Constitutional rights to counsel during interrogation: comparing rights under the Fifth and Sixth Amendments. (Legal Digest).

The U.S. Supreme Court has recognized two constitutional sources of the right to counsel during interrogation. One source is the Court's interpretation in Miranda v. Arizona (1) of the Fifth Amendment right against compelled self-incrimination; (2) the other is contained within the language of the Sixth Amendment. (3) Because the protections afforded individuals under these constitutional provisions differ, it is critical that law enforcement officers understand the provisions and appropriately apply their protections.

This article examines both the Fifth and Sixth Amendment rights to counsel and the underlying principles that support these rights. This article also reviews the Supreme Court's interpretation of these rights and the effects they have on a law enforcement officer's ability to engage in interrogation during various stages of a criminal investigation. Finally, suggestions are offered regarding policy considerations that incorporate the protections of the rights to counsel and optimize the potential of obtaining statements that are admissible in court.

Purpose of the Protections

Understanding the protections of the Fifth and Sixth Amendment rights to counsel and the concomitant procedural rules begins with an appreciation of the principals that underlie those rights. In Miranda, the Supreme Court concluded that custodial interrogation creates an inherently coercive environment that violates the Fifth Amendment protection against compelled self-incrimination. In an effort to reduce the inherent coerciveness, the Court created the now famous Miranda warnings (4) and required the government to give those warnings and obtain waivers prior to custodial interrogation. The warnings are designed in part to safeguard the right against compelled self-incrimination by ensuring custodial subjects that, if they choose to waive the right to silence, they will not have to face the government alone; they may have the assistance of counsel during interrogation.

The Sixth Amendment protections, on the other hand, do not relate to the coercive atmosphere of custodial interrogation. Rather, the provisions of the Sixth Amendment are intended to ensure fair prosecutions. Thus, once a criminal case has been initiated, (5) a defendant has a right to the assistance of counsel at all critical stages (6) of that prosecution.

Application of the Rights to Counsel

Because the impetus for the creation of the Miranda rights was the Supreme Court's concern that custodial interrogations are intrinsically coercive, the right to counsel contained within Miranda applies only when the subject of interrogation is in custody. The same concern prompted the Supreme Court to determine custody, not from the prospective of the law enforcement officer but, rather, that of the reasonable subject. (7) Whether or not law enforcement officers believe there is probable cause to arrest is irrelevant to the issue of custody. The determination is based on whether a reasonable person under the circumstances would sense the coerciveness of the environment that Miranda was designed to protect against.

Similarly, the Supreme Court has recognized an exception to the Miranda requirement when a cellmate informant, either an individual in custody or an undercover law enforcement officer, conducts the "custodial interrogation." (8) Because the subjects of cellmate questioning do not know that the government is interrogating them, they cannot feel the coerciveness Miranda was designed to protect against. Consequently, the practice of using cellmate informants does not contravene the Miranda rule.

The Sixth Amendment right to counsel, however, does not hinge on the issue of custody. Because the objective of the amendment is to guarantee a fair prosecution, the right to counsel under the Sixth Amendment does not attach until the government signals its commitment to prosecute by the initiation of adversarial judicial proceedings. (9) Once proceedings have begun "by way of formal charges, preliminary hearing, indictment, information or arraignment," (10) the defendant, whether in custody or not, has a right to counsel under the Sixth Amendment that has no recognized exceptions.

Scope of the Protections

The scope of the protections of the Fifth and Sixth Amendment rights to counsel likewise reflect the principles underlying those protections. Because the perceived coerciveness of custodial interrogation spawned the Miranda rule, the right to counsel under Miranda protects subjects of custodial interrogation regardless of the topic of interrogation. Whether subjects are questioned about the crimes they were arrested for, or totally unrelated criminal activities, is inconsequential because the rights under Miranda are not crime specific.

The Sixth Amendment right to counsel, on the other hand, is crime specific. Because the design of the amendment is to ensure fairness in the prosecution, the protections of the amendment extend only to the crimes with which the subject has been charged. Other uncharged, unrelated crimes, even those growing out of the same fact pattern as the crime or crimes charged, do not fall within the protections of the Sixth Amendment. (11)

Waiver of Rights

In one respect, the rights to counsel under both the Fifth and Sixth Amendments are identical. The Supreme Court has placed on the government the burden of proving a knowing, intelligent, and voluntary waiver of the right to counsel, regardless of its origin. (12)

Invocation of the Right to Counsel

Unlike the waiver, the methods and burdens of proving an invocation of the right to counsel under the Fifth and Sixth Amendments vary greatly. With respect to the Fifth Amendment right, the Supreme Court has held that once the government proves a knowing, intelligent, and voluntary waiver of the right, the burden shifts to the defense to prove a subsequent clear and unequivocal invocation of the right to counsel. (13) If a custodial subject makes a vague reference to counsel after initially waiving the Miranda rights, it is insufficient to invoke the right to counsel and the government has no obligation to ask clarifying questions. (14)

An invocation of the right to counsel under the Sixth Amendment neither has to be clear nor unequivocal. The Supreme Court has held that a defendant who requests or accepts the appointment of counsel is, in fact, invoking the protections of the Sixth Amendment. (15) Thus, a defendant may, without intending or wanting to, invoke the Sixth Amendment right to counsel.

Duration of Protection

The duration of the protections afforded an individual invoking the right to counsel depends on which right is invoked. In Minnick v. Mississippi, (16) the Supreme Court held that an invocation of the right to counsel under Miranda endures as long as the individual invoking that right remains in continuous custody. Unless defense counsel is present, this protection precludes government-initiated interrogation of the subject for the duration of uninterrupted custody.

The Miranda protection is neither crime nor agency specific. An invocation of the Miranda right to counsel does not only impede future interrogations by the law enforcement agency procuring the invocation. Rather, it precludes any representatives of the government from initiating interrogation without the presence of counsel.

As a result of the rule in Minnick, an invocation of the Fifth Amendment right to counsel provides indeterminate protection. Custodial subjects who invoke the Miranda right to counsel and, thereafter, are released on bond or bail lose the protection of their invocation and may be subjected to government-initiated interrogation at a later date. However, invoking subjects who remain in custody pending trial, or are convicted and sentenced to prison without ever being released from custody continue to benefit from the protections of their invocations for the entire term of imprisonment. Even if they commit crimes while in prison, subjects who invoke the Miranda right to counsel and remain in continuous custody cannot be subjected to government-initiated interrogation without their attorney present.

Because the protections of the Sixth Amendment are not related to custody, the duration of an invocation of the Sixth Amendment right to counsel is much more predictable. The protections of the Sixth Amendment cease when the prosecution is completed or charges are dismissed. Once invoked, the government cannot initiate interrogation regarding charged offenses through the remainder of the prosecution unless defense counsel is present. However, once the prosecution is concluded or terminated, there are no lingering effects of an invocation under the Sixth Amendment.

It is important to note that while invocations of the right to counsel under both the Fifth and Sixth Amendments limit government-initiated interrogations, the Supreme Court has held that the protections of both amendments can be waived. (17) Thus, while the government may not initiate interrogation under certain circumstances, individuals who previously have invoked either a Fifth or Sixth Amendment right to counsel are able to change their minds and initiate interrogation without the presence of counsel. (18)

Effects of Violations

The Supreme Court has held that statements taken in violation of either the Fifth or Sixth Amendment right to counsel cannot be used in the government's case in chief or as the principal cause of action. However, such statements are admissible to impeach defendants that take the stand to testify at trial. (19) The practical effect of obtaining incriminating statements from defendants in violation of their rights to counsel, therefore, is that it prevents them from taking the stand in their own defense.

Although obtaining valuable impeachment material is a common goal of law enforcement, officers risk personal liability if they obtain such material through intentional or grossly negligent violations of the Constitution. (20) Violations of the Sixth Amendment right to counsel have long been recognized as the basis for civil suits against law enforcement officers. Similarly, intentional violations of the Miranda rights also have been viewed in the past as sufficient to support civil actions against officers. Most recently, the Supreme Court recognized the Miranda rule as having reached "constitutional proportions." (21) Therefore, even unintentional violations of Miranda that are viewed as grossly negligent may result in successful civil suits against law enforcement officers.

Policy Considerations

At times, the law as it relates to the Fifth and Sixth Amendment rights to counsel seems like a veritable quagmire. Through training and well-crafted policies, however, many of the common mistakes that lead to the suppression of incriminating statements can be avoided.

Because of the disparity in the protections afforded individuals who invoke their rights to counsel under either the Fifth or Sixth Amendment, law enforcement officers must be well trained to recognize which right is being invoked and what limitations the invocation imposes on future investigations. Because of time constraints and other considerations, consulting with prosecutors during the course of interrogations may not always be a viable option.

Department policy makers should recognize that individuals who invoke their rights to counsel under Miranda are afforded considerably greater protection than those who invoke their right to silence. (22) Consequently, department Miranda policies and forms should be drafted in a manner that makes it clear, in the event of an invocation, which right is being invoked.

Moreover, law enforcement agencies should adopt policies that require detailed record keeping regarding subjects who invoke their rights. Keeping detailed records will assist other officers, both within and outside the agency, who have an interest in interrogating the subject. Whenever possible, records should clearly indicate--

* whether the subject invoked the right to silence or counsel under Miranda;

* whether the subject was in custody at the time of invocation;

* whether there has been any break in custody;

* whether adversarial judicial proceedings have been initiated;

* what are the specific charges filed against the subject;

* whether the subject requested or accepted the appointment of counsel;

* the names and contact numbers of individuals in the prosecutors' offices that can provide information regarding the status of the prosecutions; and

* the names and contact numbers of the subjects' defense counsel.

Although the confusion inherent in having two constitutional rights to counsel may never be eliminated, training and policies designed to address the problems and provide the necessary information for law enforcement officers to make informed decisions may reduce the number of statements suppressed and protect law enforcement officers from the potential of civil liability.

Endnotes

(1.) 384 U.S. 436 (1966).

(2.) U.S. CONST. amend. V provides in part: "No person...shall be compelled in any criminal case to be a witness against himself...."

(3.) U.S. CONST. amend. VI provides in part: "In all criminal prosecutions, the accused shall enjoy...the assistance of counsel for his defence."

(4.) Prior to interrogation, Miranda requires that custodial suspects be advised of the right to remain silent, that any statements made may be used against them at trial, that they have the right to have an attorney present during questioning, and, if they cannot afford one, an attorney will be appointed for them.

(5.) Kirby v. Illinois, 406 U.S. 682 (1972).

(6.) The Supreme Court has held that any attempt by the government to "deliberately elicit" information from an accused is a "critical stage" of the prosecution. See, Brewer v. Williams, 430 U.S. 387 (1977).

(7.) Stansbury v. California, 511 U.S. 318 (1994).

(8.) Illinoins v. Perkins, 496 U.S. 292 (1990). Using the same rationale as the Supreme Court in Perkins, lower courts have extended the exception to noncustodial individuals cooperating with police by questioning in-custody suspects who are unaware of the police affiliation. See, e.g., Alexander v. Connecticut, 917 F.2d 747 (CA2 1990), cert. denied, 111 S. Ct. 2831 (1991).

(9.) Supra note 5.

(10.) Supra note 5, at 689.

(11.) Texas v. Cobb, 121 S. Ct. 1335 (2001). In Cobb, the Supreme Court found that the Sixth Amendment right to counsel did not preclude officers from questioning a suspect who had previously invoked his Sixth Amendment right to counsel on a burglary charge about a murder that occurred during the charged burglary.

(12.) Miranda and Faretta v. California, 422 U.S. 806 (1975).

(13.) Davis v. United States, 114 S. Ct. 2350 (1994).

(14.) Id.

(15.) McNeil v. Wisconsin, 111 S. Ct. 2204 (1991).

(16.) Minnick v. Mississippi, 111 S. Ct. 486 (1990).

(17.) Edwards v. Arizona, 101 S. Ct. 1880 (1981) and Michigan v. Jackson, 106 S. Ct. 1404 (1986).

(18.) When a subject reinitiates interrogation, it is important to document that reinitiation and obtain a waiver of rights indicating the subject's willingness to proceed without counsel.

(19.) See Michigan v. Harvey, 494 U.S. 344 (1990) and Oregon v. Hass, 420 U.S. 714 (1975).

(20.) 42 U.S.C. [section]1983 or Bivens v. Six Unknown Federal Narcotics Agents, 102 5. Ct. 2727 (1982).

(21.) United States v. Dickerson, 120 5. Ct. 2326 (2000).

(22.) In Michigan v. Mosley, 423 U.S. 96 (1975) the Supreme Court held that reinterrogation of individuals who invoke their right to silence is permissible if officers wait a reasonable period of time. In Mosley, the Court deemed 2 hours reasonable.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.