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Back to Archives | Back to December 2003 Contents 

Chief's Counsel

Interrogation Law . . . Reloaded: The Two Rights to Counsel

Randolph B. Means, Attorney at Law, Thomas and Means, LLP, Baltimore, Maryland

Patrol officers and investigators often want to use, as evidence in criminal trials, statements that were made by the defendant and are incriminating in nature. Whatever the degree to which a defendant's prior statements are incriminating, it is likely that the prosecutor's efforts to use the statements at trial will be met with defense objections, often in the form of pretrial motions to suppress the statements. When these defense objections or motions are argued, the defense attorney will try to show that the incriminating statements were obtained illegally. If the prosecution cannot prove the contrary, the statements generally may not be used at trial, because of the "exclusionary rule" or "fruit of the poisonous tree" doctrine.

Defense objections to the trial use of a defendant's incriminating statements usually fall into one or more of four categories, each involving a claim that the defendant's constitutional rights were violated:

  1. The statement was the product of an unlawful Fourth Amendment seizure of the defendant's person, an arrest without probable cause or investigative detention without reasonable suspicion.
  2. The interrogation did not comply with Miranda v. Arizona1 or the associated protections of the rights to silence and counsel, if asserted.
  3. The statement was obtained in violation of the defendant's Sixth Amendment right to counsel.
  4. The statement was the product of unlawful coercion in violation of the Fifth Amendment protection against compelled self-incrimination and the Fourteenth Amendment requirement that, to be admissible, an incriminating statement must be voluntary.
Although these claims involve interrelated legal theories, each represents a separate, independent constitutional issue. Each represents a liability threat to police as well as the obvious threat to evidence admissibility.

This discussion focuses on whether police may attempt interrogation after a person attempts to assert a right to counsel.

What Rights Have "Attached"?
Some rights apply only in certain circumstances. For example, Miranda rights apply only in custodial interrogation. When a constitutional right has become applicable in a certain situation, that right has "attached." The significance of "attachment" is twofold:

  1. Once a right has attached, a valid waiver of that right must occur before any interrogation takes place; and

  2. Once a right has attached, a suspect may assert that right and thereby impose special additional restrictions on further interrogation efforts by police.
It is critical to understand when various rights attach. Here’s an overview:

Fifth Amendment Right to Counsel: The Fifth Amendment right to counsel was created by the U.S. Supreme Court in its Miranda decision. Because it is a Miranda right, it attaches only when a person is in arrest-type custody and is to be interrogated by police. A waiver of this right is therefore unnecessary unless those two conditions (custody plus interrogation) occur simultaneously.

Sixth Amendment Right to Counsel: The Sixth Amendment right to counsel attaches only when someone is formally charged with a crime. Formal charging occurs when someone is indicted by grand jury or is arraigned. Arraignment is a formal, in-court notification to a defendant that he is charged with a particular crime. In some states, this court appearance is referred to as a bond hearing or a first appearance. Whatever name it goes by, formal charging is generally characterized by the involvement of a prosecutor who brings the charges formally against the defendant, thus marking the commitment of the government to prosecute. Merely taking an arrestee to a magistrate or similar judicial official for jailing or bonding generally is not formal charging, even though the arrestee may be informed of charges by the judicial official.

If an Attached Right Has Been Asserted, What Then?
Case Study

Joe is arrested by officers of the Anywhere Police Department for a residential burglary in their jurisdiction. When the officers attempt to interrogate Joe in custody, he tells them, "I want a lawyer." He is taken to jail.

Later that day, investigators from the nearby Elsewhere Police Department learn that Joe is in jail in Anywhere. Because he's a suspect in an Elsewhere homicide, they pay Joe a visit.

Joe is brought to an interview room where the Elsewhere officers explain that they have no interest in the Anywhere burglary but would like to talk to Joe about the Elsewhere homicide. They advise him of his Miranda rights, which he waives. Joe denies any involvement in the Elsewhere matter, but he is questioned and eventually confesses to the Elsewhere homicide.

Is Joe's confession (a) admissible, because Joe's assertion of the right to counsel applied to the Anywhere burglary and not the Elsewhere homicide, an unrelated matter; or (b) inadmissible, because the assertion to the Anywhere police of the Miranda-based right to counsel blocked further police-initiated interrogation efforts on all matters?

The answer is . . . (b) (see Arizona v. Roberson, 108 S. Ct. 2093 (1998)).

The rules regarding interrogation after an assertion of rights vary according to what right is asserted. It is therefore critical that officers listen carefully to the exact words of a suspect as he asserts or attempts to assert rights. Ambiguous statements that resemble assertions of rights may be clarified by questions or discussion concerning the suspect's wishes. If a suspect says, "I don't want to talk about this anymore," the right to silence has been asserted. This assertion imposes different restrictions on further interrogation than if the right to counsel had been asserted. A statement, "I'm not sure I want to talk about this; I may need a lawyer," is ambiguous and requires clarification. The key is to listen carefully and document.

If an attached right has been asserted, then three questions must be answered:

  1. When, if at all, may police later attempt to obtain a waiver and proceed with interrogation efforts?
  2. If further interrogation efforts are lawful, what crimes may police bring up for discussion?
  3. What, exactly, is necessary for a valid waiver of any rights which have attached?

More on the Two Rights to Counsel
The Sixth Amendment right to counsel prohibits police from deliberately eliciting incriminating information from a criminal defendant in any matter in which he has been formally charged, unless he has validly waived that right. The Supreme Court held in Michigan v. Jackson2 that once the Sixth Amendment right to counsel is asserted at or after formal charging, police are prohibited from further attempts to interrogate regarding the formally charged matter unless the defendant initiates the communication concerning the case or counsel has been made available to the defendant.

The Supreme Court made clear in Minnick v. Mississippi3 that "counsel has been made available" means counsel must be actually present at any subsequent police-initiated interrogation. An assertion of the Sixth Amendment right to counsel may be valid and binding on police even though the assertion is not made directly to a law enforcement officer. Such assertions often occur at first appearances in court, for example.

The Sixth Amendment right to counsel is separate and distinct from the Fifth Amendment right to counsel created by the Supreme Court in Miranda v. Arizona. A defendant has the Sixth Amendment right to counsel only in those matters in which he has been formally charged.4 In contrast, the Fifth Amendment right to counsel protects a suspect in any custodial interrogation, whether or not he has been formally charged with the matter to be discussed. A valid waiver of the Fifth Amendment right to counsel is therefore necessary prior to any custodial interrogation.

Once an in-custody suspect has asserted his Fifth Amendment right to counsel, police are prohibited from all further interrogation efforts on all crimes unless the suspect initiates the communication concerning his criminal involvement or counsel has been made available to the suspect.5 This rule applies even when follow-up interrogators are completely unaware of the earlier assertion of rights. The burden has been placed on the law enforcement community to devise a system for warning investigators of earlier assertions.

What Is Necessary to Prove a Waiver of the Sixth Amendment Right to Counsel?
Officers are generally familiar with Miranda warning and waiver forms and procedures. Until 1988, however, the Supreme Court had not furnished any significant guidance regarding the requirements for a valid waiver of the Sixth Amendment right to counsel. Lower courts had been divided on the subject, but the United States Supreme Court decision in Patterson v. Illinois6 cleared the air, holding that a standard Miranda-style waiver procedure is sufficient to produce a valid waiver of the Sixth Amendment right to counsel, at least if the suspect is also advised that he has been formally charged with the specific crime that police wish to discuss.

The law regarding attachment, waiver, and assertion of interrogation rights is evolving, growing, and sometimes confusing. More than one right may be in play at any given time. The suspect's rights, and rules concerning them, may come and go as conditions change during investigation and prosecution. Without close attention to these developments, the criminal investigator is almost certain to make dangerous constitutional errors in the interrogation process. The best way to avoid such errors is to consider each of the three possible rights individually and systematically, one by one, in light of the facts of a particular case at a particular time. ♦

1 Miranda v. Arizona, 86 S. Ct. 1602 (1966).
2 Michigan v. Jackson, 106 S. Ct. 1404 (1986).
3 Minnick v. Mississippi, 111 S. Ct. 486 (1990).
4 See, for example, Texas v. Cobb, 121 S. Ct. 1335 (2001).
5 See Edwards v. Arizona, 101 S. Ct. 1880 (1981), and Arizona v. Roberson, 108 S. Ct. 2093 (1988).
6 Patterson v. Illinois, 108 S. Ct. 2389 (1988).

Please cite as:

Randolph B. Means, "Interrogation Law . . . Reloaded: The Two Rights to Counsel," Chief's Counsel, The Police Chief 70 (December 2003): 10–11.



From The Police Chief, vol. 70, no. 12, December 2003. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.

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