6th Amendment Right To Counsel Flashcards
What does the Sixth Amendment guarantee?
The Sixth Amendment guarantees the accused—AFTER the initiation of adversarial judicial criminal proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment—the right to rely on counsel as a “medium” between between him and the State. Apart from right to counsel, the Sixth also guarantees compulsory process to obtain defense witnesses and the opportunity to cross examine witnesses for the prosecution.
NOTE 1: Those safeguards apart, admission of evidence in STATE trials is ordinarily governed by STATE LAW, and the reliability of relevant testimony typically falls within the province of the JURY to determine. See Perry v. New Hampshire (U.S. 2012) on p. 809.
NOTE 2: The Sixth guarantees a right to counsel EVEN WHERE the State has a legitimate investigative purpose, such as trying to elicit statements about a plan to kill one of the State’s witnesses and to protect informants wearing a body wire. See Maine v. Moulton (U.S. 1985) on p. 739.
What is the primary purpose of the Massiah v. U.S. (U.S. 1964) line of decisions?
See Kuhlmann v. Wilson (U.S. 1986) on p. 739
The primary concern of the Massiah line of decisions is SECRET INTERROGATION by investigatory techniques that are the equivalent of direct police interrogation. The defendant must demonstrate that the police and their informant took some action, BEYOND MERELY LISTENING, that was designed deliberately to elicit incriminating remarks.
NOTE: A defendant DOES NOT show a Sixth Amendment violation by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police. In the Kuhlmann case, the informant placed in the cell functioned only as a passive “ear” to listen to his cell mate.
Can a statement taken in violation of Massiah be used to impeach a defendant’s testimony?
See Kansas v. Ventris (U.S. 2009) on p. 740
YES. The interests safeguarded by excluding such statements are “outweighed by the need to prevent perjury and to ensure the integrity of the trial process.”
NOTE: In Ventris, SCOTUS held that the Massiah right “covers pretrial interrogation” and thus is violated the moment police deliberately elicit statements in the absence of counsel and without waiver.
What is the “clear rule” of Massiah, explained in Brewer v. Williams (U.S. 1977) on p. 746?
The “clear rule” of Massiah is that once adversary proceedings have commenced against an individual, he has a right to legal representation when the government interrogates against him. The State must prove “an intentional relinquishment or abandonment of a known right or privilege.” The right to counsel does NOT depend upon a request by the defendant, and courts engage in every reasonable presumption against waiver. This strict standard applies equally to an alleged waiver of the right to counsel whether at trial or at a critical stage of pretrial proceedings.
NOTE 1: In Williams, Williams had been informed of and appeared to understand his right to counsel. But waiver does not require merely comprehension—it requires relinquishment—and Williams’ consistent reliance upon the advice of counsel in dealing with authorities REFUTES any suggestion that he waived that right.
NOTE 2: Recall that Miranda is “fruitless.” But the general rule is that the fruit of a Massiah/Sixth violation must be suppressed. Though the “inevitable discovery doctrine applies. See Brewer v. Williams on p. 754.
When is a waiver of the the Sixth Amendment right to counsel valid?
See Patterson v. Illinois (U.S. 1988) on p. 755
A waiver of the the Sixth Amendment right to counsel is valid only when it reflects “an intentional relinquishment or abandonment of a known right or privilege.” In other words, the accused must know what he is doing, so that his choice is made with eyes open.
NOTE 1: In a case arising under the Fifth Amendment, SCOTUS described this requirement as “a full awareness of both the NATURE of the right being abandoned and the CONSEQUENCES of the decision to abandon it.”
NOTE 2: SCOTUS said its conclusion that Patterson waived his 6th Amendment right was supported by A) the fact that he knew what could be done with any statements he might make, and therefore, what benefit could be obtained by having the aid of counsel while making such statements and B) Patterson’s inability to articulate with precision what additional information should have been provided to him before he would have been competent to waive his right to counsel.
Are warnings that are sufficient for Miranda’s purposes also sufficient in the context of postindictment questioning?
See Patterson v. Illinois (U.S. 1988) on p. 760
YES. This is because there is not a substantial difference between the usefulness of a lawyer to a suspect during custodial interrogation, and his value to an accused at postindictment questioning.
Thus, SCOTUS requires a more searching or formal inquiry before permitting an accused to waive his right to counsel AT TRIAL than it requires for a Sixth Amendment waiver during postindictment questioning—not because postindictment questioning is less important than a trial—but because the full “dangers and disadvantages of self-representation” during questioning are less substantial and more obvious to an accused than they are at trial.
SO LONG AS the accused is made aware of the “dangers and disadvantages of self-representation” during postindictment questioning, by the use of Miranda warnings, his waiver of his Sixth Amendment right to counsel at such questioning is “knowing and intelligent.”
NOTE: In addition to Miranda warnings, an accused should be informed that he has been indicted before a postindictment waiver is sought.
What are the three layers of constitutional protection against abusive interrogation created by Miranda, Edwards, and Minnick?
See Montejo v. Louisiana (U.S. 2009) on p. 765
See also McNeil v. Wisconsin (U.S. 1991) on p. 768
- Under Miranda’s protection of the right against compelled self-incrimination, any suspect subject to custodial interrogation has the right to have a lawyer present if he requests one, and to be advised of that right.
- Under Edwards’ protection of the Miranda right, once such a defendant “has invoked his right to have counsel present,” interrogation must stop AND he may not be approached for further interrogation “until counsel has been made available to him.” It requires, at a minimum, some statement by the defendant that can be reasonably construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by police It is NOT OFFENSE SPECIFIC: once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he MAY NOT be re-approached regarding ANY offense unless counsel is present.
- Under Minnick’s protection of the Edwards right, no subsequent interrogation may take place until counsel is PRESENT, “whether or not the accused has consulted with his attorney.” If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect’s statements are presumed INVOLUNTARY and therefore inadmissible as substantive evidence at trial. This is “designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.”
NOTE: Montejo did not permit the defendant to request counsel at the time of arraignment. Instead, the judge at the initial appearance automatically appointed counsel for indigent defendants.
What does the Sixth Amendment recite?
The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defense.”
Is the Sixth Amendment right to assistance of counsel during criminal prosecutions OFFENSE SPECIFIC? What about the Edwards rule?
See McNeil v. Wisconsin (U.S. 1991) on p. 767-68
The Sixth Amendment right is OFFENSE SPECIFIC. It CANNOT be invoked once for all future prosecutions; it DOES NOT ATTACH UNTIL a persecution is commenced—that is, “at or after the initiation of adversary criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.”
***The purpose of the Sixth Amendment guarantee/invoking it is to “protect the unaided laymen at critical confrontations” with his “expert adversary,” the government, AFTER “the adverse positions of government and defendant have solidified with respect to a particular alleged crime.”
The Edwards rule is NOT offense specific. Once a suspect invokes the Miranda right to counsel for interrogation regarding ONE offense, he may not be re-approached regarding ANY offense unless counsel is PRESENT. The defendant must have expressed his wish for the particular sort of lawyerly assistance that is the subject of Miranda. It requires, at a minimum, some statement that can be reasonably construed to be an expression of a desire for the assistance of an attorney in dealing with CUSTODIAL INTERROGATION by police. Requesting the assistance of an attorney at a BAIL HEARING DOES NOT bear that construction.
***The purpose of the Miranda-Edwards guarantee, on the other hand, is to protect a DIFFERENT INTEREST: the suspect’s “desire to deal with the police only through counsel.”
What was SCOTUS’ policy reasoning for rejecting the defendant’s proposed rule to combine the Sixth and Fifth Amendment rights in McNeil v. Wisconsin (U.S. 1991) on p. 769?
The proposed rule had insignificant advantages and would seriously impede effective law enforcement. “If we were to adopt petitioner’s rule, most persons in pretrial custody for serious offenses would be unapproachable by police officers suspecting them of involvement in other crimes, even though they have never expressed any unwillingness to be questioned.”
NOTE: In McNeil, the defendant—after being advised of his Miranda rights—refused to answer any questions about an armed robbery he was charged/arrested for in West Allis, but did not request an attorney. Later, he was named a suspect in a murder, attempted murder, and armed burglary in the town of Caledonia. Multiple times, McNeil was advised of his Miranda rights and signed a waiver and CONFESSED to the Caledonia crimes. SCOTUS held that the Caledonia crimes were a separate offense so his statements for the Caledonia crimes were admissible, since he never requested an attorney to be present after being arrested for the West Allis armed robbery—he only invoked his right to remain silent about them.
Can the Fifth Amendment/Miranda right to counsel be invoked at a preliminary hearing or in a letter to police?
See Bobby v. Dixon (U.S. 2011) on p. 771
NO.
What is SCOTUS’ test for SAME OFFENSE in the Sixth Amendment context?
See Texas v. Cobb (U.S. 2001) on p. 771-72
The test for SAME OFFENSE in the Sixth Amendment context is the same as in the Fifth Amendment double jeopardy clause, namely the “Blockburger” test. This test finds different statutory offenses to be the same only when the STATUTORY ELEMENTS of one offense are NECESSARILY INCLUDED in the statutory elements of the other offense.
EXAMPLE: Murder is NOT the same offense as burglary. Murder requires proof of a killing while burglary requires proof of breaking and entering. That the murder(s) occurred during the course of the burglary is INSUFFICIENT to make the offenses the same for Sixth Amendment purposes.
NOTE: Thus, the Sixth Amendment DID NOT prohibit questioning Cobb about the murders after he had been indicted for the burglary.
What is the test for SAME OFFENSE in the Sixth Amendment context?
See Texas v. Cobb (U.S. 2001) on p. 771-72
The test for SAME OFFENSE in the Sixth Amendment context finds different statutory offenses to be the same ONLY when the statutory elements of one offense are NECESSARILY included in the statutory elements of the other offense. One way to express this principle is to say that offenses are the same only when proving the elements of the greater will ALWAYS prove the elements of the lesser.
EXAMPLE: Murder is not the same offense as burglary because murder requires proof of a killing while burglary requires proof of breaking and entering. If the murder(s) occurred during the course of the burglary, it is INSUFFICIENT to make the offenses the same for Sixth Amendment purposes.
NOTE 1: Thus, the Sixth Amendment did not prohibit questioning Cobb about the murders after he had been indicted for the burglary.
NOTE 2: SCOTUS rejected the factual relation test (Cobb’s murders and burglary were the same offense because they were “factually interwoven”). It held that the test for same offense in the Sixth Amendment context is the same as in the Fifth Amendment double jeopardy clause, namely the “Blockburger test.”
We know now that a blanket waiver of Miranda also waives Massiah. We know that if a suspect who has been indicted invokes his Miranda right to counsel, it protects him from interrogation about any crime and thus supplants Massiah.
But assume that—after receiving Miranda warnings—the defendant who has been indicted for offense X says, “I do not want to talk to you. May police re-approach this defendant again and seek a Miranda waiver?
YES. At some point, police may re-approach this defendant and again seek a Miranda waiver. Massiah would also not prohibit police from asking any questions from offense X. Thus, we know from McNeil that police could ask questions about offense Z.
