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The Difference between the 5th and 6th Amendment Right to Counsel

Both the Fifth and Sixth Amendments to the U.S. Constitution involve the right to counsel.  While sometimes overlapping, there are several differences between these rights.

The Fifth Amendment right to counsel was recognized as part of Miranda v. Arizona and refers to the right to counsel during a custodial interrogation; the Sixth Amendment ensures the right to effective assistance of counsel during the critical stages of a criminal prosecution.

Under the Fifth Amendment, a person must be given Miranda warnings, including informing the suspect of their right to an attorney, before a custodial interrogation by a government agent.  If an individual is not warned of his or her Miranda rights, any information gained through an interrogation is inadmissible in court.  Miranda warnings were put in place to allow a suspect to consult with an attorney before a custodial interrogation, even though the suspect may not have been formally arrested.  The definition of “in custody” can be quite confusing with the United States Supreme Court finding that in prison does not necessarily mean “in custody” for Miranda purposes.

Under the Sixth Amendment, an individual facing criminal charges is entitled to the effective assistance of counsel.  The right to an attorney under the Sixth Amendment is triggered once criminal proceedings begin against an individual.  Criminal proceedings are initiated through a formal charge, preliminary hearing, information, indictment, or arraignment.

Arrest does not necessarily mean the beginning of criminal proceedings if the suspect is not formally charged, and therefore does not always trigger Sixth Amendment protections.  The Sixth Amendment right to assistance of counsel applies to all “critical stages” in a criminal proceeding.  The Supreme Court has held that critical stages include arraignment, post indictment line-ups, post indictment interrogation, plea negotiations, and entering a plea of guilty.

There are several differences between these two rights.  While the Fifth Amendment right to counsel may apply before a person has been arrested, the Sixth Amendment right to counsel does not attach until after criminal proceedings have begun against an individual.

In contrast to the Fifth Amendment right to an attorney, the Sixth Amendment right to counsel is offense-specific, meaning that once invoked, the Fifth Amendment right to an attorney forbids police to question a suspect on any matter until the suspect has a chance to speak to an attorney.  On the other hand, under the Sixth amendment right to counsel, the suspect is entitled to have their attorney present at interrogations and proceedings involving the specific offense, but police may question the suspect on unrelated matters outside the presence of their attorney which was the basis for the aforementioned United States Supreme Court ruling that being in jail or prison does not mean “in custody” for Miranda.

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