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Supplement to the 

2009 Legal Division Handbook

Chapter Thirteen – Fifth and Sixth Amendments

To replace Section VII (pp. 502-506)

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VII. The Sixth Amendment Right to Counsel 

A. Generally

The Sixth Amendment to the Constitution states that, 

“[i]n all criminal prosecutions, the accused shall enjoy the right 

to... have the Assistance of Counsel for his defence.” The 

purpose of the Sixth Amendment right to counsel is to ensure 

that anyone accused of a crime by the government will receive 

fair treatment in the judicial process and at trial. The 

opportunity for an accused to consult with and be represented 

by counsel when defending against a criminal charge is 

considered a basic requirement of fairness in our judicial 

process. It gives the defendant an opportunity to have defense 

counsel act as a buffer when forced to directly confront his 

skillful adversary – the government and its agents.

An individual’s Sixth Amendment right to counsel 

attaches when the government has formally accused him with a 

crime, thereby initiating the adversarial process. It is not 

limited to custodial interrogation by known law enforcement 

officers, the way Miranda rights are under the Fifth 

Amendment. It applies to any “critical stage” of his prosecution.

B. Critical Stages

1. Interrogation

Once the Sixth Amendment right to counsel has attached, 

the accused must be afforded the right to have counsel present 
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during every “critical stage” of the criminal proceedings. 

Critical stages include all court-related proceedings. More 

importantly for law enforcement officers, any interrogation,

custodial or not, is considered a critical stage. All attempts by 

the government (including law enforcement) to “deliberately 

elicit” information from the defendant about the charged crime 

would be included. Because this is a Constitutional right,

courts would normally apply the exclusionary rule and 

suppress any evidence obtained through or derived from any 

violations.

2. Line-ups

Live identification procedures thrust the accused into a 

direct confrontation with his adversary. As a consequence, the 

courts consider line-ups (and probably show-ups) to be a 

critical stage in the proceedings.

Whenever the accused is placed in a line-up for 

identification in a charged offense, and the right to counsel has 

attached, the accused must be afforded the opportunity to have 

his counsel present during the line-up. Any such line-up that 

includes the accused must then be conducted with defense 

counsel present, unless the defendant waives that right. The 

validity of any waiver will be determined by the totality of the 

circumstances under which it was made. Violations of this 

right can have an adverse affect on later in-court identifications 

by the identifying witness.

Identification through a photo array including the 

accused does not involve a confrontation, and therefore is not 

considered a critical stage of the adversarial proceedings. The 

accused thus has no Sixth Amendment right to the presence of 

counsel when photo arrays are used.

C. Attachment

The protections of the Sixth Amendment right to counsel 

are not available to suspects until they have been formally 

charged by the government with a crime. In the federal judicial 
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system, formal criminal charges are initiated against a 

defendant by one of the following means:

an Indictment returned by a Federal Grand Jury;

an Information filed by a Federal prosecutor; or

an Initial Appearance of the defendant after arrest.

Whenever the earliest of these events occurs in a case, the 

adversarial proceeding has begun, and the accused’s right to 

have counsel present at all critical stages has then attached. 

D. Offense Specific

In the prior sections, it was noted that Miranda rights are 

not offense specific; that is, they apply to any custodial 

interrogation by law enforcement, regardless of the offense for 

which the suspect is being held. By contrast, the Sixth 

Amendment right to counsel is offense specific. Because the 

Sixth Amendment right applies only when adversarial 

proceedings are initiated, the right attaches only as to the 

charged offenses.

However, the accused has no Sixth Amendment right to 

counsel when being questioned or subjected to a line-up 

involving other, uncharged offenses, since the right has not 

attached as to those crimes. The Sixth Amendment right to 

counsel would not bar you from interrogating a defendant about 

uncharged crimes even if those crimes arose from the same 

incident and are closely related to the charged crime. A 

defendant’s statements regarding offenses for which the Sixth 

Amendment right to counsel has not attached are admissible, 

even if the right has already attached for other pending charges.

E. Waiver and Invocation

1. Waiver

Once the right to counsel has attached, you may not 

attempt to “deliberately elicit” information from the accused 
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without first advising him of his right to have counsel present, 

and then obtaining a voluntary, intelligent waiver. Although 

Sixth Amendment rights differ from the Fifth Amendment 

Miranda rights, the Supreme Court held that officers can use 

the Miranda warning and waiver procedure to obtain a valid 

waiver of the Sixth Amendment right to counsel. There is no 

requirement to inform the accused that he has been charged, or 

as to the nature of the charge. Note, however, that a suspect’s 

waiver of the Miranda right to counsel while in custody is not a 

waiver of his Sixth Amendment right to counsel, unless the 

Sixth Amendment right had already attached at the time of the 

waiver.

2. Undercover Agents and Informants

Unlike a Miranda situation, once the Sixth Amendment 

right has attached, the government can no longer use an 

undercover officer or confidential informant to question, or 

otherwise elicit information, from a defendant about the 

charged crime. This form of government questioning is still 

considered a critical stage, and it is not feasible to obtain a 

proper waiver. However, covert agents who merely listen to the 

accused, without actively eliciting the information, or who 

discuss other crimes, do not violate the right. The undercover 

operative must be careful not to discuss the charged crime with 

the accused, because even absent any actual questions, it could 

be seen as an attempt to elicit information.

3. Invoking the Right

The Sixth Amendment does not prohibit you from 

interrogating a defendant about charged offenses, so long as 

you either (1) advise the defendant of his Sixth Amendment 

right to have counsel present and obtain a waiver from him, or 

(2) permit the defendant’s attorney to be present during the 

interrogation. The defendant can invoke his right to counsel by 

affirmatively requesting the presence of his attorney during any 

questioning or line-up procedure.
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As noted in the discussion of the Miranda rules, a 

defendant in custody who invokes his right to counsel may not 

be re-approached by a known law enforcement officer to 

question him about any charged or uncharged offense without 

his counsel being present. The Miranda rules cease to apply 

once a suspect is released from custody. Since the Sixth 

Amendment right to counsel attaches when the defendant is 

formally charged, that right continues to apply to your attempt 

to question a defendant who is not in custody concerning the 

pending charged offenses.

Unlike the Miranda rule however, a defendant’s prior 

request for an attorney will not automatically prevent you from 

approaching or initiating contact with a defendant who is not 

in custody to attempt to obtain a waiver of the Sixth 

Amendment right to counsel. In cases where you seek to 

question a defendant about a charged offense after he has been 

previously appointed counsel [or requested an attorney in other 

settings (court proceedings, line-ups, etc.)], you may still 

approach the defendant. If the defendant voluntarily waives his 

Sixth Amendment right to counsel after warnings, questioning 

can proceed without counsel being present. However, if the 

defendant affirmatively requests counsel for the questioning, do 

not question the defendant without counsel being present. 

Re-approaching the defendant in such circumstances may be 

deemed to be badgering and call to question the voluntariness 

of any waiver or statement obtained thereafter. On the other 

hand, if the invoking defendant initiates the contact with you, a 

valid waiver will permit you to question the defendant about the 

pending charged offenses without counsel being present. (But 

see the McDade Amendment in Section F below for possible 

ethical issues involved in contacting persons known to be 

represented by an attorney.)

F. The McDade Amendment

A federal statute, 18 U.S.C. § 530B, commonly referred to 

as the “McDade Amendment”, subjects federal prosecutors to 

the general ethical obligations of the members of the legal 

profession while in performance of their federal duties. 
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Included in the common ethical rules that apply to attorneys 

are: (1) a “no contact rule” that bars communications by a 

lawyer with a person represented by another lawyer in a matter 

that concerns the representation, and (2) a rule that can hold a 

government attorney responsible for the actions of others (such 

as federal investigators) they direct, which would violate an 

ethical rule if done by the attorney.

As a result of the interplay of these rules, a prosecutor 

may be reluctant to make contact, or to direct federal agents to 

make contact, with any witness or suspect known to be 

represented by an attorney in the matter under investigation. 

When the ethical obligation applies, the prosecutor may insist 

that agents make the contact only if the witness/suspect’s 

counsel is present or otherwise permits the contact. Unlike a 

constitutional right, this ethical requirement cannot be waived 

by the represented person, even where he initiates the contact.

Violation of the “no contact” ethical requirement could 

subject the prosecutor to discipline by state bar authorities -

even in situations when it was actually the investigator that 

made the contact. As non-attorneys, investigators cannot be 

subjected to such discipline. Due to the concerns involved, 

however, you should consult with the prosecutor assigned to 

the case prior to making any investigative contacts with a party 

that is believed to be represented by an attorney in the matter 

under investigation. 

(The Department of Justice Professional Responsibility Advisory 

Office has published guidance on this issue. It’s titled “Legal 

Ethics for Investigative Agents?” and can be found in the Legal 

Division Reference Book under Additional Resources / 

Department of Justice.)

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