6A Right to Counsel; ID Procedures

Question 1

6A - General

Answer 1

General - in addition to 5A right to counsel for custodial interrogations, the 6A explicitly provides a criminal D with “the assistance of counsel for his defense”

Question 2

6A - 6A Right to Counsel v. 5A Miranda Right

Answer 2

How invoked? - automatically attaches once there has been an indictment, information, or other formal charges and exists unless a D knowingly and intelligently waives the right

• 5A must be affirmateively invoked by the D
• Ex: if arrested and brought to station, unless you ask for a lawyer after getting mirandized, you will not get one; if you are charged in court, you get an attorney unless you affirmatively waive the right to counsel

To what charges does the right apply? - offense specific; a D has 6A right to counsel only with regard to the offenses for which he has actually been charged and any lesser included charges

• can be questioned, either expressly or through undercover government means, with respect to unrelated charges

Applies when? - applie-s whether you are in custody or not

• 5A only applie-s when in custodial interrogation

Question 3

6A - When Does 6A Right to Counsel Apply

Answer 3

Rule - applies to all felony prosecutions and to any misdemeanor prosecutions in which jail time or suspended jail sentence is imposed

Applies to all critical stages of the prosecution such as

• hearings
• post indictment lineups
• post indictment interrogations
• all parts of the trial process, including guildy pleas, sentencing, and appeals as of right

Ohio - resentencing is a criitical stage

Non Critial Stages

• investigative lineups (pre-indictment)
• witnesses looking at photo array
• discretionary appeals and post conviction proceedings

Question 4

ID Procedures - Types of Procedures

Answer 4

General - two basic kinds of procedures that get tested: photo array and lineups

1. Photo Array - neithe rthe D nor his lawyer has the right to be present, but police must turn over the array to the D
2. Pre-Indictment Lineups - D has no right to counsel
3. Post-Indictment Lineup - D has a right to have counsel present; if that right is violated then evidence that the witness ID’d the D at the lineup is excluded

Question 5

ID Procedures - Admissibilty

Answer 5

A. Lineup Evidence at Trial - if D moves to suppress evdience that a witness picked the D out of a lineup, court will consider whether the lineup was inpermissibly suggestive, and if it was the court can exclude the testimony

B. In-Court ID - if the prosecution can establish by clear and convincing evidence evidence that the witness would have ID’d the D even without the suggestive lineup, the court will permit the in-court ID even if it suppresses the result of the lineup

Question 6

Ohio - Arraignment

Answer 6

Ohio - at arraignment, D is informed of charges and enters a plea; 4 possible pleas:

1. guilty
2. not guilty
3. no contest
4. not guilty by reason of insanity (must be in writing)

may change plea any time before trial upon showing of good cause

if D refuses to enter plea, a plea of not guilty will be entered by the court on her behalf