Confessions - Sixth Amendment Right to Counsel

Constitutional Law: Criminal Process: Assistance of Counsel

In addition to the right to counsel during interrogation under the self-incrimination privilege of the Fifth Amendment of the United States Constitution, a person has a right to the assistance of counsel under the Sixth Amendment of the United States Constitution when the person is being interrogated after he or she is formally charged with an offense.

The Sixth Amendment applies to all interrogations after arraignment or after criminal proceedings have commenced. The Sixth Amendment is violated when the police or a prosecutor obtain incriminating statements from a person after the right to counsel has attached. The right to counsel attaches at the initiation of the criminal proceedings and applies to all confrontations with the police or the prosecutor whether the person is in custody or not. If the prosecutor confronts the person with the knowledge that the person is represented by an attorney, the prosecutor may be guilty of ethical violations.

The right to counsel under the Sixth Amendment only applies to offenses for which a person has been indicted or formally accused or for related offenses. The right does not apply to unrelated offenses. If the charged offense and the other offense are not part of the same transaction, the person may be interrogated by the police or by a prosecutor with regard to the other offense.

The right to counsel under the Sixth Amendment does not apply to statements that are made voluntarily and spontaneously by a person after the person has been formally charged with an offense. The police or a prosecutor must interrogate the person in such a manner as to elicit a response from the person. If the person makes incriminating statements that are not elicited by the police or the prosecutor, the right to counsel under the Sixth Amendment does not apply.

A person who is represented by an attorney has a right to speak to the police or to a prosecutor without the presence of his or her attorney after he or she has been formally charged. However, such a waiver is extremely suspect and could lead to the statements being determined to be inadmissible at trial.