In 1964, in Massiah v. United States, the Court had excluded a defendant's incriminating statements deliberately elicited by an informant while the indicted defendant was out on bail. In contrast, in the Harvey case, the defendant's statement made without his attorney was allowed for impeachment purposes. Thus, the Supreme Court is content to determine the nature and effect of a constitutional right based on its characterization as a prophylactic rule or procedural safeguard. However, in California, courts in two recent cases have held that basic Sixth Amendment rights may yet be absolute. This approach is more appropriate, because the determining factor should be whether the suspect's statement was voluntary, as it is in the context of Fifth Amendment violations. Footnotes