C. FIFTH AND SIXTH AMENDMENT RIGHTS

3. Moving away from the voluntariness test: Massiah & Escobedo

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  Under Escobedo’s “focus and purpose test”, the 6^th Amend RTC attaches where investigation has begun to focus on a particular suspect and is for the purpose of eliciting incriminating statements, even in a pre-indictment setting (Escobedo)
  
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  IN EXAM: You would want to argue if you are in a pre-FAJP setting, that D’s 6^th Amend right to counsel had still attached under Escobedo’s “focus and purpose test” and therefore, by not having his counsel present during interrogation (even if he validly waived Miranda), D’s 6^th Amend right was violated and therefore the confession should be excluded (but noting the ambiguity in footnote 4 of Miranda which appears to suggest that Miranda has displaced Escobedo)
  

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  Facts: D was indicted on narcotics charges, retains lawyer and pleads not guilty. Whilst on bail, a federal agent installs a secret listening device in the car of one of D’s co-defendant’s (who was cooperating with the police). The agent then listed to incriminating statements made by D in the car.
  
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  Held: D was denied basic protections of the 6^th Amend guarantee of right to counsel when evidence of his own incriminating words was used against him at trial which federal agents had secretly and deliberately elicited from him after he had been indicted and in the absence of counsel.
  
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  Note:
  
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    The approach of the Spano concurrence, that the conviction should be reversed on the sole ground that the defendant was denied right to counsel, becomes the holding in Massiah.
    
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    Also the SC did not question that the investigation of D’s suspected criminal activities could continue, rather just that the defendant’s own incriminating statements, obtained by the agents using surreptitious means, could not constitutionally be used by the prosecution as evidence against him at his trial.
    
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    Although the police cannot use D’s incriminating statements against D, they can still use them against others.
    
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    Massiah was not clear, for example, did it matter whether D had been indicted or obtained counsel? The SC returned to these matters a year later in Escobedo where the D had been arrested but not charged and had purported to invoke his right to counsel (p.772)
    

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  Facts: D was arrested and taken to a police station for questioning (he had not yet been indicted). Over several hours, the police refused his repeated requests to see his lawyer. D’s lawyer sought unsuccessfully to consult with D. Police told D that his “lawyer didn’t want to see him”. D finally subsequently confessed to murder.
  
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  Held: 6^th Amend right to counsel attaches where a police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect in police custody and the questioning is for the purposes of eliciting incriminating statements. Accordingly, as D had been denied access to his lawyer, his 6^th Amend RTC had been violated.
  
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  Note: This decision is really important because it suggests that your 6^th Amend RTC still attaches in a pre-indictment setting where you can satisfy the “focus and purpose test” (recall that Kirby held that 6^th Amend RTC only attached after FAJP in a line-up context). However, the scope and application of Escobedo today remains uncertain, especially in light of Miranda’s footnote 4 which appears to suggest that Escobedo has been displaced by Miranda, but you would still argue it as defense counsel in the exam as an alternative right of redress.