There are many different types of informants; one of the types of informant includes a cellmate informant. A cellmate informant is an informant that is incarcerated at the same time as a suspect and becomes friendly with the suspect in order to obtain information pertaining to the suspect's criminal activity.
Whether the usage of information from the cellmate informant violates the suspect's Miranda Rights, Due Process Rights, Fifth, or Sixth Amendment to the United States Constitution, depends upon the circumstances. Once the suspect has asked for the assistance of counsel it is unclear whether any subsequent information obtained by the cellmate informant may be used against the suspect.
Once the suspect invokes his Miranda Rights, officers may no longer question him without the assistance of counsel. However, it is unclear whether a cellmate informant that questions the suspect and obtains information is actually violating the suspect's Miranda Rights. Typically, law enforcement officers will speak to the cellmate informant and give the informant direction in the type of areas that the officers seek to obtain further information. Most federal courts are in agreement that the invocation of the suspect's Miranda Rights does not bar the subsequent use of information obtained from the cellmate informant.
Due Process and the Fifth Amendment
The Fifth Amendment provides due process protections and requires that all suspects and defendants are treated with fundamental fairness. A due process violation may occur if the cellmate informant threatens or coerces an involuntary statement out of the suspect. An overzealous cellmate informant may violate the suspect's due process rights by gathering information by way of threats or abuse. To avoid due process violations, the cellmate informant should be advised as to the type of questions and the manner in which they should be asked to the suspect.
Sixth Amendment Right to Counsel
If law enforcement officers seek to use information derived from the cellmate informant, the law enforcement officers must determine:
If law enforcement officers place the cellmate informant in the suspect's cell for the purpose of gathering information and the suspect has been formally charged, the suspect's Sixth Amendment right to counsel has not automatically been violated. In order to show a violation of the suspect's Sixth Amendment right to counsel there must be a deliberate attempt by the cellmate informant to elicit information regarding the charges against the suspect.
Information about Unrelated Offenses
If the cellmate informant obtains information about an unrelated offense, that information may be used against the suspect regardless of whether the suspect invoked his right to counsel or regardless of whether the right to counsel attached. The Sixth Amendment right to counsel only attaches with respect to the crimes that the suspect has been charged with and not any crime.