Sixth Amendment Right to Counsel
The Sixth Amendment guarantees criminal defendants the right to the assistance of counsel — triggered by the initiation of formal adversarial proceedings and protecting against deliberate elicitation of statements about charged offenses without counsel present or valid waiver.
Elements / Test
Attachment: Right attaches upon the initiation of formal criminal proceedings — indictment, arraignment, preliminary hearing, formal charge, or initial appearance (Massiah v. United States; Brewer v. Williams)
Deliberate elicitation: Government may not deliberately elicit statements about the charged offense without counsel present or valid waiver — applies to both direct questioning and use of informants (United States v. Henry)
Offense-specific: Right is limited to the charged offense; police may question without counsel about uncharged crimes (McNeil v. Wisconsin; Texas v. Cobb)
Waiver: Valid waiver possible using the Miranda voluntariness standard (Montejo v. Louisiana); must be knowing, voluntary, and intelligent
Right to appointed counsel at trial (Gideon v. Wainwright): Absolute for felonies; extended to misdemeanors where imprisonment imposed (Argersinger v. Hamlin)
Exceptions and Edge Cases
- Jailhouse informants: Passive listening is not deliberate elicitation (Kuhlman v. Wilson); active questioning by informant is (United States v. Henry)
- Miranda vs. Sixth Amendment: Miranda is a Fifth Amendment prophylactic rule; Sixth Amendment right attaches at formal proceedings, not merely custodial interrogation
- Invoking counsel: Sixth Amendment right to counsel does not automatically cut off questioning about uncharged crimes (unlike Fifth Amendment Edwards rule)
- Ineffective assistance (Strickland v. Washington): Two-prong: (1) deficient performance (below objective professional standard) AND (2) prejudice (reasonable probability of different outcome)
- Retained vs. appointed: Same constitutional standard for effectiveness
Key Cases
| Case | Rule |
|---|---|
| Gideon v. Wainwright (1963) | Right to appointed counsel in felonies incorporated against states |
| Massiah v. United States (1964) | Sixth Amendment bars deliberate elicitation after formal proceedings begin |
| Brewer v. Williams (1977) | “Christian burial speech” — deliberate elicitation; right to counsel violated |
| United States v. Henry (1980) | Paid informant who actively elicited = deliberate elicitation |
| Kuhlman v. Wilson (1986) | Passive listening informant = not deliberate elicitation |
| Strickland v. Washington (1984) | Two-prong test for ineffective assistance of counsel |