TEXAS v. COBB

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162 OCTOBER TERM, 2000
Syllabus
TEXAS v. COBB
certiorari to the court of criminal appeals of texas
No. 99–1702. Argued January 16, 2001—Decided April 2, 2001
While under arrest for an unrelated offense, respondent confessed to a
home burglary, but denied knowledge of a woman and child’s disappear-
ance from the home. He was indicted for the burglary, and counsel was
appointed to represent him. He later confessed to his father that he
had killed the woman and child, and his father then contacted the police.
While in custody, respondent waived his rights under Miranda v. Ari-
zona, 384 U. S. 436, and confessed to the murders. He was convicted
of capital murder and sentenced to death. On appeal to the Texas
Court of Criminal Appeals, he argued, inter alia, that his confession
should have been suppressed because it was obtained in violation of his
Sixth Amendment right to counsel, which he claimed attached when
counsel was appointed in the burglary case. The court reversed and
remanded, holding that once the right to counsel attaches to the offense
charged, it also attaches to any other offense that is very closely related
factually to the offense charged.
Held: Because the Sixth Amendment right to counsel is “offense specific,”
it does not necessarily extend to offenses that are “factually related” to
those that have actually been charged. Pp. 167–174.
(a) In McNeil v. Wisconsin, 501 U. S. 171, 176, this Court held that a
defendant’s statements regarding offenses for which he has not been
charged are admissible notwithstanding the attachment of his Sixth
Amendment right to counsel on other charged offenses. Although some
lower courts have read into McNeil’s offense-specific definition an
exception for crimes that are “factually related” to a charged offense,
and have interpreted Brewer v. Williams, 430 U. S. 387, and Maine v.
Moulton, 474 U. S. 159, to support this view, this Court declines to do so.
Brewer did not address the question at issue here. And to the extent
Moulton spoke to the matter at all, it expressly referred to the offense-
specific nature of the Sixth Amendment right to counsel. In predicting
that the offense-specific rule will prove disastrous to suspects’ consti-
tutional rights and will permit the police almost total license to conduct
unwanted and uncounseled interrogations, respondent fails to appreciate
two critical considerations. First, there can be no doubt that a suspect
must be apprised of his rights against compulsory self-incrimination and
to consult with an attorney before authorities may conduct custodial
interrogation. See Miranda, supra, at 479. Here, police scrupulously

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Syllabus
followed Miranda’s dictates when questioning respondent. Second, the
Constitution does not negate society’s interest in the police’s ability to
talk to witnesses and suspects, even those who have been charged with
other offenses. See McNeil, supra, at 181. Pp. 167–172.
(b) Although the Sixth Amendment right to counsel clearly attaches
only to charged offenses, this Court has recognized in other contexts
that the definition of an “offense” is not necessarily limited to the four
corners of a charging document. The test to determine whether there
are two different offenses or only one is whether each provision requires
proof of a fact which the other does not. Blockburger v. United States,
284 U. S. 299, 304. The Blockburger test has been applied to delineate
the scope of the Fifth Amendment’s Double Jeopardy Clause, which pre-
vents multiple or successive prosecutions for the “same offense.” See,
e. g., Brown v. Ohio, 432 U. S. 161, 164–166. There is no constitutional
difference between “offense” in the double jeopardy and right-to-counsel
contexts. Accordingly, when the Sixth Amendment right to counsel
attaches, it encompasses offenses that, even if not formally charged,
would be considered the same offense under the Blockburger test.
Pp. 172–174.
(c) At the time respondent confessed to the murders, he had been
indicted for burglary but had not been charged in the murders. As
defined by Texas law, these crimes are not the same offense under
Blockburger. Thus, the Sixth Amendment right to counsel did not bar
police from interrogating respondent regarding the murders, and his
confession was therefore admissible. P. 174.
Reversed.
Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-
nor, Scalia, Kennedy, and Thomas, JJ., joined. Kennedy, J., filed a
concurring opinion, in which Scalia and Thomas, JJ., joined, post, p. 174.
Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and
Ginsburg, JJ., joined, post, p. 177.
Gregory S. Coleman, Solicitor General of Texas, argued
the cause for petitioner. With him on the briefs were John
Cornyn, Attorney General, Andy Taylor, First Assistant
Attorney General, and S. Kyle Duncan, Assistant Solicitor
General.
Lisa Schiavo Blatt argued the cause for the United States
as amicus curiae urging reversal. With her on the brief
were Solicitor General Waxman, Assistant Attorney Gen-

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164 TEXAS v. COBB
Opinion of the Court
eral Robinson, Deputy Solicitor General Dreeben, and Deb-
orah Watson.
Roy E. Greenwood, by appointment of the Court, 531 U. S.
807, argued the cause for respondent. With him on the brief
were David A. Schulman and Lee Haidusek.*
Chief Justice Rehnquist delivered the opinion of the
Court.
The Texas Court of Criminal Appeals held that a criminal
defendant’s Sixth Amendment right to counsel attaches not
only to the offense with which he is charged, but to other
offenses “closely related factually” to the charged offense.
We hold that our decision in McNeil v. Wisconsin, 501 U. S.
171 (1991), meant what it said, and that the Sixth Amend-
ment right is “offense specific.”
In December 1993, Lindsey Owings reported to the
Walker County, Texas, Sheriff ’s Office that the home he
*Briefs of amici curiae urging reversal were filed for the State of Ohio
et al. by Betty D. Montgomery, Attorney General of Ohio, Edward B.
Foley, State Solicitor, David M. Gormley, Associate Solicitor, and Elise
W. Porter and Norman E. Plate, Assistant Solicitors, and by the Attor-
neys General for their respective States as follows: Bill Pryor of Alabama,
Janet Napolitano of Arizona, Bill Lockyer of California, Ken Salazar of
Colorado, John M. Bailey of Connecticut, Robert A. Butterworth of Flor-
ida, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, Andrew
Ketterer of Maine, Michael C. Moore of Mississippi, Joseph P. Mazurek of
Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada,
Philip T. McLaughlin of New Hampshire, W. A. Drew Edmondson of
Oklahoma, D. Michael Fisher of Pennsylvania, Charles M. Condon of
South Carolina, Mark Barnett of South Dakota, Mark L. Earley of Vir-
ginia, and Gay Woodhouse of Wyoming; for the Criminal Justice Legal
Foundation by Kent S. Scheidegger and Charles L. Hobson; and for the
National Association of Police Organizations et al. by Patrick F. Philbin
and Stephen R. McSpadden.
Sheri Lynn Johnson and Jeffrey J. Pokorak filed a brief for the National
Association of Criminal Defense Lawyers et al. as amici curiae urging
affirmance.
Stephen G. Tipps and Jennifer L. Walker Elrod filed a brief for the
Texas District & County Attorneys Association et al. as amici curiae.

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Opinion of the Court
shared with his wife, Margaret, and their 16-month-old
daughter, Kori Rae, had been burglarized. He also in-
formed police that his wife and daughter were missing.
Respondent Raymond Levi Cobb lived across the street from
the Owings. Acting on an anonymous tip that respondent
was involved in the burglary, Walker County investigators
questioned him about the events. He denied involvement.
In July 1994, while under arrest for an unrelated offense,
respondent was again questioned about the incident. Re-
spondent then gave a written statement confessing to the
burglary, but he denied knowledge relating to the disappear-
ances. Respondent was subsequently indicted for the bur-
glary, and Hal Ridley was appointed in August 1994 to repre-
sent respondent on that charge.
Shortly after Ridley’s appointment, investigators asked
and received his permission to question respondent about
the disappearances. Respondent continued to deny involve-
ment. Investigators repeated this process in September
1995, again with Ridley’s permission and again with the
same result.
In November 1995, respondent, free on bond in the bur-
glary case, was living with his father in Odessa, Texas. At
that time, respondent’s father contacted the Walker County
Sheriff ’s Office to report that respondent had confessed to
him that he killed Margaret Owings in the course of the bur-
glary. Walker County investigators directed respondent’s
father to the Odessa police station, where he gave a state-
ment. Odessa police then faxed the statement to Walker
County, where investigators secured a warrant for respond-
ent’s arrest and faxed it back to Odessa. Shortly thereafter,
Odessa police took respondent into custody and administered
warnings pursuant to Miranda v. Arizona, 384 U. S. 436
(1966). Respondent waived these rights.
After a short time, respondent confessed to murdering
both Margaret and Kori Rae. Respondent explained that
when Margaret confronted him as he was attempting to re-

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move the Owings’ stereo, he stabbed her in the stomach with
a knife he was carrying. Respondent told police that he
dragged her body to a wooded area a few hundred yards
from the house. Respondent then stated:
“ ‘I went back to her house and I saw the baby laying
on its bed. I took the baby out there and it was sleep-
ing the whole time. I laid the baby down on the ground
four or five feet away from its mother. I went back to
my house and got a flat edge shovel. That’s all I could
find. Then I went back over to where they were and
I started digging a hole between them. After I got
the hole dug, the baby was awake. It started going
toward its mom and it fell in the hole. I put the lady in
the hole and I covered them up. I remember stabbing
a different knife I had in the ground where they were.
I was crying right then.’ ” App. to Pet. for Cert. A–9
to A–10.
Respondent later led police to the location where he had
buried the victims’ bodies.
Respondent was convicted of capital murder for mur-
dering more than one person in the course of a single crim-
inal transaction. See Tex. Penal Code Ann. § 19.03(a)(7)(A)
(1994). He was sentenced to death. On appeal to the
Court of Criminal Appeals of Texas, respondent argued,
inter alia, that his confession should have been suppressed
because it was obtained in violation of his Sixth Amend-
ment right to counsel. Relying on Michigan v. Jackson,
475 U. S. 625 (1986), respondent contended that his right
to counsel had attached when Ridley was appointed in the
burglary case and that Odessa police were therefore required
to secure Ridley’s permission before proceeding with the
interrogation.
The Court of Criminal Appeals reversed respondent’s
conviction by a divided vote and remanded for a new trial.
The court held that “once the right to counsel attaches to

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the offense charged, it also attaches to any other offense that
is very closely related factually to the offense charged.”
2000 WL 275644, *3 (2000) (citations omitted). Finding the
capital murder charge to be “factually interwoven with
the burglary,” the court concluded that respondent’s Sixth
Amendment right to counsel had attached on the capital
murder charge even though respondent had not yet been
charged with that offense. Id., at *4. The court further
found that respondent had asserted that right by accepting
Ridley’s appointment in the burglary case. See ibid. Ac-
cordingly, it deemed the confession inadmissible and found
that its introduction had not been harmless error. See id.,
at *4–*5. Three judges dissented, finding Michigan v. Jack-
son to be distinguishable and concluding that respondent
had made a valid unilateral waiver of his right to counsel
before confessing. See 2000 WL, at *5–*13 (opinion of Mc-
Cormick, P. J.).
The State sought review in this Court, and we granted
certiorari to consider first whether the Sixth Amendment
right to counsel extends to crimes that are “factually re-
lated” to those that have actually been charged, and second
whether respondent made a valid unilateral waiver of that
right in this case. 530 U. S. 1260 (2000). Because we an-
swer the first question in the negative, we do not reach the
second.
The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence.” In McNeil v.
Wisconsin, 501 U. S. 171 (1991), we explained when this
right arises:
“The Sixth Amendment right [to counsel] . . . is offense
specific. It cannot be invoked once for all future prose-
cutions, for it does not attach until a prosecution is
commenced, that is, at or after the initiation of ad-
versary judicial criminal proceedings—whether by way
of formal charge, preliminary hearing, indictment, in-

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168 TEXAS v. COBB
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formation, or arraignment.” Id., at 175 (citations and
internal quotation marks omitted).
Accordingly, we held that a defendant’s statements regard-
ing offenses for which he had not been charged were admis-
sible notwithstanding the attachment of his Sixth Amend-
ment right to counsel on other charged offenses. See id.,
at 176.
Some state courts and Federal Courts of Appeals, how-
ever, have read into McNeil’s offense-specific definition an
exception for crimes that are “factually related” to a charged
offense.1 Several of these courts have interpreted Brewer
v. Williams, 430 U. S. 387 (1977), and Maine v. Moulton,
474 U. S. 159 (1985)—both of which were decided well before
McNeil—to support this view, which respondent now invites
us to approve. We decline to do so.
In Brewer, a suspect in the abduction and murder of a
10-year-old girl had fled from the scene of the crime in Des
Moines, Iowa, some 160 miles east to Davenport, Iowa,
where he surrendered to police. An arrest warrant was
issued in Des Moines on a charge of abduction, and the
suspect was arraigned on that warrant before a Davenport
judge. Des Moines police traveled to Davenport, took the
man into custody, and began the drive back to Des Moines.
Along the way, one of the officers persuaded the suspect
to lead police to the victim’s body. The suspect ultimately
was convicted of the girl’s murder. This Court upheld the
federal habeas court’s conclusion that police had violated
the suspect’s Sixth Amendment right to counsel. We held
that the officer’s comments to the suspect constituted in-
1 See, e. g., United States v. Covarrubias, 179 F. 3d 1219, 1223–1224
(CA9 1999); United States v. Melgar, 139 F. 3d 1005, 1013 (CA4 1998);
United States v. Doherty, 126 F. 3d 769, 776 (CA6 1997); United States
v. Arnold, 106 F. 3d 37, 41 (CA3 1997); United States v. Williams, 993 F.
2d 451, 457 (CA5 1993); Commonwealth v. Rainwater, 425 Mass. 540, 556,
681 N. E. 2d 1218, 1229 (1997); In re Pack, 420 Pa. Super. 347, 354–356,
616 A. 2d 1006, 1010–1011 (1992).

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terrogation and that the suspect had not validly waived his
right to counsel by responding to the officer. See 430 U. S.,
at 405–406.
Respondent suggests that Brewer implicitly held that the
right to counsel attached to the factually related murder
when the suspect was arraigned on the abduction charge.
See Brief for Respondent 4. The Court’s opinion, however,
simply did not address the significance of the fact that the
suspect had been arraigned only on the abduction charge,
nor did the parties in any way argue this question. Consti-
tutional rights are not defined by inferences from opinions
which did not address the question at issue. Cf. Hagans
v. Lavine, 415 U. S. 528, 535, n. 5 (1974) (“[W]hen ques-
tions of jurisdiction have been passed on in prior decisions
sub silentio, this Court has never considered itself bound
when a subsequent case finally brings the jurisdictional issue
before us”).
Moulton is similarly unhelpful to respondent. That case
involved two individuals indicted for a series of thefts, one
of whom had secretly agreed to cooperate with the police
investigation of his codefendant, Moulton. At the sugges-
tion of police, the informant recorded several telephone
calls and one face-to-face conversation he had with Moulton
during which the two discussed their criminal exploits and
possible alibis. In the course of those conversations, Moul-
ton made various incriminating statements regarding both
the thefts for which he had been charged and additional
crimes. In a superseding indictment, Moulton was charged
with the original crimes as well as burglary, arson, and three
additional thefts. At trial, the State introduced portions
of the recorded face-to-face conversation, and Moulton ulti-
mately was convicted of three of the originally charged
thefts plus one count of burglary. Moulton appealed his
convictions to the Supreme Judicial Court of Maine, argu-
ing that introduction of the recorded conversation violated

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his Sixth Amendment right to counsel. That court agreed,
holding:
“ ‘Those statements may be admissible in the investiga-
tion or prosecution of charges for which, at the time the
recordings were made, adversary proceedings had not
yet commenced. But as to the charges for which Moul-
ton’s right to counsel had already attached, his incrimi-
nating statements should have been ruled inadmissible
at trial, given the circumstances in which they were ac-
quired.’ ” 474 U. S., at 168 (quoting State v. Moulton,
481 A. 2d 155, 161 (1984)).
We affirmed.
Respondent contends that, in affirming reversal of both
the theft and burglary charges, the Moulton Court must
have concluded that Moulton’s Sixth Amendment right to
counsel attached to the burglary charge. See Brief for Re-
spondent 13–14; see also Brief for the National Association
of Criminal Defense Lawyers et al. as Amici Curiae 22–23.
But the Moulton Court did not address the question now
before us, and to the extent Moulton spoke to the matter at
all, it expressly referred to the offense-specific nature of the
Sixth Amendment right to counsel:
“The police have an interest in the thorough investi-
gation of crimes for which formal charges have already
been filed. They also have an interest in investigating
new or additional crimes. Investigations of either type
of crime may require surveillance of individuals already
under indictment. Moreover, law enforcement officials
investigating an individual suspected of committing one
crime and formally charged with having committed an-
other crime obviously seek to discover evidence useful
at a trial of either crime. In seeking evidence pertain-
ing to pending charges, however, the Government’s in-
vestigative powers are limited by the Sixth Amendment
rights of the accused. . . . On the other hand, to exclude

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evidence pertaining to charges as to which the Sixth
Amendment right to counsel had not attached at the
time the evidence was obtained, simply because other
charges were pending at that time, would unnecessarily
frustrate the public’s interest in the investigation of
criminal activities.” 474 U. S., at 179–180 (emphasis
added; footnote omitted).
See also id., at 168 (“[T]he purpose of their meeting was to
discuss the pending charges”); id., at 177 (“[T]he police
knew . . . that Moulton and [the informant] were meeting for
the express purpose of discussing the pending charges . . .”
(emphasis added)). Thus, respondent’s reliance on Moulton
is misplaced and, in light of the language employed there and
subsequently in McNeil, puzzling.
Respondent predicts that the offense-specific rule will
prove “disastrous” to suspects’ constitutional rights and
will “permit law enforcement officers almost complete and
total license to conduct unwanted and uncounseled interro-
gations.” Brief for Respondent 8–9. Besides offering no
evidence that such a parade of horribles has occurred in
those jurisdictions that have not enlarged upon McNeil, he
fails to appreciate the significance of two critical considera-
tions. First, there can be no doubt that a suspect must be
apprised of his rights against compulsory self-incrimination
and to consult with an attorney before authorities may con-
duct custodial interrogation. See Miranda v. Arizona, 384
U. S., at 479; Dickerson v. United States, 530 U. S. 428, 435
(2000) (quoting Miranda). In the present case, police scru-
pulously followed Miranda’s dictates when questioning re-
spondent.2 Second, it is critical to recognize that the Con-
2 Curiously, while predicting disastrous consequences for the core val-
ues underlying the Sixth Amendment, see post, at 179–183 (opinion of
Breyer, J.), the dissenters give short shrift to the Fifth Amendment’s
role (as expressed in Miranda and Dickerson) in protecting a defendant’s
right to consult with counsel before talking to police. Even though the
Sixth Amendment right to counsel has not attached to uncharged offenses,

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stitution does not negate society’s interest in the ability of
police to talk to witnesses and suspects, even those who have
been charged with other offenses.
“Since the ready ability to obtain uncoerced confessions
is not an evil but an unmitigated good, society would
be the loser. Admissions of guilt resulting from valid
Miranda waivers ‘are more than merely “desirable”;
they are essential to society’s compelling interest in
finding, convicting, and punishing those who violate the
law.’ ” McNeil, 501 U. S., at 181 (quoting Moran v. Bur-
bine, 475 U. S. 412, 426 (1986)).
See also Moulton, supra, at 180 (“[T]o exclude evidence per-
taining to charges as to which the Sixth Amendment right
to counsel had not attached at the time the evidence was
obtained, simply because other charges were pending at that
time, would unnecessarily frustrate the public’s interest in
the investigation of criminal activities”).
Although it is clear that the Sixth Amendment right to
counsel attaches only to charged offenses, we have recog-
defendants retain the ability under Miranda to refuse any police ques-
tioning, and, indeed, charged defendants presumably have met with
counsel and have had the opportunity to discuss whether it is advisable
to invoke those Fifth Amendment rights. Thus, in all but the rarest of
cases, the Court’s decision today will have no impact whatsoever upon a
defendant’s ability to protect his Sixth Amendment right.
It is also worth noting that, contrary to the dissent’s suggestion, see
post, at 177–178, 179, there is no “background principle” of our Sixth
Amendment jurisprudence establishing that there may be no contact be-
tween a defendant and police without counsel present. The dissent would
expand the Sixth Amendment right to the assistance of counsel in a crimi-
nal prosecution into a rule which “ ‘exists to prevent lawyers from taking
advantage of uncounseled laypersons and to preserve the integrity of the
lawyer-client relationship.’ ” Post, at 181 (quoting ABA Ann. Model Rule
of Profesional Conduct 4.2 (4th ed. 1999)). Every profession is competent
to define the standards of conduct for its members, but such standards
are obviously not controlling in interpretation of constitutional provisions.
The Sixth Amendment right to counsel is personal to the defendant and
specific to the offense.

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nized in other contexts that the definition of an “offense”
is not necessarily limited to the four corners of a charging
instrument. In Blockburger v. United States, 284 U. S. 299
(1932), we explained that “where the same act or transaction
constitutes a violation of two distinct statutory provisions,
the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof
of a fact which the other does not.” Id., at 304. We have
since applied the Blockburger test to delineate the scope
of the Fifth Amendment’s Double Jeopardy Clause, which
prevents multiple or successive prosecutions for the “same
offence.” See, e. g., Brown v. Ohio, 432 U. S. 161, 164–166
(1977). We see no constitutional difference between the
meaning of the term “offense” in the contexts of double
jeopardy and of the right to counsel. Accordingly, we hold
that when the Sixth Amendment right to counsel attaches,
it does encompass offenses that, even if not formally charged,
would be considered the same offense under the Block-
burger test.3
While simultaneously conceding that its own test “lacks
the precision for which police officers may hope,” post, at
186, the dissent suggests that adopting Blockburger’s defini-
tion of “offense” will prove difficult to administer. But it is
the dissent’s vague iterations of the “ ‘closely related to’ ” or
“ ‘inextricably intertwined with’ ” test, post, at 186, that
would defy simple application. The dissent seems to pre-
suppose that officers will possess complete knowledge of the
circumstances surrounding an incident, such that the officers
will be able to tailor their investigation to avoid addressing
factually related offenses. Such an assumption, however, ig-
nores the reality that police often are not yet aware of the
3 In this sense, we could just as easily describe the Sixth Amendment
as “prosecution specific,” insofar as it prevents discussion of charged of-
fenses as well as offenses that, under Blockburger, could not be the subject
of a later prosecution. And, indeed, the text of the Sixth Amendment
confines its scope to “all criminal prosecutions.”

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174 TEXAS v. COBB
Kennedy, J., concurring
exact sequence and scope of events they are investigating—
indeed, that is why police must investigate in the first place.
Deterred by the possibility of violating the Sixth Amend-
ment, police likely would refrain from questioning certain
defendants altogether.
It remains only to apply these principles to the facts at
hand. At the time he confessed to Odessa police, respondent
had been indicted for burglary of the Owings residence, but
he had not been charged in the murders of Margaret and
Kori Rae. As defined by Texas law, burglary and capital
murder are not the same offense under Blockburger. Com-
pare Tex. Penal Code Ann. § 30.02(a) (1994) (requiring entry
into or continued concealment in a habitation or building)
with § 19.03(a)(7)(A) (requiring murder of more than one per-
son during a single criminal transaction). Accordingly, the
Sixth Amendment right to counsel did not bar police from
interrogating respondent regarding the murders, and re-
spondent’s confession was therefore admissible.
The judgment of the Court of Criminal Appeals of Texas
is reversed.
It is so ordered.
Justice Kennedy, with whom Justice Scalia and
Justice Thomas join, concurring.
The Court’s opinion is altogether sufficient to explain why
the decision of the Texas Court of Criminal Appeals should
be reversed for failure to recognize the offense-specific na-
ture of the Sixth Amendment right to counsel. It seems
advisable, however, to observe that the Court has reached
its conclusion without the necessity to reaffirm or give ap-
proval to the decision in Michigan v. Jackson, 475 U. S. 625
(1986). This course is wise, in my view, for the underlying
theory of Jackson seems questionable.
As the facts of the instant case well illustrate, it is diffi-
cult to understand the utility of a Sixth Amendment rule
that operates to invalidate a confession given by the free

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Kennedy, J., concurring
choice of suspects who have received proper advice of their
Miranda rights but waived them nonetheless. See Mi-
randa v. Arizona, 384 U. S. 436 (1966). The Miranda rule,
and the related preventative rule of Edwards v. Arizona,
451 U. S. 477 (1981), serve to protect a suspect’s voluntary
choice not to speak outside his lawyer’s presence. The par-
allel rule announced in Jackson, however, supersedes the
suspect’s voluntary choice to speak with investigators.
After Jackson had been decided, the Court made the follow-
ing observation with respect to Edwards:
“Preserving the integrity of an accused’s choice to
communicate with police only through counsel is the es-
sence of Edwards and its progeny—not barring an ac-
cused from making an initial election as to whether he
will face the State’s officers during questioning with the
aid of counsel, or go it alone. If an accused ‘knowingly
and intelligently’ pursues the latter course, we see no
reason why the uncounseled statements he then makes
must be excluded at his trial.” Patterson v. Illinois,
487 U. S. 285, 291 (1988).
There is little justification for not applying the same course
of reasoning with equal force to the court-made preventa-
tive rule announced in Jackson; for Jackson, after all, was a
wholesale importation of the Edwards rule into the Sixth
Amendment.
In the instant case, Cobb at no time indicated to law en-
forcement authorities that he elected to remain silent about
the double murder. By all indications, he made the volun-
tary choice to give his own account. Indeed, even now Cobb
does not assert that he had no wish to speak at the time he
confessed. While the Edwards rule operates to preserve
the free choice of a suspect to remain silent, if Jackson were
to apply it would override that choice.
There is further reason to doubt the wisdom of the Jack-
son holding. Neither Miranda nor Edwards enforces the

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176 TEXAS v. COBB
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Fifth Amendment right unless the suspect makes a clear and
unambiguous assertion of the right to the presence of coun-
sel during custodial interrogation. Davis v. United States,
512 U. S. 452, 459 (1994). Where a required Miranda warn-
ing has been given, a suspect’s later confession, made out-
side counsel’s presence, is suppressed to protect the Fifth
Amendment right of silence only if a reasonable officer
should have been certain that the suspect expressed the
unequivocal election of the right.
The Sixth Amendment right to counsel attaches quite
without reference to the suspect’s choice to speak with in-
vestigators after a Miranda warning. It is the commence-
ment of a formal prosecution, indicated by the initiation of
adversary judicial proceedings, that marks the beginning
of the Sixth Amendment right. See ante, at 167–168 (quot-
ing McNeil v. Wisconsin, 501 U. S. 171, 175 (1991)). These
events may be quite independent of the suspect’s election to
remain silent, the interest which the Edwards rule serves to
protect with respect to Miranda and the Fifth Amendment,
and it thus makes little sense for a protective rule to attach
absent such an election by the suspect. We ought to ques-
tion the wisdom of a judge-made preventative rule to protect
a suspect’s desire not to speak when it cannot be shown that
he had that intent.
Even if Jackson is to remain good law, its protections
should apply only where a suspect has made a clear and un-
ambiguous assertion of the right not to speak outside the
presence of counsel, the same clear election required under
Edwards. Cobb made no such assertion here, yet Justice
Breyer’s dissent rests upon the assumption that the Jack-
son rule should operate to exclude the confession no matter.
There would be little justification for this extension of a rule
that, even in a more limited application, rests on a doubtful
rationale.
Justice Breyer defends Jackson by arguing that, once
a suspect has accepted counsel at the commencement of ad-

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versarial proceedings, he should not be forced to confront
the police during interrogation without the assistance of
counsel. See post, at 179–181. But the acceptance of coun-
sel at an arraignment or similar proceeding only begs the
question: acceptance of counsel for what? It is quite unre-
markable that a suspect might want the assistance of an ex-
pert in the law to guide him through hearings and trial, and
the attendant complex legal matters that might arise, but
nonetheless might choose to give on his own a forthright
account of the events that occurred. A court-made rule
that prevents a suspect from even making this choice serves
little purpose, especially given the regime of Miranda and
Edwards.
With these further remarks, I join in full the opinion of
the Court.
Justice Breyer, with whom Justice Stevens, Jus-
tice Souter, and Justice Ginsburg join, dissenting.
This case focuses upon the meaning of a single word, “of-
fense,” when it arises in the context of the Sixth Amend-
ment. Several basic background principles define that
context.
First, the Sixth Amendment right to counsel plays a cen-
tral role in ensuring the fairness of criminal proceedings
in our system of justice. See Gideon v. Wainwright, 372
U. S. 335, 344 (1963); Powell v. Alabama, 287 U. S. 45, 57
(1932).
Second, the right attaches when adversary proceedings,
triggered by the government’s formal accusation of a crime,
begin. See Brewer v. Williams, 430 U. S. 387, 401 (1977);
Kirby v. Illinois, 406 U. S. 682, 689 (1972); Massiah v. United
States, 377 U. S. 201, 206 (1964).
Third, once this right attaches, law enforcement officials
are required, in most circumstances, to deal with the de-
fendant through counsel rather than directly, even if the
defendant has waived his Fifth Amendment rights. See
Michigan v. Jackson, 475 U. S. 625, 633, 636 (1986) (waiver

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178 TEXAS v. COBB
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of right to presence of counsel is assumed invalid unless ac-
cused initiates communication); Maine v. Moulton, 474 U. S.
159, 176 (1985) (Sixth Amendment gives defendant right “to
rely on counsel as a ‘medium’ between him and the State”).
Cf. ABA Model Rule of Professional Conduct 4.2 (2001)
(lawyer is generally prohibited from communicating with
a person known to be represented by counsel “about the
subject of the representation” without counsel’s “consent”);
Green, A Prosecutor’s Communications with Defendants:
What Are the Limits?, 24 Crim. L. Bull. 283, 284, and n. 5
(1988) (version of Model Rule 4.2 or its predecessor has been
adopted by all 50 States).
Fourth, the particular aspect of the right here at issue—
the rule that the police ordinarily must communicate with
the defendant through counsel—has important limits. In
particular, recognizing the need for law enforcement officials
to investigate “new or additional crimes” not the subject
of current proceedings, Maine v. Moulton, supra, at 179,
this Court has made clear that the right to counsel does not
attach to any and every crime that an accused may commit
or have committed, see McNeil v. Wisconsin, 501 U. S. 171,
175–176 (1991). The right “cannot be invoked once for all
future prosecutions,” and it does not forbid “interrogation
unrelated to the charge.” Id., at 175, 178. In a word, as
this Court previously noted, the right is “offense specific.”
Id., at 175.
This case focuses upon the last-mentioned principle, in
particular upon the meaning of the words “offense specific.”
These words appear in this Court’s Sixth Amendment case
law, not in the Sixth Amendment’s text. See U. S. Const.,
Amdt. 6 (guaranteeing right to counsel “[i]n all criminal
prosecutions”). The definition of these words is not self-
evident. Sometimes the term “offense” may refer to words
that are written in a criminal statute; sometimes it may refer
generally to a course of conduct in the world, aspects of
which constitute the elements of one or more crimes; and

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sometimes it may refer, narrowly and technically, just to
the conceptually severable aspects of the latter. This case
requires us to determine whether an “offense”—for Sixth
Amendment purposes—includes factually related aspects of
a single course of conduct other than those few acts that
make up the essential elements of the crime charged.
We should answer this question in light of the Sixth
Amendment’s basic objectives as set forth in this Court’s
case law. At the very least, we should answer it in a way
that does not undermine those objectives. But the Court
today decides that “offense” means the crime set forth within
“the four corners of a charging instrument,” along with
other crimes that “would be considered the same offense”
under the test established by Blockburger v. United States,
284 U. S. 299 (1932). Ante, at 173. In my view, this un-
necessarily technical definition undermines Sixth Amend-
ment protections while doing nothing to further effective
law enforcement.
For one thing, the majority’s rule, while leaving the Fifth
Amendment’s protections in place, threatens to diminish
severely the additional protection that, under this Court’s
rulings, the Sixth Amendment provides when it grants
the right to counsel to defendants who have been charged
with a crime and insists that law enforcement officers there-
after communicate with them through that counsel. See,
e. g., Michigan v. Jackson, supra, at 632 (Sixth Amend-
ment prevents police from questioning represented defend-
ant through informants even when Fifth Amendment would
not); Rhode Island v. Innis, 446 U. S. 291, 300, n. 4 (1980)
(Fifth Amendment right, unlike Sixth, applies only in custo-
dial interrogation).
Justice Kennedy, Justice Scalia, and Justice
Thomas, if not the majority, apparently believe these pro-
tections constitutionally unimportant, for, in their view, “the
underlying theory of Jackson seems questionable.” Ante,
at 174 (Kennedy, J., concurring). Both the majority and

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180 TEXAS v. COBB
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concurring opinions suggest that a suspect’s ability to invoke
his Fifth Amendment right and “refuse any police question-
ing” offers that suspect adequate constitutional protection.
Ante, at 172, n. 2 (majority opinion); see also ante, at 175–176
(Kennedy, J., concurring). But that is not so.
Jackson focuses upon a suspect—perhaps a frightened or
uneducated suspect—who, hesitant to rely upon his own un-
aided judgment in his dealings with the police, has invoked
his constitutional right to legal assistance in such matters.
See Michigan v. Jackson, 475 U. S., at 634, n. 7 (“ ‘The simple
fact that [a] defendant has requested an attorney indicates
that he does not believe that he is sufficiently capable of deal-
ing with his adversaries singlehandedly’ ”) (quoting People
v. Bladel, 421 Mich. 39, 63–64, 365 N. W. 2d 56, 67 (1984)).
Jackson says that, once such a request has been made, the
police may not simply throw that suspect—who does not
trust his own unaided judgment—back upon his own devices
by requiring him to rely for protection upon that same un-
aided judgment that he previously rejected as inadequate.
In a word, the police may not force a suspect who has asked
for legal counsel to make a critical legal choice without the
legal assistance that he has requested and that the Consti-
tution guarantees. See McNeil v. Wisconsin, supra, at 177–
178 (“The purpose of the Sixth Amendment counsel guar-
antee . . . is to ‘protec[t] the unaided layman at critical
confrontations’ with his ‘expert adversary’ ”) (quoting United
States v. Gouveia, 467 U. S. 180, 189 (1984)). The Constitu-
tion does not take away with one hand what it gives with the
other. See Gideon v. Wainwright, 372 U. S., at 344 (Sixth
Amendment means that a person charged with a crime need
not “face his accusers without a lawyer to assist him”); Mich-
igan v. Jackson, supra, at 633, 635 (presuming “that the de-
fendant requests the lawyer’s services at every critical stage
of the prosecution” even if the defendant fails to invoke his
Fifth Amendment rights at the time of interrogation);
cf. Edwards v. Arizona, 451 U. S. 477, 484–485 (1981) (when

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181 Cite as: 532 U. S. 162 (2001)
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accused has expressed desire to deal with police through
counsel, police may not reinitiate interrogation until counsel
has been made available); ABA Ann. Model Rule of Profes-
sional Conduct 4.2, p. 398, comment. (4th ed. 1999) (“Rule
4.2 . . . exists to prevent lawyers from taking advantage of
uncounseled laypersons and to preserve the integrity of the
lawyer-client relationship”).
For these reasons, the Sixth Amendment right at issue is
independent of the Fifth Amendment’s protections; and the
importance of this Sixth Amendment right has been repeat-
edly recognized in our cases. See, e. g., Michigan v. Jack-
son, supra, at 636 (“We conclude that the assertion [of the
right to counsel] is no less significant, and the need for addi-
tional safeguards no less clear, when the request for coun-
sel is made at an arraignment and when the basis for the
claim is the Sixth Amendment”).
Justice Kennedy primarily relies upon Patterson v.
Illinois, 487 U. S. 285 (1988), in support of his conclusion
that Jackson is not good law. He quotes Patterson’s state-
ment that the Constitution does “ ‘not ba[r] an accused from
making an initial election as to whether’ ” to speak with
the police without counsel’s assistance. Ante, at 175 (quot-
ing Patterson v. Illinois, supra, at 291).
This statement, however, cannot justify the overruling
of Jackson. That is because, in Patterson itself, this Court
noted, “as a matter of some significance,” that, at the time
he was interrogated, the defendant had neither retained nor
accepted the appointment of counsel. 487 U. S., at 290, n. 3.
We characterized our holding in Jackson as having depended
upon “the fact that the accused ‘ha[d] asked for the help of a
lawyer’ in dealing with the police,” 487 U. S., at 291 (quoting
Michigan v. Jackson, supra, at 631), and explained that,
“[o]nce an accused has a lawyer, a distinct set of constitu-
tional safeguards aimed at preserving the sanctity of the
attorney-client relationship takes effect,” 487 U. S., at 290,
n. 3 (citing Maine v. Moulton, 474 U. S., at 176).

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182 TEXAS v. COBB
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Justice Kennedy also criticizes Jackson on the ground
that it prevents a suspect “from . . . making th[e] choice” to
“give . . . a forthright account of the events that occurred.”
Ante, at 177. But that is not so. A suspect may initiate
communication with the police, thereby avoiding the risk
that the police induced him to make, unaided, the kind of
critical legal decision best made with the help of counsel,
whom he has requested.
Unlike Justice Kennedy, the majority does not call Jack-
son itself into question. But the majority would undermine
that case by significantly diminishing the Sixth Amendment
protections that the case provides. That is because criminal
codes are lengthy and highly detailed, often proliferating
“overlapping and related statutory offenses” to the point
where prosecutors can easily “spin out a startlingly numer-
ous series of offenses from a single . . . criminal transaction.”
Ashe v. Swenson, 397 U. S. 436, 445, n. 10 (1970). Thus, an
armed robber who reaches across a store counter, grabs
the cashier, and demands “your money or your life,” may
through that single instance of conduct have committed sev-
eral “offenses,” in the majority’s sense of the term, including
armed robbery, assault, battery, trespass, use of a firearm to
commit a felony, and perhaps possession of a firearm by a
felon, as well. A person who is using and selling drugs on
a single occasion might be guilty of possessing various drugs,
conspiring to sell drugs, being under the influence of illegal
drugs, possessing drug paraphernalia, possessing a gun in
relation to the drug sale, and, depending upon circumstances,
violating various gun laws as well. A protester blocking
an entrance to a federal building might also be trespassing,
failing to disperse, unlawfully assembling, and obstructing
Government administration all at one and the same time.
The majority’s rule permits law enforcement officials
to question those charged with a crime without first ap-
proaching counsel, through the simple device of asking ques-
tions about any other related crime not actually charged in

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the indictment. Thus, the police could ask the individual
charged with robbery about, say, the assault of the cashier
not yet charged, or about any other uncharged offense (un-
less under Blockburger’s definition it counts as the “same
crime”), all without notifying counsel. Indeed, the majori-
ty’s rule would permit law enforcement officials to question
anyone charged with any crime in any one of the examples
just given about his or her conduct on the single relevant
occasion without notifying counsel unless the prosecutor
has charged every possible crime arising out of that same
brief course of conduct. What Sixth Amendment sense—
what common sense—does such a rule make? What is left
of the “communicate through counsel” rule? The majority’s
approach is inconsistent with any common understanding
of the scope of counsel’s representation. It will undermine
the lawyer’s role as “ ‘medium’ ” between the defendant and
the government. Maine v. Moulton, supra, at 176. And it
will, on a random basis, remove a significant portion of the
protection that this Court has found inherent in the Sixth
Amendment.
In fact, under the rule today announced by the majority,
two of the seminal cases in our Sixth Amendment juris-
prudence would have come out differently. In Maine v.
Moulton, which the majority points out “expressly referred
to the offense-specific nature of the Sixth Amendment right
to counsel,” ante, at 170, we treated burglary and theft as
the same offense for Sixth Amendment purposes. Despite
the opinion’s clear statement that “[i]ncriminating state-
ments pertaining to other crimes, as to which the Sixth
Amendment right has not yet attached, are, of course, admis-
sible at a trial of those offenses,” 474 U. S., at 180, n. 16, the
Court affirmed the lower court’s reversal of both burglary
and theft charges even though, at the time that the incrimi-
nating statements at issue were made, Moulton had been
charged only with theft by receiving, id., at 162, 167, 180.
Under the majority’s rule, in contrast, because theft by re-

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184 TEXAS v. COBB
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ceiving and burglary each required proof of a fact that the
other did not, only Moulton’s theft convictions should have
been overturned. Compare Me. Rev. Stat. Ann., Tit. 17–A,
§ 359 (1981) (theft) (requiring knowing receipt, retention, or
disposal of stolen property with the intent to deprive the
owner thereof), with § 401 (burglary) (requiring entry of a
structure without permission and with the intent to commit
a crime).
In Brewer v. Williams, the effect of the majority’s rule
would have been even more dramatic. Because first-degree
murder and child abduction each required proof of a fact
not required by the other, and because at the time of the
impermissible interrogation Williams had been charged only
with abduction of a child, Williams’ murder conviction should
have remained undisturbed. See 430 U. S., at 390, 393–395,
406. Compare Iowa Code § 690.2 (1950 and Supp. 1978)
(first-degree murder) (requiring a killing) with Iowa Code
§ 706.2 (1950) (repealed 1978) (child-stealing) (requiring proof
that a child under 16 was taken with the intent to conceal
the child from his or her parent or guardian). This is not
to suggest that this Court has previously addressed and
decided the question presented by this case. Rather, it is
to point out that the Court’s conception of the Sixth Amend-
ment right at the time that Moulton and Brewer were de-
cided naturally presumed that it extended to factually re-
lated but uncharged offenses.
At the same time, the majority’s rule threatens the legal
clarity necessary for effective law enforcement. That is
because the majority, aware that the word “offense” ought
to encompass something beyond “the four corners of the
charging instrument,” imports into Sixth Amendment
law the definition of “offense” set forth in Blockburger v.
United States, 284 U. S. 299 (1932), a case interpreting the
Double Jeopardy Clause of the Fifth Amendment, which
Clause uses the word “offence” but otherwise has no rele-
vance here. Whatever Fifth Amendment virtues Block-

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185 Cite as: 532 U. S. 162 (2001)
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burger may have, to import it into this Sixth Amendment
context will work havoc.
In theory, the test says that two offenses are the “same
offense” unless each requires proof of a fact that the other
does not. See ante, at 173 (majority opinion). That means
that most of the different crimes mentioned above are not
the “same offense.” Under many States’ laws, for exam-
ple, the statute defining assault and the statute defining
robbery each requires proof of a fact that the other does
not. Compare, e. g., Cal. Penal Code Ann. § 211 (West 1999)
(robbery) (requiring taking of personal property of another)
with § 240 (assault) (requiring attempt to commit violent
injury). Hence the extension of the definition of “offense”
that is accomplished by the use of the Blockburger test
does nothing to address the substantial concerns about the
circumvention of the Sixth Amendment right that are raised
by the majority’s rule.
But, more to the point, the simple-sounding Blockburger
test has proved extraordinarily difficult to administer in
practice. Judges, lawyers, and law professors often dis-
agree about how to apply it. See, e. g., United States v.
Woodward, 469 U. S. 105, 108 (1985) (per curiam) (holding
that lower court misapplied Blockburger test). Compare
United States v. Dixon, 509 U. S. 688, 697–700 (1993) (opinion
of Scalia, J.) (applying Blockburger and concluding that
contempt is same offense as underlying substantive crime),
with 509 U. S., at 716–720 (Rehnquist, C. J., concurring in
part and dissenting in part) (applying Blockburger and de-
ciding that the two are separate offenses). The test has
emerged as a tool in an area of our jurisprudence that The
Chief Justice has described as “a veritable Sargasso Sea
which could not fail to challenge the most intrepid judicial
navigator.” Albernaz v. United States, 450 U. S. 333, 343
(1981). Yet the Court now asks, not the lawyers and judges
who ordinarily work with double jeopardy law, but police
officers in the field, to navigate Blockburger when they ques-

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tion suspects. Cf. New York v. Belton, 453 U. S. 454, 458
(1981) (noting importance of clear rules to guide police be-
havior). Some will apply the test successfully; some will
not. Legal challenges are inevitable. The result, I believe,
will resemble not so much the Sargasso Sea as the criminal
law equivalent of Milton’s “Serbonian Bog . . . Where Armies
whole have sunk.”
There is, of course, an alternative. We can, and should,
define “offense” in terms of the conduct that constitutes
the crime that the offender committed on a particular occa-
sion, including criminal acts that are “closely related to”
or “inextricably intertwined with” the particular crime set
forth in the charging instrument. This alternative is not
perfect. The language used lacks the precision for which
police officers may hope; and it requires lower courts to
specify its meaning further as they apply it in individual
cases. Yet virtually every lower court in the United States
to consider the issue has defined “offense” in the Sixth
Amendment context to encompass such closely related acts.
See ante, at 168, n. 1 (majority opinion) (citing cases from the
Third, Fourth, Fifth, Sixth, and Ninth Circuits as well as
state courts in Massachusetts and Pennsylvania); Taylor
v. State, 726 So. 2d 841, 845 (Fla. App. 1999); People v.
Clankie, 124 Ill. 2d 456, 462–466, 530 N. E. 2d 448, 451–453
(1988); State v. Tucker, 137 N. J. 259, 277–278, 645 A. 2d 111,
120–121 (1994), cert. denied, 513 U. S. 1090 (1995). These
courts have found offenses “closely related” where they in-
volved the same victim, set of acts, evidence, or motivation.
See, e. g., Taylor v. State, supra, at 845 (stolen property
charges and burglary); State v. Tucker, supra, at 278, 645
A. 2d, at 121 (burglary, robbery, and murder of home’s oc-
cupant); In re Pack, 420 Pa. Super. 347, 355–356, 616 A. 2d
1006, 1010 (1992) (burglary, receiving stolen property, and
theft charges), appeal denied, 535 Pa. 669, 634 A. 2d 1117
(1993). They have found offenses unrelated where time,
location, or factual circumstances significantly separated the

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one from the other. See, e. g., Commonwealth v. Rainwater,
425 Mass. 540, 547–549, and n. 7, 681 N. E. 2d 1218, 1224,
and n. 7 (1997) (vehicle theft charge and earlier vehicle thefts
in same area), cert. denied, 522 U. S. 1095 (1998); Whittlesey
v. State, 340 Md. 30, 56–57, 665 A. 2d 223, 236 (1995) (murder
and making false statements charges), cert. denied, 516 U. S.
1148 (1996); People v. Dotson, 214 Ill. App. 3d 637, 646, 574
N. E. 2d 143, 149 (murder and weapons charges), appeal de-
nied, 141 Ill. 2d 549, 580 N. E. 2d 123 (1991).
One cannot say in favor of this commonly followed ap-
proach that it is perfectly clear—only that, because it com-
ports with common sense, it is far easier to apply than that
of the majority. One might add that, unlike the majority’s
test, it is consistent with this Court’s assumptions in pre-
vious cases. See Maine v. Moulton, 474 U. S., at 162, 167,
180 (affirming reversal of both burglary and theft convic-
tions); Brewer v. Williams, 430 U. S., at 389, 390, 393, 406
(affirming grant of habeas which vacated murder conviction).
And, most importantly, the “closely related” test furthers,
rather than undermines, the Sixth Amendment’s “right to
counsel,” a right so necessary to the realization in practice
of that most “noble ideal,” a fair trial. Gideon v. Wain-
wright, 372 U. S., at 344.
The Texas Court of Criminal Appeals, following this com-
monly accepted approach, found that the charged burglary
and the uncharged murders were “closely related.” All
occurred during a short period of time on the same day in
the same basic location. The victims of the murders were
also victims of the burglary. Cobb committed one of the
murders in furtherance of the robbery, the other to cover up
the crimes. The police, when questioning Cobb, knew that
he already had a lawyer representing him on the bur-
glary charges and had demonstrated their belief that this
lawyer also represented Cobb in respect to the murders
by asking his permission to question Cobb about the mur-
ders on previous occasions. The relatedness of the crimes

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188 TEXAS v. COBB
Breyer, J., dissenting
is well illustrated by the impossibility of questioning Cobb
about the murders without eliciting admissions about the
burglary. See, e. g., Tr. 157 (Feb. 19, 1997) (testimony by
police officer who obtained murder confession) (“Basically
what he told us is he had gone over to the house to bur-
glarize it and nobody was home”); 22 Record, State’s Exh. 20
(typed statement by Cobb) (admitting that he committed the
murders after entering the house and stealing stereo parts).
Nor, in my view, did Cobb waive his right to counsel. See
supra, at 180–181. These considerations are sufficient.
The police officers ought to have spoken to Cobb’s counsel
before questioning Cobb. I would affirm the decision of the
Texas court.
Consequently, I dissent.