Fifty years after Miranda v. Arizona, many have lamented the ways in which the Burger, Rehnquist, and Roberts Courts have cut back on Miranda's protections. One underappreciated a spect of Miranda's demise is the way it has affected the development of the pretrial Sixth Amendment right to counsel guaranteed by Massiah v. United States. Much of the case law diluting suspects' Fifth Amendment Miranda rights has bled over into the Sixth Amendment right to counsel cases without consideration of whether the animating purposes of the Massiah pretrial right to counsel would support such an importation. This development is unfortunate given that the Fifth Amendment Miranda right and the Sixth Amendment right to counsel have different foci and serve different purposes. Miranda has always been focused on dispelling the inherent compulsion in the custodial interrogation environment in order to ensure that suspects are not being compelled to give testimony against themselves in violation of the Self- Incrimination Clause. In contrast, the Sixth Amendment pretrial right to counsel is grounded in concepts of fundamental fairness and equality and is designed to procedural and substantive complexities of the law and face the prosecutorial forces of organized society. It is not too late to disentangle these two constitutional rights. In this Article, I discuss how to achieve such disentanglement at both the federal and state levels. I also highlight a couple of areas-fruits doctrine and warning and waiver principles-where such disentanglement could result in significant doctrinal distinctions that would create more robust Sixth Amendment protection for criminal defendants going forward.
Primus, Eve Brensike. "Disentagling Miranda and Massiah: How to Revive the Sixth Amendment Right to Counsel as a Tool for Regulating Confession Law." B. U. L. Rev. 97, no. 3 (2017): 1085-128.