concurring in the judgment.
This litigation is exceptional for at least three reasons. The facts are unusually tragic; it involves an unusually clear violation of constitutional rights; and it graphically illustrates the societal costs that may be incurred when police officers decide to dispense with the requirements of law. Because the Court does not adequately discuss any of these aspects of the case, I am unable to join its opinion.
1-H
In holding that respondent’s first conviction had been unconstitutionally obtained, Justice Stewart, writing for the Court, correctly observed:
“The pressures on state executive and judicial officers charged with the administration of the criminal law are great, especially when the crime is murder and the victim a small child. But it is precisely the predictability of those pressures that makes imperative a resolute loyalty to the guarantees that the Constitution extends to us all.” Brewer v. Williams, 430 U. S. 387, 406 (1977) (Williams I).
There can be no denying that the character of the crime may have an impact on the decisional process. As the Court *452was required to hold, however, that does not permit any court to condone a violation of constitutional rights.1 Today’s decision is no more an ad hoc response to the pressures engendered by the special facts of the case than was Williams I. It was the majority in Williams I that recognized that “evidence of where the body was found and of its condition might well be admissible on the theory that the body would have been discovered in any event, even had incriminating statements not been elicited from Williams.” Id., at 407, n. 12. It was the author of today’s opinion of the Court who characterized this rule of law as a “remarkable” and “unlikely theory.” Id., at 416-417, n. 1 (Burger, C. J., dissenting). The rule of law that the Court adopts today has an integrity of its own and is not merely the product of the hydraulic pressures associated with hard cases or strong words.
II
The constitutional violation that gave rise to the decision in Williams I is neither acknowledged nor fairly explained in the Court’s opinion. Yet the propriety of admitting evidence relating to the victim’s body can only be evaluated if that constitutional violation is properly identified.
Before he was taken into custody, Williams, as a recent escapee from a mental hospital who had just abducted and murdered a small child, posed a special threat to public safety. Acting on his lawyer’s advice, Williams surrendered to the Davenport police. The lawyer notified the Des Moines police of Williams’ imminent surrender, and police officials, *453in the presence of Detective Learning, agreed that Williams would not be questioned while being brought back from Davenport. Williams was advised of this agreement by his attorney. After he was arraigned in Davenport, Williams conferred with another lawyer who was acting as local counsel. This lawyer reminded Williams that he would not be questioned. When Detective Learning arrived in Davenport, local counsel stressed that the agreement was to be carried out and that Williams was not to be questioned. Detective Learning then took custody of respondent, and denied counsel’s request to ride to Des Moines in the police car with Williams. The “Christian burial speech” occurred during the ensuing trip.2 As Justice Powell succinctly observed, this was a case “in which the police deliberately took advantage of an inherently coercive setting in the absence of counsel, contrary to their express agreement.” Id., at 414, n. 2 (concurring opinion).
The Sixth Amendment guarantees that the conviction of the accused will be the product of an adversarial process, rather than the ex parte investigation and determination by the prosecutor.3 Williams I grew out of a line of cases in which this Court made it clear that the adversarial process protected by the Sixth Amendment may not be undermined by the strategems of the police.
Spano v. New York, 360 U. S. 315 (1959), dealt with the confession of an uncounseled defendant after prolonged interrogation subsequent to his indictment for first-degree *454murder. Four Justices indicated that this questioning violated the Sixth Amendment, noting that to hold otherwise would totally undermine the adversarial process of proof:
“Our Constitution guarantees the assistance of counsel to a man on trial for his life in an orderly courtroom, presided over by a judge, open to the public, and protected by all the procedural safeguards of the law. Surely a Constitution which promises that much can vouchsafe no less to the same man under midnight inquisition in the squad room of a police station.” Id., at 327 (Stewart, J., concurring, joined by Douglas and Brennan, JJ.).
As Justice Douglas asked: “[W]hat use is a defendant’s right to effective counsel at every stage of a criminal case if, while he is held awaiting trial, he can be questioned in the absence of counsel until he confesses? In that event the secret trial in the police precincts effectively supplants the public trial guaranteed by the Bill of Rights.” Id., at 326 (Douglas, J., concurring, joined by Black and Brennan, JJ.).
This view ripened into a holding in Massiah v. United States, 377 U. S. 201 (1964): “We hold that the petitioner was denied the basic protections of [the Sixth Amendment] when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” Id., at 206. Williams I held that Detective Learning had violated “the clear rule of Massiah” by deliberately eliciting incriminating statements from respondent during the pendency of the adversarial process and outside of that process. See 430 U. S., at 399-401. The violation was aggravated by the fact that Detective Learning had breached a promise to counsel, an act which can only undermine the role of counsel in the adversarial process.4 The *455“Christian burial speech” was nothing less than an attempt to substitute an ex parte, inquisitorial process for the clash of adversaries commanded by the Constitution.5 Thus the now-familiar plaint that “ ‘[t]he criminal is to go free because the constable has blundered,’ ” ante, at 447 (quoting People v. Defore, 242 N. Y. 13, 21, 150 N. E. 585, 587 (1926)), is entirely beside the point. More pertinent is what The Chief Justice wrote for the Court on another occasion: “This is not a case where, in Justice Cardozo’s words, ‘the constable . . . blundered,’ rather, it is one where the ‘constable’ planned an impermissible interference with the right to the assistance of counsel.” United States v. Henry, 447 U. S. 264, 274-275 (1980) (footnote and citation omitted).6
*456III
Once the constitutional violation is properly identified, the answers to the questions presented in this case follow readily. Admission of the victim’s body, if it would have been discovered anyway, means that the trial in this case was not the product of an inquisitorial process; that process was untainted by illegality. The good or bad faith of Detective Learning is therefore simply irrelevant. If the trial process was not tainted as a result of his conduct, this defendant received the type of trial that the Sixth Amendment envisions. See United States v. Morrison, 449 U. S. 361 (1981); Weatherford v. Bursey, 429 U. S. 545 (1977); United States v. Wade, 388 U. S. 218, 240-243 (1967). Generalizations about the exclusionary rule employed by the majority, see ante, at 443-448, simply do not address the primary question in the case.
The majority is correct to insist that any rule of exclusion not provide the authorities with an incentive to commit violations of the Constitution. Ante, at 445-446. If the inevitable discovery rule provided such an incentive by permitting the prosecution to avoid the uncertainties inherent in its search for evidence, it would undermine the constitutional guarantee itself, and therefore be inconsistent with the deterrent purposes of the exclusionary rule.7 But when the burden of proof on the inevitable discovery question is placed on the prosecution, ante, at 444, it must bear the risk of error in the determination made necessary by its constitutional violation. The uncertainty as to whether the body would *457have been discovered can be resolved in its favor here only because, as the Court explains ante, at 448-450, petitioner adduced evidence demonstrating that at the time of the constitutional violation an investigation was already under way which, in the natural and probable course of events, would have soon discovered the body. This is not a case in which the prosecution can escape responsibility for a constitutional violation through speculation; to the extent uncertainty was created by the constitutional violation the prosecution was required to resolve that uncertainty through proof.8 Even if Detective Learning acted in bad faith in the sense that he deliberately violated the Constitution in order to avoid the possibility that the body would not be discovered, the prosecution ultimately does not avoid that risk; its burden of proof forces it to assume the risk. The need to adduce proof sufficient to discharge its burden, and the difficulty in predicting whether such proof will be available or sufficient, means that the inevitable discovery rule does not permit state officials to avoid the uncertainty they would have faced but for the constitutional violation.
The majority refers to the “societal cost” of excluding probative evidence. Ante, at 445. In my view, the more relevant cost is that imposed on society by police officers who decide to take procedural shortcuts instead of complying with the law. What is the consequence of the shortcut that Detective Learning took when he decided to question Williams in this case and not to wait an hour or so until he arrived in *458Des Moines?9 The answer is years and years of unnecessary but costly litigation. Instead of having a 1969 conviction affirmed in routine fashion, the case is still alive 15 years later. Thanks to Detective Learning, the State of Iowa has expended vast sums of money and countless hours of professional labor in his defense. That expenditure surely provides an adequate deterrent to similar violations; the responsibility for that expenditure lies not with the Constitution, but rather with the constable.
Accordingly, I concur in the Court’s judgment.
As I wrote at the time:
“Nothing we write, no matter how well reasoned or forcefully expressed, can bring back the victim of this tragedy or undo the consequences of the official neglect which led to the respondent’s escape from a state mental institution. The emotional aspects of the case make it difficult to decide dispassionately, but do not qualify our obligation to apply the law with an eye to the future as well as with concern for the result in the particular case before us.” 430 U. S., at 415 (concurring opinion).
These are the facts found in Williams I. See 430 U. S., at 390-393. As Professor Kamisar has demonstrated, there are a number of unexplained ambiguities in the record. Kamisar, Foreword: Brewer v. Williams — A Hard Look at a Discomfiting Record, 66 Geo. L. J. 209 (1977). Nevertheless, this account of the facts was the basis for Williams I, and neither party seeks reexamination of those findings.
See, e. g., Strickland v. Washington, 466 U. S. 668, 685-687 (1984); United States v. Cronic, 466 U. S. 648, 655-657 (1984); Polk County v. Dodson, 454 U. S. 312, 318 (1981); Herring v. New York, 422 U. S. 853, 862 (1975); Anders v. California, 386 U. S. 738, 743 (1967).
“The defendant placed his trust in an experienced Iowa trial lawyer who in turn trusted the Iowa law enforcement authorities to honor a commitment made during negotiations which led to the apprehension of a potentially dangerous person. Under any analysis, this was a critical stage of *455the proceeding in which the participation of an independent professional was of vital importance to the accused and to society. At this stage — as in countless others in which the law profoundly affects the life of the individual — the lawyer is the essential medium through which the demands and commitments of the sovereign are communicated to the citizen. If, in the long run, we are seriously concerned about the individual’s effective representation by counsel, the State cannot be permitted to dishonor its promise to this lawyer.” 430 U. S., at 415 (Stevens, J., concurring) (footnote omitted). See also id., at 401, n. 8.
“The whole point of Massiah is the prevention of the state from taking advantage of an uncounseled defendant once sixth amendment rights attach. The Christian burial speech was an attempt to take advantage of Williams. The attempt itself is what Massiah prohibits. The attempt itself violates the constitutional mandate that the system proceed, after some point, only in an accusatorial manner.” Grano, Rhode Island v. Innis: A Need to Reconsider the Constitutional Premises Underlying the Law of Confessions, 17 Am. Crim. L. Rev. 1, 35 (1979) (emphasis in original).
See also 430 U. S., at 409 (MARSHALL, J., concurring). The theme of The Chief Justice’s dissenting opinion in Williams I seems to permeate the opinion he has written for the Court today, even to the extent of again using the familiar hypothetical found in People v. Defore. Compare the discussion of Judge Cardozo’s “grim prophecy,” 430 U. S., at 416-417 (dissenting opinion), with ante, at 447-448. See also Stone v. Powell, 428 U. S. 465, 502 (1976) (BURGER, C. J., concurring); Bivens v. Six Unknown Federal Narcotics Agents, 403 U. S. 388, 413, and n. 3 (1971) (Burger, C. J., dissenting); Killough v. United States, 114 U. S. App. D. C. 305, 323, 315 F. 2d 241, 259 (1962) (en banc) (Burger, J., dissenting).
See Stovall v. Denno, 388 U. S. 293, 297 (1967); Gilbert v. California, 388 U. S. 263, 272-273 (1967). See also Moore v. Illinois, 434 U. S. 220 (1977). See generally, e. g., Stone v. Powell, 428 U. S., at 484; United States v. Janis, 428 U. S. 433, 443, n. 12 (1976); United States v. Calan-dra, 414 U. S. 338, 347-348 (1974); Terry v. Ohio, 392 U. S. 1, 29 (1968); Tehan v. United States ex rel. Shott, 382 U. S. 406, 413 (1966); Mapp v. Ohio, 367 U. S. 643, 656 (1961); Elkins v. United States, 364 U. S. 206, 217 (1960).
I agree with the majority’s holding that the prosecution must prove that the evidence would have been inevitably discovered by a preponderance of the evidence rather than by clear and convincing evidence, ante, at 444-445, n. 5. An inevitable discovery finding is based on objective evidence concerning the scope of the ongoing investigation which can be objectively verified or impeached. Hence an extraordinary burden of proof is not needed in order to preserve the defendant’s ability to subject the prosecution’s case to the meaningful adversarial testing required by the Sixth Amendment. See United States v. Cronic, 466 U. S., at 655-657.
In this connection, it is worth noting, as Justice Marshall did in Williams I, that in light of the assistance that respondent’s attorney had provided to the Des Moines police, it seems apparent that the lawyer intended to learn the location of the body from his client and then reveal it to the police. See 430 U. S., at 407-408 (concurring opinion). Thus, the need for a shortcut was practically nonexistent.