Sixth Amendment: Right to Counsel

Chapter 20

Sixth Amendment: Right to Counsel

A defendant’s ability to reckon with the criminal justice system depends not only upon the quality of his case but upon the ability to secure legal representation. Without counsel, the odds increase that innocent persons will be found guilty and the defendant will not receive a fair trial. Because the average person possesses neither an attorney’s legal expertise nor understanding of the criminal justice system, legal representation is crucial to the criminal justice system’s legitimacy and credibility to the point that the government subsidizes it for persons who cannot afford counsel. The right to counsel is triggered when criminal proceedings have been initiated against the defendant, typically an indictment, complaint, or other charging instrumentality. Police interrogation of a defendant without the presence of counsel may abridge the Sixth Amendment and trigger the exclusionary rule. This remedy does not apply, as the Court held in Nix v. Williams (1984), when the police demonstrate that they inevitably would have discovered the evidence. The Court found no Sixth Amendment violation, in Kuhlmann v. Wilson (1986), when a jailhouse informant obtained but did not deliberately elicit incriminating evidence from a cell mate.

Nix v. Williams

Citation: 467 U.S. 431.

Issue: Whether there should be an “inevitable discovery” exception to the exclusionary rule.

Year of Decision: 1984.

Outcome: When evidence would “inevitably” have been discovered, the exclusionary evidence rule does not apply.

Author of Opinion: Chief Justice Warren Burger.

Vote: 7-2.

The exclusionary evidence rule, which provides for the exclusion of evidence seized in violation of a defendant’s constitutional rights, provides an important mechanism for the enforcement of some constitutional rights. However, because the rule results in evidence being excluded from juries, sometimes very damning evidence, the rule has been controversial. At various times, both the police and prosecutors have called for modifications of the rule. The cases discussed here, Brewer v. Williams (1977) and Nix v. Williams, both of which arose from the same facts, present the exclusionary rule in its most controversial aspect. The last two cases discussed in this section reveal the Court’s willingness to both expand and limit the reach of the Sixth Amendment’s guarantee of a right to counsel. In Montejo v. Louisiana (2009), the Court rejected its prior decision in Michigan v. Jackson, which had held that evidence obtained through interrogation after the defendant has invoked his right to counsel was inadmissible. Instead a defendant may waive that right in various ways. In Padilla v. Kentucky (2010), however, the Court ruled that the Sixth Amendment’s implicit guarantee of effective counsel includes advising one’s client of potential deportation consequences of the client’s plea decisions.

The Brewer and Nix cases arose when a 10-year-old girl turned up missing in Des Moines, Iowa. Robert Williams, a mental hospital escapee, was suspected of having kidnapped the girl, but Williams could not be found. Later that day, a Des Moines lawyer (McKnight) called police and indicated that Williams was prepared to turn himself in to police in Davenport, Iowa. Before the police drove Williams back to Des Moines, McKnight advised Williams by phone that Des Moines police officers would be driving to Davenport to pick him up, that the officers would not interrogate him or mistreat him, and that Williams was not to talk to the officers about the murder until after consulting with McKnight after his return. The officers agreed that they would not question Williams during the trip. In the meantime Williams was arraigned before a judge and given a Miranda warning. Before leaving the courtroom, Williams conferred with a local lawyer (Kelly) who advised him not to make any statements until he consulted with McKnight. After the police officers picked Williams up, Detective Leaming repeated the Miranda warnings, and told Williams: “[W]e both know that you’re being represented here by Mr.Kelly and you’re being represented by Mr. McKnight in Des Moines, [and] I want you to remember this because we’ll be visiting between here and Des Moines.” Kelly reiterated to Detective Leaming that Williams was not to be questioned about the disappearance of the girl until after he had consulted with McKnight back in Des Moines. When Leaming expressed some reservations, Kelly firmly stated that the agreement with McKnight was to be carried out and that there was to be no interrogation of Williams during the automobile journey. The officers refused to allow Kelly to ride with them in the police car.

During the return trip, Williams stated several times that “[w]hen I get to Des Moines and see Mr. McKnight, I am going to tell you the whole story.” Detective Leaming knew that Williams was a former mental patient and knew also that he was deeply religious, and he began talking to him about a variety of topics, including religion. After a while, Detective Leaming delivered what has been referred to [as] the “Christian burial speech.” Addressing Williams as “Reverend,” the detective said, “I want to give you something to think about while we’re traveling down the [road]. Number one, I want you to observe the weather conditions, it’s raining, it’s sleeting, it’s freezing, driving is very treacherous, visibility is poor, it’s going to be dark early this evening. They are predicting several inches of snow for tonight, and I feel that you yourself are the only person that knows where this little girl’s body is, that you yourself have only been there once, and if you get a snow on top of it you yourself may be unable to find it. And, since we will be going right past the area on the way into Des Moines, I feel that we could stop and locate the body, that the parents of this little girl should be entitled to a Christian burial for the little girl who was snatched away from them on Christmas Eve and murdered. And I feel we should stop and locate it on the way in rather than waiting until morning and trying to come back out after a snow storm and possibly not being able to find it at all.” Leaming also told Williams that he knew the body was in the area of Mitchellville, a town that they would pass, and then stated: “I do not want you to answer me. I don’t want to discuss it any further. Just think about it as we’re riding down the road.” At a later point, Williams asked whether the girl’s shoes had been found. As the car approached Mitchellville, Williams agreed to show the officers where the body was located. Williams was subsequently indicted for murder, his statements were admitted into evidence at his trial, and he was convicted.

In Brewer, the Court held that the evidence should have been excluded because Detective Leaming violated Williams’s Sixth Amendment right to counsel by “deliberately and designedly” attempting to elicit information from Williams. The Court noted that the detective was “fully aware before departing for Des Moines that Williams was being represented in Davenport by Kelly and in Des Moines by McKnight. Yet he purposely sought during Williams’s isolation from his lawyers to obtain as much incriminating information as possible.” The Court flatly rejected the argument that Williams had waived his right to counsel. Chief Justice Warren Burger dissented, arguing that the “result in this case ought to be intolerable in any society which purports to call itself an organized society.” He went on to note that “Williams is guilty of the savage murder of a small [child]. [A]fter no fewer than five warnings of his rights to silence and to counsel, he led police to the concealed body of his victim. [Williams] was not threatened or coerced [and] he spoke and acted voluntarily and with full awareness of his constitutional rights.”

Even though the Court reversed Williams’s conviction in Brewer, the case came back to the Court under the name of Nix v. Williams. In Nix, the question was whether the Court should establish an “inevitable discovery” exception to the exclusionary rule. At Williams’s second trial, the prosecution did not offer Williams’s statements into evidence, nor did it seek to show that Williams had directed the police to the child’s body. However, it did introduce evidence regarding the condition of the body, as well as articles and photographs of her clothing, and the results of post mortem medical and chemical tests on the body. The trial court concluded that, even without Williams’s confession, the body would have “been found in short order” in essentially the same condition as it was actually found. The Court noted that freezing temperatures prevailed and tissue deterioration would have been suspended. As a result, the evidence was admitted, and Williams was again found guilty of first-degree murder.

The United States Supreme Court agreed that discovery of the body was inevitable, and therefore that the evidence was admissible. In rendering its decision, the Court emphasized that “[e]xclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial.” While the Court recognized that the Sixth Amendment right to counsel is designed to protect criminal defendants “against unfairness by preserving the adversary process in which the reliability of proffered evidence may be tested in cross-examination,” the Court noted that Detective Leaming’s actions had no bearing on the reliability of the evidence. “No one would seriously contend that the presence of counsel in the police car when Leaming appealed to Williams’s decent human instincts would have had any bearing on the reliability of the body as evidence.” The Court thus concluded that suppression “would do nothing whatever to promote the integrity of the trial process, but would inflict a wholly unacceptable burden on the administration of criminal justice.” Rather, the Court observed, “the evidence in question would inevitably have been discovered without reference to the police error or misconduct, there is no nexus sufficient to provide a taint and the evidence is admissible.”

The Court then focused on whether discovery of the girl’s body was “inevitable.” The Court applied a “preponderance of the evidence” standard and concluded that discovery was inevitable. The Court emphasized that some 200 searchers were systematically searching nearby areas that had been marked off into grids. The police testified that they planned to move on to the place where the body was found and to search it in a similarly systematic manner. Justice John Paul Stevens, concurring, noted that this was a case “in which the police deliberately took advantage of an inherently coercive setting in the absence of counsel, contrary to their express agreement,” and he expressed concern regarding the cost “imposed on society by police officers who decide to take procedural shortcuts instead of complying with the law.” In assessing those costs, he noted that the case had resulted in “years and years of unnecessary but costly litigation.” He concluded that these costs provided “an adequate deterrent to similar violations” and justified admission of the evidence.

Justice William Brennan, dissenting, argued that the “inevitable discovery” exception to the exclusionary rule is consistent with the Constitution, but he would have applied a higher burden of proof (clear and convincing evidence) on the question of whether the discovery was, in fact, inevitable. As a result, he would have remanded the case to the lower court for application of this higher burden of proof.

Nix is an important decision because it establishes the “inevitable discovery” exception to the exclusionary evidence rule. Under that exception, even though evidence is obtained in violation of a defendant’s constitutional rights, in this case Williams’s Sixth Amendment right to counsel, the evidence can be admitted if it “inevitably” would have been discovered.


Chief Justice BURGER delivered the opinion of the Court.

. . . [T]he derivative evidence analysis ensures that the prosecution is not put in a worse position simply because of some earlier police error or misconduct. The independent source doctrine allows admission of evidence that has been discovered by means wholly independent of any constitutional violation. That doctrine, although closely related to the inevitable discovery doctrine, does not apply here; Williams’ statements to Leaming indeed led police to the child’s body, but that is not the whole story. The independent source doctrine teaches us that the interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred. When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation. There is a functional similarity between these two doctrines in that exclusion of evidence that would inevitably have been discovered would also put the government in a worse position, because the police would have obtained that evidence if no misconduct had taken place. Thus, while the independent source exception would not justify admission of evidence in this case, its rationale is wholly consistent with and justifies our adoption of the ultimate or inevitable discovery exception to the exclusionary rule.

. . . [W]hen an officer is aware that the evidence will inevitably be discovered, he will try to avoid engaging in any questionable practice. In that situation, there will be little to gain from taking any dubious “shortcuts” to obtain the evidence. Significant disincentives to obtaining evidence illegally—including the possibility of departmental discipline and civil liability—also lessen the likelihood that the ultimate or inevitable discovery exception will promote police misconduct. In these circumstances, the societal costs of the exclusionary rule far outweigh any possible benefits to deterrence that a good-faith requirement might produce. . . .

Exclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial. The Sixth Amendment right to counsel protects against unfairness by preserving the adversary process in which the reliability of proffered evidence may be tested in cross-examination. Here, however, Detective Leaming’s conduct did nothing to impugn the reliability of the evidence in question—the body of the child and its condition as it was found, articles of clothing found on the body, and the autopsy. No one would seriously contend that the presence of counsel in the police car when Leaming appealed to Williams’ decent human instincts would have had any bearing on the reliability of the body as evidence. Suppression, in these circumstances, would do nothing whatever to promote the integrity of the trial process, but would inflict a wholly unacceptable burden on the administration of criminal justice.

Nor would suppression ensure fairness on the theory that it tends to safeguard the adversary system of justice. To assure the fairness of trial proceedings, this Court has held that assistance of counsel must be available at pretrial confrontations where “the subsequent trial [cannot] cure a[n otherwise] one-sided confrontation between prosecuting authorities and the uncounseled defendant.” Fairness can be assured by placing the State and the accused in the same positions they would have been in had the impermissible conduct not taken place. However, if the government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police, there is no rational basis to keep that evidence from the jury in order to ensure the fairness of the trial proceedings. In that situation, the State has gained no advantage at trial and the defendant has suffered no prejudice. Indeed, suppression of the evidence would operate to undermine the adversary system by putting the State in a worse position than it would have occupied without any police misconduct. Williams’ argument that inevitable discovery constitutes impermissible balancing of values is without merit.

More than a half century ago, Judge, later Justice, Cardozo made his seminal observation that under the exclusionary rule “[t]he criminal is to go free because the constable has blundered.” Prophetically, he went on to consider “how far-reaching in its effect upon society” the exclusionary rule would be when “[t]he pettiest peace officer would have it in his power through overzeal or indiscretion to confer immunity upon an offender for crimes the most flagitious.”

Some day, Cardozo speculated, some court might press the exclusionary rule to the outer limits of its logic—or beyond—and suppress evidence relating to the “body of a murdered” victim because of the means by which it was found. But when, as here, the evidence in question would inevitably have been discovered without reference to the police error or misconduct, there is no nexus sufficient to provide a taint and the evidence is admissible.

The Court of Appeals did not find it necessary to consider whether the record fairly supported the finding that the volunteer search party would ultimately or inevitably have discovered the victim’s body. However, three courts independently reviewing the evidence have found that the body of the child inevitably would have been found by the searchers. Williams challenges these findings, asserting that the record contains only the “post hoc rationalization” that the search efforts would have proceeded two and one-half miles into Polk County where Williams had led police to the body.

When that challenge was made at the suppression hearing preceding Williams’ second trial, the prosecution offered the testimony of Agent Ruxlow of the Iowa Bureau of Criminal Investigation. Ruxlow had organized and directed some 200 volunteers who were searching for the child’s body. The searchers were instructed “to check all the roads, the ditches, any culverts. . . . If they came upon any abandoned farm buildings, they were instructed to go onto the property and search those abandoned farm buildings or any other places where a small child could be secreted.” Ruxlow testified that he marked off highway maps of Poweshiek and Jasper Counties in grid fashion, divided the volunteers into teams of four to six persons, and assigned each team to search specific grid areas. Ruxlow also testified that, if the search had not been suspended because of Williams’ promised cooperation, it would have continued into Polk County, using the same grid system. Although he had previously marked off into grids only the highway maps of Poweshiek and Jasper Counties, Ruxlow had obtained a map of Polk County, which he said he would have marked off in the same manner had it been necessary for the search to continue.

The search had commenced at approximately 10 a.m. and moved westward through Poweshiek County into Jasper County. At approximately 3 p.m., after Williams had volunteered to cooperate with the police, Detective Leaming, who was in the police car with Williams, sent word to Ruxlow and the other Special Agent directing the search to meet him at the Grinnell truck stop and the search was suspended at that time. Ruxlow also stated that he was “under the impression that there was a possibility” that Williams would lead them to the child’s body at that time. The search was not resumed once it was learned that Williams had led the police to the body, which was found two and one-half miles from where the search had stopped in what would have been the easternmost grid to be searched in Polk County. There was testimony that it would have taken an additional three to five hours to discover the body if the search had continued; the body was found near a culvert, one of the kinds of places the teams had been specifically directed to search.

On this record it is clear that the search parties were approaching the actual location of the body, and we are satisfied, along with three courts earlier, that the volunteer search teams would have resumed the search had Williams not earlier led the police to the body and the body inevitably would have been found. The evidence asserted by Williams as newly discovered, i.e., certain photographs of the body and deposition testimony of Agent Ruxlow made in connection with the federal habeas proceeding, does not demonstrate that the material facts were inadequately developed in the suppression hearing in state court or that Williams was denied a full, fair, and adequate opportunity to present all relevant facts at the suppression hearing.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

In Brewer v. Williams, we held that the respondent’s state conviction for first-degree murder had to be set aside because it was based in part on statements obtained from the respondent in violation of his right to the assistance of counsel guaranteed by the Sixth and Fourteenth Amendments. At the same time, we noted that, “[w]hile neither Williams’ incriminating statements themselves nor any testimony describing his having led the police to the victim’s body can constitutionally be admitted into evidence, evidence of where the body was found and of its condition might well be admissible on the theory that the body would have been discovered in any event.”

To the extent that today’s decision adopts this “inevitable discovery” exception to the exclusionary rule, it simply acknowledges a doctrine that is akin to the “independent source” exception first recognized by the Court in Silverthorne Lumber Co.v. United States. In particular, the Court concludes that unconstitutionally obtained evidence may be admitted at trial if it inevitably would have been discovered in the same condition by an independent line of investigation that was already being pursued when the constitutional violation occurred. As has every Federal Court of Appeals previously addressing this issue. I agree that in these circumstances the “inevitable discovery” exception to the exclusionary rule is consistent with the requirements of the Constitution.

In its zealous efforts to emasculate the exclusionary rule, however, the Court loses sight of the crucial difference between the “inevitable discovery” doctrine and the “independent source” exception from which it is derived. When properly applied, the “independent source” exception allows the prosecution to use evidence only if it was, in fact, obtained by fully lawful means. It therefore does no violence to the constitutional protections that the exclusionary rule is meant to enforce. The “inevitable discovery” exception is likewise compatible with the Constitution, though it differs in one key respect from its next of kin: specifically, the evidence sought to be introduced at trial has not actually been obtained from an independent source, but rather would have been discovered as a matter of course if independent investigations were allowed to proceed.

In my view, this distinction should require that the government satisfy a heightened burden of proof before it is allowed to use such evidence. The inevitable discovery exception necessarily implicates a hypothetical finding that differs in kind from the factual finding that precedes application of the independent source rule. To ensure that this hypothetical finding is narrowly confined to circumstances that are functionally equivalent to an independent source, and to protect fully the fundamental rights served by the exclusionary rule, I would require clear and convincing evidence before concluding that the government had met its burden of proof on this issue. Increasing the burden of proof serves to impress the factfinder with the importance of the decision and thereby reduces the risk that illegally obtained evidence will be admitted. Because the lower courts did not impose such a requirement, I would remand this case for application of this heightened burden of proof by the lower courts in the first instance. I am therefore unable to join either the Court’s opinion or its judgment.


Fennelly, Hon. John E. “Refinement of the Inevitable Discovery Exception: The Need for a Good Faith Requirement.” William Mitchell Law Review 17 (1991): 1085.

Forbes, Jessica. “The Inevitable Discovery Exception, Primary Evidence, and the Emasculation of the Fourth Amendment.Fordham Law Review 65 (1987): 1221.

Hessler, Stephen E. “Establishing Inevitability Without Active Pursuit: Defining the Inevitable Discovery Exception to the Fourth Amendment Exclusionary Rule.Michigan Law Review 99 (2000): 288.

Kuhlmann v. Wilson

Citation: 477 U.S. 436.

Issue: Whether a government informer can report statements made by an incarcerated defendant without violating the Sixth Amendment right to counsel.

Year of Decision: 1986.

Outcome: No Sixth Amendment violation occurs so long as the informant does not “deliberately elicit” incriminating statements from the defendant.

Author of Opinion: Justice Lewis Powell.

Vote: 7-2.

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