INCRIMINATING STATEMENTS OBTAINED BY EXPLOITATION OF VIOLATION OF RIGHT TO COUNSEL
The Supreme Court has often condemned the official practice of deliberately eliciting statements from the accused after the Sixth Amendment right to counsel has attached. Massiah v. U.S., 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) [codefendant acting for police after indictment and retention of counsel]; McLeod v. Ohio, 381 U.S. 356, 85 S.Ct. 1556, 14 L.Ed.2d 682 (1965) [after indictment, before arraignment and appointment of counsel]; Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972) [officer posing as cellmate];
Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) [post-arrest, post-arraignment]; U.S. v. Henry, 447 U.S. 264, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1980) [cellmate-informant paid to listen, but not initiate conversation]; Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) [psychiatrist’s testimony as to “dangerousness” of defendant based on post-indictment competency examinations]. See also U.S. v. Geittman, 733 F.2d 1419, 1427 (10th Cir. 1984). “Massiah and Henry condemn deliberate efforts by the Government to create situations in which indicted defendants are likely to make incriminating statements …in the absence of counsel.” U.S. v. Geittman, 733 F.2d at 1427.
In Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985), the Court reiterated this sentiment, emphasizing the Government’s affirmative obligation” with respect to a formally charged individual’s right to counsel. Maine v. Moulton, 474 U.S. 159, 88 L.Ed.2d at 493.
“Once the right to counsel has attached and been asserted, the State must of course honor it. This means more than simply that the State cannot prevent the accused from obtaining the assistance of counsel. The Sixth Amendment also imposes on the State an affirmative obligation to respect and preserve the accused’s choice to seek this assistance. We have on several occasions been called upon to clarify the scope of the State’s obligation in this regard, and have made clear that, at the very least, the prosecutor and police have an affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel.
The Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a ‘medium’ between him and the State. As noted above this guarantee includes the State’s affirmative obligation not to act in a manner that circumvents the protections accorded the accused by invoking this right. The determination whether particular action by state agents violates the accused’s right to the assistance of counsel must be made in light of this obligation. Thus, the Sixth Amendment is not violated whenever – by luck or happenstance – the state obtains a statement from the accused after the right of counsel has attached.
…However, knowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State’s obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity. Accordingly, the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused’s right to have counsel present in a confrontation between the accused and a state agent.” [emphasis added]. Maine v. Moulton, 474 U.S. 159, 88 L.Ed.2d at 492-93, 496.
While “knowing exploitation” is rarely subject to direct proof, the mere fact that the Government’s agents should have known that it was likely to obtain incriminating statements” from the accused in the absence of counsel suffices”. Maine v. Moulton, 474 U.S. 159, 88 L.Ed.2d at 496 n. 12.
“Direct proof of the State’s knowledge will seldom be available to the accused. However, as Henry makes clear, proof that the State ‘must have known’ that its agent was likely to obtain incriminating statements from the accused in the absence of counsel suffices to establish a Sixth Amendment violation.” Maine v. Moulton, 474 U.S. 159, 88 L.Ed.2d at 496 n.12; Henry, 447 U.S. 264, 281, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980).
POLICE MUST NOTIFY ATTORNEY ONCE SIXTH AMENDMENT RIGHT TO COUNSEL HAS ATTACHED
The Texas Court of Criminal Appeals has held that regardless of any waiver by an indicted accused who is represented by counsel, the police must first notify his attorney, before initiating any interrogation. Holloway
- State, 780 S.W.2d 787 (Tex.Crim. App. 1989). “Only through notice to defense counsel may authorities initiate the interrogation of an indicted and represented defendant.” Holloway, Id.
STATEMENTS OBTAINED BY VIOLATION OF A DISCIPLINARY RULE
“DR7-104. Communicating with One of the Adverse Interest.”
“(A) During the course of his representation of a client a lawyer shall not:
(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.”
Although previously prosecutors argued that the Supremecy Clause exempted them from the rules of ethics, the McDade/Murtha Act settled the matter. The rules of ethics apply to prosecutors as well as private counsel. 28 U.S.C. § 530B.
28 U.S.C.A. § 530B. “§ 530B. Ethical standards for attorneys for the Government
- An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.”
Thus, once a criminal defendant is represented by an attorney the Government may not communicate with that defendant unless his/her attorney is notified. See U.S. v. Thomas, 474 F.2d 110, 112 (10th Cir.), cert. denied, 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160 (1973). The Fifth Circuit has recognized that conduct which violates this canon of ethics is reprehensible and suppression is the appropriate sanction. U.S. v. Killian, 639 F.2d 206, 210 (5th Cir.), cert. denied sub nom; Brunk v. U.S., 451 U.S. 1021, 101 S.Ct. 3010, 69 L.Ed.2d 394 (1981) [defendant relied solely on the violation of an “ethical principle of the legal profession”].
“We agree that the conduct which occurred in this case was highly improper and unethical suppression of the statements would probably have been the appropriate sanction in this case, were it not for the refusal of the government to use those statements The action that was taken in this case is truly reprehensible and taints the dignity of the offices of the U.S. Attorney, the D.E.A. and the F.B.I..” U.S. v. Killian, 693 F.2d at 210.
Whether DR7-104(A)(1) is violated pre or post indictment, suppression may be warranted.
U.S. v. Hammad, 858 F.2d 834 (2d Cir. 1988).
“Moreover, we resist binding the Code’s applicability to the moment of indictment. The timing of an indictment’s return has substantially within the control of the prosecutor. Therefore, were we to construe the rule as dependent upon indictment a government attorney could manipulate grand jury to avoid its encumbrances.” U.S. v. Hammad, 858 F.2d at 839.
One court has held that such conducted when based upon institutional policy [a June 8, 1989 DOJ Memorandum, advising Justice Department “litigators” that they need not abide by such Codes of Professional Responsibility, even where they are adopted as the local rules of the court] warrants outright dismissal. U.S. v. Lopez, 765 F. Supp. 1433 , (N.D. Cal. 1991), order vacated by U.S. v. Lopez, 4 F.3d 1455 (9th Cir. 1993).
STATEMENTS INDUCED BY POLICE PROMISES
A confession may be rendered involuntary where it is induced by police promises. A promise by an informant cellmate to protect the defendant from rough treatment by other inmates in exchange for a confession amounts to coercing the confession. Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) [but subject to harmless error analysis].
Gallegos v. State, 715 S.W.2d 139 (Tex.App.-San Antonio 1986).
“The law universally condemns the use of confessions obtained by means of promises or inducements. Bram v. United States, 168 U.S. 542, 542-43, 18 S.Ct. 183, 42 L.Ed. 568 (1897); Washington v. State, 582 S.W.2d. 122, 124 (Tex.Crim.App. 1979). Texas courts apply a four part test to determine whether a promise has rendered an accused’s confession inadmissible. This test requires that the promise must: (1) be of some benefit to the defendant; (2) be positive; (3) be made or sanctioned by a person in authority; and (4) be of such character as would be likely to influence the defendant to speak untruthfully. Washington, 582 S.W.2d at 124; Fisher v. State, 379 S.W.2d 900, 902 (Tex.Crim.App. 1964).” See Gallegos v. State, 715 S.W.2d at 141.
See also U.S. v. Pinto, 671 F. Supp. 41 (D. Maine 1987) [confession involuntary where interrogator promised that he was “on defendant’s side” and “in a position to help” defendant and “the one thing between defendant and jail”]; People v. Shaw, 536 N.E.2d 849 (Ill. App. 1st Dist. 1989)[police officer’s promise to a defendant of probation and psychiatric help undermined the voluntariness of his confession necessitating suppression]; Commonwealth v. Gibbs, 553 A.2d 409 (Pa.S.Ct. 1989) [in-custody suspect, after receiving Miranda warnings and raising issue of obtaining counsel, asked interrogating officer what good it would do to talk with police. Officer responded that any cooperation would be brought to the attention of the district attorney. Such a response was an improper suggestion that “poisoned” the interrogation by interfering with the defendant’s ability to evaluate his need for a lawyer].
But see U.S. ex rel Cole v. Lane, 654 F. Supp. 74 (N.D. Ill. 1987) [where police tell a Mirandized, “educated” defendant that he might receive easier treatment if he confesses. Court admits confession].
The Ninth Circuit has admitted a confession made to Mexican authorities over the defendant’s protests that the admission into evidence of the confession violated the due process and self- incrimination classes of the Fifth Amendment because it was a product of police coercion. U.S. v. Wolf, 813 F.2d 970, 975 (9th Cir. 1987). The Court found that the fact that the defendant received no Miranda warnings, without more, does not lead to the conclusion that the confession was coerced. U.S. v. Wolf, 813 F.2d 970, 975 (9th Cir. 1987).
MIRANDA CANNOT GIVETH AND TAKETH AWAY
A confession is rendered “involuntary as a matter of law” and “inadmissible per se” where it is given in response to the ambiguous Miranda warning that anything the citizen say “might be used ‘for or against him‘ or “for and against him’, as same “renders the confession inadmissible as a matter of law because to warn the accused that his confession might be used for him holds out an inducement for making the confession”. Dunn v. State, 721 S.W.2d 325, 341 (Tex.Crim.App. 1986) (en banc), abrogated by Creager v. State, 952 S.W.2d 852 (Tex.Crim.App. 1997) (en banc). Likewise, a warning that the accused’s “statement will not be used against” him renders any subsequent admission involuntary. Streetman v. Lynaugh, 812 F.2d 950 (5th Cir. 1987).
REQUESTS FOR COUNSEL
A request for counsel constitutes an exercise of the suspect’s Fifth Amendment Miranda rights, and should terminate further questioning by police. Edwards v. Arizona, 451 U.S. 477, 485, 101 S.CT. 1880, 68 L.Ed.2d 378, 386 (1981).
“[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. at 485.
Questioning by police may not be re-initiated after a request for Counsel unless the citizen “initiates” further discussions with police, and intelligently waives the rights he had previously invoked. Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 83 L.Ed.2d 488, 493-4 (1984).
“First, courts must determine whether the accused actually invoked his right to counsel… Second, if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.” Smith v. Illinois, 469 U.S. at 95.
But see Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) [accused’s question “Well, what’s going to happen to me now?” constituted initiation by accused, after which accused knowingly and voluntarily waived the rights previously invoked].
This is a two pronged test:
“We recently restated the requirement in Wyrick v. Fields, 459 U.S. 42, 74 L Ed 2d 214, 103 S Ct 394 (1982) [per curiam], to be that before a suspect in custody can be subjected to further interrogation after he requests an attorney there must be a showing that the ‘suspect himself initiates dialogue with the authorities’.
But even if a conversation taking place after the accused has ‘expressed his desire to deal with the police only through counsel’, is initiated by the accused, where reinterrogation follows, the burden remains upon the prosecution to show that subsequent events indicated a waiver of Fifth Amendment right to have counsel present during the interrogation.” Bradshaw, 462 U.S. at 1044.
Fleming v. Kemp, 837 F.2d 940, 947 (11th Cir. 1988) [a broad interpretation must be given to a request for counsel so that accused’s indication he would get his own attorney was an invocation of the right].
However, exercise caution since the Supreme Court has held that a defendant’s invocation of his Sixth Amendment right to counsel at a hearing does not give rise to his Fifth Amendment right to counsel regarding a different offense than the one addressed in the previous hearing. McNeil v. Wisconsin, 501 U.S. 171, 112 L.Ed.2d 158 (1991). As stated previously, the Sixth Amendment right to counsel is offense specific thus the Supreme Court held “[i]t cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced….” McNeil v. Wisconsin, 501 U.S. 171, 179, 112 L.Ed.2d at 166. Although any incriminating statements pertaining to other crimes would only be admissible “at the trial of those offenses.” McNeil v. Wisconsin, 501 U.S. 171, 180.112 L.Ed.2d. at 167 [quoting Maine v. Moulton, 474 U.S. 159 n.16 (1985)].
The dissent reminded the Court that “Although judges and lawyers may understand and appreciate the subtle distinctions between the Fifth and Sixth Amendment rights to counsel, the average person does not.” McNeil v. Wisconsin, 501 U.S. 171, 184-187 [quoting Michigan v. Jackson, 475 U.S. 625 (1986)]. Showing sensitivity to the current attack on the criminal defense bar, the dissent concluded:
“Whenever the Court ignores the importance of fair procedure in this context and describes the societal interest in obtaining ‘uncoerced confessions’ from pretrial detainees as an ‘unmitigated good,’ the Court is revealing a preference for an inquisitorial system of justice.
“…’This case turns on a proper appraisal of the role of the lawyer in our society. If a lawyer is seen as a nettlesome obstacle to the pursuit of wrongdoers-as in an inquisitorial society-then the Court’s decision today makes a good deal of sense. If a lawyer is seen as an aid to the understanding and protection of all constitutional rights-as in an accusatorial society-then today’s decision makes not sense at all.’
“The Court’s refusal to acknowledge any ‘danger of “subtle compulsion”‘ in a case of this kind evidences an inability to recognize the difference between an inquisitorial and an adversarial system of justice.” McNeil v. Wisconsin, 501 U.S. 171, 189 (1986).
ONCE INVOKED, FIFTH AMENDMENT RIGHT TO COUNSEL CANNOT BE WAIVED WITHOUT COUNSEL’S PRESENCE
With respect to an accused’s Fifth Amendment right to counsel, once a suspect has invoked his or her Edward’s Fifth Amendment right to counsel the lawyer must actually be present before the right to counsel may be waived. It is not enough for the authorities to provide a suspect with an opportunity to consult with Counsel, counsel must actually be physically present. Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990).
“In our view, a fair reading of Edwards and subsequent cases demonstrates that we have interpreted the rule to bar police initiated interrogation unless the accused has counsel with him at the time of questioning. Whatever the ambiguities or our earlier cases on this point, we now hold that when counsel is requested, interrogation must cease, and officials may not reiterate interrogation without counsel present, whether or not the accused has consulted with his attorney.
“We consider our ruling to be an appropriate and necessary application of the Edwards rule.” (emphasis added). Minnick v. Mississippi, 498 U.S. at 158.
However, a death sentenced defendant’s refusal to talk with police without his attorney present, did not preclude the prosecution’s use of a tape recording made by a police officer who sat in on a meeting between the accused and his wife. The Supreme Court reasoned that since the police officer asked no questions, using a tape recorder in plain sight to record their conversation, did not constitute interrogation for Miranda or Edwards purposes. Arizona v. Mauro, 481 U.S. 520, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987).
See also, U.S. v. Webb, 755 F.2d 382 (5th Cir. 1985) [jailer’s questions to an accused concerning the nature of the charges against him constituted police-initiated interrogation in violation of Edwards, where the accused had previously invoked his right to counsel when initially questioned by the F.B.I]; Hamilton v. Nix, 781 F.2d 619 (8th Cir. 1985) [calculated exploitation of fruit of the poisonous tree, resulting in defendant’s request that further incriminating evidence be disclosed, does not attenuate the taint]; Martin v. Wainwright, 770 F.2d 918 (11th Cir. 1985), abrogation recognized by Coleman v. Singletary, 30 F.3d 1420 (11th Cir. 1994) [defendant’s request “can’t we wait until tomorrow” made during a custodial interrogation was a sufficient invocation of right to cut-off questioning and to require officer to determine whether defendant intended to invoke right to counsel];
U.S. v. Porter, 776 F.2d 370 (1st Cir. 1985)[if accused’s words and actions are ambiguous as to whether he wishes a lawyer, questioning officers must find out more specifically whether he wants lawyer before they can proceed with other questioning]; U.S. v. Kroesser, 731 F.2d 1509 (5th Cir. 1984) [a defendant initiated discussion, after invoking right to counsel, by expressing regret of involvement in another criminal activity]; Bradburn v. McCotter, 786 F.2d 627 (5th Cir. 1986) [accused arrested in Nevada for a crime committed in Texas who states to police that he would wait until he got back to Dallas to get a court appointed attorney on some future date does not invoke Edwards]; U.S. v. Gotchis, 803 F.2d 74 (2d Cir. 1986) [Edwards not violated by seeking basic identifying data even though later used to incriminate]; U.S. v. Taylor, 799 F.2d 126 (4th Cir. 1986) [seeking accused’s identity may constitute Edwards violation if identity reasonably expected to be incriminating]; U.S. v. Johnson, 812 F.2d 1329 (11th Cir. 1986) [statement made “in same breath” as invocation of right to counsel admissible, statement made just after invocation not admissible]; Ramirez v. State, 721 S.W.2d 490 (Tex.App.- Houston [1st Dist.] 1986) [videotaping a Mirandized detainee attempting to call his attorney held not to deny him his right to counsel]; State v. Spencer, 750 P.2d 147 (Or. 1988) [a DWI arrestee is entitled to a reasonable opportunity to contact an attorney regarding breath test or results are suppressible].
PRESENCE OF COUNSEL SERVES TO INSURE TRUSTWORTHINESS
The Supreme Court has long recognized that the presence of counsel serves to protect both the accused and his accuser.
“The presence …may serve several significant …functions. …If the accused decides to talk to his interrogators, the assistance of counsel can mitigate the dangers of untrustworthiness. With a lawyer present the likelihood that the police will practice coercion is reduced, and if coercion is nevertheless exercised the lawyer can testify to it in court. The presence of a lawyer can also help to guarantee that the accused gives a fully accurate statement to the police and that the statement is rightly reported by the prosecution at trial”. Miranda v. Arizona, 384 U.S. 436, 470, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
See U.S. v. Wade, 388 U.S. 218, 230, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) [equating similar functions served by Sixth Amendment right to counsel].
REQUEST BY THIRD PARTY
Failure of police to inform arrestee that a lawyer hired by his sister unbeknownst to him had called and requested they not speak to him before lawyer saw him does not invoke Edwards nor render citizen’s otherwise voluntary confession inadmissible. Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135 (1986). Contra, State v. Hickman, 338 S.E.2d 188 (W.Va. 1985).
AMBIGUOUS REQUEST FOR COUNSEL
An ambiguous request for counsel terminates further custodial interrogation beyond clarifying whether the accused desires to consult with an attorney. U.S. v. Cherry, 733 F.2d 1124, 1130 (5th Cir. 1984), abrogation recognized by Soffar v. Cockrell, 300 F.3d 588 (5th Cir. 2002).
“If a suspect is indecisive in his request for counsel, law enforcement officials must cease the interrogation unless they ask the suspect further questions to clarify whether the suspect wants to consult with an attorney before continuing with the interrogation. However, such questioning is to be limited to this clarification and cannot be used as a means of eliciting any incriminating statements from the suspect relating to the subject matter of the ‘interrogation.'” Bradshaw, 462 U.S. at 1044.
However, a suspect’s refusal to give a written statement without the presence of counsel under Edwards
- Arizona, where he expressed his willingness to provide an oral statement waived his rights. Connecticut v. Barrett, 479 U.S. 523, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987).
Silva v. Estelle, 672 F.2d 457, 459 (5th Cir. 1982) [where request is “equivocal” the officers should “make further inquiry to clarify the suspects wishes”]; U.S. v. Olsen, 609 F. Supp. 1154 (D.C. Me. 1985) [lack of knowledge of prior request for counsel by questioning officers is immaterial]; U.S. v. Webb, 755 F.2d 382 (5th Cir. 1985); U.S. v. Porter, 776 F.2d 370 (1st Cir. 1986); U.S. v. Fouche, 776 F.2d 1298 (9th Cir. 1985).
But see Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) [an accused’s inquiry: “what is going to happen to me now” constituted initiation of further communication by the accused warranting interrogation].
“Before a suspect in custody can be subjected to further interrogation after he requests an attorney, there must be a showing that the ‘suspect himself initiated dialogue with the authorities’…
But even if a conversation taking place after the accused has ‘expressed his desire to deal with the police only through counsel’, is initiated by the accused, where reinterrogation follows, the burden remains upon the prosecution to show that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation.” Bradshaw, 462 at 1044.
See Commonwealth v. Waggoner, 540 A.2d 280 (Pa. 1988) [defendant stating that he could not afford a lawyer raised a duty in the officers to clarify whether or not he was asserting his Sixth Amendment right to counsel]; Bradburn v. McCotter, 786 F.2d 627 (5th Cir. 1986) [statement by an accused arrested in Nevada that he would wait until he got to Texas to obtain a court appointed counsel at some future date did not invoke Edwards]. See also U.S. v. Gravatt, 868 F.2d 585 (3d Cir. 1989) [where defendant, charged with tax evasion, claimed to be unemployed but refused to complete financial affidavit claiming it would violate his privilege against self-incrimination; court should make effort to answer defendant’s concern by in camera review, seal information, or grant use immunity for indigency hearing].
SIXTH AMENDMENT “RIGHT TO COUNSEL” MORE EASILY INVOKED THAN FIFTH AMENDMENT RIGHT
Although the United States Supreme Court had recognized the significance of formal charges being brought against an accused when it held that even a generalized request for counsel precludes subsequent questioning of the accused without counsel present, Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986) overruled by Montejo v. Louisiana, 556 U.S. 778 (2009); the Court held that the formal attachment of the Sixth Amendment right to counsel alone has no effect on the rules governing overt police questioning. Thereby, an indicted accused who has not asked for an attorney may be further questioned by police and prosecutors without counsel present. Patterson v. Illinois, 487 U.S. 285, 291, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988).
In a 5-4 decision, the Court held that “the prosecution may use a statement taken in violation of the Jackson prophylactic rule to impeach a defendant’s false or inconsistent testimony.” Michigan v. Harvey, 494 U.S. 344, 108 L.Ed.2d 293, 110 S.Ct. 1176 (1990). Although the agent taking the statement had told the defendant that he did not need to speak to his attorney the Court concluded that there were not sufficient record facts to demonstrate whether defendant had waived his Sixth Amendment rights.
“We have never prevented use by the prosecution of relevant voluntary statements by a defendant, particularly when the violations alleged by a defendant relate only to procedural safeguards that are ‘not themselves rights protected by the constitution,’ but are instead measures designed to ensure that constitutional rights are protected. In such cases, we have decided that the ‘search for truth in a criminal case’ outweighs the ‘speculative possibility’ that exclusion outweighs the ‘speculative possibility’ that exclusion of evidence might deter future violations of rules not compelled directly by the Constitution in the first place.” [citations omitted].
The Court concluded that there should be no further extension of the exclusionary rule for Jackson violations than there is for violations of Edwards or Miranda Stating that “nothing in the Sixth Amendment prevents a suspect charged with a crime and represented by counsel from voluntarily choosing, on his own, to speak with police in the absence of an attorney” the Court did not address Justice Stevens’ concern voiced in the dissent:
“The Sixth Amendment right to counsel is much more pervasive because it affects the ability of the accused to assert any other rights he might have.”
“…Just as the Sixth Amendment’s right to ‘the assistance’ of counsel necessarily encompasses a right to the effective assistance of counsel,… so too the accused’s right to have counsel ‘for his defense’ in a ‘criminal prosecutio[n]’ includes the right to rely on counsel after the government’s role has shifted from investigation to accusation and the ‘defendant finds himself faced with the prosecutorial forces of organized society.’
“…Any lesser guarantee would provide insufficient protection against any attempt by the State to supplant ‘the public trial guaranteed by the Bill of Rights’ with a secret trial in the police precincts.’ [footnotes and citations omitted].”
PER SE EXCLUSION OF EDWARDS V. ARIZONA APPLIES WHEN RIGHT TO COUNSEL HAS BEEN EXPRESSLY INVOKED
“Thus, the Sixth Amendment right to counsel at a post-arraignment interrogation requires at least as much protection as the Fifth Amendment right to counsel at any custodial interrogation.
Indeed, after a formal accusation has been made – and a person who had previously been just a “suspect” has become an “accused” within the meaning of the Sixth Amendment – the constitutional right to the assistance of counsel is of such importance that the police may no longer employ techniques for eliciting information from an uncounselled defendant that might have been entirely proper at an earlier stage of their investigation. …In Edwards, …we rejected the notion that, after a suspect’s request for counsel, advice of rights and acquiescence in police-initiated questioning could establish a valid waiver. 451 U.S., at 484, 68 L Ed 2d 378, 101 S Ct 1830. We find no warrant for a different view under a Sixth Amendment analysis. …
Edwards is grounded in the understanding that “the assertion of the right to counsel [is] a significant event”, 451 U.S. at 485, 68 L Ed 2d 378, 101 S Ct 1880, and that “additional safeguards are necessary when the accused asks for counsel.” Edwards, 451 U.S. at 484, 68 L Ed 2d 378, 101 S.Ct 1880. We conclude that the assertion is no less significant, and the need for additional safeguards no less clear, when the request for counsel is made at an arraignment and when the basis for the claim is the Sixth Amendment. We thus hold 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.” Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631, 639-642 (1986).
Although Michigan v. Jackson was overruled by Montejo v. Louisiana, 556 U.S. 778 (2009), courts have applied the Edwards v. Arizona, per se standard to review statements obtained from a formally charged citizen, as though the accused had expressly invoked his right to counsel. U.S. v. Eagle Elk, 711 F.2d 80, 82 (8th Cir. 1983).
“Our examination of the relevant case[s] leads us to conclude that the appropriate standard for reviewing the validity of a waiver of the Sixth Amendment right to have counsel present at an interrogation is essentially the same standard applied to waivers of the Fifth Amendment right to counsel where the right to counsel has been previously invoked.” U.S. v. Eagle Elk, 711 F.2d at 82.
Thus, “a valid waiver of that right cannot be established by showing that he responded ..even if he has been advised of his rights”. Edwards v. Arizona, 451 U.S. at 483.
But see U.S. v. Taylor, 799 F.2d 126, 128 (4th Cir. 1986) (after defendant invoked his Miranda right to counsel, police questioned him concerning his identity and elicited incriminating statements; however, the court held that where the “officers had no reasonable expectation that their questions would be likely to elicit incriminating information”, no Miranda violation occurred during their “ministerial” questioning].
RETROACTIVITY OF EDWARDS
The Edwards prohibition against further interrogation after a request for counsel is not to be retroactively applied on collateral (“Habeas”) review of a final conviction. Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984). The Supreme Court has also held that Edwards should be given retroactive application to cases pending on “direct appeal” at the time Edwards was decided. Shea v. Louisiana, 470 U.S. 51, 105 S.Ct. 1065, 84 L.Ed.2d 38 (1985).
PER SE RULE BECOMES PRESUMPTIVE
The Supreme Court has abandoned any per se rule that requesting an attorney automatically terminates further interrogation by holding that the failure to carry out the obligation of Miranda only presumptively violates the Fifth Amendment. Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d (1985). As a result, derivative evidence obtained by exploitation of a Miranda violation is not per se tainted. U.S. v. Cherry, 794 F.2d 201, 207 (5th Cir. 1985) [the standard for determining whether “derivative evidence” is rendered inadmissible is the “due process voluntariness” standard. However, the burden of showing a waiver of the Fifth Amendment right to Counsel during interrogation remains on the prosecution].
EVEN VOLUNTEERED STATEMENTS HAVE BEEN EXCLUDED
Even where a formally charged defendant “initiated conversation with the officers in an attempt to make what he called a ‘deal'”, the Courts have held “that the Massiah rule …applies to exclude post- indictment incriminating statements of an accused to Government agents in the absence of counsel even when not deliberately elicited by interrogation or induced by misapprehension engendered by trickery or deception” and even where “it is clear [the] statements …were volunteered.” Hancock v. White, 378 F.2d 479, 482 (1st Cir. 1967).
CANNOT OBTAIN WAIVER FROM ACCUSED “UNDER THE INFLUENCE”
At least one court has held that a valid waiver cannot be obtained from an accused who is “under the influence” of narcotics, and consequently, any statement obtained thereafter would be tainted. U.S. v. Woolbright, 641 F. Supp. 1570 (E.D. Mo. 1986).
WAIVER BY MENTALLY RETARDED ACCUSED MUST BE MADE KNOWINGLY AND INTELLIGENTLY
A waiver of Miranda rights by an accused who is mentally retarded must be made knowingly and intelligently just like a waiver by any other citizen. Smith v. Zant, 855 F.2d 712 (11th Cir. 1988)[defendant had poor reading and verbal comprehension, had been hiding in the woods for twenty-four hours prior to the questioning, and was questioned by a police officer who had known him all his life]. See also Miller v. Dugger, 838 F.2d 1530 (11th Cir.), cert. denied, 486 U.S. 1061 (1988) [mental illness is a factor that must be considered when deciding whether a waiver was intelligent; this is separate from the Connelly question of official coercion).
When police ask paid informant to relate statements made by a formally charged defendant incarcerated in the same cell, same violates that defendant’s constitutionally guaranteed right to counsel, just as if the inmate “agent” were a police officer himself. U.S. v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1972) [paid informant]; Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1970) [officer posing as cellmate];
Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) [same result on both 5th and 6th amendment grounds with respect to psychiatrist’s examination for competency, where he is called at later stage to testify as to the defendant’s “dangerousness” in death penalty case]; Holyfield v. State, 711 P.2d 834 (Nev. 1985) [questioning by officially-planted cellmate was functional equivalent of official questioning]; U.S. v. Sampol, 636 F.2d 621 (D.C. Cir. 1980) [cell-mate/informant whose sentence depended solely upon giving information to the prosecutor was described as “information at large” and his testimony was excluded].
But see Illinois v. Perkins, 496 U.S. 292 (1990) (“Where the suspect does not know that he is speaking to a government agent, there is no reason to assume the possibility of coercion.” Thus the Miranda requirements are not triggered) (citing Massiah v. United States, 377 U.S. 201 (1964)). Thomas v. Cox, 708 F.2d 132 (4th Cir. 1983) [Henry rationale not applicable where the informant acted not as “agent of state” but was either “motivated by conscience” or “curiosity” without prior arrangement with the police or prosecution]; U.S. v. Taylor, 800 F.2d 1012 (10th Cir. 1986) [where government made neither promises to, nor entered into agreements with, informer and consequently any statements made to informer were admissible]; Dufour v. State, 495 So.2d 154 (Fla. 1986) [where informer volunteered the incriminating statements, no agency relationship existed with the government and his statements were held admissible]; U.S. v. Hicks, 798 F.2d 446 (11th Cir. 1986) [where informer was not “employed” to obtain incriminating statements from the accused, his statements were admissible].
RESURRECTION AND SUBSEQUENT CHANGES TO McNABB/MALLORY RULE
FED. R. CRIM. P. Rule 5(a) required that a federal officer “making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available federal magistrate” and “a complaint shall be filed forthwith which shall comply with the requirements of Rule 4(a) …with respect to the showing of probable cause” thereby incorporating the arrest warrant requirements of FED. R. CRIM. P. 4(a) and most states have analogous statutory provisions, e.g., TEX. CODE CRIM. P. Art. 14.06. Thus, the Supreme Court has exercised its “supervisory power,” to exclude confessions and other evidence obtained from an accused during a period of “unnecessary delay” in bringing him before a magistrate. McNabb v. U.S., 318 U.S. 332, 43 S.Ct. 608, 87 L.Ed. 819 (1943), superseded by statute as stated in Corley v. U.S., 556 U.S. 303 (2009); Mallory v. U.S., 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), superseded by statute as stated in Corley v. U.S., 556 U.S. 303 (2009).
Then in 2009, the Court held that 18 U.S.C. § 3501 “modified McNabb–Mallory without supplanting it. Under the rule as revised by § 3501(c), a district court with a suppression claim must find whether the defendant confessed within six hours of arrest (unless a longer delay was “reasonable considering the means of transportation and the distance to be traveled to the nearest available [magistrate judge]”). If the confession came within that period, it is admissible, subject to the other Rules of Evidence, so long as it was “made voluntarily and … the weight to be given [it] is left to the jury.” Ibid. If the confession occurred before presentment and beyond six hours, however, the court must decide whether delaying that long was unreasonable or unnecessary under the McNabb–Mallory cases, and if it was, the confession is to be suppressed.” Corley v. U.S., 556 U.S. 303, 322 (2009).