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NCJ Number: 118372 Find in a Library
Title: Adversary System Defense of the Right to Counsel Against Informants: Truth, Fair Play, and the Massiah Doctrine
Journal: U.C. Davis Law Review  Volume:22  Issue:1  Dated:(Fall 1988)  Pages:1-92
Author(s): J J Tomkovicz
Date Published: 1988
Page Count: 92
Type: Issue Overview
Format: Article
Language: English
Country: United States of America
Annotation: The Court's first attempt to reconcile the right to counsel with the use of undercover informants was Massiah v. United States, 377 U.S. 201 (1964).
Abstract: Massiah has survived against the erosion and decline of criminally accused individuals' constitutional rights probably because it is rooted in both the sixth amendment promise of defense counsel and in the adversary system. The origins of Massiah doctrine are discussed, along with post-Massiah developments. Opponents of Massiah claim that because a defendant's encounter with an unknown government agent involves no legal problems or prosecutorial power, counsel has no function to serve. Therefore, there is no justification for a right to assistance. But among this country's fair play principles is a central requirement that inferior individuals receive equalizing assistance in the battle with the government. Counsel empowers the defendant both to make an "affirmative defense" and to erect a "defensive shield" against whatever techniques, resources, and talents the government employs to secure conviction. The counsel guarantee includes among its equalizing benefits an entitlement to advice concerning disclosures to the government. The Massiah right preserves the entitlement to advice and prevents sixth amendment damage. The past, present, and inevitable future indictments of Massiah rest on narrow premises about the adversarial system and counsel's role therein. 346 footnotes.
Main Term(s): Right to counsel
Index Term(s): Accusatorial systems; Informants
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