Right to Counsel

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By J.R. Wilson

There are two constitutional sources that address the right to counsel, the 5th and 6th amendments.  The Fifth Amendment states that no person "... shall be compelled in any criminal case to be a witness against himself."  The sixth amendment states that a person has the right to "...the assistance of counsel for his defense."

The Fifth Amendment focuses on coercing or compelling a confession.  For confessions to be admissible, they may not be coerced.  Confessions must be provided freely and voluntarily.  In Miranda vs. Arizona, the Supreme Court ruled that custodial interrogation, by its very nature, is coercive.  Therefore, the Court requires police to provide Miranda Warnings during custodial interrogation to ensure that persons in custody understand that they are not required to provide any statement, statements made may be used against them, and they have the right to an attorney appointed or otherwise.  It is important to note that the Court has determined that the 5th amendment right to counsel only attaches if a person is questioned "in custody" or the questioning takes place while the person's freedom of action is curtailed to the degree associated with formal arrest.  "Miranda warnings are not required simply because questioning takes place in the station house, or because the questioned person is one whom police suspect..."(Arkansas Supreme Court: ASC) If a person is not in custody, Miranda is not required for purposes of the Fifth Amendment.   Some exceptions to the Miranda warning requirement for custodial interrogation exist, such as the use of cellmate informants and the public safety exception.

If the Miranda warning is required prior to interrogating a person in custody, the question then becomes, who is considered to be "in custody."  An "in custody" determination is made from the viewpoint of a reasonable man in the suspect's position.  This determination is based on the objective circumstances of the interrogation. "...A policeman's unarticulated plan has no bearing on the question whether a suspect was "in custody" at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation."(ASC)  Persons subjected to custodial interrogation have the opportunity to invoke or waive their right to an attorney.

Officers should recognize that the right to remain silent and the right to an attorney are separate rights.  On may be invoked when the other is not.  If a person invokes the right to remain silent but not the right to an attorney, after some time has passed, even though the person remains in custody, there may be some opportunity for the government to attempt to initiate contact to determine if the person in custody has reconsidered.  However, if a person invokes the right to an attorney, an officer may not request any additional communication absent permission from the subject's attorney as long as there is uninterrupted custody.

The fifth amendment right to counsel is not crime specific.  Therefore, if someone is in custody, you may not interrogate for any crime, regardless of whether it is the crime for which they are arrested, without first advising of Miranda and obtaining a waiver.  Additionally, if someone invokes their 5th amendment right under Miranda, the invocation "endures as long as the individual invoking that right remains in continuous custody.  Unless defense counsel is present, this protection precludes government initiated interrogation of the subject for the duration of uninterrupted custody...custodial subjects who invoke the Miranda right to counsel and thereafter are released on bond or bail lose the protection of their invocation and may be subjected to government initiated interrogation (FBI LE Bulletin)."  Those who remain in custody "...pending trial, or are convicted and sentenced to prison without ever being released from custody continue to benefit from the protections of their invocations for the entire term of imprisonment (FBI LE Bulletin)."  However, if a person invokes their 5th amendment right to counsel, it does not prevent the person in custody from changing his/her mind and initiating contact with the officer absent their attorney.

It is important to note that, in some states, it may be an ethics violation for prosecutors to direct or knowingly use statements of a defendant taken in absentia of their attorney when an Officer obtained a statement knowing such person to be represented by an attorney in the matter at hand even though the person was not in custody or no 6th amendment right had yet attached.  This may or may not be applicable to a particular situation.

Statements taken in violation of the 5th amendment are inadmissible in the government's case in chief.  However, absent deliberate or coercive tactics, if an Officer fails to obtain a waiver of Miranda warnings prior to a custodial confession, the Officer may rectify the situation by providing the Miranda warning subsequent to the confession, obtaining a waiver, and allowing the subject in custody to adopt the previously provided confession.  In addition, statements taken in violation of one's Fifth Amendment rights, that are typically inadmissible, may be admissible to impeach defendants that take the stand to testify at trial.  "Although obtaining valuable impeachment material is a common goal of law enforcement, officers risk personal liability if they obtain such material through intentional or grossly negligent violations of the constitution (FBI LE Bulletin)"

The 6th amendment right to counsel does not address custodial interrogation.  "Rather, the provisions of the 6th amendment are intended to ensure fair prosecutions... the right to counsel under the 6th amendment does not attach until the government signals its commitment to prosecute by the initiation of adversarial judicial proceedings.  Once proceedings have begun by way of formal charges, preliminary hearing, indictment, information, or arraignment, the defendant, whether in custody or not has a right to counsel under the 6th amendment that has no recognized exceptions." (FBI LE Bulletin)  Therefore, the practical effect of the sixth amendment for law enforcement is that if the government has formally signaled its intent to prosecute a matter, Officers questioning suspects subsequent to this time, must provide Miranda warning and obtain a waiver prior to questioning.  Custody is not at issue.

For Law Enforcement purposes in the State of Arkansas, the sixth amendment right to counsel would probably be effectual upon the filing of an information, grand jury indictment, and most likely following an initial appearance.

The following formulas are therefore relevant to Law Enforcement:

Custody + Interrogation = Miranda Warning and Waiver prior to Interrogation
	
Governments formal signal to prosecute + interrogation = Miranda Warning and Waiver prior to interrogation.

(J.R. Wilson is currently Chief of Police of Hope, Arkansas and a former FBI Agent.)

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