Look to characteristics of , Os actions, and also the waiver (if waiver, the more likely conclusion will be voluntary). Edward v. Ar izona If right to counsel invoked Rule: It has nothing to do with whether the 2nd waiv er was vo luntary or if the conf ession even was. If an accused, such as , having expressed his desire to deal with the Os only throug h counsel, is not subject to f urther interrogation by Os until counsel has been made avai lable to him, unless the accused himself initiates f urther c ommunication, exchanges, or conversations with the Os. Os cant even see if has chang ed his mind. y
Following indictment or arraignment (4 ) Categories of M assi ah exist: (3) Involve Counsel Events 1) the can request counsel ( Jackson), 2) Can be appointed counsel (Brewer ) , or 3) can retain counsel (Massiah) the 4th Category involves the absence involves the absence of a counsel event the does not request a nd the legal system does not provide counsel (Patterson). In all of these cases, s receive almos t exactly the same rig hts under Massiah as under Miranda . Os may not re-approach aft er a counsel event, but in the absence of a counsel event, Os may secure a vo luntary waiver. M c Nei l v. W isc onsin a way t hat Miranda is more protectiv e tha n Massiah Rule: The 6th rig ht to c ounsel is off ense specific, the 5th is not. Whe n you invoke yo ur 6th right, it is only a n invoca tion to the crime you hav e been charged with, not others. But if you invo ke your 5th right to counsel, they ca nt come back and ask you for a waiver as to any crime. (So Os can ask for a Miranda waiver for other crimes, just not the one you have invoked the 6th for). Texas v. Cobb meaning of Offense Specific Rule: The f actual relation test is rejected for the t est as to whet her the 6t h invocation covers the off ense the waiver is sought for. The test for the same off ense in the 6th context is the same as the 5t h double jeopardy clause, called the Blockburger t est. This test finds diff erent statutory off enses to be the same only when the elements of one off ense are nec essar il y included in the elements of the other off ense. One way to express this principle is to say that off enses are the same only when proving the elements of the greater will alway s prove the elements of the lesser. (here, burglary and murder do not have the same elements ). Ex) Manslaug hter is a lesser in cluded off ense of murder, s o it is t he same off ense for double jeopardy purposes. By proving murder yo u prove manslaughter. Ex) crimes that share some common elements, but are not all the same: Cr ime 1) has elements: A, B, C Cr ime 2) has elements: B, C, D As long as each crime has an element not included in the other, then no double jeopardy. y
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anytime t he gov ., or agent thereof is deliberately iliciting informa tion f rom the . Once the charges have come, and the rig hts (6th) have attached, the Os cannot deliberately try to elicit information f rom you (unless you waive it, or the s lawyer is present) (cant talk to t he accused w/ out their lawyer, once the right attaches). Diff erences betwee n 5th a nd 6th: 5th: attaches when a custodial interrogation is i mmin ent. 6th: attaches when yo u are indi cted or otherwise charged with a cri me (moving f rom being a suspect to being the accused.) y
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attachment of the rig ht and invocation of the right, the police CAN ask for a waiver because you hav e not yet invoke d your 6th right . (So there can be a ti me period where yo ur 5th and 6th Amends diverge (overlap), so a waiver of your Miranda rig hts will be a waiver of your 5th and 6th Amend rig hts to c ounsel. (here knew he was indicted when he waived).
