against him at his trial. The decisive feature of the case was that after adversary proceedings had commenced against the defendant, and therefore at a time when he was entitled to a lawyer's help, the government had deliberately set out to elicit incriminating statements from him in the absence of counsel. This constituted a violation of the defendant's Sixth Amendment right to counsel (see Counsel, Right to).

The government argued that there was reason to think that Massiah was part of a large, well‐organized drug ring and that therefore it was entirely proper for federal agents to continue their investigation of him and his alleged confederates even though he had already been indicted. The Supreme Court responded that, even though the police were justified in investigating other crimes when they obtained Massiah's statements, the defendant's own incriminating statements pertaining to charges pending against him could not be used at the trial of those charges. On the other hand, evidence pertaining to new crimes as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained would be admissible even though other charges against the defendant were pending at the time. This approach was reaffirmed in Maine v. Moulton (1985).

Although overshadowed by, and often confused with Miranda v. Arizona (1966), the Massiah doctrine is a separate and distinct rule, and it supplements Miranda in important respects. Miranda is based on the privilege against compelled self‐incrimination and the now‐familiar Miranda warnings are required when a suspect is subjected to custodial police interrogation, which the Warren Court deemed inherently coercive. Massiah is based on the right to counsel. Its application turns not on the conditions surrounding police questioning, but on whether, at the time the government attempts to elicit incriminating statements from an individual, the criminal proceedings against that individual have reached the point at which the Sixth Amendment right to counsel attaches.

The difference between Massiah and Miranda is underscored by the “jail plant” situation, the case where a secret government agent is placed in the same cell with a person and instructed to induce him to implicate himself in the crime for which he has been incarcerated. Miranda does not apply, for the inherent coercion generated by custodial police interrogation is not present when a prisoner speaks freely to a person he believes to be a fellow inmate. Coercion is determined from the perspective of the suspect. Therefore, unless a person realizes he is dealing with a government agent, the government's efforts to elicit damaging admissions from him do not constitute “police interrogation” within the meaning of Miranda.

However, the Massiah doctrine would prohibit the government from using such tactics if adversary proceedings had already been initiated against the person, as the Court held in United States v. Henry (1980). But the secret government agent was not completely passive in that case; he stimulated conversations about the crime charged. The Court, however, has permitted the government to place a completely “passive listener” in a person's cell and use the statements acquired by such an agent even though adversary proceedings have commenced against the person. The line between “active” and “passive” agents—between eliciting incriminating statements and merely listening—is an exceedingly difficult one to draw.

See also Coerced Confessions; Due Process, Procedural.

Bibliography

• Yale Kamisar, Police Interrogation and Confessions (1980).
• Welsh White, Interrogation without Questions: Rhode Island v. Innis and United States v. Henry, Michigan Law Review 78 (August 1980): 1209–1251

— Yale Kamisar

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

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

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

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

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

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

See: criminal law; criminal procedure.