Disentangling Miranda and Massiah: How to Revive the Sixth Amendment Right to Counsel as a Tool for Regulating Confession Law

44 Pages Posted: 19 Jan 2017 Last revised: 28 Jun 2017

Date Written: June 2017


Fifty years after Miranda v. Arizona, many have lamented the ways in which the Burger, Rehnquist, and Roberts Courts have cut back on Miranda’s protections. One underappreciated aspect of Miranda’s demise is the way it has affected the development of the pre-trial Sixth Amendment right to counsel guaranteed by Massiah v. United States. Much of the case law diluting suspects’ Fifth Amendment Miranda rights has bled over into the Sixth Amendment right to counsel cases without consideration of whether the animating purposes of the Massiah pre-trial right to counsel would support such an importation. This development is unfortunate given that the Fifth Amendment Miranda right and the Sixth Amendment right to counsel have different foci and serve different purposes.

Miranda has always been focused on dispelling the inherent compulsion in the custodial interrogation environment in order to ensure that suspects are not being compelled to give testimony against themselves in violation of the Self-Incrimination Clause. In contrast, the Sixth Amendment pre-trial right to counsel is grounded in concepts of fundamental fairness and equality and is designed to ensure that criminal defendants have attorneys to help them navigate the procedural and substantive complexities of the law and face the prosecutorial forces of organized society.

It is not too late to disentangle these two constitutional rights. In this essay, I discuss how to achieve such disentanglement at both the federal and state levels. I also highlight a couple of areas – fruits doctrine and warning and waiver principles – where such disentanglement could result in significant doctrinal distinctions that would create more robust Sixth Amendment protection for criminal defendants going forward.

Keywords: Right to Counsel, Miranda, Massiah, Confession

Suggested Citation

Primus, Eve Brensike, Disentangling Miranda and Massiah: How to Revive the Sixth Amendment Right to Counsel as a Tool for Regulating Confession Law (June 2017). Boston University Law Review, 2017; U of Michigan Public Law Research Paper No. 531. Available at SSRN: https://ssrn.com/abstract=2901504

Eve Brensike Primus (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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