§ 25.04 "OFFENSE-SPECIFIC" NATURE OF THE RIGHT TO COUNSEL

• Jurisdiction: United States

§ 25.04. "Offense-Specific" Nature of the Right to Counsel⁵⁴

The Sixth Amendment right to counsel is offense-specific. That is, in determining whether the Sixth Amendment applies to a particular effort by the government to deliberately elicit incriminating statements from an accused, the issue is not simply whether formal judicial proceedings have commenced against the accused for some crime, but rather whether such proceedings have commenced in regard to the specific offense at issue.

This was not always the case. Or, at least, the Supreme Court did not speak of the offense-specific nature of the Sixth Amendment in its early post-Massiah cases. For, example, in Brewer v. Williams,⁵⁵ W, a suspect in the abduction and murder of a young girl, was arraigned on the abduction charge, and thereafter (in the absence of counsel) was subjected to conduct tantamount to interrogation that resulted in incriminating statements relating to the child's death. Although at this point formal proceedings had not yet commenced in regard to the child's murder, the Supreme Court reversed W's murder conviction on Sixth Amendment grounds.

In 1991, in McNeil v. Wisconsin,⁵⁶ however, the Supreme Court expressly characterized the Sixth Amendment as offense-specific. In McNeil, the police questioned M, formally charged with armed robbery, in regard to a series of crimes for which M had not yet been arrested, much less formally charged. The Court held that, in view of the offense-specific nature of the right, the Sixth Amendment had not attached to the latter crimes at the time of interrogation, although it applied to the armed robbery.

The McNeil "offense-specific" concept was clarified—and the potential scope of the Sixth Amendment right to counsel seemingly narrowed—in Texas v. Cobb.⁵⁷ In Cobb, C confessed to the burglary of a home, but denied knowledge of a mother and her infant daughter missing from the home and later discovered dead. The government indicted C for the burglary, but later questioned him in the absence of counsel, and secured confessions regarding the murder victims. The Court held that the Sixth Amendment right to counsel did not extend to the unindicted offenses (here, the murders) simply because they were "factually related" to an offense (here, burglary) that had been charged. It would follow, therefore, that in Brewer v. Williams the Sixth Amendment did not in fact attach to the uncharged crime of murder, although that offense was inextricably intertwined with the abduction charge for which W had been arraigned. The Court's holding in Williams, therefore, was incorrect in light of Cobb.⁵⁸

The Cobb Court did state, however, that the term "offense" is "not necessarily limited to the four corners of a charging instrument." Instead, the Court announced that the meaning of the term "offense" in the Sixth Amendment right-to-counsel context is the same as in the Fifth Amendment Double Jeopardy...