Confessions and the Sixth Amendment Right to Counsel (Conclusion)

• NCJ Number: 91156
• Journal: FBI Law Enforcement Bulletin Volume: 52 Issue: 9 Dated: (September 1983) Pages: 24-31
• Author(s): C E Riley
• Date Published: 1983
• Length: 8 pages
• Sale Source: National Institute of Justice/; NCJRS Photocopy Services
• Language: English
• Country: United States of America

Annotation

This article examines court decisions which specify the conditions under which a private citizen's receiving incriminating statements from a defendant formally charged in the related offense constitutes a violation of the accused's right to counsel.

Abstract

Incriminating statements deliberately elicited by private persons -- persons not acting pursuant to government direction -- are not subject to exclusion under the Massiah rule; however, some persons have been found to be government agents even though they were not specifically directed to obtain information from a particular defendant. These cases usually involve jailhouse informants who reasonably expect to gain a benefit from the government in return for their services. Deliberate elicitation is a necessary ingredient in a Massiah violation. Mere presence by the government at the time an incriminating statement is made is not sufficient to establish deliberate elicitation. Presence must be accompanied by some act or words by the government that constitute a deliberate effort to obtain or elicit an incriminating response. Arguments that incriminating statements were not deliberately elicited from an incarcerated defendant are closely scrutinized by the courts, and factual issues concerning how the statements arose are decided in favor of the defendant absent convincing proof to the contrary. Waiver of the sixth amendment right to counsel is not an issue in cases like Massiah where the government surreptitiously obtains incriminating statements from a charged defendant; however, the Massiah rule applies equally to situations where a known government agent attempts to elicit incriminating statements; in these cases, the waiver issue does come into play. A defendant can waive right to counsel in the absence of counsel as long as the government proves that the defendant understood the right and evidenced intention to waive it. Twenty-two footnotes are provided. For the first part of this article, see NCJ 91153.