Another Crim Pro Question

[mcleod13]

What exactly are the elements necessary for a valid waiver of the 6th amendmenr right to counsel. If a person has been indicted and asks for a cigarette, the guard gives him one, and the accused begins to confess. Are his statements admissible.

[jwaxjwax]

The 6th amendment is violated when the police deliberately elicit an incriminating statement from defendant without a waiver. In that hypo, the defendant initiated the confession without prompting from the guard. So we don't even get to waiver there.

Waiver must be "intelligent." It requires not mere comprehension but relinquishment. Patterson v. Illinois held that where D (who has been indicted) is given Miranda warnings, and agrees to talk, that is sufficient even though the warnings are to protect D's 5th amendment right.

[mcleod13]

jwax, you answered my question perfectly! Thanks, in the hypo I was talking about (I didn't type it all) there was some more dialogue that could possibly be construed as statements or actions by the officer to try and elicit a confession. I just wanted the basic rule.

I understand that the 6th amendment right is offense specific and somewhat differs from the 5th amendment right but didn't know if the waivers were the same.

[jacy85]

It's not quite as easy as jwax said, and he's missing a lot of important analysis.

First, the right to counsel attaches automatically at indictment, but we treat waiver differently depending on whether the defendant has INVOKED the right and either asked for an attorney or else had one present w/ him at arraignment.

If the Def has NOT invoked his right to an attorney, then officers can Mirandize him and if he waives, that waiver is good for the 6th Amdt.

If the Def. HAS invoked his right to an attorney, the cops cannot talk to him at all except in one of 2 circumstances:  1) the defendant's attorney is present for the interaction w/ police, or 2) the defendant initiates the conversation AND also gives a valid waiver of his rights (Miranda will suffice here).  This is essentially the Edwards rule from the 5th Amdt transposed onto the 6th Amdt.

So generally, waivers for Miranda warnings suffice for 6th Amdt purposes, but there's a slightly different analysis depending on whether the defendant invoked his rights.  On the bare facts you gave in your OP, if the officer did nothing but give him a cigarette upon request (and there was no evidence that the officer knew this was likely to elicit information), a Miranda waiver would suffice, and would do so likely even if the Def. invoked his right since, as jwax said, the conversation was initiated by the defendant.

[jwaxjwax]

The Sixth amendment right to counsel attaches at indictment, but only applies at "critical stages" of the criminal prosecution. Where the police deliberately elicit inculpatory statements from the defendant, then the right applies. Because in that hypo, all the officer did was offer D a cigarette, the right does not apply and (despite Jacy's post that a Miranda warning would suffice) no wavier of any kind is needed.

Of course, if the hypo involved facts where the agent did more than just offer D a cigarette, you must determine whether the govt. took action to deliberately elicit incriminating statements from D (as opposed to merely listening). If it did, then the issue of waiver arises.