Amicus Curiae Brief — Fellers v. United States

No. 02-6320 | rome COU TD

IN THE

Supreme Court of the United States

JOHN J. FELLERS,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

KENT S. SCHEIDEGGER

CHARLES L. HOBSON

Counsel of Record

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Phone: (916) 446-0345

Fax: (916) 446-1194

E-mai!: cjlf@cjlf.org

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

BEST AVAILABLE COPY

QUESTIONS PRESENTED

1) Should the fruit of the poisonous tree doctrine extend to

exclude evidence of a confession taken in compliance with

Miranda v. Arizona, 384 U. S. 436 (1966) but which occurred

after an earlier violation of Massiah v. United States, 377 U.S.

201 (1964)?

2) Should Massiah continue to regulate direct confronta-

tions between the police and the accused?

TABLE OF CONTENTS

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UIE GE TROIS GG GOED «wo ccc cc ccc cccccccces 2

i eee ccc cceeesceseccecccescess 3

Eee reedeeebeseeseeocececcecccceces 4

I

Massiah extends the Sixth Amendment to its “outermost

point,” and it should not be extended any further ...... 5

A. Sixth Amendment principles ................. 6

i ccc can décceseeccceces 10

II

The costly fruit of the poisonous tree doctrine is applied

only when it preserves the core values of the underlying

i cc eteceesecceccccecccoceccccs 14

cece eeesbecceéccoccecs 15

B. Uncontroversial applications ................ 15

C. Confessions and complex analysis............ 19

Ill

The fruit of the poisonous tree doctrine should not be

applied to an otherwise valid confession made after a

ee cece eek eseeecectcccececce 24

(iit)

iv

IV

Massiah should be limited to its facts ................

Conclusion

ee

TABLE OF AUTHORITIES

Cases

Berkemer v. McCarty, 468 U. S. 420, 82 L. Ed. 2d 317,

i i i a eee dl 26

Berkey v. Third Ave. R. Co., 244 N. Y. 84, 7

ED <c<cceuendsuuguateccheunnekes 15

Brewer v. Williams, 430 U. S. 387, 51 L. Ed. 2d 424,

8 § 8 > __aaerrr 11, 12, 13, 16, 17, 29

Brown Vv. Illinois, 422 U. S. 590, 45 L. Ed. 2d 416,

ER eee 20, 21, 22

Bruton v. United States, 391 U. S. 123, 20 L. Ed. 2d 476,

, CD a ee ee een enene 26

Coleman v. Alabama, 399 U. S. 1, 26 L. Ed. 2d 387,

8 re eee 7,12

Dickerson v. United States, 530 U. S. 428,

147 L. Ed. 2d 405, 120 S. Ct. 2326 (2000) ....... 18, 30

Dunaway v. New York, 442 U. S. 200, 60 L. Ed. 2d 824,

ee I on 0 ns ce deuaeeeansuenneske 22

Gilbert v. California, 388 U. S. 263, 18 L. Ed. 2d 1178,

es EEE np cuoenanedecdueseusnéeencens )

Hamilton v. Alabama, 368 U. S. 52, 7 L. Ed. 2d 114,

ED 6 cn cceceeenseceunedenes 7, 8,12

Illinois v. Perkins, 496 U. S. 292, 110 L. Ed. 2d 243,

«cc cccseensesedtesssvuneds 30

Immigration & Naturalization Service v. Lopez-Mendoza,

468 U.S. 1032, 82 L. Ed. 2d 778,

Sh eh DOPED cob hdedccdcsscecuséceseene 23

Johnson v. Zerbst, 304 U. S. 458, 82 L. Ed. 1461,

ED « ccc eed eeeinsedeunuaeeeet 7

Lawrence v. Texas, 539 U.S. _, 156 L. Ed. 2d 508,

i en <<. cencenenseuseuessseses 28

Maine v. Moulton, 474 U. S. 159, 88 L. Ed. 2d 481,

i cba ee ehedenneonsas 11,12

Manson v. Brathwaite, 432 U. S. 98, 53 L. Ed. 2d 140,

i en . .tcnneccueeedinnbebenadewe 8

Massiah v. United States, 377 U. S. 201, 12 L. Ed. 2d 246,

84S. Ct. 1199 (1964) ...... 1, 4, 5, 10, 12, 13, 14, 24, 28

McNeil v. Wisconsin, 501 U. S. 171, 115 L. Ed. 2d 158,

EE ee ee ee 14, 26

Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694,

86 S. Ct. 1602 (1966) ....... 2, 3, 4, 5, 13, 14, 21, 24, 29

Moran v. Burbine, 475 U. S. 412, 89 L. Ed. 2d 410,

EE ne me 14, 24, 26

Nardone v. United States, 308 U. S. 338, 84 L. Ed. 2d 307,

a a ee ed 4

Nix v. Williams, 467 U. S. 431, 81 L. Ed. 2d 377,

104 S. Ct. 2501 (1984) ........... 11, 15, 16, 17, 22, 23

Oregon v. Elstad, 470 U. S. 298, 84 L. Ed. 2d 222,

105 S. Ct. 1285 (1985) ......... 2, 15, 19, 20, 23, 24, 25

Patterson v. Illinois, 487 U. S. 285, 101 L. Ed. 2d 261,

ee 6h eee ed eeees 5, 13, 25

Payne v. Tennessee, 501 U.S. 808, 115 L. Ed. 2d 720,

SNE em ere 28

Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639,

I i i i ie aa a at 16

vii

Powell v. Alabama, 287 U. S. 45, 77 L. Ed. 158,

i i D6 <<edeuanedwuuseeuewaets 6,7, 12

Rhode Island v. Innis, 446 U. S. 291, 64 L. Ed. 2d 297,

CE ee 25, 29

Ring v. Arizona, 536 U. S. 584, 153 L. Ed. 2d 556,

Ds i eek et cbbnheenhs bee ent 28

Silverthorne Lumber Co. v. United States, 251 U. S. 385,

64 L. Ed. 319, 40 S. Ct. 182 (1920) .......... 15, 16, 17

Spano v. New York, 360 U. S. 315, 3 L. Ed. 2d 1265,

8 5 er ee re 10

Stone v. Powell, 428 U. S. 465, 49 L. Ed. 2d 1067,

Ne 6 incite cedneeeeuedeeeees 15

Taylor v. Alabama, 457 U. S. 687, 73 L. Ed. 2d 314,

SG SED cccctcanecednsawnteessncees 22

United States v. Ash, 413 U. S. 300, 37 L. Ed. 2d 619,

SE Gl, SED os cecacdeecoscocdeteensenes 7,9

United States v. Calandra, 414 U. S. 338, 38 L. Ed. 2d 561,

i ol nn <<. .- 6 cuaseqneaddendesauwesnt 15

United States v. Fellers, 285 F. 3d 721

<n cd scenceeaheseeeeeseeasees 2, 12, 25

United States v. Gouveia, 467 U. S. 180, 81 L. Ed. 2d 146,

Sh A. .cdccseeeenéueeveessneune 27

United States v. Henry, 447 U. S. 264, 65 L. Ed. 2d 115,

100 S. Ct. 2183 (1980) ............... 5, 11, 12, 13, 28

United States v. Leon, 468 U. S. 897, 82 L. Ed. 2d 677,

EG PEED ccc cccccceksbeceeneuuceene 23

United States v. Wade, 388 U. S. 218, 18 L. Ed. 2d 1149,

ya, SEED Sécesccetacecesduaes 8,9, 17, 18

Vili

Walton v. Arizona, 497 U. S. 639, 111 L. Ed. 2d 511,

ED bac codeddcunees tduductneds 28

Withrow v. Williams, 507 U. S. 680, 123 L. Ed. 2d 407,

a io nel ee ee Ae ail ee 26

Wong Sun v. United States, 371 U. S. 471, 9 L. Ed. 2d 441,

SE ED Kidd seteceeeescidestancs 18, 20

Treatise

2 W. LaFave, J. Israel, & N. King, Criminal Procedure

Tt Cs cacentkekdkdadebienssdesseswaeenes 10

Miscellaneous

W. Beaney, The Right to Counsel in American Courts

SUE odudeetuSuGGnsesesudéeoechubediesssésuan 6

Cassel, Protecting the Innocent from False Confessions

and Lost Confessions—And from Miranda,

88 J. Crim. L. & Criminology 497 (1998) ........... 22

E. Loftus & J. Doyle, Eyewitness Testimony: Civil and

ree 8,9

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 (1989) ...... ... 6,12, 13, 14

IN THE

Supreme Court of the United States

JOHN J. FELLERS,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a non-

profit California corporation organized to participate in

litigation relating to criminal justice in order to protect and

advance the rights of victims of crime and the law-abiding

public.

This case threatens to extend the costly rule of Massiah v.

United States, 377 U.S. 201 (1964) to strike down an otherwise

valid confession as derivative evidence under the fruit of the

poisonous tree doctrine. The threat to society of lost convic-

tions and frustrated investigations from extending Massiah is

1. This brief was written entirely by counsel for amicus, as listed on the

cover, and not by counsel for any party. No outside contributions were

made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

contrary to the interests of justice and public safety that CJLF

was formed to protect.

SUMMARY OF FACTS AND CASE

After the defendant, John J. Fellers, was indicted for

conspiracy to distribute methamphetamine, two police officers

went to Fellers’ house to arrest him on the charge. See United

States v. Fellers,285 F. 3d 721, 723 (CA8 2002). The officers

told Fellers that they were there pursuant to an indictment and

that they wanted to discuss his involvement in the conspiracy.

See ibid. Fellers indicated that he had associated with the

people named by the officers and that he had used methamphet-

amine. See ibid. The officers did not give Fellers any Miranda

v. Arizona, 384 U. S. 436 (1966) warnings at this time. See

Fellers, supra, at 723. Fellers was then taken to jail, where he

was given Miranda warnings, signed a waiver and talked to the

officers, reiterating his inculpatory statements and admitting to

his association with several more co-conspirators. See ibid.

Fellers was tried in Federal District Court. The magistrate

judge found that Fellers was in custody at the time of the first

statement and that both statements should be suppressed. Jbid.’

The district judge suppressed the statements made at Fellers’

home, but admitted those made at the jail. See ibid. A jury

convicted him of conspiracy to distribute between 50 and 500

grams of methamphetamine. See ibid.

The Court of Appeals, citing Oregon v. Elstad, 470 U. S.

298 (1985), affirmed the conviction and sentence. See Fellers,

285 F. 3d, at 274. This Court granted certiorari on March 10,

2003. i

2. This case illustrates, once again, how the vague definition of custody

has failed to give police clear guidance. See Brief for Criminal Justice

Legal Foundation as Amicus Curiae in United States v. Patane, No. 02-

1183, at 14.

SUMMARY OF ARGUMENT

The Sixth Amendment entitles the defendant to counsel in

certain critical stages of the prosecution where an attorney’s

advocacy or legal expertise is necessary to preserve a fair trial

and a reliable verdict. The encounters regulated by Massiah v.

United States do not call for the legal expertise or advocacy of

counsel. This is particularly true in the case of encounters

between the police and the accused, which are now governed by

Miranda v. Arizona. At best, Massiah creates a right to

fairness by preventing the defendant from compromising his or

her defense after the prosecution begins. This departure from

Sixth Amendment principles comes at a high cost in lost

voluntary admissions of guilt and delayed prosecutions.

Massiah pushes the boundaries of the Sixth Amendment so far .

that it should not be extended any further.

The “fruit of the poisonous tree” doctrine is applied only

when it preserves the core values of the underlying right that

was violated. As an extension of the already costly exclusion-

ary rule, the fruits doctrine should only be imposed when it is

absolutely necessary.

There are instances where suppressing derivative evidence

is not controversial. Where the government gains knowledge

about other tangible evidence through an illegal act and then

exploits that knowledge to gain possession over the newly

discovered evidence, the fruits doctrine must apply. Since the

causal connection between the illegal act and the derivative

evidence is inseparable in these cases, failing to suppress the

derivative evidence would fatally undermine the underlying

right.

Applying the fruits doctrine to confessions is not as simple.

Since a valid confession is a voluntary act, the causal connec-

tion between the constitutional violation and the allegedly

derivative confession is more difficult to find. These cases

involve a more detailed analysis which turns on constitutional

- policy. Fifth Amendment interests drove the decision not to

extend the fruits doctrine to an otherwise valid confession that

followed an earlier Miranda violation. The analysis of confes-

sions following Fourth Amendment violations follows the same

pattern. This type of analysis governs the application of the

fruits doctrine in this case.

No legitimate Sixth Amendment interest is served by

suppressing a confession that satisfies Miranda simply because

it follows a Massiah violation. Massiah itself serves no core

Sixth Amendment principles, and since suppressing voluntary

confessions is costly to society, the balance of interests tips

heavily against suppression.

Massiah should no longer apply to direct confrontations

between the police and the accused. Massiah’s cost to society,

inconsistency with Sixth Amendment principles, and minimal

reliance interest all support a partial reconsideration of Mas-

siah. Miranda renders Massiah redundant in direct encounters

between the police and the accused. Removing Massiah from

these cases would minimally alter existing precedent and

prevent defendants from accruing windfalls.

ARGUMENT

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 suppres-

sion 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 pres-

ence 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.”

I. Massiah extends the Sixth Amendment to

its “outermost point,” and it should not be extended

any further.

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 proceed-

ings. 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 Il, infra, understanding Massiah’s revolution is

essential.

A. Sixth Amendment Principles.

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 interpret-

ing 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 con-

victed 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 experi-

enced 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 Amend-

ment 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.” /d., 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) (plural-

ity). 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 arraign-

ment. 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.” /d., at 227.

Not every pretrial effort to identify the defendant required

the presence of counsel. Analysis “of the accused’s finger-

prints, 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 confron-

tation 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 innumer-

able dangers and variable factors which might seriously, even

crucially, derogate from a fair trial.” Jd., 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 misidenti-

fication 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 credibil-

ity of the witness’ courtroom identification.” /d., 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 handwrit-

ing 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-indict-

ment 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 ad-

versarial 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.

10

B. Massiah’s Revolution.

Understanding Massiah’s revolution begins by analvzing its

facts and reasoning. Massiah, Colson, and some otliers 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 elicita-

tion 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.

11

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. /d., at 399. Its explanation of the

reasons for Massiah 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 ....” Jbid. 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, see infra, 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 Poweil. See id., at 169. It explained that the

right to counsel is not limited to the trial, but rather “is shaped

12

by the need for assistance of counsel.” /d., 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 princi-

ples.

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 repre- ~

sent 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

13

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

Miranda waiver 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 ques-

tioned 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

14

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 .ight 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 proceed-

ings against a suspect until the investigation is complete. This

leaves potentially dangerous suspects to prow! 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.

Il. The costly fruit of the poisonous tree doctrine is

applied only when it p-eserves the core values of the

- underlying constitutional right.

If this Court finds that the initial encounter between Fellers

and the arresting officers produced a Massiah violation, then

this case centers on whether the fruit of the poisonous tree

doctrine extends to cover the jailhouse confession that was

taken in conformity with Massiah and Miranda v. Arizona, 384

U. S. 436 (1968). See supra, at 4-5. Courts administering this

derivative evidence doctrine must be careful not to substitute

metaphor for analysis. “Metaphors in the law are to be nar-

15

rowly watched, for starting as devices to liberate thought, they

end often by enslaving it.” Berkey v. Third Ave. R. Co., 244

N. Y. 84, 94, 155 N. E. 58, 61 (1926) (Cardozo, J.). The fruit

of the poisonous tree is a metaphor, see Oregon v. Elstad, 470

U. S. 298, 303 (1985), that is misleading when taken out of

context. It is a more limited doctrine than its broad metaphor

seemingly suggests.

A. The Costly Doctrine.

The fruit of the poisonous tree doctrine is an extension of

the exclusionary rule. Under the exclusionary rule, evidence

taken through means that violate the Fourth Amendment is

excluded in order to deter future constitutional violations. See

United States v. Calandra, 414 U. S. 338, 347 (1974). The

exclusion of relevant, reliable evidence comes at a high cost to

society. See Stone v. Powell, 428 U.S. 465, 490-491 (1976).

The fruits doctrine goes one step further, extending the

exclusionary rule to evidence taken in a constitutional manner

but somehow “tainted” by a prior constitutional violation,

making an already costly doctrine even more expensive.

This Court appreciates the high cost of this doctrine. “The

core rationale consistently advanced by this Court for extending

the exclusionary rule to evidence that is the fruit of unlawful

police conduct has been that this admittedly drastic and socially

costly course is needed to deter police from violations of

constitutional and statutory protections.” Nix v. Williams, 467

U. S. 431, 442-443 (1984). Therefore, the fruits doctrine is

applied practically rather than mechanically. Any application

of the fruits doctrine must consider the context of the initial

constitutional violation and the derivative evidence under

attack.

B. Uncontroversial Applications.

There are times when the fruits doctrine can be applied

without controversy. Silverthorne Lumber Co. v. United States,

251 U. S. 385 (1920) provides the template for excluding

16

derivative evidence. After an indictment against the company,

agents of the United States illegally entered its office “and

made a clean sweep of all the books, papers, and documents

found there.” Jd., at 390. The Court ordered the originals

returned, but the government made copies and used them to

subpoena Silverthorne Lumber to produce the originals. See

id., at 390-391. Forcing the company to produce the records

through this trick “reduces the Fourth Amendment to a form of

words.” /d., at 392. The government cannot be allowed to

exploit the illegal seizure to legally acquire the goods it illegally

seized. The Fourth Amendment protects privacy. See Payton

v. New York, 445 U. S. 573, 589 (1980). Upholding the

subpoena in Silverthorne would have made a mockery of the

company’s privacy.

Silverthorne demonstrates that it is comparatively simple to

apply the fruits doctrine to tangible evidence obtained in this

manner. In these cases, the government typically gains knowl-

edge of the evidence through an illegal act, and then uses that

knowledge to gain possession over the newly discovered piece

of evidence. Where the causal connection between the illegal

act and the derivative evidence is inseparable, failing to

suppress the derivative evidence fatally undermines the

underlying right.

Nix v. Williams, 467 U. S. 431 (1984) is a more modern

example of this relationship between a constitutional violation

and derivative evidence. This decision addressed the second

trial of the defendant in Brewer v. Williams, 430 U. S. 387

(1977). While the Brewer Court held that Massiah suppressed

the statements of Williams that were induced by the “Christian

burial speech,” it reserved the issue of whether the fruits of that

speech should be suppressed. See id., at 406-407, n. 12. Nix

applied the fruits doctrine to this Massiah violation, see 467

U. S., at 441-442, but admitted the derivative evidence under

the inevitable discovery exception. See id., at 448. Like

Silverthorne, there was an unmistakable connection between

17

the constitutional violation and the tangible fruits of that

violation.

The speech struck down in Brewer was an appeal to

Williams to identify the location of his victim’s body so that the

young girl might be given a proper Christian burial. See 430

U. S., at 392. Nix addressed the admissibility of “evidence

pertaining to the discovery and condition of the victim’s body

.... 467 U. S., at 434. Williams’ responses to the illegal

speech allowed the government to find the victim’s body.

Since the Massiah violation gave the government the knowl-

edge that allowed them to find this derivative evidence, the Nix

Court had no choice but to apply the fruits doctrine.’

Nix cited United States v. Wade, 388 U.S. 218 (1967) for

the proposition that the fruits doctrine applied to Sixth Amend- -

ment violations. See 467 U. S., at 442. Wade involved

uniquely compelling reasons to suppress derivative evidence.

Wade held that a post-indictment lineup without counsel

violated the Sixth Amendment, 388 U. S., at 237, and that any

in-court identification of the accused by witnesses who partici-

pated in the unconstitutional lineup was subject to suppression

under the fruits doctrine. See id., at241 (applying Wong Sun v.

United States, 371 U. S. 471 (1963)). Here, the constitutional

violation did not allow the government to discover the deriva-

tive evidence. Instead, the initial Sixth Amendment violation

rendered the derivative evidence unreliable.

The primary threat posed by lineups is misidentification

through suggestion. “A major factor contributing to the high

incidence of miscarriage of justice from mistaken identification

has been the degree of suggestion inherent in the manner in

which the prosecution presents the suspect to witnesses for

\

3. While the result in Nix differed from that in Silverthorne, that is a result

of the availability of the inevitable discovery rule rather than the

relationship between the derivative evidence and the constitutional

violation. Compare Nix, 467 U. S., at 449-450, with Silverthorne, 251

U. S., at 392.

18

pretrial identification.” Wade, 388 U. S., at 228. Once the

witness identifies the victim in a lineup there is usually no

going back for the witness.

“Moreover, ‘[i]t is a matter of common experience that,

once a witness has picked out the accused at the line-up, he

is not likely to go back on his word later on, so that in

practice the issue of identity may (in the absence of other

relevant evidence) for all practical purposes be determined

there and then, before the trial.’ ” Jd., at 229 (footnote

omitted).

Wade’s right to counsel guards against improperly sugges-

tive lineups. See id., at 236-237. A lineup lacking this

protection can illegally transmit the information that the

accused is the perpetrator from the government to the witness.

Once the witness accepts this suggestion he or she is almost

certain to repeat it at trial, giving the government valuable

evidence that is almost impossible to attack through cross-

examination. See id., at 232. Any-in-court identification after

an uncounseled lineup poses an excessive risk of being unreli-

able. The Wade Court had little option but to apply the fruits

doctrine and require the government to purge the taint. See id.,

at 241.

The present case is distinguished from these by the fact that

the allegedly tainted evidence is a confession. Confessions are

not discovered like photographs, drugs, or a body. A valid

confession must be the voluntary act of the defendant. See

Dickerson v. United States, 530 U. S. 428, 433 (2000). The

exploitation of improperly gained knowledge does not enter this

equation. A defendant who voluntarily confesses knows that he

or she is guilty, and the interrogating officer thinks the same.

This does not render the fruits doctrine irrelevant to confessions

obtained after constitutional violations. Indeed, the most

famous fruits case involved the suppression of a derivative

confession. See Wong Sun v. United States, 371 U.S. 471,

485-486 (1963). Confessions, however, require more detailed

analysis than found in the previously mentioned applications of

19

the fruits doctrine. This analysis reveals the true nature of the

fruits doctrine.

C. Confessions and Complex Analysis.

The Court’s treatment of confessions under the fruits

doctrine shows how this doctrine is driven by constitutional

policy. Oregon v. Elstad, 470 U.S. 298 (1985) demonstrates

this relationship between the Constitution and the fruits

doctrine. E/stad involved an initial interrogation that produced

a confession taken contrary to the Miranda rule, followed by a

confession by the same suspect that complied with Miranda.

See id., at 300. Instead of unthinkingly applying the fruits

doctrine to suppress the second confession, the E/stad Court

examined the constitutional ends served by the Fifth Amend-

ment and Miranda.

The opinion first examined Miranda’s relationship to the

Fifth Amendment. “Miranda required suppression of many

statements that would have been admissible under traditional

due process analysis” through its conclusive presumption. See

id., at 304. This overprotection of the Fifth Amendment, see

id., at 306, came at a considerable cost. Voluntary confessions

play a valuable role in our criminal justice system. See id., at

305. “Miranda’s preventative medicine provides a remedy

even to the defendant who has suffered no identifiable constitu-

tional harm.” J/d., at 307. This means that a failure to give

Miranda warnings is not itself a constitutional violation, see id.,

at 306, and n. 1, and thus statements taken contrary to Miranda

can be used for other purposes. See id., at 307. Since Miranda

already operates at the limits of the Fifth Amendment, applying

the fruits doctrine to subsequent confessions would push this

rule too far.

“It is an unwarranted extension of Miranda to hold that a

simple failure to administer the warnings, unaccompanied

by any actual coercion or circumstances calculated to

undermine the suspect’s ability to exercise his free will, so

taints the investigatory process that a subsequent voluntary

20

and informed waiver is ineffective for some indeterminate

period.” /d., at 309.

The Elstad Court compared Miranda to the Fourth Amend-

ment exclusionary rule and found “fundamental differences”

between the two. /d., at 304. The Fourth Amendment’s

exclusionary rule only deters constitutional violations, see id.,

at 306, as opposed to Miranda’s overdeterrence. This justified

a broader application of the fruits doctrine to Fourth Amend-

ment violations than to Miranda claims. See ibid. Since

excluding an allegedly derivative, but otherwise legal confes-

sion would not advance the legitimate interests of Miranda or

the Fifth Amendment, suppression was not justified.

Even the “traditionally mandated broad application” of the

fruits doctrine to Fourth Amendment violations, see ibid.,

requires justification derived from constitutional policy. This

reasoning is found in the first broad application of the doctrine,

Wong Sun v. United States, supra. Wong Sun addressed the

admissibility of statements made by the arrestee in the course

of his illegal arrest. See 371 U.S., at 484. It held that since the

statements were derived from an illegal seizure they must be

excluded under the logic of the exclusionary rule.

“Either in terms of deterring lawless conduct by federal

officers, [citation] or of closing the doors of the federal

courts to any use of evidence unconstitutionally obtained,

[citation] the danger of relaxing the exclusionary rules in

the case of verbal evidence would seem too great to warrant

introducing such a distinction.” /d., at 486.

The decisions after Wong Sun reinforce and explain the

relationship between the fruits doctrine and the constitutional

right it protects. Brown v. Illinois, 422 U. S. 590 (1975)

addressed the impact of Miranda on Wong Sun. Since Wong

Sun was decided before Miranda, a valid Miranda waiver

might distinguish the case from Wong Sun and the fruits

doctrine. See id., at 591-592. This claim was rejected because

of the role played by illegal seizures in securing confessions.

21

“ *[T]he “unreasonable searches and seizures” condemned in

the Fourth Amendment are almost always made for the purpose

of compelling a man to give evidence against himself, which in

criminal cases is condemned in the Fifth Amendment.’ ” /d.,

at 602 (quoting Boyd v. United States, 116 U. S. 616, 633

(1886)).

Custody does play an important role in securing confes-

sions. The isolation and control brought about by custody

placed considerable pressure to confess on the suspect. “[T]he

very fact of custodial interrogation exacts a heavy toll on

individual liberty and trades on the weakness of individuals.”

Miranda, 384 U. S., at 455. The “inherently compelling

pressures” on custodial suspects justified requiring the Miranda

warnings before custodial interrogations. See id., at 467.

Therefore illegal arrests give police an unwarranted edge in

getting the suspect to confess.

If the fruits doctrine did not apply to confessions following

illegal arrests, then the temptation to arrest without probable

cause would be too great.

“Arrests made without warrant or without probable cause,

for questioning or ‘investigation,’ would be encouraged by

the knowledge that evidence derived therefrom could well

be made admissible at trial by the simple expedient of

giving Miranda warnings. Any incentive to avoid Fourth

Amendment violations would be eviscerated by making the

warnings, in effect, a ‘cure-all,’ and the constitutional

guarantee against unlawful searches and seizures could: be

said to be reduced to ‘a form of words.’ ” Brown, 422

U. S., at 602-603 (footnote omitted). .

The close connection between illegal arrests and confessions

meant that the prosecution must independently establish that the

confession was “the product of a free will under Wong Sun”

under “the facts of each case.” J/d., at 603. While Miranda

played an important role in attenuating the taint of the illegal

22

arrest, it was far from dispositive on this issue. See id., at 603-

604.

Like Elstad, the Brown decision reflected the different

interests served by the Fourth and Fifth Amendment exclusion-

ary rules. See id., at 601. “Brown articulated a test designed to

vindicate the ‘distinct policies and interests of the Fourth

Amendment.’ ” Dunaway v. New York, 442 U.S. 200, 217

(1979) (quoting Brown, 422 U. S., at 602). It focused on the

relationship between the illegal arrest and the confession in

order to advance the policies behind the Fourth Amendment

exclusionary rule. See Dunaway, supra, at 217-218. Concen-

trating on the causal connection between the arrest and the

confessions reinforces the exclusionary rule’s deterrent and

promotes the integrity of the courts. See id., at 218. Where

suspects are arrested without probable cause in the hope that

they will confess while in custody, police should not profit from

that illegality without some meaningful intervening event. See

Taylor v. Alabama, 457 U. S. 687, 693 (1982).

Confessions are treated differently than other evidence

because the causal connection between a voluntary confession

and a prior constitutional violation is more difficult to establish.

Brown, Wong Sun, and Dunaway show that application of the

fruit of the poisonous tree doctrine is driven by constitutional

policy rather than by simple logical causation. While the

custody gained through an arrest may be an important factor in

securing a confession, custody does not “cause” a confession in

any logical sense. At least since Miranda, many custodial

interrogations do not generate confessions. See Cassel,

Protecting the Innocent from False Confessions and Lost

Confessions—And from Miranda, 88 J. Crim. L. & Criminol-

ogy 497, 542 (1998). Under the fruits doctrine, causation in

this sense is a function of constitutional policy. Derivative

evidence is only excluded when necessary to protect the

principles of the constitutional right that was violated.

The inevitable discovery exception reflects this limited

fruits doctrine. In Nix v. Williams, 467 U. S. 431 (1984), the

23

purpose of the Sixth Amendment right to counsel drove the

application of this exception. “Exclusion of physical evidence

that would inevitably have been discovered adds nothing to

either the integrity or fairness of a criminal trial.” /d., at 446.

The Sixth Amendment guards against unfairness by testing the

reliability of evidence through the adversary process. See ibid.

Since there was no reason to doubt the reliability of the

evidence here, see ibid., “[s]uppression, in these circumstances

would do nothing to promote the integrity of the trial process,

but would inflict a wholly unacceptable burden on the adminis-

tration of criminal justice.” /bid. The Sixth Amendment

insures fairness by protecting the defendant from “one-sided”

confrontations with the prosecution. See id., at 447 (internal

quotation marks omitted). If application of the fruits doctrine

places the state in the same position it would be in if the

constitutional violation never happened, then fairness is

assured. See ibid. Admitting evidence that would have been

discovered anyway only keeps the state from being put in a

worse position, which is only fair. See ibid.

Decisions to apply the exclusionary rule in particular

circumstances are made through a cost-benefit analysis. This

applies both to the types of proceedings to which the exclusion-

ary rule extends, see Jmmigration & Naturalization Service v.

Lopez-Mendoza, 468 U. S. 1032, 1042 (1984) (deportation

proceedings), or when deciding not to apply the exclusionary

rule to a particular set of facts. See United States v. Leon, 468

U. S. 897, 913 (1984) (good faith exception for warrant

searches); Elstad, 470 U.S., at 312. As in Elstad, any decision

on whether to apply the fruits doctrine to this case must be

informed by balancing the relevant constitutional interests. The

balance tilts sharply against excluding voluntary confessions

made after Massiah violations.

24

Ill. The fruit of the poisonous tree doctrine

should not be applied to an otherwise valid confession

made after a Massiah violation.

The exclusionary rule of Massiah v. United States, 377

U.S. 201 (1964) should not extend to strike down a confession

made in compliance with Miranda 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 consider-

able, 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 relation-

ship 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 subse-

quent Miranda waiver or the second confession. While an

earlier coerced confession can render a later confe#sion

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

25

subsequent interrogation “serves to cure the condition that

rendered the unwarned statement inadmissible.” /d., 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.” /d., at 312.

The Miranda warnings that preceded the second confession

“ordinarily should suffice to remove the conditions that

precluded admission of the earlier statement.” /d., 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 compro-

mise the validity of his Miranda waiver or subsequent confes-

sion. 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 Miranda warnings informed Fellers of

his rights to silence and counsel, correcting any problems

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 Amend-

ment. 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 in

Elstad, see 470 U. S., at 306 (distinguishing between Fourth

26

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 counse! 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 deters Massiah 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

27

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.

28

IV. Massiah should be limited to its facts.

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). Amicus suggests 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

29

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 Jnnis 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 valid Miranda 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

30

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, ie., excluding a statement that

would be admissible under the exceptions to Miranda.‘ Elstad

merely because criminal proceedings had commenced. This

distinction should not make a difference. Massiah should be

pruned back.

CONCLUSION

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

Criminal Justice Legal Foundation

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 vy. Patane, No. 02-1183, at 6-10.