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y Look to characteristics of, Os actions, andalsothe waiver (ifwaiver, the more likely
conclusion will be voluntary).
Edward v. Arizona Ifrighttocounselinvoked
Rule: It has nothingtodo with whether the2nd waiver was voluntaryor ifthe confession
even was. Ifan accused, such as , having
expressed his desire todeal with the Os only
through counsel, is not subjecttofurther
interrogation by Os until counsel has been
made available to him, unless the accused
himselfinitiates further communication,exchanges, or conversations with the Os. Os
cant even see if has changed his mind.
anytime the gov., or agentthereofis
deliberatelyilicitinginformationfrom the .
Once the charges have come, andthe rights
(6th) have attached, the Os cannotdeliberately
tryto elicitinformationfrom you (unless you
waive it, or the s lawyer is present) (canttalk
tothe accused w/outtheir lawyer, once the
right attaches).
Differences between5th and6th:
y 5th: attaches when a custodial interrogationisimminent.
y6th
:attaches whenyou are indictedor
otherwise charged with a crime (movingfrom
being a suspectto beingthe accused.)
attachmentofthe right andinvocationofthe
right, the police CAN ask for a waiver because
you have notyetinvokedyour 6th right. (So
there can be a time period where your 5th and
6th Amends diverge (overlap), so a waiver of
your Miranda rights will be a waiver ofyour
5th and 6th Amend rights to counsel. (here
knew he was indicted when he waived).
Following indictment or arraignment (4) Categories
ofMassiah exist:
y (3) Involve Counsel Events 1)the canrequest counsel (Jackson), 2) Can be appointed
counsel (Brewer), or 3) can retain counsel
(Massiah)the 4th Categoryinvolves the
absence involves the absence ofa counsel
event the does not request andthe legal
system does not provide counsel (Patterson).
In all ofthese cases, s receive almost exactly
the same rights under Massiah as under
Miranda. Os maynot re-approach after a
counsel event, butinthe absence ofa counselevent, Os may secure a voluntary waiver.
McNeil v. Wisconsin a waythatMirandais more
protective thanMassiah
Rule: The 6th rightto counsel is offensespecific, the 5th is not. Whenyou invoke your
6th right, itis only aninvocationtothe crime
you have been charged with, notothers. Butif
you invoke your 5th rightto counsel, they cant
come back and ask you for a waiver as toany
crime. (So Os can ask for a Miranda waiver for
other crimes, justnotthe one you have
invokedthe 6th for).
Texas v. Cobb meaningofOffense Specific
Rule: The factual relationtest is rejectedforthe test as to whether the 6th invocation
covers the offense the waiver is soughtfor.
The testfor the same offense inthe 6th
contextis the same as the 5th double jeopardy
clause, calledthe Blockburgertest. This test
finds different statutoryoffenses to be the
same onlywhenthe elements ofone offense
are necessarilyincludedinthe elements ofthe
other offense. One wayto express this
principle is to saythatoffenses are the same
only when provingthe elements ofthe greater
will always prove the elements ofthe lesser.
(here, burglary and murder donot have the
same elements).
Ex)Manslaughter is a lesser includedoffense of
murder, soitis the same offense for double-
jeopardy purposes. By proving murder you provemanslaughter.
Ex) crimes that share some common elements, but
are not all the same:
y Crime 1) has elements: A, B, Cy Crime 2) has elements: B, C, D
As long as each crime has an elementnotincludedinthe other, thennodouble
jeopardy.