Fifth and Sixth Amendment

Deportation Proceedings or Foreign Prosecutions

According to the Supreme Court, any concern a person has with being criminally prosecuted in a foreign country is beyond the scope of the Self-Incrimination Clause. Outside a case of a "cooperative prosecution" between the United States and a foreign government, the Self-Incrimination Clause does not preclude compelling testimony, even though there is a real and substantial risk that the person's testimony would be used against him in a criminal prosecution abroad. However, if the person can demonstrate that any testimony he might give could be used in a criminal proceeding against him brought by the United States government or one of the states, then the person would be entitled to invoke the Fifth Amendment privilege.

Law Enforcement Identification Procedures

Eyewitness identification procedures are an important law enforcement tool. At a criminal trial, identification by a person from the witness stand identifying the defendant as the perpetrator of a crime can have a powerful impact on a jury.

Use Immunity

If a grand jury witness asserts his or her privilege against self incrimination, the government must decide whether to grant the witness immunity. Immunity is the government's ultimate tool for securing testimony that otherwise would be protected because it displaces the danger of self-incrimination. Use immunity prohibits the use of compelled testimony, as well as evidence derived directly or indirectly therefrom, against that witness in order to inflict criminal penalties on that witness. If immunity is requested by the prosecution and granted by the presiding judge, the witness can then be compelled to answer, or be held in contempt. However, unless immunity is conferred, if testimony is compelled over an appropriate claim of privilege, that testimony will be suppressed along with its fruits

Types of Miranda Waivers - Waiving Miranda Rights

A Miranda waiver can be express or implied. An express written or an oral statement of waiver is usually strong proof of a valid waiver. An implied waiver occurs when a suspect receives his Miranda warnings and then makes an un-coerced statement. As between obtaining an express or implied waiver, an express waiver is preferable. A suspect can validly waive his Miranda rights orally, but refuse to sign the Miranda form. A suspect can also validly waive his Miranda rights to give an oral statement, but asset his Miranda rights to giving any written statement.

Administrative Investigations

A governmental employer could insist that an employee provide information relevant to his or her official duties if the employee is adequately informed both: (1) that the employee is subject to discharge for not answering; and (2) that the employee's replies (and their fruits) cannot be used against the employee in a criminal case against that employee. Then, if the employee refuses to answer the government employer's questions, the employee can be fired for not replying. Of course, if the employee does reply, the employee's statements may be used against the employee in an administrative disciplinary proceeding.

No Requirement to Inform of Indictment

A number of federal circuits have held that law enforcement officers need not inform an accused that he has been indicted before seeking a post-indictment Sixth Amendment waiver of the right to counsel.

Asserting the Privilege

A person can assert his or her Fifth Amendment privilege in any proceeding - civil or criminal, administrative or judicial, investigatory or adjudicatory. Once asserted, it protects the person against any government compelled statements that the person reasonably believes could be used against him or her in a criminal prosecution, or that could lead to other evidence that might be so used. For example, if a person is subpoenaed to testify before a congressional committee, and the person's answers to the committee's questions might tend to incriminate that person - then that person is entitled to assert his or her privilege against self-incrimination.

Compelling Production of Documents and Records

A person may be required to produce documents, even though they contain incriminating assertions of fact or belief, where the creation of those documents was not compelled within the meaning of the Fifth Amendment Privilege. For example, in an Internal Revenue Service (IRS) investigation, a summons was issued to a taxpayer to produce papers that were used in the preparation of her tax returns.

Knowing, Voluntary and Intelligent Waiver - Waiving Miranda Rights

As a prerequisite to the admissibility of any statement in the prosecution's case-in-chief, the government must show by a preponderance of evidence, that the defendant, knowingly, voluntarily and intelligently waived his Miranda rights. Only if the totality of the circumstances reveals both an un-coerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. This means the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. The Miranda warnings ensure this by requiring that the suspect be fully advised of this constitutional privilege, including the critical advice that whatever the suspect chooses to say may be used as evidence against him.

Line-Ups

At a line-up, a witness views a number of live persons in an attempt to identify the perpetrator of a crime. Today, in-person line-ups are rarely used in federal law enforcement. However, the legal principles that apply to them can add to an understanding of undue suggestiveness. For example, a lineup is unduly suggestive if a defendant meets the description of the perpetrator previously given by the witness - and the other line-up participants obviously do not. Further, line-ups in which a suspect is the only participant wearing distinctive clothing or otherwise matching important elements of the description provided by the victim substantially increases the dangers of misidentification. However, a lineup of "clones" is not required.

Photo Arrays

At a photo array, a witness views a number of photographs of persons in an attempt to identify the perpetrator of a crime. The Supreme Court has cautioned that the improper employment of photographs by law enforcement officers may sometimes cause witnesses to err in identifying someone as a perpetrator. In general, courts have upheld, as a minimum, the use of six photographs in an array. All of the persons depicted in a photo array should meet the description of the perpetrator. Further, the suspect's picture should not stand out in relation to the other pictures. When assembling a photo array, law enforcement officers must pay attention to any details in the pictures that may cause a suspect's picture to stand out in relation to the other "filler" photographs in the array. A photograph that stands out from the others implicitly suggests to the witness that this is the perpetrator. When a witness identifies the perpetrator of a crime from a photo array, law enforcement officers should preserve the photo array for subsequent court presentation.

Sobriety and Breathalyzer Test Dialogue - Miranda Interrogation

Dialogue with an in-custody suspect concerning the performance of physical sobriety tests are not words or actions constituting custodial interrogation. Instead, such dialogue consists primarily of carefully scripted instructions on how to perform the physical tests, and limited and carefully worded inquiries to determine whether a suspect understands the instructions. Further, providing a suspect with information about a breathalyzer test and the implied consent law, and asking the suspect whether he or she understands the instructions and wishes to submit to the test are not interrogation within the meaning of Miranda.

Temporary Detention During Search Warrants - Fourth Amendment Seizure

Generally, detaining the occupant of a home during the execution of a search warrant is not considered Miranda custody. Therefore, Miranda rights are not required before asking questions and obtaining statements from the person.

Using Trickery and Deception

Generally, trickery and deception can be used by law enforcement officers as long as a suspect's will is not overborne by such tactics. For example, a suspect was questioned by officers about a murder for approximately one hour. The suspect continually denied being with anyone but his cousin. The officer then told him, falsely, that his cousin had been brought in and confessed to the crime. The suspect then gave a full confession to the crime. The Supreme Court held that, under the totality of the circumstances, the defendant's confession was voluntary despite the misrepresentations that his accomplice had confessed. Frazier v. Cupp.5

The Right to Remain Silent - Assertion of Miranda Rights

If a person indicates in any manner, at or during custodial interrogation, that he wishes to remain silent, the interrogation must cease. A suspect can assert the right to remain silent by simply telling a law enforcement officer that he or she does not want to talk. However, an assertion of the right to silence does not prevent the officer from conducting a subsequent interrogation.

Witness Must Claim the Privilege

If a witness subpoenaed to testify before a federal grand jury desires the protection of the privilege against self-incrimination, the witness must assert the privilege or the witness will not be considered to have been "compelled'" within the meaning of the Fifth Amendment. Absent a claim of privilege, the duty to give testimony will remain. When a witness asserts the privilege against self-incrimination, the privilege will cover answers that can be used to convict the witness of a crime, as well as any answers which would furnish a link in the chain of evidence needed to prosecute the witness.

Characteristics of the Suspect

Important characteristics of the suspect that can impact the voluntariness of a statement include the suspect's age, education level, degree of intelligence, drug or alcohol impairment, physical condition and experience with the criminal justice system.

Conditions of the Interrogation

Important conditions of the interrogation that can impact the voluntariness of a statement include the location of the questioning, the length of the detention, the length and duration of the questioning, and whether the suspect was deprived of food or sleep.

Miranda Warnings

In Miranda v. Arizona,2 the Supreme Court said that when an individual is under arrest and is subjected to incommunicado interrogation in a police-dominated atmosphere, the Fifth Amendment privilege against self-incrimination is jeopardized. In a custodial interrogation, the police have the capacity to dominate the scene to such an extent that the risks of coercion and intimidation are unreasonably high. The physical and psychological isolation in this setting can undermine a suspect's will to resist and can compel the suspect to speak where he or she would not otherwise do so freely. To dispel the compulsion inherent in custodial interrogation, the Supreme Court adopted a set of procedural safeguards to protect the constitutional guarantee against self-incrimination. These are known as the Miranda warnings. Prior to any questioning in a custodial setting, law enforcement officers must warn a suspect that: • The suspect has the right to remain silent • That any statement the suspect makes may be used as evidence against him or her • That the suspect has a right to consult with an attorney and to have the attorney present during questioning • That if the suspect cannot afford an attorney, one will be appointed to represent the suspect prior to questioning.

Truthfully Informing Suspect of Legal Predicament

In general, a law enforcement officer may tell the truth to a suspect regarding the suspect's legal predicament - including the potential jail time he or she may be facing if convicted and the benefits of cooperation.

Act of Production Immunity

In many collective entities, one or more employees may be designated as a "records custodian." A records custodian maintains the entities' records. The United States Supreme Court said that when a records custodian is subpoenaed to produce records, the Fifth Amendment privilege against self incrimination may apply because the "act of production" may implicitly communicate statements of fact. By producing documents in compliance with a subpoena, the custodian would admit that the papers existed, were in his or her possession or control, and were authentic.

The Federal System: Formal Charging

In the federal system, the commencement of the Sixth Amendment right to counsel is pegged to the initiation of adversary judicial criminal proceedings - whether by way of formal charge at indictment, information, or an initial appearance. Formal charging through indictment, information or an initial appearance is the point at which the government has committed itself to prosecute, the adverse positions of the government and defendant have solidified, and the accused finds himself faced with the prosecutorial forces of organized society, and is immersed in the intricacies of substantive and procedural criminal law.

The 14-Day Rule - Right to Counsel

In the past, several courts held that if a suspect asserts his or her Miranda right to counsel during custodial interrogation, and if the suspect is thereafter released from custody, then this break in custody nullifies the rule that bars law enforcement from re-contacting the suspect to obtain statements. In the context of a prison custody case, however, the Supreme Court held that this break in custody must last more than two weeks (more than 14 days) between a first and second interrogation to nullify a prior assertion of the right to counsel. The Court reasoned that this period of time is needed to allow a suspect to get re-acclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody. The normal life for a prisoner serving a sentence involves his release back into the general prison population.

Appealing to Suspect's Emotion

Law enforcement officers can appeal to a suspect's emotion, for example, by referring to a suspect's religious beliefs or telling a suspect that his lies dishonor his family

Confronting Suspect with Evidence of Guilt

Law enforcement officers can confront a suspect with evidence of the suspect's guilt such as showing a defendant physical evidence implicating him in the crime. For example, showing a suspect his blood covered clothes that were found, or showing a suspect controlled substances concealed in this vehicle.

Accused Initiating Contact with Law Enforcement - Right to Counsel

Like the right to silence, law enforcement re-interrogation may occur following the assertion of the right to counsel if the suspect initiates further communication, exchanges, or conversations with an officer about the investigation. Inquiries such as a request for a drink of water or a request to use a telephone, or statements relating to routine incidents of custody will not generally initiate a conversation about the investigation. However, if a suspect asserts his right to counsel during custodial interrogation and then subsequently asks an officer "Well, what is going to happen to me now?" - this suspect has initiated further conversation about the investigation and he can then validly waive his Miranda rights.

Assertion of Miranda Rights

Miranda rights cannot be asserted prior to a custodial interrogation. For example, a suspect cannot anticipatorily invoke his Miranda rights by sending a letter to law enforcement that indicates he is invoking his Miranda rights before his arrest.

Multiple Coercive Factors

No single criterion controls whether an accused's confession was voluntary. Instead, where multiple coercive factors are employed, a combination of these factors can result in an involuntary statement. For example, a foreign-born man, age 25, with no experience with the criminal justice system, a limited education and a history of emotional instability was questioned for eight straight hours during the night and police used a ruse to get him to confess. The Supreme Court held that the defendant's confession was involuntary because his will was overcome by official pressure, fatigue and sympathy falsely aroused. Spano v. New York.6

Show-ups

Normally, a show-up is conducted shortly after a crime when a witness, in a direct one-on-one showing of a live person, attempts to identify that person as the perpetrator of the crime. It is important for law enforcement to confirm that an individual apprehended close in time and proximity to the scene of a crime is, in fact, the suspected perpetrator of the crime. Likewise, a prompt showing of a detained suspect may prevent the mistaken arrest of an innocent person. Further, immediate show-ups may allow identification before a suspect has altered his appearance and while the witness' memory is fresh.

Re-Interrogation is Barred - Right to Counsel

Once a suspect, who is in custody, clearly asserts his or her Miranda right to counsel, law enforcement authorities cannot, at their instance, re-interrogate the suspect. An in-custody suspect's invocation of the right to counsel prevents any law enforcement officer, whether it is the same officer or a different officer, from thereafter interrogating the suspect about any crime, whether it be the same crime or a different crime.

No Right to Commit Perjury

Perjured testimony is an obvious and flagrant affront to judicial proceedings, and it has no place in the process of securing a witness' testimony. As such, even when a witness is granted use immunity regarding his or her testimony, perjured statements fall outside the grant, and the witness can be prosecuted for perjury.

Non-Custodial Interviews

Several Circuit Courts of Appeals have found that "custody" is less likely to occur when an interrogation occurs in familiar, or at least neutral surroundings, such as a suspect's workplace or home. Likewise, questioning by law enforcement officers inside a police station or field office can be non-custodial and, if so, may be conducted without Miranda warnings. For example, a non-custodial interview can occur when a suspect who is under investigation voluntarily comes to a law enforcement facility to speak with officers. Law enforcement officers in this situation may take proactive steps to portray a non-custodial setting to the suspect by: • Informing the suspect that he or she is not under arrest; • Informing the suspect that he or she is free to leave at any time; • Avoiding any physical restraint that could cause a reasonable person to perceive that he or she is under arrest; and • Employing a purely investigative tone and tactics during the questioning.

Promise to Bring Suspect's Cooperation to Attention of Authorities

Promises by law enforcement officers to bring a suspect's cooperation to the attention of a prosecutor or judge will not generally result in an involuntary statement.

Traffic Stops - Fourth Amendment Seizure

Routine traffic stops do not normally constitute Miranda custody. When a person is stopped for a traffic violation, law enforcement officers are not required to advise the person of his or her Miranda warnings before asking questions and obtaining statements from the person.

Law Enforcement Authorities

The Miranda safeguards are designed to protect a suspect against the compulsion to incriminate oneself arising from official custodial interrogation by law enforcement officers. In contrast, Miranda safeguards are not applicable to private citizens who conduct an investigation.

Some Temporary Detentions Can Become Miranda Custody

Some courts have found that when law enforcement officers point firearms at a person, or use handcuffs on a person to effect a temporary detention - these circumstances may create a reasonable perception that the person's freedom of movement is being restricted to a degree associated with a formal arrest. In such situations, law enforcement officers should consider the following options. • Option 1: After the suspect is secure, advise the person of his or her Miranda rights and then obtain a knowing, voluntary and intelligent waiver of those rights before questioning the person. • Option 2: After the suspect is secure, inform the person that: (1) he or she is not under arrest; (2) he or she is being temporarily detained; and (3) he or she is not required to answer any questions. It is recommended that officers seek affirmative answers from the suspect to show that the suspect understands these advisements. Such advisements may prevent a court from finding that a reasonable person in the suspect's position would have believed that he or she was in Miranda custody (formal arrest or the functional equivalent of arrest).

Double-Blind Procedure

Some law enforcement agencies employ a "double-blind" method when using photo arrays - a procedure where the officer administering the photo array does not know who is and is not a suspect. This procedure is used to avoid the risk that an administering officer will inadvertently provide cues to a victim or witness before, during, or after viewing a photo array.

Public Safety Exception

The "public safety" exception to the Miranda requirements exists where the need for answers to questions to protect the public safety outweighs the need for the Miranda rule protecting the Fifth Amendment's privilege against self-incrimination. For example, police chased a rape suspect into a supermarket where he was apprehended at gunpoint and handcuffed. The suspect was wearing an empty shoulder holster. The officer asked him where the gun was. The suspect nodded in the direction of the gun's location and said, "the gun is over there." The officer then retrieved the loaded handgun. The Supreme Court said that the officer, without providing Miranda warnings, was justified in asking questions to locate the missing gun because the gun posed a danger to public safety.

Routine Booking Questions - Miranda Interrogation

The "routine booking question" exception to Miranda allows law enforcement officers to ask an arrestee questions to secure biographical data necessary to complete booking or pretrial services. Such questions include asking the suspect's name, address, height, weight, eye color, date of birth, and current age. Generally, these questions are not designed to elicit incriminatory responses.

Testimonial Evidence

The Fifth Amendment privilege against self-incrimination applies to testimonial evidence - evidence of a communicative nature. It involves a person communicating facts or disclosing information from his own mind to law enforcement through oral, written or non-verbal communication like gestures. For example, a suspect was arrested for driving under the influence of alcohol. At the booking center, he was asked the date of his sixth birthday. The Supreme Court found that the suspect's answer to this question was testimonial in nature. It said a judge or jury could infer from the suspect's answer that, because he did not know the proper date of his sixth birthday, his mental state was confused because, most likely, he was intoxicated. Pa. v. Muniz.

Miranda Custody

The Miranda safeguards become applicable as soon as a suspect's freedom is curtailed to a degree associated with formal arrest. Whether a suspect is in custody for purposes of Miranda, the ultimate inquiry is simply whether there is a formal arrest, or restraint on the freedom of movement to the degree associated with a formal arrest (the functional equivalent of arrest). For example, the functional equivalent of an arrest occurred when, at approximately 4 a.m., four police officers entered a suspect's bedroom and began questioning him about a murder. The Supreme Court found that Miranda warnings were required because the suspect was being interrogated and was in custody or otherwise deprived of his freedom of action in a significant way. Orozco v. Texas.3 The "reasonable person" standard is used to determine whether Miranda custody exists. Based upon the totality of the circumstances, if a reasonable person in the actual suspect's position would have believed that he or she was under arrest, then Miranda custody existed. Custody is not determined by either the subjective perception of the suspect, nor of the police.

Non-testimonial evidence

The Self-Incrimination Clause does not protect a person from being compelled by the government to produce non-testimonial evidence. In the federal system, the government may use a grand jury subpoena to compel a person to produce nontestimonial evidence. Non-testimonial evidence includes: • Fingerprints. Once obtained, a fingerprint expert may analyze and compare a person's fingerprints to other fingerprints and render an opinion as to whether they "match." • Handwriting Samples. Once obtained, a handwriting expert may analyze and compare a handwriting sample to handwriting on other documents and render an opinion as to their authorship. • Voice Samples. Once obtained, an expert may analyze and compare a voice sample to other recordings and render an opinion concerning whether the same person is speaking on the recordings. • Blood Samples. Once obtained, a chemical analysis may be performed on a blood sample to determine, for example, the alcohol content in a person's blood to infer whether he or she was intoxicated. In other cases, a blood sample may be obtained for DNA analysis and comparison to other DNA evidence. Under the Fourth Amendment, obtaining a blood sample from a person's body will normally require a search warrant. A subpoena will not suffice. • Performance of Sobriety Tests.

Deliberate Elicitation Standard

The Sixth Amendment "deliberate-elicitation" standard and the Fifth Amendment "interrogation" standard are not necessarily interchangeable. For example, any secret interrogation of an accused, from and after formal charging, without the protection afforded by the presence of counsel, is a Sixth Amendment violation because it contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime.

Custody is Irrelevant

The Sixth Amendment right to counsel protects defendants who are in custody, as well as defendants who are not in custody. As such, the issue of custody is not relevant to the analysis. For example, a defendant was indicted on narcotics trafficking charges, he retained a lawyer, and was released on bail. A few days later, the defendant's accomplice decided to cooperate with federal agents. After an agent installed a radio transmitter in the accomplice's automobile, the cooperating accomplice met in his car with the defendant. During the course of their conversation, the defendant made several incriminating statements related to the formally charged narcotics crimes. The Supreme Court held that the defendant's Sixth Amendment protections were violated when federal agents deliberately elicited incriminating statements from him after he had been indicted and in the absence of his counsel.

Criminal Investigations

The Supreme Court has held that a government employer cannot use the threat of discharge from employment to secure incriminating statements from an employee and then use those statements against the employee in a criminal prosecution to obtain a conviction. Likewise, an employee cannot be terminated from employment for invoking and refusing to waive his or her Fifth Amendment constitutional right against self incrimination.

Conduct of Law Enforcement Officers

The conduct of law enforcement officers during an interrogation can impact the voluntariness of a statement. Tactics that have resulted in statements being deemed involuntary include the use of physical coercion or threats of physical coercion; exploitation of a suspect's mental problems; administering truth serum; and threats to a suspect's family such as threatening to take a suspect's spouse into custody, cutting off the suspect's financial means, or threats to place a suspect's children into child protective custody.

Presenting Photo Arrays

The simultaneous method involves showing all of the pictures to the witness at the same time. The sequential method involves showing a single photograph to the witness - one after the other. When the sequential method is used, to avoid claims of an impermissible show-up, it is recommended that the suspect's photograph be placed at least sixth or more in the sequence. Telling a witness that one or more suspects had been arrested can lead a witness to assume that a photograph of the arrested person will be in the array. Further, the witness can feel pressure to make an identification, even if he or she is not fully confident, for fear of jeopardizing the case against the arrested suspect. Some courts recommend that law enforcement officers affirmatively tell a witness not to assume that a photograph of the perpetrator will be among the photographs in the array.

Terry Investigative Stops - Fourth Amendment Seizure

The temporary and relatively non-threatening detention involved in a Terry stop does not normally constitute Miranda custody. Generally, most Terry stops do not require Miranda warnings before asking questions and obtaining statements from the person.

The Right to Counsel - Assertion of Miranda Rights

To assert the right to counsel, a suspect must unambiguously request counsel. This means the request must sufficiently and clearly articulate the suspect's desire to have counsel present such that a reasonable officer would understand the statement is a request for an attorney.

Collective Entity Doctrine

Under the "collective entity" doctrine, artificial entities are not protected by the Fifth Amendment privilege against self incrimination. Representatives of a "collective group" act as agents, and the official records and documents of the organization are held by them in a representative, rather than in a personal capacity. As such, these documents cannot be cloaked with the personal privilege against self-incrimination, even though production of these records and documents might tend to incriminate the representatives personally. For example, a corporation's books and records are not private papers protected by the Fifth Amendment.

Government Informants

Under the Sixth Amendment, law enforcement officers can utilize informants so long as the informant does not deliberately elicit information from an accused about a charged crime. In other words, the government informant must act as a passive listener. However, it will be a Sixth Amendment violation if a government informant takes action, beyond merely listening, that is designed to deliberately elicit incriminating remarks from an accused.

Test for Voluntariness

Voluntariness is assessed by looking at the totality of the circumstances surrounding the interrogation. In applying the totality of the circumstances test, courts consider three sets of circumstances: (1) the characteristics of the suspect, (2) the conditions of the interrogation, and (3) the conduct of the law enforcement officers. As such, law enforcement officers should document all of the relevant facts and circumstances surrounding an interrogation.

Spontaneous or Volunteered Statements - Miranda Interrogation

When law enforcement officers ask no questions and take no actions that are likely to elicit an incriminating response, there is no interrogation. As such, spontaneous or volunteered statements of any kind made by an in-custody suspect are not barred by the Fifth Amendment and Miranda warnings are not required.

Questioning by Undercover Officers - Miranda Interrogation

Where a suspect does not know that he is speaking to a government agent, there is no Miranda interrogation. As such, an undercover officer, posing as a fellow inmate, is not required to give Miranda warnings to an incarcerated suspect before asking questions that might elicit an incriminating response. The Supreme Court said that when an agent carries neither badge nor gun and wears not police blue, but the same prison gray as the suspect, there is no interplay between police interrogation and police custody.

Comparison of Fifth and Sixth Amendments

• The Fifth Amendment applies only to custodial interrogation. The Sixth Amendment applies to defendants both while in custody and out of custody. • The Fifth Amendment applies to interrogation regarding any and all crimes the suspect may have committed. The Sixth Amendment right to counsel is offense specific - once invoked, it attaches only to the formally charged offense. It does not apply to a defendant's statements pertaining to crimes that have not been formally charged. • Once an in-custody suspect asserts the Fifth Amendment right to counsel, not only must the current interrogation cease, but law enforcement may not approach the suspect for further interrogation until counsel has been made available. Under the Sixth Amendment, law enforcement officers may approach an accused regarding a charged crime, and an accused may waive his or her Sixth Amendment right to counsel regarding that crime, even if the accused is already represented by counsel.