Both the Fifth and Sixth Amendments to the U.S. Constitution provide the right to counsel. While these rights sometimes overlap, they serve separate purposes and become applicable at different stages in the criminal justice process. This article discusses the differences between the two rights, when they kick in, and how.
What Is the Right to Counsel and Why Is It Important?
In the United States, people have the right to an attorney when they’re being questioned in police custody and when they’re being prosecuted in court (more on both below). The right to counsel safeguards other important rights that the drafters of the U.S. Constitution found necessary to protect people from government abuse of power.
An important rule in our criminal legal system (and many others) is that criminal defendants are presumed innocent unless proven guilty. So, it’s the prosecutor’s job to prove the defendant guilty beyond a reasonable doubt. To prove their case, prosecutors have vast resources at their disposal: Because they’re part of the government, they have the power of the state behind them.
The right to counsel is important because defense lawyers are trained in the law and have experience with police and prosecutor tactics. Also, experienced defense attorneys are accustomed to pushing back against the power of the state. So, they’re normally in a much better position to mount a defense and protect someone’s rights than the accused person is.
Our right to an attorney means that if we can’t afford a lawyer, the state has to provide one free of charge. As the U.S. Supreme Court has explained, this is only fair: The government has a lot of money and lawyers to prosecute people. If they want to take away someone’s freedom (and in some cases, put them to death), they should at least give the person a fighting chance by providing them with a lawyer. (Gideon v. Wainwright, 372 U.S. 335 (1963).)
The Fifth Amendment Right to Counsel
The Fifth Amendment protects against compelled self-incrimination in any criminal case. In other words, you aren’t required to be a witness against yourself.
In Miranda v. Arizona, the U.S. Supreme Court determined that the Fifth Amendment’s protection against compelled self-incrimination includes the right to counsel: If the police arrest you and try to make you say something they can use against you, you have a right to an attorney. (And usually, the lawyer will tell you to exercise your right to remain silent and not answer any questions). (384 U.S. 436 (1966).)
Right to Counsel in Custodial Interrogations
The Fifth Amendment right to counsel applies only during “custodial interrogations,” meaning a person has the right to have an attorney present when the person is “in custody” and being questioned. In this context, the term “in custody” means the person is formally arrested or is otherwise deprived of freedom in a significant way. An “interrogation” refers to express questioning and any words or actions of a police officer that the officer should know are reasonably likely to elicit an incriminating response.
How Does Someone Invoke the Right to Counsel?
To invoke the right to counsel, a person must “unambiguously” request the presence of an attorney. The request must be clear enough that a reasonable officer would understand the statement to be a request for an attorney. Saying something like, "Maybe I should talk to a lawyer" isn’t enough. The request must be more definite: Stating explicitly, “I want a lawyer” is a much better approach. (Davis v. United States, 512 U.S. 453 (1994).)
Once someone invokes their right to counsel, the Fifth Amendment bars questioning by the police without counsel present. The ban on questioning applies to the offense for which the person is being detained and any separate offenses or investigations.
The Sixth Amendment Right to Counsel
The Sixth Amendment guarantees the effective assistance of counsel in criminal proceedings. So, once someone is charged with a crime, they have the right to be represented by a competent attorney. If a defendant can’t afford to hire an attorney, the court will appoint one at the government’s expense.
6th Amendment Right to Counsel in Criminal Prosecutions
To ensure fairness in criminal proceedings, the Sixth Amendment provides the right to counsel during the “critical stages” of criminal prosecution. A critical stage refers to any point of the criminal process where important rights are at stake and not having an attorney could lead to a worse outcome for the defendant. Critical stages include not just court hearings and trials but also post-charge police interrogations, police lineups or showups, and plea negotiations.
Requesting the Presence of Counsel
Although a defendant has a right to an attorney once they’re charged with a crime (usually by indictment or information), they might not secure counsel until much later. For this reason, it's important for a defendant charged with a crime to ask for an attorney to be present before answering any police questions, participating in a lineup or showup, or entering a plea. Depending on the jurisdiction, this request might trigger a temporary appointment of an attorney from the Public Defender’s office or a private attorney who gets paid by the government to represent people who can’t afford a lawyer.
At the first court hearing, unrepresented defendants generally can ask the court for more time to find and retain private counsel or, if they can’t afford an attorney, to have one appointed.
Differences Between the Fifth and Sixth Amendments’ Right to Counsel
The Fifth Amendment right to counsel applies during the criminal investigation stage, when a person is “in custody” and being questioned. When the government’s role shifts from investigating a suspect to charging and prosecuting a defendant for a crime, the Sixth Amendment right to counsel kicks in.
The Sixth Amendment right to counsel is “offense specific.” Its protections extend only to the offense for which the defendant is being prosecuted. For example, let’s say that Mary is charged with murder and she now has a lawyer in that case. Under the Sixth Amendment, the police can’t question Mary about the murder without counsel present. But if the police want information from Mary about a robbery they think she committed on another occasion, the Sixth Amendment doesn’t bar them from questioning her about the robbery. (Montejo v. Louisiana, 556 U.S. 778 (2009).)
On the other hand, the Fifth Amendment’s protections are not offense specific, meaning the police can’t question a suspect on any matter once that person has invoked their right to an attorney. So, assume that it’s early in the investigation and Mary isn’t charged yet. During questioning about the murder, she asserts her right to an attorney. In that scenario, the police wouldn’t be able to ask her any questions about the murder, the robbery, or anything else until an attorney is present.
The lesson here is that whenever someone is being questioned by the police, they should assert their right to an attorney (and to remain silent, for good measure) if they want to cover all their bases to protect against self-incrimination.
Although people can waive (give up) the right to counsel under either the Fifth or Sixth Amendment, that’s not usually recommended. Having an attorney present is an important constitutional right meant to minimize the drastic imbalance between the government and the individual. Police detectives are highly skilled at subtle (and not so subtle) interrogation tactics that can get people talking, and prosecutors have extensive legal training. The average citizen doesn’t typically have the same knowledge or experience (and why would they?), so they can only benefit from having a lawyer who knows how to safeguard their rights.
What Happens If Your Right to Counsel Is Violated?
When the police violate someone’s right to counsel, the remedy is to exclude any statements the person made as a result of the violation. To keep the statements from being used at trial, the defendant must first make a motion to exclude them. If the court agrees that the police violated the right to counsel, the court won’t let the prosecutor use any statements made in response to police questions after the defendant invoked their right to an attorney.
But there’s an exception: If the defendant chooses to testify and says something inconsistent with what they said to the police, the statements are admissible to discredit or “impeach” the defendant’s trial testimony. For that reason, defendants who get their statements excluded have to carefully consider, with the advice of their attorney, whether it’s a good idea to testify at trial.
When the right to counsel is denied during court proceedings, the remedy is an appeal: If a financially eligible defendant isn’t provided with a court-appointed attorney as required by the Sixth Amendment—and they’re convicted—they can ask a higher court (called a court of appeals) to reverse their conviction.