U.S. Supreme Court United States v. Henry, 447
U.S. 264 (1980) United States v.
Henry No. 79-121 Argued January 16,
1980 Decided June 16, 1980 447
U.S. 264 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH
CIRCUIT Syllabus After respondent was indicted for armed robbery of a bank, and
while he was in jail pending trial, Government agents contacted an
informant who was then an inmate confined in the same cellblock as
respondent. An agent instructed the informant to be alert to any
statements made by federal prisoners but not to initiate
conversations with or question respondent regarding the charges
against him. After the informant had been released from jail, he
reported to the agent that he and respondent had engaged in
conversation and that respondent made incriminating statements
about the robbery. The informant was paid for furnishing the
information. At respondent's trial, which resulted in a conviction,
the informant testified about the incriminating statements that
respondent had made to him. Respondent moved to vacate his sentence
on the ground that the introduction of the informant's testimony
interfered with and violated his Sixth Amendment right to the
assistance of counsel. The District Court denied the motion, but
the Court of Appeals reversed, holding that the Government's
actions impaired respondent's Sixth Amendment rights under Massiah v. United States, 377 U.
S. 201 . Held: Respondent's statements to the informant should
not have been admitted at trial. By intentionally creating a
situation likely to induce respondent to make incriminating
statements without the assistance of counsel, the Government
violated respondent's Sixth Amendment right to counsel. Under the
facts -- particularly the facts that the informant was acting under
instructions as a paid informant for the Government while
ostensibly no more than a fellow inmate, and that respondent was in
custody and under indictment at the time -- incriminating
statements were "deliberately elicited" from respondent within the
meaning of Massiah. Since respondent was unaware that the
informant was acting for the Government, he cannot be held to have
waived his right to the assistance of counsel. Pp. 447 U. S.
269 -275.

															590 F.2d 544, affirmed.

															BURGER, C.J., delivered the opinion of the Court, in which
BRENNAN, STEWART, MARSHALL, POWELL, and STEVENS, JJ., joined.
POWELL, J., filed a concurring opinion, post, p. 447 U. S. 275 .
BLACKMUN, J., filed a dissenting Page 447 U. S. 265 opinion, in which WHITE, J., joined, post, p. 447 U. S. 277 .
REHNQUIST, J., filed dissenting opinion, post, p. 447 U. S.
289 .

															MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

															We granted certiorari to consider whether respondent's Sixth
Amendment right to the assistance of counsel was violated by the
admission at trial of incriminating statements made by respondent
to his cellmate, an undisclosed Government informant, after
indictment and while in custody. 444 U.S. 824 (1979). I The Janaf Branch of the United Virginia Bank/Seaboard National
in Norfolk, Va., was robbed in August, 1972. Witnesses saw two men
wearing masks and carrying guns enter the bank while a third man
waited in the car. No witnesses were able to identify respondent
Henry as one of the participants. About an hour after the robbery,
the getaway car was discovered. Inside was found a rent receipt
signed by one "Allen R. Norris" and a lease, also signed by Norris,
for a house in Norfolk. Two men, who were subsequently convicted of
participating in the robbery, were arrested at the rented house.
Discovered with them were the proceeds of the robbery and the guns
and masks used by the gunmen.

															Government agents traced the rent receipt to Henry; on the basis
of this information, Henry was arrested in Atlanta, Ga., in
November, 1972. Two weeks later, he was indicted for Page 447 U. S. 266 armed robbery under 18 U.S.C. §§ 2113(a) and (d). He was held
pending trial in the Norfolk city jail. Counsel was appointed on
November 27.

															On November 21, 1972, shortly after Henry was incarcerated,
Government agents working on the Janaf robbery contacted one
Nichols, an inmate at the Norfolk city jail, who for some time
prior to this meeting had been engaged to provide confidential
information to the Federal Bureau of Investigation as a paid
informant. Nichols was then serving a sentence on local forgery
charges. The record does not disclose whether the agent contacted
Nichols specifically to acquire information about Henry or the
Janaf robbery. [ Footnote 1 ]

															Nichols informed the agent that he was housed in the same
cellblock with several federal prisoners awaiting trial, including
Henry. The agent told him to be alert to any statements made by the
federal prisoners, but not to initiate any conversation with or
question Henry regarding the bank robbery. In early December, after
Nichols had been released from jail, the agent again contacted
Nichols, who reported that he and Henry had engaged in
conversation, and that Henry had told him about the robbery of the
Janaf bank. [ Footnote 2 ]
Nichols was paid for furnishing the information.

															When Henry was tried in March, 1973, an agent of the Page 447 U. S. 267 Federal Bureau of Investigation testified concerning the events
surrounding the discovery of the rental slip and the evidence
uncovered at the rented house. Other witnesses also connected Henry
to the rented house, including the rental agent, who positively
identified Henry as the "Allen R. Norris" who had rented the house
and had taken the rental receipt described earlier. A neighbor
testified that, prior to the robbery, she saw Henry at the rented
house with John Luck, one of the two men who had by the time of
Henry's trial been convicted for the robbery. In addition, palm
prints found on the lease agreement matched those of Henry.

															Nichols testified at trial that he had "an opportunity to have
some conversations with Mr. Henry while he was in the jail," and
that Henry told him that, on several occasions, he had gone to the
Janaf Branch to see which employees opened the vault. Nichols also
testified that Henry described to him the details of the robbery
and stated that the only evidence connecting him to the robbery was
the rental receipt. The jury was not informed that Nichols was a
paid Government informant.

															On the basis of this testimony, [ Footnote 3 ] Henry was convicted of bank robbery and
sentenced to a term of imprisonment of 25 years. On appeal, he
raised no Sixth Amendment claims. His conviction was affirmed,
judgt. order reported at 483 F.2d 1401 (CA4 1973), and his petition
to this Court for a writ of certiorari was denied. 421 U.S. 915
(1975).

															On August 28, 1975, Henry moved to vacate his sentence pursuant
to 28 U.S.C. § 2255. [ Footnote
4 ] At this stage, he stated that Page 447 U. S. 268 he had just learned that Nichols was a paid Government informant
and alleged that he had been intentionally placed in the same cell
with Nichols so that Nichols could secure information about the
robbery. Thus, Henry contended that the introduction of Nichols'
testimony violated his Sixth Amendment right to the assistance of
counsel. The District Court denied the motion without a hearing.
The Court of Appeals, however, reversed and remanded for an
evidentiary inquiry into "whether the witness [Nichols] was acting
as a government agent during his interviews with Henry."

															On remand, the District Court requested affidavits from the
Government agents. An affidavit was submitted describing the
agent's relationship with Nichols and relating the following
conversation:

															"I recall telling Nichols at this time to be alert to any
statements made by these individuals [the federal prisoners]
regarding the charges against them. I specifically recall telling
Nichols that he was not to question Henry or these individuals
about the charges against them, however, if they engaged him in
conversation or talked in front of him, he was requested to pay
attention to their statements. I recall telling Nichols not to
initiate any conversations with Henry regarding the bank robbery
charges against Henry, but that, if Henry initiated the
conversations with Nichols, I requested Nichols to pay attention to
the information furnished by Henry."

															The agent's affidavit also stated that he never requested anyone
affiliated with the Norfolk city jail to place Nichols in the same
cell with Henry.

															The District Court again denied Henry's § 2255 motion,
concluding that Nichols' testimony at trial did not violate
Henry's Page 447 U. S. 269 Sixth Amendment right to counsel. The Court of Appeals reversed
and remanded, holding that the actions of the Government impaired
the Sixth Amendment rights of the defendant under Massiah v.
United States, 377 U. S. 201 (1964). The court noted that Nichols had engaged in conversation
with Henry and concluded that, if by association, by general
conversation, or both, Nichols had developed a relationship of
trust and confidence with Henry such that Henry revealed
incriminating information, this constituted interference with the
right to the assistance of counsel under the Sixth Amendment.
[ Footnote 5 ] 590 F.2d 544
(1978). II This Court has scrutinized postindictment confrontations between
Government agents and the accused to determine whether they are
"critical stages" of the prosecution at which the Sixth Amendment
right to the assistance of counsel attaches. See, e.g., United
States v. Ash, 413 U. S. 300 (1973); United States v. Wade, 388 U.
S. 218 (1967). The present case involves incriminating
statements made by the accused to an undisclosed and undercover
Government informant while in custody and after indictment. The
Government characterizes Henry's incriminating statements as
voluntary, and not the result of any affirmative conduct on the
part of Government agents to elicit evidence. From this, the
Government argues that Henry's rights were not violated, even
assuming the Sixth Amendment applies to such surreptitious
confrontations; in short, it is contended that the Government has
not interfered with Henry's right to counsel. [ Footnote 6 ] Page 447 U. S. 270 This Court first applied the Sixth Amendment to postindictment
communications between the accused and agents of the Government in Massiah v. United States, supra. There, after the accused
had been charged, he made incriminating statements to his
codefendant, who was acting as an agent of the Government. In
reversing the conviction, the Court held that the accused was
denied

															"the basic protections of [the Sixth Amendment] when there was
used against him at his trial evidence of his own incriminating
words, which federal agents had deliberately elicited from
him." Id. at 377 U. S. 206 .
The Massiah holding rests squarely on interference with
his right to counsel.

															The question here is whether, under the facts of this case, a
Government agent "deliberately elicited" incriminating statements
from Henry within the meaning of Massiah. Three factors
are important. First, Nichols was acting under instructions as a
paid informant for the Government; second, Nichols was ostensibly
no more than a fellow inmate of Henry; and third, Henry was in
custody and under indictment at the time he was engaged in
conversation by Nichols.

															The Court of Appeals viewed the record as showing that Nichols
deliberately used his position to secure incriminating information
from Henry when counsel was not present, and held that conduct
attributable to the Government. Nichols had been a paid Government
informant for more than a year; moreover, the FBI agent was aware
that Nichols had access to Henry and would be able to engage him in
conversations without arousing Henry's suspicion. The arrangement
between Nichols and the agent was on a contingent fee basis;
Nichols was to be paid only if he produced useful information.
[ Footnote 7 ] Page 447 U. S. 271 This combination of circumstances is sufficient to support the
Court of Appeals' determination. Even if the agent's statement that
he did not intend that Nichols would take affirmative steps to
secure incriminating information is accepted, he must have known
that such propinquity likely would lead to that result.

															The Government argues that the federal agents instructed Nichols
not to question Henry about the robbery. [ Footnote 8 ] Yet according to his own testimony, Nichols
was not a passive listener; rather, he had "some conversations with
Mr. Henry" while he was in jail and Henry's incriminatory
statements were "the product of this conversation." While
affirmative interrogation, absent waiver, would certainly satisfy Massiah, we are not persuaded, as the Government contends,
that Brewer v. Williams, 430 U. S. 387 (1977), modified Massiah's "deliberately elicited" test. See Rhode Island v. Innis, 446 U.
S. 291 , 446 U. S. 300 ,
n. 4 (1980). [ Footnote 9 ] In Massiah, no inquiry was Page 447 U. S. 272 made as to whether Massiah or his codefendant first
raised the subject of the crime under investigation. [ Footnote 10 ]

															It is quite a different matter when the Government uses
undercover agents to obtain incriminating statements from persons
not in custody but suspected of criminal activity prior to the time
charges are filed. In Hoffa v. United States, 385 U.
S. 293 , 385 U. S. 302 (1966), for example, this Court held that "no interest legitimately
protected by the Fourth Amendment is involved" because "the Fourth
Amendment [does not protect] a wrongdoer's misplaced belief that a
person to whom he voluntarily confides his wrongdoing will not
reveal it." See also United States v. White, 401 U.
S. 745 (1971). Similarly, the Fifth Amendment has been
held not to be implicated by the use of undercover Government
agents before charges are filed, because of the absence of the
potential for compulsion. See Hoffa v. United States,
supra at 385 U. S.
303 -304. But the Fourth and Fifth Amendment claims made
in those cases are not relevant to the inquiry under the Sixth
Amendment here -- whether the Government has interfered with the
right to counsel of the accused by "deliberately eliciting"
incriminating statements. Our holding today does not modify White or Hoffa. It is undisputed that Henry was unaware of Nichols' role as a
Government informant. The Government argues that this Court should
apply a less rigorous standard under the Page 447 U. S. 273 Sixth Amendment where the accused is prompted by an undisclosed
undercover informant than where the accused is speaking in the
hearing of persons he knows to be Government officers. That line of
argument, however, seeks to infuse Fifth Amendment concerns against
compelled self-incrimination into the Sixth Amendment protection of
the right to the assistance of counsel. An accused speaking to a
known Government agent is typically aware that his statements may
be used against him. The adversary positions at that stage are well
established; the parties are then "arm's length" adversaries.

															When the accused is in the company of a fellow inmate who is
acting by prearrangement as a Government agent, the same cannot be
said. Conversation stimulated in such circumstances may elicit
information that an accused would not intentionally reveal to
persons known to be Government agents. Indeed, the Massiah Court noted that, if the Sixth Amendment "is to have any efficacy,
it must apply to indirect and surreptitious interrogations, as well
as those conducted in the jailhouse." The Court pointedly observed
that Massiah was more seriously imposed upon because he did not
know that his codefendant was a Government agent. 377 U.S. at 377 U. S.
206 .

															Moreover, the concept of a knowing and voluntary waiver of Sixth
Amendment rights does not apply in the context of communications
with an undisclosed undercover informant acting for the Government. See Johnson v. Zerbst, 304 U. S. 458 (1938). In that setting, Henry, being unaware that Nichols was a
Government agent expressly commissioned to secure evidence, cannot
be held to have waived his right to the assistance of counsel.

															Finally, Henry's incarceration at the time he was engaged in
conversation by Nichols is also a relevant factor. [ Footnote 11 ] As a ground Page 447 U. S. 274 for imposing the prophylactic requirements in Miranda v.
Arizona, 384 U. S. 436 , 384 U. S. 467 (1966), this Court noted the powerful psychological inducements to
reach for aid when a person is in confinement. See also
id. at 384 U. S.
448 -454. While the concern in Miranda was
limited to custodial police interrogation, the mere fact of custody
imposes pressures on the accused; confinement may bring into play
subtle influences that will make him particularly susceptible to
the ploys of undercover Government agents. The Court of Appeals
determined that, on this record, the incriminating conversations
between Henry and Nichols were facilitated by Nichols' conduct and
apparent status as a person sharing a common plight. That Nichols
had managed to gain the confidence of Henry, as the Court of
Appeals determined, is confirmed by Henry's request that Nichols
assist him in his escape plans when Nichols was released from
confinement. [ Footnote
12 ]

															Under the strictures of the Court's holdings on the exclusion of
evidence, we conclude that the Court of Appeals did not err in
holding that Henry's statements to Nichols should not have been
admitted at trial. By intentionally creating a situation likely to
induce Henry to make incriminating statements without the
assistance of counsel, the Government violated Henry's Sixth
Amendment right to counsel. [ Footnote 13 ] This is Page 447 U. S. 275 not a case where, in Justice Cardozo's words, "the constable . .
. blundered," People v. DeFore, 242 N.Y. 13, 21, 150 N.E.
585, 587 (1926); rather, it is one where t.he "constable" planned
an impermissible interference with the right to the assistance of
counsel. [ Footnote 14 ]

															The judgment of the Court of Appeals for the Fourth Circuit
is Affirmed. [ Footnote 1 ]

															The record does disclose that, on November 21, 1972, the same
day the agent contacted Nichols, the agent's supervisor
interrogated Henry at the jail. After denying participation in the
robbery, Henry exercised his right to terminate the interview.

															[ Footnote 2 ]

															Henry also asked Nichols if he would help him once Nichols was
released. Henry requested Nichols to go to Virginia Beach and
contact a woman there. He prepared instructions on how to find the
woman and wanted Nichols to tell her to visit Henry in the Norfolk
jail. He explained that he wanted to ask the woman to carry a
message to his partner, who was incarcerated in the Portsmouth city
jail. Henry also gave Nichols a telephone number and asked him to
contact an individual named "Junior" or "Nail." In addition, Henry
asked Nichols to provide him with a floor plan of the United States
Marshals' office and a handcuff key because Henry intended to
attempt an escape.

															[ Footnote 3 ]

															Joseph Sadler, another of Henry's cellmates, also testified at
trial. He stated that Henry had told him that Henry had robbed a
bank with a man named "Lucky" or "Luck." Sadler testified that, on
advice of counsel, he informed Government agents of the
conversation with Henry. Sadler was not a paid informant, and had
no arrangement to monitor or report on conversations with
Henry.

															[ Footnote 4 ]

															In his § 2255 petition, Henry also alleged that Sadler's
testimony was perjurious; that the Government failed to disclose
Brady material, see Brady v. Maryland, 373 U. S.
83 (1963); that the United States Attorney's argument to
the jury was impermissibly prejudicial; and that his trial counsel
was incompetent. The District Court rejected each of these grounds,
and none of these issues is before this Court.

															[ Footnote 5 ]

															The Court of Appeals acknowledged that the testimony of Sadler,
another cellmate of Henry, supported the conviction, but was not
willing to conclude beyond a reasonable doubt that Nichols'
testimony did not influence the jury. Chapman v.
California, 386 U. S. 18 , 386 U. S. 24 (1967).

															[ Footnote 6 ]

															Although both the Government, and MR. JUSTICE REHNQUIST in
dissent, question the continuing vitality of the Massiah branch of the Sixth Amendment, we reject their invitation to
reconsider it.

															[ Footnote 7 ]

															The affidavit of the agent discloses that "Nichols had been paid
by the FBI for expenses and services in connection with information
he had provided" as an informant for at least a year. The only
reasonable inference from this statement is that Nichols was paid
when he produced information, not that Nichols was continuously on
the payroll of the FBI. Here, the service requested of Nichols was
that he obtain incriminating information from Henry; there is no
indication that Nichols would have been paid if he had not
performed the requested service.

															[ Footnote 8 ]

															Two aspects of the agent's affidavit are particularly
significant. First, it is clear that the agent, in his discussions
with Nichols, singled out Henry as the inmate in whom the agent had
a special interest. Thus, the affidavit relates that "I
specifically recall telling Nichols that he was not to question Henry or these individuals," and "I recall telling Nichols
not to initiate any conversations with Henry regarding the
bank robbery charges," but to "pay attention to the information
furnished by Henry. " (Emphasis added.) Second, the agent
only instructed Nichols not to question Henry or to initiate
conversations regarding the bank robbery charges. Under these
instructions, Nichols remained free to discharge his task of
eliciting the statements in myriad less direct ways.

															[ Footnote 9 ]

															The situation where the "listening post" is an inanimate
electronic device differs; such a device has no capability of
leading the conversation into any particular subject or prompting
any particular replies. See, e.g., United States v.
Hearst, 563 F.2d 1331, 1347-1348 (CA9 1977), cert.
denied, 435 U. S. 1000 (1978). However, that situation is not presented in this case, and
there is no occasion to treat it; nor are we called upon to pass on
the situation where an informant is placed in close proximity but
makes no effort to stimulate conversations about the crime
charged.

															[ Footnote 10 ]

															No doubt the role of the agent at the time of the conversations
between Massiah and his codefendant was more active than
that of the federal agents here. Yet the additional fact in Massiah that the agent was monitoring the conversations is
hardly determinative. In both Massiah and this case, the
informant was charged with the task of obtaining information from
an accused. Whether Massiah's codefendant questioned Massiah about
the crime or merely engaged in general conversation about it was a
matter of no concern to the Massiah Court. Moreover, we
deem it irrelevant that, in Massiah, the agent had to
arrange the meeting between Massiah and his codefendant, while here
the agents were fortunate enough to have an undercover informant
already in close proximity to the accused.

															[ Footnote 11 ]

															This is not to read a "custody" requirement, which is a
prerequisite to the attachment of Miranda rights, into
this branch of the Sixth Amendment. Massiah was in no
sense in custody at the time of his conversation with his
codefendant. Rather, we believe the fact of custody bears on
whether the Government "deliberately elicited" the incriminating
statements from Henry.

															[ Footnote 12 ]

															This is admittedly not a case, such as Massiah, where
the informant and the accused had a prior longstanding
relationship. Nevertheless, there is ample evidence in the record
which discloses that Nichols had managed to become more than a
casual jailhouse acquaintance. That Henry could be induced to
discuss his past crime is hardly surprising in view of the fact
that Nichols had so ingratiated himself that Henry actively
solicited his aid in executing his next crime -- his planned
attempt to escape from the jail.

															[ Footnote 13 ]

															The holding of the Court of Appeals that this was not harmless
error is on less firm grounds in view of the strong evidence
against Henry, including the testimony of a neutral fellow inmate,
Henry's rental of the hideaway house, and his presence there with
the other participants in the robbery before the crime. The
Government, however, has not argued that the error was harmless,
and, on balance, we are not inclined to disturb the determination
of the Court of Appeals.

															[ Footnote 14 ]

															Although it does not bear on the constitutional question in this
case, we note that Disciplinary Rule 7-14(A)(1) of the Code of
Professional Responsibility provides:

															"(A) During the course of his representation of a client a
lawyer shall not:"

															"(1) Communicate or cause another to communicate on the subject
of the representation with a party he knows to be represented by a
lawyer in that matter unless he has the prior consent of the lawyer
representing such other party or is authorized by law to do
so." See also Ethical Consideration 7-18.

															MR. JUSTICE POWELL, concurring.

															The question in this case is whether the Government deliberately
elicited information from respondent in violation of the rule of Massiah v. United States, 377 U.
S. 201 (1964), and Brewer v. Williams, 430 U. S. 387 (1977). I join the opinion of the Court, but write separately to
state my understanding of the Court's holding. I In Massiah v. United States, this Court held that the
Government violated the Sixth Amendment when it deliberately
elicited incriminating information from an indicted defendant who
was entitled to assistance of counsel. 377 U.S. at Page 447 U. S. 276 377 U. S. 206 .
Government agents outfitted an informant's automobile with radio
transmitting equipment and instructed the informant to engage the
defendant in conversation relating to the crimes. United States
v. Massiah, 307 F.2d 62, 72 (CA2 1962) (Hays, J., dissenting).
In suppressing statements overheard during the resulting
conversation, the Court emphasized that the Sixth Amendment must
" apply to indirect and surreptitious interrogations as well as
those conducted in the jailhouse. . . .'" 377 U.S. at 377 U. S. 206 ,
quoting 307 F.2d at 72 (Hays, J., dissenting). Similarly, in Brewer v. Williams, supra, we applied Massiah to
a situation in which a police detective purposefully isolated a
suspect from his lawyers and, during a long ride in a police car,
elicited incriminating remarks from the defendant through skillful
interrogation. We suppressed the statement because the government
"deliberately and designedly set out to elicit" information from a
suspect. 430 U.S. at 430 U. S. 399 ; see id. at 430 U. S. 407 (MARSHALL, J., concurring); id. at 430 U. S. 412 (POWELL, J., concurring). The rule of Massiah serves the salutary purpose of
preventing police interference with the relationship between a
suspect and his counsel once formal proceedings have been
initiated. But Massiah does not prohibit the introduction
of spontaneous statements that are not elicited by governmental
action. Thus, the Sixth Amendment is not violated when a passive
listening device collects, but does not induce, incriminating
comments. See United States v. Hearst, 563 F.2d 1331,
1347-1348 (CA9 1977), cert. denied, 435 U.
S. 1000 (1978). Similarly, the mere presence of a
jailhouse informant who had been instructed to overhear
conversations and to engage a criminal defendant in some
conversations would not necessarily be unconstitutional. In such a
case, the question would be whether the informant's actions
constituted deliberate and "surreptitious interrogatio[n]" of the
defendant. If they did not, then there would be no interference
with the relationship between client and counsel. Page 447 U. S. 277 II I view this as a close and difficult case on its facts because
no evidentiary hearing has been held on the Massiah claim.
Normally, such a hearing is helpful to a reviewing court and should
be conducted. On balance, however, I accept the view of the Court
of Appeals and of the Court that the record adequately demonstrates
the existence of a Massiah violation. I could not join the
Court's opinion if it held that the mere presence or incidental
conversation of an informant in a jail cell would violate Massiah. * To demonstrate
an infringement of the Sixth Amendment, a defendant must show that
the government engaged in conduct that, considering all of the
circumstances, is the functional equivalent of interrogation. See Brewer v. Williams, 430 U.S. at 430 U. S. 399 ; id. at 430 U. S. 411 , 430 U. S. 412 (POWELL, J., concurring). See also Rhode Island v. Innis, 446 U. S. 291 (1980).

															Because I understand that the decision today rests on a
conclusion that this informant deliberately elicited incriminating
information by such conduct, I join the opinion of the Court.

															* By reserving the question whether the mere presence of an
informant in a jail cell violates Massiah, the Court
demonstrates that its holding is not premised upon such a theory. Ante at 447 U. S. 269 ,
n. 6.

															MR JUSTICE BLACKMUN, with whom MR. JUSTICE WHITE joins,
dissenting.

															In this case, the Court, I fear, cuts loose from the moorings of Massiah v. United States, 377 U.
S. 201 (1964), [ Footnote
2/1 ] and overlooks or misapplies significant facts to reach a
result that is not required by the Sixth Amendment, by established
precedent, or by sound policy.

															The Court of Appeals resolved this case by a divided vote, with
all three judges writing separately. Three of the seven Page 447 U. S. 278 judges then on that court dissented from the denial of rehearing
en banc. And MR. JUSTICE POWELL, in his separate concurring
opinion, obviously is less than comfortable, finds the case "close
and difficult," ante at 447 U. S. 277 ,
and writes to assure that his concurring vote preserves his
contrary posture when the Court will be confronted with only "the
mere presence or incidental conversation of an informant in a jail
cell." Ibid. This division of opinion about this case
attests to the importance of correct factual analysis here.

															Because I view the principles of Massiah and the facts
of this case differently than the Court does, I dissent. I Massiah mandates exclusion only if a federal agent
"deliberately elicited" statements from the accused in the absence
of counsel. 377 U.S. at 377 U. S. 206 .
The word "deliberately" denotes intent. Massiah ties this
intent to the act of elicitation, that is, to conduct that draws
forth a response. Thus Massiah, by its own terms, covers
only action undertaken with the specific intent to evoke an
inculpatory disclosure.

															Faced with Agent Coughlin's unequivocal expression of an intent not to elicit statements from respondent Henry, but merely
passively to receive them, ante at 447 U. S. 268 ;
App. to Pet. for Cert. 58a, the Court, in its decision to affirm
the judgment of the Court of Appeals, has no choice but to depart
from the natural meaning of the Massiah formulation. The
Court deems it critical that informant Nichols had been a paid
informant; that Agent Coughlin was aware that Nichols "had access"
to Henry and "would be able to engage him in conversations without
arousing Henry's suspicion"; and that payment to Nichols was on a
contingent fee basis. Ante at 447 U. S. 270 .
Thus, it is said, even if Coughlin's "statement is accepted . . .
he must have known that such propinquity likely would lead to that
result" (that is, that Nichols would take "affirmative steps to
secure incriminating information"). Ante at 447 U. S. 271 .
Later, the Court goes even further, characterizing this as a Page 447 U. S. 279 case of "intentionally creating a situation likely to
induce Henry to make incriminating statements." Ante at 447 U. S. 274 .
(Emphasis added.) This determination, coupled with the statement
that Nichols "prompted" respondent Henry's remarks, ante at 447 U. S. 273 ,
and see ante at 447 U. S. 271 n. 9, leads the Court to find a Massiah violation.

															Thus, while claiming to retain the "deliberately elicited" test,
the Court really forges a new test that saps the word
"deliberately" of all significance. The Court's extension of Massiah would cover even a "negligent" triggering of
events resulting in reception of disclosures. This approach, in my
view, is unsupported and unwise.

															A. Authority. The Court's precedents appear to me to be
contrary to this new objective approach. Spano v. New
York, 360 U. S. 315 (1959), whose concurring opinions presaged Massiah, see 377 U.S. at 377 U. S. 204 ,
concerned an "all-night inquisition" during which the defendant
"repeatedly asked to be allowed to send for his lawyer." 360 U.S.
at 360 U. S. 327 (concurring opinion). Obviously, that case involved deliberate
efforts to extract information in the absence of counsel. In Massiah itself, the agent engineered a pretrial meeting
between the accused and a turncoat codefendant. The agent
instructed the latter to talk to the defendant about the crime, see United States v. Massiah, 307 F.2d 62, 66 (CA2 1962); id. at 72 (dissenting opinion), and he bugged the meeting
place so he could listen in. [ Footnote
2/2 ] United States v. Ash, 413 U.
S. 300 (1973), by emphasizing that Massiah involved a "ruse" and that Massiah's purpose was to
neutralize "the overreaching of the prosecution," id. at 413 U. S. 312 ,
reinforced the view that deliberate elicitation entails purposeful
police action.

															If any question could possibly have remained about the
subjective nature of the Massiah inquiry, it was dispelled
by Page 447 U. S. 280 Brewer v. Williams, 430 U. S. 387 (1977). There the Court closely examined testimony regarding the
agent's intentions. In the face of vigorous dissents, it found a
Sixth Amendment violation only because

															"[t]here can be no serious doubt . . . that Detective Leaming deliberately and designedly set out to elicit information
from Williams,' and because, in giving his 'Christian burial
speech,' Leaming 'purposely sought . . . to obtain as much
incriminating information as possible." Id. at 430 U. S. 399 (emphasis added). See also Rhode Island v. Innis, 446 U. S. 291 , 446 U. S. 300 ,
n. 4 (1980) (reaffirming the "deliberately elicited" criterion);
Kamisar, Brewer v. Williams, Massiah, and Miranda: What is "Interrogation"? When Does it Matter?, 67
Geo.L.J. 1, 42 (1978) ("The use of the term deliberately
elicited' seems to be quite intentional"). [ Footnote 2/3 ] The unifying theme of Massiah cases, then, is the
presence of deliberate, designed, and purposeful tactics, that is,
the agent's use of an investigatory tool with the specific intent
of extracting information in the absence of counsel. Thus, the
Court's "likely to induce" test fundamentally restructures Massiah. Even if the agent engages in no "overreaching,"
and believes his actions to be wholly innocent and passive,
evidence he comes by must be excluded if a court, with the
convenient benefit of 20/20 hindsight, finds it likely that the
agent's actions would induce the statements.

															B. Policy. For several reasons, I believe that the
Court's revamping of Massiah abrogates sound judicial
policy. First, its test will significantly broaden Sixth Amendment
exclusion; yet, as THE CHIEF JUSTICE has stressed before, the "high
price society pays for such a drastic remedy" as exclusion of
indisputably reliable evidence in criminal trials cannot be denied. See, e.g., Bivens v. Six Unknown Federal Narcotics Agents, 403 U. S. 388 , 403 U. S. 413 (1971) (dissenting opinion). Second, I think the Court's approach
fails to appreciate Page 447 U. S. 281 fully and to accommodate adequately the "value" and the
"unfortunate necessity of undercover work." Weatherford v.
Bursey, 429 U. S. 545 , 429 U. S. 557 (1977). Third, I find it significant that the proffered statements
are unquestionably voluntary. See United States v.
Washington, 431 U. S. 181 , 431 U. S. 187 (1977) ("Indeed, far from being prohibited by the Constitution,
admissions of guilt by wrongdoers, if not coerced, are inherently
desirable"). Fourth, the Court condemns and punishes police conduct
that I do not find culpable. See Wilson v. Henderson, 584
F.2d 1185, 1191 (CA2 1978), cert. denied, 442 U.S. 945
(1979) (investigating officer's "directions, Don't ask
questions, just keep your ears open,' suggest familiarity and
attempted compliance with, not circumvention of, the principle of Massiah "). Fifth, at least absent an active, orchestrated
ruse, I have great difficulty perceiving how canons of fairness are
violated when the Government uses statements flowing from a
"wrongdoer's misplaced belief that a person to whom he voluntarily
confides his wrongdoing will not reveal it." Hoffa v. United
States, 385 U. S. 293 , 385 U. S. 302 (1966). [ Footnote 2/4 ] Finally, I note the limits, placed in other Sixth Amendment
cases, of providing counsel to counterbalance prosecutorial
expertise and to aid defendants faced with complex and unfamiliar
proceedings. See MR. JUSTICE REHNQUIST's dissenting
opinion, post at 447 U. S.
290 -298. [ Footnote 2/5 ]
While not out of line with the Page 447 U. S. 282 Court's prior right to counsel cases, Massiah certainly
is the decision in which Sixth Amendment protections have been
extended to their outermost point. I simply do not perceive any
good reason to give Massiah the expansion it receives in
this case. [ Footnote 2/6 ] II In my view, the Court not only missteps in forging a new Massiah test; it proceeds to misapply the very test it has
created. The new test requires a showing that the agent created Page 447 U. S. 283 a situation "likely to induce" the production of incriminatory
remarks, and that the informant in fact "prompted" the defendant.
Even accepting the most capacious reading of both this language and
the facts, I believe that neither prong of the Court's test is
satisfied.

															A. "Likely to Induce." In holding that Coughlin's
actions were likely to induce Henry's statements, the Court relies
on three facts: a contingent fee arrangement; Henry's assumption
that Nichols was just a cellmate; and Henry's incarceration.
[ Footnote 2/7 ]

															The Court states: "The arrangement between Nichols and the agent
was on a contingent fee basis; Nichols was to be paid only if he
produced useful information." Ante at 447 U. S. 270 .
The District Court, however, made no such finding, and I am
unconvinced that the evidence of record establishes such an
understanding. [ Footnote 2/8 ] In
any event, I question whether the existence of a contingent fee
arrangement is at all significant. The reasonable conclusion of an
informant like Nichols would be that, whatever the arrangement, he
would not be remunerated Page 447 U. S. 284 if he breached his promise; yet the Court asks us to infer that
Coughlin's conversation with Nichols "likely would lead" Nichols to
engage in the very conduct which Coughlin told him to avoid. Ante at 447 U. S.
271 .

															The Court also emphasizes that Henry was "unaware that Nichols
was a Government agent." Ante at 447 U. S. 273 .
One might properly assign this factor some importance, were it not
for Brewer v. Williams. In that case, the Court explicitly
held that the fact "[t]hat the incriminating statements were
elicited surreptitiously in the Massiah case, and
otherwise here, is constitutionally irrelevant. " 430 U.S.
at 430 U. S. 400 .
(Emphasis added.) The Court's teeter-tottering with this factor in Massiah analysis can only induce confusion.

															It merits emphasis that the Court's resurrection of the
unawareness factor is indispensable to its holding. For, in Brewer, substantial contact and conversation with a
confined defendant preceded delivery of the "Christian burial
speech." Yet the Court clearly deemed the speech critical in
finding a Massiah violation; it thus made clear that mere
"association" and "general conversation" did not suffice to bring Massiah into play. Since nothing more transpired here,
principled application of Brewer mandates reversal of the
judgment in this case.

															Finally, the Court notes that Henry was incarcerated when he
made his statements to Nichols. The Court's emphasis of the "subtle
influences" exerted by custody, however, is itself too subtle for
me. This is not a case of a custodial encounter with police, in
which the Government's display of power might overcome the free
will of the accused. The relationship here was "social" and
relaxed. Henry did not suspect that Nichols was connected with the
FBI. Moreover, even assuming that "subtle influences" might
encourage a detainee to talk about his crime, there are certainly
counterbalances of at least equal weight. Since, in jail, "official
surveillance has traditionally been the order of the day," Page 447 U. S. 285 Lanza v. New York, 370 U. S. 139 , 370 U. S. 143 (1962), and a jailmate has obvious incentives to assist
authorities, one may expect a detainee to act with corresponding
circumspection. Cf. Rhode Island v. Innis, 446 U.S. at 446 U. S. 300 ,
n. 4 ("Custody in . . . a [ Massiah ] case is not
controlling; indeed, the petitioner in Massiah was not in
custody").

															The Court does more than rely on dubious factors in finding that
Coughlin's actions were "likely to induce" Nichols' successful
prompting of Henry; it fails to focus on facts that cut strongly
against that conclusion. The Court ignores Coughlin's specific
instruction to Nichols that he was not to question Henry or to
initiate conversation with him about the robbery. Nor does it note
Nichols' likely assumption that he would not be remunerated, but
reprimanded and possibly penalized, if he violated Coughlin's
orders. In addition, the record shows that Nichols had worked as an
FBI informant for four years, and that Coughlin and Nichols had
worked together for about a year on several matters. It makes
sense, given Nichols' experience and Coughlin's willingness to
renew their working relationship, to conclude that Nichols would
follow Coughlin's instruction. Finally, it is worth noting that
Henry was only one of several federal detainees to whom Nichols was
to pay attention; [ Footnote 2/9 ]
this is not a case in Page 447 U. S. 286 which officers singled out a specific target. On these facts, I
cannot agree that Coughlin "must have known that [it was] likely"
that Nichols would seek to elicit information from Henry.

															Under the Court's analysis, it is not enough that Coughlin
should have anticipated disobedience by Nichols; it must also be
shown that his actions were "likely to induce" Henry to talk. In my
view, however, there was little reason to believe that even the
most aggressive efforts by Nichols would lead to disclosures by
Henry. Nothing in the record suggests that Henry and Nichols knew
each other, far less that they had the type of relationship that
would lead Henry to discuss freely a crime for which he had not yet
been tried. In this respect, the case stands in stark contrast to Massiah, where the informant had collaborated with Massiah in a drug smuggling operation and was a
codefendant in the resulting and pending prosecution. Moreover,

															"[t]here is nothing in the record to suggest that . . . the
[defendant] was peculiarly susceptible to approaches by cellmates
or that [he] . . . was unusually disoriented or upset." Rhode Island v. Innis, 446 U.S. at 446 U. S.
302 -303. On these facts, it seems to me extremely
unlikely that Coughlin's actions would lead to Henry's
statements.

															Even though the test forged by the Court has no precedent, we
are not without some assistance in judging its application. Just a
few weeks ago, in Rhode Island v. Innis, the Court held
that Miranda was implicated only by "words or actions on
the part of police officers that they should have known were reasonably likely to elicit an incriminating
response." Page 447 U. S. 287 446 U.S. at 446 U. S. 302 (emphasis deleted and added). Here, the Court asks whether agents
"creat[ed] a situation likely to induce Henry to make incriminating
statements." Ante at 447 U. S. 274 .
Although the Court in Innis emphasized that the Massiah and Miranda rules are distinct, 446 U.S.
at 446 U. S. 300 ,
n. 4, I have some difficulty in identifying a material difference
between these formulations. Since the Court found its test not
satisfied in Innis, it should follow that Henry's
statements may be excluded only if there was greater reason in this
case than in Innis to expect incriminatory disclosures.
The case for finding that disclosures were "likely," however, was
clearly stronger in Innis. There, the defendant had just
been arrested at 4:30 a.m.; he was handcuffed and confined in a
"caged wagon"; and the three police officers accompanying him
triggered his confession by conversing about the danger that a
"little girl" attending a nearby school for the handicapped would
"maybe kill herself" upon finding a gun he supposedly had hidden. Id. at 446 U. S.
293 -295. Against the backdrop of Innis, I
cannot fathom how the Court can conclude that Coughlin's actions
rendered Henry's disclosures "likely."

															B. "Prompting." All Members of the Court agree that
Henry's statements were properly admitted if Nichols did not
"prompt" him. Ante at 447 U. S. 273 ,
and see ante at 447 U. S. 271 ,
n. 9; ante at 447 U. S. 276 (concurring opinion); post at 447 U. S. 302 (dissenting opinion). The record, however, gives no indication that
Nichols "stimulated" Henry's remarks, ante at 447 U. S. 273 ,
with "affirmative steps to secure incriminating information." Ante at 447 U. S. 271 .
Certainly the known facts reveal nothing more than "a jailhouse
informant who had been instructed to overhear conversations and to
engage a criminal defendant in some conversations." Ante at 447 U. S. 276 (concurring opinion). [ Footnote
2/10 ] The scant record demonstrates only that Nichols "had an opportunity to have some Page 447 U. S.
288 conversations with Mr. Henry while he was in the jail.'" Ante at 447 U. S. 267 .
"Henry had engaged [Nichols] in conversation," "had requested
Nichols' assistance," and "had talked to Nichols about the bank
robbery charges against him." App. to Pet. for Cert. 58a. Thus, we
know only that Nichols and Henry had conversations, hardly a
startling development, given their location in the same cellblock
in a city jail. We know nothing about the nature of these
conversations, particularly whether Nichols subtly or otherwise
focused attention on the bank robberies. Indeed, to the extent the
record says anything at all, it supports the inference that it was
Henry, not Nichols, who "engaged" the other "in some
conversations," and who was the moving force behind any mention of
the crime. I cannot believe that Massiah requires
exclusion when a cellmate previously unknown to the defendant and
asked only to keep his ears open says: "It's a nice day," and the
defendant responds: "It would be nicer if I hadn't robbed that
bank." The Court of Appeals, however, found it necessary to swallow
that bitter pill in order to decide this case the way it did, and
this Court does not show that anything more transpired. Conceivably, the amount of information purveyed by Henry to
Nichols could support an inference that some fishing for detail
occurred. The Court does not invoke this reasoning, however, and
even if the record is stretched to produce such a finding, it
clearly discloses nothing about the timing of Henry's disclosures.
It may well be that Henry first "let the cat out of the bag,"
either by volunteering statements or by inadvertently discussing
the crime with someone else within earshot of Nichols. These
possibilities are not far-fetched. In addition to revealing
Coughlin's instructions, which we may infer were followed, the
record specifically indicates that Henry "volunteered" information
about the robbery to a cellmate other than Nichols. App. 85.
Moreover, the record discloses Henry's eagerness to make contact
with a potential collaborator outside the jail; Nichols, who was
soon Page 447 U. S. 289 to be released was a logical choice to serve as a go-between.
The Court, however, seems unconcerned that some of Henry's
statements were "spontaneously given." 590 F.2d 544 549 (CA4 1978)
(dissenting opinion). It emphasizes that "[i]n Massiah, no
inquiry was made as to whether Massiah or his codefendant first
raised the subject of the crime under investigation." Ante at 447 U. S.
271 -272. This observation trivializes the central facts
of Massiah, in which an agent arranged a bugged meeting
between codefendants who shared a natural interest in their pending
prosecution, and in which the informant was instructed to, and did,
converse about the pair's misdeeds. III In sum, I think this is an unfortunate decision, which
disregards precedent and stretches to the breaking point a
virtually silent record. Whatever the bounds of Massiah, that case does not justify exclusion of the proof challenged
here.

															[ Footnote 2/1 ]

															For purposes of this case, I see no need to abandon Massiah
v. United States, as MR. JUSTICE REHNQUIST does.

															[ Footnote 2/2 ]

															The planted bug, of course, not only underscored the agent's
deliberate design to obtain incriminating information. By
permitting the agent to monitor whether the codefendant informant
abided by his agreement, it all but ensured that affirmative
elicitation in fact would occur.

															[ Footnote 2/3 ]

															It is noteworthy that the phrase "deliberately elicited" appears
at least three times in the Massiah opinion. See 377 U.S. at 377 U. S. 204 , 377 U. S.
206 .

															[ Footnote 2/4 ]

															The Court's "likely to induce" analysis might also be subjected
to the following criticism:

															"Few, if any, police officers are competent to make the kind of
evaluation seemingly contemplated; even a psychiatrist asked to
express an expert opinion on these aspects of a suspect in custody
would very likely employ extensive questioning and observation to
make the judgment now charged to police officers." Rhode Island v. Innis, 446 U.
S. 291 , 446 U. S. 304 (1980) (opinion concurring in judgment).

															[ Footnote 2/5 ]

															MR. JUSTICE POWELL observes, ante at 447 U. S. 276 ,
that

															" Massiah serves the salutary purpose of preventing
police interference with the relationship between a suspect and his
counsel once formal proceedings have been initiated."

															I fail to see any greater "interference" on the facts of this
case than in a case where an inmate is permitted to have a
conversation with a trusted visitor, but with an electronic
listening device in place, a practice MR. .JUSTICE POWELL finds
unobjectionable. Ibid. Indeed, bugging might be said to
present an even stronger case for finding "deliberate elicitation."
There is, after all, a likelihood that the inmate will place added
confidence in a relative or longtime friend who visits him.
Nichols, in contrast, had not known Henry previously. Moreover,
with bugging, a defendant cannot know what he is dealing with. He
lacks the ability intelligently to gauge the probability that his
confidences will be "reported" back to government agents. See
Wilson v. Henderson, 584 F.2d 1185, 1191 (CA2 1978), cert.
denied, 442 U.S. 945 (1979).

															[ Footnote 2/6 ]

															Rejection of an objective test in this context is not
inconsistent with Rhode Island v. Innis, supra, since "the
policies underlying the two constitutional protections [Fifth and
Sixth Amendments] are quite distinct." 446 U.S. at 446 U. S. 300 ,
n. 4. Miranda's "prophylactic rule," see Michigan v.
Payne, 412 U. S. 47 , 412 U. S. 53 (1973), seeks to protect a suspect's privilege against
self-incrimination from "the compulsion inherent in custodial
surroundings" when "interrogation" occurs. Miranda v.
Arizona, 384 U. S. 436 , 384 U. S. 458 (1966). Thus, in Miranda cases, the degree of compulsion
is critical. Beyond an objectively defined "pressure point,"
statements will be deemed presumedly compelled, and therefore
properly excluded, absent the countercoercive effect of Miranda warnings. See id. at 384 U. S. 467 . Massiah, in contrast to Miranda, is not rooted in
the Fifth Amendment privilege against self-incrimination. Rather,
it is expressly designed to counter "deliberat[e]" interference
with an indicted suspect's right to counsel. By focusing on
deliberateness, Massiah imposes the exclusionary sanction
on that conduct that is most culpable, most likely to frustrate the
purpose of having counsel, and most susceptible to being checked by
a deterrent. Cf. Brown v. Illinois, 422 U.
S. 590 , 422 U. S. 604 (1975).

															[ Footnote 2/7 ]

															The Court also notes that Henry, being located in the same
cellblock as Nichols, was accessible to the informant. It
nonetheless totally ignores the fact that the investigating agent
had nothing to do with placing Henry and Nichols in the same
cellblock. Indeed, the record shows that Coughlin did not confer
with Nichols initially with the purpose of obtaining evidence about
Henry; rather, the agent's affidavit indicates t.hat he was unaware
that Nichols and Henry were in the same cellblock until Nichols
informed him. App. to Pet. for Cert. 57a-58a.

															[ Footnote 2/8 ]

															The record shows that Nichols "had been paid by the FBI for
expenses and services in connection with information he had
provided on . . . previous occasions," id. at 57a, and
that "Nichols was paid by the FBI for expenses and services in
connection with the [investigation] of Henry." Id. at 59a.
These facts establish, at most, an amorphous course of dealing,
emanating from an unspecified number of previous investigations.
They do not show that Nichols previously was paid only when he
produced information. There can be no assurance that Nichols would
not have been paid had he failed to come up with evidence
implicating Henry or other federal defendants. Nor is there
anything to indicate that Nichols acted on this assumption.

															[ Footnote 2/9 ]

															The Court's suggestion to the contrary, see ante at 447 U. S. 271 ,
n. 8, based on three isolated segments of Coughlin's affidavit,
exemplifies its treatment of the record. The relevant portion of
Coughlin's affidavit reads in full:

															"Nichols advised that he was in the same cellblock, as Billy
Gale Henry as well as with other prisoners who had Federal
charges against them. I recall telling Nichols at this
time to be alert to any statements made by these
individuals regarding the charges against them. I
specifically recall telling Nichols that he was not to question
Henry or these individuals about the charges against them, however, if they engaged him in conversation or
talked in front of him, he was requested to pay attention to their
statements. I recall telling Nichols not to initiate any
conversations with Henry regarding the bank robbery charges against
Henry, but that, if Henry initiated the conversations with Nichols,
I requested Nichols to pay attention to the information furnished
by Henry."

															App. to Pet. for Cert. 58a (emphases added). Since the affidavit
containing this statement was submitted in Henry's case, it is
neither surprising nor significant that it occasionally refers to
Henry by name, while not referring specifically to remarks Coughlin
might have made about other detainees. The Court's reading of this
passage as establishing that "the agent . . . singled out Henry as
the inmate in whom the agent had a special interest" seems to me
extraordinary.

															[ Footnote 2/10 ]

															Indeed, here, unlike the scenario sketched by MR. JUSTICE
POWELL, there was no instruction "to engage . . . in some
conversations." It would seem that, a fortiori, Henry's
statements should not be excluded.

															MR. JUSTICE REHNQUIST, dissenting.

															The Court today concludes that the Government, through the use
of an informant, "deliberately elicited" information from
respondent after formal criminal proceedings had begun, and thus
the statements made by respondent to the informant are inadmissible
because counsel was not present. The exclusion of respondent's
statements has no relationship whatsoever to the reliability of the
evidence, and it rests on a prophylactic application of the Sixth
Amendment right to counsel that, in my view, entirely ignores the
doctrinal foundation of that right. The Court's ruling is based on Massiah v. United States, 377 U.
S. 201 (1964), which held that a postindictment
confrontation between the accused and his accomplice, who had
turned State's evidence and was acting under the direction of the
Government, was a "critical" stage of the criminal proceedings at
which the Sixth Amendment right to counsel attached. While the
decision today sets forth the factors that are "important" in
determining whether there Page 447 U. S. 290 has been a Massiah violation, ante at 447 U. S. 270 ,
I think that Massiah constitutes such a substantial
departure from the traditional concerns that underlie the Sixth
Amendment guarantee that its language, if not its actual holding,
should be reexamined. I The doctrinal underpinnings of Massiah have been
largely left unexplained, and the result in this case, as in Massiah, is difficult to reconcile with the traditional
notions of the role of an attorney. Here, as in Massiah, the accused was not prevented from consulting with his counsel as
often as he wished. No meetings between the accused and his counsel
were disturbed or spied upon. And preparation for trial was not
obstructed. See 377 U.S. at 377 U. S. 209 (WHITE, J., dissenting). In short, as MR. JUSTICE WHITE aptly
observed in Massiah: "It is only a sterile syllogism -- an unsound one, besides -- to
say that, because [the accused] had a right to counsel's aid before
and during the trial, his out-of-court conversations and admissions
must be excluded if obtained without counsel's consent or presence.
The right to counsel has never meant as much before, Cicenia v.
Lagay, 357 U. S. 504 ; Crooker v.
California, 357 U. S. 433 , and its extension
in this case requires some further explanation, so far
unarticulated by the Court." Ibid. A Our decisions recognize that, after formal proceedings have
commenced, an accused has a Sixth Amendment right to counsel at
"critical stages" of the criminal proceedings. See, e.g.,
ante at 447 U. S. 269 .
This principle derives from Powell v. Alabama, 287 U. S. 45 (1932), which held that a trial court's failure to appoint counsel
until the trial began violated the Due Process Clause of the
Fourteenth Amendment. Id. at 287 U. S. 68 -71. Powell referred to the "critical period" as being "from
the time of [the defendants'] arraignment until the beginning
of Page 447 U. S. 291 their trial, when consultation, thoroughgoing investigation and
preparation were vitally important." Id. at 287 U. S. 57 .
During that period, the defendants in Powell "did not have
the aid of counsel in any real sense, although they were as much
entitled to such aid during that period as at the trial itself." Ibid. They thus were deprived of the opportunity to
consult with an attorney, and to have him investigate their case
and prepare a defense for trial. After observing that the duty to
assign counsel

															"is not discharged by an assignment at such time or under such
circumstances as to preclude the giving of effective aid in the
preparation and trial of the case," id. at 287 U. S. 71 ,
this Court held that the defendants had been unconstitutionally
denied effective assistance of counsel. [ Footnote 3/1 ] Powell was based on the rationale that an unaided
layman, who has little or no familiarity with the law, requires
assistance in the preparation and presentation of his case and in
coping with procedural complexities in order to assure a fair
trial. The Court in Powell stated:

															"Historically and in practice, in our country at least, [a
hearing] has always included the right to the aid of counsel when
desired and provided by the party asserting the right. The right to
be heard would be, in many cases, of little avail if it did not
comprehend the right to be Page 447 U. S. 292 heard by counsel. Even the intelligent and educated layman has
small and sometimes no skill in the science of law. If charged with
crime, he is incapable, generally, of determining for himself
whether the indictment is good or bad. He is unfamiliar with the
rules of evidence. Left without the aid of counsel, he may be put
on trial without a proper charge, and convicted upon incompetent
evidence, or evidence irrelevant to the issue or otherwise
inadmissible. He lacks both the skill and knowledge adequately to
prepare his defense, even though he have a perfect one. He requires
the guiding hand of counsel 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." Id. at 287 U. S. 68 -69.
[ Footnote 3/2 ] More recently, this
Court has again observed that the concerns underlying the Sixth
Amendment right to counsel are to provide aid to the layman in
arguing the law and in coping with intricate legal procedure, United States v. Ash, 413 U. S. 300 , 413 U. S.
307 -308 (1973), and to minimize the imbalance in the
adversary system that otherwise resulted with the creation of
the Page 447 U. S. 293 professional prosecuting official. Id. at 413 U. S.
308 -309. [ Footnote 3/3 ]
Thus, in examining whether a stage of the proceedings is a
"critical" one at which the accused is entitled to legal
representation it is important to recognize that the theoretical
foundation of the Sixth Amendment right to counsel is based on the
traditional role of an attorney as a legal expert and strategist.
[ Footnote 3/4 ]

															"Deliberate elicitation" after formal proceedings have begun is
thus not, by itself, determinative. Ash held that an
accused has no right to be present at a photo display, because
there is no possibility that he "might be misled by his lack of
familiarity with the law or overpowered by his professional
adversary." Id. at 413 U. S. 317 . See also Gilbert v. California, 388 U.
S. 263 , 388 U. S. 267 (1967) (taking of handwriting exemplars is not a "critical" stage
of the proceedings because "there is a minimal risk that the
absence of counsel might derogate from his right to a fair trial").
If the event is not one that requires knowledge of legal procedure,
involves a communication between the accused and his attorney
concerning investigation of the case or the preparation of a
defense, or otherwise interferes with the attorney-client
relationship, there is, in my view, simply no constitutional
prohibition against the use of incriminating Page 447 U. S. 294 information voluntarily obtained from an accused despite the
fact that his counsel may not be present. In such circumstances,
the accused, at the least, has been informed of his rights as
required by Miranda v. Arizona, 384 U.
S. 436 (1966), and often will have received advice from
his counsel not to disclose any information relating to his case, see, e.g., Brewer v. Williams, 430 U.
S. 387 (1977).

															Once the accused has been made aware of his rights, it is his
responsibility to decide whether or not to exercise them. If he
voluntarily relinquishes his rights by talking to authorities, or
if he decides to disclose incriminating information to someone whom
he mistakenly believes will not report it to the authorities, cf. Hoffa v. United States, 385 U.
S. 293 (1966), he is normally accountable for his
actions and must bear any adverse consequences that result. Such
information has not in any sense been obtained because the
accused's will has been overborne, nor does it result from any
"unfair advantage" that the State has over the accused: the accused
is free to keep quiet and to consult with his attorney if he so
chooses. In this sense, the decision today and the result in Massiah are fundamentally inconsistent with traditional
notions of the role of the attorney that underlie the Sixth
Amendment right to counsel.

															To the extent that Massiah relies on Powell v.
Alabama, 287 U. S. 45 (1932), in concluding that the confrontation in that case was a
"critical" stage of the proceedings, 377 U.S. at 377 U. S. 205 , Massiah reads the language of Powell out of
context. In Powell, the period between arraignment and
trial was critical because the defendants had no opportunity
whatsoever to consult with an attorney during that time, and thus
they were altogether deprived of legal assistance in the
investigation of their case and the preparation of a defense. The
Court today similarly takes an overly broad view of the stages
after the commencement of formal criminal proceedings that should
be viewed as "critical" for purposes of the Sixth Amendment. And it
is not amiss to point out that Powell was decided
solely Page 447 U. S. 295 on the basis of the Due Process Clause of the Fourteenth
Amendment long before the Court selected the Sixth Amendment as one
that the Fourteenth Amendment "incorporated" and made applicable
against the States as well as the United States. See Gideon v.
Wainwright, 372 U. S. 335 (1963). B Massiah also relied heavily on a concurring opinion of
its author in Spano v. New York, 360 U.
S. 315 (1959), which expressed the notion that the
adversary system commences with indictment, and should be followed
by arraignment and trial. Id. at 360 U. S. 327 (STEWART, J., concurring). Spano, however, was a coerced
confession case in which the accused was interrogated for eight
hours after he had been indicted until he confessed. While it is
true that both the Fifth and Sixth Amendments reflect the Framers'
intent to establish essentially an accusatory, rather than an
inquisitorial, system of justice, neither suggests by its terms a
rigid dichotomy between the types of police activities that are
permissible before commencement of formal criminal proceedings and
those that are subsequently permissible. More specifically, there
is nothing in the Sixth Amendment to suggest, nor does it follow
from the general accusatory nature of our criminal scheme, that
once the adversary process formally begins the government may not
make any effort to obtain incriminating evidence from the accused
when counsel is not present. The role of counsel in an adversary
system is to offer advice and assistance in the preparation of a
defense and to serve as a spokesman for the accused in technical
legal proceedings. And the Sixth Amendment, of course, protects the
confidentiality of communications between the accused and his
attorney. But there is no constitutional or historical support for
concluding that an accused has a right to have his attorney serve
as a sort of guru who must be present whenever an accused has an
inclination to reveal incriminating information to anyone who acts
to elicit such information at the Page 447 U. S. 296 behest of the prosecution. To the extent the accused is
protected from revealing evidence that may be incriminatory, the
focus must be on the Fifth Amendment privilege against compulsory
self-incrimination. See, e.g., Spano v. New York, supra; Brown
v. Mississippi, 297 U. S. 278 (1936); Ashcraft v. Tennessee, 322 U.
S. 143 (1944). [ Footnote
3/5 ] C The objectives that underlie the exclusionary rule also suggest
that the results reached in Massiah and the decision today
are incorrect. Although the exclusion of reliable, probative
evidence imposes tremendous costs on the judicial process and on
society, see, e.g., Stone v. Powell, 428 U.
S. 465 (1976), this Court has nonetheless imposed a rule
for the exclusion of such evidence in some contexts in order to
deter unlawful police activity. See, e.g., Weeks v. United
States, 232 U. S. 383 (1914); Mapp v. Ohio, 367 U. S. 643 (1961). In cases in which incriminating statements made by the
accused are entirely voluntary, however, and the government has
merely encouraged a third party to talk to the accused and report
any incriminating information that the accused might reveal, there
is, in my view, no valid justification for the exclusion of such
evidence from trial. [ Footnote
3/6 ] Page 447 U. S. 297 Ordinary citizens are expected to report any criminal activity
they might observe, and they are often required, under pain of
compulsory process, to reveal information that may incriminate
others, even their friends and relatives. It generally does not
matter that the information was obtained as a result of trust or
confidence that develops from friendship or family ties. The
incriminating information may still be obtained through use of the
subpoena power, and in many instances, of course, it will be
voluntarily revealed by the citizen interested in the enforcement
of the laws.

															In cases such as this one and Massiah, the effect of
the governmental action is to encourage an informant to reveal
information to the authorities that the ordinary citizen most
likely would reveal voluntarily. While it is true that the
informants here and in Massiah were encouraged to "elicit"
the information from the accused, I doubt that most people would
find this type of elicitation reprehensible. It involves merely
engaging the accused in conversation about his criminal activity,
and thereby encouraging him voluntarily to make incriminating
remarks. There is absolutely no element of coercion, nor is there
any interference whatsoever with the attorney-client relationship.
Anything the accused might reveal to the informant should, as with
revelations he might make to the ordinary citizen, be available for
use at trial. This Court has never held that an accused is
constitutionally protected from his inability to keep quiet,
whether or not he has been encouraged by third-party citizens to
voluntarily make incriminating remarks. I do not think the result
should be different merely because the government has encouraged a
third-party informant to report remarks obtained in this fashion.
When an accused voluntarily chooses to make an incriminatory
remark Page 447 U. S. 298 in these circumstances, he knowingly assumes the risk that his
confidant may be untrustworthy. [ Footnote 3/7 ] II In holding that the Government has "deliberately elicited"
information from the accused here, the Court considers the
following factors to be relevant:

															"First, Nichols was acting under instructions as a paid
informant for the Government; second, Nichols was ostensibly no
more than a fellow inmate of Henry; and third, Henry was in custody
and under indictment at the time he was engaged in conversation by
Nichols." Ante at 447 U. S. 270 .
I disagree with the Court's evaluation of these factors, and would
conclude that no deliberate elicitation has taken place. A The Court acknowledges that the use of undercover police work is
an important and constitutionally permissible method of law
enforcement. Ante at 447 U. S. 272 .
As the Court observes, Hoffa v. United States, 385 U.S. at
302, for example, recognizes that the Constitution affords no
protection to "a wrongdoer's misplaced belief that a person to whom
he voluntarily confides his wrongdoing will not reveal it," even if
that person is an undisclosed informer. And in Weatherford v.
Bursey, 429 U. S. 545 , 429 U. S. 557 (1977), we acknowledged the "necessity of undercover work" and "the
value it often is to effective law enforcement." See also e.g.,
United States v. Russell, 411 U. S. 423 , 411 U. S. 432 (1973); United States v. White, 401 U.
S. 745 , 401 U. S. 752 (1971). Page 447 U. S. 299 The Court nonetheless holds that, once formal criminal
proceedings have commenced, such undercover activity in some
circumstances may not be constitutionally permissible even though
it leads to incriminating statements by an accused that are
entirely voluntary and inherently reliable. The reason for this
conclusion is not readily apparent from the Court's opinion.

															The fact that police carry on undercover activities should not
automatically be transmuted because formal criminal proceedings
have begun. It is true that, once such proceedings have commenced,
there is an "adversary" relationship between the government and the
accused. But an adversary relationship may very well exist prior to
the commencement of formal proceedings. And, as this Court has
previously recognized, many events, while perhaps "adversarial,"
are not of such a nature that an attorney can provide any special
knowledge or assistance to the accused as a result of his legal
expertise. See, e.g., United States v. Ash, 413 U.
S. 300 (1973) (no right to an attorney at pretrial
photographic identifications at which the accused is not present); Gilbert v. California, 388 U.S. at 388 U. S. 267 (no right to an attorney at taking of handwriting exemplars). When
an attorney has no such special knowledge or skill, the Sixth
Amendment does not give the accused a right to have an attorney
present.

															In addition, the mere bringing of formal proceedings does not
necessarily mean that an undercover investigation or the need for
it has terminated. A person may be arrested on the basis of
probable cause arising in the immediate aftermath of an offense and
during early stages of investigation, but before the authorities
have had an opportunity to investigate fully his connection with
the crime. And for the criminal, there is no rigid dichotomy
between the time before commencement of formal criminal proceedings
and the time after such proceedings have begun. Once out on bail
the accused remains free to continue his criminal activity, and
very well may decide to do so. See, e.g., Rogers v. United
States, 325 Page 447 U. S. 300 F.2d 485 (CA10 1963), cited in Massiah v. United
States, 377 U.S. at 377 U. S. 212 (WHITE, J., dissenting). Indeed, in Massiah itself, there
was evidence that, after indictment, one of the defendants
attempted to persuade a Government agent to go into the narcotics
business with him. Id. at 377 U. S.
212 -213 (WHITE, J., dissenting). As the Court stated in Massiah :

															"We do not question that, in this case, as in many cases, it was
entirely proper to continue an investigation of the suspected
criminal activities of the defendant and his alleged confederates,
even though the defendant had already been indicted." Id. at 377 U. S. 207 .
I would hold that the Government's activity here is merely a
continuation of its lawful authority to use covert operations in
investigating a criminal case after formal proceedings have
commenced. [ Footnote 3/8 ] B The Court secondly states that, here, the informant ostensibly
was no more than a fellow inmate, and thus the conversation
"stimulated" by him may lead the accused to communicate information
that he would not intentionally reveal to persons known to be
government agents, who are "arm's length" adversaries. While the
Court deems relevant the question whether the informant took active
steps as a result of a prearranged deal with the Government to
elicit incriminating information from the accused, ante at 447 U. S. 273 ,
[ Footnote 3/9 ] I do not think
this Page 447 U. S. 301 type of encounter is one that is properly viewed as a critical
stage at which counsel is necessary to provide guidance or
protection to the accused to enable him to cope with unfamiliar
legal proceedings, or to counterbalance the expertise of a
professional prosecutor. Rather, as previously discussed, when the
accused voluntarily reveals incriminating information to a third
party in this context, I do not think there is any justification
for excluding his admissions from trial, whether or not the third
party was acting at the behest of the prosecution. C Finally, the Court considers relevant the fact that, because the
accused is confined and in custody, "subtle influences" are present
"that will make him particularly susceptible to the ploys of
undercover agents." Ante at 447 U. S. 274 .
An appeal to an accused's conscience or willingness to talk,
however, does not, in my view, have a sufficiently overbearing
impact on the accused's will to warrant special constitutional
protection.

															In the instant case, for example, if the informant had been in
the cell next to respondent and overheard him make incriminating
statements to his cellmate, no Sixth Amendment violation would have
occurred. See, e.g., United States v. Hearst, 563 F.2d
1331, 1347-1348 (CA9 1977), cert. denied, 435 U.
S. 1000 (1978). In such circumstances, it would be clear
that the Government had engaged in no affirmative conduct
specifically Page 447 U. S. 302 designed to extract incriminating statements from the accused.
The same would be true if the accused made a statement that a
prison guard happened to overhear. See, e.g., United States v
Barfield, 461 F.2d 661 (CA5 1972). I think there likewise is
no Sixth Amendment violation when the accused's cellmate initiates
conversation with him, and the accused makes incriminatory
admissions. The fact that the cellmate is an informant has no
impact on the accused, because the informant appears to him to be
an ordinary cellmate. Whether the accused makes any statements is
therefore dependent on his own disposition to do so, despite the
fact that he is confined in a cell. III Finally, I disagree with the Court's reading of the facts,
though that reading obviously narrows the scope of its holding.
Here the District Court found that the Government did not employ
Nichols to question respondent or to seek information from him, but
merely to report what he heard. The Government had no part in
having Nichols placed in the jail cell with respondent. App. to
Pet. for Cert. 39a. And the record, in my view, fails to support
the conclusion that Nichols engaged in any affirmative conduct to
elicit information from respondent. The Court of Appeals did not
either explicitly or implicitly find to the contrary. Thus, this
Court's factual conclusions are not supported by the findings of
the District Court. I consequently would conclude, as did the
District Court, that here respondent has not been denied his Sixth
Amendment right to counsel.

															For the foregoing reasons, I would reverse the judgment of the
Court of Appeals.

															[ Footnote 3/1 ]

															The Court observed:

															"It is not enough to assume that counsel . . . precipitated into
the case [on the morning of the trial] thought there was no
defense, and exercised their best judgment in proceeding to trial
without preparation. Neither they nor the court could say what a
prompt and thoroughgoing investigation might disclose as to the
facts. No attempt was made to investigate. No opportunity to do so
was given. Defendants were immediately hurried to trial. Chief
Justice Anderson, after disclaiming any intention to criticize
harshly counsel who attempted to represent defendants at the
trials, said: '. . . The record indicates that the appearance was
rather pro forma than zealous and active. . . .' Under the
circumstances disclosed, we hold that defendants were not accorded
the right of counsel in any substantial sense. To decide otherwise
would simply be to ignore actualities."

															287 U.S. at 287 U. S.
58 .

															[ Footnote 3/2 ]

															This rationale has also been applied to the arraignment, .where
"[a]vailable defenses may be as irretrievably lost, if not then and
there asserted, as they are when an accused represented by counsel
waives a right for strategic purposes," Hamilton v.
Alabama, 368 U. S. 52 , 368 U. S. 54 (1961), and to a preliminary hearing, where such defenses may
similarly be lost when the accused enters his plea. White v.
Maryland, 373 U. S. 59 (1963). See also United States v. Wade, 388 U.
S. 218 (1967) (lineup); Mempa v. Rhay, 389 U. S. 128 (1967) (combination probation-revocation and sentencing hearing); Coleman v. Alabama, 399 U. S. 1 (1970)
(preliminary examination); Moore v. Illinois, 434 U.
S. 220 (1977) (one-person showup at a hearing, which
combined the functions of a preliminary arraignment and preliminary
examination, that was adversary in nature and at which the accused
was entitled to move for suppression of evidence and dismissal of
charges).

															[ Footnote 3/3 ]

															As this Court stated in Ash, the

															"historical background suggests that 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."

															413 U.S. at 413 U. S. 309 .
The English common law rule, which severely limited the right of a
person accused of a felony to consult with counsel, was apparently
rejected by the Framers as inherently irrational. Id. at 413 U. S.
306 -307.

															[ Footnote 3/4 ]

															Any dealings that an accused may have with his attorney are, of
course, confidential, and anything the accused says to his attorney
is beyond the reach of the prosecution. But this Court has never
held, nor does it hold today, that a confrontation or stage of the
proceedings is critical because it may lead to the accused's
conviction. Rather, the test under the Sixth Amendment as
recognized in Ash "call[s] for examination of the event in order to determine
whether the accused required aid in coping with legal problems or
assistance in meeting his adversary." Id. at 413 U. S.
313 .

															[ Footnote 3/5 ]

															Whatever may be the appropriate role of counsel in protecting
the accused's privilege against compulsory self-incrimination, see, e.g., Fare v. Michael C., 442 U.
S. 707 , 442 U. S. 719 (1979), when, as in this case, the accused merely engages in
conversation with someone whom he does not know to be a
governmental agent, the hazards of coercion and governmental
overreaching are entirely absent.

															[ Footnote 3/6 ]

															As stated by MR. CHIEF JUSTICE BURGER in his dissenting opinion
in Brewer v. Williams, 430 U. S. 387 , 430 U. S.
421 -22 (1977):

															"[U]nlawfully obtained evidence is not automatically excluded
from the factfinding process in all circumstances. In a variety of
contexts, we inquire whether application of the rule will promote
its objectives sufficiently to justify the enormous cost it imposes
on society."

															"As with any remedial device, the application of the rule has
been restricted to those areas where its remedial objectives are
thought most efficaciously served."

															" United States v. Calandra , [ 414 U.S.
338 , 414 U. S. 348 (1974)]; Accord, Stone v. Powell, supra at 428 U. S.
486 -491; United States v. Janis , [ 428 U.S.
433 (1976)]; Brown v. Illinois, 422 U. S.
590 , 422 U. S. 606 , 422 U. S.
608 , 422 U. S. 609 (1975)
(POWELL, J., concurring in part); United States v.
Peltier , [ 422 U.S.
531 , 422 U. S. 538 -539
(1975)]."

															(Footnote omitted.)

															[ Footnote 3/7 ] Cf. United States v. White, 401 U.
S. 745 , 401 U. S. 752 (1971), where this Court stated:

															"Inescapably, one contemplating illegal activities must realize
and risk that his companions may be reporting to the police. If he
sufficiently doubts their trustworthiness, the association will
very probably end, or never materialize. But if he has no doubts,
or allays them, or risks what doubt he has, the risk is his."

															[ Footnote 3/8 ]

															I also disagree with the Court that the fact that Nichols was a
paid informant and on a contingency fee is relevant in making this
determination. See ante at 447 U. S.
270 .

															[ Footnote 3/9 ]

															It bears emphasis that, even under the Court's holding today,
affirmative steps to induce the accused to reveal incriminating
information are required before there can be a "deliberate"
elicitation in violation of the Sixth Amendment. As noted by MR.
JUSTICE POWELL in his concurring opinion:

															" Massiah does not prohibit the introduction of
spontaneous statements that are not elicited by governmental
action. Thus, the Sixth Amendment is not violated when a passive
listening device collects, but does not induce, incriminating
comments. See United States v. Hearst, 563 F.2d 1331,
1347-1348 (CA9 1977), cert. denied, 435 U. S.
1000 (1978). Similarly, the mere presence of a jailhouse
informant who had been instructed to overhear conversations and to
engage a criminal defendant in some conversations would not
necessarily be unconstitutional. In such a case, the question would
be whether the informant's actions constituted deliberate and
'surreptitious interrogatio[n]' of the defendant. If they did not,
there would be no interference with the relationship between client
and counsel." Ante at 447 U. S. 276 .
Deliberate elicitation does not and cannot depend on the subjective
intention of the government or its informant to obtain
incriminatory evidence from the accused within the limits of the
law. Such an intention of course is the essence of conscientious
police work.

Summary: The Supreme Court held that the government violated the respondent's Sixth Amendment right to counsel by intentionally creating a situation where the respondent made incriminating statements to a paid government informant who was posing as a fellow inmate. The informant was instructed to be alert to any statements made by the respondent, and the respondent was unaware that the informant was working for the government. The Court ruled that the incriminating statements were "deliberately elicited" and should not have been admitted as evidence at trial.