Sixth Amendment Flashcards
What is the rule for an indigent’s right to counsel?
Right to appointment of counsel.
What is the rule for counsel of choice?
Right to chose, but court can deny (if not barred).
How is the right to counsel offense-specific?
Yes. Only applies to specific offense at issue in proceeding.
Blockburger Test
A+B and A+C are different.
A+B+C and A+B are the same offense.
Can the 6th Amendment’s right to counsel be waived?
Yes if voluntary, knowing and intelligent.
Once right is asserted for counsel, right not waived until counsel is present.
What are the remedies for denial of counsel?
Conviction reversed automatically.
Guilty plea-preliminary-right to withdraw.
Exclusionary Rule
- Fruits of the poisonous tree.
- Impeachment use is still allowed.
What are the duties of defense counsel?
If joint representation representation, risk of conflict of interest, judge must warn, get affirmative waiver, and then counsel can represent.
Effective assistance - 2 prongs
- Performance: did it fall below reasonable performance?
- Prejudice (different result)
Note:Guilty please - pleaded differently.
When is there ineffective assistance of counsel?
Claimant has burden to show
- Counsel’s representation fell blow objective standard of reasonableness; AND
- Prejudice to defendant, resulting n the reasonable probability that the outcome would have been different.
Actual conflict of Interest
Must communicate plea offers.
What is the Bruton doctrine?
A defendant’s own statements are always admissible against him. Even if defendant does not testify.
If there are co-defendants, a non-testifying co-defendants statements are not admissible against the other defendant.
What is the Crawford doctrine?
If a statement is testimonial, then Sixth Amendment bars admission of it if;
- Declarant is unavailable; AND
- the defendant had no prior opportunity to cross-examine.
What are the applicable stages for the 6th Amendment’s right to counsel?
Critical stages - automatically attaches once formal proceedings begin.
- Post-indictment lineup and in person observations.
- Post-indictment interrogations
- Arraignment
- Pleas bargains
Non-Critical
- Witness viewing photos
- Pre-Indictment lineups
- Fingerprints
- Parole and probation hearings.
What is the rule for impermissibly suggestive identification procedures?
Two-Prong Test
- Defendant must demonstrate that the procedure was impermissibly suggestive and that there was a substantial likelihood of misidentification.
- Prosecution can offer evidence that is nonetheless is reliable.
What are the two types of eyewitness identification procedures?
Corporeal (in person)
NonCorporeal (not in person)
How does the right to counsel interact with post-indictment identifications?
Defendant is entitled to have counsel present. Can be waived if knowingly and voluntary.
There is no right to counsel during an identification through photo array.
What is the rule for 6th Amendment right to jury?
Jury trial for all serious offenses, for which the authorized punishment is more than 6 months.
What is the rule for jury size?
State and Federal = Must be unanimous
Federal = 12
State = at least 6.
