The Right to a Lawyer Under the 6th Amendment

When the Sixth Amendment Right Attaches


“Deliberate Elicitation”


An investigatory technique constitutes elicitation if it is “the equivalent of direct police interrogation.” Deliberate elicitation occurs when the government through its overt or covert police agent: acts with the purpose of eliciting incriminating information from the accused regarding the pending charges, without regard to the likelihood that the elicitation will be successful; or creates an opportunity for the accused to make incriminating statements about the pending charges.

Police Acts With Purpose

Examples of purposeful police conductthat may elicit incriminating statements from the accused include:

  • an officer formally interrogates the accused.
  • an undercover agent engages the accused in a conversation about the criminal activity.
Police Create an Opportunity for Incriminating Statements

Deliberate elicitation may be found where the government creates a situation likely to induce the defendant to make incriminating statements. In one case the FBI placed an informant who was to be paid on a contingent basis in the defendant’s jail cell after he had been indicted. The FBI advised the informant “to be alert to any statement” the defendant made, but not to initiate any conversations with the defendant or ask him questions.



If a government agent does no more than listen , without proactively inducing the accused to make incriminating statements such as by placing an undercover agent or informant in an accused’s jail cell and merely reporting the accused’s unsolicited incriminating statements such action does not constitute deliberate elicitation.

“The Right to a Lawyer Under the 6th Amendment Interrogation Offense-Specific” Nature of the Right

The Sixth Amendment is offense-specific, i.e., the interrogation that is the subject of the Sixth Amendment inquiry must relate to the crime for which criminal proceedings have commenced. The Sixth Amendment right to counsel does not attach to other crimes for which the accused may be under investigation but which are unrelated to the pending prosecution.

For purposes of determining whether the Sixth Amendment covers a given crime it has been clarified that:

  2. the term “offense” is “not necessarily limited to the four corners of a charging instrument”;
Waiver of the Right to Counsel When the Accused Requests Counsel


When the Accused Does Not Request Counsel Before Counsel is Appointed or Hired


After Counsel is Appointed or Hired


Sufficiency of Waiver


Scope of the Sixth Amendment Exclusionary Rule Impeachment


Fruit-of-the-Poisonous-Tree Doctrine



Such evidence is not generally admissible in court. For example, if a police officer conducted an unconstitutional (Fourth Amendment) search of a home and obtained a key to a train station locker, and evidence of a crime came from the locker, that evidence would most likely be excluded under the fruit of the poisonous tree doctrine. The discovery of a witness is not evidence in itself because the witness is attenuated by separate interviews, in-court testimony and his or her own statements.

The doctrine is an extension of the exclusionary rule, which, subject to some exceptions, prevents evidence obtained in violation of the Fourth Amendment from being admitted in a criminal trial. Like the exclusionary rule, the fruit of the poisonous tree doctrine is intended to deter police from using illegal means to obtain evidence.

The doctrine is subject to four main exceptions. The tainted evidence is admissible if:

  1. it was discovered in part as a result of an independent, untainted source;
  2. it would inevitably have been discovered despite the tainted source; or
  3. the chain of causation between the illegal action and the tainted evidence is too attenuated; or
  4. the search warrant not based on probable cause was executed by government agents in good faith.
A Comparison of Right to Counsel During Interrogations Under Sixth Amendment and Miranda

The right to counsel under the Sixth Amendment and the Fifth Amendment Miranda decision differ in the following ways:

  3. Nature of offense The Sixth Amendment right is offense-specific; the Fifth Amendment right to counsel applies to any and all offenses, once custodial interrogation commences.
  5. Questioning by undercover agent or informant The Fifth Amendment right to counsel is not invoked when the suspect is questioned by an informant or undercover officer; the Sixth Amendment applies to deliberate elicitation by overt and covert government agents.
  6. Fruit-of-the-poisonous-tree doctrine The doctrine applies to Sixth Amendment violations; the doctrine does not apply to violations of the Fifth Amendment right to counsel.
The Right to a Lawyer Under the 6th Amendment Interrogation

30 Years of Experience About The Author: H. Michael Steinberg Email The Author. A Denver Colorado Criminal Defense Lawyer or call his office at 303-627-7777 during business hours or call his cell if you need his immediate assistance 720-220-2277.

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