Michigan v. Harvey/Dissent Stevens

by John Paul Stevens

Justice STEVENS, with whom Justice BRENNAN, Justice MARSHALL, and Justice BLACKMUN join, dissenting.

The question presented by this case, as I understand it, is whether the State may initiate a private interview with an indicted and represented defendant to obtain impeachment evidence for use at trial. The answer to that question should be plain: "The Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a 'medium' between him and the State." Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 487, 88 L.Ed.2d 481 (1985). This right to rely on counsel applies whether the State is seeking evidence for use in its case in chief, rebuttal evidence, information about trial strategy, or material for use as impeachment.

The Court, couching its conclusion in the language of "prophylactic rules," seemingly answers this question in the affirmative. It reasons as follows: Although Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), is based on the Sixth Amendment, it protects only Fifth Amendment values; the Fifth Amendment does not prohibit the introduction of statements taken after the accused has invoked his right to counsel for use as impeachment; therefore, the Sixth Amendment, as interpreted in Jackson, does not prohibit the use of evidence taken in violation of its strictures for impeachment at trial. The Court's syllogism is flawed from the beginning. Only two Terms ago, we made clear that the constitutional rule recognized in Jackson is based on the Sixth Amendment interest in preserving "the integrity of an accused's choice to communicate with police only through counsel." Patterson v. Illinois, 487 U.S. 285, 291, 108 S.Ct. 2389, 2394, 101 L.Ed.2d 261 (1988). The Court should acknowledge as much and hold that the Sixth Amendment is violated when the fruits of the State's impermissible encounter with the represented defendant are used for impeachment just as it is when the fruits are used in the prosecutor's case in chief. I

To explain the error of the Court's analysis, it is appropriate to start where the Court does with the difference between the Fifth and Sixth Amendments and the values each serves. The Fifth Amendment protects against compelled self-incrimination. ^[1] It prevents a criminal defendant from being made " 'the deluded instrument of his own conviction.' " Culombe v. Connecticut, 367 U.S. 568, 581, 81 S.Ct. 1860, 1867, 6 L.Ed.2d 1037 (1961) (opinion of Frankfurter, J.) (quoting 2 W. Hawkins, Pleas of the Crown 595 (8th ed. 1824)). Our decisions in Miranda and its progeny primarily safeguard that right against "the compulsion inherent in custodial surroundings." Miranda v. Arizona, 384 U.S. 436, 458, 86 S.Ct. 1602, 1619, 16 L.Ed.2d 694 (1966). The initiation by the police of contact with an unrepresented defendant, after the invocation of the right to counsel during interrogation or at arraignment, creates an irrebuttable presumption that a defendant's waiver of his privilege against compelled self-incrimination is not voluntary. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Michigan v. Mosley, 423 U.S. 96, 110, n. 2, 96 S.Ct. 321, 329, n. 2, 46 L.Ed.2d 313 (1975) (WHITE, J., concurring in result); see also ante, at 350. But when that compulsion has been dispelled by the suspect's initiation of interrogation and voluntary waiver of his rights, there is no remaining Fifth Amendment objection to introduction at trial of a statement made outside the presence of counsel. See, e.g., Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983).

The Sixth Amendment right to counsel ^[2] is much more pervasive because it affects the ability of the accused to assert any other rights he might have. ^[3] It is indisputable that the Amendment assures " 'Assistance' at trial, when the accused [is] confronted with both the intricacies of the law and the advocacy of the public prosecutor." United States v. Ash, 413 U.S. 300, 309, 93 S.Ct. 2568, 2573, 37 L.Ed.2d 619 (1973); see also Perry v. Leeke, 488 U.S. 272, 279, 109 S.Ct. 594, 599, 102 L.Ed.2d 624 (1989); United States v. Cronic, 466 U.S. 648, 659, n. 25, 104 S.Ct. 2039, 2047, n. 25, 80 L.Ed.2d 657 (1984). That guarantee applies equally whether the defendant is presenting his case or the State is rebutting or impeaching the defendant's evidence. The State's interest in truth seeking is congruent with the defendant's interest in representation by counsel, for it is an elementary premise of our system of criminal justice " 'that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.' " Cronic, 466 U.S., at 655, 104 S.Ct., at 2045 (quoting Herring v. New York, 422 U.S. 853, 862, 95 S.Ct. 2550, 2555, 45 L.Ed.2d 593 (1975)); see also Penson v. Ohio, 488 U.S. 75, 84, 109 S.Ct. 346, 352, 102 L.Ed.2d 300 (1988).

The accused's right to the assistance of counsel is not limited to participation in the trial itself. A defendant is entitled to the aid of his lawyer from the time of arraignment "when consultation, thoroughgoing investigation and preparation [are] vitally important," Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 59-60, 77 L.Ed. 158 (1932), through the time of first appeal. See Penson, 488 U.S., at 85, 109 S.Ct., at 352; Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). Just as the Sixth Amendment's right to "the Assistance" of counsel necessarily encompasses a right to the effective assistance of counsel, see Cronic, 466 U.S., at 654-655, 104 S.Ct., at 2043-2045; Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377 (1940), so too the accused's right to have counsel "for his defence" in a "criminal prosecutio[n]" includes the right to rely on counsel after the government's role has shifted from investigation to accusation and the "defendant finds himself faced with the prosecutorial forces of organized society." Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972) (opinion of Stewart, J.); see also Moran v. Burbine, 475 U.S. 412, 430, 106 S.Ct. 1135, 1145-46, 89 L.Ed.2d 410 (1986). ^[4] Any lesser guarantee would provide insufficient protection against any attempt by the State to supplant "the public trial guaranteed by the Bill of Rights" with a "secret trial in the police precincts." Spano v. New York, 360 U.S. 315, 326, 79 S.Ct. 1202, 1209, 3 L.Ed.2d 1265 (1959) (Douglas, J., concurring). ^[5]

The Court correctly explains that Jackson was based in part on Fifth Amendment concerns extending "the Edwards protections" to the situation "when a suspect charged with a crime requests counsel outside the context of interrogation." Ante, at 350. However, that was not the whole of our opinion. Jackson is also firmly and explicitly rooted in our Sixth Amendment decisions holding that an indicted defendant has the "right to rely on counsel as a 'medium' between him and the State" whenever the State attempts to deliberately elicit information from him. See Maine v. Moulton, 474 U.S., at 176, 106 S.Ct., at 487; Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Jackson made clear that that right applied to the State's initial question whether the defendant would like to waive his constitutional rights as well as to any subsequent questions asking for particular incriminating information. 475 U.S., at 632, 106 S.Ct., at 1409. ^[6] The defendant may waive the right to be free from direct state communication by initiating contact with the State. But if the State initiates communication with a represented defendant outside the presence of counsel any subsequent waiver of the right to rely on counsel is not just "presumed invalid," ante, at 349; it "is invalid." Jackson, 475 U.S., at 636, 106 S.Ct., at 1411 (emphasis added). Preventing the State from directly contacting a represented defendant thus does not, as the Court states, " 'imprison a man in his privileges,' " ante, at 353 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 280, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942)); it simply recognizes and gives respect to the defendant's previously invoked choice to communicate with the State only through counsel. As Justice WHITE explained for the Court in Patterson v. Illinois, while "an accused [can make] an initial election as to whether he will face the State's officers during questioning with the aid of counsel, or go it alone," "the essence" of Jackson and our earlier decision in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), is "[p]reserving the integrity of an accused's choice to communicate with the police only through counsel." 487 U.S., at 291, 108 S.Ct., at 2394. Indeed, we expressly noted, in explaining why an unrepresented defendant could waive his Sixth Amendment rights without counsel being present, that "[o]nce an accused has a lawyer, a distinct set of constitutional safeguards aimed at preserving the sanctity of the attorney-client relationship takes effect." Id., at 290, n. 3, 108 S.Ct., at 2393, n. 3.

The right to consult with counsel prior to the commencement of an interrogation, moreover, cannot be limited to those interrogations that produce evidence for use in the State's case in chief. The interests of the defendant in the assistance of counsel in his confrontation with the prosecutorial forces of organized society extend to all efforts to elicit information from the defendant whether for use as impeachment or rebuttal at trial or simply to formulate trial strategy. Cf. Weatherford v. Bursey, 429 U.S. 545, 552, 554, 97 S.Ct. 837, 843, 51 L.Ed.2d 30 (1977); Wyrick v. Fields, 459 U.S. 42, 54, 103 S.Ct. 394, 399-400, 74 L.Ed.2d 214 (1982) (MARSHALL, J., dissenting). Under Estelle v. Smith, 451 U.S. 454, 469-471, 101 S.Ct. 1866, 1876-1877, 68 L.Ed.2d 359 (1981), for example, psychiatric evidence taken from a represented defendant without notice to counsel may not be introduced at the sentencing phase of a capital trial even when, under Fifth Amendment standards, the evidence is otherwise admissible. See Powell v. Texas, 492 U.S. 680, 681, 109 S.Ct. 3146, 3147-3148, 106 L.Ed.2d 551 (1989). Whether or not the accused has a right to have counsel present during a psychiatric examination, it is clear that there is a Sixth Amendment right to consult with counsel prior to submitting to the examination. 451 U.S., at 471, 101 S.Ct., at 1877; see also Satterwhite v. Texas, 486 U.S. 249, 254, 108 S.Ct. 1792, 1796, 100 L.Ed.2d 284 (1988). Those concerns are not limited to the capital sentencing context. In Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987), the Courtunan imously agreed that Estelle was applicable to the use of psychiatric evidence as rebuttal during the guilt stage of a noncapital trial, holding that before the State initiates a psychiatric examination of a defendant, defense counsel must be informed "about the scope and nature of the proceeding." 483 U.S., at 424, 107 S.Ct., at 2919; see also id., at 425, n. 21, 107 S.Ct., at 2919, n. 21; id., at 433-434, 107 S.Ct., at 2923-2924 (MARSHALL, J., dissenting). After the right to counsel has been implemented, the State may not short-circuit the adversarial system by confronting the defendant behind counsel's back. In this case, there should be no equivocation about the conclusion that the State violated the Sixth Amendment when it initiated a private interview with respondent outside the presence of counsel and used the products of the interview as impeachment at trial.

Instead of acknowledging that the facts describe a plain violation of respondent's Sixth Amendment right, the Court elides the issue by recharacterizing it as involving nothing more than the violation of a "prophylactic" rule. The purpose of this recharacterization is to enable the Court to draw an analogy to cases like Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 356, 98 L.Ed. 503 (1954), Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), and United States v. Havens, 446 U.S. 620, 626, 100 S.Ct. 1912, 1916, 64 L.Ed.2d 559 (1980), in which the Court held that the interests in deterring violations of Miranda and the Fourth Amendment were adequately served by excluding the illegally obtained evidence from the prosecutor's case in chief. The Court's analysis, however, simply ignores the reasons why evidence that is taken from an indicted defendant outside the presence of counsel is excluded from trial.

The Court has held that evidence seized in violation of the Fourth Amendment is excluded from a criminal trial not as a personal right of the criminal defendant but rather as a remedy for a wrong that is fully accomplished at the time the evidence is obtained. See, e.g., Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 3048-49, 49 L.Ed.2d 1067 (1976); United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974). Thus it is that evidence that is the product of an unreasonable search or seizure may nonetheless be introduced for impeachment purposes. Since its introduction causes no independent constitutional harm, the Court has reasoned that use of illegally obtained evidence for impeachment is not objectionable as long as the general efficacy of the exclusionary rule in deterring future violations of the Fourth Amendment is not thereby impaired. See Havens, 446 U.S., at 627-628, 100 S.Ct., at 1916-1917.

A similar approach has characterized the Court's analysis of introduction of statements taken in violation of a defendant's rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Court has held that Miranda establishes a prophylactic rule that "sweeps more broadly than the Fifth Amendment itself." Oregon v. Elstad, 470 U.S. 298, 306, 105 S.Ct. 1285, 1291-92, 84 L.Ed.2d 222 (1985); see New York v. Quarles, 467 U.S. 649, 654, 104 S.Ct. 2626, 2630-31, 81 L.Ed.2d 550 (1984); Michigan v. Tucker, 417 U.S. 433, 444, 94 S.Ct. 2357, 2363-64, 41 L.Ed.2d 182 (1974). Unwarned statements or statements improperly taken after the invocation of the right to counsel or the right to remain silent, such as respondent's statement here, must be excluded from the State's case in chief to ensure compliance with Miranda § dictates. But as long as the statement is not unconstitutionally coerced or involuntary, see New Jersey v. Portash, 440 U.S. 450, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1979); Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 2416, 57 L.Ed.2d 290 (1978), and its limited use would not eviscerate the deterrent effect of the exclusionary rule, the Court has held that it can be admitted for impeachment purposes. See Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).

The same is not so with respect to the Sixth Amendment. The exclusion of statements made by a represented and indicted defendant outside the presence of counsel follows not as a remedy for a violation that has preceded trial but as a necessary incident of the constitutional right itself. ^[7] "[T]he Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial." Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984). It is not implicated, as a general matter, in the absence of some effect of the challenged conduct on the trial process itself. See United States v. Cronic, 466 U.S., at 658, 104 S.Ct., at 2046; Weatherford v. Bursey, 429 U.S., at 558, 97 S.Ct., at 845; see also Nix v. Williams, 467 U.S. 431, 456, 104 S.Ct. 2501, 2515-16, 81 L.Ed.2d 377 (1984) (STEVENS, J., concurring in judgment). It is thus the use of the evidence for trial, not the method of its collection prior to trial, that is the gravamen of the Sixth Amendment claim. Although the defendant may not be entitled to a remedy in the form of reversal of the conviction if the evidence is harmless, that conclusion does not alter the fact that admission of the evidence is itself error. As we explained in Massiah, even when police investigation of a defendant may be "entirely proper," a defendant is "denied the basic protections of [the Sixth Amendment] guarantee when there [is] used against him at his trial evidence of his own incriminating words, which federal agents . . . deliberately elicited from him after he had been indicted and in the absence of his counsel." 377 U.S., at 206-207, 84 S.Ct., at 1203. See also Maine v. Moulton, 474 U.S., at 178-180, 106 S.Ct., at 488-489. There is no reason why that rule should not apply here.

The Court contents itself with the statement, drawn from Oregon v. Hass, supra, that there is only a "speculative possibility" that the State would be deterred from conducting a private interview with a represented defendant by a rule that excludes its product from use as impeachment at trial. Ante, at 351-352. Aside from the fact that the Court's assurance will provide scant comfort to the defendant, such as respondent, whose statement is admitted at trial, it is perfectly clear that the balance struck in Hass would not prevent the unlawful police and prosecutorial conduct here. The police misconduct in Walder, Harris, Havens, and Hass all occurred before the defendant had been formally charged, when the unsolved crime was still being investigated and the questioning of a suspect might be expected to produce evidence that is necessary to obtain an indictment. Knowledge that the improper conduct of an interrogation will destroy its use as substantive evidence provides a powerful incentive to follow the dictates of Miranda and its progeny with great care.

Once a defendant is formally charged with an offense, however, the State is no longer merely engaged in the task of determining who committed an unsolved crime; rather, it is preparing to convict the defendant of the crime he allegedly committed. "[T]he government's role shifts from investigation to accusation." Moran v. Burbine, 475 U.S., at 430, 106 S.Ct., at 1146. The State has obtained sufficient evidence to establish probable cause, see Patterson v. Illinois, 487 U.S., at 306, 108 S.Ct. at 2402 (STEVENS, J., dissenting), and the ethical prosecutor has sufficient admissible evidence to convict. ^[8] In practice, the investigation is often virtually complete. ^[9] Any subsequent investigation is a form of discovery. ^[10] The cost of an illegal interrogation is therefore greatly reduced. The police would have everything to gain and nothing to lose by repeatedly visiting with the defendant and seeking to elicit as many comments as possible about the pending trial. Knowledge that such conversations could not be used affirmatively would not detract from the State's interest in obtaining them for their value as impeachment evidence. ^[11]

In my dissenting opinion in Patterson v. Illinois, 487 U.S., at 301-302, 108 S.Ct., at 2399-2400, I expressed my concern about the Court's condonation of unethical forms of trial preparation. ^[12] Iun successfully argued that private interviews with a defendant conducted by the prosecutor for the purpose of obtaining evidence to be used against him at trial were so manifestly unfair that the practice should be flatly prohibited at any time after formal proceedings begin and the Sixth Amendment right attaches. The Court rejected my argument and held that a properly advised defendant whose right to counsel has not been implemented can validly waive his right to counsel after Miranda warnings have been administered. In explaining that holding, the Court recognized that the waiver issue cannot be resolved without "asking what purposes a lawyer can serve at the particular stage of the proceedings in question, and what assistance he could provide to an accused at that stage." 487 U.S., at 298, 108 S.Ct., at 2397-98. The Court identified the constitutional right as a "spectrum" with minimal protection at one extreme and the maximum at the other.

"At the other extreme, recognizing the enormous importance and role that an attorney plays at a criminal trial, we have imposed the most rigorous restrictions on the information that must be conveyed to a defendant, and the procedures that must be observed, before permitting him to waive his right to counsel at trial. See Faretta v. California, 422 U.S. 806, 835-836 [95 S.Ct. 2525, 2541-2542, 45 L.Ed.2d 562] (1975); cf. Von Moltke v. Gillies, 332 U.S. 708, 723-724 [68 S.Ct. 316, 323-324, 92 L.Ed. 309] (1948). In these extreme cases, and in others that fall between these two poles, we have defined the scope of the right to counsel by a pragmatic assessment of the usefulness of counsel to the accused at the particular proceeding, and the dangers to the accused of proceeding without counsel." Ibid.

In this case the Court has nothing to say about the point on this spectrum at which the interview with respondent took place and the standards that would be sufficient to establish a waiver of the Sixth Amendment right. At the outset, the Court seems to hold that impeachment is always permissible, ^[13] but in the end, after acknowledging that analysis of the waiver issue changes when a defendant obtains or requests counsel, ante, at 352, the Court simply asserts that the defendant must make "a knowing and voluntary waiver of the right to counsel." Ante, at 354. ^[14] The interview at issue in this case occurred after the right to counsel had been implemented, when respondent had been in custody for over two months and was to be tried in only a few days. Although the interview was conducted by a police officer rather than a lawyer, it was in many respects comparable to a pretrial deposition. The value of representation by counsel is evident. If respondent had been properly advised by counsel in preparation for such a deposition, he would have reviewed all of the facts he intended to describe in his trial testimony and been counseled not to omit any significant details, including presumably the three whose omission the State made use of as impeachment here. ^[15] Interrogation outside the presence of counsel at this advanced stage of the proceedings can impair counsel's representation of his client and interfere with trial strategy.

Regardless of whether or not the Court is prepared to accept a finding that respondent's participation in such a pretrial deposition was "voluntary"-as measured by some undisclosed standard-it surely denigrates the value of the constitutional interest in the assistance of counsel to condone such a shabby practice.

Apparently as a means of identifying rules that it disfavors, the Court repeatedly uses the term "prophylactic rule." See ante, at 345, 349, 350, 351, and 353. It is important to remember, however, that all rules of law are prophylactic. Speed limits are an example; they are designed to prevent accidents. The Sixth Amendment is another; it is designed to prevent unfair trials. An argument that a rule of law may be ignored, avoided, or manipulated simply because it is "prophylactic" is nothing more than an argument against the rule of law itself. The tragedy of today's decision is not merely its denigration of the constitutional right at stake; it also undermines the principle that those who are entrusted with the power of government have the same duty to respect and obey the law as the ordinary citizen.

I respectfully dissent.

Notes

1. "No person shall be . . . compelled in any criminal case to be a witness against himself. . . ." U.S.C.onst., Amdt. 5.
2. "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S.C.onst., Amdt. 6.
3. "An accused's right to be represented by counsel is a fundamental component of our criminal justice system. Lawyers in criminal cases 'are necessities, not luxuries.' Their presence is essential because they are the means through which the other rights of the person on trial are secured. Without counsel, the right to a trial itself would be 'of little avail,' as this Court has recognized repeatedly. 'Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have.' " United States v. Cronic, 466 U.S. 648, 653-654, 104 S.Ct. 2039, 2043-2044, 80 L.Ed.2d 657 (1984) (footnotes omitted).
4. The Court has recognized that the defendant has a right to counsel at a preliminary hearing where a plea is entered that may subsequently be introduced as evidence at trial, White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), at a pretrial lineup, where counsel is necessary to "assure a meaningful confrontation at trial," United States v. Wade, 388 U.S. 218, 236, 87 S.Ct. 1926, 1937, 18 L.Ed.2d 1149 (1967), and during a pretrial interrogation when the State attempts to elicit information directly from the accused. Brewer v. Williams, 430 U.S. 387, 401, 97 S.Ct. 1232, 1240-41, 51 L.Ed.2d 424 (1977); id., at 415 (STEVENS, J., concurring). See also Coleman v. Alabama, 399 U.S. 1, 9, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961). The Court has also applied the Sixth Amendment's protection to surreptitious government attempts to deliberately elicit information from the indicted defendant. See Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985); United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).
5. The application of the Sixth Amendment guarantee to these pretrial events constitutes simple recognition that under the modern system of law enforcement and public prosecution, the "criminal prosecution" to which the Sixth Amendment refers begins when formal charges are filed. As we explained in United States v. Wade, 388 U.S., at 224, 87 S.Ct., at 1934:
6. Indeed, we expressly foreshadowed the result in Jackson, and its grounding on the Sixth Amendment protection of the attorney-client relationship when we stated in Maine v. Moulton, 474 U.S., at 178, n. 14, 106 S.Ct., at 488, n. 14, that the defendant's right to counsel "was violated as soon as the State's agent engaged Moulton in conversation about the charges pending against him" without counsel being present.
7. As Professor Schulhofer has commented:
8. See ABA Standards for Criminal Justice 3-3.9(a) (2d ed. 1980) ("It is unprofessional conduct for a prosecutor to institute, or cause to be instituted, or to permit the continued pendency of criminal charges when it is known that the charges are not supported by probable cause. A prosecutor should not institute, cause to be instituted, or permit the continued pendency of criminal charges in the absence of sufficient admissible evidence to support a conviction").
9. Most of the evidence used in criminal prosecutions is compiled shortly after the offense and prior to the indictment. See id., at 11-43 ("Normally, prosecutorial investigation will have been completed prior to the filing of the accusatory instrument"); L. Weinreb, Denial of Justice 47 (1977); Kaplan, The Prosecutorial Discretion-A Comment, 60 Nw.U.L.Rev. 174, 180 (1965).
10. "The work of the agents was trial preparation, pure and simple. In a civil context I would consider this behavior unethical and unfair. In a criminal context I regard it as such a departure from 'procedural regularity' as to violate the due process clause of the Fifth Amendment." United States v. Springer, 460 F.2d 1344, 1355 (CA7) (dissenting opinion) (footnote omitted), cert. denied, 409 U.S. 873, 93 S.Ct. 205, 34 L.Ed.2d 125 (1972).
11. Moreover, the Court should not ignore the fact that its holding will inevitably discriminate against defendants who are too indigent to post bond. Those who are not held in custody after the attorney-client relationship has been formed are not exposed to daily contact with the police and therefore have little stake in the rule announced in this case. Because the indigent defendant has only occasional contact with his lawyer but is under the constant control of the prosecutor, it is he whose interests are most affected by the Court's ruling. The Court should at least pause before adopting a rule that can have such an obviously disparate impact on indigent defendants.
12. "The Court should not condone unethical forms of trial preparation by prosecutors or their investigators. In civil litigation it is improper for a lawyer to communicate with his or her adversary's client without either notice to opposing counsel or the permission of the court. An attempt to obtain
13. "The question presented in this case is whether the prosecution may use a statement taken in violation of the Jackson prophylactic rule to impeach a defendant's false or inconsistent testimony. We hold that it may do so." Ante, at 345-346.
14. "[W]e need not consider the admissibility for impeachment purposes of a voluntary statement obtained in the absence of a knowing and voluntary waiver of the right to counsel."
15. As the Court acknowledges, ante, at 347, and n. 2, the entire basis for the prosecutor's attempt to impeach respondent rested upon his failure to mention three details at his deposition. Respondent testified that he and the victim had smoked cocaine in the victim's house on the night of the incident and that another man and woman had been present during part of the time. App. 5-6. He testified at trial that he did not know the man's name, id., at 36, but in the statement he had indicated that he "thought" his name was "Michael." Id., at 37. Moreover, he also testified that this other man "had some caine, too, and he was smoking his. So we were like exchanging." Id., at 39. But the statement had only mentioned cocaine that respondent had provided. Ibid. Finally, although respondent testified that he pushed the victim away after she threatened him with a fork, he neglected to mention during his deposition that he wrested the fork from her and threw it to the floor. Id., at 44.