429 U.S. 545 (1977)
In the early morning hours of March 20, 1970, respondent Bursey and petitioner Weatherford, an undercover agent for the South Carolina State Law Enforcement Division, along with two others, vandalized the offices of the Richland County Selective Service in Columbia, South Carolina.1
Police were advised of the incident by Weatherford. Weatherford was arrested and charged along with Bursey to maintain his undercover status and his capability of working on other current matters.2 Weatherford was immediately released on bond and, continuing the masquerade, retained attorney Frank Taylor, Sr. Bursey was later released on bond and retained his own counsel, C. Rauch Wise.3
On two occasions thereafter and prior to trial, Weatherford met with Bursey and Wise, and the approaching trial was discussed.4 The District Court found that on neither occasion did Weatherford seek information from Bursey or his attorney or initiate the meetings.5 Weatherford was brought into the meetings by Bursey and Wise in an effort to obtain information about the plaintiff's defense.6 Weatherford advised them he would obtain a severance on the ground that he might be prejudiced by Bursey's reputation.7 Bursey and Wise raised the question of a possible informer but never asked Weatherford if he were an informer.8 At no time did Weatherford discuss with or pass on to his superiors or to the prosecuting attorney any details or information regarding Bursey's trial plans, strategy, or anything having to do with the criminal action pending against Bursey.9
Until the day of trial the prosecuting attorney did not plan to use Weatherford as a witness. Weatherford had not expected to be a witness and had anticipated continuing his undercover work.10 Weatherford was called for the prosecution and testified as to his undercover activities and gave an eyewitness account of the events of March 20, 1970. Bursey took the stand, was convicted, and then disappeared until apprehended some two years later, at which time he was incarcerated and forced to serve his 18-month sentence.11
Bursey then filed suit under 42 U.S.C. § 1983 against Weatherford and Strom. Strom was the head of the South Carolina State Law Enforcement Division. Bursey asserted that the defendants had deprived him of his right to the effective assistance of counsel guaranteed him by the Sixth and Fourteenth Amendments as well as of his right to a fair trial guaranteed by the Due Process Clause of the Fourteenth Amendment. The case was tried without a jury. The District Court found for the defendants in all respects and entered judgment accordingly.12 The Court of Appeals for the Fourth Circuit reversed, and the Supreme Court granted the petition for certiorari filed by Weatherford and Strom.13
Whether the presence of an undercover state law enforcement agent at two pretrial meetings between a criminal defendant and his counsel, without the agent's disclosure of his identity or any communication of defense information to prosecutors, deprived the defendant of the effective assistance of counsel?14
The Sixth Amendment right to effective assistance of counsel, applicable to the states through the Fourteenth Amendment, is violated only when government intrusion into attorney-client communications results in the communication of defense strategy or trial plans to the prosecution or produces other substantial detriment to the defendant.15 Mere presence of an undercover agent who neither reports information nor uses it at trial does not constitute a violation.16 No per se rule applies.17
No. The District Court found that Weatherford communicated nothing at all to his superiors or to the prosecution about Bursey's trial plans or the upcoming trial.18 Weatherford's testimony for the prosecution revealed nothing said or done at the meetings between Bursey and Wise that he attended.19 None of the state's evidence was obtained as a consequence of Weatherford's participation in those meetings.20 The Court of Appeals erred in treating Weatherford as a member of the prosecuting team whose uncommunicated knowledge alone violated the right to counsel.21
As long as the information remained uncommunicated it posed no substantial threat to Bursey's Sixth Amendment rights.22
The presence of the undercover agent at the pretrial meetings did not deprive Bursey of the effective assistance of counsel.23
Related opinions on this issue
Justice Marshall dissented on the ground that governmental intrusions into confidential lawyer-client communications threaten both the fairness of trials and the right to effective assistance of counsel even without proof of intent to spy or actual transmission of information to prosecutors.24 He argued that the balance of forces is skewed when government witnesses can discover defense strategy by attending meetings. This allows them to formulate answers in advance.25
Defendants may be deterred from candid communications if such intrusions are permitted so long as no report is made.26 Marshall further contended that constitutional rights require breathing space. A prophylactic per se prohibition is essential because proving intent or disclosure is often impossible.27
He would have reaffirmed Black and O'Brien as establishing that any such interception automatically vitiates a conviction.28
Whether the prosecution's failure to disclose the undercover agent's identity until the day of trial, combined with the agent's statement that he would not testify, deprived the defendant of due process of law?29
The Due Process Clause does not require the prosecution to reveal before trial the names of all witnesses who will testify unfavorably or to disclose an informant's identity and anticipated testimony in advance.30 Brady v. Maryland imposes a duty to disclose evidence favorable to the accused upon request but creates no general constitutional right to discovery.31 Surprise from an unanticipated witness does not alone deny a fair trial absent deliberate misrepresentation or substantial prejudice.32
No. There was no deliberate misrepresentation because the trial court found that until the day of trial Weatherford did not expect to be called as a witness and did not know that he would testify.33 Brady is not implicated where the only claim is that the state should have revealed it would present the eyewitness testimony of a particular agent.34 There is no constitutional right to plea bargain or to investigate a witness in advance for impeachment.35 The disadvantage to Bursey was no more than exists in any case where the state presents very damaging evidence that was not anticipated.36
There was no objection at trial, no request for a continuance, and no indication of substantial prejudice.37
The prosecution's failure to disclose the undercover agent's identity until the day of trial, combined with the agent's statement that he would not testify, did not deprive Bursey of due process of law.38