Government Responsibility for the Acts of Jailhouse Informants Under the Sixth Amendment

Once a criminal investigation has identified a suspect, and adversarial proceedings have begun, the Sixth Amendment confers a right to be represented by counsel at the “critical stages” of the process. The Supreme Court has made clear that the government cannot circumvent this requirement merely by designating a civilian informant to engage in questioning on its behalf. Less clear is when the government is responsible for the actions of an informant; particularly in the case of jailhouse informants, incarcerated individuals who question fellow inmates, government responsibility is a difficult issue for which no clear legal standard has emerged. An examination of federal appellate and state supreme court case law reveals two distinct factors that courts accord the most weight in making their decisions: the agreement between the informant and the government, and the government’s targeting of a particular defendant. Federal appellate and state supreme courts disagree about whether one, both, or either are required. The relevant Sixth Amendment principle was first articulated in 1964 in United States v. Massiah. The defendant was a merchant seaman accused of possession of narcotics, and released on bail. Unbeknownst to him, government agents had struck a deal with his co-defendant to allow them to install a radio transmitter in his car and listen in on their conversation. The court held that the defendant’s “Sixth Amendment rights were violated by the use in evidence against him of incriminating statements which Government agents had deliberately elicited from him after he had been indicted and in absence of his retained counsel.” This is the core Massiah standard.