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Amicus will address whether an initial violation of Massiah v. United States, 377 U. S. 201 (1964) prevents the admission of a subsequent confession that was taken after a valid Miranda v. Arizona, 384 U. S. 436 (1966) waiver. This "fruit of the poisonous tree," see Nardone v.United States, 308 U. S. 338, 341 (1939), analysis is premised on the assumption that the arresting officers violated Massiah when they told Fellers that they wanted to talk about his involvement with the drug conspiracy. It is worth noting, however, that it is far from clear that Fellers'Massiah rights were in fact violated. Under Massiah, the admissibility of a post-indictment statement turns on whether it was deliberately elicited from the accused by the police, see 377 U. S., at 206, absent a valid waiver of the right to counsel. The conclusion that the officers' first encounter with Fellers comes under this vague standard is an open question, but amicus chooses to concentrate on broader issues concerning Massiah and the fruits doctrine. Amicus argues that an initial Massiah violation should not cause the suppression of a subsequent voluntary confession under the fruit of the poisonous tree doctrine.
The conclusion that Massiah does not bar a subsequent valid confession stands on another premise, that an indicted defendant can be interrogated by the police without the presence of defense counsel if the defendant gives a valid Miranda waiver. Since Miranda warnings inform the defendant of his right to counsel, see Miranda, 384 U. S., at 479, a valid Miranda waiver will also validly waive any Massiah right to counsel. Patterson v. Illinois, 487 U. S. 285, 293 (1988). As the second confession satisfies Massiah as well as Miranda, the only question is whether an initial Massiah violation requires suppressing this otherwise valid admission of guilt. The answer is "no."
Massiah v. United States, 377 U. S. 201 (1964) was a revolutionary decision. Massiah's revolution was how it extended the right to counsel to regulate the government's power to investigate defendants after the initiation of proceedings. These encounters differ greatly from the other critical stages recognized by the Court, because they do not raise the same need for counsel's presence found in the other Sixth Amendment cases. As Justice Blackmun observed, "Massiah certainly is the decision in which Sixth Amendment protections have been extended to their outermost point." United States v. Henry, 447 U. S. 264, 282 (1980) (Blackmun, J., dissenting). Since application of the fruit of the poisonous tree doctrine is a function of the principles of the violated constitutional right, see Part II, infra, understanding Massiah's revolution is essential.
An understanding of Massiah's divergence from the Sixth Amendment begins by examining the principles of the right to counsel. History provides only limited guidance for interpreting the right. The Sixth Amendment broke from the English common law practice, which placed substantial limits upon the accused's ability to employ counsel. See Powell v. Alabama, 287 U. S. 45, 60 (1932); Office of Legal Policy, Report to the Attorney General on The Sixth Amendment Right to Counsel Under the Massiah Line of Cases, 22 U. Mich. J. L. Ref. 661, 672-673 (1989) ("Massiah Right to Counsel"). Unfortunately, the Founders provided no guidance as to why the right to counsel was included in the Sixth Amendment, or what it meant. See W. Beaney, The Right to Counsel in American Courts 23-24 (1955).
While the history of the right to counsel is dim, the rationale behind it is better understood. The classical justification for providing attorneys for criminal defendants is found in Powell.
"Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect." 287 U. S., at 69.
An attorney's aid is not constitutionally required simply to give assistance to the defendant. It is to provide the accused with someone "skill[ed] in the science of law." See ibid. As Justice Black noted, the Sixth Amendment "embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel." Johnson v. Zerbst, 304 U. S. 458, 462-463 (1938).
The right to counsel is governed by these considerations. The "core purpose of the counsel guarantee was to assure 'Assistance' at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor." United States v. Ash, 413 U. S. 300, 309 (1973). "This review of the history and expansion of the Sixth Amendment Counsel guarantee demonstrates that the test utilized by the Court has called for examination of the event in order to determine whether the accused required aid in coping with legal problems or assistance in meeting his adversary." Id., at 313.
The decisions other than Massiah expanding the right to counsel to pretrial stages are consistent with these principles. Counsel's presence at the preliminary hearing can prevent an erroneous prosecution, develop impeaching evidence against the government's witnesses at trial, discover the State's case, or make effective arguments for an early mental examination or bail. See Coleman v. Alabama, 399 U. S. 1, 9 (1970) (plurality). An unrepresented defendant cannot do this, see ibid., to his or her considerable detriment. In Hamilton v. Alabama, 368 U. S. 52 (1961), an insanity plea, pleas in abatement, and grand jury discrimination challenges had to be made at the arraignment. See id., at 53-54. The ability to understand the defense and make the plea is the unique province of counsel. An unrepresented defendant could lose these defenses forever, see id., at 54, justifying an extension of the right to counsel to this phase of the prosecution.
The extension of the right to counsel outside the courtroom is no different. In United States v. Wade, 388 U. S. 218 (1967), this Court recognized a right to counsel at post-indictment identification lineup. The opinion began with a framework for determining when to apply the right to counsel to a pretrial encounter. The principles of Powell "calls upon us to analyze whether potential substantial prejudice to defendant's rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice." Id., at 227.
Not every pretrial effort to identify the defendant required the presence of counsel. Analysis "of the accused's fingerprints, blood sample, clothing, hair, and the like," see ibid., without defense counsel did not threaten the trial's fairness because the veracity of any identification could be tested by cross-examining the government's expert witnesses at trial and presentation of defendant's own experts. See id., at 227-228. The lineup, however, posed a risk of misidentification of the perpetrator that could not be readily corrected through confrontation at trial. "But the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial." Id., at 228. Eyewitness identification raises genuine issues about the reliability of a conviction. There are justifiable concerns about the accuracy and reliability of eyewitness testimony, see id., at 228-229; Manson v. Brathwaite, 432 U. S. 98, 111-112 (1977), but nonetheless eyewitnesses have enormous influence over juries. See E. Loftus & J. Doyle, Eyewitness Testimony: Civil and Criminal §1-2, p. 2 (3d ed. 1997). Therefore eyewitness misidentification is perhaps the largest source of wrongful convictions. See Wade, 388 U. S., at 229.
Wade's right to counsel protects defendants from misidentification at the lineup. The presence of counsel guards against rigged lineups, like a lineup of six white men and one black man, see Loftus & Doyle, §6-17(b), at 143, as well as more subtle forms of suggestion. See id., §6-12, at 130. Assessing the reliability of a lineup identification requires detailed analysis of a host of complex factors. See id., §6-17, at 140-141. The accused in a lineup needs someone with counsel's knowledge of the problems and practices of lineups to guard against a wrongful identification. See Wade, 388 U. S., at 230-231. "In short, the accused's inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness' courtroom identification." Id., at 231-232. Quite simply,Wade provides criminal defendants with an essential guard against wrongful conviction.
The cases declining to extend the right of counsel to particular events are consistent with these principles. Where the accused is not faced with complex legal proceedings or some other substantial risk of an unfair trial, then there is no critical stage that warrants a right to counsel. Taking handwriting exemplars is not a critical stage because "there is minimal risk that the absence of counsel might derogate from his right to a fair trial." Gilbert v. California, 388 U. S. 263, 267 (1967). Similarly, no counsel was required for a post-indictment photo lineup because "no possibility arises that the accused might be mislead with his lack of familiarity with the law or overpowered by his professional adversary," and counsel would not "be used to produce equality in a trial-like adversarial confrontation." Ash, 413 U. S., at 317.
With one notable exception, the right to counsel cases are consistent. Absent the initiation of proceedings against the accused and the presence of complex legal proceedings or a special threat to the fairness of the trial, an event is not covered by the right to counsel. The one exception to this rule is Massiah.
Understanding Massiah's revolution begins by analyzing its facts and reasoning. Massiah, Colson, and some others were indicted on a variety of federal narcotics charges. See 377 U. S., at 202. Colson agreed to work with the government and allowed a federal agent to place a radio transmitter in his car. See id., at 202-203. The federal agent used this transmitter to surreptitiously overhear incriminating statements made by Massiah during a conversation with Colson, which were then recited at Massiah's trial. See id., at 203.
Massiah claimed that the use of the transmitter violated the Fourth Amendment, while the government's deliberate elicitation of statements from him in the absence of counsel violated the Fifth and Sixth Amendments. See id., at 203-204. Instead of dealing with a tricky Fourth Amendment issue regarding the eavesdropping, see 2 W. LaFave, J. Israel, & N. King, Criminal Procedure 6.4(b), p. 479 (2d ed. 1999), this Court bypassed the Fourth Amendment claim, see Massiah, supra, at 204, and began its analysis with an examination of Spano v. New York, 360 U. S. 315 (1959). See Massiah, supra, at 204. Spano was a confession case in which the Court's opinion struck down the conviction because the confession failed the due process voluntariness test. See 360 U. S., at 323-324. Four concurring Justices stated that the confession should be suppressed because the defendant had a right to counsel during this post-indictment questioning. See id., at 326 (Douglas, J., concurring); id., at 327 (Stewart, J., concurring). The Massiah Court noted the Spano concurrences, and the fact that since Spano, New York courts recognized a right to counsel in any interrogation after indictment. See 377 U. S., at 204-205. The rest of the opinion extends the rule of the Spano concurrences beyond custodial interrogations to the facts of Massiah, see id., at 206, and explains that this new rule does not needlessly prevent the continuing investigation of a defendant after an indictment. See id., at 206-207.
Massiah is notable for lacking any substantial justification for its holding. "The doctrinal underpinnings of Massiah have been largely left unexplained . . . ." Henry v. United States, 447 U. S. 264, 290 (1980) (Rehnquist, J., dissenting). This Court's interpretations of Massiah add little to its scant justification. The "Christian burial speech" case, Brewer v. Williams, 430 U. S. 387, 392-393 (1977), found Massiah applicable to a case where it characterized the police conduct as equal to or more effective than interrogation. Id., at 399. Its explanation of the reasons forMassiah consisted of a quotation from Justice Sutherland's famous passage from Powell, see id., at 398, and the conclusion that "the right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to a lawyer at or after the time that judicial proceedings have been initiated against him . . . ." Ibid. The rest of the analysis focused on finding that the speech violated Massiah, see id., at 399-401, and that the Massiah right to counsel could not be waived implicitly. See id., at 401-406.
Other decisions provide no additional justification for Massiah. The case dealing with Williams' conviction on retrial, Nix v. Williams, 467 U. S. 431 (1984), addressed whether the victim's body that was discovered through the Christian burial speech should be suppressed under the fruit of the poisonous tree doctrine. See id., at 441. The Nix Court's use of the fruit of the poisonous tree doctrine is discussed later in this brief, seeinfra, at 16-17, but like Brewer, it contains no meaningful explanation of Massiah's basis. Henry addressed what is meant by Massiah's use of the term "deliberately elicited." See 447 U. S., at 270. It was able to decide the issue without explaining Massiah's rationale any further. See id., at 290 (Rehnquist, J., dissenting).
Only Maine v. Moulton, 474 U. S. 159 (1985) has provided any semblance of analytical support for Massiah. The opinion noted the importance of the right to counsel and quoted from the passage in Powell. See id., at 169. It explained that the right to counsel is not limited to the trial, but rather "is shaped by the need for assistance of counsel." Id., at 170. After this was a brief recitation of the critical stages doctrine, see ibid., a recitation of the passage from Brewer quoted above, see ibid., and a concluding passage about the importance to the defendant of the initiation of proceedings. See ibid. Absent from Moulton or any other Supreme Court opinion is a detailed analysis of how Massiah advances Sixth Amendment principles.
Massiah lacks better justification because it is so difficult to justify. Defendants are entitled to counsel when there is a special need for counsel's legal expertise or advocacy. Just as the Scottsboro boys could not be expected to defend themselves without the help of an attorney until the morning of the trial, Powell, 287 U. S., at 56, a layperson cannot effectively represent himself or herself at a preliminary hearing or arraignment. See Coleman v. Alabama, 399 U. S. 1, 9 (1970) (plurality); Hamilton v. Alabama, 368 U. S., at 54-55; supra, at 6-8.
Massiah does not present a similar need for legal expertise. "In this situation, the accused is not confronted with complex legal procedures or by an expert adversary . . . ." Massiah Right to Counsel, 22 U. Mich. J. L. Ref., at 685-686. Most Massiah cases have not involved any direct confrontation between the government and the accused. Instead, in the typical case, the government used an informer as an agent to gather information by talking to the defendant about the case. See Massiah, 377 U. S., at 201; Henry, 447 U. S., at 266; Moulton, 474 U. S., at 161. While counsel can preserve a defense at an arraignment or prevent an unfair lineup at the stationhouse, these undercover operations do not create a need for the special expertise or advocacy of the attorney. The risk of speaking to a person who may "snitch" is well within the knowledge and experience of laymen.
Direct encounters between the police and the indicted defendant, see Brewer, 430 U. S., at 392; United States v. Fellers, 285 F. 3d 721, 723 (CA8 2002), provide no more justification for a separate Sixth Amendment right to counsel's presence. Most police attempts to elicit information directly from indicted suspects will be custodial interrogations governed by Miranda v. Arizona, 384 U. S. 436 (1966). Since a valid Mirandawaiver also waives the Massiah right to counsel, see Patterson v. Illinois, 487 U. S. 285, 293 (1988), Massiah is redundant in most confrontations between the police and an indicted defendant. See infra, at 29-30. Massiah will govern only in those rare confrontations where the accused is questioned but not in custody, or when the police attempt to deliberately elicit information from the defendant through methods that fall short of actual interrogation. See Henry, 447 U. S., at 271 (acts short of interrogation come within the deliberately elicit standard). Even if such a confrontation is possible, where Miranda is unnecessary there must be little need for the Massiah right to counsel.
A sense of fairness is the best explanation for Massiah. See Massiah, 377 U. S., at 205 (quoting People v. Waterman, 175 N. E. 2d 445, 448 (N.Y. 1961)). Since there is no real need for the legal expertise or the advocacy skills of counsel in the confrontations that Massiah governs,Massiah's right is more like a "cover for a judicially imposed policy against the use of post-indictment confessions." See Massiah Right to Counsel, 22 U. Mich. J. L. Ref., at 688. The initiation of proceedings entitles the defendant to the assistance of counsel. See Brewer, 430 U. S., at 398. The availability of counsel before the trial gives the defendant's attorney the opportunity to prepare the case and mount an effective defense. See ibid. Knowingly eliciting incriminating information from the accused during this preparatory phase can all but end the defense before it begins. Once a confession is obtained by the police or undercover informants, counsel's role may be reduced to finding the best plea bargain under the difficult circumstances produced by the accused's admissions.
Massiah guards against an alleged unfairness that is neither particularly unfair, nor within traditional province of counsel. A Massiah violation does not deprive the defendant of counsel in any normal sense. "Massiah was not prevented from consulting with counsel as often as he wished. No meetings with counsel were disturbed or spied upon. Preparation for trial was in no way obstructed." Massiah, 377 U. S., at 209 (White, J., dissenting). At best, this right operates at the far reaches of the right to counsel.
Massiah exacts a high price for its extreme application of the right to counsel. It excludes highly relevant, voluntary, self-incriminating statements from the accused. Confessions and admissions to third parties are not mere necessary evils. "[T]he ready ability to obtain uncoerced confessions is not an evil but an unmitigated good . . . ." McNeil v. Wisconsin, 501 U. S. 171, 181 (1991). Such admissions "are more than merely 'desirable,' [citation] they are essential to society's compelling interest in finding, convicting, and punishing those who violate the law." Moran v.Burbine, 475 U. S. 412, 426 (1986). Massiah also creates an incentive to delay initiating proceedings against a suspect until the investigation is complete. This leaves potentially dangerous suspects to prowl the streets longer than due process requires. See Massiah Right to Counsel, 22 U. Mich. J. L. Ref., at 689. Even if this Court decides not to modify Massiah, see Part IV, infra, the Sixth Amendment should not be stretched any further.
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