UNITED STATES DISTRICT COURTS CASES

 

United States ex rel. Magoon v. Reincke, 
304 F.Supp. 1014 (D.Conn. 1968), aff'd, 416 F.2d 69 (2d Cir. 1969)

Once attorney representing a suspected felon on whom investigation has focused contacts police officer in whose charge suspect is held and informs him that he does not want him interrogated further, admission into evidence of statements thereafter obtained from accused by interrogation in absence of counsel violates the accused's constitutional rights.

United States ex rel. Chabonian v. Liek, 
366 F.Supp. 72 (E.D.Wisc 1973)

Incriminating statement allegedly made by petitioner to detective, while those two and defendant's father and attorney and others were walking between DA's office and office of issuing magistrate, was erroneously received in evidence, since there was no evidence that petitioner waived his right to have his retained counsel present, no evidence the statement was spontaneous, unsolicited and voluntary, and since the statement, secured after counsel had been retained and in response to the detective's remark that, since petitioner was on probation, he should tell the truth or he could be hurt by it, was elicited in violation of petitioner's Sixth Amendment right to counsel.

United States v. Orman,
417 F.Supp. 1126 (D.Colo. 1976)

DEA's eavesdropping on defendant's conferences with public defender during which agents obtained information that would be of help to them in structuring an answer to affirmative defense based on alleged sexual activity between agents and defendant required dismissal of the indictment.

United States ex rel. Sanders v. Rowe, 
460 F.Supp. 1128 (N.D.Ill. 1978)

Under Illinois law, adversary judicial proceedings triggering 6th Am. right to counsel were commenced on issuance and filing of complaint and confessions obtained thereafter were required to be suppressed where obtained without advice of counsel or waiver of right to counsel. That second and third interrogations pertained to crimes different than offense for which complaint had been issued and filed and were conducted by different police agencies was irrelevant to 6th Am. violation, especially since all crimes occurred on same evening and appeared to be part of continuous and related series of criminal activity and defendant had never been released from custody and had not contacted his lawyer.

Forman v. Smith, 
482 F.Supp. 941 (W.D.N.Y. 1979)

Where, at time of police interrogation of petitioner, adversary proceedings had commenced, petitioner had retained counsel on criminal charges directly relating to murder charge, and officer knew or assumed that petitioner either had an attorney, officers acted impermissibly when they proceeded with questioning petitioner without first asking petitioner who his attorney was or notifying attorney of the questioning.

Cahill v. Rushen,
501 F.Supp. 1219 (E.D.Cal. 1980), aff'd, 678 F.2d 791 (9th Cir. 1982)

Police officer, who on day after prisoner's murder conviction brought him to his office for the express purpose of having him fulfill his pretrial promise to "tell all," deliberately elicited prisoner's confession and, thus, where such confession was made in the absence of counsel and without prisoner's waiver of his right to counsel, it could not be used against prisoner in a retrial following reversal of his conviction. Any statement deliberately elicited by law enforcement between sentencing and filing of notice of appeal, in the absence of counsel and without a waiver, has been obtained in violation of defendant's Sixth Amendment right to counsel and must be excluded upon retrial for the same crime.

Franklin v. Duncan, 
884 F.Supp. 1435 (N.D.Cal. 1995)

Defendant's Sixth Amendment rights violated when his daughter talked to prosecutor about visiting him in jail and attempting to get him to confess, prosecutor gave daughter his "blessing," and gave her the telephone number of a jail official to contact, and jail official made special arrangements for her to visit her father during nonvisiting hours.

United States v. Rodriguez, 
931 F.Supp. 907 (D.Mass. 1996)

Statements suppressed where state firearms charges were so intertwined with federal charge arising from same act, that all charges were required to be treated as one unit for purposes of defendant's Sixth Amendment right to counsel; therefore questioning defendant following arrest on federal charges and outside presence of counsel representing him on state charges, despite defendant's Miranda waiver, violated Sixth Amendment, where state charges were outstanding at time of federal interrogation, federal interrogation occurred after defendant was indicted and arrested on federal charges, federal investigator was aware of state charges, and federal investigator knew that defendant was represented by counsel on state charges at time of federal interrogation.

United States V. Reyes, 
934 F.Supp. 546 (S.D.N.Y. 1996)

Money and jewelry informant received from defendant as payment not to assist government in defendant's prosecution was evidence gleaned through exploitation of government's previous violation of defendant's Sixth Amendment right to counsel in instructing government informant, after defendant had been indicted, to record conversations he had with defendant in which they arranged for such payment, and therefore money and jewelry were inadmissible at trial under fruit of poisonous tree doctrine.

United States v. Orlando Perez and Teddy Ramos, 
948 F.Supp. 1191 (S.D.N.Y. 1996)

Repeated refusal by officers to specifically identify the charges against the defendant and officers' statements that "we know you are a [gang member]" constituted the functional equivalent of an "interrogation." Defendant did not initiate further discussions with officers by requesting information about the charges against him and thus did not constitute a waiver of his Sixth Amendment rights. Because the Government deliberately elicited the statement by "positing the guilt of the defendant" he could not implicitly waive his Sixth Amendment right to counsel and his statement is therefore inadmissible.

United States v. Fernandez, 
172 F.Supp.2d 1252 (C.D. Cal. 2001)

In a ruling on pretrial motions by several defendants, Massiah bars admission of testimony by a jailhouse informant regarding defendants’ statements and a birthday card. However, testimony about a "snitch letter" seen by the informant is found admissible. It was written by an individual not on trial in the instant case to one of the defendants, not to the jailhouse informant.

United States v. Rodriguez, 
2002 WL 313894 (S.D. N.Y. 2002) (not reported in F.Supp. 2d)

Defendant’s pretrial motion for a Massiah hearing is granted where defendant has made a sufficient factual showing in his motion and the government’s response fails to provide detailed information regarding when cooperation with the informant began and when defendant made the contested statement.

United States v. Smith, 
2004 WL 729137 (S.D. Iowa 2004)

Statements obtained during transport of indicted defendant violated the Sixth Amendment where federal agent made statements and asked questions that deliberately elicited incriminating information from defendant. Although defendant may have initiated contact, the agent asked follow-up questions and it’s unlikely that a reasonable person would not feel compelled to provide information to the agent.

 

STATE COURT CASES

 

Commonwealth v. McCarthy, 
200 N.E.2d 264 (Mass. 1964)

Admission of defendant's plainly prejudicial statement made to police over six months after he was indicted and in absence of counsel known to one officer was error; upon vacation of finding that one defendant had committed murder, justice required new trial for other defendant, where defendants were tried together, and finding that defendant had committed murder was required before other defendant could be convicted of murder.

People v. Arguello,
407 P.2d 661 (Cal. 1965)

Undercover agent's testimony regarding murder defendant's admissions made to him, which were tantamount to a confession, was inadmissible where statements were deliberately elicited from defendant by government agent following defendant's indictment, in absence of counsel and without defendant's knowledge that government agent was not an inmate as he represented himself to be.

Williams v. Florida, 
188 So.2d 320 (Fla.Dist.Ct.App. 1966)

Where police officers, knowing that defendant had been in jail for three weeks charged with first-degree murder, that he had already been indicted, and that he had a lawyer, took defendant out of his cell and transported him to a small room, closed the door, and thereafter obtained a confession, confession was inadmissible, even though defendant had not in terms demanded that his lawyer be present.

State v. Cowans, 
227 N.E.2d 201 (Ohio 1967)

Because defendant's confession was obtained by police after his indictment and in the absence of counsel, and there was no knowing and intelligent waiver of the accused's constitutional rights but rather a demand that they be honored, it was error to admit testimony concerning that confession into evidence.

State v. Witt, 
422 S.W.2d 304 (Mo. 1967)

Where defendant was represented by counsel when he first appeared in magistrate court to fix date for preliminary hearing, none of defendant's subsequent interrogators asked him if he wanted his lawyer present or told him of this right, and where only patrolman claimed that defendant was advised, not of his right to the presence of his lawyer during interrogation, but simply of general right to counsel, defendant's admissions were obtained in violation of his constitutional rights.

State v. Seal, 
160 N.W.2d 643 (S.D. 1968)

Defendant who claimed to have requested counsel at interrogation and who had reason to believe counsel was retained, did not waive his right to counsel during interrogation wherein he made incriminating statements, where police knew prior to interrogation that counsel had accompanied defendant for expected arraignment and where testimony of former prosecutor and sheriff, who was present at interrogation, concerning the interrogation was contradictory; defendant's incriminating statements made during the interrogation were inadmissible.

State v. Johns, 
177 N.W.2d 580 (Neb. 1970)

Where defendant, advised of right to counsel, related that he wished to waive rights and give statement but, in response to first question, related that he wanted counsel present, and defendant did not indicate that he wished to make a statement prior to officer's re-advising him of his rights two hours later, with result that defendant related that he wished to proceed in absence of counsel, and counsel's request of county attorney that interrogation not proceed in his absence was not conveyed to interrogating officers until one hour after its receipt and subsequent to confession, confession and defendant's statements were tainted and admission thereof was prejudicial error.

State v. McCorgary, 
543 P.2d 952 (Kan. 1975), cert. denied, 429 U.S. 867 (1976)

Defendant who was placed in a cell with a police informer who had secretly prearranged with police to try to get statements from defendant did not make a voluntary and knowing waiver of assistance of counsel with respect to statements made to the informer; testimony of informer about these statements was inadmissible.

People v. Hobson, 
348 N.E.2d 894 (N.Y. 1976)

Once attorney had been appointed for defendant to represent him during lineup, defendant while being held in custody could not thereafter waive his right to counsel in the absence of that attorney while being questioned by police officer.

State v. Peters, 
545 S.W.2d 414 (Mo.Ct.App. 1976)

Defendant's Sixth Amendment right to assistance of counsel was violated when police placed microphone in his former wife's hair and recorded and transcribed incriminating conversation during their visit at jail; such error was reversible error requiring new trial.

State v. Daugherty, 
562 P.2d 42 (Kan. 1977)

Where codefendant became informer as part of deal with the state, and prosecutors knew defendant was represented by counsel, evidence collected through a bug in codefendant's motel room was "fruit" of an interrogation conducted in contravention of Sixth Amendment right to counsel, and in closely contested case, such evidence, admitted as evidence of a previous similar crime, was not harmless.

People v. Colon, 
405 N.Y.S.2d 735 (N.Y.App.Div. 1978)

Statement made by defendant to police officers in the absence of counsel some five months after defendant had been indicted was not admissible on theory that statement was unrelated to matters which caused defendant's arrest because the unrelated matters were not discussed until after defendant's inculpatory statement had been made

People v. Boyd, 
406 N.Y.S.2d 963 (N.Y.Sup.Ct. 1978)

Where defendant was represented by counsel, his statements to officer, who limited himself to inquiries about corruption in Department of Correction, as to jury tampering in another matter as to which he was under indictment were required to be excluded, notwithstanding that the conversations did not actually amount to interrogation.

People v. Maerling, 
385 N.E.2d 1245 (N.Y. 1978)

Police officer, who engaged in long, two-way conversation whose direction became apparent almost from the beginning, trespassed on spirit, if not on letter, of principles concerning protection of defendant's right to counsel and thus jailhouse confession taken from defendant, who never talked to his lawyer before his waiver of counsel, violated defendant's right to counsel.

People v. Lebell, 
152 Cal.Rptr. 840 (Cal.Ct.App. 1979)

Where complaint had been issued charging defendant with murder, and arrest warrant issued thereon before police officer, who was acquaintance of defendant, visited him at his apartment, with officer being wired and accompanied by other officers who were stationed outside the apartment, recorded conversation was required to be suppressed as obtained in violation of right to counsel.

State v. Berry, 
592 S.W.2d 553 (Tenn. 1980), cert. denied, 449 U.S. 887 (1980)

Statements which defendant made, while in jail, to TBI agent posing as a prisoner after defendant had been indicted for murder and employed counsel and after law enforcement promised counsel there would be no interrogation, and which related to the murder case and to threats made against witnesses and plans for their extermination, were not admissible in murder prosecution even though the statements were voluntary.

State v. Webb,
 625 S.W.2d 281 (Tenn.Crim.App. 1980), aff'd, 625 S.W.2d 259 (1981), cert. denied, 456 U.S. 910 (1982)

 Where state placed undercover agent in cell with defendant for purpose of obtaining information concerning homicide for which defendant had been arrested, there was an "interrogation" and defendant's 6th Amendment right to counsel was subverted and, thus, admission of agent's testimony as to incriminating statements made to him by defendant was prejudicial error.

Malone v. State, 
390 So.2d 338 (Fla. 1980), cert. denied, 450 U.S. 1034 (1981)

Incriminating statements made by defendant to cellmate informant should have been suppressed because those statements, made in the absence of counsel, with no prior waiver of counsel, were directly elicited by the State's strategy deliberately designed to elicit incriminating statements; informant and police came up with an elaborate scheme to gain defendant's trust and to extract incriminating information from him.

State v. Mollohan, 
272 S.E.2d 454 (W.Va. 1980)

Where defendant, whose right to counsel attached at extradition hearing, was arrested in New Hampshire on murder charges, and troopers, threatened defendant with fingerprint evidence, played on defendant's avowed religious beliefs, and took advantage of his limited mental capacity over two-day period when he was isolated from everyone except preacher and troopers during transport to West Virginia, waiver of right to counsel, which occurred during trip, was coerced.

Loveless v. State, 
634 P.2d 941 (Alaska Ct.App. 1981)

Error in permitting psychiatrist to testify as to certain statements made to him by defendant following defendant's arrest was not harmless.

Iddings v. State, 
427 N.E.2d 10 (Ind.Ct.App. 1981)

State's use of informant, who was recruited to gather information from fellow prisoners and report it to sheriff in return for sheriff's help with charges pending against him, to obtain information about defendant, a fellow inmate at county jail, interfered with defendant's 6th Amendment right to counsel and it was not important that informant did not tell police about defendant's statements about gas station robbery until after informant was convicted.

People v. Pottruff, 
323 N.W.2d 402 (Mich.Ct.App. 1982)

Defendant's statement to police officer after polygraph examination, to which defendant and defense counsel had agreed, and after defendant was given Miranda rights was taken in violation of defendant's Sixth Amendment right to counsel and Fifth Amendment rights, no valid waiver having been shown, and, accordingly, admission of statement was error.

Williams v. State,
644 S.W.2d 891 (Tex.Ct.App. 1982)

In prosecution for voluntary manslaughter, trial court committed reversible error by allowing a jailmate of defendant to testify concerning oral statements made to jailmate by defendant while both were in jail without first conducting a Denno-type hearing outside presence of the jury as to whether defendant's statements were voluntary where they were used to negative and destroy defendant's self-defense theory, and to impeach her testimony.

People v. Superior Court of Fresno County, 
194 Cal.Rptr. 525 (Cal.Ct.App. 1983)

Statements by defendants to police informant during meetings arranged by the informant which occurred at time when the informant was receiving money for the information from the police were inadmissible as violative of defendants' Sixth Amendment rights, despite fact that the conversations were not held in a custodial setting and informant had not been instructed to interrogate either of the defendants.

McCubbin v. State, 
675 P.2d 461 (Okla.Crim.App. 1984)

Where informant was selected in advance by sheriff to obtain information about victim's death, and placed in jail with defendant pursuant to such arrangement, after defendant was arrested, charged and counsel had been appointed, sheriff deliberately enticed incriminating words from defendant in violation of the 6th Amendment. Admission was not harmless.

Farruggia v. Hedrick, 
322 S.E.2d 42 (W.Va. 1984)

Admission of statements made by defendant after indictment to accomplice who had been wired with two transmitters by sheriff's department without defendant's knowledge violated defendant's Sixth Amendment rights where statements were made in absence of counsel.

People v. Gonyea,
365 N.W.2d 136 (Mich. 1984)

Defendant did not waive right to counsel where, although he stated he did not need his attorney when detectives approached him after he was sentenced for second-degree murder guilty plea and asked him to help clear up unresolved matters in investigation, defendant specifically asked about attorney when detectives asked him to accompany them and retrace events of the eve of the killing, and where detectives lied that defense counsel had given permission to question him, when in fact defense counsel had refused permission. Under state constitution, statement was inadmissible for impeachment or substantive purposes.

People v. Otero, 
486 N.Y.S.2d 825 (N.Y.Crim.Ct. 1985)

In prosecution for murder, police tape recording of defendant's alleged attempt to bribe witness violated right to counsel and was inadmissible as evidence of defendant's consciousness of guilt; therefore, prosecution for murder and bribery would not be consolidated.

Woodson v. United States,
488 A.2d 910 (D.C. 1985)

Defendant not knowingly and intelligently waive 6th Amendment right to presence of counsel during interrogation about prior charge, even though he signed written waiver of Miranda rights following arrest for subsequent incident, where he was neither informed nor understood that right to counsel in prior matter was distinct from any other rights he might have, police never offered to call his attorney nor referred to attorney by name, and he did not know prior to waiving Miranda rights and prior to interrogation that he would be questioned about prior incident.

People v. Baker, 
476 N.E.2d 1227 (Ill. App. Ct. 1985)

Defendant's 6th Amendment right to counsel violated where FBI had two wired informants talking to defendant after indictment and appearance of counsel. State tried to justify violation by pointing to court order FBI had gotten allowing the recordings, and by arguing that defendant made the statements voluntarily. Court rejected this and went on to conclude that admission of the evidence was not harmless.

State v. Lee, 
1986 WL 2028 (Ohio App.) (unpublished)

Massiah violated where police set witness up to record conversations with defendant after right to counsel had attached. Police paid for witness' motel room and knew she would seek information about offense for which defendant had already been appointed counsel. Court rejected State's invitation to adopt the "rescue doctrine" allowing circumvention of right to counsel where defendant is endangering a witness.

State v. Nelsen, 
390 N.W.2d 589 (Iowa 1986)

Defendant's Sixth Amendment right to counsel attached upon county attorney's filing of complaint and issuance of summons, and her right to counsel was violated by State's trial use of incriminating statements made to probation officer without presence of counsel or valid waiver.

State v. Currington,
746 P.2d 997 (Idaho Ct. App. 1987)

Relief granted where informant was acting as State agent when he recorded conversation with defendant, for purposes of Sixth Amendment violation, although informant allegedly approached police for protection from defendant and was not paid for his services; informant was acting pursuant to instructions from employee of prosecutor's office when he made recording, and used equipment provided by that office.

People v. Hoskins,
523 N.E.2d 80 (Ill. App. Ct. 1988), appeal denied, 530 N.E.2d 256 (Ill. 1988)

Even though no murder charge had yet been filed against him, defendant's 6th Amendment right to counsel had attached at time he was rearrested for assault victim's murder, where murder arose out of same underlying facts as assault; five to ten-minute interval between officers' interview with defendant and his request for officers return so he could confess was not sufficient to remove taint of original, purposeful violation of 6th Amendment counsel rights.

State v. Sargent,
762 P.2d 1127 (Wash. 1988)

Probation officer violated defendant's Sixth Amendment right to counsel by obtaining written confession knowing that defendant's appeal was pending; officer knew that defendant intended to confess at interview but did not contact defendant's counsel, despite being instructed to do so.

Holloway v. State, 
780 S.W.2d 787 (Tex.Crim.App. 1989)

Defendant's unilateral waiver of 6th Amendment right to counsel prior to police initiated interrogation was invalid despite his having received Miranda warnings where right to counsel had attached and attorney-client relationship had been established; admission of confession obtained in violation of right to counsel was not harmless where only other direct evidence to prove that defendant's guilt was testimony of accomplice which was discredited.

State v. Clausell, 
580 A.2d 221 (N.J. 1990)

Defendant's right to counsel violated where detective, whom defendant called, recorded inculpatory statements of defendant who was represented by counsel, falsely told defendant he was not recording the conversations, and ignored defendant's assertion that he did not want to be questioned about the murder for which he was convicted.

People v. Harper,
279 Cal.Rptr. 204 (Cal.Ct.App. 1991)

Admissions made by defendant to correctional officer during incarceration to effect that he had threatened witness, in response to officer's questioning which occurred in absence of counsel, could not be admitted to impeach defendant's conflicting testimony; without admission, evidence that witness was threatened came solely from witness, which contradicted defendant's testimony and witness' credibility was undermined.

People v. Cribas, 
282 Cal.Rptr. 538 (Cal.Ct.App. 1991), cert. denied, 503 U.S. 951 (1992)

Incriminating statements by defendant during telephone conversation with rape victim following defendant's arrest and appointment of counsel were elicited in violation of defendant's 6th Amendment right to counsel; although conversation was initiated by defendant, victim was instructed by police to elicit statements concerning rape following previous call, and victim was staying at motel at taxpayer expense.

Commonwealth v. Moose,
 602 A.2d 1265 (Pa. 1992)

Inmate was state "agent," and thus Commonwealth knowingly circumvented defendant's 6th Amendment right to counsel when the inmate elicited confession from defendant after right to counsel had attached, even though inmate was not planted for purpose of gaining information from targeted defendants; inmate had been in jail for three years awaiting sentencing, Commonwealth repeatedly delayed sentencing every time inmate produced a new confession and Commonwealth was prepared to give inmate a lenient recommendation despite heinous charges filed against him.

Simpson v. United States,
 632 A.2d 374 (D.C. 1992)

Defendant's pretrial statements, taken in violation of his 6th Amendment right to counsel, could not be used for impeachment during murder trial; defendant had not been fully advised of Miranda rights, officer who interrogated defendant knew he had a lawyer at time he was interrogated and statements, made while defendant was hospitalized with self-inflicted stab wounds, were involuntary.

State v. Watkins,
617 A.2d 281 (N.J.Super.App.Div. 1992)

Evidence, secured through violation right to counsel, that defendant attempted to contrive alibi seriously struck at his credibility at trial, and thus constitutional error was not harmless beyond reasonable doubt; the evidence was obtained by inducing defendant to call prosecutor's investigator who purportedly would have supplied defendant with an alibi witness.

Sparks v. State,
1993 WL 151324 (Tenn. May 10, 1993)

Capital defendant granted resentencing. Court directed that evidence of conversation between defendant and codefendant, who agreed to wear a wire during his visit, which yielded incriminating statements, be excluded as a violation of Massiah.

State v. Hattaway, 
621 So.2d 796 (La. 1993)

Defendant's right to counsel under Louisiana Constitution violated where, after initiating criminal proceedings against him and causing counsel to be appointed, it removed defendant from parish without notice to counsel or trial court, transported him to another parish, and confined him without means of communication with his attorney, family, friends, or potential defense witnesses, and again when it obtained purported waiver of right to counsel and interrogated him in another parish in absence of and without notice to his attorney.

State v. Meeks, 
876 S.W.2d 121 (Tenn.Crim.App. 1993)

Defendant's 6th Amendment right to counsel violated when fellow inmate recorded two phone conversations with defendant and gave tapes to police; in exchange for inmate's assistance, authorities agreed to request his parole application be dropped, and thus inmate was acting as a police agent; moreover, fact that state might have legitimate reason for taping the conversations did not change result.

State v. Leadingham, 
438 S.E.2d 825 (W.Va. 1993)

While defendant is hospitalized in psychiatric facility for court-ordered psychiatric examination, sending undercover informant to facility to obtain incriminating statements without ascertaining mental condition violates due process.

In re Neely, 
864 P.2d 474 (Cal. 1993)

Defense counsel's failure to investigate adequately a factual basis for suppression of tape recording of conversation between defendant and codefendant on Massiah grounds, or to object on Massiah grounds, deprived defendant of competent representation; evidence indicated that, while acting as government agent, codefendant deliberately elicited incriminating information from defendant after defendant had been arrested and charged with crimes.

Jackson v. State,
643 A.2d 1360 (Del. 1994), cert. denied, 115 S.Ct. 956 (1995)

Friend of defendant who agreed to cooperate with police, using government recording equipment to tape telephone conversations with defendant, was acting as "state agent" for purpose of determining whether defendant's 6th Amendment right to counsel was violated; though defendant may have initiated telephone calls, friend deliberately elicited incriminating statements from him.

State v. Dixon,
916 S.W. 2d 834 (Mo. Ct. App. 1996)

Subsequent to defendant's was arrested for sexual abuse, arraignment, and appointment of an attorney, a service worker with the Division of Family Services interviewed him and obtained incriminating statements. As required under state law, the service worker turned the statements over to the police. The service worker did not ask the defendant if he was represented by an attorney or if he wanted an attorney present during the interview. Although she did advise him that any statements he made could result in criminal prosecution, she failed to advise him of his constitutional rights. In reversing the conviction, the Missouri Court of Appeals held that the service worker was acting as a government agent and thus was required to advise the defendant of his constitutional rights. Advising him any statements he made could lead to a criminal prosecution was inadequate and misleading as she knew a criminal prosecution had already been iniated and that she was going to share her information with the police.

Commonwealth v. Franciscus,
710 A.2d 1112 (Penn. 1998)

Defendant's convictions for first-degree murder, robbery, and possession of an instrument of crime were reversed due to the erroneous admission of incriminating statements deliberately elicited from defendant by a jailhouse informant after defendant's Sixth Amendment right to counsel had attached. The court rejected the state's contentions that the informant was not acting as a government agent since he had not been specifically instructed to target defendant. Instead the court looked to the existence of an "implicit understanding" between the state and the informant that he would be rewarded for supplying information, the fact that law enforcement officers had protected the informant when other inmates learned of his work as a snitch, and the fact that police officers supplied the informant with money in order to bolster his claims to other inmates that he had "connections" on the outside, and concluded that the informant was an agent of the prosecution. In addition, the court found that the informant "conducted a deliberate interrogation of [defendant] intended to evoke an inculpatory disclosure." Finally, the court made clear that defendant's rights under the Pennsylvania Constitution, as well as the Sixth Amendment to the United States Constitution, were violated by admission of the informant's testimony.

Brown v. State,
725 So.2d 1164, 1166 (Fla. Ct. App. 1998) (per curiam)

Defendant's convictions for attempted first-degree murder of a law enforcement officer and other offenses were reversed where, after defendant's cellmate offered assistance in obtaining incriminating statements, state agents promised to reward him for the information he obtained, a detective asked a jail officer to keep the informant and defendant together, and the detective arranged for a visit with the informant a few days later to collect any information he had obtained. In light of these facts, the trial court's conclusion that the state had "remained passive in its dealings with [the informant] was erroneous, and the admission of the informant's testimony, upon which the state's case "heavily relied," was not harmless.

Taylor v. State,
726 So.2d 841, 845 (Fla. Ct. App. 1999)

Defendant's conviction for dealing in stolen property was reversed due the erroneous admission against him of a statement made during custodial interrogation after his Sixth Amendment right to counsel had attached with respect to that charge. The interrogation was conducted by a law enforcement officer ostensibly inquire about the burglary during which the items defendant was later convicted of selling were stolen. In reversing defendant's conviction, the court acknowledged that the Sixth Amendment right to counsel is ordinarily "offense-specific," but found that here, "the facts of the charged [dealing in stoling property] and uncharged [burglary] offense are inextricably intertwined and, therefore, [defendant's] previously invoked right to counsel survived the police disclaimer concerning the dealing in stolen property charge."

State v. Dagnall, 
228 Wis.2d 495 (Wis. Ct. App. 1999), aff'd, 612 N.W.2d 680 (Wis. 2000)

Defendant's Sixth Amendment right to counsel was violated where detectives who traveled to Florida to retrieve him and return him to Wisconsin to face a charge of first degree intentional homicide questioned him despite defendant's statement that "My lawyer told me that I shouldn't talk to you guys," and the detectives' knowledge of a letter sent to law enforcement by defendant's attorney informing them of his representation of defendant and instructing them not to question defendant outside the attorney's presence. In reversing defendant's conviction, the court rejected the state's argument that the defendant's and the lawyer's letter should be considered in separately, finding instead that "the primary evidentiary points in the case bearing on [defendant's] invocation of the right to counsel . . . are to be considered not in isolation, but together." Viewed in that manner, the court concluded that these facts "would warrant a reasonable officer to understand that [defendant] was indeed invoking his right to counsel."

State v. Russell, 
112 Wash.App. 1007 (Wash.App. 1 2002) (UNPUBLISHED OPINION)

Defendant’s Sixth Amendment rights were violated when he was questioned by the police after asserting his right to counsel at a preliminary hearing. The proper standard for determining whether a Sixth Amendment violation has occurred remains "deliberate elicitation," not "knowing circumvention." The error was not harmless and the case is reversed and remanded.

Finney v. State, 
786 N.E.2d 764 (Ind.App. 2003)

When defendant’s Sixth Amendment rights have attached and defendant has retained an attorney, defendant has invoked his Sixth Amendment right to counsel. Statements subsequently given to police should have been suppressed. The Court emphasizes the inviolability of a defendant’s Sixth Amendment rights but finds that in this case the trial court’s failure to suppress the police officer’s testimony was harmless error in light of the overwhelming evidence of defendant’s guilt.

Lightbourne v. State, 
841 So.2d 431 (Fla. 2003)

Defendant’s third postconviction motion, including allegations of a Massiah violation, was denied. However, a concurring opinion highlights the problems with jailhouse informant testimony and urges the State, with a footnote to the Illinois Commission’s recommendations, to consider the long-term impact on a conviction’s finality when choosing whether to present such testimony.

People v. Roman, 
772 N.Y.S.2d 472 (N.Y. 2003)

The Sixth Amendment and NY state law barred admission in child sex abuse trial of defendant’s recorded statements trying to bribe government agent witness, even if the trial was consolidated with his bribery trial. However, the statement may be admitted in a separate bribery trial.

State v. Peterson,, 
663 N.W.2d 417 (Iowa 2003)

Defendant’s Sixth (and Fifth) Amendment rights were violated where detectives initiated interrogation after defendant’s Sixth Amendment rights attached and were invoked by defendant. Discussion during transport was a continuation of the previous interrogation at the prison. These statements and subsequent statements given at the police station should have been suppressed. Given that the key evidence against defendant was uncorroborated accomplice testimony, the error in admitting defendant’s statement was not harmless.

Baker v. State, 
853 A.2d 796 (Md.App. 2004)

Defendant’s Sixth Amendment rights were violated where defendant had been charged and released on bail and detective asked him the whereabouts of a witness in his case. Trial court’s focus on the incident as a chance encounter was misguided, as was its narrow view of ‘interrogation." The judgment is reversed and defendant’s statement is suppressed.

Commonwealth v. Cornelius,, 
856 A.2d 62 (Pa. 2004)

Defendant’s Sixth Amendment rights were violated when the police discussed his case with him after he requested an attorney at his arraignment and his statements made during a tour of the crime scene should have been suppressed. However, the trial court’s failure to suppress the statements was harmless error because pre-arraignment confessions and DNA evidence were overwhelming evidence of guilt.

State v. Anderson, 
593 S.E.2d 820 (S.C. 2004)

Defendant’s Sixth Amendment rights were violated where he was questioned by a police officer, after being arraigned and signing a request for a public defender. Signing the request was a valid invocation of rights, and the knowledge of one state actor (arraignment before the court) is imputed to other state actors (the police officer). Case was reversed and remanded.