Sacrificing Massiah: Confusion Over Exclusion and Erosion of the Right to Counsel

97 Pages Posted: 19 Mar 2011

Date Written: March 10, 2011


"Sacrificing Massiah" examines the legitimacy and impacts of Kansas v. Ventris’s explanation of the Massiah "exclusionary rule." It first traces the cryptic development of Massiah’s right to counsel-based suppression doctrine through a series of post-Massiah opinions. It then discusses Ventris - the first definitive explanation of the justifications for barring admissions deliberately elicited from uncounseled defendants. The Ventris Court classified Massiah suppression as a mere deterrent safeguard designed to prevent pretrial counsel deprivations and denied that defendants have the personal right not to be convicted based on uncounseled admissions. This understanding of Massiah is contrary to the original conception of exclusion. More important, it is irreconcilable with the nature of the pretrial assistance guarantee that is Massiah’s foundation. It ignores the core reasons for a right to pretrial assistance - to preserve a fair adversarial process and guard the accused against courtroom consequences of imbalanced clashes. Ventris rests on the indefensible premises that pretrial assistance exists for its own sake, that constitutional harm is inflicted only before trial, and that damage to an accused’s chances for acquittal at trial is not the constitutional concern. The article proffers reasons why the Court might have arrived at this entirely misguided conception, including: uncritical, monolithic thinking about "exclusionary rules;" palpable, abiding hostility toward constitutional suppression doctrines that defeat the search for truth; and dissatisfaction with Massiah’s extension of the right to counsel’s assistance. Finally, the article discusses the pragmatic consequences of Ventris’s vision, concluding that constraints imposed on Fourth Amendment exclusion will surely be imposed on Sixth Amendment suppression. As a result, the right to counsel "exclusionary rule" will be hobbled in ways that would be impossible were the true "constitutional right" character of Massiah’s evidentiary bar acknowledged. Ventris’s legacy - an array of "exclusionary rule" restrictions - will, in fact, threaten the vitality of the fundamental right to counsel itself.

Keywords: Massiah, Ventris, exclusionary rule, suppression, Sixth Amendment, right to counsel, deterrence, criminal procedure, confessions, deliberate elicitation

JEL Classification: K14

Suggested Citation

Tomkovicz, James J., Sacrificing Massiah: Confusion Over Exclusion and Erosion of the Right to Counsel (March 10, 2011). U Iowa Legal Studies Research Paper No. 11-12, Available at SSRN: or

James J. Tomkovicz (Contact Author)

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics