Custodial Interrogation and Right to Counsel

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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.

In the context of custodial interrogations—such as police questioning of a suspect1 —the Court’s doctrine on the extent of the right to counsel has evolved to be closely related to its doctrine on the Fifth Amendment’s protection against self-incrimination.2 At first, the Court evaluated the constitutionality of custodial interrogations against a rule of “fundamental fairness,” assessing whether under all the circumstances a defendant was so prejudiced by the denial of access to counsel at custodial interrogation that his subsequent trial was tainted.3 In 1959, the Court in Spano v. New York4 declined to consider whether, as a blanket rule, a “confession obtained in the absence of counsel can be used without violating the Fourteenth Amendment.” Instead, the Court in Spano concluded that use of the confession at issue violated the Fourteenth Amendment based on the surrounding circumstances—including the defendant’s limited education, the numerous denials of request for counsel, and the hours of interrogation undertaken by various officers (one of whom was a friend of the defendant).5

Five years later, in Massiah v. United States,6 the Court began to move away from this circumstance—dependent approach rooted in the Fourteenth Amendment, holding that post—indictment interrogation in the absence of defendant’s lawyer was a denial of the defendant’s Sixth Amendment right to assistance of counsel.7 The same year as Massiah, the Court in Escobedo v. Illinois8 held that preindictment custodial interrogation violates the Sixth Amendment when “the suspect has requested and been denied an opportunity to consult with his lawyer.” In 1966, the Court in Miranda v. Arizona9 reaffirmed Escobedo, but switched from reliance on the Sixth Amendment to reliance on the Fifth Amendment’s Self-Incrimination Clause in cases of pre-indictment custodial interrogation. That said, Miranda still placed great emphasis upon police warnings of the right to counsel and foreclosed interrogation in the absence of counsel without a valid waiver by defendant.10 However, in subsequent opinions, the Court clarified that neither Miranda nor Escobedo support the assertion that “the Sixth Amendment right, in any of its manifestations, applies prior to the initiation of adversary judicial proceedings.” 11

Despite Miranda’s general reliance on the Fifth Amendment, and the Court’s limitation on the scope of Escobedo, it has reaffirmed and in some respects expanded Massiah. First, in Brewer v. Williams,12 the Court held that police had violated the right to counsel by eliciting from the 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 defense counsel that the defendant would not be questioned in his absence.13 Then, in United States v. Henry,14 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.15

Another issue in the custodial interrogation context involves waiver of the right to counsel where the suspect makes incriminating statements during police questioning following a request for counsel. In 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.” 16 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.” 17 However, in Montejo v. Louisiana,18 the Court overruled Jackson, finding that the prophylactic Fifth Amendment protections created by Miranda and its progeny constitute sufficient protection of the right to counsel. The Court in Montejo was faced with the question of whether Jackson also barred waivers of the right where an attorney had been appointed in the absence of such an assertion.19 In deciding to overrule Jackson, the Court in Montejo noted that “[n]o reason exists to assume that a defendant . . . 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.” 20 Moreover, the Court found, Jackson achieves little by way of preventing unconstitutional conduct.21

Statements obtained during custodial interrogation in violation of the Sixth Amendment right to counsel are ordinarily inadmissible at trial (a remedy known as the exclusionary rule).22 In light of the Sixth Amendment basis for the exclusionary rule—to protect the right to a fair trial—exceptions to that rule exist where that basis is not served. For example, in Nix v. Williams,23 the Court held the “inevitable discovery” exception applied to defeat exclusion of evidence obtained as a result of an interrogation violating the accused’s Sixth Amendment rights. The Court in Nix reasoned that “[e]xclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial.” 24 An exception to the Sixth Amendment exclusionary rule has also been recognized for the purpose of impeaching the defendant’s trial testimony.25

1: See, e.g., Interrogation, Black’s Law Dictionary (11th ed. 2019) ( “Police questioning of a detained person about the crime that he or she is suspected of having committed.” ).
2: For further discussion of the Fifth Amendment and self-incrimination, see supra Amdt5.4.3 General Protections Against Self-Incrimination Doctrine and Practice.
3: Crooker v. California, 357 U.S. 433, 439 (1958); see also Cicenia v. Lagay, 357 U.S. 504, 510 (1958) ( “[T]his Court, in judging whether state prosecutions meet the requirements of due process, has sought to achieve a proper accommodation by considering a defendant’s lack of counsel one pertinent element in determining from all the circumstances whether a conviction was attended by fundamental unfairness.” ).
4: 360 U.S. 315, 320 (1959).
5: Id. at 317–320.
6: 377 U.S. 201, 205–06 (1964); See also McLeod v. Ohio, 381 U.S. 356 (1965) (per curiam) (citing Massiah and reversing State v. McLeod, 1 Ohio St. 2d 60 (Ohio 1964)—a state prosecution where an already-indicted defendant voluntarily made an oral confession to police); Cf. Hoffa v. United States, 385 U.S. 293 (1966) (declining to extend Massiah to require assistance of counsel for any questioning after the moment when the suspect could have been arrested, even if he or she was not); Milton v. Wainwright, 407 U.S. 371, 372 (1972) (passing on question of whether post-indictment questioning of suspect by officer posing as cellmate violated Sixth Amendment right to counsel pursuant to Massiah, because “any error in its admission was harmless beyond a reasonable doubt” ). 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.
7: In Massiah, federal officers used an informer to elicit incriminating admissions from the defendant—who had already been indicted and was represented by a lawyer—which they surreptitiously listened to through a broadcasting unit. Massiah, 377 U.S. at 201–03.
8: 378 U.S. 478, 485, 490–91 (1964). Subsequently, the Court limited its holding in Escobedo to prospective application. See Johnson v. New Jersey, 384 U.S. 719, 721 (1966), abrogated by United States v. Johnson, 457 U.S. 537 (1982) ( “We hold that Escobedo affects only those cases in which the trial began after June 22, 1964, the date of that decision.” ).
9: 384 U.S. 436, 441, 467 (1966).
10: Id. at 471–75. The different issues in Fifth and Sixth Amendment cases were summarized in Fellers v. United States, 540 U.S. 519, 524–25 (2004), which held that absence of an interrogation is irrelevant in a Massiah-based Sixth Amendment inquiry.
11: Moran v. Burbine, 475 U.S. 412, 429 (1986) (emphasis added); see also Illinois v. Perkins, 496 U.S. 292, 299 (1990) ( “In the instant case no charges had been filed on the subject of the interrogation, and our Sixth Amendment precedents are not applicable.” ). For a discussion of intervening precedent, which developed the concept of initiation of adversary proceedings, see Amdt6.6.3.4 Lineups and Other Identification Situations and Right to Counsel.
12: 430 U.S. 387, 391–93 (1977). The Court later decided another similar case (involving incriminating statements made to police officers during a pre-indictment conversation in a patrol car) on self-incrimination grounds. Rhode Island v. Innis, 446 U.S. 291, 294–95, 302 (1980).
13: Brewer, 430 U.S. at 391.
14: 447 U.S. 264, 265–66, 270, 274–75 (1980); but see Kansas v. Ventris, 556 U.S. 586, 589, 594 (2009) (concluding that law enforcement had violated defendant’s Sixth Amendment right to counsel by soliciting incriminating statements through an informant planted in defendant’s cell, but holding that statements were nevertheless admissible for purposes of impeaching the defendant’s “inconsistent testimony at trial” ); Weatherford v. Bursey, 429 U.S. 545, 550–51 (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’s revealing his identity, a violation of the defendant’s constitutional rights has occurred . . . ” ).
15: Henry, 447 U.S. at 271.
16: Michigan v. Jackson, 475 U.S. 625, 636 (1986), overruled by Montejo v. Louisiana, 556 U.S. 778 (2009)..
17: Id. at 631. The Court stated: “If an accused knowingly and intelligently” waives his Sixth Amendment right to counsel, there is “no reason why the uncounseled statements he then makes must be excluded at his trial.” Patterson v. Illinois, 487 U.S. 285, 291 (1988) (internal quotation marks omitted). Moreover, although the Court “require[s] a more searching or formal inquiry before permitting an accused to waive his right to counsel at trial than [it] require[s] for a Sixth Amendment waiver during postindictment questioning,” it has clarified that “whatever standards suffice for Miranda's purposes will also be sufficient [for waiver of Sixth Amendment rights] in the context of postindictment questioning.” Id. at 298–99. In McNeil v. Wisconsin, the Court reasoned that the Sixth Amendment right is “offense-specific,” and so also is “its Michigan v. Jackson effect of invalidating subsequent waivers in police-initiated interviews.” 501 U.S. 171, 175, 177 (1991). The reason that the right is “offense-specific” is that “it does not attach until a prosecution is commenced.” Id. Therefore, a defendant who has invoked his Sixth Amendment right to counsel with respect to the offense for which he is being prosecuted may maintain that right, but still potentially waive his Miranda -based right not to be interrogated about unrelated and uncharged offenses. The Court declined to recognize an exception to the offense-specific limitation for crimes that are closely related factually to a charged offense. Texas v. Cobb, 532 U.S. 162, 168 (2001). The Court instead borrowed 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.” Id. at 173 (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)). Thus, where a defendant had been charged with burglary, but not murder, in connection with a fatal home invasion, the Court concluded that “the Sixth Amendment right to counsel did not bar police from interrogating [the defendant] regarding the murders, and [the defendant’s] confession was therefore admissible,” because “burglary and capital murder are not the same offense” under the relevant test. Id. at 173.
18: 556 U.S. 778, 794 (2009).
19: Id. at 782–83.
20: Id. at 789.
21: The Court reasoned that 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” given Miranda and its progeny, which guarantee that “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.” Id. at 794–95.
22: See Maine v. Moulton, 474 U.S. 159, 180 (1985) ( “Consequently, incriminating statements pertaining to pending charges are inadmissible at the trial of those charges, notwithstanding the fact that the police were also investigating other crimes, if, in obtaining this evidence, the State violated the Sixth Amendment by knowingly circumventing the accused’s right to the assistance of counsel.” ); Massiah v. United States, 377 U.S. 201, 205–06 (1964) ( “We hold that the petitioner was denied the basic protections of [the Sixth Amendment] when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” ); but see Michigan v. Harvey, 494 U.S. 344, 345–46 (1990) (holding that the “prosecution may use a statement taken [post-arraignment] in violation of the [ Sixth Amendment] . . . to impeach a defendant’s false or inconsistent testimony” ).
23: 467 U.S. 431, 446 (1984).
24: Id.
25: See Harvey, 494 U.S. at 345–46 (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, 589, 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’” ).