Invoking/Waiving 6th Amendment

What is the constitutional basis of Miranda vs. the Sixth Amendment right to counsel?

• Miranda = rooted in the 5th Amendment (self-incrimination).

• Sixth Amendment Right to Counsel = attaches at the commencement of criminal prosecution.

When does the Sixth Amendment right to counsel begin?

• When the defendant is formally charged (accused).

• Must be a charge filed—it does not apply at the mere “suspect” stage.

How is interrogation defined under the Sixth Amendment?

• “Interrogation” = open and overt questioning by a known law enforcement officer (term of art).

• Covert questioning (e.g., undercover officer) is not 6A interrogation.

Is the Sixth Amendment right to counsel offense-specific?

Yes. It applies only to the crimes for which the defendant has been charged—not to new, uncharged offenses.

What trend did the Supreme Court follow regarding 6A protections?

• Earlier Courts expanded independent 6A protections.

• Later, Justices hostile to Miranda cut back these protections.

• Result: fewer Sixth Amendment protections over time, even while Miranda expanded in some areas.

What rule did Massiah establish?

• After a defendant is formally charged, police may not deliberately elicit statements using an undercover agent.

• No custody required; no overt questioning required.

• 6A violation occurred even though the suspect was not interrogated in a traditional sense.

What happened in Brewer v. Williams and what was the key holding?

Facts:

• Williams was charged; his attorney barred from the transport car.

• Officer gave the “Christian Burial Speech,” exploiting Williams’s religious vulnerability.

• Williams led police to the body.

Holding:

• Deliberate elicitation violated the 6A right to counsel.

• No knowing and intelligent waiver found.

• The speech was functionally designed to obtain a statement.

Dissent:

• J. White argued Williams had been Mirandized repeatedly; under today’s waiver standards, he likely waived.

Under modern doctrine, how would Brewer be analyzed?

• As a Miranda/Edwards case:

  • Williams invoked counsel → interrogation must cease.

  • Christian Burial Speech = interrogation under Innis (functional equivalent).

• This would be easier than the 6A analysis used at the time.

What rule did Henry establish regarding informants?

• When 6A has attached, informants cannot deliberately elicit statements.

• Informant must be only a passive ear.

• Any active engagement or encouragement = Massiah violation.

What makes an informant “not passive” under Henry?

• Engaging in conversation that predictably draws out incriminating statements.

• Steering discussion toward criminal acts.

• Not simply listening, but prompting.

When is informant placement allowed under the Sixth Amendment? (SEE: Kuhlman v. Wilson)

If the informant is a truly passive listener.
Holding:

• Informant’s minor comments were not causal; the proximate cause of confession was the suspect’s emotional conversation with his brother.

• Informant did not deliberately elicit; therefore no Massiah violation.

(SEE: Kuhlman v. Wilson)

What if the defendant confessed immediately after the informant criticized his story?

Likely treated as Henry → violation, because informant’s comment would have prompted the confession.

What was the holding in Moulton?

• Undercover questioning about new, uncharged crimes is permitted.

• BUT statements about charged crimes obtained during such an operation cannot be used at trial for those charged offenses.

Why is Moulton difficult to apply?

• Hard to separate statements about new crimes from statements about charged crimes, since conversations often overlap.

• Majority protects 6A for charged offenses; dissenters preferred allowing good-faith investigations even if topics overlap.

What are the structural differences between 5A Miranda rights and 6A right to counsel?

• 5A Miranda:

  • Custody + interrogation triggers warnings.

  • Not offense-specific.

• 6A Right to Counsel:

  • Attaches only after charge.

  • Offense-specific.

  • Triggered by deliberate elicitation, not necessarily custody.

When do we even talk about waiving the Sixth Amendment right to counsel?

• Line is drawn at a formal charge.

• 6A attaches when the suspect becomes the accused (i.e., prosecution has begun).

Once 6A attaches, interrogation is a “critical stage,” and the question becomes:

Are the protections greater or lesser than Miranda, and how can they be waived?

What were the key facts in Patterson v. Illinois?

• D was initially interviewed and denied involvement.

• Then he was indicted (now the “accused”).

• After indictment, LEO approached him, told him he’d been indicted, read Miranda again.

• D waived Miranda and made statements.

What did the defendant argue in Patterson, and how did the Court respond?

• Defendant’s argument:

  • 6A right to counsel is different and more significant than the 5A right against self-incrimination because now the power of the State is formally aligned against him.

  • Therefore, waiver of 6A should be harder or more demanding than a mere Miranda waiver.

• Court’s response:

  • Rejected the idea that 6A is “superior” to 5A.

  • Asked defense counsel what more D would need beyond Miranda; there was no clear answer.

  • Held that Miranda warnings adequately inform an indicted defendant of the right to counsel for purposes of interrogation.

What is the main doctrinal takeaway from Patterson v. Illinois?

• A Miranda waiver is sufficient to waive both:

  • the 5th Amendment right (Miranda), and

  • the 6th Amendment right to counsel (for interrogation).

• 6A is not superior to 5A in waiver context.

• Miranda warnings explicitly mention counsel and implicitly cover what 6A protects during interrogation, so one waiver does double-duty.

What is the significance of footnote 9 in Patterson (the Moran-like variation)?

• Court imagines facts like Moran v. Burbine, but with a key difference:

  • D has been charged and knows he has a lawyer who has contacted the police.

• Court suggests:

  • In that scenario, 6A right to counsel would be stronger than Miranda, and a Miranda waiver might not be valid as a waiver of 6A.

• So: where the attorney is actually known to the defendant in an ongoing prosecution, police conduct might violate 6A even if Miranda was read and waived.

How does the Court compare interrogation waivers to Faretta waivers?

• In Faretta, when a defendant wants to represent himself at trial, judges must give elaborate warnings about the consequences.

• In Patterson, the Court says:

  • We will not require Faretta-level elaborate warnings at the interrogation stage.

  • A standard Miranda warning is enough to waive trial-counsel protections for interrogation purposes.

What rule did Michigan v. Jackson establish, and what is its status today?

• Facts:

  • Defendants were charged, went to court, and affirmatively requested counsel under Michigan’s procedure.

  • Before counsel could meet them, LEOs Mirandized, got a waiver, and obtained confessions.

• Rule:

  • Created a 6A version of Edwards:

    • Once a defendant requests counsel in court, police may not initiate interrogation, and any waiver obtained by police-initiated questioning is invalid under 6A.

• Status:

  • No longer good law. It was overruled by Montejo v. Louisiana.

What were the key facts in Montejo v. Louisiana?

• D was arrested, in custody, Mirandized, and made unclear incriminating statements.

• Taken to court in Louisiana, where the judge automatically appointed a public defender.

  • D did not affirmatively request counsel; counsel was just assigned.

• Later that same day, LEOs:

  • Re-Mirandized him,

  • Asked him to go with them to locate the murder weapon,

  • He agreed, wrote an apology letter to the victim’s widow.

• Only after that did he meet with his appointed lawyer.

• The apology letter came into evidence at trial.

What was the issue and holding in Montejo v. Louisiana?

• Should the Edwards anti-badgering rule be imported into the 6A context when a court appoints counsel (as in Jackson)?

Holding:

• The Court overruled Michigan v. Jackson.

• Key points:

  • Defendant did not affirmatively request an attorney; he was a passive recipient of judicial appointment.

  • The Court found Jackson “unworkable,” especially in systems where counsel is automatically appointed.

  • Miranda rights are sufficient protection for 6A purposes in interrogation.

  • Police may approach a charged defendant, Mirandize him, and obtain a waiver without counsel present, even after appointment.

After Montejo, does a defendant need a lawyer present to waive the Sixth Amendment right to counsel?

• No.

• Once charged, a defendant does not need a lawyer to waive the right to a lawyer for interrogation.

• A properly administered Miranda warning + waiver is enough.

How did the Court reason in Montejo about 6A protections and costs/benefits?

• Court treats the Edwards-style rule as a judge-made prophylactic, not a direct constitutional command.

• Emphasizes:

  • “Confessions are an unmitigated good” → crime control model.

  • The cost of excluding confessions is high, with “no real significant benefits” beyond what Miranda already provides.

• Conclusion: Miranda protections alone are sufficient; no extra 6A super-layer like Jackson.

What were Justice Stevens’ main points in dissent in Montejo?

• Montejo had secured a lawyer (though appointed, not requested).

• That should be treated as an invocation of the 6A right to counsel.

• Jackson was more than just anti-badgering—it recognized that once someone is the accused, counsel stands between him and the State “in a multitude of ways.”

• Dissent saw the Court as gutted protection for represented defendants in the interrogation room.

What is the key takeaway from McNeil v. Wisconsin regarding the scope of 6A?

• 6A is prosecution specific (often phrased as “offense specific,” but your notes emphasize prosecution).

• If a defendant has a lawyer appointed for one charged crime, that does not bar police from approaching him to talk about other, uncharged crimes.

• You cannot invoke 6A rights in advance, before interrogation is imminent.

  • Invocation must occur when questioning is actually at stake.

How did Texas v. Cobb apply the offense-specific nature of 6A?

• D committed a burglary where a mother and child were present and killed/buried them.

• He was initially only charged with burglary and had counsel for that case.

• Police later questioned him about the murders, got a Miranda waiver and incriminating statements.

Issue:

• Are the burglary and the murders close enough that the 6A right (invoked in burglary case) also covers the murders?

Holding:

• No.

• Court used the Blockburger test to determine if the offenses are the same:

  • Does each offense contain an element the other does not?

  • Here, burglary and murder have distinct elements → separate offenses.

• Therefore, the 6A right to counsel for the burglary did not extend to the murders, and police could question him about the murders.

What is the Blockburger test, and how does it relate to 6A?

• Blockburger: Two offenses are separate if each requires proof of a fact the other does not.

• If they are separate under Blockburger, then for 6A purposes:

  • The right to counsel attaches only to the charged offense(s).

  • Police may question the defendant on a different offense (even if factually related), so long as it is a legally distinct offense under Blockburge

What did Justice Breyer argue in dissent in Texas v. Cobb?

• Pointed to Brewer v. Williams (Christian Burial Speech):

  • Williams was charged with abduction, but the questioning elicited statements about the murder.

  • Under a strict Blockburger view, those could be separate offenses.

• Breyer argued:

  • In Williams, the Court assumed that factually related offenses were protected by 6A, not just technically “same offense” ones.

  • Under Cobb’s approach, Brewer would come out differently.

• Suggests the better way today is to treat cases like Williams as Miranda + Edwards problems, not 6A problems.

What is the ultimate question in a Sixth Amendment right-to-counsel confession case?

Was the Sixth Amendment right to counsel violated at the time the confession was obtained?

• If yes: Statements are not admissible.

• If no: Statements are admissible, even in a joint trial of separate offenses.

When does the 6th Amendment Right to Counsel attach, and what triggers a violation?

Attachment: The 6A RTC attaches only when judicial proceedings begin—i.e., formal charge, preliminary hearing, indictment, information, or arraignment (Williams I). Custody is irrelevant.

Trigger for violation: Once attached, the government violates the 6A by deliberately eliciting statements about the charged offense.

• Known officer elicitation: Christian Burial Speech = deliberate elicitation (Williams I).

• Undercover elicitation: 6A applies to deliberate elicitation even by undercover agents (Massiah).

• Informants:

  • Must be a passive ear, or it's deliberate elicitation (Henry).

  • If the informant didn’t cause the confession = no violation (Wilson).

• Innis footnote: Interrogation can be direct questioning or the functional equivalent (words or actions – aside from those normally attendant to arrest and custody – that the police should know are reasonably likely to elicit a criminal response)

NOT attachment: Police “focus” or being a suspect is NOT enough—Escobedo no longer good law; reframed as a 5A case

(SEE: Moran v. Burbine).

What kinds of statements are not protected by the 6th Amendment right to counsel?

The 6A does not protect:

1. Statements made before formal proceedings.

   • No charge = no 6A right (Moran v. Burbine).

2. Statements not deliberately elicited.

   • Voluntary statements to undercover agents or cellmates who are merely listening (Henry passive ear rule; Wilson).

3. Statements elicited before attachment even if police “focus” on suspect.

   • Escobedo rejected as an attachment rule; now treated as a 5A case.

4. Statements about uncharged crimes.

   • 6A is charge-specific, so elicitation on unrelated crimes ≠ violation (covered elsewhere but consistent with this attachment principle).

How is the 6th Amendment right to counsel waived after attachment?

Waiver Standard:
A 6A waiver must be voluntary, knowing, and intelligent, but not as formal or elaborate as a trial-rights waiver.

Key Rules:

1. Miranda warnings are sufficient to waive BOTH 5A and 6A rights.
   – Patterson: Miranda warnings adequately inform a defendant of the right to counsel even after formal charges.

2. A defendant may waive the 6A right even if already represented.
   – Montejo (majority):

   • A represented defendant can still waive the 6A right during interrogation.

   • The waiver need not itself be counseled.

   • Reading Miranda + agreeing to talk “does the trick” for 6A waiver.

3. But waiver is invalid if police hide that “your lawyer is trying to reach you.”
   – Patterson dicta:

   • If the suspect’s actual lawyer is trying to contact him during questioning, and police conceal this, a Miranda waiver would not be valid for 6A purposes.

What limits police after a suspect invokes the right to counsel?

• Montejo overruled Jackson → Police may initiate interrogation even after the defendant requested counsel at first appearance.

• Post-Montejo: Limits on police questioning come only from Edwards/Miranda (5A) — no separate 6A anti-badgering rule.

• Ethics rules bar prosecutors from contacting a represented defendant, but these are not constitutional rules and do not restrict police. (Montejo)

What are the 6A limits on undercover elicitation after charges attach?

• Rule: Once formally charged, police cannot deliberately elicit statements about the charged offense using undercover agents.

  • Massiah: Deliberate elicitation through undercover co-defendant violates 6A.

  • Moulton: Undercover statements obtained while investigating new crimes cannot be used to prove the charged crimes.

• Passive Ear Exception:

  • Henry: Informant must be a passive ear; any prompting = deliberate elicitation.

  • Kuhlmann/Wilson: Fact-specific — allowed if informant truly did not cause the confession.

How does the Exclusionary Rule apply to 6A right-to-counsel violations?

1. Statements obtained in violation of 6A are excluded from the prosecution’s case-in-chief.

   • Massiah

2. Undercover statements about an already-charged crime are inadmissible in trial of that crime.

   • Moulton

3. Fruit of the Poisonous Tree applies (with usual exceptions).

   • Williams II (inevitable discovery recognized)

4. BUT: Statements obtained in violation of 6A may be used for impeachment if the defendant testifies inconsistently.

   • Kansas v. Ventris