6th Amendment

Question 1

6A Right to counsel

Answer 1

Once 6A right to counsel attaches, police may not elicit incriminating statements outside the presence of D’s counsel

• Application: right attaches once charges have been filed
  -Applies to all subsequent stages of judicial proceedings
• Scope: right is offense specific; police can question D about any other crime without violating D’s 6A rights

Question 2

5A vs. 6A right to counsel

Answer 2

• 5A
  -Not automatic: accused must INVOKE the right by unambiguously requesting presence of counsel
  -Applies to any custodial interrogation
  -Not offense specific: once invoked police must stop questioning on ALL subjects
• 6A
  -Automatic: attaches once charges have been filed and at all subsequent stages
  -Offense specific: police can question D about any other crimes

Question 3

Right to effective counsel

Answer 3

Included in 6A right to counsel
-To establish ineffective assistance of counsel on appeal, D must show there is a reasonable probability that his trial’s outcome would have been different absent counsel’s deficient performance

Question 4

Pretrial lineups and showups-right to counsel

Answer 4

A suspect has a right to counsel at any post charge, in person lineup or showup
-Does not apply to non-live identification procedures (e.g. photographic lineups, fingerprinting)
-Lineup: witness is shown several possible suspects
-Showup: witness is asked to identify a single suspect

Question 5

Pretrial lineups and showups-due process considerations

Answer 5

D can attack pretrial identification procedures as a denial of due process rights if:
1) Identification is unnecessarily suggestive; and
2) There is a substantial likelihood of misidentification
-Determined under the totality of the circumstances
-Tough standard: must be extremely suggestive
-E.g. perpetrator believed to be male and suspect is the only male in lineup; would likely violate due process

Question 6

Pretrial lineups and showups-remedy for violation

Answer 6

• D may move to suppress any subsequent in trial identifications made by the witness
• Note: remedy for a violation is rare because government can often prove the identifying witness has an independent source of identification to overcome the exclusionary rule