Massiah and the 6th Am Right to Counsel Flashcards
purpose/function of Massiah
o purpose: regulates police pretrial misconduct – specifically in Massiah, the defendant was out on bail pending trial and the police used a confidential informant to get info – deemed inadmissible
Elements of Massiah
o governing rule (Massiah): police have violated a defendant’s right to counsel when:
(1) judicial proceedings have been initiated, AND
• that does not mean the defendant has been arrested, an arrest is not enough to implicate Massiah, instead the initiation of judicial proceedings is associated with the first appearance before a judicial officer at which time a defendant is told of the formal accusation against him and (a) restrictions are imposed on his liberty or (b) issuance of an indictment
(2) the government deliberately elicits a statement from a defendant who is represented by counsel in the absence of counsel
compare/contrast Massiah and Miranda
first off, its right to counsel (Massiah) vs right against self incrim (Miranda)
**where a formally charged defendant is custodially questioned by law enforcement, he is protected by both Miranda and Messiah
**Miranda, unlike Massiah, does not require that judicial proceedings have been initiated
Massiah, unlike Miranda, does not require the defendant be in custody
to run afoul of Massiah, the government must deliberately elicit a statement from the defendant – for purposes of Miranda violation, it is only necessary that the officer should know (reasonable officer would know) that her words or actions are reasonably likely to elicit an incriminating response
Massiah, unlike Miranda, is offense-specific
**so an elicited admission regarding another crime is admissible
Massiah can apply to police informants who are acting as agents of law enforcement, whereas Miranda does not provide protection against false friends including undercover law enforcement/police informants
Massiah, unlike Miranda, is only applicable if a defendant is represented by counsel [Massiah does not apply if a defendant is proceeding pro se]
generally, Miranda rights are sufficient to inform suspects of their 6th Am rights as well
waiver is the same in both contexts, but, sometimes a Miranda waiver will be insufficient for 6th Am purposes
• ex) police officers who fail to inform suspects during questioning that a lawyer is trying to reach them do not compromise the validity of the suspects’ Miranda waivers; however, Sixth Amendment waivers would not exist in such circumstances (Patterson)
the appointment of counsel at a Sixth Amendment hearing, such as an initial arraignment at which suspects hears the charges filed against them and a judge sets bail, does not invalidate a subsequent Sixth Amendment waiver for purposes of custodial interrogation (Montejo)
• accordingly, incriminating statements made by the defendant during the interrogation are admissible, provided the prosecution demonstrates that the defendant waived his right to counsel knowingly, intelligently, and voluntarily
blockburger test for “offense specific”
Blockburger Test: where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or one is whether each offense requires proof of a fact which the other does not
• involves a two-step process:
o (1) the threshold inquiry is whether the alleged statutory violations arise from the same act or transaction
o (2) where the threshold is met, a court next examines the statutes to determine whether the crimes of which the defendant was convicted constitute the same offense
for this second step of the analysis, where each statutory offense includes an element not contained in the other, the offenses are distinct – so consider whether proof of one will automatically prove the other
if the defendant has already been indicted for a “lesser-included” offense than the one that he has now made a statement about, these will be considered the same offense (i.e. indicted for theft, but now they want to use your statement that implicated you in robbery (armed theft) – they can’t do that)
waiver of Massiah rights
o rule (waiver): the defendant (even though he or she has already been arraigned, charged, and is represented by counsel) can be interrogated and subjected to questioning without the presence of counsel IF he or she waives the right to counsel (Montejo) **however, if the defendant invokes a right to counsel in response to police interrogation, this triggers the protections of the Edwards/Minnick/Shatzer line of cases (i.e. the immediate contact and any badgering must end)
rule for informants and Massiah
o rule (informants): the state can use statements obtained by informants who are agents of the state so long as the informant does not take some action, beyond merely listening, that is designed deliberately to elicit incriminating remarks (Henry/Kuhlman) **will be considered coercive it the informant intentionally created a situation likely to induce the suspect to make incriminating statements without the assistance of counsel **the fact that the trial testimony is provided by a different state official, one who merely listened to the unlawful exchange, does not insulate or sanitize the unconstitutionality of the government’s conduct
current BLL on 6th Am right to counsel (and exception)
• current BLL: absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial (Argersinger)
o however: a defendant has no right to counsel where the government imposes a fine for a misdemeanor offense instead of putting them in jail (Scott) – so it is not the potential for jail time that is relevant; a defendant has to actually receive a sentence of incarceration to trigger the counsel requirement
for the states, who determines the need for counsel
• rule: the decision as to the need for counsel must be made on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system (Gagnon)
right to counsel and its relationship to probation and suspended prison sentences
• rule: revocation of probation with incarceration resulting from a probation violation where the defendant was not represented by counsel in the initial proceeding violates the defendant’s right to counsel as does imposition of a suspended imprisonment sentence (Shelton)
implicit waiver of right to counsel
o implicit waiver: waiver is presumed from the defendant’s conduct after she has been made aware that her continued misbehavior will result in loss of a right to counsel and the dangers and disadvantages of proceeding pro se
forfeiture of right to counsel (and the procedure that must be followed)
o forfeiture does not require any intent or warning as to loss of the right to counsel – a defendant may be found to have forfeited her right to counsel where she engages in extremely serious misconduct
forfeiture procedure:
• (1) counsel should be allowed to withdraw if requested
• (2) then, unless the attack occurred in full view of the court, the trial court should conduct promptly an evidentiary hearing, with the defendant present and permitted to testify, and make findings of fact on the basis of the proof presented
• (3) the trial court should determine, on the basis of the facts found, whether the defendant engaged in “extremely serious misconduct” sufficient to justify the extraordinary sanction of an immediate forfeiture (or implicit waiver) of counsel
• (4) if the trial court concludes that the defendant did not commit “extremely serious misconduct” so as to justify a forfeiture, the trial court should (A) appoint new counsel (assuming prior counsel withdrew); (B) inform the defendant of the potential consequences of future misbehavior and the risks of proceeding pro se; and (C) order such measures as are necessary to protect new counsel from future misbehavior by the defendant
scope of the standard of right to effective assistance of counsel
• broad standard: whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result
Strickland test for right to effective assistance of counsel
• Two-Pronged Strickland Test:
o (1) Deficient Performance – counsel is strongly presumed to have rendered adequate assistance and made all decisions in the exercise of reasonable professional judgment – the defendant must show that defense counsel’s performance objectively fell outside the wide range of professional reasonableness for representation when assessed not with the benefit of hindsight but viewed as of the time of counsel’s conduct
o (2) Prejudice – the defendant must show a reasonable probability, that is a probability sufficient to undermine confidence in the outcome, that but for counsel’s unprofessional errors the result would have been different
right to effective assistance - when will prejudice (second strickland prong) be presumed? what are the relevant limitations?
• rule (Cronic): prejudice is presumed if
o (1) there has been a complete denial of counsel,
o (2) if counsel entirely fails to subject the prosecution’s case to a meaningful adversarial testing, OR
o (3) when there is an actual conflict of interest for counsel
o Limitations:
for the presumption of prejudice to apply with regard to conflicts of interest, the defendant bears the burden of demonstrating that defense counsel was (1) actively representing conflicting interests and (2) that the conflict adversely affected counsel’s performance for the defendant
Cronic categories (1) & (2) have also been limited (ex: Bell v. Cone – attorney who failed to call any mitigation witnesses at capital sentencing proceeding but who did cross-examine some of the prosecutions witnesses did not fall within Cronic category 1 or 2)
note: falling outside the ambit of the Cronic presumed prejudice categories does not defeat an ineffectiveness claim – rather it forces the defendant to meet the requirements of the Strickland prejudice prong rather than being able to rest upon presumed prejudice
limitations on duties of counsel in effective assistance
• rule: duty is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth – although counsel must take all reasonable lawful means to attain the objectives of the client, counsel is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law (Nix)
