concluding that plaintiff “fell short of making out a § 1983 case” based on undercover agent’s presence at two meetings between plaintiff and his criminal defense attorney because there was “no tainted evidence in this case, no communication of defense strategy to the prosecution, and no purposeful intrusion by [the agent]”
How later courts described this case
- concluding that plaintiff “fell short of making out a § 1983 case” based on undercover agent’s presence at two meetings between plaintiff and his criminal defense attorney because there was “no tainted evidence in this case, no communication of defense strategy to the prosecution, and no purposeful intrusion by [the agent]”
- holding that a defendant must demonstrate that the government’s intrusion upon his relationship with his attorney created a possibility of either injury to his defense or benefit to the government in order to establish a violation of the right to counsel
- recognizing that state interference with confidential attorney-client communications implicates a defendant’s Sixth Amendment right to effective assistance of counsel and may in some circumstances require the reversal of a conviction
- determining that there was no Sixth Amendment violation where there was “no tainted evidence in this case, no communication of defense strategy to the prosecution, and no purposeful intrusion by [the federal agent]”
Written by the judges who cited it.
Later courts went against this
Questioned by United States v. Mitan, 499 F. App'x 187 (2012)
Our interpretation of Weatherford in Levy, however, was called into question just two years later when the Court declared in United States v. Morrison, 449 U.S. 361, 365, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981), that "absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the [Sixth Amendment] violation may have been deli
The opinion
Mr. Justice Marshall,
with whom Mr. Justice Brennan- joins,
dissenting.
It is easy to minimize the significance of the incursion into the lawyer-client relationship that the Court sanctions today. After all, as the Court observes, there is no evidence that Weatherford went to the meetings between Bursey and his lawyer with an intent to spy; that he reported to the prosecu *562 tor on those meetings; or that what he learned was used to develop evidence against Bursey. But while what occurred here may be “the obnoxious thing in its mildest and least repulsive form . . . illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure.” Boyd v. United States, 116 U. S. 616, 635 (1886). I cannot join in providing even the narrowest of openings to the practice of spying upon attorney-client communications.
There are actually two independent constitutional values that are jeopardized by governmental intrusions into private communications between defendants and their lawyers. First, the integrity of the adversary system and the fairness of trials is undermined when the prosecution surreptitiously acquires information concerning the defense strategy and evidence (or lack of it), the defendant, or the defense counsel. In Wardius v. Oregon, 412 U. S. 470 (1973), this Court made clear that while “the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded ... it does speak to the balance of forces between the accused and his accuser.” Id., at 474 . Due process requires that discovery “be a two-way street.”
“The State may not insist that trials be run as a ‘search for truth’ so far as defense witnesses are concerned, while maintaining ‘poker game’ secrecy for its own witnesses. It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State.” Id., at 475-476 .
At issue in Wardius was a statute compelling defendants to provide certain information about their case to the prosecution. But the same concerns are implicated when the State seeks such information, not by force of law, but by surreptitious invasions and deceit.
*563 Of equal concern, governmental incursions into confidential lawyer-client communications threaten criminal defendants’ right to the effective assistance of counsel. Only last Term we held that the right to counsel encompasses the right to confer with one’s lawyer. Geders v. United States, 425 U. S. 80 (1976). See also Reynolds v. Cochran, 365 U. S. 525, 531 (1961); Hawk v. Olson, 326 U. S. 271, 278 (1945); Avery v. Alabama, 308 U. S. 444, 446 (1940); Powell v. Alabama, 287 U. S. 45, 57 (1932). But “[a]s a practical matter, if the client knows that damaging information could more readily be obtained from the attorney following disclosure than from himself in the absence of disclosure, the client would be reluctant to confide in his lawyer and it would be difficult to obtain fully informed legal advice.” Fisher v. United States, 425 U. S. 391, 403 (1976). See also United States v. Nobles, 422 U. S. 225, 238-239 (1975). For this reason, it has long been recognized that “the essence of the Sixth Amendment right is . . . privacy of communication with counsel.” United States v. Rosner, 485 F. 2d 1213, 1224 (CA2 1973), cert. denied, 417 U. S. 950 (1974). See, e. g., Caldwell v. United States, 92 U. S. App. D. C. 355, 205 F. 2d 879 (1953); Coplon v. United States, 89 U. S. App. D. C. 103, 191 F. 2d 749 (1951); Louie Yung v. Coleman, 5 F. Supp. 702, 703 (Idaho 1934); cf., e. g., In re Rider, 50 Cal. App. 797 , 195 P. 965 (1920); Thomas v. Mills, 117 Ohio St. 114 , 157 N. E. 488 (1927); State ex rel. Tucker v. Davis, 9 Okla. Crim. 94 , 130 P. 962 (1913); Turner v. State, 91 Tex. Crim. 627 , 241 S. W. 162 (1922); Annot., 5 A. L. R. 3d 1360 (1966).
The Court today apparently concludes that neither of these constitutional values is infringed when, as here, the State does not act with a purpose to intercept information about the defense, and the information that is uncovered is neither transmitted to the prosecutor nor used by him to the defendant’s detriment. I respectfully disagree. In my view, *564 the “balance of forces between the accused and his accuser” is sharply skewed in favor of the accuser if the government’s key witnesses are permitted to discover the' defense strategy by intercepting attorney-client communications, even if the witnesses cannot divulge the information to the prosecution. With this information, the witnesses are in a position to formulate in advance answers to anticipated questions, and even to shade their testimony to meet expected defenses. 1 Furthermore, because of these dangers defendants may be deterred from exercising their right to communicate candidly with their lawyers if government witnesses can intrude upon the lawyer-client relationship with impunity so long as they do not discuss what they learn with the prosecutor. 2 And insofar as the Sixth Amendment establishes an independent right to confidential communications with a lawyer, that right by definition is invaded when a government agent attends meetings of the defense team at which defense plans are reviewed. 3
*565 But even if I were to agree that unintended and undisclosed interceptions by government witness-employees affect neither the fairness of trials nor the effectiveness of defense counsel, I still could not join in upholding the practice. For in my view, the precious constitutional rights at stake here, like other constitutional rights, need “breathing space to survive,” NAACP v. Button, 371 U. S. 415, 433 (1963), and a prophylactic prohibition on all intrusions of this sort is therefore essential. A rule that offers defendants relief only when they can prove “intent” or “disclosure” is, I fear, little better than no rule at all. Establishing that a desire to intercept confidential communications was a factor in a State’s decision to keep an agent under cover will seldom be possible, since the State always can argue plausibly that its sole purpose was to continue to enjoy the legitimate services of the undercover agent. . Proving that an informer reported to the prosecution on defense strategy will be equally difficult, not only because such proof requires an informer or prosecutor to admit his own wrongdoing (and open the door to damages suits and attacks on convictions), but also because an informer’s failure to make a report after overhearing a lawyer-client session oftentimes can be an effective means of communicating to the prosecutor that nothing surprising was uncovered. 4 Given these problems of proof, the only way to assure that defendants will feel free to communicate candidly with their lawyers is to prohibit the government from intercepting such *566 confidential communications, at least absent a compelling justification for doing so. 5
Like the Court of Appeals, and unlike the majority today, I believe a per se rule of this sort is fully supported, if not compelled, by our decisions in Black v. United States, 385 U. S. 26 (1966), and O’Brien v. United States, 386 U. S. 345 (1967). In both cases, the United States informed this Court that lawyer-client conversations had been intercepted by surveillance devices installed to investigate crimes unrelated to the crimes for which the defendants were convicted. Memorandum for United States in Black v. United States, O. T. 1965, No. 1029, p. 2; Brief for United States in O’Brien v. United States, O. T. 1966, No. 823, pp. 10-11. In Black the Government reported that information uncovered through the monitoring had been relayed to the prosecutors, but maintained that none of the evidence against the defendant had been derived from the surveillance, and that nothing was learned “which had any effect upon the presentation of the government’s case or the fairness of petitioner’s trial.” Memorandum for United States in Black v. United States, supra, at 4. In O’Brien the Government stated that the only *567 intercepted lawyer-client conversation concerned the terms of the defendant’s bail, and that neither this conversation nor any other conversation was disclosed to the prosecuting attorneys. Brief for United States in O’Brien v. United States, supra, at 11. In both cases, the United States urged a remand for a hearing to determine whether the intrusions had tainted the trials. Memorandum for United States in Black v. United States, supra, at 5; Brief for United States in O’Brien v. United States, supra, at 12. Yet in each case this Court rejected that course and instead remanded for a new trial. To say that these cases establish that “when conversations with counsel have been overheard, the constitutionality of the conviction depends on whether the overheard conversations have produced, directly or indirectly, any of the evidence offered at trial,” ante, at 552, twists the cases beyond recognition 6 That is precisely the principle that was urged by the Government and by the dissenters, Black v. United States, supra, at 30-31 (Harlan, J., dissenting); O’Brien v. United States, supra, at 346-347 (Harlan, J., dissenting), but was rejected by the Court. By vacating the convictions without proof that “the *568 overheard conversations have produced . .. any of the evidence offered at trial,” Black and O’Brien establish that “any governmental activity of the kind here in question automatically vitiates . . . any conviction occurring during the span of such activity,” Black v. United States, supra, at 31 (Harlan, J., dissenting), and precludes the use of tainted evidence at any retrial.
Rather than retreating from Black and O’Brien , I would reaffirm them and would affirm the judgment of the Court of Appeals.
If, for example, Weatherford had learned that Bursey would use an entrapment defense against whoever admitted to being a government agent, Weatherford could have planned his testimony so as to minimize his own role and emphasize Bursey’s predisposition. Bursey, on the other hand, would have had little time to reconstruct in his mind Weatherford’s role in the decision to commit the crime once Weatherford testified that he was the state agent. Cf. United States v. Orman, 417 F. Supp. 1126, 1137 (Colo. 1976).
The Court suggests, ante, at 555 n. 4, that defendants can protect themselves against intrusions by third parties by excluding them from meetings at which defense strategy is discussed. But when, as here, the third party is an indicted codefendant, exclusion is not practicable; codefendants need to be informed of each other’s strategy if only to determine whether joinder is prejudicial, cf. Fed. Rule Crim. Proc. 14. Indeed, because of the interdependence of codefendants, communications between a lawyer and his client generally remain privileged even when disclosed to a codefendant or his attorney. See The Attorney-Client Privilege in Multiple Party Situations, 8 Colum. J. Law & Soc. Problems 179 (1972).
Of course, the fact that Weatherford did not reveal what he learned *565 may be relevant to the amount of damages Bursey can recover, as the Court of Appeals acknowledged. 528 F. 2d 483, 487 (CA4 1975). No damages assessment has been made in this case, however, since the District Court found no liability.
In this case, for example, the prosecutor might have assumed that Weatherford had been privy to Bursey’s defense plans, and that Weather-ford’s acquiescence when told of the prosecutor’s decision to use him as a witness meant that the defense did not suspect Weatherford or have any damaging information about him.
There is no evidence in this record that Weatherford’s life would have been jeopardized or any ongoing investigations compromised had Weatherford given up his cover on March 20, 1970, after the crime was committed, rather than on July 27, 1970, after trial began. To the contrary, the fact that Weatherford felt no need for police protection after trial, App. 107, suggests that there was no danger at any time. And the Chief of the South Carolina State Law Enforcement Division conceded that Weatherford was not working on “anything particular” between the time of the crime and the time of the trial. Id., at 125. Indeed the Chief admitted that he "wasn’t concerned” about losing Weatherford’s cover because after breaking the case “his identity is going to be known anyway.” Id., at 124. Thus the only legitimate justification the State had for arresting and indicting Weatherford, and for retaining a lawyer and manufacturing a story for him was to postpone for several months the date at which a new agent would have to be assigned again.
The Court’s alternative suggestion, ante, at 551-552, that Black and O’Brien were actually Fourth Amendment cases is equally unpersuasive. The briefs in Black , while noting the Fourth Amendment issue, Memorandum for United States 4; Supplemental Memorandum for Petitioner 6, focused on the Sixth Amendment violation, Memorandum for United States 3-4; Supplemental Memorandum for Petitioner 7-20. The opinion does not mention either the Fourth or Sixth Amendment, but the narration of the facts malees clear that the Court’s primary concern was the interception of lawyer-client conversations. 385 U. S., at 27-28 . Moreover, during the same Term that Black and O’Brien were decided, the Court, in another electronic surveillance ease, remanded for a taint hearing rather than for a new trial because, “[u]nlike the situations in Black . . . and O’Brien . . . there was apparently no direct intrusion here into attorney-client discussions.” Hoffa v. United States, 387 U. S. 231, 233 (1967). See also Wolff v. McDonnell, 418 U. S. 539, 576 (1974) (White, J.) (citing Black and O’Brien as Sixth Amendment cases); Hoffa v. United States, 385 U. S. 293, 307 (1966) (citing Black as Sixth Amendment case).