Neither custody nor “coercive influences” are required to trigger Sixth Amendment protections
- Once formal proceedings begin, police may not “deliberately elicit” statements from an accused without an express waiver of the right to counsel. Mil. R. Evid. 305(g). This is true whether the questioning is in a custodial setting by persons known by the accused to be police,
Brewer v. Williams , 430 U.S. 387 (1977); surreptitiously by a co-accused, Maine v. Moulton , 474 U.S. 159 (1985); through police monitored radio transmissions, Massiah v. United States , 377 U.S. 201 (1964); or, when police ask questions of an indictee about his drug use and affiliations, Fellers v. United States , 540 U.S. 519 (2004).
- Mere presence as a listening post does not violate Sixth Amendment rights.
Kuhlmann v. Wilson , 477 U.S. 436 (1986) (defendant’s cellmate instructed only to listen and report). However, if an informant initiates contact and conversation after indictment for express purpose of gathering information about charged activities, statements made by defendant are obtained in violation of accused’s Sixth Amendment right to counsel and may not be used in government’s case-in- chief.
United States v. Henry , 447 U.S. 264 (1980); Kansas v. Ventris , 556 U.S. 586 (2009); United States v. Langer , 41 M.J. 780 (A.F. Ct. Crim. App. 1995)