WHY THE SUPREME COURT SHOULD OVERRULE THE MASSIAH DOCTRINE AND PERMIT MIRANDA ALONE TO GOVERN INTERROGATIONS

By SHERRY F. COLB

Wednesday, May. 09, 2001

On April 2, the Supreme Court decided the criminal procedure case of Texas v. Cobb. While Cobb received little media attention, it is nonetheless an important decision.

[Interrogation]
Cobb leaves in place a dual regime of interrogation law. There are the familiar Miranda rights. These are suspects' entitlements, when in custody, to be informed of the right to remain silent and the right to an attorney, prior to interrogation. But there is also the less well-known Massiah right — the defendants' right, once indicted, not to be interrogated unless counsel is present.

A person who is the focus of a criminal investigation will sometimes have both Massiah and Miranda rights, sometimes only one or the other, and sometimes, neither. This results in needless confusion and uncertainty. In fact, we need only Miranda rights, and the Court should overrule Massiah.

Cobb's Facts

The relevant facts of Cobb are simple. Raymond Levi Cobb was charged with burglarizing a house. After the burglary, a woman and child were reported missing from the house. Police suspected murder. While out on bail on the burglary charge, Cobb also became a suspect in connection with the double murder, and he was brought into custody.

While police had Cobb in custody, they properly gave him Miranda warnings. Cobb confessed, voluntarily, that after a woman had confronted him during the burglary, he killed and buried her and her baby. Cobb was subsequently convicted of capital murder and sentenced to death.

Applying Massiah

On appeal, Cobb argued that because the police illegally interrogated him about the murders, his resulting confession should have been suppressed (that is, excluded from evidence at trial). Given that Cobb received Miranda warnings, and confessed voluntarily, readers may be asking, what was the problem?

According to Cobb, the problem was that the police should not have questioned him without his lawyer present, because he had already been indicted for burglary, and the murders were part of the same transaction as the burglary.

Under Massiah v. United States, a suspect who has been indicted for an offense may not be interrogated about that same offense outside the presence of counsel. If, in contrast, the person, while still under indictment, is interrogated about a different offense, then Massiah does not apply.

Thus, it was important for Cobb to persuade the Justices that the burglary for which he had already been indicted and the murders for which he had not were in fact the "same offense." If Cobb had won this point, the murder interrogation would have been ruled illegal, the resulting confession inadmissible as evidence, and the government might have had to retry Cobb's case.

The Court, however, held that the burglary and murder were not the same offense, and thus Cobb lost his appeal.

How Massiah and Miranda Evolved

Though not explicitly addressed by the Court, Cobb raises the larger question of why two competing standards govern police interrogation of suspects in the first place. There is an historical answer to this question, but it offers no real justification.

Long before Miranda or Massiah, "voluntariness" was the original standard for deciding whether a confession had been exacted in violation of the Fifth Amendment.

But it was an amorphous standard. Courts found themselves bogged down in factual determinations about suspects' free will in each case. It was difficult to predict in advance which confessions would become evidence, and which would be suppressed.

So the Court sought to articulate a new standard for when confessions violated the Fifth Amendment. Factors cutting against admissibility might include a suspect's being in custody (arguably, an inherently coercive situation), the police having lied to the suspect's attorney, and the suspect's having already been charged with a crime. Factors favoring admissibility might include the suspect's attorney being present at the challenged interrogation.

Massiah was part of this attempt to set a new standard. There, the Court made the legality of interrogation turn primarily on how far along toward trial the prosecution of a suspect had gone. If the suspect had already been indicted, then any interrogation without counsel or without an explicit waiver of counsel would be illegal, and any resulting statement would accordingly be suppressed.

The Court announced this right as arising under the Sixth Amendment — which establishes a right to counsel for criminal defendants — but it also had obvious relevance to the Fifth Amendment guarantee against compelled self-incrimination.

Two years after Massiah was decided, the Court held in Miranda that to protect the Fifth Amendment right against compelled self-incrimination, police would have to give warnings and obtain a waiver from anyone in custody before conducting an interrogation. Otherwise, the resulting statements would be suppressed.

Massiah and Miranda, As Interpreted by Later Cases

Under cases that followed in Massiah's path, the Court gave "interrogation" a very broad definition.

In Brewer v. Williams, for example, a police officer was driving an indicted murder suspect around. The officer knew the suspect to be religious, and remarked to him that it would be a shame if police could not locate the victim's body so that her parents could give her a proper Christian burial. The suspect later revealed the body's location.

The Court held that by "deliberately eliciting" this highly incriminating response, the officer had "interrogated" the suspect. Moreover, because the suspect had been indicted, and had no counsel present, the Court held that police had violated Massiah, and it reversed Williams' subsequent murder conviction.

Only three years later, the Court decided a Miranda case called Rhode Island v. Innis. Innis, a murder suspect in custody, had been properly given Miranda warnings — and then had asked for an attorney. As a result, pursuant to Miranda doctrine, the police could not legally interrogate him without counsel present. (Thus, Innis was effectively in the same position as Williams, despite the fact that Massiah did not apply to Innis, who had yet to be indicted).

Again, as in Williams, police were driving around with the suspect, Innis. This time, one officer said to the other that there were "a lot of handicapped children running around in this area" because a school for such children was located nearby, and "God forbid one of them might find a weapon with shells and they might hurt themselves."

Upon hearing this statement, Innis interrupted the officers and insisted on telling them where the gun was, so that no handicapped child could come to any harm. The police promptly found the gun used in the murder, and the suspect's revelation became as incriminating to him as Williams' was in the "Christian Burial Speech" case.

Was one policeman's remark to the other "interrogation" — and therefore, because Innis had asked for an attorney, illegal? The Court's answer was no.

For purposes of Miranda, unlike Massiah, making comments in order to elicit an incriminating response did not constitute "interrogation," according to the Court, and the statement leading the police to the weapon was therefore admissible.

Massiah: Indictment as a Meaningless Threshold

Many of us expected Massiah eventually to disappear. After all, once Miranda was decided, it seemed no longer necessary and even counterproductive to apply different legal standards to interrogations, depending on whether a suspect had been indicted.

For example, either the "Handicapped Children Speech" and the "Christian Burial Speech" both should count as interrogation, or neither should. Why should the result differ, merely because Innis had not yet been indicted, and Williams had? Do people who, like Williams, have been indicted feel more like talking to the police than those who, like Innis, have not? There is no evidence to support such a conclusion.

In defense of Massiah's "indictment" distinction, the Court has claimed that indictment is a "critical stage" in prosecuting a defendant, for then the defendant can harm himself irreparably by statements he makes before a lawyer arrives on the scene, before the trial even begins. Fair enough. But that argument simply suggests that Massiah rights should be triggered long before trial — without explaining why they should not be triggered long before indictment, too.

There is nothing to stop a pre-indictment suspect from doing exactly the same self-inflicted harm as his post-indictment counterpart. Indeed, a suspect may do even greater harm prior to indictment, since an indictment can serve to put a suspect on notice that a prosecutor has made the decision to target him in particular and that he therefore ought to exercise discretion.

Massiah rights will thus often come into being too late to be of any use to the defendant. The fortuity of when the prosecution decides to charge him with a particular crime, a matter over which the defendant has no control, can therefore be decisive.

The Real Argument Should Be Over Miranda's Scope

The Cobb Court could — and should — have gotten rid of Massiah's distinction, and let Miranda alone protect suspects. But it did not.

That is a bit surprising, because the Court indicated that it thought Miranda's protection was broad enough. Dissenters claimed that an offense-specific reading of Massiah would "permit law enforcement officers almost complete and total license to conduct unwanted and uncounseled interrogations." But the Court responded that under Miranda, "a suspect must be apprised of his rights against compulsory self-incrimination and to consult with an attorney before authorities may conduct custodial interrogation." Clearly, the Cobb majority believes Miranda alone is a substantial and adequate check against constitutional violations in interrogation.

The Cobb dissenters argued, by contrast, that Miranda does not sufficiently protect suspects from interrogation they feel ill-equipped to handle on their own. The dissenters may be right. Suspects may hear that they have the right to remain silent but not fully comprehend the implications of giving up that right. And they may mistakenly believe that the police are their allies and will help them exonerate themselves. But whether one agrees with the majority or with the dissent, it should be Miranda — not Massiah — that is at issue.

The dissent's arguments are really arguments for expanding Miranda, either by defining Miranda "interrogation" more broadly, by extending its protections beyond the custodial setting, or by making a waiver of Miranda rights more difficult. These arguments are not, however, arguments for preserving Massiah's groundless distinction between those who have, and those who have not, been indicted.

The Court should abandon the separate Massiah doctrine, and conduct the important debate that is waiting in the wings, about the scope of Miranda. That debate will probably turn largely on the perceived desirability of obtaining voluntary (but ill-advised) confessions from criminal suspects. The Court could have hashed out that debate more fully in Cobb; let us hope that it will take the chance to do so in the next Massiah case it hears.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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