MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari to consider whether respondent's Sixth Amendment right to the assistance of counsel was violated by the admission at trial of incriminating statements made by respondent to his cellmate, an undisclosed Government informant, after indictment and while in custody. 444 U.S. 824 (1979).
The Janaf Branch of the United Virginia Bank/Seaboard National in Norfolk, Va., was robbed in August 1972. Witnesses saw two men wearing masks and carrying guns enter the bank while a third man waited in the car. No witnesses were able to identify respondent Henry as one of the participants. About an hour after the robbery, the getaway car was discovered. Inside was found a rent receipt signed by one "Allen R. Norris" and a lease, also signed by Norris, for a house in Norfolk. Two men, who were subsequently convicted of participating in the robbery, were arrested at the rented house. Discovered with them were the proceeds of the robbery and the guns and masks used by the gunmen.
Government agents traced the rent receipt to Henry; on the basis of this information. Henry was arrested in Atlanta. Ga., in November 1972. Two weeks later he was indicted for
On November 21, 1972, shortly after Henry was incarcerated, Government agents working on the Janaf robbery contacted one Nichols, an inmate at the Norfolk city jail, who for some time prior to this meeting had been engaged to provide confidential information to the Federal Bureau of Investigation as a paid informant. Nichols was then serving a sentence on local forgery charges. The record does not disclose whether the agent contacted Nichols specifically to acquire information about Henry or the Janaf robbery.
Nichols informed the agent that he was housed in the same cellblock with several federal prisoners awaiting trial, including Henry. The agent told him to be alert to any statements made by the federal prisoners, but not to initiate any conversation with or question Henry regarding the bank robbery. In early December, after Nichols had been released from jail, the agent again contacted Nichols, who reported that he and Henry had engaged in conversation and that Henry had told him about the robbery of the Janaf bank.
When Henry was tried in March 1973, an agent of the
Nichols testified at trial that he had "an opportunity to have some conversations with Mr. Henry while he was in the jail," and that Henry told him that on several occasions he had gone to the Janaf Branch to see which employees opened the vault. Nichols also testified that Henry described to him the details of the robbery and stated that the only evidence connecting him to the robbery was the rental receipt. The jury was not informed that Nichols was a paid Government informant.
On the basis of this testimony,
On August 28, 1975, Henry moved to vacate his sentence pursuant to 28 U. S. C. § 2255.
On remand, the District Court requested affidavits from the Government agents. An affidavit was submitted describing the agent's relationship with Nichols and relating the following conversation:
The agent's affidavit also stated that he never requested anyone affiliated with the Norfolk city jail to place Nichols in the same cell with Henry.
The District Court again denied Henry's § 2255 motion, concluding that Nichols' testimony at trial did not violate Henry's
This Court has scrutinized postindictment confrontations between Government agents and the accused to determine whether they are "critical stages" of the prosecution at which the Sixth Amendment right to the assistance of counsel attaches. See, e. g., United States v. Ash, 413 U.S. 300 (1973); United States v. Wade, 388 U.S. 218 (1967). The present case involves incriminating statements made by the accused to an undisclosed and undercover Government informant while in custody and after indictment. The Government characterizes Henry's incriminating statements as voluntary and not the result of any affirmative conduct on the part of Government agents to elicit evidence. From this, the Government argues that Henry's rights were not violated, even assuming the Sixth Amendment applies to such surreptitious confrontations; in short, it is contended that the Government has not interfered with Henry's right to counsel.
The question here is whether under the facts of this case a Government agent "deliberately elicited" incriminating statements from Henry within the meaning of Massiah. Three factors are important. First, Nichols was acting under instructions as a paid informant for the Government; second, Nichols was ostensibly no more than a fellow inmate of Henry; and third, Henry was in custody and under indictment at the time he was engaged in conversation by Nichols.
The Court of Appeals viewed the record as showing that Nichols deliberately used his position to secure incriminating information from Henry when counsel was not present and held that conduct attributable to the Government. Nichols had been a paid Government informant for more than a year; moreover, the FBI agent was aware that Nichols had access to Henry and would be able to engage him in conversations without arousing Henry's suspicion. The arrangement between Nichols and the agent was on a contingent-fee basis; Nichols was to be paid only if he produced useful information.
The Government argues that the federal agents instructed Nichols not to question Henry about the robbery.
It is quite a different matter when the Government uses undercover agents to obtain incriminating statements from persons not in custody but suspected of criminal activity prior to the time charges are filed. In Hoffa v. United States, 385 U.S. 293, 302 (1966), for example, this Court held that "no interest legitimately protected by the Fourth Amendment is involved" because "the Fourth Amendment [does not protect] a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." See also United States v. White, 401 U.S. 745 (1971). Similarly, the Fifth Amendment has been held not to be implicated by the use of undercover Government agents before charges are filed because of the absence of the potential for compulsion. See Hoffa v. United States, supra, at 303-304. But the Fourth and Fifth Amendment claims made in those cases are not relevant to the inquiry under the Sixth Amendment here—whether the Government has interfered with the right to counsel of the accused by "deliberately eliciting" incriminating statements. Our holding today does not modify White or Hoffa.
It is undisputed that Henry was unaware of Nichols' role as a Government informant. The Government argues that this Court should apply a less rigorous standard under the
When the accused is in the company of a fellow inmate who is acting by prearrangement as a Government agent, the same cannot be said. Conversation stimulated in such circumstances may elicit information that an accused would not intentionally reveal to persons known to be Government agents. Indeed, the Massiah Court noted that if the Sixth Amendment "is to have any efficacy it must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse." The Court pointedly observed that Massiah was more seriously imposed upon because he did not know that his codefendant was a Government agent. 377 U. S., at 206.
Moreover, the concept of a knowing and voluntary waiver of Sixth Amendment rights does not apply in the context of communications with an undisclosed undercover informant acting for the Government. See Johnson v. Zerbst, 304 U.S. 458 (1938). In that setting, Henry, being unaware that Nichols was a Government agent expressly commissioned to secure evidence, cannot be held to have waived his right to the assistance of counsel.
Finally, Henry's incarceration at the time he was engaged in conversation by Nichols is also a relevant factor.
Under the strictures of the Court's holdings on the exclusion of evidence, we conclude that the Court of Appeals did not err in holding that Henry's statements to Nichols should not have been admitted at trial. By intentionally creating a situation likely to induce Henry to make incriminating statements without the assistance of counsel, the Government violated Henry's Sixth Amendment right to counsel.
The judgment of the Court of Appeals for the Fourth Circuit is
MR. JUSTICE POWELL, concurring.
The question in this case is whether the Government deliberately elicited information from respondent in violation of the rule of Massiah v. United States, 377 U.S. 201 (1964), and Brewer v. Williams, 430 U.S. 387 (1977). I join the opinion of the Court, but write separately to state my understanding of the Court's holding.
In Massiah v. United States, this Court held that the Government violated the Sixth Amendment when it deliberately elicited incriminating information from an indicted defendant who was entitled to assistance of counsel. 377 U. S., at
The rule of Massiah serves the salutary purpose of preventing police interference with the relationship between a suspect and his counsel once formal proceedings have been initiated. But Massiah does not prohibit the introduction of spontaneous statements that are not elicited by governmental action. Thus, the Sixth Amendment is not violated when a passive listening device collects, but does not induce, incriminating comments. See United States v. Hearst, 563 F.2d 1331, 1347-1348 (CA9 1977), cert. denied, 435 U.S. 1000 (1978). Similarly, the mere presence of a jailhouse informant who had been instructed to overhear conversations and to engage a criminal defendant in some conversations would not necessarily be unconstitutional. In such a case, the question would be whether the informant's actions constituted deliberate and "surreptitious interrogatio[n]" of the defendant. If they did not, then there would be no interference with the relationship between client and counsel.
I view this as a close and difficult case on its facts because no evidentiary hearing has been held on the Massiah claim. Normally, such a hearing is helpful to a reviewing court and should be conducted. On balance, however, I accept the view of the Court of Appeals and of the Court that the record adequately demonstrates the existence of a Massiah violation. I could not join the Court's opinion if it held that the mere presence or incidental conversation of an informant in a jail cell would violate Massiah.
Because I understand that the decision today rests on a conclusion that this informant deliberately elicited incriminating information by such conduct, I join the opinion of the Court.
MR. JUSTICE BLACKMUN, with whom MR. JUSTICE WHITE joins, dissenting.
In this case the Court, I fear, cuts loose from the moorings of Massiah v. United States, 377 U.S. 201 (1964),
The Court of Appeals resolved this case by a divided vote, with all three judges writing separately. Three of the seven
Because I view the principles of Massiah and the facts of this case differently than the Court does, I dissent.
Massiah mandates exclusion only if a federal agent "deliberately elicited" statements from the accused in the absence of counsel. 377 U. S., at 206. The word "deliberately" denotes intent. Massiah ties this intent to the act of elicitation, that is, to conduct that draws forth a response. Thus Massiah, by its own terms, covers only action undertaken with the specific intent to evoke an inculpatory disclosure.
Faced with Agent Coughlin's unequivocal expression of an intent not to elicit statements from respondent Henry, but merely passively to receive them, ante, at 268; App. to Pet. for Cert. 58a, the Court, in its decision to affirm the judgment of the Court of Appeals, has no choice but to depart from the natural meaning of the Massiah formulation. The Court deems it critical that informant Nichols had been a paid informant; that Agent Coughlin was aware that Nichols "had access" to Henry and "would be able to engage him in conversations without arousing Henry's suspicion"; and that payment to Nichols was on a contingent-fee basis. Ante, at 270. Thus, it is said, even if Coughlin's "statement is accepted . . . he must have known that such propinquity likely would lead to that result" (that is, that Nichols would take "affirmative steps to secure incriminating information"). Ante, at 271. Later, the Court goes even further, characterizing this as a
Thus, while claiming to retain the "deliberately elicited" test, the Court really forges a new test that saps the word "deliberately" of all significance. The Court's extension of Massiah would cover even a "negligent" triggering of events resulting in reception of disclosures. This approach, in my view, is unsupported and unwise.
A. Authority. The Court's precedents appear to me to be contrary to this new objective approach. Spano v. New York, 360 U.S. 315 (1959), whose concurring opinions presaged Massiah, see 377 U. S., at 204, concerned an "all-night inquisition" during which the defendant "repeatedly asked to be allowed to send for his lawyer." 360 U. S., at 327 (concurring opinion). Obviously, that case involved deliberate efforts to extract information in the absence of counsel. In Massiah itself, the agent engineered a pretrial meeting between the accused and a turncoat codefendant. The agent instructed the latter to talk to the defendant about the crime, see United States v. Massiah, 307 F.2d 62, 66 (CA2 1962); id., at 72 (dissenting opinion), and he bugged the meeting place so he could listen in.
If any question could possibly have remained about the subjective nature of the Massiah inquiry, it was dispelled by
The unifying theme of Massiah cases, then, is the presence of deliberate, designed, and purposeful tactics, that is, the agent's use of an investigatory tool with the specific intent of extracting information in the absence of counsel. Thus, the Court's "likely to induce" test fundamentally restructures Massiah. Even if the agent engages in no "overreaching," and believes his actions to be wholly innocent and passive, evidence he comes by must be excluded if a court, with the convenient benefit of 20/20 hindsight, finds it likely that the agent's actions would induce the statements.
B. Policy. For several reasons, I believe that the Court's revamping of Massiah abrogates sound judicial policy. First, its test will significantly broaden Sixth Amendment exclusion; yet, as THE CHIEF JUSTICE has stressed before, the "high price society pays for such a drastic remedy" as exclusion of indisputably reliable evidence in criminal trials cannot be denied. See, e. g., Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 413 (1971) (dissenting opinion). Second, I think the Court's approach fails to appreciate
Finally, I note the limits, placed in other Sixth Amendment cases, of providing counsel to counterbalance prosecutorial expertise and to aid defendants faced with complex and unfamiliar proceedings. See MR. JUSTICE REHNQUIST'S dissenting opinion, post, at 290-298.
In my view, the Court not only missteps in forging a new Massiah test; it proceeds to misapply the very test it has created. The new test requires a showing that the agent created
A. "Likely to Induce." In holding that Coughlin's actions were likely to induce Henry's statements, the Court relies on three facts: a contingent-fee arrangement; Henry's assumption that Nichols was just a cellmate; and Henry's incarceration.
The Court states: "The arrangement between Nichols and the agent was on a contingent-fee basis; Nichols was to be paid only if he produced useful information." Ante, at 270. The District Court, however, made no such finding, and I am unconvinced that the evidence of record establishes such an understanding.
The Court also emphasizes that Henry was "unaware that Nichols was a Government agent." Ante, at 273. One might properly assign this factor some importance, were it not for Brewer v. Williams. In that case, the Court explicitly held that the fact "[t]hat the incriminating statements were elicited surreptitiously in the Massiah case, and otherwise here, is constitutionally irrelevant." 430 U. S., at 400. (Emphasis added.) The Court's teeter-tottering with this factor in Massiah analysis can only induce confusion.
It merits emphasis that the Court's resurrection of the unawareness factor is indispensable to its holding. For, in Brewer, substantial contact and conversation with a confined defendant preceded delivery of the "Christian burial speech." Yet the Court clearly deemed the speech critical in finding a Massiah violation; it thus made clear that mere "association" and "general conversation" did not suffice to bring Massiah into play. Since nothing more transpired here, principled application of Brewer mandates reversal of the judgment in this case.
Finally, the Court notes that Henry was incarcerated when he made his statements to Nichols. The Court's emphasis of the "subtle influences" exerted by custody, however, is itself too subtle for me. This is not a case of a custodial encounter with police, in which the Government's display of power might overcome the free will of the accused. The relationship here was "social" and relaxed. Henry did not suspect that Nichols was connected with the FBI. Moreover, even assuming that "subtle influences" might encourage a detainee to talk about his crime, there are certainly counter-balances of at least equal weight. Since, in jail, "official surveillance has traditionally been the order of the day,"
The Court does more than rely on dubious factors in finding that Coughlin's actions were "likely to induce" Nichols' successful prompting of Henry; it fails to focus on facts that cut strongly against that conclusion. The Court ignores Coughlin's specific instruction to Nichols that he was not to question Henry or to initiate conversation with him about the robbery. Nor does it note Nichols' likely assumption that he would not be remunerated, but reprimanded and possibly penalized, if he violated Coughlin's orders. In addition, the record shows that Nichols had worked as an FBI informant for four years and that Coughlin and Nichols had worked together for about a year on several matters. It makes sense, given Nichols' experience and Coughlin's willingness to renew their working relationship, to conclude that Nichols would follow Coughlin's instruction. Finally, it is worth noting that Henry was only one of several federal detainees to whom Nichols was to pay attention;
Under the Court's analysis, it is not enough that Coughlin should have anticipated disobedience by Nichols; it must also be shown that his actions were "likely to induce" Henry to talk. In my view, however, there was little reason to believe that even the most aggressive efforts by Nichols would lead to disclosures by Henry. Nothing in the record suggests that Henry and Nichols knew each other, far less that they had the type of relationship that would lead Henry to discuss freely a crime for which he had not yet been tried. In this respect, the case stands in stark contrast to Massiah, where the informant had collaborated with Massiah in a drug smuggling operation and was a codefendant in the resulting and pending prosecution. Moreover, "[t]here is nothing in the record to suggest that . . . the [defendant] was peculiarly susceptible [to approaches by cellmates or that he] . . . was unusually disoriented or upset." Rhode Island v. Innis, 446 U. S., at 302-303. On these facts, it seems to me extremely unlikely that Coughlin's actions would lead to Henry's statements.
Even though the test forged by the Court has no precedent, we are not without some assistance in judging its application. Just a few weeks ago, in Rhode Island v. Innis, the Court held that Miranda was implicated only by "words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response."
B. "Prompting." All Members of the Court agree that Henry's statements were properly admitted if Nichols did not "prompt" him. Ante, at 273, and see ante, at 271, n. 9; ante, at 276 (concurring opinion); post, at 302 (dissenting opinion). The record, however, gives no indication that Nichols "stimulated" Henry's remarks, ante, at 273, with "affirmative steps to secure incriminating information." Ante, at 271. Certainly the known facts reveal nothing more than "a jailhouse informant who had been instructed to overhear conversations and to engage a criminal defendant in some conversations." Ante, at 276 (concurring opinion).
Conceivably, the amount of information purveyed by Henry to Nichols could support an inference that some fishing for detail occurred. The Court does not invoke this reasoning, however, and even if the record is stretched to produce such a finding, it clearly discloses nothing about the timing of Henry's disclosures. It may well be that Henry first "let the cat out of the bag," either by volunteering statements or by inadvertently discussing the crime with someone else within earshot of Nichols. These possibilities are not farfetched. In addition to revealing Coughlin's instructions, which we may infer were followed, the record specifically indicates that Henry "volunteered" information about the robbery to a cellmate other than Nichols. App. 85. Moreover, the record discloses Henry's eagerness to make contact with a potential collaborator outside the jail; Nichols, who was soon
In sum, I think this is an unfortunate decision, which disregards precedent and stretches to the breaking point a virtually silent record. Whatever the bounds of Massiah, that case does not justify exclusion of the proof challenged here.
MR. JUSTICE REHNQUIST, dissenting.
The Court today concludes that the Government through the use of an informant "deliberately elicited" information from respondent after formal criminal proceedings had begun, and thus the statements made by respondent to the informant are inadmissible because counsel was not present. The exclusion of respondent's statements has no relationship whatsoever to the reliability of the evidence, and it rests on a prophylactic application of the Sixth Amendment right to counsel that in my view entirely ignores the doctrinal foundation of that right. The Court's ruling is based on Massiah v. United States, 377 U.S. 201 (1964), which held that a postindictment confrontation between the accused and his accomplice, who had turned State's evidence and was acting under the direction of the Government, was a "critical" stage of the criminal proceedings at which the Sixth Amendment right to counsel attached. While the decision today sets forth the factors that are "important" in determining whether there
The doctrinal underpinnings of Massiah have been largely left unexplained, and the result in this case, as in Massiah, is difficult to reconcile with the traditional notions of the role of an attorney. Here, as in Massiah, the accused was not prevented from consulting with his counsel as often as he wished. No meetings between the accused and his counsel were disturbed or spied upon. And preparation for trial was not obstructed. See 377 U. S., at 209 (WHITE, J., dissenting). In short, as MR. JUSTICE WHITE aptly observed in Massiah:
Our decisions recognize that after formal proceedings have commenced an accused has a Sixth Amendment right to counsel at "critical stages" of the criminal proceedings. See, e. g., ante, at 269. This principle derives from Powell v. Alabama, 287 U.S. 45 (1932), which held that a trial court's failure to appoint counsel until the trial began violated the Due Process Clause of the Fourteenth Amendment. Id., at 68-71. Powell referred to the "critical period" as being "from the time of [the defendants'] arraignment until the beginning of
Powell was based on the rationale that an unaided layman, who has little or no familiarity with the law, requires assistance in the preparation and presentation of his case and in coping with procedural complexities in order to assure a fair trial. The Court in Powell stated:
More recently this Court has again observed that the concerns underlying the Sixth Amendment right to counsel are to provide aid to the layman in arguing the law and in coping with intricate legal procedure, United States v. Ash, 413 U.S. 300, 307-308 (1973), and to minimize the imbalance in the adversary system that otherwise resulted with the creation of the
"Deliberate elicitation" after formal proceedings have begun is thus not by itself determinative. Ash held that an accused has no right to be present at a photo display because there is no possibility that he "might be misled by his lack of familiarity with the law or overpowered by his professional adversary." Id., at 317. See also Gilbert v. California, 388 U.S. 263, 267 (1967) (taking of handwriting exemplars is not a "critical" stage of the proceedings because "there is a minimal risk that the absence of counsel might derogate from his right to a fair trial"). If the event is not one that requires knowledge of legal procedure, involves a communication between the accused and his attorney concerning investigation of the case or the preparation of a defense, or otherwise interferes with the attorney-client relationship, there is in my view simply no constitutional prohibition against the use of incriminating
Once the accused has been made aware of his rights, it is his responsibility to decide whether or not to exercise them. If he voluntarily relinquishes his rights by talking to authorities, or if he decides to disclose incriminating information to someone whom he mistakenly believes will not report it to the authorities, cf. Hoffa v. United States, 385 U.S. 293 (1966), he is normally accountable for his actions and must bear any adverse consequences that result. Such information has not in any sense been obtained because the accused's will has been overborne, nor does it result from any "unfair advantage" that the State has over the accused: the accused is free to keep quiet and to consult with his attorney if he so chooses. In this sense, the decision today and the result in Massiah are fundamentally inconsistent with traditional notions of the role of the attorney that underlie the Sixth Amendment right to counsel.
To the extent that Massiah relies on Powell v. Alabama, 287 U.S. 45 (1932), in concluding that the confrontation in that case was a "critical" stage of the proceedings, 377 U. S., at 205, Massiah reads the language of Powell out of context. In Powell, the period between arraignment and trial was critical because the defendants had no opportunity whatsoever to consult with an attorney during that time, and thus they were altogether deprived of legal assistance in the investigation of their case and the preparation of a defense. The Court today similarly takes an overly broad view of the stages after the commencement of formal criminal proceedings that should be viewed as "critical" for purposes of the Sixth Amendment. And it is not amiss to point out that Powell was decided solely
Massiah also relied heavily on a concurring opinion of its author in Spano v. New York, 360 U.S. 315 (1959), which expressed the notion that the adversary system commences with indictment, and should be followed by arraignment and trial. Id., at 327 (STEWART, J., concurring). Spano, however, was a coerced confession case in which the accused was interrogated for eight hours after he had been indicted until he confessed. While it is true that both the Fifth and Sixth Amendments reflect the Framers' intent to establish essentially an accusatory rather than an inquisitorial system of justice, neither suggests by its terms a rigid dichotomy between the types of police activities that are permissible before commencement of formal criminal proceedings and those that are subsequently permissible. More specifically, there is nothing in the Sixth Amendment to suggest, nor does it follow from the general accusatory nature of our criminal scheme, that once the adversary process formally begins the government may not make any effort to obtain incriminating evidence from the accused when counsel is not present. The role of counsel in an adversary system is to offer advice and assistance in the preparation of a defense and to serve as a spokesman for the accused in technical legal proceedings. And the Sixth Amendment, of course, protects the confidentiality of communications between the accused and his attorney. But there is no constitutional or historical support for concluding that an accused has a right to have his attorney serve as a sort of guru who must be present whenever an accused has an inclination to reveal incriminating information to anyone who acts to elicit such information at the
The objectives that underlie the exclusionary rule also suggest that the results reached in Massiah and the decision today are incorrect. Although the exclusion of reliable, probative evidence imposes tremendous costs on the judicial process and on society, see, e. g., Stone v. Powell, 428 U.S. 465 (1976), this Court has nonetheless imposed a rule for the exclusion of such evidence in some contexts in order to deter unlawful police activity. See, e. g., Weeks v. United States, 232 U.S. 383 (1914); Mapp v. Ohio, 367 U.S. 643 (1961). In cases in which incriminating statements made by the accused are entirely voluntary, however, and the government has merely encouraged a third party to talk to the accused and report any incriminating information that the accused might reveal, there is in my view no valid justification for the exclusion of such evidence from trial.
In cases such as this one and Massiah, the effect of the governmental action is to encourage an informant to reveal information to the authorities that the ordinary citizen most likely would reveal voluntarily. While it is true that the informants here and in Massiah were encouraged to "elicit" the information from the accused, I doubt that most people would find this type of elicitation reprehensible. It involves merely engaging the accused in conversation about his criminal activity and thereby encouraging him voluntarily to make incriminating remarks. There is absolutely no element of coercion, nor is there any interference whatsoever with the attorney-client relationship. Anything the accused might reveal to the informant should, as with revelations he might make to the ordinary citizen, be available for use at trial. This Court has never held that an accused is constitutionally protected from his inability to keep quiet, whether or not he has been encouraged by third-party citizens to voluntarily make incriminating remarks. I do not think the result should be different merely because the government has encouraged a third-party informant to report remarks obtained in this fashion. When an accused voluntarily chooses to make an incriminatory remark
In holding that the Government has "deliberately elicited" information from the accused here, the Court considers the following factors to be relevant:
I disagree with the Court's evaluation of these factors, and would conclude that no deliberate elicitation has taken place.
The Court acknowledges that the use of undercover policework is an important and constitutionally permissible method of law enforcement. Ante, at 272. As the Court observes, Hoffa v. United States, 385 U. S., at 302, for example, recognizes that the Constitution affords no protection to "a wrong-doer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it," even if that person is an undisclosed informer. And in Weatherford v. Bursey, 429 U.S. 545, 557 (1977), we acknowledged the "necessity of undercover work" and "the value it often is to effective law enforcement." See also, e. g., United States v. Russell, 411 U.S. 423, 432 (1973); United States v. White, 401 U.S. 745, 752 (1971).
The fact that police carry on undercover activities should not automatically be transmuted because formal criminal proceedings have begun. It is true that once such proceedings have commenced, there is an "adversary" relationship between the government and the accused. But an adversary relationship may very well exist prior to the commencement of formal proceedings. And, as this Court has previously recognized, many events, while perhaps "adversarial," are not of such a nature that an attorney can provide any special knowledge or assistance to the accused as a result of his legal expertise. See, e. g., United States v. Ash, 413 U.S. 300 (1973) (no right to an attorney at pretrial photographic identifications at which the accused is not present); Gilbert v. California, 388 U. S., at 267 (no right to an attorney at taking of handwriting exemplars). When an attorney has no such special knowledge or skill, the Sixth Amendment does not give the accused a right to have an attorney present.
In addition, the mere bringing of formal proceedings does not necessarily mean that an undercover investigation or the need for it has terminated. A person may be arrested on the basis of probable cause arising in the immediate aftermath of an offense and during early stages of investigation, but before the authorities have had an opportunity to investigate fully his connection with the crime. And for the criminal, there is no rigid dichotomy between the time before commencement of formal criminal proceedings and the time after such proceedings have begun. Once out on bail the accused remains free to continue his criminal activity, and very well may decide to do so. See, e. g., Rogers v. United States, 325 F.2d 485
The Court secondly states that here the informant ostensibly was no more than a fellow inmate, and thus the conversation "stimulated" by him may lead the accused to communicate information that he would not intentionally reveal to persons known to be government agents, who are "arm's-length" adversaries. While the Court deems relevant the question whether the informant took active steps as a result of a prearranged deal with the Government to elicit incriminating information from the accused, ante, at 273,
Finally, the Court considers relevant the fact that because the accused is confined and in custody, "subtle influences" are present "that will make him particularly susceptible to the ploys of undercover agents." Ante, at 274. An appeal to an accused's conscience or willingness to talk, however, does not in my view have a sufficiently overbearing impact on the accused's will to warrant special constitutional protection.
In the instant case, for example, if the informant had been in the cell next to respondent and overheard him make incriminating statements to his cellmate, no Sixth Amendment violation would have occurred. See, e. g., United States v. Hearst, 563 F.2d 1331, 1347-1348 (CA9 1977), cert. denied, 435 U.S. 1000 (1978). In such circumstances it would be clear that the Government had engaged in no affirmative conduct specifically
Finally, I disagree with the Court's reading of the facts, though that reading obviously narrows the scope of its holding. Here the District Court found that the Government did not employ Nichols to question respondent or to seek information from him, but merely to report what he heard. The Government had no part in having Nichols placed in the jail cell with respondent. App. to Pet. for Cert. 39a. And the record in my view fails to support the conclusion that Nichols engaged in any affirmative conduct to elicit information from respondent. The Court of Appeals did not either explicitly or implicitly find to the contrary. Thus, this Court's factual conclusions are not supported by the findings of the District Court. I consequently would conclude, as did the District Court, that here respondent has not been denied his Sixth Amendment right to counsel.
For the foregoing reasons, I would reverse the judgment of the Court of Appeals.
"(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."
See also Ethical Consideration 7-18.
"Few, if any, police officers are competent to make the kind of evaluation seemingly contemplated; even a psychiatrist asked to express an expert opinion on these aspects of a suspect in custody would very likely employ extensive questioning and observation to make the judgment now charged to police officers." Rhode Island v. Innis, 446 U.S. 291, 304 (1980) (opinion concurring in judgment).
"Nichols advised that he was in the same cellblock as Billy Gale Henry as well as with other prisoners who had Federal charges against them. I recall telling Nichols at this time to be alert to any statements made by these individuals regarding the charges against them. I specifically recall telling Nichols that he was not to question Henry or these individuals about the charges against them, however, if they engaged him in conversation or talked in front of him, he was requested to pay attention to their statements. I recall telling Nichols not to initiate any conversations with Henry regarding the bank robbery charges against Henry, but that if Henry initiated the conversations with Nichols, I requested Nichols to pay attention to the information furnished by Henry." App. to Pet. for Cert. 58a (emphases added).
Since the affidavit containing this statement was submitted in Henry's case, it is neither surprising nor significant that it occasionally refers to Henry by name, while not referring specifically to remarks Coughlin might have made about other detainees. The Court's reading of this passage as establishing that "the agent . . . singled out Henry as the inmate in whom the agent had a special interest" seems to me extraordinary.
"[U]nlawfully obtained evidence is not automatically excluded from the factfinding process in all circumstances. In a variety of contexts we inquire whether application of the rule will promote its objectives sufficiently to justify the enormous cost it imposes on society. `As with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.' United States v. Calandra, [414 U.S. 338, 348 (1974)]; accord, Stone v. Powell, supra, at 486-491; United States v. Janis, [428 U.S. 433 (1976)]; Brown v. Illinois, 422 U.S. 590, 606-608-609 (1975) (POWELL, J., concurring in part); United States v. Peltier, [422 U.S. 531, 538-539 (1975)]." (Footnote omitted.)
"Inescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police. If he sufficiently doubts their trustworthiness, the association will very probably end or never materialize. But if he has no doubts, or allays them, or risks what doubt he has, the risk is his."
"Massiah does not prohibit the introduction of spontaneous statements that are not elicited by governmental action. Thus, the Sixth Amendment is not violated when a passive listening device collects, but does not induce, incriminating comments. See United States v. Hearst, 563 F.2d 1331, 1347-1348 (CA9 1977), cert. denied, 435 U.S. 1000 (1978). Similarly, the mere presence of a jailhouse informant who had been instructed to overhear conversations and to engage a criminal defendant in some conversations would not necessarily be unconstitutional. In such a case, the question would be whether the informant's actions constituted deliberate and `surreptitious interrogatio[n]' of the defendant. If they did not, there would be no interference with the relationship between client and counsel." Ante, at 276.
Deliberate elicitation does not and cannot depend on the subjective intention of the government or its informant to obtain incriminatory evidence from the accused within the limits of the law. Such an intention of course is the essence of conscientious policework.