A walk in the constitutional orchard: distinguishing fruits of Fifth Amendment right to counsel from Sixth Amendment right to counsel in Fellers v. United States.

• Author: Grewell, Justin Bishop

1. INTRODUCTION

   After a grand jury indicted John Fellers for conspiracy to distribute methamphetamine, two officers visited him at his home on February 24, 2000, to make an arrest. (1) The officers deliberately elicited statements in violation of Fellers's Sixth Amendment right to counsel before presenting him with a waiver of that right. (2) Fellers signed the waiver and reiterated his inculpatory statements. (3) The reiterated statements were then used against him at trial. (4) Under the Fifth Amendment right to counsel, the Supreme Court has held that statements repeated after waiver should not be treated as the inadmissible "fruit" of statements taken in violation of the right to counsel before waiver, but rather as admissible evidence. (5) Whether this same standard should apply to the fruits of a Sixth Amendment violation was the question presented in Fellers v. United States. The Supreme Court remanded the question to the Eighth Circuit. (6)

   This Note will examine whether waiver of the Fifth Amendment right to counsel and the Sixth Amendment right to counsel require different standards when applying the "fruit of the poisonous tree" doctrine or whether the precedent of Oregon v. Elstad (7) should control analysis for both amendments. First, this Note will explain that the Supreme Court properly applied its own deliberate-elicitation standard in overturning the Eighth Circuit's holding that a Sixth Amendment violation had not occurred. With that question disposed, the bulk of this Note will analyze the question remanded to the Eighth Circuit--should Elstad control "fruits" analysis regarding a Sixth Amendment violation? It will answer that Elstad should not control.

   In light of recent decisions, the right to counsel under the Fifth Amendment remains a prophylactic measure, which acts as a proxy for determining whether the Fifth Amendment has been violated. (8) If the prophylactic measure is violated, it is presumed that the constitutional rights of the Fifth Amendment were violated. (9) While these prophylactic rights are constitutionally protected, (10) their violation does not constitute a constitutional violation until statements derived from the violation are used in a criminal case. (11) Hence, it made sense for the Elstad court to find that a waiver could remediate a Miranda violation, because the waiver could rebut the presumption of constitutional violation. (12)

   But the right to counsel under the Sixth Amendment is a constitutional right. (13) The Sixth Amendment right to counsel is not presumed violated when breached, it actually is violated. Thus, subsequent waiver of the right does not rebut the presumption of a constitutional violation when engaging in Sixth Amendment, as opposed to Fifth Amendment, analysis. The Eighth Circuit should hold that Elstad does not apply to the Sixth Amendment. It should exclude the post-waiver statements made by Fellers as inadmissible fruits of a prior constitutional violation. In Fellers, constitutional rights were violated as opposed to prophylactic rights.

2. BACKGROUND

   1. TWO RIGHTS TO COUNSEL

   The Fifth and Sixth Amendments provide two different sources for the right to counsel. "The Fifth Amendment protection against compelled self-incrimination provides the right to counsel at custodial interrogations.... The Sixth Amendment guarantee of the assistance of counsel also provides the right to counsel at postarraignment interrogations." (14) Although the layperson may not grasp the differences between these two distinct rights to counsel, differences do exist. (15) These distinctions exist because the amendments serve different purposes.

1. Miranda's Prophylactic Right to Counsel

   In possibly the most famous case of constitutional criminal procedure, Miranda v. Arizona, (16) the Supreme Court set out procedural safeguards for ensuring the protections of the Fifth Amendment right against self-recrimination. (17) The Fifth Amendment had previously developed as a ward against the evils of the Spanish Inquisition and the Star Chamber in England where subjects were compelled through torture and other barbaric means to admit their guilt to various crimes whether they had committed them or not. (18) But as the United States matured as a nation, the Fifth Amendment came to serve goals of both deterring police misbehavior in the interrogation process and assuring the trustworthiness of the evidence derived from a witness's testimony. (19) Concerns about police misbehavior and trustworthy evidence arise when the state has the opportunity to engage in coercive behavior. With the Fifth Amendment, compulsion is the watchword, but the unspoken rule of the court decisions seems to focus on coercion. (20) Miranda governs testimony made when the potential for coercion by officers of the state is greatest: during custodial interrogation. (21) To help protect against this coercion, Miranda includes a right to counsel during custodial interrogation. (22)

   When a violation of the Fifth Amendment does occur, there are two major remedies. The first remedy is the exclusionary rule. The exclusionary rule developed to deter police from violating the Fourth Amendment. (23) It mandates that that "evidence obtained in violation of the Fourth Amendment [or the fruits of such evidence] ... cannot be used in a criminal proceeding against the victim of the illegal search and seizure." (24) Excluding evidence at trial lies at the core of the Fifth Amendment exclusionary rule as well, but the Fifth Amendment exclusionary rule is actually in the text of the Amendment itself and therefore is self-executing. (25) The second major remedy for violations are [section] 1983 actions, where a plaintiff seeks monetary damages. (26) Given the Court's focus in Fellers on the question of whether the exclusionary rule should be applied or not, this Note does not explore [section] 1983 actions.

   2. The Sixth Amendment's Constitutional Right to Counsel

      English precedent established many of the legal modes in the early United States, but the two systems diverged on the right to counsel. At the time of the framing of the United States Constitution, English law "forbade the assistance of counsel in nearly all criminal cases." (27) Many theories exist for the English prohibition on counsel, but the most prominent is that criminal cases were brought by private parties in England, so there was no need to level the playing field as both prosecutor and defendant were equally unskilled in the law. (28) In the United States, however, a public prosecutor system developed, which meant criminal lawsuits were brought by professional prosecutors who had handled numerous cases and were well versed in the science of law. (29) The Sixth Amendment right to counsel developed out of a need to "minimize the public prosecutor's tremendous advantage" and ensure fairness in the adversarial system. (30)

      In McNeil v. Wisconsin, (31) the Supreme Court explained that the "purpose of the Sixth Amendment counsel guarantee ... is to 'protec[t] the unaided layman at critical confrontations' with his 'expert adversary,' the government, after 'the adverse positions of government and defendant have solidified' with respect to a particular alleged crime." (32) To protect the layman, the Sixth Amendment right to counsel attaches once the government's role has "shift[ed] from investigation to accusation." (33) Once the government has decided to prosecute the case, it has moved from stage one, where the information-gathering State is not in opposition to the suspect, to stage two, where the State has expressed its intention to press charges. In stage two, "the prosecutorial forces of organized society" are arrayed against the suspect (now the accused). (34) He needs his own champion to level the playing field. Hence, the Sixth Amendment right to counsel rides in on its white horse (or slithers in on its serpent depending on one's perceptions) with the initiation of adversary judicial proceedings. (35) Once the Sixth Amendment right has attached, it is applicable during all "critical stages" that might impact "the accused's right to a fair trial." (36) And, unlike the Fifth Amendment right to counsel, the Sixth Amendment right to counsel is written in the text of the constitution itself. (37)

      When the Sixth Amendment is violated, the typical remedy is exclusion of the evidence at trial. (38) Exclusion is not constitutionally-mandated by the Sixth Amendment, as it is by the Fifth Amendment, (39) but rather it has been crafted by the Supreme Court as a remedy to deter violations. (40)

      2. "FRUIT OF THE POISONOUS TREE" DOCTRINE

         The "fruit of the poisonous tree" doctrine first appeared in the 1920 case of Silverthorne Lumber Co. v. United States. (41) In that case, the government violated the Fourth Amendment by illegally seizing documents from the defendants. (42) After the documents were returned to the defendants to remedy the illegal seizure, the government sought to obtain the same documents through a subpoena based on the knowledge that it had acquired from the initial illegal seizure. (43) Justice Holmes explained that "[t]he essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all." (44) Hence, the Court excluded the subpoena evidence too, because knowledge of its existence was derived from the illegal search. (45)

         The phrase "fruit of the poisonous tree" did not attach to this doctrine until two decades later in Nardone v. United States. (46) In that case, the Court explained that evidence obtained because of the State's wrongful behavior could not be used "simply because it is used derivatively." (47) The derivative evidence was "fruit of the poisonous tree." (48)

         Twenty years later, Wong Sun v. United States (49) expanded the doctrine to cover verbal or testimonial evidence derived from a Fourth...