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23 Am. Crim. L. Rev. 43 (1985-1986)
Maine v. Moulton: The Sixth Amendment and Deliberate Elicitation: The Defendant's Position

handle is hein.journals/amcrimlr23 and id is 47 raw text is: MAINE V. MOULTON: THE SIXTH AMENDMENT AND DELIBERATE ELICITATION: THE DEFENDANT'S POSITION David Cluchey* Maine v. Moulton-presents the Supreme Court with the opportunity to distinguish further those circumstances in which the government will be prohibited from using in the trial of a pending charge, incriminating statements obtained from a defendant by an undercover agent after that defendant's sixth amendment right to counsel has attached.' In Massiah v. United States,' the Supreme Court held that in- criminating statements are inadmissible in the trial of a pending charge when they have been deliberately elicited by federal agents or their informants after the defendant has been indicted on the charge.' The Supreme Court elaborated on the meaning of Massiah in United States v. Henry.' In Henry, the Court concluded that a defendant's incriminating statements to an undercover government agent made while the defendant was in custody after indictment must be excluded at trial.' The Court reasoned that under such circumstances, the government had intentionally created a situation likely to induce Henry to make incriminating statements without the assistance of counsel.' Although the Court's decision in Henry represents a further elaboration of Massiah, substantial uncertainty still exists as to the circumstances in which Massiah will prohibit the admission of incriminating statements. Three circuits have considered this question. One circuit has prohibited the admis- sion of incriminating statements regardless of the underlying circumstances surroun- ding the elicitation of those statements.' Two circuits have taken the position that in certain limited circumstances the Massiah prohibition will not apply, and a defen- dant's statements will be admissible in the trial of a charge pending at the time the statements were obtained. In Maine v. Moulton, the State contends that because the actual meeting at which the incriminating statements were obtained was arranged by the defendant, not the undercover agent, and because the Maine law enforcement agents were engaged in the investigation of an alleged new crime, not the pending charge, Massiah does not prohibit the admission of the incriminating statements at trial on the pending * Mr. Cluchey is a Professor of Law, University of Maine School of Law; Harvard Law School, 1973. 1. 481 A.2d 155, (Me. 1984), cert. granted, 105 S. Ct. 1167 (1985). 2. In United States v. Gouveia, 104 S. Ct. 2292 (1984), the Supreme Court reaffirmed its determina- tion that the sixth amendment right to counsel attaches at or after the initiation of adversary judicial proceedings against the defendant. Id. at 2297-98. 3. 377 U.S. 201 (1964). 4. Id. at 206. 5. 447 U.S. 264 (1980). 6. Id. at 274. 7. Id. 8. Mealer v. Jones, 741 F.2d 1451 (2d Cir. 1984), cert. denied, 105 S. Ct. 1871 (1985). 9. United States v. Darwin, 757 F.2d 1193 (1 1th Cir. 1985); United States v. DeWolf, 696 F.2d 1 (1st Cir. 1982); Grieco v. Meachum, 533 F.2d 713 (1st Cir.), cert. denied, 429 U.S. 858 (1976).

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