§ 11.01 Text of Sixth Amendment

 

The Sixth Amendment reads in relevant part:  “In all criminal prosecutions, the accused shall . . . have the Assistance of counsel for his defence.”

 

§ 11.02 When the Right Attaches

 

The Sixth Amendment right to counsel exists for “criminal prosecutions.”  Thus, the right attaches only upon commencement of adversary judicial proceedings, such as preliminary hearing, indictment, information, or arraignment. Brewer v. Williams, 430 U.S. 387 (1977).

 

§ 11.03 “Deliberate Elicitation”

 

The Sixth Amendment has been interpreted to prohibit the government from deliberately eliciting incriminating information from an accused, in the absence of defense counsel, once adversary judicial criminal proceedings have commenced. Massiah v. United States, 377 U.S. 201 (1964). 

 

An investigatory technique constitutes elicitation if it is “the equivalent of direct police interrogation.” Kuhlmann v. Wilson, 477 U.S. 436 (1986). Deliberate elicitation occurs when the government through its overt or covert police agent:

(1) acts with the purpose of eliciting incriminating information from the accused regarding the pending charges, without regard to the likelihood that the elicitation will be successful; or

(2) creates an opportunity for the accused to make incriminating statements about the pending charges.

 

[A] Police Acts With Purpose

 

Examples of purposeful police conduct that may elicit incriminating statements from the accused include:

·        an officer formally interrogates the accused.

·        an undercover agent engages the accused in a conversation about the criminal activity.

·        an officer makes statements that are designed to play on the conscience of the accused in order to induce incriminating remarks.

 

[B] Police Create an Opportunity for Incriminating Statements

 

Deliberate elicitation may be found where the government creates a situation likely to induce the defendant to make incriminating statements.  For example, in United States v. Henry, 47 U.S. 264 (1980), the FBI placed an informant – who was to be paid on a contingent basis – in the defendant's jail cell after he had been indicted.  The FBI advised the informant “to be alert to any statement” the defendant made, but not to initiate any conversations with the defendant or ask him questions.  Nevertheless, the informant engaged the defendant in conversation, during which he made incriminating statements that the government sought to introduce at his trial.  Focusing on several factors, including that the paid informant had an incentive to elicit information from the defendant, the Court found that the government had created an opportunity for the accused to incriminate himself, in the absence of counsel, thereby violating his Sixth Amendment right.

 

The government may be found to have unlawfully created an opportunity for the accused to incriminate himself in violation of the Sixth Amendment even if the encounter with an informant or undercover agent is initiated by the accused himself.  In Maine v. Moulton, 474 U.S. 159 (1985), subsequent to the defendant's indictment, the police installed a recording device on an informant's telephone.  The defendant, unaware of such action, telephoned the informant three times, during which he discussed the criminal charges against them.  The Supreme Court again held that the defendant's Sixth Amendment right to counsel was violated by the government's creation of an opportunity for defendant to incriminate himself, irregardless of the fact that the defendant initiated the conversations. 

 

However, if a government agent does no more than listen, without proactively inducing the accused to make incriminating statements – such as by placing an undercover agent or informant in an accused's jail cell and merely reporting the accused's unsolicited incriminating statements – such action does not constitute deliberate elicitation.

 

§ 11.04 “Offense-Specific” Nature of the Right

 

The Sixth Amendment is offense-specific, i.e., the interrogation that is the subject of the Sixth Amendment inquiry must relate to the crime for which criminal proceedings have commenced.  McNeil v. Wisconsin, 501 U.S. 171 (1991).  The Sixth Amendment right to counsel does not attach to other crimes for which the accused may be under investigation but which are unrelated to the pending prosecution.

 

For purposes of determining whether the Sixth Amendment covers a given crime, Texas v. Cobb, 532 U.S. 162 (2001), clarified that:

(1) the Sixth Amendment does not necessarily extend to offenses that are “factually related” to those for which the accused has been formally charged;

(2) the term “offense” is “not necessarily limited to the four corners of a charging instrument”;

(3) “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.”  Blockburger v. United States, 284 U.S. 299 (1932) (the test applied for double jeopardy purposes, extended to the Sixth Amendment context by Cobb).

 

§ 11.05 Waiver of the Right to Counsel

 

[A] When the Accused Requests Counsel

 

Once the Sixth Amendment right to counsel attaches, and the accused requests counsel, the government may not initiate conversation with the accused relating to the crime at hand in the absence of counsel, even if the accused waives the right in response to the police elicitation. However, if the accused initiates conversation with the police, and waives his right to counsel, interrogation in the absence of counsel may proceed.  Michigan v. Jackson, 475 U.S. 625 (1986) (defendant was appointed counsel whom he had not yet met when the police contacted the defendant, read him his Miranda [384 U.S. 436] rights, obtained a waiver, and questioned him, even though the defendant had asked for his lawyer several times; the Court held that the waiver was invalid because the police initiated the conversation after the defendant had requested counsel). 

 

[B] When the Accused Does Not Request Counsel

 

[1] Before Counsel is Appointed or Hired

 

In the absence of a request for counsel after the right attaches, the police are permitted to seek from the accused a waiver of his right to counsel.  Patterson v. Illinois, 487 U.S. 285 (1988) (upholding the admissibility of the post-indictment statements made after issuance of Miranda [384 U.S. 436] warnings and procurement of a waiver of the right to counsel, where at the time of the post-indictment questioning, the defendant had not yet retained, or accepted by appointment, a lawyer to represent him).

 

[2] After Counsel is Appointed or Hired

 

The Supreme Court has not directly addressed the issue of whether a waiver is valid where counsel has been appointed but the accused has not actually requested to meet with his lawyer.  However, in a footnote in Patterson [487 U.S. 285], the Court hinted that once counsel has been appointed or hired, the police may not seek a waiver of the right to counsel from the defendant until he has had the opportunity to meet with counsel (stating that it was “a matter of some significance” that the defendant, whose waiver of right to counsel was found valid, had not yet retained or been appointed counsel).  A footnote in Cobb [532 U.S. 162], however, calls this position into question (stating “there is no ‘background principle' of our Sixth Amendment jurisprudence establishing that there may be no contact between a defendant and police without counsel present”), suggesting that a waiver may be valid if the accused does not request assistance of counsel even if counsel has been appointed. 

 

            [C] Sufficiency of Waiver

 

As with waiver of the right to counsel during custodial interrogation, a waiver of the right to counsel prior to post-indictment interrogation must be voluntary and made “knowingly and intelligently.”  [See Chapter 9, Custodial Interrogation.]

 

§ 11.06 Scope of the Sixth Amendment Exclusionary Rule

 

[A] Impeachment

 

The Court has addressed whether a statement secured in violation of the Sixth Amendment may be used for impeachment purposes in only a limited context.  If the police initiate conversation with an accused who has requested counsel, in violation of the rule in Michigan v. Jackson, incriminating statements may be used for impeachment if the accused subsequently waived the right, despite the fact that the improper police conduct precludes admission of the statements as part of the prosecution's direct case.  Michigan v. Harvey, 494 U.S. 344 (1990).

 

[B] Fruit-of-the-Poisonous-Tree Doctrine

 

The fruit-of-the-poisonous-tree doctrine applies to violations of the Sixth Amendment right to counsel.  See Nix v. Williams, 467 U.S. 431 (1984).  [See Chapter 7, Exclusionary Rule.]

 

§ 11.07 Comparison of Right to Counsel During Interrogations Under Sixth Amendment and Miranda

 

The right to counsel under the Sixth Amendment and the Fifth Amendment Miranda [384 U.S. 436] decision differ in the following ways:

(1) Timing – The Sixth Amendment right applies only after adversary judicial criminal proceedings have been initiated against the accused; the Fifth Amendment right attaches once the defendant is taken into custody.

(2) Custody – The Fifth Amendment right does not attach unless the suspect is in custody; the Sixth Amendment is not so limited, e.g., it applies when the accused has been released from custody on bail or on his own recognizance.

(3) Nature of offense – The Sixth Amendment right is offense-specific; the Fifth Amendment right to counsel applies to any and all offenses, once custodial interrogation commences.

(4) Focus of inquiry – The Fifth Amendment right to counsel applies when the custodial suspect is “interrogated,” and focuses on the perceptions of the suspect (whether he believes he is in custody); the Sixth Amendment prohibits “deliberate elicitation,” and focuses on the intentions of the police.

            (5) Questioning by undercover agent or informant – The Fifth Amendment right to counsel is not invoked when the suspect is questioned by an informant or undercover officer; the Sixth Amendment applies to deliberate elicitation by overt and covert government agents.

            (6) Fruit-of-the-poisonous-tree doctrine – The doctrine applies to Sixth Amendment violations; the doctrine does not apply to violations of the Fifth Amendment right to counsel.

            (7) Impeachment – Statements secured in violation of the Fifth Amendment right may be used for impeachment purposes; statements secured in violation of the Sixth Amendment Jackson [475 U.S. 625] rule may be used for impeachment.