Custodial Interrogation

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In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

At first, the Court followed the rule of “fundamental fairness,” assessing whether under all the circumstances a defendant was so prejudiced by the denial of access to counsel that his subsequent trial was tainted.1 It held in Spano v. New York2 that, under the totality of circumstances, a confession obtained in a post-indictment interrogation was involuntary, and four Justices wished to place the holding solely on the basis that post-indictment interrogation in the absence of defendant’s lawyer was a denial of his right to assistance of counsel. The Court issued that holding in Massiah v. United States ,3 in which federal officers caused an informer to elicit from the already-indicted defendant, who was represented by a lawyer, incriminating admissions that were secretly overheard over a broadcasting unit. Then, in Escobedo v. Illinois,4 the Court held that preindictment interrogation violated the Sixth Amendment. But Miranda v. Arizona5 switched from reliance on the Sixth Amendment to reliance on the Fifth Amendment’s Self-Incrimination Clause in cases of pre-indictment custodial interrogation, although Miranda still placed great emphasis upon police warnings of the right to counsel and foreclosure of interrogation in the absence of counsel without a valid waiver by defendant.6

Massiah was reaffirmed and in some respects expanded by the Court. In Brewer v. Williams,7 the right to counsel was found violated when police elicited from defendant incriminating admissions not through formal questioning but rather through a series of conversational openings designed to play on the defendant’s known weakness. The police conduct occurred in the post-arraignment period in the absence of defense counsel and despite assurances to the attorney that defendant would not be questioned in his absence. In United States v. Henry ,8 the Court held that government agents violated the Sixth Amendment right to counsel when they contacted the cellmate of an indicted defendant and promised him payment under a contingent fee arrangement if he would “pay attention” to incriminating remarks initiated by the defendant and others. The Court concluded that, even if the government agents did not intend the informant to take affirmative steps to elicit incriminating statements from the defendant in the absence of counsel, the agents must have known that that result would follow.

The Court extended the Edwards v. Arizona9 rule protecting in-custody requests for counsel to post-arraignment situations where the right derives from the Sixth Amendment rather than the Fifth. In the subsequently overruled Michigan v. Jackson, the Court held that, “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” 10 The Court concluded that “the reasons for prohibiting the interrogation of an uncounseled prisoner who has asked for the help of a lawyer are even stronger after he has been formally charged with an offense than before.” 11 The protection, however, is not as broad under the Sixth Amendment as it is under the Fifth. Although Edwards has been extended to bar custodial questioning stemming from a separate investigation as well as questioning relating to the crime for which the suspect was arrested,12 this extension does not apply for purposes of the Sixth Amendment right to counsel. The Sixth Amendment right is “offense-specific,” and so also is “its Michigan v. Jackson effect of invalidating subsequent waivers in police-initiated interviews.” 13 Therefore, although a defendant who has invoked his Sixth Amendment right to counsel with respect to the offense for which he is being prosecuted may not waive that right, he may waive his Miranda-based right not to be interrogated about unrelated and uncharged offenses.14

In Montejo v. Louisiana,15 the Court overruled Michigan v. Jackson, finding that the Fifth Amendment’s “ Miranda-Edwards-Minnick line of cases” constitutes sufficient protection of the right to counsel. In Montejo, the defendant had not actually requested a lawyer, but had stood mute at a preliminary hearing at which the judge ordered the appointment of counsel. Later, before Montejo had met his attorney, two police detectives read him his Miranda rights and he agreed to be interrogated. Michigan v. Jackson had prohibited waivers of the right to counsel after a defendant’s assertion of the right to counsel, so the Court in Montejo was faced with the question of whether Michigan v. Jackson applied where an attorney had been appointed in the absence of such an assertion.

The Court in Montejo noted that “[n]o reason exists to assume that a defendant like Montejo, who has done nothing at all to express his intentions with respect to his Sixth Amendment rights, would not be perfectly amenable to speaking with the police without having counsel present.” 16 But, to apply Michigan v. Jackson only when the defendant invokes his right to counsel “would be unworkable in more than half the States of the Union,” where “appointment of counsel is automatic upon a finding of indigency” or may be made “ sua sponte by the court.” 17 “On the other hand, eliminating the invocation requirement would render the rule easy to apply but depart fundamentally from the Jackson rationale,” which was “to prevent police from badgering defendants into changing their minds about their rights” after they had invoked them.18 Moreover, the Court found, Michigan v. Jackson achieves little by way of preventing unconstitutional conduct. Without Jackson, there would be “few if any” instances in which “fruits of interrogations made possible by badgering-induced involuntary waivers are ever erroneously admitted at trial. . . . The principal reason is that the Court has already taken substantial other, overlapping measures toward the same end. . . . Under the Miranda-Edwards-Minnick line of cases (which is not in doubt), a defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given the Miranda warnings. At that point, not only must the immediate contact end, but ‘badgering’ by later requests is prohibited.” 19 Thus, the Court in Montejo overruled Michigan v. Jackson.20

The remedy for violation of the Sixth Amendment rule is exclusion from evidence of statements so obtained.21 And, although the basis for the Sixth Amendment exclusionary rule—to protect the right to a fair trial—differs from that of the Fourth Amendment rule—to deter illegal police conduct—exceptions to the Fourth Amendment’s exclusionary rule can apply as well to the Sixth. In Nix v. Williams,22 the Court held the “inevitable discovery” exception applicable to defeat exclusion of evidence obtained as a result of an interrogation violating the accused’s Sixth Amendment rights. “Exclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial.” 23 Also, an exception to the Sixth Amendment exclusionary rule has been recognized for the purpose of impeaching the defendant’s trial testimony.24

1: Crooker v. California, 357 U.S. 433 (1958) (five-to-four decision); Cicenia v. Lagay, 357 U.S. 504 (1958) (five-to-three).
2: 360 U.S. 315 (1959).
3: 377 U.S. 201 (1964). See also McLeod v. Ohio, 381 U.S. 356 (1965) (applying Massiah to the states, in a case not involving trickery but in which defendant was endeavoring to cooperate with the police). But see Hoffa v. United States, 385 U.S. 293 (1966). Cf. Milton v. Wainwright, 407 U.S. 371 (1972). In Kansas v. Ventris, 556 U.S. 586, 592 (2009), the Court “conclude[d] that the Massiah right is a right to be free of uncounseled interrogation, and is infringed at the time of the interrogation,” not merely if and when the defendant’s statement is admitted into evidence.
4: 378 U.S. 478 (1964).
5: 384 U.S. 436 (1966).
6: The different issues in Fifth and Sixth Amendment cases were summarized in Fellers v. United States, 540 U.S. 519 (2004), which held that absence of an interrogation is irrelevant in a Massiah-based Sixth Amendment inquiry.
7: 430 U.S. 387 (1977). Chief Justice Burger and Justices White, Blackmun, and Rehnquist dissented. Id. at 415, 429, 438. Compare Rhode Island v. Innis, 446 U.S. 291 (1980), decided on self-incrimination grounds under similar facts.
8: 447 U.S. 264 (1980). Justices Blackmun, White, and Rehnquist dissented. Id. at 277, 289. Accord, Kansas v. Ventris, 556 U.S. 586, 589 (2009). But cf. Weatherford v. Bursey, 429 U.S. 545, 550 (1977) (rejecting a per se rule that, regardless of the circumstances, “if an undercover agent meets with a criminal defendant who is awaiting trial and with his attorney and if the forthcoming trial is discussed without the agent revealing his identity, a violation of the defendant’s constitutional rights has occurred . . .” ).
9: 451 U.S. 477 (1981).
10: 475 U.S. 625, 636 (1986).
11: 475 U.S. at 631. If a prisoner does not ask for the assistance of counsel, however, and voluntarily waives his rights following a Miranda warning, these reasons disappear. Moreover, although the right to counsel is more difficult to waive at trial than before trial, “whatever standards suffice for Miranda's purposes will also be sufficient [for waiver of Sixth Amendment rights] in the context of postindictment questioning.” Patterson v. Illinois, 487 U.S. 285, 298 (1988).
12: Arizona v. Roberson, 486 U.S. 675 (1988).
13: McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). The reason that the right is “offense-specific” is that “it does not attach until a prosecution is commenced.” Id.
14: Rejecting an exception to the offense-specific limitation for crimes that are closely related factually to a charged offense, the Court instead borrowed the Blockburger test from double-jeopardy law: if the same transaction constitutes a violation of two separate statutory provisions, the test is “whether each provision requires proof of a fact which the other does not.” Texas v. Cobb, 532 U.S. 162, 173 (2001). This meant that the defendant, who had been charged with burglary, had a right to counsel on that charge, but not with respect to murders committed during the burglary.
15: 556 U.S. 778, 794 (2009).
16: Id. at 789.
17: Id. at 792, 783.
18: Id. at 792, 789.
19: Id. at 794.
20: Justice Stevens, joined by Justices Souter and Ginsburg, and by Justice Breyer except for footnote 5, dissented. He wrote, “The majority’s analysis flagrantly misrepresents Jackson's underlying rationale and the constitutional interests the decision sought to protect. . . . [T]he Jackson opinion does not even mention the anti-badgering considerations that provide the basis for the Court’s decision today. Instead, Jackson relied primarily on cases discussing the broad protections guaranteed by the Sixth Amendment right to counsel—not its Fifth Amendment counterpart. Jackson emphasized that the purpose of the Sixth Amendment is to ‘protec[t] the unaided layman at critical confrontations with his adversary,’ by giving him ‘the right to rely on counsel as a medium between him[self] and the State.’ . . . Once Jackson is placed in its proper Sixth Amendment context, the majority’s justifications for overruling the decision crumble.” 556 U.S. at 805–06 (internal quotation marks and citations omitted). Justice Stevens added, “Even if Jackson had never been decided, it would be clear that Montejo’s Sixth Amendment rights were violated. . . . Because police questioned Montejo without notice to, and outside the presence of, his lawyer, the interrogation violated Montejo’s right to counsel even under pre- Jackson precedent.” 556 U.S. at 810–11.
21: See Michigan v. Jackson, 475 U.S. 625 (1986).
22: 467 U.S. 431 (1984).
23: 467 U.S. at 446.
24: Michigan v. Harvey, 494 U.S. 344 (1990) (post-arraignment statement taken in violation of Sixth Amendment is admissible to impeach defendant’s inconsistent trial testimony); Kansas v. Ventris, 556 U.S. 586, 593 (2009) (statement made to informant planted in defendant’s holding cell admissible for impeachment purposes because “[t]he interests safeguarded by . . . exclusion are ‘outweighed by the need to prevent perjury and to assure the integrity of the trial process” ).