National Mole Day: From Avogadro’s Number to Criminal Procedure "Moles"
Happy National Mole Day! Celebrated annually on October 23 from 6:02 a.m. to 6:02 p.m., Mole Day recognizes Avogadro’s Number (6.02 × 10²³), a fundamental concept in chemistry used to measure atoms, molecules, and other particles. The day was created to foster interest in chemistry.
But aside from the chemistry mole, let’s talk about another type of mole: the small, burrowing mammal often used as a mascot for this day. And in the legal world, the term "mole" takes on yet another meaning—a criminal informant who secretly gathers information, often working for law enforcement. Informants play a crucial role in criminal investigations. But their use involves important constitutional protections under both the Fifth and Sixth Amendments, especially in relation to confessions.
Here’s what bar exam takers need to know.
Informants and the Fifth Amendment
The Fifth Amendment protects individuals from being compelled to incriminate themselves, particularly during custodial interrogations. If a suspect is in custody, law enforcement must provide Miranda warnings before any interrogation begins. But what happens when a suspect unknowingly confesses to an informant?
The key case here is Illinois v. Perkins, 496 U.S. 292 (1990), where the Supreme Court held that Miranda warnings are not required when an undercover officer or informant elicits a confession from a suspect who doesn’t realize they’re speaking to law enforcement. In this case, because the suspect wasn’t aware they were talking to an informant, the Court ruled that the coercive atmosphere of a typical interrogation wasn’t present, and thus, the confession was admissible.
In short, under the Fifth Amendment, informants can gather confessions without violating Miranda, as long as the suspect doesn’t know the informant is acting on behalf of law enforcement.
Informants and the Sixth Amendment
Things change once formal charges have been filed. At this point, the Sixth Amendment right to counsel kicks in, ensuring that a defendant has the right to an attorney during any interrogation about the charges.
In Massiah v. United States, 377 U.S. 201 (1964), the Supreme Court ruled that after formal charges are filed, it is unconstitutional for law enforcement to use an informant to deliberately elicit information from a defendant without their attorney present. In this case, the informant’s actions were considered a violation of the defendant’s Sixth Amendment right to counsel. Once charges are filed, the government cannot use informants to circumvent the defendant’s right to legal representation.
Much like a mole burrows underground, criminal informants often operate in secret. But the Constitution sets clear limits on when and how they can be used, especially in obtaining confessions. Under the Fifth Amendment, informants can gather evidence without violating Miranda if the suspect doesn’t realize they’re speaking to law enforcement. However, after formal charges are filed, the Sixth Amendment steps in, and the use of informants to elicit confessions without counsel present is strictly prohibited.
For bar exam takers, understanding these distinctions is important for tackling Fifth and Sixth Amendment questions on the exam.
