I. criminal procedure overview 3


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1. Overview

Rule: Where FAJP have commenced, D has a 6th Amend right to counsel whenever the government interrogates him, unless D waives (Massiah, Brewer)
Brewer v. Williams (1977) (p.882) (“Christian burial speech” – once FAJP commenced, D has a 6th Amend right to assistance of counsel whenever the government interrogates him, no evidence of waiver)

  • Facts: D (mental patient) arrested on warrant for murder, given Miranda warnings and obtains attorney. D arraigned before court in neighboring county. Attorney obtains a promise from police not to interrogate on drive back (one of his attorneys is denied permission to ride in the car). While in car, detective gives a “Christian burial speech” about family not being able to bury their missing daughter and says to D “I don’t want you to answer me, just think about it”. D then directs officers to location of the body.

  • Held:

    • Clear that FAJP had already commenced before start of car ride (D had been arrested on a warrant and arraigned before a judge).

    • Circumstances of this case are “constitutionally indistinguishable” from Massiah, where it was held that once FAJP have commenced against an individual, he has a 6th Amend right to assistance of counsel whenever the government interrogates him. D had been deprived of that right in the car when he made the incriminating statements.

    • No evidence that D had waived his 6th Amend right – proper standard for waiver of 6th Amend right is an “intentional relinquishment or abandonment of a known right or privilege” (per Zerbst)

    • Attorney, as D’s agent, made clear to police that D was not to be interrogated before seeing him, also D said in the car that he “would tell the whole story” after he had seen his attorney. Accordingly, no basis for concluding that D had waived his 6th Amend right.

  • Dissent (Burger CJ): D waived 5th Amend right to silence and 6th Amend right to counsel when he led police to the body. Voluntary disclosures made without coercion should not be suppressed. Need to weigh deterrence of police conduct against strong social interest in prosecuting criminals. Core purpose of 6th Amend right is to safeguard the fairness of the trial and the integrity of the fact-finding process. In this case, where D’s disclosures were voluntary and uncoerced and the evidence of how the child’s body was found is of unquestioning reliability, there is no issue of fairness or evidentiary reliability to justify suppression. Rather, the majority appears to suppress simply to deter future police conduct.

Henry (1980) (p.891) (6th Amend violation where jail informant questions D in absence of counsel – as govt “deliberately elicited” information)

  • Facts: Government planted an informant in cell with D (who had been indicted). Informant initiates conversations with D who then made incriminating statements.

  • Held: Where FAJP have commenced, the government may not “deliberately elicit” information from a suspect without first obtaining a waiver of his 6th Amend rights. By “intentionally creating a situation likely to induce D to make incriminating statements without the assistance of counsel, the government violated his 6th Amend rights”.

Kuhlmann (1986) (p.891) (no 6th Amend violation were jail informant just passively “listens” without deliberately eliciting)

  • Facts: Similar facts to Henry, informant planted in cell with D but this time didn’t initiate conversation, although did tell D that his exculpatory story would not convince anyone without more work.

  • Held: D must demonstrate that the police and informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks. Accordingly, D’s 6th Amend rights were not violated.

  • Dissent (Brennan J): The state intentionally created a situation where it was foreseeable that D would make incriminating statements without the assistance of counsel. The deliberate-elicitation standard requires consideration of the entire course of government conduct.

Cobb (2001) (6th Amend right is offense-specific)

  • Facts: D arrested and indicted for burglary. Counsel is appointed to represent D on the burglary charge. D is released on bail. D then rearrested, warned, waived rights and questioned in relation to a murder to which he confesses.

  • Held: 6th Amend right to counsel is “offense-specific” and therefore the police were not barred from questioning D in relation to the murder without his counsel, despite the fact that he had obtained counsel in the burglary matter.

Ventris (2009) (p.892)

Montejo (2009) (p.894)

  • Held: Overruled Jackson which had previously held that once D’s 6th Amend right attaches, the police cannot approach D to obtain a waiver of his right to counsel (even if Miranda rulings had been given and D expressly waived counsel).

2. Fifth v. Sixth Amendment Table


5th Amendment

6th Amendment


Custody + interrogation (Miranda)

  • Custody = restriction on freedom of movement (Miranda)

  • Interrogation = Innes test for interrogation

Commencement of formal adversarial judicial proceedings (FAJP) (Kirby – the government must have committed itself to prosecute)

  • FAJP = formal charge, preliminary hearing, indictment, information, or arraignment

Impact (where right has attached)

Must provide Miranda warnings, otherwise statements are presumptively compelled and inadmissible

Cannot interrogate in absence of counsel unless D has waived (test for waiver “is intentional relinquishment or abandonment of a known right or privilege” – Brewer)

Purpose of right to counsel

Miranda right to counsel during custodial interrogation is justified on the basis that you need to be able to consult with counsel in order to decide whether the exercise your right to silence under the 5th Amend

6th Amend right to counsel is designed to assist D at trial when he is faced with the intricacies of the law and the advocacy of the prosecutor and to safeguard the fairness of the trial and the integrity of the fact-finding process


No, where D invokes his Miranda right to counsel, he cannot be re-interrogated, even in respect of a different crime without seeing an attorney (Roberson)
When you waive Miranda, you may be waiving in relation to offenses that you are not aware of (Spring)

Yes, it is offense-specific to particular charge the subject of the FAJP  so police can question D in absence of attorney in relation to a different charge

Jail plants

No 5th Amend violation where informant elicits information under Perkins provided D does not see it as a demand for information from “police blue”

6th Amend violation where informant “deliberately elicits” information from D in absence of attorney (Massiah and Henry­ – but note Kuhlmann where the informant passively “listened” and did not deliberately elicit information)

Objective or subjective?

Objective from perspective of the suspect

Subjective assessment from the perspective of the police (i.e. in Kuhlmann, the informant did not intentionally elicit information, rather he passively listened)

Example: D arrested on a single robbery charge and arraigned. D invokes 6th Amend right to counsel and is sent to a prison cell where the government plants an informant. D then engages in conversation with the informant and confesses to other robberies, can the statements be used?

  • 5th Amend: no violation under 5th Amend – as D not being “interrogated” for Miranda purposes as suspect did not see it as a demand for information from “police blue” under Perkins (D thought that he was talking to a fellow “equal” cellmate, none of the typical coercive pressures associated with police interrogation)  therefore not “custodial interrogation” and D did not need to be Miranda warned before (even though he invoked his Miranda right to counsel)

  • 6th Amend: no violation under 6th Amend as it is offense-specific, and therefore, because D was talking about the other robberies, there is no 6th Amend violation.

  • Accordingly, the statements can be used.

Example: Police use a dog to search for a bank robber. They follow the suspect to some bushes and let the dog run in. The suspect yells “get that dog off me, ok you caught me!”. Can his statement be used?

  • 5th Amend: no Miranda issue as suspect is arguably not “custodial interrogation”

  • 6th Amend: no 6th Amend issue as no FAJP

  • Possible 14th Amend issue – was D’s admission voluntary? Was D’s will “overborne” by the police dog? But here, police were not using the dog to extract confessions also the statement may be reliable and admissible even though it was obtained involuntarily.

  • 4th Amend – was it a reasonable use of force? Arguably, given the circs was the use of force “reasonable” (Graham) (diabetes case – 4th Amend reasonableness standard applies to all excessive force claims, deadly or not, i.e. whether officer’s actions were objectively reasonable in the circs)


Dickerson (2000) (p.862)

  • Held: Miranda is a constitutional decision and may not be overruled by an Act of Congress. The SC could have overruled Miranda but expressly declined to do so, holding that it still governs the admissibility of statements made during custodial interrogation in both state and federal courts.

  • Dissent (Scalia & Thomas): Since there is in fact no other principle that can reconcile today’s judgment with the post-Miranda cases that the Court refuses to abandon, what today’s decision will stand for, whether the Justices can bring themselves to say it or not, is the power of the SC to write a prophylactic, extra-constitutional Constitution

Prof reflections in final class

  • Miranda is very porous today, it seems that most confessions are the result of police manipulation (i.e. police have successfully adapted their interrogation techniques to elicit confessions such as de-emphasizing guilt etc.)

  • The whole point of criminal procedure is to determine the line between crime control and control of the police. These restraints are very important in generating trust from the community, so that the community in turn helps with crime control. These rules contribute to the legitimation of police relations with the community and stronger rules allow for more effective crime control.

  • The Warren SC granted many rights to suspects whereas the Rehnquist SC cut back many of those rights, but it is important to note that many of the key compromises to law enforcement where already built in by the Warren SC from the beginning (i.e. there were a lot of exceptions/loopholes from the outset).

  • How do the loopholes/exceptions affect the dynamic? One example is that you get legitimation from the appearance of restraint but there are so many exceptions so the evidence gets in any way, so there is no real cost to law enforcement. But what if people are “not fooled”? There is a new progressive approach being driven by experts such as Stuntz which argues that you should relax the constitutional restraints and allow the political process to impose clearer legislative rules analogous to the position in the UK and Australia (the latter of which is a particularly awesome country according to the author of this outline, although as an Aussie LLM student his objectivity is slightly compromised).

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