Loss of a Fundamental Right: The Sixth Amendment as a Mere "Prophylactic Rule"
Meredith B. Halama   |   1998 U. Ill. L. Rev.

The Sixth Amendment provides that a criminal defendant has the right "to have the Assistance of Counsel for his defense." The Supreme Court has traditionally held that the Sixth Amendment does not only protect a criminal defendant at trial; it also ensures that the state does not circumvent a defendant's rights during "critical" pretrial proceedings, including interrogations. Since the Court realized that criminal defendants are unlikely to voluntarily waive their rights in interrogations, the Court required a very high standard to establish a waiver of the Sixth Amendment right to counsel.

In 1966, the Supreme Court decided the case of Miranda v. Arizona. In Miranda, the Court held that the right to counsel is indispensable to protect an accused's Fifth Amendment privilege against self-incrimination. Miranda and its progeny have been largely successful in increasing the scope of protection afforded to criminal defendants in interrogations. However, since Miranda, the Court has lost sight of the differences between the Sixth and Fifth Amendment rights to counsel. This confusion has led lower courts to further chip away at the Sixth Amendment right to counsel, degrading its importance as a fundamental right.

This note argues that the Supreme Court has misinterpreted the purpose and function of the Sixth Amendment right to counsel by equating it with the Fifth Amendment privilege against self-incrimination. The author argues that the Sixth Amendment right to counsel mandates a high standard of waiver for represented defendants after the initiation of adversary judicial proceedings, whether or not the defendant had "invoked" his right to counsel. The author then proposes two solutions that would allow lower courts to correctly preserve the Sixth Amendment right to counsel: (1) lower courts should require a high standard of waiver for all represented postindictment defendants; or (2) lower courts should employ their state constitutional rights to counsel to mandate a high burden of waiver after the initiation of adversary judicial proceedings, regardless of representation.