Day 5: The Right to Counsel & Identifications
Unlike the 5th Amendment, the 6th Amendment is offense-specific and only begins at a specific point in time.
| Feature | 5th Amendment (Miranda) | 6th Amendment |
|---|---|---|
| Trigger | Custodial Interrogation | Formal Charges / Arraignment |
| Scope | All crimes (Not offense-specific) | Only the charged crime |
| Undercover Agents | Permitted (Perkins) | Forbidden (Massiah) |
1. Deficiency: Performance fell below an objective standard of reasonableness. (Counsels' "strategic choices" are rarely deficient).
2. Prejudice: But for the error, there is a reasonable probability the outcome would be different.
There are two ways to exclude an identification. One is procedural, the other is due process.
Right to counsel at post-charge, in-person lineups. Does NOT apply to photo arrays.
Is it "unnecessarily suggestive"? If so, is it reliable under the "Totality of Circumstances"?
Does this scenario sound reliable? Click a factor to see its impact:
Question: A defendant is indicted for robbery and has a lawyer. An undercover agent enters his cell and asks him about an unrelated murder. Does this violate the 6th Amendment?