Right to Counsel

During confession

The Sixth Amendment right to assistance of counsel will be violated if 1) the government deliberately elicits incriminating statements from the accused in absence of counsel, and 2) the attempt to elicit the statements occurred after the initiation of judicial proceedings (e.g., following an indictment).

The Sixth Amendment, unlike the Fifth Amendment, is considered offense-specific, meaning that a Sixth Amendment waiver only applies to the pending charges. In Maine v. Moulton, 474 U.S. 159 (1985), a suspect was indicted for theft, and later made incriminating statements to an informant regarding both the theft and additional crimes. The United States Supreme Court addressed the solicitation of statements regarding the various crimes, and stated:

[t]hose statements may be admissible in the investigation or prosecution of charges for which, at the time the recordings were made, adversary proceedings had not yet commenced. But as to the charges for which [the suspect's] right to counsel had already attached, his incriminating statements should have been ruled inadmissible at trial, given the circumstances in which they were acquired.

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Page last updated: 2/17/2007
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