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I am having trouble coming up with a test scenario where the sixth amendment right to counsel is tested.

I understand the fifth amendment Miranda stuff. Was it an interrogation, was the person free to leave, are there exceptions (like the emergency exception), and the result: statements admissible vs. inadmissible

I don't understand the sixth amendment at all. it says suspect has right to counsel. so what? how would that be tested?

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unclej wrote:I am having trouble coming up with a test scenario where the sixth amendment right to counsel is tested.

I understand the fifth amendment Miranda stuff. Was it an interrogation, was the person free to leave, are there exceptions (like the emergency exception), and the result: statements admissible vs. inadmissible

I don't understand the sixth amendment at all. it says suspect has right to counsel. so what? how would that be tested?

Do you have a right to an attorney before submitting to a field sobriety test? What about after you are arrested and then asked to conduct a breathalizer? (i.e. when does the right attach?) That's one area, I think.

Common way you might see it is in a question regarding when/under what circumstances the right kicks in.

At one point does the Sixth Amendment right (versus the Fifth Amendment "right") kick in? If you're represented by counsel on one matter, can the cops question you about a different crime without implicating the Sixth Amendment versus Fifth Amendment? Can the cops/prosecutor -ever- speak to you without your attorney?

Another issue that is covered by a number of cases is what counts as elicitation by a law enforcement officer that requires an attorney to be present (generally requires deliberate elicitation, an intentional act by government from which it is reasonably foreseeable that defendant will give an incriminating statement). Also whether law enforcement can use a third party like a jailhouse plant to elicit information.

thanks for the info.

fifth amendment right to counsel is not offense-specific, when the suspect invokes his rights to an attorney, the police can't question him about anything. Sixth amendment right to counsel is offense-specific, meaning the police can question the suspect about unrelated crimes even after the suspect invokes his sixth amendment right to counsel.

so imagine suspect says "I will not answer any questions without an attorney."

how do I know which amendment right was invoked, his fifth amendment rights or his sixth amendment rights?

I read all the answers and I know this was addressed but it just seems to me the sixth amendment is redundant and unnecessary when the fifth amendment already includes right to counsel?

unclej wrote:thanks for the info.

fifth amendment right to counsel is not offense-specific, when the suspect invokes his rights to an attorney, the police can't question him about anything. Sixth amendment right to counsel is offense-specific, meaning the police can question the suspect about unrelated crimes even after the suspect invokes his sixth amendment right to counsel.

so imagine suspect says "I will not answer any questions without an attorney."

how do I know which amendment right was invoked, his fifth amendment rights or his sixth amendment rights?

I read all the answers and I know this was addressed but it just seems to me the sixth amendment is redundant and unnecessary when the fifth amendment already includes right to counsel?

I think it's Massiah, but the question is 'attachment' and when the 6th amendment right to counsel attaches (answer: when you're arrested/charged). 5th amendment only provides the right to have counsel present, but not a right to be free of questioning without counsel or a right to have an attorney provided for you.

Figure out attachment; invocations before are 5th amendment, after is 6th.

unclej wrote:thanks for the info.

fifth amendment right to counsel is not offense-specific, when the suspect invokes his rights to an attorney, the police can't question him about anything. Sixth amendment right to counsel is offense-specific, meaning the police can question the suspect about unrelated crimes even after the suspect invokes his sixth amendment right to counsel.

so imagine suspect says "I will not answer any questions without an attorney."

how do I know which amendment right was invoked, his fifth amendment rights or his sixth amendment rights?

I read all the answers and I know this was addressed but it just seems to me the sixth amendment is redundant and unnecessary when the fifth amendment already includes right to counsel?

Remember that the Fifth Amendment actually has no right to counsel. It's provided as a prophylactic of the rights enumerated under the Fifth Amendment (i.e. to make sure the defendant doesn't incriminate himself). So, there may be instances where a defendant's Fifth Amendment rights are not violated, but his Sixth Amendment rights are.

The easiest example is a police arranged line-up. Merely standing in a line-up does not constitute self-incrimination, but it is a "critical stage in the proceeding," such that a defendant should have an attorney present.

In practice, at least in the federal courts, the Sixth Amendment right to counsel is one of the most frequently litigated issues. It's the most common basis for habeas challenges, since it's often easier to succeed on habeas review by arguing that your attorney was ineffective in failing to challenge XYZ than by arguing that XYZ themselves were fundamental errors requiring a new trial.

It's not just a right to have counsel -- it's the right to have the effective assistance of counsel, so it may be implicated where, e.g., defense counsel slept through the entire trial; defense counsel was having an affair with the key prosecution witness; defense counsel failed to conduct any kind of investigation whatsoever; etc. (The vast majority of these challenges will not be successful, but they are raised all the time.)