Amendment 6 — Custodial Interrogation And Right To Counsel

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Sixth Amendment :

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

In the context of custodial interrogations—such as police questioning of a suspect[1](https://www.law.cornell.edu/constitution-conan/amendment-6/custodial-interrogation-and-right-to-counsel#fn1amd6 " See, e.g., Interrogation, Black’s Law Dictionary (11th ed. 2019) ( “Police questioning of a detained person about the crime that he or she is suspected of having committed.” ). ") —the Court’s doctrine on the extent of the right to counsel has evolved to be closely related to its doctrine on the Fifth Amendment ’s protection against self-incrimination.[2](https://www.law.cornell.edu/constitution-conan/amendment-6/custodial-interrogation-and-right-to-counsel#fn2amd6 " For further discussion of the Fifth Amendment and self-incrimination, see supra . ") At first, the Court evaluated the constitutionality of custodial interrogations against a rule of “fundamental fairness,” assessing whether under all the circumstances a defendant was so prejudiced by the denial of access to counsel at custodial interrogation that his subsequent trial was tainted.[3](https://www.law.cornell.edu/constitution-conan/amendment-6/custodial-interrogation-and-right-to-counsel#fn3amd6 " Crooker v. California, 357 U.S. 433, 439 (1958); see also Cicenia v. Lagay, 357 U.S. 504, 510 (1958) ( “[T]his Court, in judging whether state prosecutions meet the requirements of due process, has sought to achieve a proper accommodation by considering a defendant’s lack of counsel one pertinent element in determining from all the circumstances whether a conviction was attended by fundamental unfairness.” ). ") In 1959, the Court in Spano v. New York[4](https://www.law.cornell.edu/constitution-conan/amendment-6/custodial-interrogation-and-right-to-counsel#fn4amd6 " 360 U.S. 315, 320 (1959). ") declined to consider whether, as a blanket rule, a “confession obtained in the absence of counsel can be used without violating the Fourteenth Amendment .” Instead, the Court in Spano concluded that use of the confession at issue violated the Fourteenth Amendment based on the surrounding circumstances—including the defendant’s limited education, the numerous denials of request for counsel, and the hours of interrogation undertaken by various officers (one of whom was a friend of the defendant).[5](https://www.law.cornell.edu/constitution-conan/amendment-6/custodial-interrogation-and-right-to-counsel#fn5amd6 " Id. at 317–320. ")

Five years later, in Massiah v. United States,[6](https://www.law.cornell.edu/constitution-conan/amendment-6/custodial-interrogation-and-right-to-counsel#fn6amd6 " 377 U.S. 201, 205–06 (1964); See also McLeod v. Ohio, 381 U.S. 356 (1965) (per curiam) (citing Massiah and reversing State v. McLeod, 1 Ohio St. 2d 60 (Ohio 1964)—a state prosecution where an already-indicted defendant voluntarily made an oral confession to police); Cf. Hoffa v. United States, 385 U.S. 293 (1966) (declining to extend Massiah to require assistance of counsel for any questioning after the moment when the suspect could have been arrested, even if he or she was not); Milton v. Wainwright, 407 U.S. 371, 372 (1972) (passing on question of whether post-indictment questioning of suspect by officer posing as cellmate violated Sixth Amendment right to counsel pursuant to Massiah, because “any error in its admission was harmless beyond a reasonable doubt” ). In Kansas v. Ventris, 556 U.S. 586, 592 (2009), the Court “conclude[d] that the Massiah right is a right to be free of uncounseled interrogation, and is infringed at the time of the interrogation,” not merely if and when the defendant’s statement is admitted into evidence. ") the Court began to move away from this circumstance—dependent approach rooted in the Fourteenth Amendment , holding that post—indictment interrogation in the absence of defendant’s lawyer was a denial of the defendant’s Sixth Amendment right to assistance of counsel.[7](https://www.law.cornell.edu/constitution-conan/amendment-6/custodial-interrogation-and-right-to-counsel#fn7amd6 " In Massiah, federal officers used an informer to elicit incriminating admissions from the defendant—who had already been indicted and was represented by a lawyer—which they surreptitiously listened to through a broadcasting unit. Massiah, 377 U.S. at 201–03. ") The same year as Massiah, the Court in Escobedo v. Illinois[8](https://www.law.cornell.edu/constitution-conan/amendment-6/custodial-interrogation-and-right-to-counsel#fn8amd6 " 378 U.S. 478, 485, 490–91 (1964). Subsequently, the Court limited its holding in Escobedo to prospective application. See Johnson v. New Jersey, 384 U.S. 719, 721 (1966), abrogated by United States v. Johnson, 457 U.S. 537 (1982) ( “We hold that Escobedo affects only those cases in which the trial began after June 22, 1964, the date of that decision.” ). ") held that preindictment custodial interrogation violates the Sixth Amendment when “the suspect has requested and been denied an opportunity to consult with his lawyer.” In 1966, the Court in Miranda v. Arizona[9](https://www.law.cornell.edu/constitution-conan/amendment-6/custodial-interrogation-and-right-to-counsel#fn9amd6 " 384 U.S. 436, 441, 467 (1966). ") reaffirmed Escobedo, but switched from reliance on the Sixth Amendment to reliance on the Fifth Amendment ’s Self-Incrimination Clause in cases of pre-indictment custodial interrogation. That said, Miranda still placed great emphasis upon police warnings of the right to counsel and foreclosed interrogation in the absence of counsel without a valid waiver by defendant.[10](https://www.law.cornell.edu/constitution-conan/amendment-6/custodial-interrogation-and-right-to-counsel#fn10amd6 " Id. at 471–75. The different issues in Fifth and Sixth Amendment cases were summarized in Fellers v. United States, 540 U.S. 519, 524–25 (2004), which held that absence of an interrogation is irrelevant in a Massiah-based Sixth Amendment inquiry. ") However, in subsequent opinions, the Court clarified that neither Miranda nor Escobedo support the assertion that “the Sixth Amendment right, in any of its manifestations, applies prior to the initiation of adversary judicial proceedings.” [11](https://www.law.cornell.edu/constitution-conan/amendment-6/custodial-interrogation-and-right-to-counsel#fn11amd6 " Moran v. Burbine, 475 U.S. 412, 429 (1986) (emphasis added); see also Illinois v. Perkins, 496 U.S. 292, 299 (1990) ( “In the instant case no charges had been filed on the subject of the interrogation, and our Sixth Amendment precedents are not applicable.” ). For a discussion of intervening precedent, which developed the concept of initiation of adversary proceedings, see . ")

Despite Miranda’s general reliance on the Fifth Amendment , and the Court’s limitation on the scope of Escobedo, it has reaffirmed and in some respects expanded Massiah. First, in Brewer v. Williams,[12](https://www.law.cornell.edu/constitution-conan/amendment-6/custodial-interrogation-and-right-to-counsel#fn12amd6 " 430 U.S. 387, 391–93 (1977). The Court later decided another similar case (involving incriminating statements made to police officers during a pre-indictment conversation in a patrol car) on self-incrimination grounds. Rhode Island v. Innis, 446 U.S. 291, 294–95, 302 (1980). ") the Court held that police had violated the right to counsel by eliciting from the defendant incriminating admissions not through formal questioning but rather through a series of conversational openings designed to play on the defendant’s known weakness. The police conduct occurred in the post-arraignment period in the absence of defense counsel and despite assurances to defense counsel that the defendant would not be questioned in his absence.[13](https://www.law.cornell.edu/constitution-conan/amendment-6/custodial-interrogation-and-right-to-counsel#fn13amd6 " Brewer, 430 U.S. at 391. ") Then, in United States v. Henry,[14](https://www.law.cornell.edu/constitution-conan/amendment-6/custodial-interrogation-and-right-to-counsel#fn14amd6 " 447 U.S. 264, 265–66, 270, 274–75 (1980); but see Kansas v. Ventris, 556 U.S. 586, 589, 594 (2009) (concluding that law enforcement had violated defendant’s Sixth Amendment right to counsel by soliciting incriminating statements through an informant planted in defendant’s cell, but holding that statements were nevertheless admissible for purposes of impeaching the defendant’s “inconsistent testimony at trial” ); Weatherford v. Bursey, 429 U.S. 545, 550–51 (1977) (rejecting a per se rule that, regardless of the circumstances, “if an undercover agent meets with a criminal defendant who is awaiting trial and with his attorney and if the forthcoming trial is discussed without the agent’s revealing his identity, a violation of the defendant’s constitutional rights has occurred . . . ” ). ") the Court held that government agents violated the Sixth Amendment right to counsel when they contacted the cellmate of an indicted defendant and promised him payment under a contingent fee arrangement if he would “pay attention” to incriminating remarks initiated by the defendant and others. The Court concluded that, even if the government agents did not intend the informant to take affirmative steps to elicit incriminating statements from the defendant in the absence of counsel, the agents must have known that that result would follow.[15](https://www.law.cornell.edu/constitution-conan/amendment-6/custodial-interrogation-and-right-to-counsel#fn15amd6 " Henry, 447 U.S. at 271. ")

Another issue in the custodial interrogation context involves waiver of the right to counsel where the suspect makes incriminating statements during police questioning following a request for counsel. In Michigan v. Jackson, the Court held that, “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” [16](https://www.law.cornell.edu/constitution-conan/amendment-6/custodial-interrogation-and-right-to-counsel#fn16amd6 "<span class="fn_ref" id=