Right to Counsel and Id Procedures

Question 1

The right to counsel is found in which 2 Amendments?

Answer 1

5^th Amendment and 6^th Amendment

Question 2

What is the purpose of the Sixth Amendment right to counsel?

Answer 2

• The Sixth Amendmetn right to counsel ensures that an accused has an attorney present at all critical states of the criminal proceeding
• A voluntary confession may still be thrown out if the defendant had the right to have counsel present and the police did not obtain a waiver before deliberately eliciting incriminating statements

Remember: Distinguish from the Fifth Amendment right to counsel under Miranda, which applies to detainees being investigated for crime

Question 3

When does the Sixth Amendment right to counsel attach?

Answer 3

The Sixth Amendment right to counsel attaches AFTER the INITIATION OF FORMAL ADVERSARIAL proceedings, such as by “formal charge, preliminary hearing, indictment, or information, or arraignment.

Remember: The SIXTH Amendment right to counsel does NOT apply to pre-charge interrogation; durring that phase, the accused must invoke the FIFTH Amendment right to counsel

Question 4

What are the three types of pretrial identification procedures?

Answer 4

1. Lineups (witness asked to identify suspect from multiple people);
2. Showups (witness is presented with single suspect); and
3. Photo-arrays

Question 5

When does a suspect have a right to counsel for a lineup or showup?

Answer 5

At any post-charge, in-person lineup or showup

Question 6

When does a suspect not have a right to counsel for an identification procedure?

Answer 6

1. Pre-charge lineups or showups; and 2. Non-live identification (e.g. examining photographic lineups, fingerprinting, photo arrays)

Question 7

What is a defendant’s righ to counsel at police lineups before and after their indictment?

Answer 7

There is no right to counsel at police lineups conducted before the accused is indicted

After formal charges are filed, the defendant has a right to have counsel present at a lineup

Question 8

If police act in good faith, but D’s lawyer is absent due to his own negligence, can the police proceed with the lineup?

Answer 8

No, this is still a 6^th Amendment violation.

Question 9

What is the remedy when a post-charge, in-person lineup occurs without counsel present?

Answer 9

1. Identification is inadmissible at trial; and 2. Witness will be prohibited from making a subsequent in-court identification of D unless the prosecution can prove that the witness has an independent source of identification

Question 10

When do pre-trial identification procedures violate due process?

Answer 10

If D can show that, in light of the totality of the circumstances:
1. The police intentionally made the identification unnecessarily suggestive; and
2. The identification produced an irreparable misidentification/is unreliable

Question 11

Due process applies to which types of identification procedures?

Answer 11

All types of ID procedures at all stages of the process

Question 12

What are examples of impermissibly suggestive lineups?

Answer 12

• Lineup when suspect is a man and all of the other individuals are women;
• Lineup where the suspect is one race and all the other individuals are another race;
• Lineup where the suspect has a different appearance than the other individuals; or
• Lineup where the witness knows all of the individuals except the suspect

Question 13

When is a suggestive lineup not impermissibly suggestive?

Answer 13

When the lineup is justified by exigent circumstances

Question 14

What is the remedy for a due process violation during the identification process?

Answer 14

D can seek to suppress the identification via a suppression hearing. If D meets his burden, evidence will be suppressed and the witness will not be able to subsequently identify D at trial.

⚠️ Exception: if the witness can identify D based upon knowledge from a source that is independent of the impermissible identification, they will be allowed to identify D at trial.

Question 15

What factors does the court weigh when determining the reliability of the witness?

Answer 15

1. Opportunity to see D during the criminal act;
2. Discrepancies between the witness’s pre-lineup description of D and D’s **actual description;
   **3. Whether the witness had initially identified a different suspect;
3. The witness’s degree of exposure to D before the in-person identification (e.g. was shown several photos of the defendant)
4. Whether the witness failure to identify D on a prior occasion(s);
5. Lapse of time between the crime and identification; and
6. How certain the witness is that D is the perpetrator

Question 16

What is the 6^th Amendment right to counsel?

Answer 16

Guarantees D the right to counsel during all critical stages of the adversarial process. Only applies to crimes where D may be sentenced to incarceration.

More info: Right to counsel

Question 17

Is there a 6^th Amendment right to counsel for misdemeanors?

Answer 17

No, unless actual incarceration is imposed

Question 18

Does the 6^th Amendment right to counsel protect D against interrogations about other crimes?

Answer 18

No, the 6th Amendment right to counsel is offense-specific (i.e. only applies to interrogations about the offense charged). Thus, the police can question D without counsel present about any other crimes.

Question 19

When is the 6^th Amendment right to counsel triggered?

Answer 19

Begins with the initiation of formal adversarial process (ex. formal charge, indictment, arraignment, or preliminary hearing). Once right is triggered, D is entitled for counsel for all subsequent proceedings.

Question 20

Under the 6^th Amendment, what are considered the critical stages of a proceeding?

Answer 20

Post-indictment:
1. In-person lineups and identifications
2. Preliminary hearings;
3. Bail hearings;
4. Interrogations;
5. Plea bargaining negotiations; and
6. Appeals as a matter of right

Question 21

What stages are considered not critical? (i.e. no right to counsel)

Answer 21

1. Discretionary appeals;
2. Fingerprinting;
3. Parol or probation hearings
4. Photo arrays;
5. Pre-indictment lineups;
6. Probable cause hearings;
7. Taking handwriting, voice, or blood samples;

Question 22

How can D waive their 6^th Amendment right to counsel?

Answer 22

If D:1. Knowingly and voluntarily waives his rights; 2. Without government coercion

Question 23

If D has waived his 6^th Amendment right to counsel, are statements made without counsel admissible?

Answer 23

Yes, but only if D made the statements voluntarily

Question 24

HYPO: If a defendant’s SIXTH Amendment right to counsel has attached, may the police still question him about unrelated crimes WITHOUT counsel present?

Answer 24

• Yes. The Sixth Amendment right to counsel is offense-specific, meaning the police may question the defendant about any other crime without legal counsel present and without waiver.
• Note that the police may NOT seek to “deliberately elicit incriminating statements” from the defendant about the SAME offense without obtaining a waiver of the SIXTH Amendment right to counsel

Remember: The offense-specific rule only appies to the SIXTH Amendment right to counself; an accused’s FIFTH Amendment invocatin stops ALL questioning

Question 25

What is the difference between the 5^th Amendment right to counsel and the 6^th Amendment right to counsel?

Answer 25

5^th Amendment:
* Applies to all crimes, not offense-specific
* Only applies during custodial interrogations
* Must be invoked by a clear statement demanding counsel

6^th Amendment:
* Only applies to the crime charged,
* offense specific
* Applies to all critical stages of a proceeding
* Automatically invoked once criminal proceedings have begun

Question 26

What does it mean that the Sixth Amendment right to counsel is offense specific?

Answer 26

The Sixth Amendment righ to counsel is offense specific meaning that representation by counsel on one criminal matter does not guarantee counsel for other offenses. The defendant must make additional requests for counsel with each separate offense.

Question 27

Once formal proceedings have begun, can police elicit statements from D via a confidential informant without the presence of counsel?

Answer 27

No, police cannot deliberately induce statements from D about the crime charged without counsel present. Statements will be inadmissible. However, the police can question D about other charges, and they can place a microphone or informant in the cell to “listen” to D, as long as there is no deliberate elicitation of statements.

Question 28

What must D show to reverse a conviction on the basis of ineffective assistance of counsel?

Answer 28

D has the burden to prove that:
1. Counsel’s performance was deficient
2. but for the counsel’s error, the proceeding would have had a different outcome

Remember: Counsel’s performance is measured by an objective standard of reasonableness

Strickland v. Washington

Question 29

What are the two requirements of a valid waiver of one’s FIFTH Amendment right to counsel?

Answer 29

The FIFTH Amendment waiver of one’s right to counsel is valid if they are advised of the right they are relinquishing, and they COMPETENTLY waive the right:

1. intelligently; AND
2. voluntarily

Remember: An accused must rely on the FIFTH Amendment right to counsel during the pre-charge phase, whereas the SIXTH Amendment right to counsel applies AFTER charging.

Question 30

What is required for a detainee to properly invoke their FIFTH Amendment right to counsel?

Answer 30

A proper invocation of one’s Fifth Amendment irght to counsel requires:
1. an unambiguous request for counsel; AND
2. the invocation must be clear enough that a reasonable police officer would interpret it as a request to have counsel present

Question 31

What is the effect of a suspect invoking their Fifth Amendment right to counsel?

Answer 31

Upon a suspect’s clear and unambiguous request for counsel all questioning by the police must stop until the suspect is provided iwth an attorney or reinitiates questioning themselves.

Question 32

When can cops resume questioning after suspect invokes his Fifth Amendment right to counsel?

Answer 32

If the suspect has been released from the interrogation for at least fourteen days, the police may resume questioning on the same matter after re-mirandarizing the suspect

Remember: The suspect must be released from custody for interrogation purposes and returned to normal life for at least fourteen days. This may mean the supsect returned to prison if incarcerated at the time of the questioning (i.e., their form of normal life)