Massiah Doctrine[edit]
The Massiah Doctrine (established by Massiah v. United States) prohibits the admission of a
confession obtained in violation of the defendant's Sixth Amendment right to counsel. Specifically,
the Massiah rule applies to the use of testimonial evidence in criminal proceedings deliberately
elicited by the police from a defendant after formal charges have been filed. The events that trigger
the Sixth Amendment safeguards under Massiah are (1) the commencement of adversarial criminal
proceedings and (2) deliberate elicitation of information from the defendant by governmental agents.
The Sixth Amendment guarantees a defendant a right to counsel in all criminal prosecutions. The
purposes of the Sixth Amendment right to counsel are to protect a defendant's right to a fair trial and
to assure that the adversarial system of justice functions properly by providing competent counsel as
an advocate for the defendant in his contest against the "prosecutorial forces" of the state.
Commencement of adversarial criminal proceedings[edit]
The Sixth Amendment right "attaches" once the government has committed itself to the prosecution
of the case by the initiation of adversarial judicial proceedings "by way of formal charge, preliminary
hearing, indictment, information or arraignment".[92] Determining whether a particular event or
proceeding constitutes the commencement of adversarial criminal proceedings requires both an
examination of the rules of criminal procedure for the jurisdiction in which the crime is charged and
the Supreme Courts cases dealing with the issue of when formal prosecution begins.[93] Once
adversarial criminal proceedings commence the right to counsel applies to all critical stages of the
prosecution and investigation. A critical stage is "any stage of the prosecution, formal or informal, in
court or out, where counsel's absence might derogate from the accused's right to a fair trial".[94]
Government attempts to obtain incriminating statement related to the offense charged from the
defendant by overt interrogation or surreptitious means is a critical stage and any information thus
obtained is subject to suppression unless the government can show that an attorney was present or
the defendant knowingly, voluntarily and intelligently waived his right to counsel.[95]
Deliberate elicitation of information from the defendant by governmental agents[edit]
Deliberate elicitation is defined as the intentional creation of circumstances by government agents
that are likely to produce incriminating information from the defendant.[96] Clearly express questioning
(interrogation) would qualify but the concept also extends to surreptitious attempts to acquire
information from the defendant through the use of undercover agents or paid informants.[97]
The definition of "deliberate elicitation" is not the same as the definition of "interrogation" under the
Miranda rule. Miranda interrogation includes express questioning and any actions or statements that
an officer would reasonably foresee as likely to cause an incriminating response. Massiah applies to
express questioning and any attempt to deliberately and intentionally obtain incriminating information
from the defendant regarding the crime charged. The difference is purposeful creation of an
environment likely to produce incriminating information (Massiah) and action likely to induce an
incriminating response even if that was not the officer's purpose or intent (Miranda).
The Sixth Amendment right to counsel is offense-specific – the right only applies to post-
commencement attempts to obtain information relating to the crime charged.[98] The right does not
extend to uncharged offenses if factually related to the charged crime.[99]
As noted, information obtained in violation of the defendant's Sixth Amendment right to counsel is
subject to suppression unless the government can establish that the defendant waived his right to
counsel. The waiver must be knowing, intelligent and voluntary.[100] A valid Miranda waiver operates
as a waiver of Sixth Amendment right.
Miranda and Massiah compared[edit]
1. Constitutional basis:
o Miranda is based on the Sixth Amendment right to counsel and the Fifth Amendment
right to remain silent.
o Massiah is based on the Sixth Amendment right to counsel.
2. Attachment:
o Miranda: Custody + interrogation (charging status irrelevant).
o Massiah: Formally charged + deliberate elicitation (custodial status irrelevant).
3. Scope:
o a. Miranda applies to custodial interrogation by known governmental agents.
Surreptitious acquisition of incriminating information allowed.
o a. Massiah applies to overt and surreptitious interrogation.
o b. Miranda is not offense specific.[101]
o b. Massiah is offense specific.[102]
o c. Miranda: interrogation + "functional equivalent"
o c. Massiah: interrogation + "deliberate elicitation"
4. Waiver: Both Miranda and Massiah rights may be waived.
5. Assertion: In each case, the assertion must be clear and unequivocal. The effects of
assertion are not identical. For purposes of Miranda, the police must immediately cease the
interrogation and cannot resume interrogating the defendant about any offense charged or
uncharged unless counsel is present or defendant initiates contact for purposes of resuming
interrogation and valid waiver obtained. Because Massiah is offense-specific, an assertion of
the sixth amendment right to counsel requires the police to cease interrogating the
defendant about any charged offense. Apparently the police could continue questioning the
defendant about uncharged crimes assuming that the defendant was not in custody. The
defendant's remedy would be to leave or to refuse to answer questions.[103]
6. Remedy for violation: The remedy for violation of Fifth and Sixth Amendment rights to
counsel is identical: the statements and testimonial information are subject to suppression.
Derivative evidence is not subject to suppression under Miranda – fruit of poisonous tree
doctrine may apply to Massiah violation.[104] Both Miranda and Massiah defective statements
can be used for impeachment purposes.
7. Exceptions: The primary exceptions to Miranda are (1) the routine booking questions
exception (2) the jail house informant exception and (3) the public safety exception.
In Moulton v. Maine the Supreme Court refused to recognize a public safety exception to the
Massiah rule.[105] Massiah allows for the use of jail house informants provided the informants
serve merely as "passive listeners".[106]
The voluntariness standard[edit]
The voluntariness standard applies to all police interrogations regardless of the custodial status of
the suspect and regardless of whether the suspect has been formally charged. The remedy for a
violation of the standard is complete suppression of the statement and any evidence derived from
the statement. The statement cannot be used as either substantive evidence of guilt or to impeach
the defendant's testimony.[107] The reason for the strictness is the common law's aversion to the use
of coerced confessions because of their inherent unreliability. Further the rights to be free from
coerced confession cannot be waived nor is it necessary that the victim of coercive police conduct
assert his right. In considering the voluntariness standard one must consider the Supreme Court's
decision in Colorado v. Connelly.[108] Although federal courts' application of the Connelly rule has
been inconsistent and state courts have often failed to appreciate the consequences of the case,
Connelly clearly marked a significant change in the application of the voluntariness standard. Before
Connelly the test was whether the confession was voluntary considering the totality of the
circumstances.[109] "Voluntary" carried its everyday meaning: the confession had to be a product of
the exercise of the defendant's free will rather than police coercion.[110] After Connelly the totality of
circumstances test is not even triggered unless the defendant can show coercive police
conduct.[111] Questions of free will and rational decision making are irrelevant to a due process claim
unless police misconduct existed and a causal connection can be shown between the misconduct
and the confession.[112]
State constitutional challenges[edit]
Every state constitution has articles and provision guaranteeing individual rights.[113] In most cases
the subject matter is similar to the federal bill of rights.[114] Most state courts interpretation of their
constitution is consistent with the interpretation federal court's of analogous provisions of the federal
constitution. With regard to Miranda issues, state courts have exhibited significant resistance to
incorporating into their state jurisprudence some of the limitations on the Miranda rule that have
been created by the federal courts.[115] As a consequence a defendant may be able to circumvent the
federal limitation on the Miranda rule and successfully challenge the admissibility under state
constitutional provisions. Practically every aspect of the Miranda rule has drawn state court criticism.
However the primary point of contention involve the following limitations on the scope of the Miranda
rule: (1) the Harris exception[116] (2) the Burbine rule[117] and (3) the Fare rule.[118]
State statutory challenges[edit]
In addition to constitutionally based challenge, states permit a defendant to challenge the
admissibility of a confession on the grounds that the confession was obtained in violation of a
defendant's statutory rights. For example, North Carolina Criminal Procedure Act permits a
defendant to move to suppress evidence obtained as a result of a "substantial" violation of the
provision of the North Carolina Rules of Criminal Procedure.
Confusion regarding use[edit]
Due to the prevalence of American television programs and motion pictures in which the police
characters frequently read suspects their rights, it has become an expected element of arrest
procedure—in the 2000 Dickerson decision, Chief Justice William Rehnquist wrote that Miranda
warnings had "become embedded in routine police practice to the point where the warnings have
become part of our national culture".[119]
While arrests and interrogations can legally occur without the Miranda warning being given, this
procedure would generally make the arrestee's pre-Miranda statements inadmissible at trial.
(However, pursuant to the plurality opinion in United States v. Patane, physical evidence obtained as
a result of pre-Miranda statements may still be admitted. There was no majority opinion of the Court
in that case.)
In some jurisdictions,[where?] a detention differs at law from an arrest, and police are not required to
give the Miranda warning until the person is arrested for a crime. In those situations, a person's
statements made to police are generally admissible even though the person was not advised of their
rights. Similarly, statements made while an arrest is in progress before the Miranda warning was
given or completed are also generally admissible.
Because Miranda applies only to custodial interrogations, it does not protect detainees from
standard booking questions such as name and address. Because it is a protective measure intended
to safeguard the Fifth Amendment right against self-incrimination, it does not prevent the police from
taking blood without a warrant from persons suspected of driving under the influence of alcohol.
(Such evidence may be self-incriminatory, but are not considered statements of self-incrimination.)
If an inmate is in jail and invoked Miranda on one case, it is unclear whether this extends to any
other cases that they may be charged with while in custody. For example: a subject is arrested,
charged with cattle rustling, and is held in county jail awaiting trial. He invoked his Miranda rights on
the cow case. While in custody, he is involved in a fight where a staff member loses his ability to
walk. He speaks to the custodial staff regarding the fight without staff first invoking Miranda. It is
unclear if this statement is admissible because of the original Miranda statement.
Many police departments give special training to interrogators with regard to the Miranda warning;
specifically, how to influence a suspect's decision to waive the right. For instance, the officer may be
required to specifically ask if the rights are understood and if the suspect wishes to talk. The officer
is allowed, before asking the suspect a question, to speak at length about evidence collected,
witness statements, etc. The officer will then ask if the suspect wishes to talk, and the suspect is
then more likely to talk in an attempt to refute the evidence presented. Another tactic commonly
taught is never to ask a question; the officer may simply sit the suspect down in an interrogation
room, sit across from him and do paperwork, and wait for the suspect to begin talking.[120] These
tactics are intended to mitigate the restrictions placed on law officers against compelling a suspect to
give evidence, and have stood up in court as valid lawful tactics. Nevertheless, such tactics are
condemned by legal rights groups as deceptive.[citation needed]
Exemption for interrogations conducted by undercover agents[edit]
In Illinois v. Perkins, 496 U.S. 292 (1990), the United States Supreme Court held that undercover
officers do not have to give suspects a Miranda warning prior to asking questions that may elicit
incriminating responses. In this case, an undercover agent posed as an inmate and carried on a 35-
minute conversation with another inmate that he suspected of committing a murder that was being
investigated. During this conversation, the suspect implicated himself in the murder that the
undercover agent was investigating.[121]
The Supreme Court came to this conclusion despite the government's admission that a custodial
interrogation had been conducted by a government agent.
Report of warnings being given to detainees in Afghanistan[edit]
Beginning in 2009, some detainees captured in Afghanistan have been read their Miranda rights by
the FBI, according to Congressman Michael Rogers of Michigan, who claims to have witnessed this
himself. According to the Justice Department, "There has been no policy change nor blanket
instruction for FBI agents to Mirandize detainees overseas. While there have been specific cases in
which FBI agents have Mirandized suspects overseas at both Bagram and in other situations, in
order to preserve the quality of evidence obtained, there has been no overall policy change with
respect to detainees."[122][123]
