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Blurring the Line: Impact of Offense-Specific Sixth Amendment Right to Counsel

NCJ Number
The Journal of Criminal Law and Criminology Volume: 93 Issue: 1 Dated: Fall 2002 Pages: 195-225
Melissa Minas
Matthew Burke
Date Published
31 pages
This paper examines the Supreme Court decision in Texas v. Cobb (2001), which held that the right to counsel is offense specific and attaches only to a charged offense and in Blockburger v. United States, which states that if a different fact is needed to prove the offenses, they cannot be considered the same offense.
The history of the sixth amendment right to counsel can be traced back to Massiah v. United States, which was decided in 1964. However, the right to counsel arose out of both the fifth and sixth amendments. The U.S. Supreme Court had its first opportunity, in Texas v. Cobb (2001), to consider what constitutes an “offense” for the purposes of right to counsel. In Cobb, the Supreme Court held that the right to counsel, as provided for in the sixth amendment to the United States Constitution, attaches only to charged offenses, and there is no exception for crimes that are uncharged, yet factually related to a charged offense. It also held that when the sixth amendment right to counsel attaches, it encompasses offenses that would be considered the same offense under Blockburger v. United States. In the Court’s decision in Cobb, it failed to recognize the overall effect it would have on obliterating the sixth amendment right to counsel. Since suspects do not need to be represented by counsel with respect to closely related crimes, there is now ample opportunity for police officers to manipulate the charges brought against suspects in order to gain evidence admissible at trial. As police officers are forced to apply the Blockburger test in determining which offenses can be considered the same offense, the litigation on this issue will continue. The protections inherent in the prior sixth amendment right to counsel cases simply are not as effective as they once were.