6th Amendment Right to Counsel

Question 1

6th Amendment Right to Counsel - General

Answer 1

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

Question 2

6th Amendment Right to Counsel - Application

Answer 2

Right attaches once charges have been filed

Applies to all subsequent stages of judicial proceedings

Question 3

6th Amendment Right to Counsel - Scope

Answer 3

Right is offense-specific; police can question D about any other crime without violating D’s 6th Amend. rights

Question 4

6th Amendment Right to Counsel - 5th v 6th

Answer 4

5th
- Not automatic: accused must invoke right unambiguously requesting
- No offense specific: Once invoked, police most stop questioning on all subjects

6th
- Automatic: attaches once charges have been filed and at all subsequent stages
-Offense specific: Police can question D about any other crimes

Question 5

6th Amendment Right to Counsel - Right to Effective Counsel

Answer 5

Included in 6th Amend 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 6

Pretrial Lineups & Showups - Right to Counsel

Answer 6

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: W is shown several possible suspects

Showup: W is asked to ID a single suspect

Question 7

6th Amendment Right to Counsel - Due Process Considerations (2)

Answer 7

D can attack pretrial ID procedures as a denial of due process rights if:

1) ID is unnecessarily suggestive; and

2) There is a substantial likelihood of misidentification

• Determined under the totality of circumstances
• Tough standard; must be extremely suggestive (e.g. perpetrator believe to be male and suspect is the only male in lineup)

Question 8

6th Amendment Right to Counsel - Remedy for Violation

Answer 8

D may move to supress any subsequent in-trial ID made by the witness

Note: remedy for a violation is rare because govt. can often prove the ID’ing W has an independent source of ID to overcome exclusionary rule