Fifth vs. Sixth Amendments
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 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, a defendant has a right to the assistance of counsel at all critical stages 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. 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." 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. Once proceedings have begun "by way of formal charges, preliminary hearing,...
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