⚡ 10-Second Rule
Once you're formally charged, a lawyer stands with you at every big step — free if you're poor.
🧒 ELI-10 Scene
Leo enters the school chess championship. The defending champion has a professional coach. The rules say: once the official bracket posts, Leo gets a coach too. If Leo's family can't pay, the school provides one. From then on, the champion's team can't corner Leo alone to talk about this match. Not even by sending a friendly kid to chat him up. But the coach covers only this tournament. Next month's spelling bee is a different contest with its own sign-up sheet.
⚖️ Actual Rule
The Sixth Amendment guarantees that "in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." The right attaches when adversary judicial proceedings begin — by formal charge, preliminary hearing, indictment, information, or arraignment, including the initial appearance before a magistrate (Rothgery v. Gillespie County, 554 U.S. 191 (2008); Kirby v. Illinois, 406 U.S. 682 (1972)). Gideon v. Wainwright, 372 U.S. 335 (1963), applied the right to the states, holding that "any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him." Once attached, counsel is required at every "critical stage" — post-charge interrogations and lineups, plea negotiations, arraignment, trial, and sentencing — but not at photo arrays (United States v. Ash, 413 U.S. 300 (1973)) or pre-charge lineups (Kirby v. Illinois, 406 U.S. 682 (1972)). Under Massiah v. United States, 377 U.S. 201 (1964), after attachment the government may not deliberately elicit incriminating statements from the accused without counsel or a valid waiver, including through undercover informants. The right is offense-specific: it covers only the charged offense and offenses that are the "same" under the Blockburger same-elements test (McNeil v. Wisconsin, 501 U.S. 171 (1991); Texas v. Cobb, 532 U.S. 162 (2001)). Miranda's Fifth Amendment counsel right is different: it requires custody plus interrogation, needs no formal charge, and is not offense-specific. A convicted defendant claiming ineffective assistance must satisfy Strickland v. Washington, 466 U.S. 668 (1984): performance below an objective standard of reasonableness, plus "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." [NJ-VARIANT: flagged for future Eli Explains NJ Law module]
ELI-10 translation: after official charging papers, you get a lawyer for every big step, but only for that crime.
🔍 Ask These Questions
- Have adversary judicial proceedings begun — indictment, information, arraignment, or first appearance? (No official charging papers means no Sixth Amendment lawyer yet.)
- Is this a critical stage — interrogation, lineup, plea bargaining, hearing, trial, or sentencing? (Is this a big step where a mistake could sink the whole case?)
- Is the government dealing with the defendant about the charged offense? (This lawyer shield covers only the crime named in the papers.)
- Did police or their agents deliberately elicit statements — including through secret informants? (Did a government helper draw the words out on purpose?)
- Was there a valid waiver — knowing, voluntary, and intelligent? (Did the person truly understand and choose to go on without a lawyer?)
- After conviction: was counsel's work deficient, and did the deficiency change the outcome? (Was the lawyer's job badly done, and did the badness actually matter?)
⚠️ Bar Trap
Exam language: Examiners blur the Fifth Amendment Miranda right to counsel with the Sixth Amendment right. The Sixth Amendment attaches only at formal charging, is offense-specific, and bars deliberate elicitation by informants even without custody. Miranda requires custody plus interrogation, protects against questioning on any offense, and is not triggered by undercover agents the suspect doesn't know are police (Illinois v. Perkins, 496 U.S. 292 (1990)). Classic bait: an indicted, jailed defendant chats with a planted informant — no Miranda problem, but a clear Massiah violation.
ELI-10: There are two different lawyer shields. Miranda's shield needs a police-station-style squeeze the suspect can feel. The charged-crime shield needs official papers, covers only that crime, and blocks even secret tricks.
🧪 Question
A defendant was indicted for arson of a warehouse, jailed pending trial, and appointed counsel at arraignment. Police also suspected him in a series of uncharged car thefts. Hoping to build both cases, a detective promised a cellmate leniency in exchange for "getting him talking about the fire and the cars." Over several days, the cellmate steered conversations to both topics. The defendant admitted setting the fire and stealing the cars. The prosecution seeks to introduce the arson admission at the arson trial and the theft admission at a later theft trial. Counsel was never notified and never waived the defendant's rights.
How should the court rule on the defendant's motions to suppress?
(A) Suppress both statements, because the cellmate obtained them without administering Miranda warnings. (B) Suppress the arson statement at the arson trial, but admit the theft statement at the theft trial. (C) Admit both statements, because the defendant spoke voluntarily to someone he believed was a fellow inmate. (D) Admit both statements, because the cellmate merely listened and conversed rather than conducting a formal interrogation.
Answer: (B). The Sixth Amendment right had attached to the charged arson, so the state's paid agent deliberately eliciting statements about it violated Massiah. The car thefts were uncharged and not the same offense under Blockburger, so no Sixth Amendment right covered them — and Miranda offers no help because the defendant did not know he was talking to a government agent.
💡 Why the Wrong Answers Are Wrong
- (A) applies Miranda to an undercover setting; Perkins holds warnings are unnecessary when the suspect doesn't know he faces a government agent.
- (C) treats voluntariness as a cure-all; a statement can be perfectly voluntary and still violate Massiah's deliberate-elicitation rule for the charged offense.
- (D) misstates Massiah's scope; deliberately stimulating conversation through an agent counts as elicitation even without formal questioning.
- ELI-10: The misconception is thinking there's one lawyer rule. The charged-crime shield blocks sneaky elicitation about that crime — but only that crime.
