STATE OF MICHIGAN, PETITIONER V. TYRIS LEMONT HARVEY

   No. 88-512

   In the Supreme Court of the United States

   October Term, 1988

   On Writ of Certiorari to the Michigan Court of Appeals

   Brief for the United States as Amicus Curiae Supporting Petitioner

            TABLE OF CONTENTS
   Question Presented
   Interest of the United States
   Statement
   Summary of argument
   Argument:
      Out-of-Court statements taken without a valid waiver of the
      Sixth Amendment right to counsel may be used for impeachment
      purposes at trial
      A. The Sixth Amendment exclusionary rule should be applied in
         this setting in the same manner as the Fourt Amendment
         exclusionary rule
      B. A violation of the prophylactic rule established by
         Michigan v. Jackson is adequately deterred by excluding
         improperly obtained evidence from the government's case in
         chief
   Conclusion

                          QUESTION PRESENTED

   Whether respondent's direct testimony at trial could be impeached
with a statement obtained from him in violation of Michigan v.
Jackson, 475 U.S. 625 (1986).

                     INTEREST OF THE UNITED STATES

   This case presents the question whether statements obtained from a
defendant in violation of the rule adopted in Michigan v. Jackson, 475
U.S. 625 (1986), may be used to impeach the defendant if he testifies
at trial.  Because the Michigan v. Jackson rule protects the Sixth
Amendment right to counsel, the issue can arise in both federal and
state prosecutions.  /1/ The United States therefore has a law
enforcement interest in the outcome of this case.

                               STATEMENT

   1. On June 11, 1986, respondent rang the doorbell of Audrey Sharp's
house in Detroit, Michigan, and asked to use the telephone.  Sharp,
according to her trial testimony, admitted respondent into the house.
Shortly thereafter, while Sharp was sitting at her kitchen table,
respondent approached her from behind holding a barbecue fork.  After
he ordered her to get up, Sharp grabbed respondent's hand.  A struggle
began, during which respondent tried to push Sharp toward the
basement.  Sharp resisted, and when respondent put his hand over
Sharp's mouth, she bit him on the hands and arm.  Respondent then bit
Sharp on the back, threw her to the floor, and punched her repeatedly
in the face.  Sharp escaped to the living room, but respondent
followed her with the barbecue fork and a pair of garden shears.
Respondent then ordered Sharp to remove her clothing, after which
respondent forced her to submit to oral sex and raped her.  Tr. 12-27,
55-70, 75.

   Respondent was subsequently arrested in connection with the
incident.  On the morning of July 2, respondent gave a statement to a
police officer in which he claimed that he and Sharp had fought
because Sharp had refused to pay for cocaine that respondent had
shared with her.  Respondent denied that any sexual contact had
occurred between him and Sharp.  When the officer presented the
three-page statement to him to sign, respondent signed the first page,
but he refused to sign the last two pages because, in respondent's
words, the officer "wrote some stuff I didn't like * * * something
that wasn't pertaining to what happened." Pet. App. 2a.  Respondent
then requested an attorney, and the interrogation ceased.  Later that
day, respondent was arraigned on charges of criminal sexual conduct,
and counsel was appointed for him.  Pet. App. 3a.

   On September 9, 1986, six days before trial, respondent told a
police officer that he wanted to make another statement.  He added
that he did not know if he should talk to his lawyer first.  The
officer told respondent that he did not need to talk to his lawyer,
because his lawyer would receive a copy of the statement in any event.
 Pet. App. 3a;  J.A. 32-33;  Tr. 117.  Respondent then signed a
constitutional rights waiver form.  He initialed the portions of the
form advising him of his right to remain silent (including the right
not to answer questions or make statements), his right to have a
lawyer present before or during questioning, and his right to have a
lawyer appointed for him.  He did not initial the portion of the form
advising him of his right to decide to stop answering questions at any
time, or the portion advising him that anything he said could be used
against him in court.  When asked if he understood his constitutional
rights, respondent answered that he did.  Pet. App. 3a-4a.  Respondent
then gave a statement that differed in a few respects from the
testimony he would give at trial, and differed significantly from the
statement he had given on July 2.

   2. Testifying in his own behalf, respondent gave a very different
account of the events of June 11 from the account given by Sharp.
Respondent testified that he had seen Sharp outside her house and had
asked her if she wanted to share some cocaine.  He then went into
Sharp's house and, after smoking some of the cocaine, asked her if she
would have sex with him in return for the cocaine.  According to
respondent, Sharp agreed to that proposal, but at that point, Sharp's
sister arrived.  Respondent testified that he and the victim's sister
left the house to purchase more cocaine and later returned.  According
to respondent, another man then arrived at the house and left with
Sharp's sister.  J.A. 5-6, 13-14;  Tr. 98-99, 104.

   Respondent testified that after the others had left, he again asked
Sharp to have sex with him, but this time she refused.  Respondent
claimed that he and Sharp argued, that she stabbed him with a fork and
bit his arm, and that he then punched Sharp in the face and bit her on
the back.  Respondent testified that after further argument, Sharp
acquiesced in his request for sex.  According to respondent, however,
the cocaine had hindered his ability to engage in sexual activity, and
he never actually had sexual intercourse with Sharp.  J.A. 6-8, 15-20;
 Tr. 99-100, 105-108.

   On cross-examination, the prosecutor used respondent's July 2
statement to impeach his testimony.  Specifically, the prosecutor
asked why respondent's July 2 statement omitted certain portions of
the story respondent told at trial.  J.A. 23-31;  Tr. 110-116.
Respondent replied that he had given the police investigator some of
the information he had recounted in his trial testimony, but that the
investigator had failed to include those details in the written
statement.  J.A. 27-29;  Tr. 113-114.  Respondent also denied saying
some of the things that were attributed to him in the July 2
statement.  J.A. 30-31;  Tr. 115.  Respondent's counsel did not object
to that cross-examination.

   The prosecutor then asked respondent whether he had given the
police a statement on September 9.  J.A. 31-32;  Tr. 116.  Defense
counsel objected to the use of the September 9 statement "for
substantive evidence," but when the prosecutor explained that she
would only be using it for impeachment, defense counsel did not
interpose any further objection.  J.A. 32-34;  Tr. 117.  The
prosecutor then asked petitioner about several points that were
included in his trial testimony but omitted from his September 9
statement.  J.A. 34-39;  Tr. 118-121.

   3. Respondent was convicted and sentenced to a term of six to ten
years' imprisonment.  On appeal, respondent challenged the use of both
the July 2 and September 9 statements to impeach him.  The Michigan
Court of Appeals upheld the use of the July 2 statement.  It ruled
that, despite the lack of any showing in the record that respondent
had received Miranda warnings prior to making that statement, the use
of the statement for impeachment purposes did not violate respondent's
Fifth and Fourteenth Amendment rights because the statement had not
been involuntary.  Pet. App. 5a-6a.

   The court reached a different result with regard to the September 9
statement.  That statement, the court held, was obtained from
respondent "in violation of (his) Sixth Amendment right to counsel."
Pet. App. 6a-7a (citing Michigan v. Jackson, 475 U.S. 625 (1986)).
According to the court, "(a) statement so acquired may not be used for
any purpose, including impeachment." Pet. App. 7a.  The court noted
that respondent's counsel did not object to the use of the September 9
statement for impeachment purposes, but the court nonetheless found
the use of that statement to be constitutional error.  Finally, the
court held that the admission of the statement was not harmless error,
because the trial "involved a credibility contest between defendant
and victim." Ibid.  The court therefore reversed respondent's
convictions.  /2/ The Michigan Supreme Court, with three justices
dissenting, denied the State leave to appeal.  Pet. App. 8a-9a.

                          SUMMARY OF ARGUMENT

   A. It is a "general rule" of our system of justice that "remedies
should be tailored to the injury suffered from (a) constitutional
violation and should not unnecessarily infringe on competing
interests." United States v. Morrison, 449 U.S. 361, 364 (1981).
Consistently with that principle, this Court has held that violations
of the Fourth Amendment are sufficiently redressed at trial when the
government is prohibited from using unlawfully obtained evidence as
part of its case in chief.  The further prohibition against the use of
illegally seized evidence to impeach is not required for deterremt
purposes, and it undermines the truth-seeking goal of the criminal
trial.  See United States v. Havens, 446 U.S. 620 (1980);  Walder v.
United States, 347 U.S. 62 (1954).

   Because of similarities in the operation of the exclusionary rules
under the Fourth and Sixth Amendments, the same principles should
apply to statements obtained as a result of pretrial interrogation
conducted in violation of the Sixth Amendment.  The Sixth Amendment,
like the Fourth Amendment, does not expressly require the exclusion of
evidence at trial;  that remedy is the product of a court-made rule
designed to enforce the constitutional prohibition.  And the Court has
held that the application of the Sixth Amendment exclusionary rule,
like the Fourth Amendment exclusionary rule, must be determined by
balancing the societal costs of the rule against its benefits.  Nix v.
Williams, 467 U.S. 431, 446 (1984).

   The interest in promoting the truth-seeking process is at its
greatest when one party to the trial seeks to demonstrate that the
other party is relying on false evidence.  For that reason, the case
against the exclusion of reliable evidence at trial is at its
strongest when impeachment evidence is at issue.  And, as in the
Fourth Amendment context, the deterrent effect of the Sixth Amendment
exclusionary rule is adequately served by the exclusion of improperly
obtained evidence from the government's case in chief;  the marginal
deterrent effect of excluding the evidence for impeachment purposes is
insufficient to overcome the overriding interest in protecting the
truth-seeking process at trial.

   If anything, the argument in favor of exclusion is weaker in the
Sixth Amendment context than in the Fourth Amendment setting.  The
underlying purpose of the Sixth Amendment is to ensure that the
defendant has counsel so that the adversary process will function
effectively to achieve justice.  Because the Sixth Amendment is
intended to promote the effective operation of the adversary system,
this Court in its Sixth Amendment decisions has focused not only on
the right to counsel, but more generally on "the ability of the
adversary system to produce just results." Strickland v. Washington,
466 U.S. 668, 689, 692 (1984).  Because the exposure of false
testimony is perhaps the most important function of the adversary
process, permitting the use of evidence for impeachment purposes is
consistent with the purposes of the Sixth Amendment, even if the
evidence was improperly obtained.

   B. The argument for admitting respondent's pretrial statement is
particularly strong in this case, because the violation found by the
court here was not a direct violation of the Sixth Amendment, but a
violation of the prophylactic rule adopted by this Court in Michigan
v. Jackson, 475 U.S. 625 (1986).  That rule provides that unless the
defendant initiates contact with the police, a court may not recognize
a waiver of the Sixth Amendment right to counsel once the defendant
has made a request for counsel.

   This Court has previously held that violations of the prophylactic
rule adopted in Miranda v. Arizona, 384 U.S. 436 (1966), are
adequately deterred by barring the affirmative use of improperly
obtained evidence;  the Court has declined in that setting to require
the exclusion of evidence offered for impeachment purposes.  See
Harris v. New York, 401 U.S. 222 (1971);  Oregon v. Hass, 420 U.S. 714
(1975).

   The same analysis applies in this case.  As in the case of
violations of the prophylactic rule designed to protect the Fifth
Amendment privilege against compulsory self-incrimination, violations
of the rule in Jackson do not require the exlusion of evidence for
impeachment purposes.  The Court's recent decision in Patterson v.
Illinois, 108 S. Ct. 2389 (1988), removes any doubts on that score.
The Court in Patterson held that the warnings required by this Court
in Miranda are sufficient to support a waiver of the right to counsel
under the Sixth Amendment.  In the case of pretrial interrogation, the
Court explained, an attorney serves the same "limited purpose" whether
the interrogation occurs before or after the initiation of formal
charges.  In that setting there is therefore no justification for
according different treatment to violations of the prophylactic rule
designed to protect a suspect's rights under the Fifth Amendment and
the prophylactic rule adopted in Jackson, which is designed to protect
a defendant's rights under the Sixth Amendment.

                               ARGUMENT

   OUT-OF-COURT STATEMENTS TAKEN WITHOUT A VALID WAIVER OF THE SIXTH
AMENDMENT RIGHT TO COUNSEL MAY BE USED FOR IMPEACHMENT PURPOSES AT
TRIAL

   A. The Sixth Amendment Exclusionary Rule Should Be Applied In This
Setting In The Same Manner As The Fourth Amendment Exclusionary Rule

   1. This Court has long held that evidence obtained in violation of
the Fourth Amendment may be used to impeach a defendant's testimony at
trial.  In Walder v. United States, 347 U.S. 62 (1954), the Court
ruled for the first time that the Fourth Amendment exclusionary rule,
which bars the affirmative use of illegally seized evidence, should
not be extended to bar the use of that evidence for impeachment
purposes.  The defendant in Walder, who had been indicted for
trafficking in narcotics, took the stand and denied that he had ever
possessed or sold narcotics.  Id. at 63.  After he reiterated his
testimony on cross-examination, the government introduced evidence
that the defendant had possessed heroin two years earlier.  Although
that evidence was the product of an illegal search, the Court held
that the defendant's assertion that he had never possessed narcotics
"opened the door, solely for the purpose of attacking the defendant's
credibility," to evidence that the government had previously seized in
violation of the Fourth Amendment.  Id. at 64.

   The Court applied the same principles in United States v. Havens,
446 U.S. 620 (1980).  There, the defendant took the stand and denied
that he had been involved in the cocaine smuggling scheme with which
he was charged.  On cross-examination, the defendant denied that he
had possessed certain incriminating material when he returned to this
country from a trip abroad.  The government then introduced evidence
that law enforcement officers had illegally seized from his luggage.
/3/ The Court approved the admission of the improperly obtained
material to impeach the defendant's testimony.

   In both Walder and Havens, this Court reasoned that the benefits of
the exclusionary rule must be weighed against its costs.  The Court
emphasized that arriving at the truth is "a fundamental goal of our
legal system." Havens, 446 U.S. at 626.  It reaffirmed that a
defendant's election to testify includes the obligation to testify
truthfully, and it found "essential * * * to the proper functioning of
the adversary system" the government's ability to conduct "proper and
effective cross-examination * * * (of) seemingly false statements."
Havens, 446 U.S. at 626-627;  see also Walder, 347 U.S. at 65.
Against these values, the Court balanced the deterrent function of the
exclusionary rule.  See Havens, 446 U.S. at 626-627.  It determined
that the purposes of the exclusionary rule are adequately served by
denying the government the ability to make affirmative use of
illegally procured evidence, and it deemed the "incremental
furthering" of deterrence achieved by forbidding the impeachment of a
testifying defendant insufficient "to permit or require that false
testimony go unchallenged, with the resulting impairment of the
integrity of the factfinding goals of the criminal trial." Id. at 627.

   The Court's decision in Walder and Havens reflect a more general
principle that the rules that constrain the government in its direct
case do not necessarily apply to matters of rebuttal and impeachment.
In order to avoid a serious distortion of the truth-seeking process,
the Court has permitted the government in a number of settings to use
evidence for impeachment purposes even if the government would not be
permitted to use the same evidence affirmatively.  See, e.g.,
Tennessee v. Street, 471 U.S. 409 (1985) (government may offer into
evidence a co-defendant's confession, otherwise inadmissible under
Bruton v. United States, 391 U.S. 123 (1968), to correct a potentially
misleading impression created by the defendant's testimony);  Jenkins
v. Anderson, 447 U.S. 231 (1980) (government may impeach a testifying
defendant with his failure to tell his exculpatory story prior to his
arrest);  Doyle v. Ohio, 426 U.S. 610, 619-620 n.11 (1976) (government
may impeach a defendant with his failure to tell his exculpatory story
after receiving Miranda warnings if defendant testifies that he did
tell that story to the police after his arrest);  Harris v. New York,
401 U.S. 222 (1971) (government may impeach a testifying defendant
with a statement taken in violation of Miranda v. Arizona, 384 U.S.
436 (1966)).  The Court's rulings in each of those cases, as in Walder
and Havens, evidences the Court's recognition that the truth-seeking
process is more seriously distorted if false testimony is permitted to
go uncorrected than if reliable evidence is kept from the jury in the
first instance.

   2. The same principles should apply to statements obtained through
pretrial interrogation conducted in violation of the Sixth Amendment.
Although the Sixth Amendment exclusionary rule forbids the affirmative
use of such statements, the strong policy of promoting the
truth-finding process at trial outweighs the justification for
extending the Sixth Amendment exclusionary rule to evidence that is
offered for impeachment purposes.

   The Sixth Amendment right to counsel is similar in some important
respects to the Fourth Amendment right to be free from illegal
searches and seizures.  Like the Fourth Amendment, the Sixth Amendment
imposes obligations on the government that can be violated before
trial.  After arraignment or its equivalent, "government efforts to
elicit information from (an) accused, including interrogation,
represent 'critical stages' at which the Sixth Amendment applies."
Michigan v. Jackson, 475 U.S. at 630.  Thus, the police may violate
the Sixth Amendment if they elicit statements from an indicted
defendant who has not validly waived his right to counsel.  See Brewer
v. Williams, 430 U.S. 387 (1977).  They also may violate the Sixth
Amendment if they deliberately elicit incriminating statements from an
uncounseled defendant who does not realize that he is speaking to a
state agent or informant.  Maine v. Moulton, 474 U.S. 159, 176 (1985);
 United States v. Henry, 447 U.S. 264, 274 (1980);  see Massiah v.
United States, 377 U.S. 201 (1964).

   Unlike the Fifth Amendment, which explicitly prohibits the use of
compelled self-incriminating testimony, neither the Fourth Amendment
nor the Sixth Amendment expressly requires the exclusion of unlawfully
obtained evidence.  Nor is exclusion mandated by concerns about the
probative character or reliability of such evidence.  To the contrary,
evidence obtained in violation of the Fourth or Sixth Amendment right
to counsel is generally "the most probative information" available but
is excluded without regard to its reliability.  Stone v. Powell, 428
U.S. 465, 490 (1976);  Moulton, 474 U.S. at 191 (Burger, C.J.,
dissenting);  Henry, 447 U.S. at 289 (Rehnquist, J., dissenting);
Massiah, 377 U.S. at 208-209 (White, J., dissenting);  Mapp v. Ohio,
367 U.S. 643, 656 (1961).  And evidence taken in violation of the
Fourth or the Sixth Amendment typically is not "coerced" or
"compelled," as is the case with evidence obtained in violation of the
Fifth Amendment.  See Massiah, 377 U.S. at 209-211 (White, J.,
dissenting).

   Evidence that is coerced or compelled in violation of the Fifth
Amendment may not be used either affirmatively or for impeachment
purposes.  See New Jersey v. Portash, 440 U.S. 450, 459 (1979);
Mincey v. Arizona, 437 U.S. 385, 397-398 (1978).  As the Court has
explained, the admission of such evidence for either purpose would
directly contravene the prohibition in the Fifth Amendment against
compelling a person "to be a witness against himself" or would be so
unreliable that its use at trial for any purpose would violate due
process.  By contrast, the impeachment use of evidence seized in
violation of the Fourth or Sixth Amendments does not violate the
express terms of any constitutional provision, but simply brings into
question whether to apply a court-made exclusionary rule.

   This Court has chosen the exclusionary rule to remedy Sixth as well
as Fourth Amendment violations.  Mapp v. Ohio, 367 U.S. at 648, 656
(Fourth Amendment);  Weeks v. United States, 232 U.S. 383, 391-393
(1914) (Fourth Amendment);  Moulton, 474 U.S. at 180 (Sixth
Amendment);  Henry, 447 U.S. at 282 n.6 (Blackmun, J., dissenting)
(Sixth Amendment).  The question whether to invoke the Sixth Amendment
exclusionary remedy, like the analogous question with respect to the
Fourth Amendment exclusionary rule, may be answered by balancing the
societal costs of the rule against its benefits.  Nix v. Williams, 467
U.S. 431, 446 (1984).  Because the Fourth and Sixth Amendments extend
their protection in similar ways, the same considerations that the
Court weighed in Walder and Havens are relevant in the present
setting, and they dictate that the balance be struck in the same way.

   a. On one side of the balance is the interest in accurate verdicts.
 "(T)he central purpose of a criminal trial is to decide the factual
question of the defendant's guilt or innocence." Delaware v. Van
Arsdall, 475 U.S. 673, 681 (1986);  Stone, 428 U.S. at 490;  United
States v. Nobles, 422 U.S. 225, 230 (1975).  There is a weighty public
interest in "prosecuting those accused of crime and having them
acquitted or convicted on the basis of all the evidence which exposes
the truth." Alderman v. United States, 394 U.S. 165, 175 (1969).  As
this Court has stated repeatedly, a constitutional violation warrants
the exclusion of evidence only if the benefits from exclusion are
worth "the enormous societal cost of excluding truth in the search for
truth in the administration of justice." Nix, 467 U.S. at 445;  see
also Solem v. Stumes, 465 U.S. 638, 650 (1984);  Havens, 446 U.S. at
626-628;  Hass, 420 U.S. at 722;  Harris, 401 U.S. at 224-226;
Alderman, 394 U.S. at 174-175.

   When the Court is weighing the exclusion of evidence that is
intended to aid the jury in assessing the credibility of a defendant's
testimony, an additional factor bears on the inquiry.  In that
setting, the general interest in promoting accurate factfinding is
enhanced by the special need to guard against perjury.

   The right of every defendant to testify includes the obligation to
testify truthfully.  /4/ The introduction of evidence for impeachment
enforces that obligation by allowing the contradiction of "seemingly
false statements" the defendant makes on the stand.  Havens, 446 U.S.
at 627.  It would be senseless if the right to the assistance of
counsel, which exists "to assure that the accused's interests will be
protected consistently with our adversary theory of criminal
prosecution" (United States v. Wade, 388 U.S. 218, 227 (1967)), were
interpreted to prohibit the prosecution, when faced with apparently
perjurious testimony, from "utiliz(ing) the traditional truth-seeking
devices of the adversary process" (Harris, 401 U.S. at 225).

   b. On the other side of the balance is the marginal deterrent
effect that would be served by barring the impeachment use of evidence
obtained in violation of the Sixth Amendment.  For several reasons,
the interest in deterrence is even smaller in the Sixth Amendment
context than in the Fourth Amendment setting.

   First, the difference in the elements of Fourth and Sixth Amendment
violations may make deterrence a less compelling concern under the
Sixth Amendment.  A Fourth Amendment violation is complete at the time
of the illegal search or seizure;  the introduction of the illegally
seized evidence is not an element of the violation.  By contrast, the
pretrial interrogation of a defendant in the absence of his counsel
does not, in itself, make out a Sixth Amendment violation;  the
violation is complete only when the defendant's statement is
introduced against him in a prosecution for the crime with which he
was charged at the time of the interrogation.  See Massiah, 377 U.S.
at 206 (Sixth Amendment violation is complete "when there (is) used
against (a defendant) at his trial evidence of his own incriminating
words").  An uncounseled pretrial interrogation may be perfectly
proper, for example, if the evidence is introduced in connection with
offenses with which the defendant was not charged at the time of the
interrogation.  See Moulton, 474 U.S. at 178-180 & n.16.  Accordingly,
in that setting, there is no Sixth Amendment violation until and
unless the prosecution offers the fruits of the interrogation into
evidence at the trial on the already-charged crimes.  For that reason,
there is no misconduct to deter, since the government's out-of-court
conduct does not amount to a constitutional violation, and since the
court can prevent the constitutional violation from coming to pass
simply by excluding the evidence from the government's case in chief
at trial.

   Secondly, as this Court recognized in Jackson, the police
conducting a pretrial interrogation often may not be aware that the
defendant has requested counsel.  The Court has held in Jackson that
knowledge of the request for counsel must be imputed to the police,
see 475 U.S. at 634, and evidence obtained as a result of such an
interrogation must be excluded from the government's case in chief
regardless of the officers' ignorance of the invocation of counsel.
Nonetheless, the exclusion of evidence for all purposes in that
setting is not likely to serve a significant deterrent purpose, since
the police will have no reason to refrain from seeking a waiver of the
defendant's Sixth Amendment rights and questioning him if they are
unaware that he has requested counsel.

   Finally, even if the interest in deterrence were the same in the
case of the Fourth and Sixth Amendment exclusionary rules, this Court
has already held in the Fourth Amendment setting that the marginal
deterrence achieved by the exclusion of evidence offered for
impeachment purposes is not sufficient to justify its costs.  The same
analysis applies in the Sixth Amendment context.  There is no reason
to suppose that deterrence is more effective or more essential in the
Sixth Amendment context than in the Fourth Amendment setting;  there
is therefore no reason to exclude evidence under a Sixth Amendment
rationale if similar evidence would not be excluded under the Fourth
Amendment.  /5/

   3. To be sure, the analogy between the Fourth and Sixth Amendments
is imperfect because of the different purposes served by the two
provisions.  Again, however, that difference argues against the
exclusion of evidence offered for impeachment purposes, not in its
favor.

   The purpose of the Sixth Amendment is to ensure that in the
operation of the adversary process, the defendant is not unfairly
disadvantaged by being forced to confront the professional prosecutor
and the technicalities of the criminal justice system without trained
legal assistance.  United States v. Ash, 413 U.S. 300, 306-313 (1973).
 Thus, the Sixth Amendment guarantee of counsel exists "not for its
own sake, but because of the effect it has on the ability of the
accused to receive a fair trial." United States v. Cronic, 466 U.S.
648, 658 (1984).  The "fair trial" that the Sixth Amendment seeks to
ensure is a trial in which "a defendant has the assistance necessary
to justify reliance on the outcome of the proceeding." Strickland v.
Washington, 466 U.S. 668, 689, 692 (1984).  Put another way, the Sixth
Amendment guarantees the right to counsel "because it envisions
counsel's playing a role that is critical to the ability of the
adversarial system to produce just results." Id. at 685.

   Because the purpose of the Sixth Amendment is to ensure that the
adversary process functions properly, the Court's Sixth Amendment
decisions have focused not only on the right of defendants to counsel,
but also on "the necessity of preserving society's interest in the
administration of criminal justice." United States v. Morrison, 449
U.S. 361, 364 (1981).  Thus, the Court has noted, remedies for Sixth
Amendment violations "should be tailored to the injury suffered from
the constitutional violation and should not unnecessarily infringe on
competing interests," ibid., such as "'the public interest in having
the guilty brought to book,'" id. at 366 n.3 (quoting United States v.
Blue, 384 U.S. 251, 255 (1966)).

   When a defendant makes false statements on the stand, he
jeopardizes the very "ability of the adversarial system to produce
just results" that the Sixth Amendment is meant to protect.  The
interest in guarding against the distortion of the truth-seeking
process, which is a principal goal of the Sixth Amendment, counsels
strongly against unnecessarily handicapping the advocates in their
ability to expose false evidence.

   The use of prior inconsistent statements is one of the most
effective techniques available to the advocate to expose perjury;
indeed, the admissibility of prior inconsistent statements for
impeachment purposes no doubt prevents much perjured testimony from
ever being offered, by dissuading witnesses who otherwise would be
tempted to fabricate or shade their testimony.  The use of the fruits
of pretrial interrogation for impeachment purposes -- even when that
evidence would be barred from the government's case in chief -- is
therefore not at odds with the basic purpose of the Sixth Amendment to
"protect() against unfairness by preserving the adversary process in
which the reliability of proffered evidence may be tested in
cross-examination." Nix, 467 U.S. at 446.

   Nor is there anything fundamentally unfair about permitting
impeachment in these circumstances.  As this Court noted many years
ago, the advantages that a defendant enjoys in a criminal case must be
"counter-weighted with * * * conditions to keep the advantage from
becoming an unfair and unreasonable one.  The price a defendant must
pay for attempting to prove (a fact) * * * is to throw open the entire
subject which the law has kept closed for his benefit and to make
himself vulnerable where the law otherwise shields him." Michelson v.
United States, 335 U.S. 469, 478-479 (1948);  see also Havens, 446
U.S. at 627-628 ("It is essential * * * to the proper functioning of
the adversary system that when a defendant takes the stand, the
government be permitted proper and effective cross-examination in an
attempt to elicit the truth.").

   The defendant has substantial control over the ability of the
prosecution to make use of pretrial statements for impeachment
purposes.  The prosecution can offer such prior statements only after
the defendant, with the assistance of counsel, makes a voluntary
decision to testify.  Moreover, impeachment is permissible only if the
defendant gives testimony that contradicts his previous statements.
Thus, defense counsel can predict, and to a significant extent
control, the possible impeachment use of prior statements.  See
Jenkins v. Anderson, 447 U.S. 231, 238 (1980).  In addition, the
defendant can explain the circumstances under which the impeaching
statements were made, and defense counsel can ensure that the
defendant's explanation of any inconsistency is fully aired.
Presumably, the jury will be able to recognize honest inconsistencies
and appropriately discount the prosecution's reliance on minor
discrepancies among the defendant's statements.

   In sum, the introduction of uncounseled statements for impeachment
purposes does not risk denying the defendant "a fair opportunity to
present a defense at the trial itself." Wade, 388 U.S. at 226.  The
limited use of uncounseled statements for impeachment leaves "no
effect of a constitutional dimension which needs to be purged to make
certain that respondent has been effectively represented and not
unfairly convicted." Morrison, 449 U.S. at 366.

   B. A Violation Of The Prophylactic Rule Established By Michigan
Michigan v. Jackson Is Adequately Deterred By Excluding Improperly
Obtained Evidence From The Government's Case In Chief

   Even if the Court is not prepared to hold that the fruits of an
uncounseled pretrial interrogation should always be admissible for
impeachment purposes, it should still uphold the admission of such
evidence in a case such as this one, where the court found not a
direct violation of the Sixth Amendment, but only a violation of the
prophylactic rule of Michigan v. Jackson, 475 U.S. 625 (1986).

   In Jackson, the Court held that once a defendant's Sixth Amendment
right to counsel had attached and the defendant had requested counsel,
"any (subsequent) waiver of the defendant's right to counsel for (a)
police-initiated interrogation is invalid." 475 U.S. at 636.  The
Court's conclusion was an explicit application of the rule it had
established to safeguard the Fifth Amendment privilege against
compelled self-incrimination in Edwards v. Arizona, 451 U.S. 477
(1981).  There, the Court held that a suspect in custody who had
"'expressed his desire to deal with the police only through counsel,
is not subject to further interrogation by the authorities until
counsel has been made available to him, unless the accused himself
initiates further communication, exchanges, or conversations with the
police.'" Jackson, 475 U.S. at 626 (quoting Edwards, 451 U.S. at
484-485).

   Edwards establishes a "prophylactic rule," as does Miranda, to
protect the Fifth Amendment privilege against compulsory
self-incrimination.  Solem, 465 U.S. at 644;  see Edwards, 451 U.S. at
484 ("additional safeguards" necessary to protect privilege when
suspect has requested counsel);  Jackson, 475 U.S. at 639 (Edwards
provides "second layer of protection" for the Fifth Amendment
privilege).  The Court in Jackson, expressly recognizing that Edwards
established a "bright-line rule to safeguard pre-existing rights,"
adopted the "same rule" on the ground that "the need for additional
safeguards (is) no less clear() when the request for counsel is made
at an arraignment and when the basis for the claim is the Sixth
Amendment." Jackson, 475 U.S. at 626, 636 (emphasis added).  Thus the
Jackson rule, like the rules in Miranda and Edwards, is a prophylactic
measure.  /6/

   This Court has already determined that violations of the
prophylactic rule established by Miranda to guard the Fifth Amendment
are adequately deterred by excluding improperly obtained evidence from
the government's case in chief.  In Harris v. New York, supra, the
Court allowed a defendant's trial testimony about a series of drug
sales he made to an undercover officer to be impeached on
cross-examination with statements the defendant made immediately after
arrest and before receiving Miranda warnings.  The Court came to an
identical conclusion in Oregon v. Hass, supra, where it allowed
impeachment with inculpatory information taken from a suspect after he
had been given Miranda warnings and had requested a lawyer.  In both
cases, the Court reasoned that where the circumstances do not indicate
that a defendant's constitutional privilege against compelled
self-incrimination has been violated, /7/ the importance of the
"search for truth in a criminal case" (Hass, 420 U.S. at 722)
outweighs the deterrent value of extending the exclusion of evidence
that is already barred from the prosecution's affirmative case.  Hass,
420 U.S. at 722-724;  Harris, 401 U.S. at 224-226.

   The same balance must be struck in this case.  The Jackson
presumption -- that if the government initiates an exchange with a
defendant who has requested counsel the defendant cannot be found to
have waived his Sixth Amendment right to counsel -- is deliberately
overbroad.  Like Miranda's "preventive medicine," it provides a remedy
even to those defendants who have suffered no constitutional wrong.
Oregon v. Elstad, 470 U.S. 298, 309 (1985).  It is enough that
Jackson, like Miranda, bars the introduction in the government's case
in chief of evidence obtained in violation of its rule.  /8/

   This Court's recent decision in Patterson v. Illinois, 108 S. Ct.
2389 (1988), underscores the strength of the analogy to Harris and
Hass by emphasizing the close parallel between the principles
governing the waiver of Fifth and Sixth Amendment rights in the case
of uncounseled pretrial interrogations.  The Court in Patterson held
that in that setting Sixth Amendment rights are not intrinsically more
difficult to waive than Fifth Amendment rights, and that the standard
Miranda warnings are sufficient to support a waiver of both rights.
108 S. Ct. at 2398.  As the Court explained, an attorney serves the
same "limited purpose" in custodial interrogation whether the
interrogation occurs before or after the initiation of formal charges.
 There is no "substantial difference between the usefulness of a
lawyer to a suspect during custodial interrogation, and his value to
an accused at postindictment questioning." Ibid.; see also id. at
2395-2396 & n.6;  cf. Ash, 413 U.S. at 312.  There should therefore be
no difference in the consequences that follow the violation of the
prophylactic rule established by Miranda, and those that follow the
parallel prophylactic rule established by Jackson.  /9/

                              CONCLUSION

   The judgment of the Michigan Court of Appeals should be reversed.

   Respectfully submitted.

   WILLIAM C. BRYSON

      Acting Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   CHRISTINE DESAN HUSSON

      Assistant to the Solicitor General

   J. DOUGLAS WILSON

      Attorney

   APRIL 1989

   /1/ Federal and state courts have reached divergent results on the
issue whether a defendant may be impeached by statements obtained in
violation of the Sixth Amendment.  Cases permitting impeachment
include United States v. Lott, 854 F.2d 244 (7th Cir. 1988);  United
States v. McManaman, 606 F.2d 919 (10th Cir. 1979);  United States v.
Taxe, 540 F.2d 961 (9th Cir. 1976), cert. denied, 429 U.S. 1040
(1977);  State v. Thomas, 698 S.W.2d 942 (Mo. 1985);  People v.
Maerling, 64 N.Y.2d 134, 485 N.Y.S.2d 23, 474 N.E.2d 231 (1984);  and
State v. Swallow, 405 N.W.2d 29 (S.D. 1987).  Cases prohibiting
impeachment include Meadows v. Kuhlmann, 812 F.2d 72 (2d Cir.), cert.
denied, 482 U.S. 915 (1987);  United States v. Brown, 699 F.2d 585 (2d
Cir. 1983);  Bishop v. Rose, 701 F.2d 1150 (6th Cir. 1983);  People v.
Knippenberg, 66 Ill.2d 276, 362 N.E.2d 681 (1977);  and People v.
Gonyea, 421 Mich. 462, 365 N.W.2d 136 (1984).

   /2/ The "state court decision fairly appears to rest primarily on
federal law" as required by Michigan v. Long, 463 U.S. 1032, 1040
(1983).  The state court of appeals clearly defined the question as a
"Sixth Amendment right to counsel" issue.  Pet. App. 6a.  After citing
Michigan v. Jackson in order to identify the type of Sixth Amendment
violation involved, the court supported its conclusion that the
disputed evidence had to be excluded by citing two federal appellate
court decisions.  It then noted simply that "Michigan law is
consistent." Pet. App. 7a. Cf. Delaware v. Van Arsdall, 475 U.S. 673,
678 n.3 (1986).  Should there be any doubt, Michigan law rests upon a
decision, People v. Gonyea, 421 Mich. 462, 365 N.W.2d 136 (1984), in
which the deciding vote was cast by a concurring judge who appeared to
rely solely upon the Sixth Amendment in ruling that evidence obtained
without a valid waiver is inadmissible for impeachment.  See 421 Mich.
at 481-483, 365 N.W.2d at 145 (Cavanagh, J., concurring).

   /3/ The defendant's traveling companion had been stopped upon
arriving in the United States;  a search revealed that he had cocaine
sown into makeshift pockets on his shirt.  Police acting without a
warrant found in the defendant's suitcase a T-shirt from which pieces
that matched the makeshift pockets on his friend's shirt had been cut.
 United States v. Havens, 446 U.S. 620, 621-622 (1980).

   /4/ "Every criminal defendant is privileged to testify in his own
defense, or to refuse to do so.  But that privilege cannot be
construed to include the right to commit perjury. * * * Having
voluntarily taken the stand, petitioner was under an obligation to
speak truthfully and accurately." Harris, 401 U.S. at 225;  see also
Havens, 446 U.S. at 626;  Oregon v. Hass, 420 U.S. 714, 723 (1975);
Walder, 347 U.S. at 65.

   /5/ In Oregon v. Hass, 420 U.S. 714, 723 (1975), the Court
acknowledged that an officer may have some incentive to disregard a
suspect's invocation of his right to counsel, since the officer may
have little to lose and something to gain "by way of possibly
uncovering impeachment material." That "speculative possibility,"
however, was not sufficent to persuade the Court to require the
exclusion of highly probative evidence that may be the only available
antidote to false testimony at trial.  Precisely the same analysis
applies here;  indeed, the only difference between this case and Hass
is that in this case the defendant had been formally charged and in
Hass he had not been.

   /6/ The prophylactic character of the rule in Jackson is evidenced
by the fact that the rule is triggered only by a request for counsel:
despite the fact that all defendants have a Sixth Amendment right to
counsel after "the initiation of adversary judicial proceedings"
(United States v. Gouveia, 467 U.S. 180, 187-188 (1984)), only those
who make an explicit request for counsel receive the benefits of the
Jackson no-waiver rule.  See Jackson, 475 U.S. at 633 n.6 (right to
counsel does not turn on request;  but "the defendant's request for
counsel (functions) as an extremely important fact in considering the
validity of a subsequent waiver in response to police-initiated
interrogation");  id. at 639-642 (Rehnquist, J., dissenting)
(criticizing the linkage of the Jackson no-waiver rule to a request
for counsel when the right to counsel does not depend on a request for
counsel).

   /7/ As we have noted (pages 12-13, supra), statements taken in
violation of the Fifth Amendment itself, rather than its prophylactic
safeguards, can never be used at trial.  New Jersey v. Portash, 440
U.S. 450 (1979).  Because the use of compelled self-incriminating
testimony violates the text of the Amendment, the Court has held that
"(b)alancing (of the kind done in Harris and Hass) is not simply
unnecessary.  It is impermissible." Portash, 440 U.S. at 459.

   /8/ Once the balance has been struck allowing the use of improperly
obtained evidence to impeach, the admission of the evidence in any
particular case depends on whether it is clear that the defendant is
aware of the right to counsel and yet voluntarily makes a statement.
See Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (establishing as
standard for waivers of counsel that action must not only be
voluntary, but must also constitute a knowing and intelligent
"relinquishment or abandonment of a known right or privilege").  As
the Court has decided in the Fifth Amendment context, any statement
would be admissible for impeachment if it met this "'old due process
voluntariness test." See Oregon v. Elstad, 470 U.S. 298, 308-309
(1985).

   Respondent's waiver satisfied that standard.  This Court's decision
in Patterson v. Illinois, 108 S. Ct. 2398, 2397 (1988), makes it clear
that Miranda warnings "sufficiently apprise() (a defendant) of the
nature of his Sixth Amendment rights, and of the consequences of
abandoning those rights." Respondent received full Miranda warnings
prior to his September 9 interview, and he indicated his understanding
of them.

   /9/ Although the issue is not before this Court, it is not even
clear in this case that the police violated the rule of Michigan v.
Jackson, supra.  Although the matter is not developed in detail in the
record, it appears that respondent initiated the exchange with the
police on September 9 (see Pet. App. 3a;  J.A. 32-33;  Tr. 117) and
that he received complete Miranda warnings, which were sufficient to
justify a waiver of his Sixth Amendment rights (see Patterson v.
Illinois, supra).  While the Michigan Court of Appeals did not explain
its reason for finding that Michigan v. Jackson had been violated, it
may be that the court regarded respondent's reference to his lawyer as
a request for counsel and the police officer's statement that
respondent did not need to consult with his lawyer as constituting an
initiation of interrogation despite a request for counsel, in
violation of the Jackson rule.