Section 11.28 Waiver of Massiah Rights

• Library: Criminal Practice 2012 Supp

3. (§11.28) Waiver of Massiah Rights

Under the Sixth Amendment right to counsel, the police may not interrogate a defendant in the absence of counsel and after indictment or arraignment unless the defendant has waived that right. Brewer v. Williams, 430 U.S. 387, 404 (1977). The state has the burden of showing a waiver of the Sixth Amendment right to counsel by a preponderance of evidence. Id. at 404; State v. Owens, 827 S.W.2d 226, 230 (Mo. App. E.D. 1991). Missouri courts have applied a stricter standard for finding a waiver of counsel under Massiah v. United States, 377 U.S. 201 (1964), than under Miranda v. Arizona, 384 U.S. 436 (1966). State v. Chandler, 605 S.W.2d 100, 114–15 (Mo. banc 1980). In Chandler the Court required the government to prove “an intentional relinquishment or abandonment of a known right or privilege.” Id. at 113.

Owens, 827 S.W.2d 226, provides a good illustration of issues involving Massiah waivers. In Owens the court stated that not only must any subsequent interrogation be initiated by a defendant once the defendant has invoked the Sixth Amendment right to counsel, but the defendant must also distinctly waive the right to counsel...