[*PG1333]JAILHOUSE INFORMANTS AND THE SIXTH AMENDMENT: IS THE U.S. SUPREME COURT ADEQUATELY PROTECTING AN ACCUSED’S RIGHT TO COUNSEL?
Abstract: A defendant’s Sixth Amendment right to counsel is a funda-mental pillar of our criminal justice system. The Sixth Amendment guar-antees a criminal defendant the right to a lawyer during any critical stage of a criminal proceeding. There is perhaps no time when an accused party’s right to counsel becomes more important than during an interrogation. It is clear that the government cannot deliberately elicit information from an accused party in the absence of his or her lawyer. “Deliberate elicitation,” however, becomes difficult to define or detect when the government em-ploys indirect methods of interrogation, rather than overt questioning, to obtain information from an accused party. One such indirect method, the use of jailhouse informants, presents special constitutional problems because of the unique dynamics that exist in a jail cell encounter between an unsuspecting defendant and an undercover informant. Courts have struggled to apply the Sixth Amendment’s prohibition on the elicitation of information in the absence of counsel to situations involving jailhouse informants. The U.S. Supreme Court has directly considered the issue twice and has reached conflicting results despite strong factual similarities. This Note proposes a new standard for detecting right-to-counsel violations in the jailhouse informant context, a two-tiered inquiry that attempts to address the unique constitutional problems that the use of jailhouse informants creates.
The right to counsel for a criminal defendant is a fundamental pillar of our system of justice.1 The Sixth Amendment embodies this concept by guaranteeing an accused party the right to the assistance of counsel for his or her defense.2 In the absence of this right to a lawyer during key events in a criminal proceeding, a criminal defendant might not know how, or even when, to assert important constitutional rights.3 Thus, the U.S. Supreme Court has interpreted the Sixth [*PG1334]Amendment to entitle an accused party to a lawyer during any critical stage of a criminal proceeding.4
There is perhaps no time when an accused’s right to counsel becomes more important than during a government interrogation.5 Although it is clear that the government itself cannot deliberately elicit information from an accused party in the absence of his or her lawyer, “deliberate elicitation” becomes difficult to define or detect when the government attempts to elicit information indirectly.6 In situations where the government uses undercover informants, the accused party does not know that he or she is effectively being interrogated by a government agent, and is thus unaware of the need to invoke his or her right to counsel.7
Of the various undercover techniques that the government uses to obtain information from accused parties, the use of jailhouse informants presents special constitutional problems.8 Jailhouse informants—incarcerated individuals placed in proximity to an accused party to obtain incriminating information—often develop close relationships with unsuspecting defendants who think they are merely conversing with fellow cellmates.9 Because of the unique dynamics that exist in a cellmate encounter between a defendant and a jailhouse informant, including a sense of shared plight and the day-to-day pressures of incarceration, it can be difficult to discern when exactly undercover interrogation has taken place in this context.10
Given all of this, courts have struggled mightily to apply the Sixth Amendment’s prohibition on the elicitation of information in the absence of counsel to situations involving jailhouse informants.11 The U.S. Supreme Court has dealt with the issue on only two occasions, and despite strong factual similarities, reached conflicting results in [*PG1335]these decisions.12 In the earlier of the two cases, United States v. Henry, the U.S. Supreme Court announced broad Sixth Amendment protections for an accused party confronted by a jailhouse informant.13 There, the Court held that even without specific evidence that an informant took active steps to elicit information from a defendant, a right-to-counsel violation could still occur if the government agents had worked behind the scenes to create a situation in which statements were likely to be made.14 In Kuhlmann v. Wilson, the more recent of the two cases, however, the U.S. Supreme Court announced that for a right-to-counsel violation to occur, a jailhouse informant must himself or herself take active conversational steps, “beyond merely listening,” to elicit information from an accused.15 This standard makes determining when a jailhouse informant has violated a defendant’s Sixth Amendment rights no easy task.16
This Note proposes a new standard for detecting violations of the Sixth Amendment right to counsel when an accused party is confronted by an undercover jailhouse informant.17 Part I explores the fundamental principles behind the Sixth Amendment as defined by the U.S. Supreme Court.18 It examines the basic contours of the right to counsel in its most important context: direct and indirect methods of police interrogation.19 Part II focuses on a unique form of indirect interrogation: the government’s use of jailhouse informants to elicit information from an accused party.20 It discusses in detail the only two cases in which the U.S. Supreme Court has examined the right to counsel as it applies to the use of jailhouse informants—Wilson and Henry.21 This Part also examines Maine v. Moulton, an important right-[*PG1336]to-counsel case decided by the U.S. Supreme Court only months before Wilson because it presents a surprisingly broader reading of the Sixth Amendment than one would expect given its proximity to Wilson.22 Part III examines scholarly critiques of the Wilson decision.23 These critiques center around the contention that Wilson is a worrisome narrowing of an accused’s right to counsel in the jailhouse informant setting, a right that according to Henry enjoys a broader protection.24 Part IV proposes a new standard with which to protect an accused’s Sixth Amendment rights in the jailhouse informant context.25
The Sixth Amendment to the U.S. Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defence.”26 This right is fundamental to the fair trial of an accused party,27 and the U.S. Supreme Court has consistently given an expansive reading to the protections that it affords.28 In defining the contours of the right to counsel, the Court has reiterated a single theme—that an accused party is entitled to the assistance of counsel at any stage in a criminal proceeding where it would help him or her.29 Thus, the instant that the State’s interactions with a suspect turn from being investigatory to accusatory, the adversarial system has commenced, and an accused must be allowed access to a lawyer.30
The U.S. Supreme Court’s first modern exposition of the right to counsel came in 1932, in the seminal case of Powell v. Alabama.31 This case involved three defendants accused of rape who had been con[*PG1337]victed and sentenced to death without having been appointed counsel during the short time between their arraignments and trials.32 The U.S. Supreme Court reversed their convictions, finding that the defendants’ Sixth Amendment right to counsel had been violated.33 The Court stated that the right to counsel applies not only during a trial, but to any situation in which an accused would need the advice of a lawyer.34 In giving the right to counsel this broad interpretation, the Court made an important, fundamental recognition—that an accused “requires the guiding hand of counsel at every step in the proceedings against him.”35 Because the period of time between an accused’s arraignment and trial is a “critical period” where “consultation, thorough-going investigation and preparation [are] vitally important,” the right to counsel exists just as strongly before trial as it does during trial.36
Decisions after Powell broadened its basic holding in a number of important ways.37 In 1961, in Hamilton v. Alabama, the Court clarified what constitutes a critical stage in a criminal proceeding, defining it as any period during which “[w]hat happens there may affect the whole trial.”38 In 1967, in United States v. Wade, the Court took the critical stage concept a step further, saying that the definition applies whenever “counsel’s absence . . . might derogate from [an accused’s] right to a fair trial.”39 Around that same time, in 1964 in Escobedo v. Illinois, the Court held that the right to counsel could even attach before official proceedings have commenced against an accused—so long as it is clear that police have moved beyond general investigation of a crime to a point where their purpose is to elicit a confession from a suspected party.40
There is perhaps no more “critical” pretrial stage in a criminal proceeding than an interrogation.41 In an interrogation setting, the government actively attempts to elicit incriminating statements from [*PG1338]an accused party.42 It is crucial that a defendant have the advice of counsel when the State’s “undeviating intent” is to use its prosecutorial power to obtain a confession.43 Hence, the U.S. Supreme Court’s protection of an accused’s Sixth Amendment right to counsel is perhaps at its apex when methods of police interrogation are involved.44
An important pronouncement of the right to counsel in the context of direct police interrogation came when the U.S. Supreme Court decided Spano v. New York in 1959.45 There, in an important concurrence, one Justice stated emphatically, and two others agreed, that the Sixth Amendment meant little if it did not mean that an accused party is entitled to counsel during an interrogation.46 Spano involved petitioner, Vincent Spano, who allegedly had shot and killed a professional boxer who had previously assaulted him at a local bar.47 Spano was indicted on first-degree murder charges, and three days later turned himself in to authorities, accompanied by counsel.48 His attorney instructed him not to answer any questions, and left him in the custody of police officers.49 Authorities then began to question Spano, and engaged him in a “persistent and continuous” all-night interrogation.50 During the initial stages of the interrogation, Spano refused to answer any questions, and made multiple requests to speak to his attorney.51 The police denied these requests, and by the early hours of the morning, successfully elicited a confession from Spano.52 At his trial, the court admitted Spano’s confession into evidence over his objection, convicted him of first degree murder and sentenced him to death.53
The U.S. Supreme Court overturned Spano’s conviction on Fourteenth Amendment grounds, finding that the method in which officers extracted the confession violated traditional principles of due [*PG1339]process.54 A concurring opinion, however, examined the Sixth Amendment implications of the case, elaborating on what it saw as a “flagrant” violation of Spano’s right to counsel.55 This concurrence, written by Justice Douglas and joined by two other members of the Court, reaffirmed a fundamental Sixth Amendment principle first announced in Powell—that the assistance of counsel prior to trial was just as necessary, if not more so, than it was in open court.56 Later in his concurrence, Justice Douglas asked a rhetorical question that highlighted the Sixth Amendment concerns to which unlawful police interrogations give rise:
[W]hat use is a defendant’s right to effective counsel at every stage of a criminal case if, while he is held awaiting trial, he can be questioned in the absence of counsel until he confesses? In that event the secret trial in the police precincts effectively supplants the public trial guaranteed by the Bill of Rights.57
Thus, in Spano, an important concurrence made clear that the right to counsel is entitled to special protection when an accused is subjected to police interrogation.58
For the purposes of the Sixth Amendment right to counsel, surreptitious methods of interrogation can be the functional equivalent of direct questioning.59 Whether through the use of an undercover agent, a turncoat accomplice, or a jailhouse informant, the government often attempts to obtain through indirect means what it likely could not get through direct interrogation.60 Indeed, police and other authorities realize that subtle, deceptive tactics for obtaining information from an accused can be far more effective than overt, “browbeating” techniques such as direct questioning.61 When an ac[*PG1340]cused party is unknowingly confronted by an undercover police informant, he is surely in as much of a critical stage of his pretrial proceedings as he is during an open interrogation.62 This is because, unlike a situation involving the direct questioning of a suspect by authorities, when undercover means are used, the suspect is unaware of a need to invoke his or her right to counsel.63 Recognizing that methods used to extract confessions are constantly becoming more sophisticated, the Court has made it clear that the Sixth Amendment’s protections apply just as strongly to undercover interrogations as they do to direct police questioning.64
In 1964, in the seminal case of Massiah v. United States, the U.S. Supreme Court first examined the Sixth Amendment right to counsel in the context of undercover, surreptitious police practices.65 The Massiah Court held that the government violated a defendant’s Sixth Amendment right when it “used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.”66 In so holding, the Massiah Court created a two-pronged test for detecting right to counsel violations in interrogation settings.67 A defendant must show (1) that the person to whom he or she spoke was a government agent, and (2) that the agent “deliberately elicited” incriminating information from him or her in the absence of counsel.68 Massiah’s test has provided the standard by which the Court has evaluated Sixth Amendment surreptitious interrogation claims ever since.69
Massiah involved a merchant seaman, Winston Massiah, who had been accused of federal narcotics offenses.70 Massiah and a codefendant, Jesse Colson, were released on bail following their arraign[*PG1341]ment.71 After their release, Colson decided to cooperate with government agents in their investigation of ongoing narcotics activities in which Massiah was allegedly involved.72 Colson and a federal agent installed a radio transmitter in Colson’s automobile with which the agent could monitor any conversation that took place in the car.73 Shortly thereafter, Colson and Massiah had a long conversation while sitting in the automobile, during which Massiah made a number of incriminating statements related to his narcotics charges.74 At trial, these statements were used against him through the testimony of the agent who had monitored them, and Massiah was convicted of multiple narcotics offenses.75
The U.S. Supreme Court reversed Massiah’s conviction on Sixth Amendment grounds.76 Stressing that the right to counsel applies equally to both overt and covert government interrogations, the Court found that Massiah’s Sixth Amendment rights had been violated by the government’s actions.77 The police’s illicit tactics led Massiah to make incriminating statements that he almost certainly would not have made had he known Colson was acting on the government’s behalf.78 The Court found that this tactic constituted deliberate elicitation of statements from Massiah, in violation of his right to counsel.79
The Massiah Court recognized that the government’s use of undercover agents can be the functional equivalent of direct interrogation.80 The Court further recognized that surreptitious interrogation can be more of a threat to an accused’s Sixth Amendment rights than overt questioning.81 Massiah’s “deliberate elicitation” standard thus protects the important Sixth Amendment principle that an accused party is entitled to counsel in any type of interrogation situation, [*PG1342]whether or not such accused party is aware that he or she is being interrogated.82
More than a decade after Massiah, the U.S. Supreme Court went further in defining what constitutes deliberate elicitation in the context of a Sixth Amendment right-to-counsel claim.83 In 1977, in Brewer v. Williams, the Court found that a detective’s use of subtle psychological tactics to elicit a statement from a mentally ill murder defendant constituted deliberate elicitation, in violation of his right to counsel.84
In Brewer, an individual named Robert Williams had been arraigned for the murder of a ten year-old girl who had vanished outside of a Des Moines, Iowa, YMCA.85 Williams, who had recently escaped from a mental hospital, had abandoned his car about 160 miles outside of Des Moines and turned himself in at a police station nearby.86 Subsequently, two police detectives drove Williams to Des Moines.87 Before Williams embarked on the three-hour drive, his attorney told him that the detectives were simply transporting him, and that he should not speak with them at all about the crime until arriving.88 During the car trip, however, a detective began to converse with Williams in an attempt to elicit information.89 Because the detective knew that Williams was a former mental patient, and also that he was deeply religious, he suggested that they should find the girl’s body to give her a proper Christian burial.90 In response, Williams directed [*PG1343]the police to the body.91 At Williams’s trial, the court admitted evidence of these statements over defense objections, and convicted Williams of murder.92
The U.S. Supreme Court affirmed the Court of Appeals’s reversal of Williams’s conviction, finding that the detective’s “Christian burial speech” constituted deliberate elicitation of information from Williams, in violation of his Sixth Amendment right to counsel.93 The Court began its analysis by restating the broad contours of the right to counsel—that it applies in any type of proceeding, “‘whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’”94 Finding that Williams’s post-arraignment car ride with two Des Moines detectives clearly met the standard for a critical stage of the proceedings against him, the Court went on to inquire whether the detective had deliberately elicited information from him.95
The Court’s finding of deliberate elicitation in Brewer rested on an important premise—that the detective’s use of subtle pressures to obtain information from Williams was the functional equivalent of an interrogation.96 As the Court itself put it, whether or not the interrogation took place through surreptitious means or otherwise was “constitutionally irrelevant.”97 The detective’s “Christian burial speech” was, in the eyes of the Court, “tantamount to interrogation” and thus violated Williams’s Sixth Amendment rights because it was conducted in the absence of his attorney.98 Indeed, the subtle tactics used by the detective to obtain a confession from Williams were as effective—if not more effective—than open, direct questioning.99
Thus, in cases such as Spano, Massiah, and Brewer, the U.S. Supreme Court has outlined broad contours for the applicability of the Sixth Amendment right to counsel.100 An accused party is entitled to the advice of counsel whenever the government attempts to obtain [*PG1344]information from him or her, whether through open interrogation or through subtle, undercover techniques.101
In addition to the surreptitious, indirect interrogation tactics described above, the government’s use of jailhouse informants to elicit incriminating information raises serious Sixth Amendment concerns.102 In a typical jailhouse informant situation, an incarcerated individual who has agreed to act as a government informant is placed in close proximity to the target of a government investigation—most likely an accused party awaiting trial.103 A typical jailhouse informant is told not to actively engage the accused in conversation about a crime, but to be alert for any statements made by the accused.104 Jailhouse informants are often rewarded for any information that they provide, either in the form of monetary compensation or sentence reduction.105
Although the U.S. Supreme Court has been relatively consistent in defining the Massiah v. United States deliberate elicitation standard as it applies to other forms of indirect interrogation,106 the right to counsel becomes harder to circumscribe in the context of government use of jailhouse informants.107 This is because there are factors present in a jail cell interaction not present in other types of informant-accused encounters.108 These factors include a strong desire for camaraderie with fellow inmates, a sense of common plight, and the day-to-day pressures of incarceration, factors that make it difficult to discern when, exactly, deliberate elicitation of information has occurred.109 Two U.S. Supreme Court cases, United States v. Henry and Kuhlmann v. Wilson, have attempted to define the contours of the right to counsel as it exists in the unique context of a jailhouse infor[*PG1345]mant encounter.110 Maine v. Moulton, a case decided between Henry and Wilson, completes the trio of cases that comprise the modern Court’s exposition of the right to counsel as it applies to undercover informants.111 Although Moulton does not deal specifically with the use of a jailhouse informant, it contains important pronouncements about the deliberate elicitation standard, and is illuminating because it was decided in the same term as Wilson.112
In 1980, in Henry, the U.S. Supreme Court applied Massiah’s deliberate elicitation standard to the jailhouse informant context for the first time, and in doing so announced broad Sixth Amendment protections for an accused party.113 In that case, the defendant, Billy Gale Henry, was indicted for a bank robbery and incarcerated in a city jail in Norfolk, Virginia.114 Shortly after Henry was incarcerated, government agents contacted Edward Nichols, another inmate being held at that jail.115 Nichols, who had on prior occasions acted as a paid informant for the government, told agents that he was housed in the same cellblock as Henry.116 An agent told Nichols to pay attention to any statements he overheard from Henry or the other federal prisoners in his cellblock, but not to question or initiate any conversation with Henry about the bank robbery.117 After this meeting, Henry and Nichols had a conversation in which Henry told Nichols about the bank robbery.118 It is unclear from the facts of the case exactly what transpired in the conversations between Henry and Nichols.119 Henry shared a number of details about the crime with Nichols, including a description of evidence connecting him to the robbery.120 Henry also [*PG1346]tried to enlist Nichols’s help in a number of ways, including asking Nichols to contact people for him after his release.121
After his release from jail, agents contacted Nichols, who then shared the information he had obtained from Henry.122 The agents paid Nichols for providing the information.123 A few months later, Nichols testified at Henry’s trial as to the incriminating statements Henry had made.124 The jury, which was not told that Nichols was a paid government informant, convicted Henry of bank robbery.125 Henry was sentenced to prison for twenty-five years.126 Upon learning that Nichols was an informant, Henry sought habeas relief to vacate his sentence, alleging that the admission of Nichols’s testimony violated his Sixth Amendment right to counsel.127 The United States District Court for the Eastern District of Virginia denied his motion, but the Fourth Circuit Court of Appeals reversed.128 In so holding, the Fourth Circuit stated that by developing a relationship of confidence with Henry, to the point where Henry felt comfortable revealing incriminating information, Nichols and the government interfered with his right to counsel.129
In an opinion by Chief Justice Burger, the U.S. Supreme Court affirmed the Fourth Circuit’s decision.130 The Court held that “[b]y 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.”131 Thus, the Court found that the government’s use of Nichols as a jailhouse informant to obtain statements from Henry constituted deliberate elicitation of information, as defined in Massiah.132
In reaching its conclusion, the Henry Court put forth a number of important considerations about the right to counsel as it relates to the use of jailhouse informants.133 The Court confirmed Massiah’s [*PG1347]holding that the Sixth Amendment applies just as strongly to indirect and surreptitious methods of interrogation as it does to traditional, overt methods of questioning.134 Thus, the Court made clear that deliberate elicitation could just as easily take place in a jail cell conversation as it could during an all-night police interrogation.135
The Henry decision went far in defining what exactly constitutes deliberate elicitation in the unique jailhouse informant context.136 In examining Nichols’s actions as a government agent, the Court discussed a number of important factors, including the fact that Nichols was placed in close proximity to Henry, that Nichols was paid for information on a contingent fee basis, and that he had previously been an informant.137 These circumstances showed that the government must have known that some sort of elicitation of information would take place.138 The Court further recognized that even when instructions were given to an informant not to elicit incriminating information from a target, a government agent should know that the informant might try to do so anyway in various subtle ways.139 In an important observation, the Court noted that telling a jailhouse informant not to initiate conversation with a particular inmate could actually focus the informant more on the inmate than if there had been no instruction at all.140
The Henry decision also contained a number of candid recognitions about the realities of jailhouse encounters that should play a role in determining whether deliberate elicitation has occurred.141 The Court recognized that incarceration brings unique pressures into play that might not exist in other surreptitious interrogation situations—including powerful psychological inducements, a desire for camaraderie, and a sense of common plight among inmates.142 These factors create “subtle influences” that make an accused party “particularly susceptible to the ploys of undercover Government agents.”143 Conversations that take place in a jail cell have the tendency to yield [*PG1348]information that an accused would not otherwise share if he knew he was speaking to a government agent.144 As the Fourth Circuit had concluded in the case, even if Henry had been induced to give Nichols information only through general conversation, it still was apparent that a type of “interrogation” had occurred.145 Thus, in affirming the Fourth Circuit’s holding, the Court seemed to indicate a willingness to more readily find deliberate elicitation in the jailhouse informant context than in other types of undercover encounters with an accused party.146
Applying these principles to the facts of the case, the Court noted that Nichols had obviously managed to earn a great deal of trust from Henry because Henry felt comfortable enough with him to discuss details of the bank robbery.147 It was this trust, the Court implied, that enabled Nichols to obtain incriminating information from Henry, even without evidence that he resorted to using leading questions.148 Because Nichols appeared to Henry to be a jailhouse acquaintance sharing a “common plight,” he could easily induce Henry to discuss his past crimes.149
The Henry Court thus broadly construed deliberate elicitation in the jailhouse informant context.150 Even though it was not clear from the facts of the case that Nichols affirmatively elicited specific remarks from Henry, the Court still found deliberate elicitation.151 It did this by looking at not only Nichols’s actions, but also at the fact that the government placed Nichols in the situation in the first place.152 Because the government had to have known that doing so would result in his obtaining information, the government itself had taken steps to deliberately elicit statements from Henry.153 In the words of the Court, this was not a case where the “‘constable . . . blundered,’ rather, it is one where the ‘constable’ planned an impermissible interference with the right to assistance of counsel.”154 Thus, because the government intentionally created a situation in which it was likely that [*PG1349]Henry would make incriminating statements to a jailhouse informant, the Court found that it had violated Henry’s right to counsel.155
In 1986, six years after Henry, the U.S. Supreme Court revisited the jailhouse informant issue in Wilson, and narrowed an accused party’s Sixth Amendment protections in that context.156 In Henry, the Court had reserved judgment on the question of the constitutionality of the government’s use of a jailhouse informant who acts in a completely passive fashion.157 In Wilson, the Court purported to deal with that precise issue.158 In spite of strong factual similarities with Henry, the Wilson Court decided that the jailhouse informant in Wilson had made no effort to stimulate conversations about any crime.159 The Court found that such a situation does not violate an accused’s right to counsel, and in so doing seemed to retreat from the broader Sixth Amendment protections it had announced in Henry.160
In Wilson, the defendant, Joseph Allan Wilson, had been involved in a taxicab garage robbery in which a murder had taken place.161 After turning himself into authorities while maintaining his innocence, he was arraigned and incarcerated in a local jail.162 Prior to Wilson’s [*PG1350]arrival at the jail, a jailhouse informant named Benny Lee had agreed with authorities to listen to Wilson and report any incriminating remarks that he made.163 A detective told Lee not to ask Wilson any questions, but to “keep his ears open” for information.164 Shortly thereafter, Wilson discussed details of the crime with Lee, apparently without having been asked to do so.165 Initially, Wilson told Lee the same version of the story that he had given police, claiming that he had no involvement in the crime.166 After a few days, however, he changed his story, and admitted to Lee that he had indeed been involved in the robbery and murder.167 Lee, who had been secretly keeping notes of the details of his conversations with Wilson, provided this information to a detective, and Lee subsequently testified against Wilson at his trial.168 The trial court convicted Wilson of murder and felonious possession of a weapon.169 After having his state appeals denied, he filed for federal habeas relief based on the rule announced in Henry.170 Finding that the facts of Wilson’s case were indistinguishable from those of Henry, the Second Circuit Court of Appeals ruled that his right to counsel had been violated, and granted him habeas relief.171
The U.S. Supreme Court reversed, finding that the Sixth Amendment did not block the admission of Wilson’s statements to Lee, because Lee had himself made no efforts to elicit information from him.172 Examining precedent such as Spano v. New York, Massiah, [*PG1351]and Henry, the Court concluded that the primary concern of those cases was the prevention of investigative techniques that were the equivalent of interrogation.173 Because Lee had taken no affirmative steps to engage Wilson in conversation about the crimes, his actions were not the equivalent of interrogation, and thus did not offend the principles of Massiah and its progeny.174 The Court stated that a showing that a jailhouse informant had reported incriminating statements to the police, even if acting as a government agent, was not sufficient to make out a Sixth Amendment violation.175 Instead, the Court held that “the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.”176
In dissent, Justice Brennan argued forcefully that the facts in Wilson were virtually indistinguishable from those in Henry, and therefore that a Sixth Amendment violation had occurred.177 Justice Brennan pointed out three important similarities between the two cases: first, in both cases the informants usually received compensation for information; second, both informants had been instructed not to question the accused; and third, the informants had engaged in conversations with the accused that encouraged discussion of crimes.178 Conceding that Lee’s actions might not have been the immediate cause of Wilson’s admissions, Justice Brennan argued that this was of little importance, because the Court instead should have focused on the broader context of the encounters—just like it had in Henry.179 Critical of the narrow view of deliberate elicitation applied by the Wilson majority, Justice Brennan contended that “the deliberate-elicitation standard requires consideration of the entire course of government behavior.”180 Justice Brennan offered a somewhat different standard for detecting deliberate elicitation in the jailhouse informant context: looking to whether the government’s action has a “sufficient nexus” with an accused’s admission of guilt.181 For Justice Brennan, if the [*PG1352]steps that the government took with an informant could be causally linked to an accused’s statements, then the government was as guilty as the informant of a Sixth Amendment infringement.182 Therefore, this nexus would demonstrate the government’s surreptitious violation of an accused’s right to counsel.183
The Wilson decision seemed to signal a retreat from the broader reading of the right to counsel given to jailhouse informant encounters in Henry.184 On facts very similar to those in Henry, the Wilson court reached the opposite result, finding that the use of a jailhouse informant did not offend Sixth Amendment principles.185 Whereas in Henry the Court looked at the activity of both the jailhouse informant and the government actors that placed the informant, Wilson seemed to focus only on the informant himself.186 It was not clear from the record in either case that the informants had actually used conversation to deliberately elicit information from the accused.187 Thus, the differing results in Henry and Wilson seem to be based not on any significant factual differences between the two cases, but instead on a difference in how the two Courts chose to approach the matter.188
After Wilson, criminal defendants will have to meet a high threshold to demonstrate a Sixth Amendment violation inside of a jail cell.189 The government’s intentional creation of a situation in which information is likely to be elicited does not seem, on its own, to violate an accused’s right to counsel.190 In addition to government action, the informant must himself or herself take active steps to elicit information from the accused.191 In other words, “both ‘active informant elicitation’ and ‘knowing state exploitation’ are requisites for the critical Massiah stage.”192
In 1985, only six months before Wilson, the U.S. Supreme Court made some of its strongest pronouncements in two decades about the breadth of the right to counsel in Moulton.193 Although Moulton did not deal specifically with the use of a jailhouse informant, it contains illuminating language about the contours of deliberate elicitation when the government uses undercover informants.194 In Moulton, the Court read the Sixth Amendment not only as providing protections to accused parties, but also as creating an affirmative duty on the part of police and prosecutors to avoid taking steps to infringe upon that right.195 Because it was decided so close to Wilson, the fact that Moulton gives such a robust reading to the right to counsel warrants examination.196
Moulton involved two defendants, Perley Moulton and Gary Colson, who were indicted on charges of burglary and theft, and were released on bail pending trial.197 Shortly thereafter, Colson confessed to his part in the crimes to local police and was offered a deal by which no further charges would be brought against him if he would cooperate in the prosecution of Moulton.198 Colson agreed, and allowed authorities to electronically monitor both his telephone calls and face-to-face meetings with Moulton.199 During one of these meetings, Moulton made a number of incriminating statements to Colson, thinking that he was merely discussing trial strategy with his codefendant.200 During the conversation, Colson told Moulton he had a poor memory about the crimes, and asked Moulton to remind him about the details of the crimes.201 Moulton obliged.202 In addition, Colson “reminisced” about the various crimes they had committed, which also caused Moulton to join in and make incriminating statements.203 Moulton’s statements were used against him at his trial, and the court [*PG1354]convicted him of numerous counts of burglary and theft.204 On appeal, the Supreme Judicial Court of Maine concluded that the method authorities used to acquire information from Moulton violated his Sixth Amendment right to counsel, and remanded the case for a new trial.205
The U.S. Supreme Court affirmed the Supreme Judicial Court of Maine’s decision, holding that Maine authorities had actively circumvented Moulton’s Sixth Amendment rights.206 In an opinion written by Justice Brennan, the Court concluded that the right to counsel means much more than a simple prohibition on certain types of State behavior.207 It also imposes an obligation on the government to avoid acting in any fashion that circumvents an accused party’s Sixth Amendment protections in any way.208 According to the Court, “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.”209 By setting this minimum standard of acceptable investigatory behavior, the Moulton Court seemed to make it the duty of every government agent to take steps to avoid infringing on a suspect’s right to counsel in any way.210
The Moulton Court found that the police had not met that affirmative obligation to avoid circumventing the right to counsel.211 Examining the actions authorities took in using Colson to obtain information, the Court concluded that the government had interfered with Moulton’s right to have a lawyer act as a medium between himself and the State.212 Because the government had to have known that Moulton would reveal information to Colson under the assumption he was merely a codefendant, the government knowingly circumvented Moulton’s ability to request the presence of counsel.213
In reaching this conclusion, the Court recognized that there are circumstances in which engaging a suspect in a conversation—without anything else—can have the same effect as an open interrogation.214 [*PG1355]According to the Court, because Moulton believed Colson to be a codefendant with the same interests at stake, he felt free to discuss the crimes with him and make incriminating statements.215 Had he known Colson was acting as a government informant and wearing a wire, he likely would not have done so.216 Thus, the State knowingly circumvented Moulton’s right to counsel by deliberately eliciting statements from him in this indirect way.217
The Moulton view of the Sixth Amendment’s protections represents one of the Court’s broadest readings to date of the deliberate-elicitation standard.218 Its analysis of deliberate elicitation is consistent with Henry in recognition of what the government “must have known” was going to happen during such an encounter.219 Like the Henry Court, the Moulton Court examined the totality of the circumstances surrounding the accused-agent encounter, by analyzing not only Colson’s actions, but also the actions taken by the government in using him as an informant.220
Nevertheless, the Moulton Court seemed to go a step further than the Henry Court when it imputed to prosecutors an affirmative duty to respect an accused’s Sixth Amendment rights.221 The Court phrased the right to counsel not only as a “negative” (that an accused cannot be denied counsel), but also as a “positive” (that the government has a duty not to circumvent that right, even when not asserted).222 Thus, in 1985, five years after Henry and a year before Wilson, the U.S. Supreme Court made some of the last quarter-century’s strongest pronouncements about the Sixth Amendment right to counsel.223 That these pronouncements were made at nearly the same time as Wilson is remarkable.224
The Court has not spoken on the subject of jailhouse informants since Wilson, leaving it and Henry as controlling precedent on the matter.225 Taken together with Moulton, these three cases comprise the [*PG1356]modern legal standard by which courts assess right-to-counsel claims involving jailhouse informants.226 Determining whether deliberate elicitation has occurred using these cases has proven to be a difficult task for courts.227
As can be seen from the divergent rulings in Kuhlmann v. Wilson and United States v. Henry, the use of jailhouse informants to obtain information from incarcerated defendants presents difficult Sixth Amendment problems.228 Indeed, when the deliberate elicitation inquiry is grafted onto an encounter between a jailhouse informant and an accused party, a number of subtle factors come into play that confound the equation.229 Given this, courts and scholars have debated exactly what the contours of an accused’s right to counsel are in the nuanced context of a jailhouse informant encounter.230 In this debate, Wilson has been largely viewed as an unwarranted retreat from Henry’s broader Sixth Amendment protections.231
The Wilson decision has been criticized for unduly narrowing an accused’s right-to-counsel protections in jail cell situations.232 In contrast to Henry’s broader definition, the type of government/informant behavior that will trigger a Sixth Amendment violation was cast in narrower terms by the Wilson decision.233 As the Wilson Court stated, to make out a violation of the right to counsel, “the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.”234 Because this standard seems to shift the Sixth Amendment inquiry from the totality of the circumstances, including government action, to an inquiry into specific action by an informant, scholars have contended that Wilson fails to protect an accused’s Sixth Amendment rights in certain types of jailhouse informant encounters.235
One major criticism of Wilson centers on the argument that its facts are largely indistinguishable from those of Henry, and therefore it should have been decided in the same way.236 Based on the contention that Henry was correctly decided, and constitutes valid precedent, Wilson should have been similarly decided because the two cases shared three major factual similarities.237 First, both cases involved paid government informants.238 Second, both cases had government agents taking affirmative steps to place the informants in close proximity to the accused parties.239 In addition, the informants in both cases were instructed by agents not to initiate conversation with the accused about their charges.240 Third, and perhaps most importantly, in both cases it seems that informants were able to develop some level of close rapport with the accused—at least to the point where incriminating information was revealed.241 In spite of these similarities, Wilson did not adequately discuss or distinguish Henry’s direct prece[*PG1358]dent.242 In fact, the Wilson Court devoted only three brief paragraphs to an analysis of Henry, and after doing so, reached the opposite result.243 In doing so, it has been argued that confusing, conflicting precedent has been created with which courts will have to grapple.244 Based on the premise that Henry and Wilson are factually indistinguishable, this line of criticism goes as far as to say that Wilson was decided incorrectly.245
It has also been argued that Wilson’s focus on the activity or passivity of a jailhouse informant is misguided.246 Wilson’s focus on the actions of the informant himself, divorced from the context of the government activity that placed him there, is an incomplete inquiry.247 No jailhouse informant is truly “passive,” because behind that informant is a government agent who has actively and deliberately placed him near the accused in hopes of obtaining information from him.248 Thus, weighing the “activity” or “passivity” of a jailhouse informant misses the mark, and the Wilson Court’s focus should have been on the government action in placing the informant in the cell in the first place instead.249 It is at that step that deliberate elicitation has occurred.250 Further, a “passive” undercover informant endangers an accused’s right to counsel just as much as an “active” one does, because in both situations the accused has no idea that he or she is speaking to a government agent.251
A distinction between “passive” and “active” informants—even if it were valid—would be practically impossible to define for three reasons.252 First, it is often difficult to examine the record of a case and determine from it the character of an informant’s actions towards an accused.253 Evidence of this can be found in Wilson itself, where the majority and dissent interpreted the same factual record in very different manners.254 Second, there exist serious evidentiary problems in determining what took place inside of a jail cell.255 Often, the only [*PG1359]available evidence consists of the conflicting testimony of the informant and the accused as to what was said by whom.256 Finally, it is difficult to determine what informant action can properly be labeled as an active attempt to elicit information.257 Discerning this “triggering” event can be nearly impossible after the fact.258
The most compelling critique of Wilson is that it is an unwarranted retreat from the Sixth Amendment protections announced by the Court in prior decades.259 From Massiah v. United States through Maine v. Moulton, the Court had broadly defined when the government violated the right to counsel, examining not only the actions of undercover informants, but also the nature of the government’s aid to the informant.260 Wilson’s primary focus on the actions of the informant—and not the government action placing him there—was a sharp deviation from larger principles announced in Massiah, Henry, and Moulton, that there is an affirmative duty on the part of the government to respect an accused’s Sixth Amendment rights.261 Wilson thus represents a sudden break in what has been a long chain of broad, liberal readings of the Sixth Amendment’s guarantees.262
The Wilson standard allows the government to shirk that duty, because it may create a situation where information is likely to be obtained, but deliberate elicitation will not occur unless the informant himself or herself takes active steps in conversation with the accused.263 Contrary to the fundamental holding of Wilson, it is of no constitutional import whether an informant is passively listening or not.264 By deceiving an accused party into thinking that he or she is simply speaking to a fellow cellmate, the government has actively violated that defendant’s right to counsel.265
As noted by Justice Burger in Henry, when the government knowingly and intentionally creates a situation in which it is likely that an accused party will make incriminating statements without counsel [*PG1360]present, deliberate elicitation occurs.266 In light of the “powerful psychological inducements” of incarceration—such as a desire on the part of an accused party to form bonds with fellow inmates—deliberate elicitation of incriminating statements happens much more readily in a jail cell than it does in other situations.267 Wilson failed to take these factors into account when defining what constitutes deliberate elicitation inside of a jail cell, and in doing so defined that term too narrowly.268
Although Wilson has engendered some support—for example, on the ground that it provides a workable, bright-line test with which to detect jail cell right-to-counsel violations269—the overall scholarly reaction to Wilson seems to be much more negative than positive.270 In cases where little or no evidence exists that an informant took active conversational steps to induce an accused party to make incriminating statements, Wilson would prevent a successful right-to-counsel claim.271 Wilson’s requirement that the informant himself or herself do something beyond passive listening in order to trigger a right-to-counsel violation narrows the number of successful Sixth Amendment claims that can be made.272
The Sixth Amendment standard announced in Kuhlmann v. Wilson fails to detect a wide range of Sixth Amendment violations that take place when the government uses a jailhouse informant to obtain information from an accused party.273 By requiring an informant to do something “beyond mere listening” in order to satisfy the requirement of deliberate elicitation, the Wilson standard fails to recognize that government prearrangement with an informant can be, by itself, an act of elicitation.274 The government’s act of placing an informant in close proximity to an accused party—knowing that it is [*PG1361]more likely than not that the party will make statements to the informant—is a deliberate circumvention of an accused’s right to counsel, one that should be barred by the Sixth Amendment.275
Wilson, however, requires that the government and informant work in tandem to actively elicit information from an accused in order to violate the right to counsel.276 This dual requirement simply sets the bar too high.277 Even without active, conversational participation by an informant, a Sixth Amendment violation occurs when the government takes advantage of an accused party’s ignorance and puts him in the presence of an undercover agent.278 By failing to accord weight to this important premise, Wilson represents an unsound and unwarranted retreat from the right-to-counsel protections announced in United States v. Henry.279
The government has an affirmative obligation not to circumvent an accused’s right to counsel.280 When the government knowingly exploits an opportunity to obtain information from an accused party in the absence of counsel—which it surely does when it places an informant in a cell with the accused—it shirks this obligation.281 Under Wilson, however, the government may do precisely that, so long as it instructs an informant merely to listen.282 Thus, the Wilson standard fails to hold the government to its affirmative obligation to respect an accused’s right to counsel.283
A better standard to detect Sixth Amendment violations would apply a two-tiered inquiry.284 First, a court should inquire whether an informant actively engaged the defendant so as to deliberately elicit incriminating statements from him or her.285 If an informant is found to have done so at the behest of the government, a violation of the right to counsel has clearly occurred.286 If an informant has been [*PG1362]“passive,” however, the inquiry should not end, and a second test should be applied.287 As the second tier of its inquiry, a court should examine the entire course of the government’s action in the case, and determine whether the government created a situation in which it was likely that incriminating statements would be made.288 If a sufficient nexus can be found between the State’s action and any admissions made by the accused, a violation of the right to counsel has occurred, regardless of the informant’s passivity.289
This standard would combine the somewhat conflicting holdings of Henry and Wilson into a single inquiry.290 It recognizes that in an undercover jailhouse interrogation, there are really two parties working to obtain information—the informant, and the government agent that placed the informant in proximity to the accused.291 This standard would take Wilson’s focus on the actions of the informant, and Henry’s focus on the actions of the government, combining them into a broader, more effective standard for protecting an accused’s Sixth Amendment rights.292 This standard would capture far more right-to-counsel violations than the narrower Wilson test does, and in doing so would restore the scope of Sixth Amendment protections to where they were for the better part of a quarter-century prior to Wilson.293
The first tier of this two-tiered approach would incorporate Wilson’s distinction between passive and active informants.294 The Wilson Court showed a valid concern about the legitimate use of passive informants who overhear incriminating statements and voluntarily pass that information on to authorities without any prompting beforehand.295 Under this proposed standard, that behavior would satisfy the first (and second) tier of the inquiry, consistent with the contours of the Sixth Amendment.296 Informants who take active conversational [*PG1363]steps to elicit incriminating remarks from accused parties, however, would, and should, trigger a right-to-counsel violation.297
This approach recognizes that even objectively passive jailhouse informants cannot be fairly labeled as “merely listening.”298 They are prisoners with a vested interest in obtaining information from unsuspecting cellmates.299 They are undercover government agents with a powerful interrogatory tool at their disposal—the unique pressures of incarceration.300 Thus, given the many subtle ways in which an informant can elicit information, whether or not he or she says certain magic words to cause an accused to speak should be of little import to a valid Sixth Amendment inquiry.301 An informant will rarely resort to blatant, open questioning in order to elicit a confession, and instead might use far more subtle methods to induce statements.302 When the government, fully aware of this fact, places an informant in a cell with an accused, the Sixth Amendment violation has already occurred.303
The second tier of this approach would examine the steps taken by the government to create a situation in which information would be obtained.304 If a sufficient nexus exists between the government action and the statements made, then the government action is akin to surreptitious interrogation, and is thus violative of the right to counsel.305 This inquiry recognizes that the placement of an informant in the proximity of an unsuspecting accused party is, effectively, just as much an act of deliberate elicitation of information as direct questioning.306
This second tier takes into account that there are unique pressures of incarceration which make it far more likely that an accused party will reveal information than in other settings.307 The perception that an informant is a fellow inmate sharing a common plight, coupled with a desire for camaraderie in such a harsh setting, make an accused party more susceptible to subtle tactics than in other situa[*PG1364]tions.308 The pressures of incarceration themselves can lead to the elicitation of statements, even if an informant is “merely listening.”309 By actively placing an informant and an accused together in this type of environment, the government engages in the functional equivalent of interrogation.310 The second tier of this proposed inquiry recognizes that basic fact, and would find a Sixth Amendment violation whenever the government took steps to create a situation in which incriminating statements were likely to be made in a jailhouse setting.311
The two-tiered inquiry proposed here would represent somewhat of a revival of Henry, and in doing so would better prevent abuses of an accused’s right to counsel.312 The broader definition of a right-to-counsel violation in the jailhouse informant setting fits far better with the principles announced as far back as Massiah v. United States and even Powell v. Alabama.313 By examining the totality of the circumstances, as was done in Henry—looking at both the actions of the jailhouse informant and the government in any given jail cell encounter—this standard would capture far more Sixth Amendment violations than the Wilson standard currently does.314
Although the use of jailhouse informants to obtain information from an accused party may be a highly effective law enforcement tool, the tactic raises serious constitutional questions. Providing prisoners with an incentive to obtain information from unsuspecting cellmates does not look like the activity of a government concerned with the Sixth Amendment rights of its citizens. The government has an affirmative obligation to respect an accused’s right to counsel, and the use of a jailhouse informant “middle man” to elicit information from a defendant comes dangerously close to an abandonment of that obligation. Courts should be as concerned—if not more so—with subtle [*PG1365]tactics of deliberate elicitation as they are with more overt methods of interrogation.
The standard set forth in Kuhlmann v. Wilson does not adequately reflect that concern. The right to counsel is too important to hinge on whether or not a jailhouse informant says certain magic words. As the Court in United States v. Henry recognized, courts also need to look at the actions government agents take in placing the informant there in the first place. When the government takes deliberate steps to create a situation in which it is likely that information will be elicited, it is, in terms of the right to counsel, just as constitutionally offensive as an all-night interrogation is. The standard proposed in this Note recognizes this broad reading of the Sixth Amendment, and would ensure that statements obtained in violation of its principles would not be admitted in a court.
Although this standard would substantially limit the use of jailhouse informants as a permissible method of undercover investigation, this should be viewed as a desirable goal. Especially in today’s legal and political climate, where legitimate concerns exist about the curtailment of individual liberties in the face of increasing government police power, courts need to be vigilant in their protection of the rights of accused parties. The right to counsel is far too fundamental and important to be afforded anything less.