Criminal Procedure, 6th amendment

Right to counsel - Waiver

A defendant has the constitutional right to refuse counsel and proceed pro se at trial unless the request is untimely or the defendant is unable or unwilling to abide by the rules of procedure or protocol. A defendant who is competent to stand trial may nevertheless be found incompetent to represent himself. In addition, a defendant does not have a right to proceed without an attorney on an appeal. Recall that in the Fifth Amendment context, once an individual in custody asserts the Fifth Amendment right to counsel, no subsequent waiver of that right is valid in a police-initiated interrogation. However, police may re-open interrogation of a suspect who has asserted his Fifth Amendment right to counsel if there has been a 14-day or more break in custody (such as a the suspect's release back into the general prison population). The Sixth Amendment right to counsel can be waived "so long as relinquishment of the right is voluntary, knowing and intelligent." Thus, as long as the defendant is given Miranda warnings and a valid waiver occurs, evidence obtained voluntarily from the interrogation without the presence of counsel is admissible. EXAM NOTE: Remember, even if the defendant has made a valid waiver of his right to counsel, statements made during interrogation must be voluntary to be admissible at trial, i.e., the police still cannot use compelled statements.

Remedies for denial of counsel - effect on denial of counsel at nontrial proceedings

A denial of counsel at a nontrial proceeding, such as a lineup, is subject to harmless-error analysis.

Ineffective assistance of counsel - Conflict of interest - Disqualification despite waiver

A trial court has the authority to disqualify a defense attorney, even over the objection of the defendant, if the court concludes that there is serious potential of a conflict of interest. 3. Communication of Formal Plea Offer The right to effective assistance of counsel extends to the plea bargaining stage. Defense counsel must accurately communicate to the defendant any formal offer from the prosecution to accept a plea on terms and conditions that may be favorable to the defendant. To show prejudice once a plea offer has lapsed or has been rejected because defense counsel failed to accurately communicate the offer, a defendant must demonstrate a reasonable probability that she would have accepted the plea offer had it been accurately communicated by defense counsel. A defendant must also demonstrate a reasonable probability that the prosecutor and trial court would have accepted the plea if they had the discretion to reject it under state law. Ineffective assistance of counsel at the plea bargaining stage may constitute reversible error even if the subsequent trial and conviction are fair.

Ineffective assistance of counsel - Conflict of interest - Adverse impact

Adverse impact can be established by demonstrating that some plausible alternative defense strategy or tactic might have been pursued and such strategy or tactic was inherently in conflict with, or not undertaken, due to the attorney's other loyalties or interests. The conflicting character of the strategy is not sufficient if the strategy actually was rejected because another strategy was viewed as even more favorable to the accused.

Remedies for denial of counsel - effect on conviction

If a right to counsel at a trial proceeding under the Sixth Amendment is denied, the defendant's conviction should be automatically reversed, even without a specific showing of unfairness. Automatic reversal also applies to a conviction obtained after a court has erroneously refused to permit an attorney chosen by the defendant to represent him, when that attorney is not supplied by the state.

Ineffective assistance of counsel - Conflict of interest - Knowledge of the court

If an attorney representing codefendants makes a timely motion for appointment of separate counsel based on a potential conflict of interest, then the trial judge must either grant the motion or at least conduct a hearing to determine whether appointment of separate counsel is warranted under the circumstances. Failure of the judge to do so requires automatic reversal of a subsequent conviction. Actual conflict and prejudice are presumed under such circumstances. Unless the trial court knows or reasonably should know that a conflict exists, however, the court is not required to inquire about multiple representations. Actual conflict (rather than potential conflict) is required to be shown on appeal if the issue of separate trials was not brought up during the trial, and the defendant must show that the conflict adversely affected counsel's performance.

Remedies for denial of counsel - Effect on guilty plea

If the defendant has pleaded guilty at a preliminary hearing, without being given the opportunity to have counsel, then the defendant has the right to withdraw the plea, and it may not be used against the defendant as an evidentiary admission.

Remedies for denial of counsel - Exclusionary rule under 6th amendment - Impeachment

If the police initiate a conversation with an accused individual who has requested counsel, any incriminating statements made by the defendant may still be used for impeachment purposes, despite the fact that the improper police conduct precludes admission of the statements as part of the prosecution's case in chief.

Offense specific

Once the Sixth Amendment right to counsel is properly invoked, it applies only to the specific offense at issue in those proceedings.

Remedies for denial of counsel - Admissibility of a defendant's statements to informants

Post-indictment statements that a defendant makes to a police informant are inadmissible when the police intentionally create a situation likely to induce the defendant into making incriminating statements about the crime for which he was indicted without the assistance of counsel. There is no Sixth Amendment violation, however, if the police place an informant in the defendant's cell simply to listen and report the defendant's statements, without questioning the defendant.

Right to counsel - Types of proceedings

The Sixth Amendment provides a constitutional right to counsel in any case in which the defendant is sentenced to incarceration, even if that sentence is suspended.

6th amendment rights

The Sixth Amendment provides that the accused shall have the right to a public trial, the right to confront witnesses against him, the right to cross-examine witnesses, the right to be present at his own trial, and the right to "the assistance of counsel for his defense." The right to assistance of counsel encompasses not only the right to hire private counsel, but also the right to be provided with counsel without charge if the accused is unable to afford counsel.

Right to counsel - When applicable

The Sixth Amendment right to counsel applies at all critical stages of a prosecution, after formal proceedings have begun. The right automatically attaches when the State initiates prosecution with an indictment or formal charge and ends at the sentencing stage of the trial. EXAM NOTE: Unlike the Fifth Amendment right to counsel, the defendant does not need to invoke the Sixth Amendment right to counsel. The failure to provide counsel results in automatic reversal of a conviction.

Right to counsel - When applicable - critical stages

The Supreme Court recently summarized its definition of "critical stage" as those proceedings between an individual and an agent of the state that amount to trial-like confrontations, at which counsel would help the accused in coping with legal problems or meeting his adversary. Rothgery v. Gillespie County, 554 U.S. 191, 212 (2008). Generally, the Sixth Amendment right to counsel attaches at the following critical stages: i) Post-indictment lineups and in-person identifications; ii) Post-indictment interrogations, whether custodial or otherwise; iii) Arraignment and preliminary hearing to determine probable cause to prosecute; iv) Plea bargaining, guilty pleas, and sentencing; and v) Appeals as a matter of right.

Remedies for denial of counsel - Exclusionary rule under 6th amendment - Fruits doctrine

The fruit of the poisonous tree doctrine is applicable to violations of the Sixth Amendment right to counsel. Both statements and physical evidence obtained as a result of a Sixth Amendment violation are inadmissible.

Right to counsel - Withholding information

The police are under no obligation to inform a suspect that an attorney has been trying to reach him, and may even withhold that information intentionally, so long as the Sixth Amendment right to counsel has not yet attached.

Ineffective assistance of counsel - Conflict of interest

The representation of defendants with conflicting interests may amount to ineffective assistance of counsel. In general, to overturn a conviction on the basis of a conflict of interest, a defendant must show that there was an actual conflict of interest and that such conflict adversely affected the attorney's performance.

Ineffective assistance of counsel - Standard of competence

The right to counsel encompasses the right to be assisted by a reasonably competent attorney and is presumed. The right to effective counsel extends to the defendant's first appeal. To reverse a conviction on the ground of ineffective counsel, the claimant has the burden to show that: i) Counsel's representation fell below an objective standard of reasonableness; and ii) Counsel's deficient performance prejudiced the defendant, resulting in an unreliable or fundamentally unfair outcome in the proceeding. Counsel's mere inexperience, strategy, choice of appellate issues, or even failure to produce mitigating evidence have all been found insufficient to rise to the level of ineffective counsel. The failure of defense counsel to raise a federal constitutional issue that was law at the time of the trial, but was later overruled, does not constitute ineffective assistance of counsel.

Right to counsel - When applicable - noncritical stages

The right to counsel generally does not apply to the following events: i) A witness viewing photos of the alleged defendant; ii) Pre-charge (investigative) lineups; iii) Taking of fingerprints, handwriting exemplars, voice exemplars, or blood samples; iv) Hearings to determine probable cause to detain the defendant (Gerstein hearing); v) Discretionary appeals; and vi) Post-conviction proceedings, such as parole or probation hearings (including habeas corpus).

Ineffective assistance of counsel - Conflict of interest - Actual conflict

To find an actual conflict, a court must determine that the defense attorney is subject to an obligation or unique personal interest that, if followed, would lead her to adopt a strategy other than that most favorable to the defendant.

Offense specific - Blackburger test

Two crimes committed in one criminal transaction are deemed to be the same offense for Sixth Amendment purposes unless each offense requires proof of an element that the other does not.

Offense specific - Compare to miranda

Unlike under the Miranda standard, under the Sixth Amendment standard, the requirement for counsel to be present applies only to interrogations about the offense charged. However, like with Miranda, the defendant may make a knowing and voluntary waiver of the right to counsel being present.

Ineffective assistance of counsel - Conflict of interest - Rule 44(c)

When co-defendants are represented by the same attorney, Rule 44(c) of the Federal Rules of Criminal Procedure requires the court to conduct a prompt inquiry into potential conflicts of interest and advise the defendants of the right to separate representation. Failure to comply with the Rule, though, will not constitute a per se reversible error, and an appellate court will likely ask whether the end result was representation by counsel under an actual conflict.

Right to counsel - Indigence

When the right to counsel exists, an indigent defendant has the right to the appointment of counsel. However, this right does not entitle an indigent defendant to the appointment of counsel of his own choosing.