6th Amendment Flashcards
Sixth amendment right to counsel - Definition
The Sixth Amendment provides that in all criminal prosecutions, the defendant has a right to
the assistance of counsel. It applies at all critical stages of a criminal prosecution after formal proceedings have begun. The right is violated when the police deliberately elicit an incriminating statement from a defendant without first obtaining a waiver of the defendant’s right to have counsel present. The Sixth Amendment right has been limited to cases where adversary judicial proceedings have begun.
- Right to counsel in all criminal prosecutions triggers once formal charges are brought. (Ex: filing of an indictment, preliminary hearings, arraignment)
- The 6th amendment prohibits officers from “deliberately eliciting” information from a person in the absence of counsel during any critical stage. (Massiah and Brewer)
- Deliberate elicitation = intent if the focus, unlike interrogation. Leaming (officer) testified it was his intent to elicit the information.
6th A is “offense specific” - What is covered by the 6th A? Can the police talk to you about anything outside of a charged case?
The Sixth Amendment right to counsel is “offense specific.” Thus, if a defendant makes a Sixth Amendment request for counsel for one charge, he must make another request if he is subsequently charged with a separate, unrelated crime if he desires counsel for the second charge. Similarly, even though a defendant’s Sixth Amendment right to counsel has attached regarding one charge, he may be questioned without counsel concerning an unrelated charge.
The test for determining whether offenses are different under the Sixth Amendment is the Blockburger test. Under the test, two crimes are considered different offenses if each requires proof of an additional element that the other crime does not require. [Texas v. Cobb, 532 U.S. 162 (2001)] (In practice – can charge a person with less crime and then question on higher crime that you know you will prosecute later)
Examples of violating 6th A
Informants: The police can use informants and jailhouse snitches but the jailhouse snitch cannot initiate the conversation. (Henry & Wilson)
The Sixth Amendment right to counsel is violated when an undisclosed, paid government informant is placed in the defendant’s cell, after defendant has been indicted, and deliberately elicits statements from the defendant regarding the crime for which the defendant was indicted. [United States v. Henry, 447 U.S. 264 (1980)] However, it is not a violation merely to place an informant in a defendant’s cell—the informant must take some action, beyond mere listening, designed deliberately to elicit incriminating remarks.
Stage at which 6th A is applicable
Line-up for identification purposes is a critical stage if it is held post-indictment. (Wade)
- Post-indictment interrogation [Massiah v. United States, supra];
- Arraignment [Hamilton v. Alabama, 368 U.S. 52 (1961)];
- Post-charge lineups [Moore v. Illinois, IV.B.1.a., infra];
- Felony trials [Gideon v. Wainwright, 372 U.S. 335 (1963)];
Limits on Right to Counsel (Kirby and Ash)
Kirby: Pre-charge: the right to counsel does not attach until charges have been filed (6th A only applies once charges filed)
Ash: Photo identification case where the picture presented was in black and white then later in color. No right to counsel for photo identification. (If overly suggestive the accused must argue due process violations not 6th right to counsel)
Due Process and ID (Stovall and Foster)
A defendant can attack an identification as denying due process when the identification is unnecessarily suggestive and there is a substantial likelihood of misidentification. (Stovall)
Examples:
- Foster: A suspect being the second in a lineup that was the only person in the first fits the definition above of “unnecessarily suggestive and conductive
Suggestive ID admissible? (Simmons and Neil)
Simmons: Each case should be considered on its own facts and photograph evidence will be set aside on the grounds only if photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misID
Neil: Suggestive pictures (rape case where woman saw the perpetrator in the hallway) was ok. But, unclear whether unnecessary. The evidence here was sufficiently reliable so the case does not violate due process.
Due Process and Reliability - When is an ID unnecessarily suggestive?
A court will ask if an ID procedure is unnecessarily suggestive. If the procedure is suggestive, the court will ask nonetheless is the ID reliable enough to use? (Brathwaite) The court will use these factors for deciding reliability:
- Witness’s opportunity to view the suspect
- Degree of attention
- Accuracy and detail of description
- Level of certainty
- Length of time from crime to identification
Due process analysis only applies if suggestive circumstances are arranged by the police (Perry v. New Hampshire)
Right to effective counsel
- A defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (Strickland)
A lawyer can be a brand-new lawyer and a person cannot say “that’s not effective counsel.” (Buck v. Davis)
Stages at which 6th A is not applicable
- Blood sampling [Schmerber v. California, II.D.1.a., supra];
- Taking of handwriting or voice exemplars [Gilbert v. California, 388 U.S. 263 (1967)];
- Pre-charge or investigative lineups [Kirby v. Illinois, 406 U.S. 682 (1972)];
- Photo identifications [United States v. Ash, IV.B.1.c., infra];
Waiver of 6th amendment rights
The Sixth Amendment right to counsel may be waived. The waiver must be knowing and voluntary. Moreover, the waiver does not necessarily require the presence of counsel, at least if counsel has not actually been requested by the defendant but rather was appointed by the court.
