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5th/6th Amendment Right to Counsel differences - Coggle Diagram
5th/6th Amendment Right to Counsel differences
When does each right to counsel attach
Fifth Amendment
attaches when there is a custodial interrogation
custodial interrogation: questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his "freedom of action in any significant way" (Oregon v. Mathiason)
Sixth Amendment
applies to all efforts by the police to have deliberately elicit statements from a person after formal proceedings have been initiated
Which offenses are covered
Fifth Amendment is not offense specific, which means that police cannot initiate questioning about any crime after a suspect has invoked the right to counsel (Michigan v. Mosley)
Sixth Amendment is offense specific
A defendant's statements regarding offenses for which he had not been charged were admissible notwithstanding the attachment of his Sixth Amendment right to counsel on the other charged offenses (Texas v. Cobb)
Blockburger test (applies when there are two offenses and one of the offenses is not in four corners of the charging document)
Waiver
Fifth Amendment waiver
an accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police (Edwards v. Arizona)
When counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney (Minnick v. Mississippi)
waiver must be unambiguous and unequivocal (law enforcement not required to get clarity if the defendant is ambiguous)
Sixth Amendment (waiver is offense specific)
right may be waived by the defendant, so long as the relinquishment of the right is voluntary, knowing, and intelligent (Montejo v. Louisiana)
textual basis
fifth amendment
in Miranda, the SC created the right to counsel under the self incrimination clause
Sixth Amendment
this right was not created by the court, it is stated in the Constitution