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The Sixth Amendment Right to Counsel.

Application and Limitations

According to the Supreme Court of the United States, both the Fifth and Sixth Amendments to the U.S. Constitution afford individuals the right to counsel under certain circumstances. The right to counsel derived from the Fifth Amendment protection against compelled self incrimination was introduced by the Supreme Court in Miranda v. Arizona, [1] and has received an abundance of attention from both the media and the courts. As a result, the Fifth Amendment right to counsel is well known to the public and to law enforcement officers who routinely contend with the Miranda rule.

The right to counsel contained in the Sixth Amendment, however, has been the topic of far less litigation and, though significant, has received less attention from the media, law enforcement policy makers, and trainers. This article examines the Sixth Amendment right to counsel and considers its application to and limitations on law enforcement investigations.

The Attachment of the Sixth Amendment

The Sixth Amendment provides a list of protections available to the accused in "all criminal prosecutions." [2] The list includes, among other protections, the right to the assistance of counsel. The primary purpose of the Sixth Amendment is to ensure a fair prosecution. Thus, the Supreme Court has held that the protections of the Sixth Amendment, including the right to counsel, do not apply at all stages of a criminal investigation. [3] Rather, the Sixth Amendment rights attach once the government has committed itself to the prosecution of the case by the initiation of adversarial judicial proceedings.

Prior to the initiation of adversarial judicial proceedings, no Sixth Amendment right to counsel exists [4] and law enforcement officers conducting an investigation may continue their efforts unrestrained by the Sixth Amendment right to counsel. However, once adversarial judicial proceedings have begun, "whether by way of formal charge, preliminary hearing, indictment, information or arraignment," [5] the accused has the right to the assistance of counsel at all critical stages of the prosecution.

Critical Stages

Once the prosecution has begun, the Sixth Amendment does not guarantee the accused unfettered access to an attorney. Rather, the Supreme Court has held that the accused has the right to the assistance of counsel at all "critical stages" of the prosecution. [6]

Except for the initial appearance [7] in court, during which the accused is simply advised of the charges and constitutional rights, all adversarial court proceedings have been determined to be critical stages in the prosecution. [8] Court proceedings, however, are typically the responsibility of prosecutors, not law enforcement officers, and, thus, are beyond the scope of this article. For law enforcement purposes, the two aspects of criminal investigations that have been determined to be critical stages in the prosecution are post-attachment line-ups [9] and the "deliberate elicitation" of information from the accused. [10]


In United States v. Wade, [11] the Supreme Court held that the potential for prejudice posed by suggestive lineups and the need to preserve the ability of the defense to conduct effective cross-examinations at trial necessitated the finding that post-attachment lineups are critical stages in the prosecution. Consequently, once the Sixth Amendment right to counsel has attached, the accused and defense counsel have the right to be notified of an intended lineup concerning the charged offense and, the lineup cannot be conducted absent the presence of defense counsel or an intelligent waiver executed by the accused.

Deliberate Elicitation

In Brewer v. Williams, [12] the Supreme Court held that any attempts on the part of the government to deliberately elicit information from accused [13] individuals regarding the crimes they have been charged with are considered critical stages in the prosecution and must be conducted in compliance with the Sixth Amendment. The definition of "deliberate elicitation" that has emerged from the Supreme Court is much broader than the definition of "interrogation" that is used for purposes of applying the Miranda rule.

For purposes of Miranda, only reasonable efforts to gain incriminating information carried out by known government actors are considered interrogation. Thus, covert attempts to acquire statements from custodial subjects, whether conducted by cellmate informants working on behalf of the government or by undercover law enforcement officers, do not violate the rule in Miranda. [14] For Sixth Amendment purposes, however, any attempts, other than passive listening, [15] to gain incriminating information from an accused regarding crimes charged, whether overt or covert, are deemed deliberate elicitation and will require a waiver or the presence of counsel.

Crime Specific

It is important to note that lineups and the deliberate elicitation of incriminating information from an accused invoke Sixth Amendment protection only if they relate to the specific crimes levied against the accused. In other words, the Sixth Amendment right to counsel is crime specific.

Over the years, there has been considerable debate in the courts over the scope of the Sixth Amendment protections. In McNeil v. Wisconsin, [16] the Supreme Court held that the invocation of the Sixth Amendment right to counsel was "offense specific." Many lower courts interpreted the "offense specific" language of the Supreme Court as extending the Sixth Amendment protections to crimes charged and all other closely related offenses arising out of the identical factual event. [17] Consequently, an individual accused of a robbery could receive the protections of the Sixth Amendment during the investigation of an assault that occurred during the charged robbery.

Recently, in Texas v. Cobb, [18] the Supreme Court considered once again the scope of the Sixth Amendment and clearly limited the protections to the specific crimes charged. Raymond Cobb was a 17-year-old accused of burglarizing the home of Lindsey Owings. At the time of the burglary, the home was occupied by Owings' wife and 16-month-old daughter. When Owings returned from work he found the house burglarized and his wife and daughter missing. After receiving a report of the burglary and disappearances, the police conducted an investigation and eventually questioned Cobb regarding the incident. At the time of the questioning, Cobb was incarcerated on an unrelated offense. After being advised of and waiving his Miranda rights, Cobb admitted to the burglary but denied any knowledge of the whereabouts of the woman and child.

Cobb was indicted on the burglary charge and invoked his Sixth Amendment right to counsel. After being freed on bond, Cobb confessed to his father that he had killed the woman and child. Cobb's father reported his son's confession to the police, and a warrant was obtained for the arrest of Cobb on charges of murder. Following his arrest, Cobb was advised of his Miranda rights, and he waived those rights.

Cobb admitted to the police that Mrs. Owings confronted him as he was attempting to remove a stereo from the home, that he stabbed her to death with a knife he had brought with him, and that he took her body into the wooded area behind the house to bury her. When he returned to the house, he saw the baby sleeping on its bed. He took the baby into the woods and laid it near the mother. He then obtained a shovel and dug a grave between the two. Before Cobb had put the mother's body in the grave, the child awoke and began stumbling around, looking for her mother. When the baby fell into the grave, Cobb put the mother's body on top of her and buried them both. Cobb subsequently led police to the grave.

After a trial, during which Cobb's confession was admitted and evidence obtained from the grave site was introduced, Cobb was convicted of capital murder for murdering more than one person in the course of a single criminal transaction [19] and sentenced to death. Cobb subsequently appealed his conviction on the ground that the interrogation that followed his arrest on the murder charges violated his Sixth Amendment right to counsel. The defense argued that the Sixth Amendment right to counsel, which had attached and had been invoked with respect to the burglary charges, precluded any attempts by the police to deliberately elicit information from Cobb about the "factually related" murders. The Court of Criminal Appeals agreed that the murders were "factually interwoven with the burglary" and, therefore, Cobb's Sixth Amendment right to counsel had attached on the capital murder charge even though he had not been charged with the offense at the time of the interrogation. Cobb's conviction was reversed and the case was remanded for a new trial. The Supreme Court of the United States granted review. [20]

In Cobb, a majority of a divided Supreme Court made clear its view regarding the scope of the Sixth Amendment protection. In the first paragraph of its opinion, the Court stated "[t]he Texas Court of Criminal Appeals held that a criminal defendant's Sixth Amendment right to counsel attaches not only to the offense with which he is charged, but to other offenses 'closely related factually' to the charged offense. We hold that our decision in McNeil v. Wisconsin meant what it said, and that the Sixth Amendment right is 'offense specific.'" [21]

The Supreme Court recognized that, because some criminal statutes are so similar, the definition of an "offense" cannot necessarily be "limited to the four corners of a charging instrument." [22] Rather, the Court announced its intent to apply a definition it had conceived in another context. In Blockburger v. United States, [23] the Court explained "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." [24]

Applying the "Blockburger test" to the case at hand, the Supreme Court noted that, at the time of the confession in question, Cobb had been indicted for the burglary but had not been charged in the murders. After reviewing the Texas Penal Code, the Court concluded that each offense required proof of at least one fact that the other did not and, therefore, were not the same offenses under Blockburger. Thus, the interrogation did not violate Cobb's Sixth Amendment right to counsel and the confession was admissible.

When law enforcement officers find themselves investigating an individual who has already been charged with an offense, concerns regarding the Sixth Amendment can be assuaged by reviewing the criminal statutes and applying the Blockburger test. If each crime requires proof of at least one additional fact, the crimes are not the same for purposes of the Sixth Amendment.

Invocation of the Sixth Amendment Right to Counsel

Once the Sixth Amendment right to counsel has attached, law enforcement officers may deliberately elicit information from the accused or require participation in a lineup regarding the crime charged as long as they comply with the dictates of the Sixth Amendment by either having defense counsel present or by obtaining an intelligent waiver of the right to counsel from the accused. Once the Sixth Amendment right to counsel is invoked, however, officers may not seek future waivers unless the accused initiates the contact. [25]

Unlike an invocation of the right to counsel under Miranda, which must be clear and unequivocal, [26] an invocation of the Sixth Amendment right may be unintentional. The Supreme Court has held that there are two ways for an accused to invoke the Sixth Amendment right to counsel. The first way, which is easily discernable, requires the accused to reject an officer's attempt to obtain a waiver. In other words, if an officer attempts to comply with the requirements of the Sixth Amendment by seeking a waiver of the right to counsel prior to a critical stage and the accused refuses the request for a waiver, the Sixth Amendment right to counsel has been invoked.

The second method of invoking the Sixth Amendment right to counsel is much less obvious. In Michigan v. Jackson, [27] the Supreme Court held that an accused who requests or accepts the appointment of counsel at the initial appearance in court has indicated a desire to deal with the government only through counsel and, thus, has invoked the Sixth Amendment right to counsel. Accordingly, an accused who claims indigency and requests court appointed counsel for the purpose of providing legal assistance during future court proceedings has unwittingly invoked the Sixth Amendment protections. Once invoked, the protections cannot thereafter be waived at the officer's provocation.

Policy Considerations

Understanding the differences between the Miranda rule and the Sixth Amendment right to counsel is critical to the development of functional law enforcement policies and successful prosecutions. Policies should reflect the underlying purpose of each constitutional protection.

The Miranda rule was created to relieve what the Supreme Court felt was the inherent coercive environment of all custodial interrogation. Therefore, Miranda applies regardless of the topic of interrogation but is limited to interrogations that occur while the subject is in custody. Because the Sixth Amendment was designed to ensure a fair prosecution, its protections are crime specific but remain in effect whether the subject is in custody or not.

Law enforcement agencies should be careful to craft policies that reflect these differences. An interrogation policy that extends Miranda protections beyond the confines of custody or fails to take advantage of the crime specific nature of the Sixth Amendment protections is needlessly restricting the legitimate efforts of officers.

Moreover, following the Supreme Court's decision in Cobb, [28] agencies should not be reluctant to engage in creative charging. If there is probable cause to believe that one individual has committed numerous crimes, agencies can charge that individual, secure their arrest, and proceed with the prosecution on one crime, thereby allowing continued investigation of other separate offenses unhampered by Sixth Amendment protections.

A very effective investigative technique that can be employed in this fashion is the cellmate informant. Because cellmate informants do not violate Miranda, [29] the only right to counsel concern is that of the Sixth Amendment. The inmate who has been charged with only one offense can be questioned by a cellmate informant, either a prisoner working at the direction of law enforcement or an undercover officer, regarding any uncharged offenses. Applying the Blockburger test announced by the Supreme Court in Cobb, a cellmate informant could be used against an inmate suspected of a kidnaping-murder as long as only one charge has been initiated.


The Sixth Amendment unquestionably affords important protections to individuals accused of crimes. The protections apply primarily to the prosecution of cases and have only limited application to criminal investigations.

The Blockburger test announced by the Supreme Court in Cobb clearly delineated the scope of the Sixth Amendment protections to crimes charged. This limitation reflects the attitude of a majority of the Court that "the ability [of the government] to obtain uncoerced confessions is not an evil but an unmitigated good." [30] Because the Court recognizes that the Constitution does not negate society's interest in securing convictions by obtaining voluntary confessions, law enforcement agencies should ensure that those same interests are not contradicted by overly restrictive agency polices, practices, or training.


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

(2.) The Sixth Amendment provides: "In all criminal prosecution, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." U.S. Const. amend. VI.

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

(4.) See, e.g., United States v. D'Anjou, 16 F.3d. 604 (CA 4 1994).

(5.) Id. at 689.

(6.) Moore v. Illinois, 434 U.S. 220 (1977).

(7.) United States v. Mendoza-Cecelia, 963 F.2d. 1467 (CA 11 1992).

(8.) Supra note 3.

(9.) United States v. Wade, 388 U.S. 218, 18 L.Ed.2d. 1149 (1967).

(10.) Brewer v. Williams, 97 S. Ct. 1232 (1977).

(11.) Supra note 3.

(12.) 97 S. Ct. 1232 (1977) (more commonly known as "the Christian Burial Speech Case").

(13.) Until the subject has been accused through the filing of formal charges or by making the initial appearance in court, the Sixth Amendment simply does not apply.

(14.) Illinois v. Perkins, 496 U.S. 292 (1990).

(15.) Kuhlmann v. Wilson, 477 U.S. 436 (1986).

(16.) 111 S. Ct. 2204 (1991).

(17.) See, Texas v. Cobb, 121 S. Ct. 1335 (2001) fn. 1.

(18.) Id.

(19.) See, Texas Penal Code Ann. [ss] 19.03(a) (7) (A) (1994).

(20.) 120 S. Ct. 2245 (2000).

(21.) 121 S. Ct. at _____ (2001) (citations omitted).

(22.) Id. at _____.

(23.) 284 U.S. 299 (1932).

(24.) Id. at 304.

(25.) Michigan v. Jackson, 106 S. Ct. 1404 (1986).

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

(27.) 106 S. Ct. 1404 (1986).

(28.) 121 S. Ct. 1335 (2001).

(29.) Illinois v. Perkins, 496 U.S. 292 (1990).

(30.) 121 S. Ct. at _____.

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.
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Publication:The FBI Law Enforcement Bulletin
Geographic Code:1USA
Date:Jul 1, 2001
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