Cite as: 532 U. S. 162 (2001)
Breyer, J., dissenting
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 unnecessarily technical definition undermines Sixth Amendment 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 thereafter communicate with them through that counsel. See, e. g., Michigan v. Jackson, supra, at 632 (Sixth Amendment prevents police from questioning represented defendant 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 custodial interrogation).
Justice Kennedy, Justice Scalia, and Justice Thomas, if not the majority, apparently believe these protections 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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