Respondent and petitioner Weatherford (hereinafter petitioner),
an undercover agent, were arrested for a state criminal offense,
each thereafter retaining separate counsel. Petitioner had two
pretrial meetings with respondent and respondent's counsel, who had
sought petitioner's presence for the purpose of securing
information or suggestions as to respondent's defense. Petitioner
had no discussions concerning respondent's trial strategy or the
pending criminal action either with his superiors or with the
prosecution. Petitioner (who had told respondent he would not be a
prosecution witness) testified for the prosecution, which, on the
morning of the trial, decided to call petitioner as a witness
because he had been seen in the company of police officers, and had
thus lost effectiveness as an undercover agent. Respondent was
convicted. After he had served his sentence, he brought this action
against petitioner under 42 U.S.C. § 1983, alleging that
petitioner's participation in the two meetings had deprived
respondent of the effective assistance of counsel in violation of
the Sixth and Fourteenth Amendments as well as his right to a fair
trial guaranteed by the Due Process Clause of the Fourteenth
Amendment. The District Court found for petitioner. The Court of
Appeals, without disturbing the District Court's factual findings,
reversed, concluding that
"whenever the prosecution knowingly arranges or permits
intrusion into the attorney-client relationship, the right to
counsel is sufficiently endangered to require reversal and a new
and that the concealment of petitioner's undercover status
lulled respondent into a false sense of security, interfering with
his trial preparations and denying him due process of law under
Brady v. Maryland, 373 U. S. 83
1. Respondent was not deprived of his right to counsel under the
Sixth Amendment, which does not establish a per se
forbidding an undercover agent to meet with a defendant's counsel.
Black v. United States, 385 U. S. 26
O'Brien v. United States, 386 U.
; Hoffa v. United States, 385 U.
, distinguished. Pp. 429 U. S.
Page 429 U. S. 546
(a) As long as the information possessed by petitioner about the
two meetings remained uncommunicated, he posed no threat to
respondent's Sixth Amendment rights. Pp. 429 U. S.
(b) Petitioner went to the meetings not to spy, but because he
was asked by respondent and his counsel and because the State was
interested in maintaining petitioner's status as an informant and
not arousing respondent's suspicions. Adoption of the Court of
Appeals' per se
rule would, for all practical purposes,
have required petitioner to unmask himself. Pp. 429 U. S.
2. The Due Process Clause does not require that the prosecution
must reveal before trial the names of undercover agents or other
witnesses who will testify unfavorably to the defense. Pp.
429 U. S.
(a) There is no constitutional right to discovery in a criminal
case, and Brady, supra,
did not create one. P.
429 U. S.
(b) That petitioner not only concealed his identity but
represented that he would not be a prosecution witness did not deny
respondent a right to a fair trial. The misrepresentation was not
deliberate, and there is no constitutional difference between the
surprise testimony of an informer who is not suspected and
therefore is not asked about testifying for the prosecution and the
informer who, like petitioner, is asked by the defendant but denies
that he will testify. P. 429 U. S.
(c) Though the Court of Appeals also suggested that petitioner'
continued duplicity denied respondent the opportunity to plea
bargain, there is no constitutional right to plea bargain. Pp.
429 U. S.
528 F.2d 483, reversed.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and STEWART, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ.,
joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN,
J., joined, post,
p. 429 U. S.
Page 429 U. S. 547
MR. JUSTICE WHITE delivered the opinion of the Court.
The issue here is whether, in the circumstances present in this
case, the conduct of an undercover agent for a state law
enforcement agency deprived respondent Bursey of his right to the
effective assistance of counsel guaranteed him by the Sixth and
Fourteenth Amendments of the United States Constitution or deprived
him of due process of law in violation of the Fourteenth
This case began when respondent Bursey filed suit under 42
U.S.C. § 1983 against petitioners Weatherford and Strom,
respectively an undercover agent for and the head of the South
Carolina State Law Enforcement Division, asserting that the
defendants had deprived him of certain constitutional rights. The
case was tried without a jury. The following facts are taken from
the District Court's findings, which were not disturbed by the
Court of Appeals.
During the early morning hours of March 20, 1970, Bursey and
Weatherford, along with two others, vandalized the offices of the
Richland County Selective Service in Columbia, S. C
Police were advised of the incident by Weatherford, who, in
order to maintain his undercover status and his capability of
working on other current matters in that capacity, was arrested and
charged along with Bursey. Weatherford was immediately released on
bond and, continuing the masquerade, retained an attorney, Frank
Taylor, Sr. Bursey, who was later released on bond, retained his
own counsel, C. Rauch Wise.
On two occasions thereafter and prior to trial, Weatherford met
with Bursey and Wise, and the approaching trial
Page 429 U. S. 548
was discussed. With respect to these meetings, the District
Court found as follows:
"On neither of these occasions did the defendant Weatherford
seek information from the plaintiff or his attorney, and on neither
occasion did he initiate or ask for the meeting. He was brought
into the meetings by the plaintiff and plaintiff's attorney in an
effort to obtain information, ideas or suggestions as to the
plaintiff's defense. From the beginning, Weatherford advised
plaintiff and plaintiff's attorney that Weatherford would obtain a
severance of his case from that of the plaintiff. This severance
was to be upon the ground that Weatherford might be prejudiced in
going to trial with Bursey as a codefendant, because of Bursey's
reputation and participation in other activities which had been
covered by the news media. On no occasion did Bursey or his
attorney question the granting of a severance, nor did they seem to
concern themselves with whether the prosecutor would consent to a
severance, although such consent is quite unusual where
codefendants are charged with the same crime and proof will be from
the same witnesses based upon identical facts. At those meetings
between plaintiff, plaintiff's attorney and defendant Weatherford
the plaintiff and his attorney raised the question of a possible
informer being used to prove the case, but they never asked
Weatherford if he were an informer and he never specifically denied
being an informer, since he was never asked or accused."
App. 248-249. At no time did Weatherford discuss with or pass on
to his superiors or to the prosecuting attorney or any of the
"any details or information regarding the plaintiff's trial
plans, strategy, or anything having to do with the criminal action
pending against plaintiff."
at 249. Until the
Page 429 U. S. 549
day of trial, the prosecuting attorney did not plan to use
Weatherford as a witness. Consequently, until then, Weatherford had
not expected to be a witness, and had anticipated continuing his
undercover work. However, Weatherford had lost some of his
effectiveness as an agent in the weeks preceding trial because he
had been seen in the company of police officers, and he was called
for the prosecution. He testified as to his undercover activities
and gave an eyewitness account of the events of March 20, 1970.
Bursey took the stand, was convicted, and then disappeared until
apprehended some two years later, at which time he was incarcerated
and forced to serve his 18-month sentence.
Bursey then began this § 1983 action, alleging that Weatherford
had communicated to his superiors and prosecuting officials the
defense strategies and plans which he had learned at his meetings
with Bursey and Wise, thereby depriving Bursey of the effective
assistance of counsel to which he was entitled under the Sixth and
Fourteenth Amendments, as well as of his right to a fair trial
guaranteed him by the Due Process Clause of the Fourteenth
Amendment. The District Court found for the defendants in all
respects, and entered judgment accordingly.
The Court of Appeals for the Fourth Circuit reversed, 528 F.2d
483 (1975), concluding that, "on the facts as found by the district
court, Bursey's rights to effective assistance of counsel and a
fair trial were violated." Id.
at 486. The Court of
Appeals held that,
"whenever the prosecution knowingly arranges or permits
intrusion into the attorney-client relationship, the right to
counsel is sufficiently endangered to require reversal and a new
That the intrusion occurred in order to prevent
revealing Weatherford's identity as an undercover agent was
immaterial. The Court of Appeals thought that Weatherford was
himself "a member of the prosecution," id.
at 487, and
that therefore it was also immaterial that he had not informed
Page 429 U. S. 550
officials about what was said or done in the two meetings with
Bursey and Wise.
In addition, the Court of Appeals concluded that Bursey had been
denied due process of law under Brady v. Maryland,
373 U. S. 83
(1963), by concealment of Weatherford's identity until the day of
trial and by Weatherford's statement that he would not be a
witness, all of which lulled Bursey into a false sense of security
and interfered with his preparations for trial. The judgment of the
District Court was reversed, but the remand for further proceedings
would have allowed Weatherford and Strom to present a qualified
immunity defense under Wood v. Strickland, 420 U.
We granted the petition for certiorari filed by Weatherford and
Strom, who are represented by the State Attorney General. 426 U.S.
946 (1976). We reverse.
The exact contours of the Court of Appeals' per se
right to counsel rule are difficult to discern, but, as the Court
of Appeals applied the rule in this case, it would appear that, if
an undercover agent meets with a criminal defendant who is awaiting
trial and with his attorney, and if the forthcoming trial is
discused without the agent's revealing his identity, a violation of
the defendant's constitutional rights has occurred, whatever was
the purpose of the agent in attending the meeting, whether or not
he reported on the meeting to his superiors, and whether or not any
specific prejudice to the defendant's preparation for or conduct of
the trial is demonstrated or otherwise threatened. The Court of
Appeals was of the view, 528 F.2d at 486, that this Court
"establish[ed] such a per se
rule" in Black v. United
States, 385 U. S. 26
(1966), and O'Brien v. United States, 386 U.
(1967). The Court of Appeals also relied on
Hoffa v. United States, 385 U. S. 293
Page 429 U. S. 551
We cannot agree that these cases, individually or together,
either require or suggest the rule announced by the Court of
Appeals and now urged by Bursey. Both Black
involved surreptitious electronic surveillance by
the Government, which was discovered after trial and conviction and
which was plainly illegal under the Fourth Amendment. [Footnote 1
] In each case, some, but not
all, of the conversations overheard were between the criminal
defendant and his counsel during trial preparation. The conviction
in each case was set aside and a new trial ordered. The explanatory
per curiam in Black,
although referring to the overheard
conversations with counsel, did not rule that, whenever
conversations with counsel are overheard, the Sixth Amendment is
violated and a new trial must be had. Indeed, neither the Sixth
Amendment nor the right to counsel was even mentioned in the short
opinion. The Solicitor General conceded that Black was entitled to
a "judicial determination" of whether "the monitoring of
conversations between [Black] and his attorney had [any]
upon his conviction or the fairness of his trial,"
although the Solicitor General contended that information derived
from the overheard conversations was not used in any way by the
prosecution. Memorandum for United States in Black v. United
O.T. 1965, No. 1029, p. 4 (emphasis added). The Court
focused on the particular form the "judicial determination"
Page 429 U. S. 552
should take, concluding that, on the particular facts of the
case, a new trial was the more appropriate means of affording Black
"an opportunity to protect himself from the use
evidence that might be otherwise inadmissible." 385 U.S. at
385 U. S. 29
(emphasis added). In O'Brien,
the Court wrote nothing
further, merely citing the Black
per curiam. Once again,
the Solicitor General did not oppose further judicial proceedings
to determine whether any information from the surveillance had been
used at trial, notwithstanding his assertion that the contents of
the overheard conversations were never communicated to the
prosecuting attorneys. Brief for United States in O'Brien v.
O.T. 1966, No. 823, pp. 112.
It is difficult to believe that the Court in Black
was evolving a definitive construction of the
Sixth Amendment without identifying the Amendment it was
interpreting, especially in view of the well established Fourth
Amendment grounds for excluding the fruits of the illegal
surveillance. [Footnote 2
anything is to be inferred from these two cases with respect to the
right to counsel, it is that, when conversations with counsel have
been overheard, the constitutionality of the conviction depends on
whether the overheard conversations have produced, directly or
indirectly, any of the evidence offered at trial. This is a far cry
from the per se
rule announced by the Court of Appeals
below, for, under that rule, trial prejudice to the defendant is
deemed irrelevant. Here, the courts below have already conducted
the "judicial determination," lacking in Black
of the effect of the overheard conversations on
the defendant's conviction, and there is nothing in their findings
or in the record to indicate any "use of evidence that might be
Neither does the Court's decision in Hoffa v. United States,
support the proposition urged by respondent. There, an
informant sat in on conversations that defendant Hoffa had with his
lawyers and with others during the
Page 429 U. S. 553
course of Hoffa's trial on a charge of violating the
Taft-Hartley Act. The jury at that trial hung. Hoffa was then tried
for tampering with that jury. The informer testified at the latter
trial with respect to conversations he had overheard in Hoffa's
hotel suite during the prior trial, not including, however, the
conversations Hoffa had with counsel. The Court sustained Hoffa's
jury tampering conviction over his claim, among others, that his
Sixth Amendment counsel right had been violated.
In doing so, the Court did not hold that the Sixth Amendment
right to counsel subsumes a right to be free from intrusion by
informers into counsel-client consultations. Nor did it purport to
describe the contours of any such right. The Court merely
without deciding, that two cases in the Court of
Appeals for the District of Columbia Circuit dealing with the right
to counsel, Caldwell v. United States,
355, 205 F.2d 879 (1953), and Coplon v. United States,
U.S.App.D.C. 103, 191 F.2d 749 (1951), were correctly decided;
without deciding, that had Hoffa been convicted at his first trial,
the conviction would have been set aside because the informer had
overheard Hoffa and his lawyers conversing and had reported to the
authorities the substance of at least some of those conversations;
and then held that Hoffa's assumed
Sixth Amendment rights
had not been violated because the informer's testimony at the jury
tampering trial did not touch upon the overheard conversations with
counsel, but dealt only with conversations between Hoffa and third
parties when his lawyers were not
Page 429 U. S. 554
present. 385 U.S. at 385 U. S.
-308. Neither Black, O'Brien, Hoffa,
other case in this Court to which we have been cited furnishes
grounds for the interpretation and application of the Sixth and
Fourteenth Amendments appearing in the Court of Appeals' opinion
At the same time, we need not agree with petitioners that,
whenever a defendant converses with his counsel in the presence of
a third party thought to be a confederate and ally, the defendant
assumes the risk and cannot complain if the third party turns out
to be an informer for the government who has reported on the
conversations to the prosecution and who testifies about them at
the defendant's trial. Had Weatherford testified at Bursey's trial
as to the conversation between Bursey and Wise; had any of the
State's evidence originated in these conversations; had those
overheard conversations been used in any other way to the
substantial detriment of Bursey; or even had the prosecution
learned from Weatherford, an undercover agent, the details of the
Bursey-Wise conversations about trial preparations, Bursey would
have a much stronger case. [Footnote 4
Page 429 U. S. 555
None of these elements is present here, however. Weatherford's
testimony for the prosecution about the events of March and April,
1970 ,revealed nothing said or done at the meetings between Bursey
and Wise that he attended. [Footnote 5
] None of the State's evidence was obtained as a
consequence of Weatherford's participation in those meetings.
Page 429 U. S. 556
might be argued that Weatherford, a dutiful agent, surely
communicated to the prosecutors Bursey's defense plans and strategy
and his attorney's efforts to prepare for trial, all of which was
inherently detrimental to Bursey, unfairly advantaged the
prosecution, and threatened to subvert the adversary system of
The argument founders on the District Court's express finding
that Weatherford communicated nothing at all to his superiors or to
the prosecution about Bursey's trial plans or about the upcoming
trial. App. 249, 252. The Court of Appeals did not disturb this
finding, but sought to surmount it by declaring Weatherford himself
to have been a member of the prosecuting team whose knowledge of
Bursey's trial plans was alone enough to violate Bursey's
constitutional right to counsel and to vitiate Bursey's conviction.
528 F.2d at 487. Though imaginative, this reasoning is not a
realistic assessment of the relationship of Weatherford to the
prosecuting staff or of the potential for detriment to Bursey or
benefit to the State that Weatherford's uncommunicated knowledge
might pose. If the fact was, as found by the District Court, that
Weatherford communicated nothing about the two meetings to anyone
else, we are quite unconvinced that a constitutional claim under
the Sixth and Fourteenth Amendments was made out.
This is consistent with the Court's approach in the
case. There, the informant overheard several
conversations between Hoffa and his attorneys, but the Court found
it necessary to deal with the Sixth Amendment right to counsel
claim only after noting that the informant had reported to the
Government about at least some of the activities of Hoffa's defense
counsel. 385 U.S. at 385 U. S.
-306. As long as the information possessed by
Weatherford remained uncommunicated, he posed no substantial threat
to Bursey's Sixth Amendment rights. Nor do we believe that federal
or state prosecutors will be so prone to lie or the difficulties of
Page 429 U. S. 557
will be so great that we must always assume not only that an
informant communicates what he learns from an encounter with the
defendant and his counsel, but also that what he communicates has
the potential for detriment to the defendant or benefit to the
Moreover, this is not a situation where the State's purpose was
to learn what it could about the defendant's defense plans and the
informant was instructed to intrude on the lawyer-client
relationship, or where the informant has assumed for himself that
task and acted accordingly. Weatherford, the District Court found,
did not intrude at all; he was invited to the meeting, apparently
not for his benefit but for the benefit of Bursey and his lawyer.
App. 248. Weatherford went not to spy, but because he was asked and
because the State was interested in retaining his undercover
services on other matters, and it was therefore necessary to avoid
raising the suspicion that he was in fact the informant whose
existence Bursey and Wise already suspected.
That the per se
rule adopted by the Court of Appeals
would operate prophylactically and effectively is very likely true,
but it would require the informant to refuse to participate in
attorney-client meetings, even though invited, and thus, for all
practical purposes, to unmask himself. Our cases, however, have
recognized the unfortunate necessity of undercover work, and the
value it often is to effective law enforcement. E.g., United
States v. Russell, 411 U. S. 423
411 U. S. 432
(1973); Lewis v. United States, 385 U.
, 385 U. S.
-209 (1966). We have also recognized the desirability
and legality of continued secrecy even after arrest. Roviaro v.
United States, 353 U. S. 53
353 U. S. 59
353 U. S. 62
(1957). We have no general oversight authority with respect to
state police investigations. We may disapprove an investigatory
practice only if it violates the Constitution; and, judged in this
light, the Court of Appeals' per se
rule cuts much too
broadly. If, for example,
Page 429 U. S. 558
Weatherford, at Bursy's invitation, had attended a meeting
between Bursey and Wise, but Wise had become suspicious and the
conversation was confined to the weather or other harmless
subjects, the Court of Appeals' rule, literally read, would cloud
Bursey's subsequent conviction, although there would have been no
constitutional violation. The same would have been true if Wise had
merely asked whether Weatherford was an informant, Weatherford had
denied it, and the meeting then had ended; likewise, if the entire
conversation had consisted of Wise's questions and Weatherford's
answers about Weatherford's own defense plans. Also, and more
cogently for present purposes, unless Weatherford communicated the
substance of the Bursey-Wise conversations, and thereby created at
least a realistic possibility of injury to Bursey or benefit to the
State, there can be no Sixth Amendment violation. Yet, under the
Court of Appeals' rule, Bursey's conviction would have been set
aside on appeal.
There being no tainted evidence in this case, no communication
of defense strategy to the prosecution, and no purposeful intrusion
by Weatherford, there was no violation of the Sixth Amendment
insofar as it is applicable to the States by virtue of the
Fourteenth Amendment. The proof in this case thus fell short of
making out a § 1983 claim, and the judgment of the District Court
should have been affirmed in this respect.
It is also apparent that neither Weatherford's trial testimony
nor the fact of his testifying added anything to the Sixth
Amendment claim. Weatherford's testimony for the prosecution
related only to events prior to the meetings with Wise and Bursey,
and referred to nothing that was said at those meetings. There is
no indication that any of this testimony was prompted by or was the
product of those meetings. Weatherford's testimony was surely very
damaging, but the mere fact that he had met with Bursey and his
lawyer prior to trial did not violate Bursey's right to
Page 429 U. S. 559
counsel any more than the informant's meetings with Hoffa and
Hoffa's lawyers rendered inadmissible the informant's testimony
having no connection with those conversations.
Because, under Brady v. Maryland, 373 U. S.
(1963), the prosecution has the "duty under the due
process clause to insure that criminal trials are fair' by
disclosing evidence favorable to the defendant upon request," the
Court of Appeals also held that the State was constitutionally
forbidden to "conceal the identity of an informant from a defendant
during his trial preparation," to permit the informant to "deny up
through the day before his appearance at trial that he will testify
against the defendant," and then to have the informant "testify
with devastating effect." 528 F.2d at 487. This conduct, the Court
of Appeals thought, lulled the defendant into a false sense of
security and denied him "the opportunity (1) to consider whether
plea bargaining might be the best course, (2) to do a background
check on Weatherford for purposes of cross-examination, and (3) to
attempt to counter the devastating impact of eyewitness
identification." Ibid. The Court of Appeals apparently
would have arrived at this conclusion whether or not Weatherford
had ever met with Wise.
Again, we are in disagreement. Brady
does not warrant
the Court of Appeals' holding. It does not follow from the
prohibition against concealing evidence favorable to the accused
that the prosecution must reveal before trial the names of all
witnesses who will testify unfavorably. There is no general
constitutional right to discovery in a criminal case, and
did not create one; as the Court wrote recently,
"the Due Process Clause has little to say regarding the amount of
discovery which the parties must be afforded. . . ." Wardius v.
Oregon, 412 U. S. 470
412 U. S. 474
is not implicated here where the only claim
is that the State should
Page 429 U. S. 560
have revealed that it would present the eyewitness testimony of
a particular agent against the defendant at trial.
In terms of the defendant's right to a fair trial, the situation
is not changed materially by the additional element relied upon by
the Court of Appeals, namely, that Weatherford not only concealed
his identity but represented he would not be a witness for the
prosecution, an assertion that proved to be inaccurate. There are
several answers to the contention that the claim of
misrepresentation is of crucial importance. The first is that there
was no deliberate misrepresentation in this regard: the trial court
found that, until the day of trial, Weatherford did not expect to
be called as a witness; until then, he did not know that he would
testify. Second, as we understand the argument, it is that, once
the undercover agent has successfully caused an arrest, he risks
causing an unfair trial if he denies his identity when accused or
asked. We would hesitate so to construe the Due Process Clause. We
are not at all convinced that there is a constitutional difference
between the situation where the informant is sufficiently trusted
that he is never suspected and never asked about the possibility of
his testifying, but nevertheless surprises the defendant by giving
devastating testimony, and the situation we have here, where the
defendant is suspicious enough to ask and the informant denies that
he will testify, but nevertheless does so. Moreover, if the
informant must confess his identity when confronted by an arrested
defendant, in many cases, the agent, in order to protect himself,
will simply disappear pending trial, before the confrontation
occurs. In the last analysis, however, the undercover agent who
stays in place and continues his deception merely retains the
capacity to surprise; and unless the surprise witness or unexpected
evidence is, without more, a denial of constitutional rights,
Bursey was not denied a fair trial.
The Court of Appeals suggested that Weatherford's continued
duplicity lost Bursey the opportunity to plea bargain.
Page 429 U. S. 561
But there is no constitutional right to plea bargain; the
prosecutor need not do so if he prefers to go to trial. It is a
novel argument that constitutional rights are infringed by trying
the defendant, rather than accepting his plea of guilty. Moreover,
Wise could have approached the prosecutor before trial, and surely
was under no misapprehension about Bursey's plight during trial. It
was also suggested by the Court of Appeals that Bursey was deprived
of the opportunity to investigate Weatherford in preparation for
possible impeachment on cross-examination. But there was no
objection at trial to Weatherford's testimony, no request for a
continuance, and, even now, no indication of substantial prejudice
from this occurrence. As for Bursey's claimed disability to counter
Weatherford's "devastating" testimony, the disadvantage was no more
than exists in any case where the State presents very damaging
evidence that was not anticipated. Wise and Bursey must have
realized that, in going to trial, the State was confident of
conviction, and that, if any exculpatory evidence or possible
defenses existed, it would be extremely wise to have them
available. Prudence would have counseled at least as much.
The judgment of the Court of Appeals is
In Silverman v. United States, 365 U.
(1961), the Court had held that eavesdropping
accomplished through use of an electronic listening device similar
to the "tubular microphone" used to overhear Black's and O'Brien's
conversations constituted an unauthorized physical penetration of
the petitioners' premises in violation of the Fourth Amendment. The
Solicitor General conceded that both Black and O'Brien should have
been allowed to establish that the prosecution's case was tainted
by the interception of conversations between Black and persons
other than their attorneys, as well as by conversations involving
counsel, thus indicating his awareness of the illegality of the
Government's eavesdropping under the Fourth Amendment.
held that interceptions by Government agents of
telephone messages between the defendant and her lawyer before and
during trial, if proved by the defendant, deprived her of her right
to counsel and entitled her to a new trial. Caldwell
that the defendant's right to counsel was violated where a
Government undercover agent went to work as an assistant for the
defense and reported frequently to the prosecution on "many matters
connected with the impending trial." 92 U.S.App.D.C. at 356, 205
F.2d at 880 (footnote omitted).
the United States conceded, as it does here
as amicus curiae,
that the Sixth Amendment would be
"if the government places an informant in the defense camp
during a criminal trial and receives from that informant privileged
information pertaining to the defense of the criminal charges . . .
because the Sixth Amendment's assistance of counsel guarantee can
be meaningfully implemented only if a criminal defendant knows that
his communications with his attorney are private and that his
lawful preparations for trial are secure against intrusion by the
government, his adversary in the criminal proceeding."
Brief for United States in Hoffa v. United States,
1966, No. 32, p. 71, quoted in Brief for United States as
in the instant case, p. 24 n. 13.
Respondent argues that Hoffa
established the same right
to counsel standard for government interception of attorney-client
communications by an undercover agent as for interception by
electronic surveillance. Even apart from the fact that the Court
was merely assuming the existence of a right to counsel violation
in that case, see supra
at 429 U. S. 553
we find respondent's argument questionable. One threat to the
effective assistance of counsel posed by government interception of
attorney-client communications lies in the inhibition of free
exchanges between defendant and counsel because of the fear of
being overheard. However, a fear that some third party may turn out
to be a government agent will inhibit attorney-client communication
to a lesser degree than the fear that the government is monitoring
those communications through electronic eavesdropping, because the
former intrusion may be avoided by excluding third parties from
defense meetings or refraining from divulging defense strategy when
third parties are present at those meetings. Of course, in some
circumstances, the ability to exclude third parties from defense
meetings may not eliminate the chilling effect on attorney-client
exchanges, but neither Hoffa
nor any other decision of
this Court supports respondent's theory that the chill is the same
whether induced by electronic surveillance or by undercover agents.
Cf. Fisher v. United States, 425 U.
, 425 U. S.
-405 (1976) (attorney-client privilege protects only
those disclosures which might not have been made absent the
privilege, because the purpose of the privilege is to encourage
confidential disclosures by a client to an attorney); 8 J. Wigmore,
Evidence § 2311, pp. 601-602 (McNaughton rev. ed.1961)
(attorney-client communications in the presence of a third party
not the agent of either are generally not protected by the
App. 225-240 (testimony of Weatherford at state
trial). On cross-examination by Wise (Bursey's lawyer), Weatherford
acknowledged that, at the second meeting with Bursey and Wise,
Weatherford told Wise, in response to the latter's questions, that
he had not been asked to testify for the prosecution and that he
did not anticipate being present at Bursey's trial. This testimony,
elicited by defense counsel apparently for the purpose of
discrediting Weatherford's testimony on direct examination,
obviously does not constitute use by the prosecution of information
obtained from Weatherford's attendance at defense meetings.
Whatever the limitations on testimony by informants about
statements made at defense meetings attended by them, the Sixth
Amendment does not prevent the defense from introducing such
statements to undercut the effectiveness of the informant's
testimony for the prosecution.
Because we hold that Bursey's constitutional rights were not
violated by Weatherford's actions, we reverse the holding of the
Court of Appeals that Weatherford's superior, Strom, was also
liable because of his involvement in Weatherford's undercover
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins,
It is easy to minimize the significance of the incursion into
the lawyer-client relationship that the Court sanctions today.
After all, as the Court observes, there is no evidence that
Weatherford went to the meetings between Bursey and his lawyer with
an intent to spy; that he reported to the prosecutor
Page 429 U. S. 562
on those meetings; or that what he learned was used to develop
evidence against Bursey. But while what occurred here may be
"the obnoxious thing in its mildest and least repulsive form . .
. , illegitimate and unconstitutional practices get their first
footing in that way, namely, by silent approaches and slight
deviations from legal modes of procedure."
Boyd v. United States, 116 U.
, 116 U. S. 635
(1886). I cannot join in providing even the narrowest of openings
to the practice of spying upon attorney-client communications.
There are actually two independent constitutional values that
are jeopardized by governmental intrusions into private
communications between defendants and their lawyers. First, the
integrity of the adversary system and the fairness of trials is
undermined when the prosecution surreptitiously acquires
information concerning the defense strategy and evidence (or lack
of it), the defendant, or the defense counsel. In Wardius v.
Oregon, 412 U. S. 470
(1973), this Court made clear that, while
"the Due Process Clause has little to say regarding the amount
of discovery which the parties must be afforded . . . , it does
speak to the balance of forces between the accused and his
at 412 U. S. 474
Due process requires that discovery "be a two-way street."
"The State may not insist that trials be run as a 'search for
truth' so far as defense witnesses are concerned while maintaining
'poker game' secrecy for its own witnesses. It is fundamentally
unfair to require a defendant to divulge the details of his own
case while, at the same time, subjecting him to the hazard of
surprise concerning refutation of the very pieces of evidence which
he disclosed to the State."
at 412 U. S.
-476. At issue in Wardius
was a statute
compelling defendants to provide certain information about their
case to the prosecution. But the same concerns are implicated when
the State seeks such information not by force of law, but by
surreptitious invasions and deceit.
Page 429 U. S. 563
Of equal concern, governmental incursions into confidential
lawyer-client communications threaten criminal defendants' right to
the effective assistance of counsel. Only last Term, we held that
the right to counsel encompasses the right to confer with one's
lawyer. Geders v. United States, 425 U. S.
(1976). See also Reynolds v. Cochran,
365 U. S. 525
365 U. S. 531
(1961); Hawk v. Olson, 326 U. S. 271
326 U. S. 278
(1945); Avery v. Alabama, 308 U.
, 308 U. S. 446
(1940); Powell v. Alabama, 287 U. S.
, 287 U. S. 57
"[a]s a practical matter, if the client knows that damaging
information could more readily be obtained from the attorney
following disclosure than from himself in the absence of
disclosure, the client would be reluctant to confide in his lawyer
and it would be difficult to obtain fully informed legal
Fisher v. United States, 425 U.
, 425 U. S. 403
(1976). See also United States v. Nobles, 422 U.
, 422 U. S.
-239 (1975). For this reason, it has long been
recognized that "the essence of the Sixth Amendment right is . . .
privacy of communication with counsel." United States v.
485 F.2d 1213, 1224 (CA2 1973), cert. denied,
417 U.S. 950 (1974). See, e.g., Caldwell v. United States,
92 U.S.App.D.C. 355, 205 F.2d 879 (1953); Coplon v. United
89 U.S.App.D.C. 103, 191 F.2d 749 (1951); Louie
Yung v. Coleman, 5 F. Supp.
, 703 (Idaho 1934); cf., e.g., In re Rider,
App. 797, 195 P. 965 (1920); Thomas v. Mills,
117 Ohio St.
114, 157 N.E. 488 (1927); State ex rel. Tucker v. Davis,
Okla.Crim. 94, 130 P. 962 (1913); Turner v. State,
Tex.Crim. 627, 241 S.W. 162 (1922); Annot., 5 A.L.R.3d 1360
The Court today apparently concludes that neither of these
constitutional values is infringed when, as here, the State does
not act with a purpose to intercept information about the defense,
and the information that is uncovered is neither transmitted to the
prosecutor nor used by him to the defendant's detriment. I
respectfully disagree. In my view,
Page 429 U. S. 564
the "balance of forces between the accused and his accuser" is
sharply skewed in favor of the accuser if the government's key
witnesses are permitted to discover the defense strategy by
intercepting attorney-client communications, even if the witnesses
cannot divulge the information to the prosecution. With this
information, the witnesses are in a position to formulate in
advance answers to anticipated questions, and even to shade their
testimony to meet expected defenses. [Footnote 2/1
] Furthermore, because of these dangers,
defendants may be deterred from exercising their right to
communicate candidly with their lawyers if government witnesses can
intrude upon the lawyer-client relationship with impunity so long
as they do not discuss what they learn with the prosecutor.
] And insofar as the
Sixth Amendment establishes an independent right to confidential
communications with a lawyer, that right, by definition, is invaded
when a government agent attends meetings of the defense team at
which defense plans are reviewed. [Footnote 2/3
Page 429 U. S. 565
But even if I were to agree that unintended and undisclosed
interceptions by government witness employees affect neither the
fairness of trials nor the effectiveness of defense counsel, I
still could not join in upholding the practice. For, in my view,
the precious constitutional rights at stake here, like other
constitutional rights, need "breathing space to survive," NAACP
v. Button, 371 U. S. 415
371 U. S. 433
(1963), and a prophylactic prohibition on all intrusions of this
sort is therefore essential. A rule that offers defendants relief
only when they can prove "intent" or "disclosure" is, I fear,
little better than no rule at all. Establishing that a desire to
intercept confidential communications was a factor in a State's
decision to keep an agent under cover will seldom be possible,
since the State always can argue plausibly that its sole purpose
was to continue to enjoy the legitimate services of the undercover
agent. Proving that an informer reported to the prosecution on
defense strategy will be equally difficult, not only because such
proof requires an informer or prosecutor to admit his own
wrongdoing (and open the door to damages suits and attacks on
convictions), but also because an informer's failure to make a
report after overhearing a lawyer-client session oftentimes can be
an effective means of communicating to the prosecutor that nothing
surprising was uncovered. [Footnote
] Given these problems of proof, the only way to assure that
defendants will feel free to communicate candidly with their
lawyers is to prohibit the government from intercepting such
Page 429 U. S. 566
confidential communications, at least absent a compelling
justification for doing so. [Footnote
Like the Court of Appeals, and unlike the majority today, I
believe a per se
rule of this sort is fully supported, if
not compelled, by our decisions in Black v. United States,
385 U. S. 26
(1966), and O'Brien v. United States, 386 U.
(1967). In both cases, the United States informed
this Court that lawyer-client conversations had been intercepted by
surveillance devices installed to investigate crimes unrelated to
the crimes for which the defendants were convicted. Memorandum for
United States in Black v. United States,
O.T. 1965, No.
1029, p. 2; Brief for United States in O'Brien v. United
O.T. 1966, No. 823, pp. 10-11. In Black,
Government reported that information uncovered through the
monitoring had been relayed to the prosecutors, but maintained that
none of the evidence against the defendant had been derived from
the surveillance, and that nothing was learned "which had any
effect upon the presentation of the government's case or the
fairness of petitioner's trial." Memorandum for United States in
Black v. United States, supra
at 4. In O'Brien,
the Government stated that the only
Page 429 U. S. 567
intercepted lawyer-client conversation concerned the terms of
the defendant's bail, and that neither this conversation nor any
other conversation was disclosed to the prosecuting attorneys.
Brief for United States in O'Brien v. United States, supra
at 11. In both cases, the United States urged a remand for a
hearing to determine whether the intrusions had tainted the trials.
Memorandum for United States in Black v. United States,
at 5; Brief for United States in O'Brien v. United
at 12. Yet, in each case, this Court rejected
that course and instead remanded for a new trial. To say that these
cases establish that,
"when conversations with counsel have been overheard, the
constitutionality of the conviction depends on whether the
overheard conversations have produced, directly or indirectly, any
of the evidence offered at trial,"
at 429 U. S. 552
twists the cases beyond recognition. [Footnote 2/6
] That is precisely the principle that was
urged by the Government and by the dissenters, Black v. United
at 385 U. S. 30
(Harlan, J., dissenting); O'Brien v. United States, supra
at 386 U. S.
-347 (Harlan, J., dissenting), but was rejected by
the Court. By vacating the convictions without proof that "the
Page 429 U. S. 568
overheard conversations have produced . . . any of the evidence
offered at trial," Black
that "any governmental activity of the kind here in question
automatically vitiates . . . any conviction occurring during the
span of such activity," Black v. United States, supra
385 U. S. 31
(Harlan, J., dissenting), and precludes the use of tainted evidence
at any retrial.
Rather than retreating from Black
I would reaffirm them, and would affirm the judgment of the Court
If, for example, Weatherford had learned that Bursey would use
an entrapment defense against whoever admitted to being a
government agent, Weatherford could have planned his testimony so
as to minimize his own role and emphasize Bursey's predisposition.
Bursey, on the other hand, would have had little time to
reconstruct in his mind Weatherford's role in the decision to
commit the crime once Weatherford testified that he was the state
agent. Cf. United States v. Orman, 417 F.
, 1137 (Colo.1976).
The Court suggests, ante
at 429 U. S. 555
n. 4, that defendants can protect themselves against intrusions by
third parties by excluding them from meetings at which defense
strategy is discussed. But when, as here, the third party is an
indicted codefendant, exclusion is not practicable; codefendants
need to be informed of each other's strategy, if only to determine
whether joinder is prejudicial, cf.
14. Indeed, because of the interdependence of codefendants,
communications between a lawyer and his client generally remain
privileged even when disclosed to a codefendant or his attorney.
The Attorney-Client Privilege in Multiple Party
Situations, 8 Colum.J.Law & Soc.Problems 179 (1972).
Of course, the fact that Weatherford did not reveal what he
learned may be relevant to the amount of damages Bursey can
recover, as the Court of Appeals acknowledged. 528 F.2d 483, 487
(CA4 1975). No damages assessment has been made in this case,
however, since the District Court found no liability.
In this case, for example, the prosecutor might have assumed
that Weatherford had been privy to Bursey's defense plans, and that
Weatherford's acquiescence when told of the prosecutor's decision
to use him as a witness meant that the defense did not suspect
Weatherford or have any damaging information about him.
There is no evidence in this record that Weatherford's life
would have been jeopardized or any ongoing investigations
compromised had Weatherford given up his cover on March 20, 1970,
after the crime was committed, rather than on July 27, 1970, after
trial began. To the contrary, the fact that Weatherford felt no
need for police protection after trial, App. 107, suggests that
there was no danger at any time. And the Chief of the South
Carolina State Law Enforcement Division conceded that Weatherford
was not working on "anything particular" between the time of the
crime and the time of the trial. Id.
at 125. Indeed, the
Chief admitted that he "wasn't concerned" about losing
Weatherford's cover, because, after breaking the case, "his
identity is going to be known anyway." Id.
at 124. Thus,
the only legitimate justification the State had for arresting and
indicting Weatherford, and for retaining a lawyer and manufacturing
a story for him, was to postpone for several months the date at
which a new agent would have to be assigned again.
The Court's alternative suggestion, ante
429 U. S. 651
were actually Fourth
Amendment cases is equally unpersuasive. The briefs in
while noting the Fourth Amendment issue, Memorandum
for United States 4; Supplemental Memorandum for Petitioner 6,
focused on the Sixth Amendment violation, Memorandum for United
States 3-4; Supplemental Memorandum for Petitioner 7-20. The
opinion does not mention either the Fourth or Sixth Amendment, but
the narration of the facts makes clear that the Court's primary
concern was the interception of lawyer-client conversations. 385
U.S. at 385 U. S. 27
Moreover, during the same Term that Black
were decided, the Court, in another electronic
surveillance case, remanded for a taint hearing rather than for a
new trial because, "[u]nlike the situations in Black
. . .
. . . , there was apparently no direct
intrusion here into attorney-client discussions." Hoffa v.
United States, 387 U. S. 231
387 U. S. 233
(1967). See also Wolff v. McDonnell, 418 U.
, 418 U. S. 576
(1974) (WHITE, J.) (citing Black
Sixth Amendment cases); Hoffa v. United States,
385 U. S. 293
385 U. S. 307
(1966) (citing Black
as Sixth Amendment case).