Massiah Rights

A.

Massiah v. United States provides that undercover police agents may not deliberately elicit statements from an indicted defendant about the crime for which D has been indicted.

B.

Brewer v. Williams provides that Massiah rights attach to charged or indicted defendants who are subjected to deliberately elicitation by police officers of statements concerning a charged crime.

C. Massiah Basics

1.
An adequate form of notice for Massiah warnings is the Miranda warnings.

2.
An adequate form of waiver for a Massiah waiver is a Miranda waiver. The Massiah waiver standard is “intentional relinquishment of a known right or privilege.”

3.
One form of invocation of the Massiah right is the Brewer type, where D contacted counsel after being charged and attempted to rely on counsel’s advice. Invocation is not necessary for a Massiah defendant who is questioned by undercover agents.

4.
Another form of invocation of the Massiah right is the Jackson type, where D requests the appointment of counsel after charge and during arraignment.

5.
The Massiah right is offense-specific, so statements obtained in violation of Massiah may be introduced at a trial for an uncharged crime but not at a trial for the charged crime.

6.
Under the “deliberate elicitation” standard, an undercover agent may be a passive listener and avoid a violation of Massiah by refraining from the initiation of conversations with a charged or indicted defendant.