Although the Fifth Amendment does not expressly protect the right to counsel, Miranda required an express warning of the right to counsel to be provided to the accused. This warning is distinct from the right to counsel protected in the Sixth Amendment. The timing is also slightly different. For a Miranda warning, the right must be disclosed to the accused before any custodial interrogation takes place. Conversely, for a Sixth Amendment warning, the right to counsel must be disclosed at the time of charging. The main question then is whether the Miranda warning is also sufficient to inform the accused of their right to counsel under the Sixth Amendment.

Consider the following cases:

Massiah v. United States

377 U.S. 201 (1964).

Officers placed a radio transmitter in the car of a friend (who was acting with the police) of Massiah. The purpose was to gain additional evidence on Massiah (which the obtained), who previously had an indictment and an attorney appointed.

Although the testimony obtained was not coerced, this was a violation of the Sixth Amendment violation of the right to counsel because the questioning occurred post-indictment.

Escobedo v. Illinois

378 U.S. 478 (1964).

Escobedo was prevented from consulting with his attorney as he was being interrogated. Another defendant was sent into the interrogation to confront him about the crime.

Again, the Sixth Amendment applied here. This is a pre-indictment questioning that is a violation because the defendant was in a “critical stage.”

Brewer v. Williams

430 U.S. 387 (1988).

Williams had abducted a young girl in Des Moines, Iowa then disposed of the body on his way to Davenport Iowa. He was arrested and arraigned in Davenport where he had talked to multiple attorneys. Both attorneys told Williams not to talk to the police. As the police were escorting Williams back to Des Moines, the officer discussed a Christian burial for the young girl before the weather hid the body (knowing Williams was religious and had mental issues). After the speech, Williams directs the officer where the body could be found.

The question is whether the police deliberately elicited the statement from Williams. Here, this was deliberate eliciting in violation of the Sixth Amendment. So, his statements are out of evidence. Also consider the example in Nix v. Williams, 467 U.S. 431 (1984) (discussing inevitable discovery allowing the discovered body into evidence).

Rubalcado v. State

424 S.W.3d 560 (Tex. Crim. App. 2014).


Whether, after the Sixth Amendment right to counsel has attached, the police circumvented that right by using an undisclosed government agent to gather incriminating information.


After the Sixth Amendment right to counsel has attached, if the police knowingly circumvented that right by using an undisclosed government agent to gather incriminating information, the statements may not be used as evidence.

Attachment occurs automatically once the individual is subject to prosecution (formal charge, arraignment, or indictment). Attachment is crime specific, using double jeopardy standards to determine whether the Sixth Amendment attaches to each individual crime.

Knowing circumvention occurs when at least one state actor knows of the attached right. All state actors have then been imputed knowledge of that right.

An agent of the police occurs when the police provide instructions to an informant, with the intent to gather incriminating information.

Eliciting information occurs when the agent makes an initial express attempt to gather information. Simply being a listening ear is not eliciting information.

A defendant may waive their Sixth Amendment rights by initiating the conversation with the informant.


The Sixth Amendment attached and the police knowingly circumvented that right to obtain incriminating information through an agent of the state.


After a complaint against the defendant was made by J.S., the defendant was arrested and placed bail for release. After placing bail, officer’s approached J.S., asking her to contact the defendant for the purpose of obtaining incriminating information. She agreed. After being set up with recording equipment, J.S. called the defendant and carried on a conversation with him. During this conversation, the officers did not instruct J.S. on what to say. At some point during the conversation, J.S. asked questions that were designed to provoke a response to the crimes for which the defendant was charged. The evasive responses made by the defendant were then used against him at trial.


First attachment is crime specific. The defendant had invoked his rights for crimes that occurred in one county, but not another. However, the conversation between J.S. and the defendant did not differentiate between the different crimes. So, the statements may all be considered applicable to the charged crimes.

Second, knowing circumvention of the attached right occurred because the court knew of the declared right. Because knowledge by one state actor is imputed to all state actors, any attempt to circumvent that right would be done knowingly.

Third, J.S. was an actor of the state because she was asked to imitate the phone call and provided the recording equipment for the purpose of bathing incriminating information.

Fourth, the questions asked by J.S. were designed to gather information. She was not simply a listening ear, she asked questions about the crimes, hoping to obtain a response.

Finally, the defendant did not waive his right. He did not initiate the conversation with J.S.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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