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Question 1

What is the basis of the sixth amendment?

Answer 1

Right to counsel

Question 2

What is involved in the sixth amendment right to counsel?

Answer 2

Counsel must be provided when it is fundamental or necessary to due process and the defendant is indicted, so judicial proceedings have been initiated against him.

Question 3

How does the sixth amendment apply to the individual states?

Answer 3

By way of the 14th amendment. Always mention this and incorporation if a state actor is involved. Due process guarantees the right to a fair hearing, and this always includes the right to counsel when desired

Question 4

What does it mean for a judicial proceeding to be initiated against a defendant such that the sixth amendment would apply?

Answer 4

– a formal charge
– preliminary hearing
- information
– indictment
– arraignment

Question 5

What are situations when the defendant is entitled to an attorney under the sixth amendment?

Answer 5

• felony trial
  – first appeal of right
  – critical stages of the adversarial process
  – if a sentence can include jail time

Question 6

Once the sixth amendment right is involved, all questions have to stop and the suspect gets to do what?

Answer 6

Consult with a lawyer. Police cannot then question him again about that crime unless the attorney is present

Question 7

Basically what does the sixth amendment prohibit?

Answer 7

Police from extracting incriminating statements from the defendant who is under indictment unless counsel is present.

Question 8

When does the sixth amendment apply?

Answer 8

It applies to all criminal proceedings and critical stages of the adversarial process. Essentially it applies to all stages where not having a lawyer would disable the defendant’s ability to adequately defend himself

Question 9

What are the critical stages where the sixth amendment applies?

Answer 9

• any judicial proceeding after a formal charge has been brought
• anytime police want to question or interrogate
  – physical lineups
  – preliminary hearings before trial
• trial
  – first appearances
  – sentencing hearings
  – anything after a formal charge
  – formal charge
  – indictment
• information
  – arraignment

Question 10

At what point does the sixth amendment attach?

Answer 10

At the first formal proceeding against the defendant when he is formally charged

Question 11

At what stages does the sixth amendment not yet attach?

Answer 11

• on arrest
  – on transport to the station
  – getting advice from counsel before an indictment

Question 12

If police officers take you from your home at 2 AM and question you at the station for two hours, but they do not accuse you of a crime, do you have a right to counsel?

Answer 12

No, because no prosecution has begun. The same would be true if you say you want a lawyer, but the police officers keep questioning you because there is still no charge, so there’s no obligation to give counsel

Question 13

Is the sixth amendment offense specific?

Answer 13

Yes, so even if you invoke your sixth amendment right, officers can initiate questioning about crimes other than the one that you were charged with

Question 14

The sixth amendment is really only applicable when what happens?

Answer 14

The government’s role shifts from investigation to accusation

Question 15

Does the sixth amendment apply to non-criminal cases?

Answer 15

Courts use a case by case analysis to decide if an attorney is necessary based on the content with a focus on fundamental fairness for the person to proceed with or without an attorney

Question 16

What are the differences between the fifth and sixth amendments?

Answer 16

– fifth: begins at the initial questioning when the suspect is told he has a right to remain silent.
- sixth: begins at a fundamental stage in the proceedings like after being charged

Question 17

What is the difference between a suspect and a defendant?

Answer 17

• suspects: do not have a sixth amendment right to counsel, but they are protected by Miranda.
• defendants: are protected by Miranda and have a sixth amendment right to counsel because there has been the initiation of a formal adversary process

Question 18

What are events that change a suspect to a defendant?

Answer 18

Being formally accused by the state through:
– indictment
– arraignment
– formal charge by information
– preliminary hearing
– probable cause and bail hearing

Question 19

Does a right to counsel attach at a probation or parole hearing?

Answer 19

This is applied on a case by case basis

Question 20

What are the four ways that you can challenge the admissibility of a confession?

Answer 20

– due process voluntariness test
– Miranda rule
– sixth amendment right to counsel
- by showing that the confession is the fruit of a previous constitutional violation

Question 21

Is being arrested enough for the sixth amendment to attach?

Answer 21

No, because you’re not accused until charges are formally brought.

Question 22

Does the sixth amendment guarantee indigents the council of their choice?

Answer 22

No