Sixth Amendment Flashcards
Generally, there is a Sixth Amendment right to counsel at which “critical stages”?
i) Post-indictment lineups and in-person identifications;
ii) Post-indictment interrogations, whether custodial or otherwise;
iii) Arraignment and preliminary hearing to determine probable cause to prosecute, bail hearings, and pre-trial motions; and
iv) Plea bargaining, guilty pleas, trials, and sentencing.
Note that direct appeals as a matter of right, while not protected by the Sixth Amendment, do require that the state provide counsel to the indigent on equal protection grounds.
NOT probable cause hearings.
Can the Sixth Amendment right to counsel be waived?
Yes, so long as relinquishment of the right is voluntary, knowing, and intelligent.
An accused who receives proper Miranda warnings will be considered sufficiently apprised of his Sixth Amendment rights and the consequences of abandoning those rights. As long as the defendant is given Miranda warnings and voluntarily waives those rights, the defendant’s waiver of his Sixth Amendment rights will also be considered knowing and intelligent.
EXAM NOTE: Remember, even if the defendant has made a valid waiver of his right to counsel, statements made during interrogation must be voluntary to be admissible at trial, i.e., the police still cannot use compelled statements.
To which offenses does the Sixth Amendment right to counsel apply?
Once the Sixth Amendment right to counsel is properly invoked, it applies only to the specific offense at issue in those proceedings (i.e. the police can question you about unrelated offenses for which you have not been charged). This is different from the Miranda standard.
Blockburger Test: Two crimes committed in one criminal transaction are deemed to be the same offense for Sixth Amendment purposes unless each offense requires proof of an element that the other does not.
How does the examination of the police’s conduct differ under the Sixth Amendment versus Fifth Amendment right to counsel?
Sixth Amendment violation: The focus is on purposeful police conduct—whether the police have tried to deliberately elicit the incriminating statement from the defendant.
Fifth Amendment violation: May be a violation if the police know or should know their conduct is reasonably likely to elicit an incriminating response.
How does the denial of the Sixth Amendment right to counsel at a trial proceeding affect a conviction?
The defendant’s conviction should be automatically reversed, even without a specific showing of unfairness.
What happens if the defendant has pleaded guilty at a preliminary hearing, without being given the opportunity to have counsel?
Then the defendant has the right to withdraw the plea, and it may not be used against the defendant as an evidentiary admission.
What happens if there is a denial of counsel at a nontrial proceeding, such as a lineup?
The denial is subject to harmless-error analysis.
Is the fruit of the poisonous tree doctrine applicable to violations of the Sixth Amendment right to counsel?
Yes. Both statements and physical evidence obtained as a result of a Sixth Amendment violation are inadmissible.
If the police initiate a conversation with an accused individual who has requested counsel, may any incriminating statements made by the defendant be used for impeachment purposes?
Yes, despite the fact that the improper police conduct precludes admission of the statements as part of the prosecution’s case in chief.
To reverse a conviction on the ground of ineffective counsel, the claimant has the burden to show what?
i) Counsel’s representation fell below an objective standard of reasonableness; and
ii) Counsel’s deficient performance prejudiced the defendant, resulting in the reasonable probability that the outcome would have been different.
Counsel’s mere inexperience, strategy, choice of appellate issues, or even failure to produce mitigating evidence have all been found insufficient to rise to the level of ineffective counsel.
If the defendant moves to suppress evidence that a witness picked the defendant out of a lineup (during which counsel was not present?), the court will ___.
consider whether the lineup was impermissibly suggestive, and if so, exclude the testimony
In general, to overturn a conviction on the basis of a conflict of interest, a defendant must show that ___.
there was an actual conflict of interest and that such conflict adversely affected the attorney’s performance
–The conflicting character of a plausible alternative defense strategy is not sufficient if the strategy actually was rejected because another strategy was viewed as even more favorable to the accused.
To show prejudice once a plea offer has lapsed or has been rejected because defense counsel failed to accurately communicate the offer, a defendant must demonstrate ___.
a) a reasonable probability that she would have accepted the plea offer had it been accurately communicated by defense counsel; and
b) a reasonable probability that the prosecutor and trial court would have accepted the plea if they had the discretion to reject it under state law
