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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
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
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,
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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