CRIMINAL PROCEDURE - 6TH AMENDMENT

What requirements must a guilty plea in a criminal case meet to be constitutionally valid?

For a guilty plea to be constitutionally valid, it must be knowing, intelligent, and voluntary. The court must reject or vacate any guilty plea that fails any of these requirements.

What is required for a guilty plea to be knowing and intelligent?

For a guilty plea to be knowing and intelligent, the defendant must be aware of the charges, along with the legal consequences of pleading guilty to the charges and waiving the right to trial. Advice of competent counsel generally supports finding a knowing and intelligent guilty plea. By contrast, if the defendant is mentally incompetent to understand the nature of the charges, the legal proceedings at issue, or the consequences of pleading guilty, then the plea is not knowing and intelligent.

What is required for a guilty plea to become effective and bind the defendant?

For a guilty plea to become effective and bind the defendant, the court must accept the guilty plea. Until then, the defendant may decline to plead guilty, even if the defendant has previously signed a plea agreement promising to plead guilty.

Does a criminal defendant have a constitutional right to self-representation?

Yes. A criminal defendant has a constitutional right to self-representation. The Sixth Amendment right to the assistance of counsel includes the inverse right to reject the assistance of counsel—that is, the right to represent oneself in a criminal case. The decision to waive the right to an attorney, however, must be made competently. Thus, a court may deny a defendant's request for self-representation if the defendant cannot understand the right being waived or conduct the defense without counsel.

If the constitutional right to counsel applies, does it guarantee criminal defendants the right to receive the effective assistance of counsel?

Yes. If the constitutional right to counsel applies, it guarantees criminal defendants the right to receive the effective assistance of counsel. To be effective, counsel must exercise reasonable judgment according to professional norms. If the ineffective assistance prejudices the outcome of the defendant's case, meaning a defendant receiving adequate representation would likely have obtained a different result, then the conviction must be reversed.

If the defendant establishes that the pool of potential jurors did not represent a fair cross-section of the community, does this entitle the defendant to a new trial?

Yes. If the defendant establishes that the pool of potential jurors did not represent a fair cross-section of the community, the defendant is entitled to a new trial. However, the government may prevent a new trial by showing that the criteria upon which a group was underrepresented in the jury pool were based on a significant state interest.

In a federal criminal case in which the Sixth Amendment affords the defendant a right to a jury trial, must the jury render a unanimous verdict to convict the defendant?

Yes. In a federal criminal case in which the Sixth Amendment affords the defendant a right to a jury trial, the jury must render a unanimous verdict to convict the defendant. Failure to reach a unanimous verdict, though, is a mistrial, not an acquittal.

Under what circumstances may a court refer to a prior criminal conviction in enhancing a defendant's current sentence?

A court may refer to a prior criminal conviction in enhancing a defendant's current sentence if: (1) the defendant had the effective assistance of counsel in the prior proceeding that produced the conviction, or (2) if not, the defendant was not entitled to appointed counsel in the prior proceeding. Put differently, if the defendant was entitled to appointed counsel in the prior proceeding and did not receive the effective assistance of appointed counsel, then the court may not refer to the resulting conviction in enhancing the defendant's sentence.

What is a plea bargain?

A plea bargain is an agreement between a criminal defendant and a prosecutor to resolve a criminal case without a trial. Typically, the prosecutor offers to drop or reduce some of the charges against the defendant or recommend a particular sentence to the judge, in exchange for the defendant's agreement to waive the right to trial and plead guilty to the charges set out in the agreement.

If the prosecution violates a plea agreement under which a defendant has pleaded guilty, what remedies are available to the defendant?

If the prosecution violates a plea agreement under which a defendant has pleaded guilty, the defendant has two remedies: specific performance and rescission. In specific performance, the court orders the prosecutor to comply with the original terms of the agreement. In rescission, the court permits the defendant to withdraw the original guilty plea. Under the Due Process Clause, a prosecutor may not make formal promises to a defendant as part of a plea agreement and then break those promises after the defendant pleads guilty.

What limitations does the U.S. Constitution impose on the use of peremptory challenges in a criminal case?

In a criminal case, the U.S. Constitution bars the use of peremptory challenges to discriminate on the basis of either race or gender in the course of jury selection. Peremptory challenges may generally be used to strike a potential juror for any reason, but that reason must not implicate unconstitutional discrimination.

In general, what are the critical stages of a criminal prosecution, for purposes of the Sixth Amendment right to counsel?

In general, the critical stages of a criminal prosecution, for purposes of the Sixth Amendment right to counsel, are: (1) any pretrial occasion on which the government demonstrates deliberate, active efforts to elicit incriminating information from the defendant, whether known to the defendant or not (e.g., remote eavesdropping, interrogation, confidential informants, or lineups and similar procedures); (2) pretrial hearings that might affect the defendant's substantial rights or the outcome of trial; and (3) the guilt and sentencing phases of trial. The Sixth Amendment right to counsel does not apply beyond the sentencing phase of trial, though other constitutional provisions afford a limited right to counsel on appeal.

In jury selection, what is a peremptory challenge?

In jury selection, a peremptory challenge is a privilege, available in most states, that permits each party to strike a finite number of candidates from the pool of eligible jurors without giving a reason. Thus, a peremptory challenge can be exercised for any reason not running afoul of constitutional requirements.

In the context of jury selection, what is the fair-cross-section requirement?

In the context of jury selection, the fair-cross-section requirement is the rule that the defendant is entitled to have the trial jury selected from a pool of candidates that represents a fair cross-section of the community. A fair cross-section is one that reasonably represents the community from which potential jurors are selected, in terms of racial and gender composition and similar factors. To establish that the pool of potential jurors is not a fair cross-section, the defendant must show: (1) there is a distinctive group (e.g., men, women, most racial groups), of which the defendant need not be a member; (2) the group is underrepresented in the jury pool relative to its representation in the community, and (3) the underrepresentation results from discrimination or systematic exclusion of the group.

Is an indigent criminal defendant entitled to appointed defense counsel at government expense in every criminal case?

No. An indigent criminal defendant is not entitled to appointed defense counsel at government expense in every case. Rather, an indigent criminal defendant is entitled to appointed counsel only in (1) felony cases or (2) misdemeanor cases in which the defendant is actually imprisoned or subjected to a suspended sentence of imprisonment as a consequence of the ensuing criminal conviction. Thus, in a misdemeanor case, an indigent defendant who does not receive appointed counsel may not be incarcerated at all for the misdemeanor.

Does the U.S. Constitution afford a criminal defendant a right to plead guilty?

No. The U.S. Constitution does not afford a criminal defendant a right to plead guilty. Rather, a court may reject a defendant's guilty plea in the sound exercise of judicial discretion.

Does the U.S. Constitution afford criminal defendants a right to a trial by jury in every criminal case?

No. The U.S. Constitution does not afford criminal defendants a right to a trial by jury in every criminal case. Rather, a criminal defendant is entitled to a jury trial only if the maximum sentence of imprisonment that could be imposed for any one charged offense is greater than six months.

Does the U.S. Constitution guarantee an indigent criminal defendant the right to appointed counsel in post-conviction collateral-review proceedings?

No. The U.S. Constitution does not guarantee an indigent criminal defendant the right to appointed counsel in post-conviction collateral-review proceedings, such as habeas corpus proceedings. The constitutional right to the assistance of counsel does not extend to post-conviction collateral-review proceedings, so it follows that the right to appointed counsel does not extend to those proceedings.

Does the U.S. Constitution require that a jury in a criminal case have 12 members?

No. The U.S. Constitution does not require that a jury in a criminal case have 12 members. The U.S. Constitution permits a jury with as few as six members.

Does the U.S. Constitution require that a jury in a state-court criminal trial render a unanimous verdict to convict the defendant?

No. The U.S. Constitution does not require that a jury in a state-court criminal trial render a unanimous verdict to convict the defendant. The Sixth Amendment does require jury unanimity in federal criminal prosecutions, but no constitutional rule requires jury unanimity in state criminal prosecutions. This is the only example of a federal constitutional rule of criminal procedure that applies differently in state and federal courts.

A criminal defendant was accused of drunk driving, a misdemeanor carrying a maximum penalty of either five months in jail or a fine of $2,000. When the defendant appeared in court, he told the judge that he did not have money to hire an attorney and thus wanted the court to appoint one to represent him. The judge declined to do so. The defendant was later convicted and assessed the maximum fine of $2,000, with no prison time. Assume the defendant was indigent. Was the defendant denied his Sixth Amendment right to appointed counsel?

No. The defendant was not denied his Sixth Amendment right to appointed counsel. The Sixth Amendment guarantees every criminal defendant the right to assistance of counsel. It also guarantees indigent defendants the right to appointed counsel at government expense. The right to appointed counsel, however, applies only in cases in which the defendant is either (1) charged with a felony or (2) charged with a misdemeanor and actually imprisoned, for so much as a day, as a consequence of the ensuing criminal conviction. Here, the indigent defendant was charged with and convicted of a misdemeanor, drunk driving. He was not imprisoned, but rather was sentenced to pay a fine. A mere fine may be imposed on an indigent, unrepresented defendant without running afoul of the Sixth Amendment. Thus, the defendant's Sixth Amendment right to appointed counsel was not denied.

In a single trial, a criminal defendant was charged with four different misdemeanor offenses. Each offense carried a maximum penalty of five months in prison. However, the sentences could run consecutively. Thus, the defendant faced a potential sentence of up to 20 months in prison if convicted of all four offenses. Was the defendant entitled to a trial by jury under the Sixth Amendment?

No. The defendant was not entitled to a trial by jury under the Sixth Amendment. The Sixth Amendment right to a jury trial applies if a criminal defendant is charged with an offense carrying a penalty of imprisonment exceeding six months. The analysis, however, proceeds charge-by-charge. That is, it looks to the maximum penalty associated with each individual charge in the case, not the aggregate prison time the defendant could serve if the charges were sentenced consecutively. Thus, if no one charge carries a maximum sentence of more than six months' imprisonment, there is no Sixth Amendment right to a jury trial. Here, no single charge carried a maximum sentence exceeding six months' imprisonment. Each carried a maximum sentence of five months. Accordingly, the defendant had no constitutional right to a jury trial.

Shortly after an alleged bank robbery, police arrested a suspect near the scene, took him to the police station, and made him stand in a lineup. Before entering the lineup, the suspect asked for an attorney to be present during the procedure. The police denied his request. A bank teller who claimed to have witnessed the robbery entered the room and picked the suspect out of the line-up. The next morning, the suspect was brought to court and charged with bank robbery. Prior to trial, the suspect moved to suppress any evidence of the lineup procedure, on the ground that he was denied the right to have counsel present. Should the motion be granted?

No. The defendant's motion to suppress evidence of the lineup procedure should not be granted. The Sixth Amendment entitles a suspect to the presence an attorney at pretrial lineups that occur after criminal proceedings formally commence. Pretrial lineups are a critical stage of the criminal process because their purpose is to facilitate witness identification of the suspect as the perpetrator. Criminal proceedings are deemed to have formally commenced with the filing of formal charges (i.e., the indictment), or with the defendant's first court appearance. If, however, the subject has not yet been indicted or formally charged with a crime, police may conduct a lineup without an attorney present. Here, the lineup occurred before the defendant was formally charged or first appeared in court. The defendant therefore had no right to counsel at the lineup, so the motion should be denied.

A criminal defendant noticed that, during jury selection, the prosecutor appeared to be using peremptory challenges to strike most members of the potential jury pool belonging to a particular race. The defendant objected. The judge overruled the objection, holding that the defendant lacked standing to object to the peremptory challenges because the defendant was not a member of the excluded race. Was the judge correct that the defendant lacked standing to object to the prosecutor's peremptory challenges?

No. The judge was not correct that the defendant lacked standing to object to the prosecutor's peremptory challenges. In general, either party in a criminal case may use peremptory challenges to strike potential jurors for any reason. However, the Equal Protection Clause prohibits the use of peremptory challenges in a racially discriminatory fashion. If the prosecutor appears to be doing this, the defendant may object, regardless whether he or she is of the same race as the jurors against whom the discriminatory strikes are used. Here, to the defendant, the prosecutor appeared to be using peremptory challenges to exclude members of a particular race. The defendant had standing to object, even though the defendant was not a member of that race. Accordingly, the judge was incorrect.

A defendant was arrested for and formally charged with a crime; he remained in jail pending trial. Law-enforcement officers sent an undercover agent into the defendant's jail cell. They instructed the agent to pose as a fellow inmate and simply report back whatever the defendant might happen to say about the pending charges, without affirmatively seeking incriminating information. The agent complied. Have the law-enforcement officers violated the defendant's Sixth Amendment right to counsel?

No. The officers have not violated the defendant's Sixth Amendment right to counsel. That right includes a right to have the government deal with the defendant only through an attorney. If the right is not waived, the government may not intentionally seek to elicit information from the defendant about a crime for which the right has attached. But the government may passively listen for incriminating information, as opposed to actively seeking it. The right to counsel attaches when the defendant is formally charged with or presented before a court about the crime. Here, the defendant was formally charged, so the right to counsel attached. The agent did not solicit incriminating information from the defendant. Rather, she simply listened for what the defendant might say about the crime. Thus, the right to counsel was not violated.

On the first day of jury selection in a criminal trial, the pool of potential jurors consisted entirely of women. The city of the trial relied on the phone book and an internal directory of city employees to select potential jurors. The directory recorded people's addresses much more accurately than the phone book. Over 70 percent of city employees were women. So, more women were likely to be called for jury service than men on a given day, though an equal number of women and men in the city were eligible for jury service. Did the panel of potential jurors represent a fair cross section of the community?

No. The panel of potential jurors did not represent a fair cross section of the community. The Sixth Amendment requires the panel of potential jurors in a criminal trial to represent a fair cross section of the community. To show that it does not, the defendant must prove that: (1) the excluded group is distinctive, (2) the group's representation in the panel is not fair and reasonable relative to the number of group members in the community, and (3) the underrepresentation is due to systematic or discriminatory exclusion in jury selection. Men and women are distinctive groups. Here, men have been totally excluded from the jury pool, though an equal number of men and women are eligible to serve. The city's selection method systematically excludes men by relying on a list of addresses that consistently underreports men. Thus, the jury pool was not a fair cross section.

A defendant was arrested and charged with robbery; he remained in jail pending trial. Police also suspected the defendant of unrelated drug crimes. The police sent an undercover agent to the defendant's cell, with instructions to pose as an inmate and attempt to elicit information from the defendant solely about the drug crimes. The agent complied. Have the police violated the defendant's Sixth Amendment right to counsel?

No. The police have not violated the defendant's Sixth Amendment right to counsel. That right includes a right to have counsel present when the government tries to elicit information about a crime to which the right has attached. It attaches when formal charges are filed or when the defendant has the first court appearance in the matter. The Sixth Amendment right, however, is offense-specific. Thus, the government may question the defendant about an offense to which the right has not attached, without regard to the Sixth Amendment. Here, the defendant was formally charged with robbery; the right to counsel attached to that offense. But the defendant was merely suspected of the drug crimes, the only topic on which the undercover agent elicited information. Thus, the right to counsel did not attach to the unrelated crimes and was not violated.

Police suspected a man and his friend of robbing a store. Based on surveillance video, police identified the man and arrested him. The man was charged with the robbery and released on bond. As the man left the courthouse, he saw the friend waiting for him. The friend asked whether the man hid the gun used in the robbery. The man responded that he did, unaware that on behalf of the police, the friend was wearing a secret recording device that captured his words. At the man's trial for robbery, may the recording be introduced as evidence against the man, consistent with the Sixth Amendment?

No. The recording may not be introduced as evidence against the man. Once the Sixth Amendment right to counsel attaches for an offense, it affords the defendant the right to interact with the government about the offense only through counsel, unless the right is waived. The right attaches upon formal charging. If the government intentionally solicits information from the defendant about the offense in violation of the right to counsel, evidence of that information is inadmissible at trial against the defendant. Here, the right attached when the man was charged with robbery. Yet on behalf of the police, the friend secretly recorded incriminating information from the man about the robbery. The man had no chance to waive his Sixth Amendment right to counsel, because the friend was undercover. Thus, the statement was obtained in violation of the Sixth Amendment and must be suppressed.

A criminal suspect was participating in a lineup identification conducted immediately after his arrest. No formal charges had been filed against the defendant, and he had not yet made his first court appearance. Is the suspect entitled to the presence of an attorney during the lineup?

No. The suspect is not entitled to the presence of an attorney during the lineup. A pretrial lineup after criminal proceedings formally commence is a critical stage of the criminal process, to which the Sixth Amendment right to counsel applies. The right entitles the suspect to the presence and assistance of an attorney. Criminal proceedings are deemed to have formally commenced with the filing of formal charges (i.e., the indictment), or with the defendant's first court appearance. Here, the suspect is participating in a lineup, the purpose of which is to facilitate witness identification of the suspect as the perpetrator. However, no formal criminal charges have been filed, and the suspect has not made his first court appearance. Because criminal proceedings have not formally commenced, the suspect is not entitled to the presence of an attorney during the lineup.

Is the Sixth Amendment right to counsel the same as the Miranda right to counsel?

No. The two rights operate very similarly (not identically), to the extent they apply, in the context of police interrogations. However, there are some key differences, including: (1) the Miranda right is implied under the Fifth Amendment privilege against self-incrimination and does not arise from the Sixth Amendment; (2) the Sixth Amendment right applies only to formally charged offenses, but Miranda applies to custodial interrogation about any crime; (3) Miranda applies only if the suspect knows he or she is interacting with the government, but the Sixth Amendment right applies regardless whether the defendant knows this; and (4) physical fruits of Miranda violations are not excluded on that basis, but physical fruits of Sixth Amendment violations may be excluded.

Under the Sixth Amendment, are all criminal defendants entitled to receive an appointed attorney at government expense?

No. Under the Sixth Amendment, not all criminal defendants are entitled to receive an appointed attorney at government expense. Rather, only defendants who are too poor to hire their own lawyers, often termed indigent defendants, are entitled to appointed counsel. Every criminal defendant has the right to assistance of counsel. However, the right to appointed counsel is not available to defendants who can afford to hire defense counsel. The Supreme Court has not established standards to determine indigence, leaving the states and, in federal cases, the federal government to establish standards.

Once the Sixth Amendment right to counsel has attached with respect to an offense, under what circumstances may police actively and deliberately seek incriminating information from the defendant about the offense?

Once the Sixth Amendment right to counsel has attached with respect to an offense, police may actively and deliberately seek incriminating information from the (1) defendant about the offense only if the defendant knows that he or she is interacting with the government and: (2) the defendant has the assistance of counsel in the interaction with the government or knowingly, intelligently, and voluntarily waives the right to counsel. In this context, the standards to determine whether a defendant has knowingly, intelligently, and voluntarily waived the right to counsel are identical to those that apply under the Miranda doctrine.

Under what circumstances does the Due Process Clause guarantee an indigent criminal defendant a right to appointed counsel in a parole or probation-revocation hearing?

The Due Process Clause guarantees an indigent criminal defendant a right to appointed counsel in a parole or probation-revocation hearing only if the specific hearing at hand presents issues that are particularly complex. The issues must be so complex that an uncounseled layperson would be unable to navigate the hearing without assistance. In simpler cases, however, due process does not require appointed counsel. Thus, the due-process right to counsel during parole and probation-revocation hearings must be assessed on a case-by-case basis.

Under what circumstances does the Sixth Amendment guarantee a criminal defendant the right to be represented by an attorney of the defendant's choosing?

The Sixth Amendment guarantees a criminal defendant the right to be represented by an attorney of the defendant's choosing if the defendant can pay for the attorney or find an attorney willing to take the case free of charge. In that event, the court may restrict the defendant's choice of counsel only as necessary to ensure the basic integrity of the judicial process (e.g., requiring a license to practice law, lack of ethical conflicts, and availability to handle the case on court-set dates). Otherwise, the court must honor the defendant's choice of counsel. By contrast, an indigent defendant being represented by a court-appointed attorney has no right to choose the appointed attorney. Rather, the court may select the attorney in its discretion.

At what point in time does the Sixth Amendment right to counsel attach?

The Sixth Amendment right to counsel attaches once adversarial judicial proceedings commence against a criminal defendant, with respect to a particular crime. Adversarial judicial proceedings generally commence (1) upon the filing of formal charges, as by indictment, or (2) upon the defendant's first court appearance with respect to the crime. Attachment means, in general, that the defendant has the right to the assistance of counsel in dealing with the government at each critical stage of the prosecution.

A criminal suspect was arrested for robbery. Soon after, the state's criminal trial court conducted a preliminary hearing to determine whether there was probable cause to proceed with formal charges against the suspect. The preliminary hearing was the suspect's first court appearance regarding the robbery charge. Did the Sixth Amendment right to counsel apply at the preliminary hearing?

Yes. The Sixth Amendment right to counsel applied at the preliminary hearing. In general, this right applies to every critical stage of a criminal proceeding. A criminal proceeding commences once the defendant is either (1) formally charged or (2) required to appear in court regarding the criminal allegations. A critical stage, in turn, is a stage in which substantial rights of the accused may be affected. Here, the preliminary hearing was the suspect's first court appearance concerning the robbery charge, making it the beginning of criminal proceedings. The U.S. Supreme Court has held that a preliminary hearing is a critical stage; it affects an accused's substantial rights, because the court hears evidence that is central to the pending criminal allegations. Thus, the Sixth Amendment right to counsel applied at the preliminary hearing.

Does the Sixth Amendment right to counsel apply against state and local governments?

Yes. The Sixth Amendment right to counsel applies against state and local governments. The Sixth Amendment, by its terms, applies only to the federal government. However, the U.S. Supreme Court has interpreted the Fourteenth Amendment Due Process Clause, which applies to the states, to incorporate the right to counsel against the state and local governments.

Does the Sixth Amendment right to counsel imply an exclusionary remedy?

Yes. The Sixth Amendment right to counsel implies an exclusionary remedy. That is, if the government gleans information from a defendant in a way that violates the defendant's Sixth Amendment right to counsel, that information is inadmissible as substantive evidence of guilt at trial against the defendant. Also, under the derivative-evidence doctrine, physical evidence obtained due to the violation may be suppressed.

Does the U.S. Constitution guarantee an indigent criminal defendant the right to appointed counsel on the first round of appeal from a criminal conviction?

Yes. The U.S. Constitution guarantees an indigent criminal defendant a right to appointed counsel on the first round of appeal from a criminal conviction. This is ordinarily an appeal as of right to an intermediate appellate court. By contrast, the Constitution does not guarantee a right to appointed counsel for subsequent rounds of discretionary appeals, usually to the court of last resort in the relevant court system. This limited right to counsel on appeal arises from due-process and equal-protection principles, not from the Sixth Amendment.

Does the U.S. Constitution impose any restriction on a criminal defendant's ability to exercise peremptory challenges in the course of jury selection?

Yes. The U.S. Constitution imposes a restriction on a criminal defendant's ability to exercise peremptory challenges in the course of jury selection. Namely, neither party to a criminal case, including the defendant, may use peremptory challenges to discriminate on the basis of race or gender. Thus, a prosecutor may raise a constitutional objection to the defendant's use of peremptory challenges if there are grounds to believe that the defendant is using them to remove jurors based on their race or gender.

A criminal defendant was not a citizen of the United States. The defendant was indicted for a crime. The defendant has considered pleading guilty to the crime. A conviction for the crime would likely get him deported from the United States. Assuming the Sixth Amendment right to counsel applies, does the defendant's attorney have a constitutional obligation to advise him that pleading guilty to the crime could result in his deportation?

Yes. The attorney has a constitutional obligation to advise the defendant that pleading guilty could result in his deportation. The Sixth Amendment right to counsel, if it applies, guarantees the effective assistance of counsel. In general, effective assistance requires that the attorney exercise reasonable judgment according to professional norms. The U.S. Supreme Court has held that this means defense attorneys must competently advise their clients about collateral consequences related to immigration, including potential deportation that might flow from a conviction. Here, the Sixth Amendment right to counsel applies, guaranteeing effective assistance. If the defendant pleads guilty to the crime, he will likely be deported. Thus, the defendant's attorney must advise him of this.

A criminal defendant and a prosecutor entered into a plea agreement. The terms provided that the prosecutor would dismiss a pending charge of armed robbery if the defendant would plead guilty to the lesser offense of unarmed robbery. The parties appeared in court the following day, and the prosecutor told the judge that the parties were there to enter a guilty plea. The defendant, however, had changed her mind and decided not to plead guilty. Her attorney conveyed this to the judge. The prosecutor then objected based on the signed plea agreement. May the defendant back out of the plea agreement and decline to plead guilty?

Yes. The defendant may back out of the plea agreement and decline to plead guilty. A guilty plea waives a criminal defendant's constitutional right to trial, but the judge must conclude that the waiver is knowing, intelligent, and voluntary. This means, among other things, that the prosecutor cannot force the defendant to plead guilty, even if the defendant has agreed to do so during plea negotiations. A defendant and a prosecutor may enter a legally binding plea agreement to set the conditions of the waiver. But the agreement is not effective until the judge accepts the guilty plea. Until then, the defendant may decline to plead guilty. Here, the defendant and the prosecutor reached a plea agreement for the defendant to plead guilty to unarmed robbery. The judge had not yet accepted the plea when the defendant changed her mind. Thus, the defendant may back out of the agreement.

A defendant was formally charged with a crime. Law-enforcement officers sent an undercover informant to try to elicit incriminating information from the defendant about the crime. The informant never revealed that he was working for law enforcement, and the defendant never had an attorney present while interacting with the informant. Have the law-enforcement officers violated the defendant's Sixth Amendment right to counsel?

Yes. The officers violated the defendant's Sixth Amendment right to counsel. That right includes a right to have the government deal with the defendant only through an attorney. If the right is not waived, the government may not intentionally seek to elicit incriminating information from the defendant about a crime for which the right has attached, unless the defendant has the assistance of counsel. The right to counsel attaches when the defendant is formally charged with or presented before a court about the crime. Here, the defendant was charged with a crime, so the right to counsel attached to that offense. The officers sent an undercover informant to elicit incriminating information about that crime from the defendant. The defendant could not waive the right, as he never knew the informant's role. Thus, the defendant's right to counsel was violated.

A criminal suspect was participating in a lineup identification conducted after his indictment. Is the suspect entitled to the presence of an attorney during the lineup?

Yes. The suspect is entitled to the presence of an attorney during the lineup. The Sixth Amendment right to counsel entitles a suspect to the presence and assistance of an attorney during critical stages of prosecution, which include all deliberate efforts by the government to elicit incriminating information from the defendant. Criminal proceedings commence with the filing of formal charges (i.e., the indictment), or with the defendant's first court appearance. Here, the suspect has been indicted, so criminal proceedings have formally commenced. A lineup's purpose is to facilitate a witness identification of the suspect as the perpetrator, so it is a critical stage of the criminal process. Thus, the Sixth Amendment right to counsel applies and the suspect is entitled to an attorney's presence.

Under the U.S. Constitution, may a prosecutor threaten a criminal defendant with more severe charges if the defendant refuses to plead guilty?

Yes. Under the U.S. Constitution, a prosecutor may threaten a criminal defendant with more severe charges if the defendant refuses to plead guilty. In many states, the relevant rules of professional conduct require the prosecutor to have probable cause for any threatened charges, though this is not a constitutional requirement.