The Right to Counsel after Kuhlmann v. Wilson: Deliberate Elicitation or Interrogation


On the morning of July 4, 1970, three men robbed and killed the night dispatcher at Star Taxicab Garage in the Bronx, New York. Shortly before the robbery, James A. Wilson was seen on the premises and was later observed fleeing the scene carrying loose money. Four days later, Wilson voluntarily surrendered to the police. After receiving his Miranda warnings from a Detective Cullen, Wilson admitted that he was at the garage on July 4, looking for his brother who worked there. He claimed that he had witnessed the robbery, but was not involved; he fled only for fear of being blamed. On July 9, Wilson was assigned counsel, appeared for the first time before a judge and was arraigned.

Following his arraignment, Wilson was jailed in the Bronx House of Detention. Soon after, he was moved to a different cell, one which overlooked the Star Taxicab Garage. Upon entering the cell, Wilson’s first words were, “somebody’s messing with me because this is the place I’m accused of robbing.” Wilson then began to describe to his cellmate, Benny Lee, what had happened on the morning of July 4, 1970. Wilson told Lee that he had seen two men commit the crime and had only picked up some of the money which they had dropped. Lee replied, “Look, you better come up with a better story than that because that one doesn’t sound too cool to me.”‘ Wilson was not aware, however, that Detective Cullen had asked Lee whether he could assist the police with Wilson’s case.9 Lee agreed to work as a police informant, a job he had performed on numerous other occasions.) Detective Cullen directed him to find out as much as he could from Wilson without asking any questions.” During the next several days, Lee and Wilson discussed the incident, and Wilson changed parts of his story. Following an upsetting visit from his brother, Wilson admitted to Lee that he had been involved in committing the robbery with the other two men. Lee reported these conversations to Cullen. He also gave the detective notes secretly made during his conversations with Wilson. The statements which Lee reported were used to convict Wilson at trial.

The Supreme Court ultimately considered Wilson’s case in 1986. In a decision that retreats from the “deliberate elicitation” standard which the Supreme Court adopted in United States v. Massiah and expanded in United States v. Henry to protect defendants from unwittingly making statements to law enforcement agents, the United States Supreme Court held that neither Lee’s presence nor his conduct constituted a violation of Wilson’s sixth amendment right to counsel. Justice Powell, writing for the majority, stated that the purpose of the “deliberate elicitation” standard, as articulated in Massiah and Henry, is to prevent the government from obtaining incriminating statements from a defendant, in the absence of counsel, through investigatory techniques “that are the equivalent of direct police interrogation.” Kuhlmann v. Wilson reinterprets the “deliberate elicitation” standard and limits its meaning to the “functional equivalent of interrogation,” a standard developed in fifth amendment cases to prevent compelled self-incrimination by criminal defendants. Kuhlmann thus substantially narrows the scope of the sixth amendment’s protections.

This note examines the purposes of the sixth amendment right to counsel in the interrogation setting once formal adversary proceedings have commenced as well as the sixth amendment’s interplay with the fifth amendment right to counsel during interrogation. Although the rights protected by the fifth and sixth amendments often overlap, the policies underlying each are quite different. This note will also focus on the standards articulated in the Massiah-Henry line of cases and suggest a rationale underlying the Court’s divergence from precedent in Kuhlmann v. Wilson.

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