16 Lewis & Clark L. Rev. [i] (2012)

handle is hein.journals/lewclr16 and id is 1 raw text is: Lewis & Clark
Law Review

VOLUME 16                      SPRING 2012                      NUMBER I
Sacrificing Massiah: Confusion Over Exclusion and Erosion of the
Right to Counsel
James J Tomkovicz..................................
In this Article, Professor Tomkovicz examines the Sixth Amendment
right-to-counsel-based exclusionary rule first announced in 1964, in
Massiah v. United States. The impetus for this examination is the
Supreme Court's 2009 ruling in Kansas v. Ventis-more specifically,
that decision's dubious and disingenuous explanation of the constitu-
tional rationale for Massiah's exclusion doctrine. The Article describes
the original vision of suppression that seemed to animate the ruling in
Massiah. It then traces the cryptic development of the Sixth Amend-
ment exclusion doctrine through nearly a half-century of post-Massiah
opinions. Next, Professor Tomkovicz focuses his attention on Ventris-
the first definitive exploration of the justification for barring admis-
sions deliberately elicited from uncounseled defendants. The Ventris
majority classified Massiah suppression as a mere deterrent safeguard
designed to prevent pretrial counsel deprivations. The Court rejected
the view that exclusion is a right-that is, that an accused has a per-
sonal entitlement not to be convicted based on uncounseled admis-
sions elicited by government agents. The Court's understanding of
Massiah exclusion runs contrary to the original conception. More
important, it is utterly irreconcilable with the nature of the guarantee
of pretrial legal assistance that is Massiah's foundation. It ignores the
core reasons for the pretrial extension of the right to trial assistance-
to preserve a fair adversarial process and to guard the accused against
negative courtroom consequences of imbalanced pretrial clashes. Ven-
tris rests on the indefensible premises that pretrial assistance exists for
its own sake, that constitutional harm is inflicted only before trial, and
that damage to an accused's chances for acquittal at trial is not the
constitutional concern. This Article proffers reasons why the Justices
might have arrived at this hopelessly misguided conception. Those
reasons include uncritical, monolithic thinking about exclusionary
rules, palpable, abiding hostility toward constitutional suppression
doctrines that defeat the search for truth, and dissatisfaction with Mas-
siah's extension of the right to counsel's assistance. Finally, the Article
discusses the pragmatic consequences of Ventriss impoverished vision,
concluding that constraints imposed on Fourth Amendment exclu-
sion-another purely deterrent bar to evidence-will surely be
imposed on Sixth Amendment suppression. As a result, the right-to-
counsel exclusionary rule will be constrained in ways that would be
impossible if the Justices acknowledged the true constitutional right
character of Massiah's evidentiary bar. According to Professor
Tomkovicz, Ventis's legacy-an array of restrictions on the reach of
the Sixth Amendment exclusionary rule-will pose a genuine threat
to the vitality of the fundamental right to the assistance of counsel.

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