§ 25.01 Massiah v. United States

• Jurisdiction: North Carolina

§ 25.01 Massiah v. United States²

[A] Historical Overview

When the Supreme Court announced its holding in Massiah v. United States,³ it took "a giant step in a wholly new direction"⁴ in police interrogation law. Massiah brought the Sixth Amendment guarantee of the assistance of counsel "out of the courtroom, . . . [and] into new precincts."⁵ The Court held for the first time that the Constitution is violated when government agents, in the absence of defense counsel, deliberately elicit incriminating information from a person against whom adversary judicial criminal proceedings have commenced.

Miranda v. Arizona,⁶ decided two years after Massiah, temporarily eclipsed the latter case. Massiah moved out from behind Miranda's shadows in 1977, however, when the Court applied the Sixth Amendment in exceptionally controversial circumstances in Brewer v. Williams.⁷ Indeed, after Williams, Massiah "had the audacity to expand"⁸ in an era of rare criminal defense successes in the Supreme Court. Although expansion of Massiah has ended — indeed, in later years the Court cut back on its potential reach⁹ — it remains the leading case in the field.

[B] Massiah: The Opinion

The federal government indicted M for violating federal narcotics laws. M retained a lawyer, pleaded not guilty, and was released from custody on bail. In the meantime, C, who was charged in the same indictment, agreed to cooperate with the government in its continuing investigation of M. C permitted federal agents to install a listening device in his car so that they could listen while M (unaware of C's new informant status) had lengthy conversations with him. During the intercepted conversations, which occurred in the absence of M's counsel, M made incriminating statements that were introduced at his trial over his objection.

M argued that admission at trial of the statements he made in C's car violated various constitutional rights, including his Sixth Amendment right to counsel. The Supreme Court, per Justice Stewart, agreed with M's right-to-counsel claim.

The majority opinion in Massiah was short and the holding narrow. According to Justice Stewart, the Sixth Amendment was violated "when there was used against [M] 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."

Justice Stewart reasoned that the Sixth Amendment applied in M's circumstances because the period after a suspect is formally charged with an offense and before trial is "the most critical period of the proceedings." It is during this time that "consultation, thoroughgoing investigation and preparation [are] vitally important."¹⁰ Therefore, to deny an accused counsel during this period would deny her "effective representation by counsel at the only stage when legal aid and advice would help." Most especially, for the right of counsel to be effective, the Court observed that it had to apply to the surreptitious conduct that occurred here: M was "more seriously imposed upon" than in a traditional encounter, because he was unaware that he was "under interrogation by a government agent."

The Solicitor General in Massiah argued "strenuously . . . that the federal law enforcement agents had the right, if not indeed the duty, to continue their investigation of [M] and his alleged criminal associates even though [M] had been indicted." Indeed, the government had reason to believe that M was part of a large, well-organized drug ring. The Court accepted "and, at least for present purposes, completely approve[d] all that this argument implies." It agreed that it was "entirely proper" for the agents to continue their post-indictment investigation of M. It stressed that "[a]ll 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."¹¹

[C] Making Sense of Massiah: The Sixth Amendment Role of Counsel¹²

The practical effect of the Massiah rule is that, in the instance of surreptitious deliberate elicitation of incriminating statements made after adversary criminal proceedings have commenced against an accused, "the government either [must] reveal its presence [to the accused] and afford the opportunity to consult with counsel," — and thus effectively undermine the undercover investigation — "or . . . suffer [at her trial] the exclusion of the product of its adversarial encounter with the accused."¹³

Can such a rule be defended? In his dissent, Justice Byron White criticized the majority because it barred the use by the government of "relevant, reliable, and highly probative evidence" obtained in a non-coercive environment. As a result of this case, he said, "the Constitution furnishes an important measure of protection against faithless compatriots and guarantees sporting treatment for sporting peddlers of narcotics." Justice White predicted that the effect of the Massiah rule would be that fewer confessed criminals would come forward to assist the government in its criminal investigations. Subsequently, Justice Rehnquist stated that Massiah's "doctrinal underpinnings . . . have...