Use of Elicited Statements

Use of Elicited Statements

Showing that government agents deliberately elicited a statement after the Sixth Amendment right attached answers only whether the right was violated. A second question follows, and it is the subject of this section: what may the prosecution still do with the statement? The answer depends on the use the prosecution has in mind. A statement offered in the case-in-chief, meaning the evidence the government presents to prove its own affirmative case, is treated differently from a statement offered for impeachment, meaning use of the statement to contradict the defendant's own testimony and attack its credibility. The remedy for a violation is exclusion from the case-in-chief, yet the same statements can be used to impeach a defendant who chooses to testify.¹

Michigan v. Harvey shows both uses on a single record. Harvey had been arraigned and given appointed counsel when, more than two months later, he told a police officer that he wanted to make a second statement but was unsure whether to consult his lawyer. The officer told him he did not need to, Harvey signed a waiver form, and he gave a statement describing his version of the events.² At trial the prosecutor conceded that the statement had not been properly taken under Miranda and so could not be used in the case-in-chief, but used it on cross-examination to show that Harvey had left out of it a detail he later claimed on the stand, that he had thrown a barbecue fork to the floor.³ The Michigan Court of Appeals held the statement inadmissible even for impeachment because it was taken in violation of the Sixth Amendment, and the Supreme Court reversed.⁴ The violation in Harvey was of the rule on police-initiated waivers that Montejo v. Louisiana later overruled, so the case matters here for its account of the consequences of a violation and says nothing about whether one occurred.⁵

The division between the two uses follows from what each use does. Exclusion from the case-in-chief takes away the benefit the government sought by eliciting the statement, because the purpose of drawing out the defendant's words was to prove guilt with them, and a rule that let those words in as substantive evidence would give officers no reason to wait for counsel. Impeachment is narrower. The statement comes in only if the defendant takes the stand, and only to test what the defendant says there. Barring that use as well would let a defendant testify inconsistently with an earlier voluntary statement, knowing that the exclusion shielded it from every use, and the remedy would then end up protecting false testimony. The next two sections take each use in turn, beginning with the case-in-chief rule and then turning to the impeachment exception.

Case-in-Chief Exclusion

The case-in-chief is the evidence the prosecution presents to prove its own affirmative case, and it is where the Sixth Amendment remedy does its main work. Once formal criminal proceedings begin, statements "deliberately elicited" from the defendant without an express waiver of the right to counsel are inadmissible in that part of the trial.⁶ The Court has described the rule as running through a line of decisions that begins with Massiah v. United States and extends through Maine v. Moulton, with United States v. Henry and Brewer v. Williams in the same line.⁷ Massiah supplies the template. The defendant had been indicted, arraigned, and released on bail when federal agents recruited a co-conspirator, Colson, to wear a wire and draw out admissions.⁸ The Court held that using against him at trial his own incriminating words, deliberately elicited after indictment and in his lawyer's absence, denied him the protection of the Sixth Amendment.⁹ Because the remedy attaches to the trial use of the words, it leaves the investigation itself alone: the Court accepted that continuing to investigate an indicted defendant and his confederates was entirely proper, and held only that the defendant's own statements could not be used against him at his trial.¹⁰

Exclusion from the case-in-chief is the natural remedy because of what the violation is for. Agents who draw statements out of an indicted defendant outside counsel's presence are trying to build the proof of guilt from the defendant's own words. If those words could still be offered as substantive evidence, the violation would pay for itself and officers would have no reason to wait for the lawyer. Excluding the statements removes that payoff at the point where the government would have collected it. The same deterrence logic explains why exclusion is the usual response to constitutional violations in evidence gathering; in the Fourth Amendment setting, the exclusionary rule rests chiefly on the expectation that exclusion deters future unlawful police conduct.¹¹

The rule has a built-in exception for waiver, and the burden of proving it falls on the State. For the fruits of post-indictment interrogation to be admissible in the case-in-chief, the State must prove a voluntary, knowing, and intelligent relinquishment of the right to counsel.¹² Under Patterson v. Illinois, a defendant who waives after receiving warnings equivalent to those prescribed by Miranda has generally made a knowing and intelligent waiver for purposes of post-indictment questioning.¹³ The standard is the same as the Miranda standard, and lower than the standard for waiving counsel at trial, because the lawyer's role during questioning is relatively simple and limited: the lawyer's job there is to advise whether to talk, and the warnings convey that choice.¹⁴ The point to carry forward is that the waiver requirement keeps the decision to proceed without counsel a real choice made by the defendant, so a statement that follows such a choice is outside the exclusion.

Two situations that differ in one fact show where the line falls. In Fellers v. United States, officers deliberately elicited statements from an indicted defendant at his home, with no counsel present and no waiver, and those home statements are the kind the Sixth Amendment keeps out of the prosecution's case-in-chief.¹⁵ Now add the missing element: an indicted defendant receives warnings equivalent to Miranda's and knowingly and intelligently waives counsel before speaking. The officers' purpose is unchanged, yet the statement can be used in the case-in-chief, because the waiver is what the first situation lacked.¹⁶

One more rule belongs here because it supplies the setting for Michigan v. Harvey. In Michigan v. Jackson, the Court created a bright-line presumption: once a defendant invokes the right to counsel, a later waiver is presumed invalid if it was secured in a police-initiated conversation, even if it would be voluntary, knowing, and intelligent under the traditional case-by-case inquiry.¹⁷ Statements obtained in violation of that presumption could not be admitted as substantive evidence in the case-in-chief.¹⁸ The concern behind the presumption was that officers might badger a defendant into waiving, and the presumption removed the need to prove badgering case by case.¹⁹ Montejo v. Louisiana later overruled Jackson, so the presumption no longer operates, but the way the Harvey record treated a statement taken in violation of it shows what the Court then said about the consequences of a violation.²⁰

The step that students skip is the last one. A defendant whose statement was properly excluded from the case-in-chief has not necessarily won on every use, because exclusion from the case-in-chief is not exclusion for every purpose.²⁵ The next section takes up the one use that survives.

Impeachment Exception

Exclusion from the case-in-chief does not end the prosecution's options, because a barred statement may still be put to a narrower use. In Michigan v. Harvey the prosecutor conceded that the defendant's second police statement could not come in as part of the government's proof. The prosecutor nonetheless used it on cross-examination to show that the defendant had left out a detail he later claimed on the stand, arguing that Harris v. New York permits impeachment with a voluntary statement.²⁷ The Michigan Court of Appeals held the statement inadmissible even for that purpose because it was taken in violation of the Sixth Amendment, and the Supreme Court reversed.²⁸ The resulting rule is that statements obtained in violation of the Sixth Amendment right to counsel may not be used in the case-in-chief, but may be used to impeach the defendant's own testimony if the court finds that the statements were voluntary and that the defendant knowingly and intelligently waived his rights.²⁹

The rule has two conditions, and each answers a different concern. The voluntariness condition guards against statements that are unreliable and against the conduct that produces them. A coerced statement is a weak indicator that the defendant is lying on the stand, and the pressure behind it offends constitutional values more deeply than a breach of a prophylactic rule does, so the impeachment exception does not reach it.³⁰ The waiver condition does the subtler work, and it explains why the Jackson presumption described earlier matters here. That presumption is a prophylactic rule, meaning a preventive safeguard set up around the right rather than the right itself. After a defendant asks for counsel, any waiver obtained in a police-initiated conversation is presumed invalid, even though some of those waivers would pass the traditional case-by-case inquiry into whether the defendant voluntarily, knowingly, and intelligently gave up counsel.³¹ A violation of the presumption therefore does not show that the defendant's choice to talk was uninformed. Because a prophylactic rule can be broken without denying the underlying constitutional right, its violation may carry a narrower remedy than a violation of the right itself.³² The impeachment inquiry accordingly sets the presumption aside and asks the traditional question directly: did the defendant in fact understand the right and choose to give it up? A yes answer means the safeguard's purpose has been met in fact.³³

Once both findings are made, the remaining objection to impeachment use is only that the defendant would be shielded from contradiction. That is the incentive problem the exception solves. A defendant who knew a barred statement could never be used would be free to testify to any account without fear of confrontation with earlier inconsistent words, and the shield of a prophylactic rule would become a license to commit perjury.³⁴ As the dissent describes the majority's reasoning, the extra deterrence that a stricter rule would buy was only a speculative possibility, so little was gained by paying that price.³⁵ The balance is borrowed from Fourth Amendment practice. In Walder v. United States the Court allowed unlawfully seized evidence to impeach a defendant who testified broadly in his own defense, because the interests served by exclusion were outweighed by the need to prevent perjury and protect the integrity of the trial.³⁶

The reasoning in Harvey rested on the prophylactic status of the Jackson presumption, which left open whether a statement obtained in violation of the Sixth Amendment itself could impeach. Kansas v. Ventris answered that question. The government conceded that it had violated the defendant's right to counsel by placing an informant in his cell, and when the defendant testified, the prosecution called the informant to contradict him.³⁷ The Court held the statements usable for impeachment. It reasoned that counsel is denied at the earlier critical stage that produced the statement, so the question at trial concerns only the scope of the remedy for a violation already completed, and barring impeachment would add little deterrence at a high cost to truthful testimony.³⁸ An undisclosed informant gives the defendant no chance to waive anything, since the idea of a knowing waiver does not fit that setting, so the Harvey waiver finding drops out and voluntariness is the remaining gate.³⁹

The dissent in Harvey supplies the competing view, and its premise is the one Ventris later rejected. On the dissent's account, Sixth Amendment exclusion is a necessary incident of the right itself, not a remedy for a wrong finished before trial as it is for Fourth Amendment and Miranda violations. The right exists to protect a fair trial, so the use of the evidence at trial, rather than the way it was collected, is the core of the claim, and admitting the statement is itself error.⁴⁰ The dissent added a practical objection. Once a defendant is formally charged, the government's role shifts from investigation to accusation, further contact is a form of discovery, and the cost of an unlawful interrogation is low, so police would have everything to gain and nothing to lose by repeatedly seeking statements that could at least impeach.⁴¹ That argument is a counter-view and not the rule, but it explains why the exception is bounded by voluntariness and not left open-ended.

The usual error is skipping the voluntariness check after finding a Sixth Amendment violation, as though every excluded statement were automatically available to impeach. The exception is wide enough to cover statements taken in violation of the Sixth Amendment, yet it stops at statements that were coerced.⁴⁶