The defendant was indicted and arrested for armed robbery of a bank. While he was in jail pending trial, government agents contacted an informant who was then an inmate confined in the same cellblock as the defendant. An officer instructed the informant to be alert to any statements made by prisoners but not to initiate conversations with or question the defendant regarding the charges against him. After the informant had been released from jail, he reported to the officer that he and the defendant had engaged in conversation and that the defendant made incriminating statements about the robbery. The officer paid the informant for furnishing the information.
Whether the use of the informant infringed on the defendant’s Sixth Amendment right to counsel?
Yes. By intentionally creating a situation likely to induce the defendant to make incriminating statements without the assistance of counsel, the government had violated defendant’s Sixth Amendment right to counsel.
The Court noted that the defendant’s Sixth Amendment right to counsel had attached at the time he made the statements. Further, the Court held that the government’s specific mention of the defendant to the undercover informant, who was paid on a contingency fee basis, constituted the type of affirmative steps to secure incriminating information from defendant outside the presence of his counsel. Under these facts, that the informant was acting under instructions as a paid informant for the government, and that the defendant was in custody and under indictment at the time, incriminating statements were “deliberately elicited” from the defendant within the meaning of Massiah. This is the type of evidence collection prohibited by the Sixth Amendment.
447 U.S. 264, 100 S. Ct. 2183 (1980)