Undercovers & Informants

Can the police put an undercover officer or an informant inside the jail cell with you to record what you say about a crime?

The answer is Yes. There are three cases you need to know about to see why. First everybody knows about the Miranda case – if you are in custody and the police are interrogating you, that is making statements or questions designed to elicit an incriminating response, you have the right to remain silent – that is not incriminate yourself (Fifth Amendment) and you have the right to an attorney present if you proceed with questioning (Sixth Amendment).

What if the Detectives talk to you, show you photos, show pictures of a victim who was shot, tell you that they are investigating a homicide, whether recent or old, and then put you back in the tank at the police station?

Under the case of Illinois v. Perkins, they can put an undercover officer or an informant in your cell asking about what you are there for and recording your answers. Why? Because Miranda is designed to prevent coercion from Police – if you don’t think you are talking to the Police there is no coercion so they can deceive you.

How long can they do this?

The case of Massiah v. United States holds that once adversary proceedings are commenced against you – meaning charges are filed in court, you got indicted or arraigned – your Sixth Amendment right to counsel is triggered so they cannot keep up the undercover or informant operation once charges are filed, usually when you go to court and “see the Judge.” I advise all of my clients to not make a statement to the Police and ask for a lawyer (Miranda).

Also, do not discuss the arrest, what the Detectives told you about the investigation, your own criminal history or anything inside the tank (Perkins). We see these “Perkins Operations” with great frequency inside the jail, especially for homicides.

The Sixth Amendment right to counsel attaches once formal charges or judicial proceedings begin most often when you go to court and “see the Judge.” I advise all of my clients to not make statements to the Police and ask for a lawyer (Miranda).

I also advise not to discuss the arrest, what the Detectives told you about the investigation, your own criminal history or anything else inside the tank (Perkins). Once you go to court and you have an attorney they are supposed to stop the Perkins Operations but there are exceptions to the Massiah case so I recommend not discussing your case with anybody inside the dorm at all.

Perkins and Massiah apply if you are out of custody so the same advice applies. I always advise not to discuss your case with anyone but an actual attorney. I have seen may cases where the Perkins Operation recording is the strongest evidence against a Defendant.