Section 11.26 Scope of Massiah

• Library: Criminal Practice 2012 Supp

1. (§11.26) Scope of Massiah

Subsequent Supreme Court cases have interpreted Massiah’s “deliberately elicited” standard, Massiah v. United States, 377 U.S. 201 (1964), to include statements procured through any form of interrogation, whether surreptitious or overt, Brewer v. Williams, 430 U.S. 387 (1977), and whether direct or indirect, United States v. Henry, 447 U.S. 264 (1980). In Henry the government deliberately elicited statements from the accused by planting an informant in the defendant’s jail cell. The Court considered significant the following facts:

· The informant was acting under government instructions as a paid informant.

· The informant was a fellow inmate who was able to engage Henry in conversation without arousing suspicion.

· Henry was under indictment and entitled to assistance of counsel at the time he made the statements.

Henry, 447 U.S. at 271–72.

The Supreme Court has also stated that the Sixth Amendment right to counsel is “offense-specific” and applies only to the offense for which it is invoked. Tex. v. Cobb, 532 U.S. 162, 171–72 (2001). Therefore, the police may question a defendant about other criminal conduct than that for which the defendant has been charged unless the two crimes are “inextricably intertwined.” Crimes are so “inextricably intertwined” that...