SIXTH AMENDMENT RIGHT TO COUNSEL

SIXTH AMENDMENT RIGHT TO COUNSEL

The Sixth Amendment encompasses a defendant’s right to a jury, to a public trial, to confront witnesses, to be present at the trial, and to the assistance of counsel.

APPLICABILITY: RIGHT TO COUNSEL

The Sixth Amendment right to counsel automatically attaches when formal judicial proceedings have begun in any case in which actual or suspended incarceration is imposed. It applies at all critical stages of prosecution. Note that police have no obligation to inform a defendant that counsel has been trying to reach the defendant until this right has attached.

Sixth Amendment Right to Counsel - Critical stages

• Post-indictment: lineups, in-person identifications, interrogations

• Arraignments, preliminary hearings, bail hearings, pretrial motions

• Plea negotiations and hearings

• Trial and sentencing

Sixth Amendment Right to Counsel - noncritical stages

• Pre-charge lineups

• Photo-array identifications

• Fingerprinting, handwriting and voice exemplars, blood samples

• Initial appearances, hearings to determine probable cause to detain the defendant

• Discretionary appeals

• Post-conviction proceedings (e.g., parole or probation hearings)

Important note

Note that a defendant’s post-indictment statements to an informant are inadmissible if the situation was likely to induce the defendant to incriminate himself without counsel. However, police may place an informant in a defendant’s cell to listen to the defendant’s statements so long as questioning does not occur

OFFENSE-SPECIFIC RIGHT

Once the Sixth Amendment right to counsel attaches in a proceeding, it applies only to the specific offense at issue in that proceeding.

• Under the Blockburger test, two crimes committed in one criminal transaction are considered the same offense unless each offense requires proof of an element that the other does not

Same offense

Robbery

• Use or threat of forceLarceny

Larceny

• Trespassory taking and carrying away of another’s property

• Specific intent to permanently deprive owner of the property

Distinct Offenses

Arson

• Malicious burning of another’s dwelling

Larceny

• Trespassory taking and carrying away of another’s property

• Specific intent to permanently deprive owner of the property

Waiver

• A waiver of this right must be voluntary, knowing, and intelligent.

• Receiving a Miranda warning sufficiently apprises a person of her Sixth Amendment rights and the consequences of waiving those rights, even though Miranda rights arise from the Fifth Amendment.

• However, even after Sixth Amendment rights attach, police may initiate noncustodial interactions with the accused outside the presence of her lawyer.

Waiver - continued

• If the accused has actually asserted the right to counsel, then subsequent waivers are presumed involuntary—but only in a custodial setting.

• In contrast, if the accused has not actually asserted the right to counsel (e.g., the court automatically appointed counsel), then there is no presumption that any subsequent waiver of this right was involuntary

• A defendant has the right to refuse counsel and proceed pro se (i.e., represent himself) at trial. When this occurs, the court should warn the defendant of the disadvantages of doing so and may appoint “standby counsel.”

****Keep in mind that, even when the defendant has validly waived his right to counsel, statements made during interrogation must be voluntary to be admissible at trial. The government cannot use compelled statements.

REMEDIES FOR DENIAL OF COUNSEL

• Effect on conviction

• Effect on guilty plea

• Effect on nontrial proceeding

• Exclusionary rule: The “fruit of the poisonous tree”

Effect on conviction

A defendant’s conviction will be automatically reversed for the denial of counsel, even without a specific showing of unfairness.

Effect on guilty plea

A defendant who is denied counsel and enters a guilty plea has the right to withdraw that plea, and the plea cannot be used against the defendant as an admission.

Effect on nontrial proceeding

The denial of counsel at a nontrial proceeding is subject to a harmlesserror analysis.

Exclusionary rule

The “fruit of the poisonous tree” doctrine applies to exclude any statements or physical evidence obtained as a result of a Sixth Amendment violation. However, incriminating evidence obtained in violation of the Sixth Amendment may be used for impeachment purposes.

Difference between Fifth Amendment vs. Sixth Amendment right to counsel

Fifth Amendment:

Applicability

• A suspect has this right when in custody and subject to interrogation

Request

• Unambiguous request required

Waiver

• Valid if made knowingly, intelligently, and voluntarily

Difference between Fifth Amendment vs. Sixth Amendment right to counsel

Sixth Amendment

Applicability

• A defendant has this right: when judicial proceedings commence and during critical stages of prosecution

Request

• No request required (right attaches automatically)

Waiver

• Valid if made knowingly, intelligently, and voluntarily

Proving Ineffective Assistance of Counsel

Reasonable competence is presumed. Therefore, to prove ineffective assistance of counsel, the defendant must show that:

• Counsel’s representation fell below the objective standard of reasonableness (e.g., counsel failed to inform the defendant that a plea carried a risk of deportation) and

• Counsel’s deficient performance prejudiced the defendant, resulting in a reasonable probability that the outcome would have been different if not for the ineffective assistance. Prejudice is presumed if counsel’s deficient performance cost the defendant an appeal, even if the defendant waived his right to appeal by pleading guilty.

Mere inexperience, choice of questionable strategy, or failure to produce mitigating evidence is insufficient to establish ineffective assistance of counsel.

Conflict of Interest

The representation of defendants with conflicting interests may amount to ineffective assistance of counsel. The defendant must show that the representation involved an actual conflict and the conflict adversely affected counsel’s performance.

Actual conflict

Arises when counsel is subject to an obligation or unique personal interest that, if followed, would lead counsel to adopt a strategy other than that most favorable to the defendant.

Adverse impact

Occurs when a plausible alternative strategy or tactic might have been pursued but was inherently in conflict with, or not undertaken due to, counsel’s other loyalties or interests.