§ 25.02 The Sixth Amendment (Massiah) Right to Counsel: Summary

• Jurisdiction: North Carolina

§ 25.02 The Sixth Amendment (Massiah) Right to Counsel: Summary

The Sixth Amendment right to counsel has evolved since the Court announced its cautious holding in Massiah v. United States.³² The right to counsel now applies not only to the conduct of federal agents, as in Massiah, but also in state prosecutions, through the Fourteenth Amendment Due Process Clause.³³ Although the Court in Massiah treated the surreptitious nature of the police conduct in that case as an aggravating circumstance, it is now clear that the Sixth Amendment applies as well to non-surreptitious efforts to elicit incriminating statements.

The Supreme Court's interpretation of the Sixth Amendment right to counsel, although not yet as complicated as the rules relating to Miranda v. Arizona,³⁴ requires an understanding of various principles summarized here, and considered in detail in the chapter sections that follow.

First, "[t]he Sixth Amendment right to counsel is personal to the defendant. . . ."³⁵This means, obviously, that the right belongs to the accused person and not to her lawyer. More significantly, this demonstrates that, although the Supreme Court has never had occasion to so rule, there is no serious doubt that a Sixth Amendment right-to-counsel claim may only be raised in a criminal trial by the person whose counsel right was infringed, i.e., only she has standing to challenge the government's conduct. This assumption is well supported by the Court's language in Massiah, in which it stated that the Sixth Amendment is violated when the accused's own incriminating statement is "used by the prosecution as evidence against him" — the Court's own emphasis — "at his trial."

Second, the Sixth Amendment right to counsel only applies if adversary judicial criminal proceedings have commenced against the accused.³⁶ According to the Court, "the possibility that [an] encounter [between the government and an individual] may have important consequences at trial, standing alone, is insufficient to trigger the Sixth Amendment right to counsel."³⁷

Third, the right to counsel announced in Massiah is not violated by the mere fact that government agents — police officers or prosecutors — have contact with a person accused of a crime in the absence of counsel. It is only when the agent "deliberately elicits" incriminating statements from the accused that the Sixth Amendment is potentially violated.

Fourth, as the Supreme Court has expressed it, the Sixth Amendment right to counsel is...