| Dual Sovereignty and the Sixth Amendment Right to Counsel |
| David J. D'Addio [View as PDF] |
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113 Yale L.J. 1991 (2004) United States v. Bird, 287 F.3d 709 (8th Cir. 2002); United States v. Avants, 278 F.3d 510 (5th Cir.), cert. denied, 536 U.S. 968 (2002). In Texas v. Cobb, the Supreme Court affirmed that the Sixth Amendment right to counsel is "offense specific" and attaches only to charged offenses. Prior to Cobb, lower courts had created an exception to this rule, holding that the right to counsel also attached to any additional uncharged crimes that were "factually related" to a specific charged offense. But Cobb rejected this exception and held that "offense" in the right-to-counsel context is synonymous with "offense" in the double jeopardy context. For double jeopardy purposes, a single criminal act that violates both state and federal law constitutes two separate offenses, because it violates the laws of two separate sovereigns. Thus, read literally, Cobb implies that the right to counsel can attach to a charged offense against one sovereign, but not to the same (uncharged) offense against a different sovereign. |