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The Right to a Lawyer Under the 6th Amendment – Interrogation

By H. Michael Steinberg – Colorado Criminal Defense Lawyer

The 6th Amendment

The Right to a Lawyer Under the 6th Amendment - InterrogationThe Sixth Amendment reads in relevant part:

“In all criminal prosecutions, the accused shall . . . have the Assistance of counsel for his defence.”

When the Sixth Amendment 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.

“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.

An investigatory technique constitutes elicitation if it is “the equivalent of direct police interrogation.” 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.

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.

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. In one case 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.

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.

“The Right to a Lawyer Under the 6th Amendment – Interrogation – 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. 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 it has been 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.”

Waiver of the Right to Counsel

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.

When the Accused Does Not Request Counsel

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.

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.

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.”

Scope of the Sixth Amendment Exclusionary Rule


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.

Fruit-of-the-Poisonous-Tree Doctrine

The fruit-of-the-poisonous-tree doctrine applies to violations of the Sixth Amendment right to counsel.

Fruit of the poisonous tree is a legal metaphor in the United States used to describe evidence that is obtained illegally. The logic of the terminology is that if the source of the evidence (the “tree”) is tainted, then anything gained from it (the “fruit”) is as well.

Such evidence is not generally admissible in court. For example, if a police officer conducted an unconstitutional (Fourth Amendment) search of a home and obtained a key to a train station locker, and evidence of a crime came from the locker, that evidence would most likely be excluded under the fruit of the poisonous tree doctrine. The discovery of a witness is not evidence in itself because the witness is attenuated by separate interviews, in-court testimony and his or her own statements.

The doctrine is an extension of the exclusionary rule, which, subject to some exceptions, prevents evidence obtained in violation of the Fourth Amendment from being admitted in a criminal trial. Like the exclusionary rule, the fruit of the poisonous tree doctrine is intended to deter police from using illegal means to obtain evidence.

The doctrine is subject to four main exceptions. The tainted evidence is admissible if:

1. it was discovered in part as a result of an independent, untainted source;

2. it would inevitably have been discovered despite the tainted source; or

3. the chain of causation between the illegal action and the tainted evidence is too attenuated; or

4. the search warrant not based on probable cause was executed by government agents in good faith.

A 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 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 i

The Right to a Lawyer Under the 6th Amendment – Interrogation

ABOUT THE AUTHOR: H. Michael SteinbergEmail The Author A Denver Colorado Criminal Defense Lawyer  – or call his office at 303-627-7777 during business hours – or call his cell if you need his immediate assistance – 720-220-2277. 

If you are charged with A Colorado crime or you have questions about The Right to a Lawyer Under the 6th Amendment – Interrogation, please call our office. The Law Offices of H. Michael Steinberg, in Denver, Colorado, provide criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.

Most Experienced Colorado Criminal Defense Lawyer - Attorney - Law FirmH. Michael Steinberg, is a Denver, Colorado criminal defense lawyer with over 30 years of day to day courtroom experience –  specializing in Colorado Criminal Law along the Front Range.  He will provide you with a free initial case consultation to evaluate your legal issues and to answer your questions with an honest assessment of your options.  Remember, it costs NOTHING to discuss your case.  Call now for an immediate free phone consultation.

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