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The exclusionary rule of Massiah v. United States, 377 U. S. 201 (1964) should not extend to strike down a confession made in compliance withMiranda v. Arizona, 384 U. S. 436 (1966), but after a Massiah violation. Extending Massiah in this way does not advance any legitimate Sixth Amendment interests, and exacts a heavy price from society.
The cost of striking down Fellers' confession is considerable, since admitting voluntary confessions into evidence serves a vital public interest. See Moran v. Burbine, 475 U. S. 412, 426 (1986). Unless admitting the confession does substantial harm to the interests protected by the Sixth Amendment, the fruits doctrine should not apply. Massiah's tenuous relationship with Sixth Amendment principles, see Part I, supra, is a strong reason for not extending it to this case.
Oregon v. Elstad, 470 U. S. 298 (1985) completes the case against extending the fruits doctrine to confessions. Elstad rested on two grounds. First, Miranda's Fifth Amendment guarantee served different interests than the Fourth Amendment exclusionary rule which forms the traditional basis for the fruits doctrine. See id., at 304. Applying the fruits doctrine would not serve the Fifth Amendment's goal, and therefore there was no need to suppress the second confession. See id., at 308; supra, at 19-20.
The Elstad Court also held that taking a confession contrary to Miranda did not undermine the voluntariness of the subsequent Miranda waiver or the second confession. While an earlier coerced confession can render a later confession involuntary, failing to give Miranda warnings only creates a presumption that the first confession was coerced. See Elstad, 470 U. S., at 310. Where the first confession was unwarned but voluntary, administering the Miranda warnings before a subsequent interrogation "serves to cure the condition that rendered the unwarned statement inadmissible." Id., at 311.
The fact that the first confession "let the cat out of the bag" did not compromise the voluntariness of the subsequent Miranda waiver. See ibid. "When neither the initial nor the subsequent admission is coerced, little justification exists for permitting the highly probative evidence of a voluntary confession to be irretrievably lost to the factfinder." Id., at 312. The Miranda warnings that preceded the second confession "ordinarily should suffice to remove the conditions that precluded admission of the earlier statement." Id., at 314.
Fellers was given his Miranda warnings and gave an express waiver before his jailhouse confession. See United States v. Fellers, 285 F. 3d 721, 723 (CA8 2002). This also waives his Massiah rights. Patterson v. Illinois, 487 U. S. 285, 293 (1988). Elstad demonstrates that Fellers' first voluntary, but Massiah-barred incriminating statements do not compromise the validity of his Miranda waiver or subsequent confession. Since nothing in his first statement was coerced, the bare fact that it let the "cat out of the bag" did not invalidate Fellers' Miranda waiver. The Mirandawarnings informed Fellers of his rights to silence and counsel, correcting any problems arising from his first incriminating statement.
Elstad is crucial to resolving Fellers' claims. This decision prevents any attempt to suppress Fellers' second statement simply because this first statement was taken contrary to Miranda. See Fellers, 285 F. 3d, at 724. Since Massiah is a Sixth Amendment right, Elstad is not identical to Fellers' Massiah claim. The decision to admit the second confession had to be consistent with Fifth Amendment principles, see 470 U. S., at 304, while the present case revolves around Sixth Amendment principles which do differ from the Fifth Amendment. See Rhode Island v. Innis, 446 U. S. 291, 300, n. 4 (1980). Differences in constitutional principles did play an important role in determining the reach of the fruits doctrine inElstad, see 470 U. S., at 306 (distinguishing between Fourth and Fifth Amendment principles), but the differences between the Fifth and Sixth Amendments are not enough to distinguish Elstad from the present case.
The right to counsel protects the fairness and the reliability of the trial. See supra, at 6-9. Admitting Fellers' second statement does not compromise either principle. While there can be concerns about the reliability of confessions, "Miranda serves to guard against 'the use of unreliable statements at trial' . . . ." Withrow v. Williams, 507 U. S. 680, 692 (1993) (quoting Johnson v. New Jersey, 384 U. S. 719, 730 (1966)). Although it is possible for a confession to comply with Miranda but still be compelled, that situation is "rare." See Berkemer v. McCarty, 468 U. S. 420, 433, n. 20 (1984). Voluntary, Miranda-compliant confessions such as Fellers' are not simply necessary evils, they are an "unmitigated good . . . ." McNeil v. Wisconsin, 501 U. S. 171, 181 (1991). Since such confessions come from "the most knowledgeable and unimpeachable source about [the defendant's] past conduct" they can be more reliable than eyewitness testimony. See Bruton v. United States, 391 U. S. 123, 140 (1968) (White, J., dissenting). If anything, admitting Fellers' second confession made his conviction more reliable. Nor is there any unconstitutional unfairness in admitting Fellers' second incriminating statement. When the accused is informed of the right to counsel and makes an express, voluntary waiver of his rights, there is no need for the presence of counsel during the interrogation. See Moran v. Burbine, 475 U. S. 412, 426-427 (1986). Since the first incriminating statement did not taint the Miranda waiver, there is no unfairness in holding Fellers to his confession.
The defendant's efforts to justify applying the fruits doctrine are at best ineffectual. His claim that suppressing the second confession detersMassiah violations, see Brief for Petitioner 19, is readily refuted by Elstad, which severs any causal relationship between an illegal but voluntary confession and a subsequent valid confession. Fellers also claims that applying the fruits doctrine here serves the fair trial interests of the Sixth Amendment.
"Defendants are entitled to the assistance of counsel at critical pretrial confrontations with the government because of the trial effects of such encounters--namely, that the 'results of the confrontation "might well settle the accused's fate and reduce the trial itself to a mere formality" 'United States v. Gouveia, 467 U. S. 180, 189 (1984) (quoting [United States v. Wade, 388 U. S. 218, 224 (1967)])." Ibid.
In context, this quote from Gouveia limits what is considered "critical":
"Although we have extended an accused's right to counsel to certain 'critical' pretrial proceedings, United States v. Wade, 388 U. S. 218 (1967), we have done so recognizing that at those proceedings, 'the accused [is] confronted, just as at trial, by the procedural system, or by his expert adversary, or by both,' United States v. Ash, [413 U. S. 300, 310 (1973)], in a situation where the results of the confrontation 'might well settle the accused's fate and reduce the trial itself to a mere formality.' United States v. Wade, supra, at 224." United States v. Gouveia, 467 U. S. 180, 189 (1984).
Judged by this standard, questioning by the police is no more "critical" after indictment than it was before. The police are no more expert, and the procedure is no more complex. Fellers second, Miranda-compliant, confession is not the type of confrontation that calls into question the fairness or the reliability of the trial. Suppressing the statement would keep a highly credible admission of guilt from the trier of fact while adding nothing to the reliability or fairness of his trial. Massiah has already overextended the Sixth Amendment. There is no need to extend it even one more inch.
Massiah v. United States, 377 U. S. 201 (1964) is a decision that warrants ample criticism. It takes the Sixth Amendment right to counsel to its very edge and beyond. See Part I, supra. This decision denies society its compelling interest in securing and admitting voluntary admissions of guilt. Massiah also creates perverse incentives in our criminal justice system. Decisions to initiate proceedings will not be based upon the strength of the case and the suspect's danger to society, but will also be influenced by the need to further investigate the suspect. See Part I-A,supra.
This Court once turned down an opportunity to reexamine Massiah. See United States v. Henry, 447 U. S. 264, 269, n. 6 (1980). Amicussuggests that Henry's summary dismissal of the invitation should not foreclose this Court from reexamining Massiah in this case. Massiah should be limited.
Recent decisions of this Court demonstrate that stare decisis is far from an impenetrable barrier to reconsidering precedents. In Ring v. Arizona, 536 U. S. 584, 589 (2002), this Court partially overruled Walton v. Arizona, 497 U. S. 639 (1990) in spite of the fact that several state governments relied on Walton when constructing their capital punishment procedures. Lawrence v. Texas, 539 U. S. __, 156 L. Ed. 2d 508, 123 S. Ct. 2472 (2003) demonstrates that the level of public interest in a case will not prevent its reconsideration. See id., at 525, 123 S. Ct., at 2484 (overruling Bowers v. Hardwick, 478 U. S. 186 (1986)). Since Massiah is a case establishing extra procedural protections for criminal defendants, the reliability interest in Massiah is low, making stare decisis particularly weak. See, e.g., Payne v. Tennessee, 501 U. S. 808, 828 (1991).
Massiah is poorly reasoned, inconsistent with Sixth Amendment principles, and contrary to this Court's precedents. It burdens society by suppressing highly reliable, relevant evidence. See Part I, supra. What little legitimate protection it gives to the accused is largely redundant since Miranda v. Arizona, 384 U. S. 436 (1966). Since a Miranda waiver also waives Massiah rights, Massiah is unnecessary in virtually any direct confrontation between the accused and the police.
Massiah's only real utility to the defendant is in those cases involving informants. Since this case does not involve police informants, it is unnecessary to decide whether the Massiah rule should still hold in these cases. The present case, however, is an appropriate vehicle for removing direct confrontations between the police and the suspects from Massiah's grip.
Brewer v. Williams, 430 U. S. 387 (1977) is the only Supreme Court Massiah case involving a direct confrontation between the police and the accused. Even under Brewer's unusual facts, a case with the same facts today would reach the same result without Massiah. There is a strong case that the Christian burial speech constituted a Miranda violation. While there was no express questioning of Williams, Miranda is not limited to express questioning. Rhode Island v. Innis, 446 U. S. 291, 298-299 (1980). Instead, the relevant issue under Miranda is whether the defendant was functionally questioned through words or deeds "that the police should know [are] reasonably likely to elicit an incriminating response from the suspect . . . ." Id., at 301 (footnotes omitted). While the Innis Court took pains to distinguish Brewer, see id., at 300, n. 4, the Brewer Court's characterization of Williams' treatment appears to satisfy that standard. "There can be no serious doubt, either, that [the detective] deliberately and designedly set out to elicit information from Williams just as surely as--and perhaps more effectively than--if he had formally interrogated him." 430 U. S., at 399. Since there was no effective waiver of his previously asserted right to counsel, see id., at 405-406, Williams had a validMiranda claim. Therefore, even if Massiah did not apply, the initial statements still would be suppressed under Miranda, but the derivative evidence from those statements would still be admitted under inevitable discovery. Even under Brewer's extreme facts, Miranda provides all the necessary protection, and Massiah is merely ornamental.
Limiting Massiah to its facts, prohibiting the government from using informants to deliberately elicit information from indicted defendants, would involve only a minor disruption of this Court's precedents. The result of the redundant Brewer case would not change. Since government informants do not have to give Miranda warnings when talking to a suspect, see Illinois v. Perkins, 496 U. S. 292, 299-300 (1990), Massiah itself would not be overruled.
Massiah's precedent now bears little worthwhile fruit. Since Miranda, it no longer adds to the fairness of the trial or its integrity in any meaningful way when police directly confront a suspect. In this case, it can only operate to provide the defendant with a windfall, i.e., excluding a statement that would be admissible under the exceptions to Miranda. (4) Elstad merely because criminal proceedings had commenced. This distinction should not make a difference. Massiah should be pruned back.
The decision of the Court of Appeals for the Eighth Circuit should be affirmed.
September, 2003
Respectfully submitted,
Charles L. Hobson
Attorney for Amicus Curiae|
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4. The Miranda exceptions survive Dickerson v. United States, 530 U. S. 428 (2000). See Brief for Criminal Justice Legal Foundation as Amicus
Curiae in United States v. Patane, No. 02-1183, at 6-10.