§ 25.07 SCOPE OF THE SIXTH AMENDMENT EXCLUSIONARY RULE

• Jurisdiction: North Carolina

§ 25.07. Scope of the Sixth Amendment Exclusionary Rule¹¹⁶

As already noted,¹¹⁷ it is presumed that a person must have personal standing to raise a Sixth Amendment right-to-counsel claim. The following discussion, therefore, assumes that a defendant has the requisite standing.

[A] Right or Remedy?

It is sometimes necessary to distinguish between a constitutional right and the remedy for violation of the right. Thus, with the Fourth Amendment, the exclusionary rule is now treated as a judicially created remedy for a violation of the constitutional right to be free from unreasonable searches and seizures; it is not a constitutional right of its own.¹¹⁸ As such—as a judicially created remedy—the Supreme Court may narrow the Fourth Amendment exclusionary rule, or even permit its abolition if a suitable alternative remedy is recognized. With the Due Process Clause and the Self-Incrimination Clause, however, exclusion at trial of the involuntarily obtained, or compelled, testimony is either a core, or the core, constitutional right itself.¹¹⁹ These exclusionary rules cannot be judicially abolished.

What about the Sixth Amendment right to counsel? For a long time what the Court had to say on the subject was inconsistent. In Massiah v. United States,¹²⁰ Justice Stewart stated that the accused, "was denied the basic protections of that [Sixth Amendment] guarantee when there was used against him at his trial evidence of his own incriminating words." The implication here is that the Sixth Amendment right to counsel is violated when the uncounseled statement is used at trial, and perhaps not before. In contrast, in Maine v Moulton,¹²¹ the justices stated that "[t]he Sixth Amendment protects the right of the accused not to be confronted by an agent of the State. . . . This right [is] violated as soon as the State's agent engage[s] [D] in conversation about the charges pending against him." According to this reading, therefore, the Sixth Amendment is violated at the moment of deliberate elicitation.

In Kansas v. Ventris,¹²² the Supreme Court, per Justice Scalia, resolved the issue:

[W] e conclude that the Massiah right is a right to be free of uncounseled interrogation, and is infringed at the time of the interrogation. That, we think, is when the "Assistance of Counsel" is denied. [¶] . . . A defendant is not denied counsel merely because the prosecution has been permitted to introduce evidence of guilt—even evidence so overwhelming that the attorney's job of gaining an acquittal is rendered impossible. In such circumstances the accused continues to enjoy the assistance of counsel; the assistance is simply not worth much. The assistance of counsel has been denied, however, at the prior critical stage which produced the inculpatory evidence. . . . It is that deprivation which demands a remedy.¹²³

One implication of this analysis is that a person whose Sixth Amendment right to counsel is violated pretrial may sue the government for violation of her constitutional rights, whether or not the uncounseled statement is ever used at her trial. Another implication—one that cuts against the defendant—is seen in subsection [C] below.

[B] When the Police Investigate "Sixth Amendment" and "Non-Sixth Amendment" Offenses

The Sixth Amendment is offense-specific. Therefore, as previously explained in detail,¹²⁴ from a Sixth Amendment...