§ 25.08 Right-to-Counsel Summary: Sixth Amendment versus Miranda

• Jurisdiction: North Carolina

§ 25.08 Right-to-Counsel Summary: Sixth Amendment versus Miranda

How does the Sixth Amendment right to counsel differ from the Miranda right to counsel? Supreme Court winds have blown hot and cold in regard to this question. It has observed that "the policies underlying the two constitutional protections are quite distinct,"¹³³ and it has had occasion to warn that Miranda jurisprudence is not always informed by the Court's Sixth Amendment case law.¹³⁴ Indeed, the Supreme Court once conceded¹³⁵ that many courts and commentators had the impression that the Sixth Amendment version of the right to counsel is stronger, i.e., that it is a more difficult right to relinquish, than its Miranda cousin.

However, the Court has denied the latter assertion. It has stated that it "never suggested that one right is 'superior' or 'greater' than the other,"¹³⁶ and it has sometimes merged its discussion of the two rights, as if the role of defense counsel were precisely the same before and after the prosecution commences.

Nonetheless, some differences exist between the two rights. In some circumstances, the Miranda right to counsel may apply when the Sixth Amendment does not, and vice versa. The following is a checklist of key areas in which the Court has recognized differences between the Sixth Amendment and Miranda rights to counsel.

1. Regarding when the right attaches:

First, the Sixth Amendment right applies only after adversary judicial criminal proceedings have been initiated against the accused; the Miranda right to counsel is not so limited, so it may attach earlier.

Second, it follows from the first point that once the Sixth Amendment right to counsel is triggered (by formal adversarial proceedings), this right applies whether or not the accused is in custody, whereas the Miranda right applies to custodial interrogation. Therefore, the Sixth Amendment right can apply in situations where Miranda does not apply.

Third, the Sixth Amendment right is offense-specific (it only applies to the offense(s) for which criminal proceedings have commenced), whereas the Miranda right to counsel applies to all offenses once custodial interrogation commences. Therefore, Miranda potentially applies to more offenses than does the Sixth Amendment.

Fourth, Miranda applies when the custodial suspect is "interrogated," whereas the Sixth Amendment prohibits "deliberate elicitation." The terms are not always equivalent. The Miranda version of interrogation focuses on the suspect, and the...