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19. The motion should be
At the defendant's trial, his attorney moved to exclude any testimony from the informant concerning the defendant's boast.
A grand jury returned an indictment charging the defendant with bank robbery, and when he could not make bond he was jailed pending trial. He had received Miranda warnings when arrested and had made no statement at that time. The prosecutor arranged to have an informant placed as the defendant's cellmate and instructed the informant to find out about the bank robbery without asking any direct questions about it. The informant, once in the cell, constantly boasted about the crimes that he had committed. Not to be outdone, the defendant finally declared that he had committed the bank robbery with which he was charged.
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B is correct. By placing an informant in the defendant's cell to elicit information about the bank robbery, the prosecution violated the defendant's Sixth Amendment right to counsel because it was a situation likely to induce the defendant into making incriminating statements absent counsel. See United States v. Henry, 447 U.S. 264 (1980).
A is incorrect. The defendant's right to counsel is the issue here, not his right against self-incrimination. The defendant had already been properly given his Miranda warnings and the statements made were voluntarily made, so they do not violate his constitutional protection against self-incrimination. However, the statements were made to an informant, acting as a government agent, without his attorney present, in violation of his right to counsel.
C is incorrect. Properly issuing Miranda warnings to the defendant goes to the issue of self-incrimination, not the right to counsel. It is the defendant's right to counsel under the Sixth Amendment that has been violated here because of the prosecution's use of an informant to elicit the incriminating statements without the defendant's counsel present.
D is incorrect. The informant did not have to overtly interrogate for there to be a violation of the defendant's right to counsel. Although the informant, acting as an agent of the state, did not ask specific questions, the prosecution instructed the informant to «find out about the bank robbery without asking any direct questions about it.» The state, therefore, created a situation likely to induce the defendant to make incriminating statements without the assistance of counsel. This has been held by the Supreme Court of the United States, in United States v. Henry, 447 U.S. 264 (1980), as sufficient to be considered eliciting statements in violation of the defendant's right to counsel. The government elicited statements from the defendant without his counsel present, and the defendant's motion to suppress should be granted.