Right to Counsel and The 6th Amendment

Brewer - When the 6th is violated

1. the attachment of the right to counsel 2. the failure of police to obtain a waiver 3. the prohibited act of deliberate elicitation - equivalent to improper interrogation by police that produced incriminating statements.

When is a Suspect required to be provided counsel?

Generally, under the 6th amendment, an indigent defendant has the right to have counsel appointed for him by the government in any prosecution where the accused can be sent to jail. Thus, in any felony prosecution, and in any misdemeanor prosecution for which the sentence will be a jail term, the indigent has the right to appointed counsel. Consequently, the 6th means that the government cannot materially interfere with a non-indigent defendant's right to retain his own private lawyer.

Investigation v. Interrogation

When an investigation shifts from a general inquiry into an unsolved crime to a focus on a particular suspect, that suspect has been taken into police custody for questioning, the suspect has been denied his lawyer, and failed to be warned of his right to remain silent, any confession made during the remainder of the interrogation is inadmissible Then when the process moves from investigatory to accusatory, the accused must be given access to his lawyer. The fact that an interrogation under these facts may occur before the suspect is indicted makes no difference

"Deliberately Elicited"

Where the government takes affirmative action with the conscious object of obtaining information for use in a criminal prosecution against the defendant.

Deliberate Elicitation Standard

includes both express questioning and other kinds of police statements that are tantamount to interrogation It exists when an undercover informant cellmate is not a passive listener and joins as an active participant in conversations with the D despite instructions to the informant not to initiate any conversation with the D about his crime.

Determining whether 6th is invoked or waived

the key inquiry of waiver is whether the accused, who waived his 6th rights during post-indictment questioning was made sufficiently aware of his right to have counsel present during the questioning, and of the possible consequences of a decision to forgo the aid of counsel invocation depends on whether the suspect is in custody when the invocation occurs. Regardless of whether a suspect has requested or obtained a lawyer, the police may question and seek a waiver from any suspect who is not in custody If D is in custody and informed of his rights, applies to the offenses that have been charged. must be unequivocal and the D must re initiate communications with police in order to waive.

Invoking 6th Amendment under Brewer

the right attaches at the initiation of adversary judicial proceedings but requires an invocation of that right. police must cut off questioning when a D actually requests a lawyer or otherwise asserts his 6th right to counsel. Whether a defendant has effectively waived his right to have counsel present is a matter of constitutional law, and the burden rests on the prosecution to show that the defendant made an intentional relinquishment of a known right to counsel

Waiving 6th Amendment Right

A valid waiver of a suspect's right to counsel must be voluntary and the suspect must constitute a knowing and intelligent relinquishment or abandonment of a known right or Privileges. In determining whether a suspect has waived their right to counsel depends on the facts and circumstances surrounding the case, including background, experience, and conduct of the accused.

Factors to Determine Whether a Suspect is Indigent

Determined on a case by case analysis Age Education Ability to Pa y Ignorance Feeble-Mindedness Adequately making his own defense

The 6th Amendment

In all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defense.

Confidential Informant and 6th Amendment

Once a suspect has been indicted and has counsel, it is a violation of the right of counsel for a secret agent to deliberately obtain incriminating statements from D in the absences of counsel, and to pass these on to the prosecution. However, this applies only where the agent deliberately elicits the incriminating testimony, not where the agent merely keeps his ears open 1. the lack of access to counsel during questioning might deny a defendant effective representation at the only stage when legal aid and advice would help him 2. defendants are entitled to the aid of counsel during that period as at the trial itself 3. the right to consult counsel must apply to indirect and surreptitious interrogations as well as those in the jailhouse.

Once 6th Amendment Right Attaches

Once adversarial proceedings are instituted, law enforcement officials or their agents, may not interrogate the accused in the absence of counsel, unless the accused has validly waived that right. Once a D affirmatively invokes his right to counsel, all questioning - and all police requests for consent to further questioning - generally must cease until the suspect either has his lawyer present or he affirmatively re-initiates questioning of his own volition. Thus, if the police deliberately elicit an incriminating statement from the defendant without her lawyer present, then that statement will be excluded from evidence.

Offense Specific

Once criminal prosecution has begun against a person for a certain crime, the 6th only applies with reference to that particular crime. The government may seek information from the accused about other crimes without worrying about the 6th Amendment.

Belts v. Brady

SC originally held that the 6th amendment did not apply to the states through the DPC and thus, were not required to provide appointed counsel to indigent defendants in all criminal cases but were only required to provide appointed counsel in cases involving special circumstances that would make it difficult for the defendant to receive a fair trial without the assistance of counsel

Statements made to Under cover Agents used in trial

Statements obtained through deliberate elicitation by undercover agents are admissible at a trial on offenses other than the crime to which the 6th right already has attached. Deliberate elicitation applies to situations where the D initiates a meeting with an undercover police agent as well as to situations where the agent initiates a meeting with the D

Gideon v. Wainright

The 6th's right to counsel is applicable to the states through the 14th Amendment in non-capital cases - a person is not denied counsel because of poverty, every D stands equal before the law. This court overruled Brady and held the assistance of counsel, if desired by a D who could not afford to hire one, is a fundamental right under the US constitution, thus binding on the states, and essential for a fair trial. Failure to provide an indigent D with an attorney is a violation of the 14th

When Does the 6th Right to Counsel Attach?

The Sixth Amendment Right to counsel attaches upon the commencement of adversary judicial proceedings, such as initial appearance, formal charge, preliminary hearing, indictment or information, or during any stage where the suspect's substantial rights are affected. Whenever there is a critical stage of the proceedings - it is critical id D is compelled to make a decision which may later be formally used against him The mere fact that a person has been arrest or taken into custody does not mean that a criminal prosecution has begun.

Scott v. Illinois

The Sixth and Fourteenth Amendments require that no indigent defendant be sentenced to a term of imprisonment unless the state has afforded him the right to the assistance of appointed counsel - Imprisonment must actually be imposed on the defendant. Actual imprisonment remains the proper line defining the constitutional right to counsel.

Critical Pre-Trial Interactions

These interactions include all deliberate efforts by the government to elicit incriminating information from the D - directly or surreptitiously. Thus, if police deliberately elicit an incriminating statement from D without lawyer present, that statement will be excluded from evidence. (Physical or documentary evidence discovered as a result of such statements may also be excluded)