• Laura Sesana

The Difference between the 5th and 6th Amendment Right to Counsel

Updated: Feb 4, 2019

The Fifth and Sixth Amendments to the U.S. Constitution both involve the right to counsel. While these rights sometimes overlap, there are several important differences between them.

Neil R., Flickr Creative Commons

The Fifth and Sixth Amendments to the U.S. Constitution both involve the right to counsel. While these rights sometimes overlap, there are several important differences between them.

The Fifth Amendment right to counsel, first recognized in Miranda v. Arizona, refers to the right to have an attorney present during a custodial interrogation; the Sixth Amendment right to counsel refers the right to effective assistance of counsel during critical stages of criminal prosecutions.


Fifth Amendment Miranda Warnings

Under the Fifth Amendment, an individual must be given Miranda warnings. These include informing the suspect of their right to an attorney before a custodial interrogation by a government agent. Any information gained through an interrogation where an individual is in custody and not warned of their Miranda rights is inadmissible in court.

Even though an individual may not be formally under arrest, Miranda warnings still apply to any custodial interrogation. However, it is important to note that the Fifth Amendment right to counsel does not apply to every situation where law enforcement or other government agents question a person. For the right to counsel guaranteed by the Fifth Amendment to apply, there must be (1) custodial (2) interrogation (3) by a known government agent.

Once a person has invoked their Fifth Amendment right to an attorney, all police questioning must stop immediately and not resume until the attorney is present.


Sixth Amendment Right to Effective Assistance

Individuals facing criminal charges are entitled to the effective assistance of counsel under the Sixth Amendment. This right to an attorney is triggered once criminal proceedings begin against an individual, but not before.

An arrest does not necessarily mean the beginning of criminal proceedings if the suspect is not formally charged, and therefore does not always trigger Sixth Amendment protections. Criminal proceedings are initiated through a formal charge, a preliminary hearing, an information, an indictment, or an arraignment.

The Sixth Amendment right to assistance of counsel applies to all the “critical stages” of a criminal proceeding. The U.S. Supreme Court has held that critical stages include arraignment, post indictment line-ups, post indictment interrogation, plea negotiations and entering a guilty plea.


The Difference

There are several differences between the rights to counsel guaranteed by the Fifth and Sixth Amendments. While the Fifth Amendment right to counsel can apply before an individual has been arrested, the Sixth Amendment right to counsel is not triggered until after criminal proceedings have begun.

The Fifth Amendment right to an attorney is not offense-specific, meaning that once invoked, the Fifth Amendment right to an attorney forbids police to question a suspect on any matter until the suspect has a chance to speak to an attorney. On the other hand, under the Sixth Amendment right to counsel, the suspect is entitled to have their attorney present at interrogations and proceedings involving the specific offense, but police may question the suspect on unrelated matters outside the presence of counsel.

The remedy for a violation of the Fifth Amendment right to an attorney and the Sixth Amendment right to counsel is the same: exclusion from evidence of any facts obtained during the violation.

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