Editing Miranda warning (section)

====''Miranda'' and ''Massiah'' compared====
# ''' Constitutional basis''':
#* ''Miranda'' is based on the Sixth Amendment right to counsel and the Fifth Amendment right to remain silent.
#* ''Massiah'' is based on the Sixth Amendment right to counsel.
# '''Attachment''':
#* ''Miranda'': Custody + interrogation (charging status irrelevant).
#* ''Massiah'': Formally charged + deliberate elicitation (custodial status irrelevant).
# '''Scope''':
#*a. ''Miranda'' applies to custodial interrogation by known governmental agents. Surreptitious acquisition of incriminating information allowed.
#*a. ''Massiah'' applies to overt and surreptitious interrogation.
#*b. ''Miranda'' is not offense specific.<ref>''Mathis v. United States'', 391 U.S. 1 (1968)</ref>
#*b. ''Massiah'' is offense specific.<ref>See ''McNeil v. Wisconsin'', 501 U.S. 171 (1991)</ref>
#*c. ''Miranda'': interrogation + "functional equivalent"
#*c. ''Massiah'': interrogation + "deliberate elicitation"
# '''Waiver''': Both ''Miranda'' and ''Massiah'' rights may be waived.
# '''Assertion''': In each case, the assertion must be clear and unequivocal. The effects of assertion are not identical. For purposes of ''Miranda'', the police must immediately cease the interrogation and cannot resume interrogating the defendant about any offense charged or uncharged unless counsel is present or the defendant initiates contact for purposes of resuming interrogation and valid waiver obtained. Because ''Massiah'' is offense-specific, an assertion of the sixth amendment right to counsel requires the police to cease interrogating the defendant about any charged offense. Apparently the police could continue questioning the defendant about uncharged crimes assuming that the defendant was not in custody. The defendant's remedy would be to leave or to refuse to answer questions.{{refn|group="Note"|Under ''Michigan v. Jackson'', a defendant's request for counsel at a preliminary hearing constituted an assertion of his sixth amendment right to counsel. However, ''Michigan v. Jackson'' was overruled by ''Montejo v. Louisiana .''}}
# '''Remedy for violation''': The remedy for violation of Fifth and Sixth Amendment rights to counsel is identical: the statements and testimonial information are subject to suppression. Derivative evidence is not subject to suppression under ''Miranda&nbsp;''– fruit of poisonous tree doctrine may apply to ''Massiah'' violation.<ref>''Fellers v. United States'', 124 S.Ct. 1019 (2004)</ref> Both ''Miranda'' and ''Massiah'' defective statements can be used for impeachment purposes.
# '''Exceptions''': The primary exceptions to ''Miranda'' are (1) the routine booking questions exception (2) the jail house informant exception and (3) the public safety exception. In ''Moulton v. Maine,'' the Supreme Court refused to recognize a public safety exception to the ''Massiah'' rule.<ref>474 U.S. 159 (1989)</ref> ''Massiah'' allows for the use of jail house informants provided the informants serve merely as "passive listeners".{{refn|group="Note"|The due process clauses of the Fifth and Fourteenth Amendments provide another basis for challenging the admissibility of confessions. The test is whether the statement was "voluntary". A statement is not voluntary if it was the product of police misconduct. That is, a due process claim requires that the defendant establish that there was police misconduct and that this misconduct induced the confession. The "voluntariness" test is implicated in any police interrogation—neither Miranda "custody" nor Massiah "commencement of formal criminal proceedings" is a necessary condition (state action is required). Further, there are no issues of waiver or assertion. Finally, the remedy is complete—an involuntary statement cannot be used for any purpose.}}