By Crawford, Kimberly A.
The FBI Law Enforcement Bulletin , Vol. 71, No. 9
The U.S. Supreme Court has recognized two constitutional sources of the right to counsel during interrogation. One source is the Court's interpretation in Miranda v. Arizona (1) of the Fifth Amendment right against compelled self-incrimination; (2) the other is contained within the language of the Sixth Amendment. (3) Because the protections afforded individuals under these constitutional provisions differ, it is critical that law enforcement officers understand the provisions and appropriately apply their protections.
This article examines both the Fifth and Sixth Amendment rights to counsel and the underlying principles that support these rights. This article also reviews the Supreme Court's interpretation of these rights and the effects they have on a law enforcement officer's ability to engage in interrogation during various stages of a criminal investigation. Finally, suggestions are offered regarding policy considerations that incorporate the protections of the rights to counsel and optimize the potential of obtaining statements that are admissible in court.
Purpose of the Protections
Understanding the protections of the Fifth and Sixth Amendment rights to counsel and the concomitant procedural rules begins with an appreciation of the principals that underlie those rights. In Miranda, the Supreme Court concluded that custodial interrogation creates an inherently coercive environment that violates the Fifth Amendment protection against compelled self-incrimination. In an effort to reduce the inherent coerciveness, the Court created the now famous Miranda warnings (4) and required the government to give those warnings and obtain waivers prior to custodial interrogation. The warnings are designed in part to safeguard the right against compelled self-incrimination by ensuring custodial subjects that, if they choose to waive the right to silence, they will not have to face the government alone; they may have the assistance of counsel during interrogation.
The Sixth Amendment protections, on the other hand, do not relate to the coercive atmosphere of custodial interrogation. Rather, the provisions of the Sixth Amendment are intended to ensure fair prosecutions. Thus, once a criminal case has been initiated, (5) a defendant has a right to the assistance of counsel at all critical stages (6) of that prosecution.
Application of the Rights to Counsel
Because the impetus for the creation of the Miranda rights was the Supreme Court's concern that custodial interrogations are intrinsically coercive, the right to counsel contained within Miranda applies only when the subject of interrogation is in custody. The same concern prompted the Supreme Court to determine custody, not from the prospective of the law enforcement officer but, rather, that of the reasonable subject. (7) Whether or not law enforcement officers believe there is probable cause to arrest is irrelevant to the issue of custody. The determination is based on whether a reasonable person under the circumstances would sense the coerciveness of the environment that Miranda was designed to protect against.
Similarly, the Supreme Court has recognized an exception to the Miranda requirement when a cellmate informant, either an individual in custody or an undercover law enforcement officer, conducts the "custodial interrogation." (8) Because the subjects of cellmate questioning do not know that the government is interrogating them, they cannot feel the coerciveness Miranda was designed to protect against. Consequently, the practice of using cellmate informants does not contravene the Miranda rule.
The Sixth Amendment right to counsel, however, does not hinge on the issue of custody. Because the objective of the amendment is to guarantee a fair prosecution, the right to counsel under the Sixth Amendment does not attach until the government signals its commitment to prosecute by the initiation of adversarial judicial proceedings. …