An accused is denied the protections of the Sixth Amendment “when there [is] used against him at his trial … his own incriminating words, which federal agents … deliberately elicited from him after he had been indicted and in the absence of his counsel.” Massiah v. United States, 377 U.S. 201, 206. This Court has consistently applied the deliberate-elicitation standard in subsequent Sixth Amendment cases, see, e.g., United States v. Henry, 447 U.S. 264, and has expressly distinguished it from the Fifth Amendment custodial-interrogation standard, see, e.g., Michigan v. Jackson, 475 U.S. 625. There is no question here that the officers “deliberately elicited” information from petitioner at his home. Because their discussion took place after petitioner had been indicted, outside the presence of counsel, and in the absence of any waiver of his Sixth Amendment rights, the officers’ actions violated the Sixth Amendment standards established in Massiah, supra, and its progeny. Pp. 4—5.

In applying Elstad, supra, to hold that the admissibility of the jailhouse statements turned solely on whether they were knowing and voluntary, the court did not reach the question whether the Sixth Amendment requires suppression of those statements on the ground that they were the fruits of previous questioning that violated the Sixth Amendment deliberate-elicitation standard. As this Court has not had occasion to decide whether the rationale of Elstad applies when a suspect makes incriminating statements after a knowing and voluntary waiver of his right to counsel notwithstanding earlier police questioning in violation of Sixth Amendment standards, the case is remanded to the Eighth Circuit to address this issue in the first instance. Pp. 5—6.