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Crim Pro Question- 6th Amendment

Posted: Thu Dec 08, 2011 11:22 pm
by romothesavior
Hey, this may be a silly question, but I can't figure it out from my notes/outline/supplements.

I know that the 6th Amendment attaches at the onset of the prosecution, i.e. the indictment. However, is this something that must be actively asserted by the defendant? For example, let's say a defendant is arrested, taken into custody, and charged. He then signs a Miranda waiver, and he gives a confession to the crime without consulting with his lawyer. I know his Miranda rights have been waived, but does his failure to assert a desire for counsel bar a 6th Amendment claim? Or does he have a claim because police should not have questioned him without his lawyer after they charged him?

Re: Crim Pro Question- 6th Amendment

Posted: Fri Dec 09, 2011 12:03 am
by zomginternets
6A right to counsel is automatic and must be waived before questioning (i.e. no need to specifically invoke first). However, if the PO reads you a Miranda warning and you sign a waiver, this is sufficient to have knowingly waived your 6A rights as well. See Patterson v. Illinois.

Re: Crim Pro Question- 6th Amendment

Posted: Fri Dec 09, 2011 12:03 am
by FUBAR
So, a suspect is entitled to assistance of counsel when: (1) criminal adversarial proceedings have commenced (Rothgery); (2) the encounter is a critical stage (Brewer); and (3) the sentence carries with it a term of imprisonment (Argersinger/Scott). Under Patterson, waiver of Miranda is sufficient to waive the 6A right to counsel. The waiver still needs to be knowing, intelligent, and voluntary.

Re: Crim Pro Question- 6th Amendment

Posted: Fri Dec 09, 2011 12:18 am
by romothesavior
I don't remember Patterson, although the name sounds familiar. Looks like it covers what I was looking for. I figured that had to be right, but I wasn't sure.

Thanks all.