SIXTH AMENDMENT RIGHT TO COUNSEL

Question 1

SIXTH AMENDMENT RIGHT TO COUNSEL

Answer 1

The Sixth Amendment provides that the accused shall have the right to a jury trial, the right to a public trial, the right to confront witnesses against him, the right to cross-examine witnesses, the right to be present at his own trial, and the right to “the assistance of counsel for his defense.” The right to assistance of counsel encompasses not only the right to hire private counsel, but also the right to be provided with counsel without charge if the accused is unable to afford counsel.

Applicability: Right to Counsel

1. Types of Proceedings

The Sixth Amendment provides a constitutional right to counsel in any case in which the defendant is sentenced to incarceration, even if that sentence is suspended. Scott v. Illinois, 440 U.S. 367 (1979); Alabama v. Shelton, 535 U.S. 654 (2002).

2. Applicable Stages

The Sixth Amendment right to counsel applies at all critical stages of a prosecution, after formal proceedings have begun. The right automatically attaches when formal judicial proceedings have begun, whether that be at a post-arrest initial appearance before a judicial officer, or by way of formal charge, preliminary hearing, indictment, information, or arraignment. There is no right to counsel at post-conviction proceedings such as parole and probation hearings or habeas corpus hearings. For a discussion of a defendant’s right to counsel on an appeal (see § VI.B. Appeal, infra).

EXAM NOTE: Unlike the Fifth Amendment right to counsel, the defendant does not need to invoke the Sixth Amendment right to counsel. The failure to provide counsel at trial results in automatic reversal of a conviction.

a. Critical stages

The Supreme Court has summarized its definition of “critical stage” as those proceedings between an individual and an agent of the state that amount to trial-like confrontations, at which counsel would help the accused in coping with legal problems or meeting his adversary. Rothgery v. Gillespie County, 554 U.S. 191, 212 (2008).

Generally, there is a Sixth Amendment right to counsel at the following 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. Douglas v. California, 372 U.S. 353 (1963).

b. Noncritical stages

The right to counsel generally does not apply to the following events:

i) A witness viewing photos of the alleged defendant;
ii) Pre-charge (investigative) lineups;
iii) Taking of fingerprints, handwriting exemplars, voice exemplars, or blood samples;
iv) Hearings to determine probable cause to detain the defendant (Gerstein hearing);
v) Discretionary appeals; and
vi) Post-conviction proceedings, such as parole or probation hearings, including habeas corpus. (The Sixth Amendment does apply, however, to probation revocation hearings that include sentencing.)
3. Indigence—Right to Appointment of Counsel

When the right to counsel exists, an indigent defendant has the right to the appointment of counsel. Johnson v. Zerbst, 304 U.S. 458 (1938) (federal trial); Gideon v. Wainwright, 372 U.S. 335 (1963) (state trial, Sixth Amendment right to counsel incorporated by Due Process Clause of the Fourteenth Amendment).

4. Right to Counsel of Choice

In general, a defendant who is able to afford a lawyer is entitled to the counsel of his own choosing, while an indigent defendant is not entitled to the appointment of counsel of his own choosing. United States v. Gonzalez-Lopez, 548 U.S. 140, 147–148 (2006) (defendant who retains his own counsel has the right to be represented by that attorney); Wheat v. United States, 486 U.S. 153, 159 (1988) (indigent defendant has right to an effective advocate, not to an attorney preferred by defendant). However, a defendant cannot compel a lawyer to represent him even if the defendant has the ability to pay the lawyer. Id. In addition, the court can deny a defendant his chosen counsel when the lawyer is not a member of the bar or is otherwise disqualified from representing the defendant. Id. (person who is not a member of the bar may not represent anyone but himself; court may disqualify a lawyer who has a serious conflict of interest).

5. Waiver
   a. In general

The Sixth Amendment right to counsel can be waived so long as relinquishment of the right is voluntary, knowing, and intelligent. Patterson v. Illinois, 487 U.S. 285 (1988); Brewer v. Williams, 430 U.S. 387 (1977).

Even though Miranda rights purportedly arise from the Fifth Amendment, 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. Patterson v. Illinois, 487 U.S. 285 (1988).

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.

b. Subsequent waivers pursuant to Edwards and Montejo

Recall that in the Fifth Amendment context, once an individual in custody asserts the Fifth Amendment right to counsel, no subsequent waiver of that right is valid in a police-initiated custodial interrogation unless counsel is present. Edwards v. Arizona, 451 U.S. 477 (1981). Under the Edwards rule, any subsequent waiver of the Fifth Amendment right to counsel under these circumstances is presumed to be involuntary. McNeil v. Wisconsin, 501 U.S. 171 (1991).

A similar presumption used to apply in the Sixth Amendment context, but has been overturned. See Michigan v. Jackson, 475 U.S. 625 (1986) (overturned by Montejo v. Louisiana, 556 U.S. 778 (2009)). Therefore, if an accused has not actually asserted his right to counsel (e.g., if the court automatically appoints counsel to the accused before trial), there is no presumption that any subsequent waiver of the right to counsel will be involuntary. Montejo v. Louisiana, 556 U.S. 778 (2009). The Edwards rule will still apply if the accused has actually asserted his right to counsel, but remember that the Edwards rule only applies in custodial interactions. See Edwards v. Arizona, 451 U.S. 477 (1981). Therefore, even after Sixth Amendment rights attach, the police may initiate non-custodial interactions with the accused outside the presence of his lawyer, and there will be no presumption that any knowing waiver of the right to have counsel present for the interaction is involuntary. Montejo v. Louisiana, 556 U.S. 778 (2009).

c. Right to proceed pro se

A defendant has the constitutional right to refuse counsel and proceed pro se at trial. The waiver of the right to counsel must be knowingly and intelligently made. To that end, the court should make the defendant aware of the dangers and disadvantages of self-representation, such as the inability to raise an “ineffective assistance of counsel” defense on appeal. Faretta v. California, 422 U.S. 806 (1975). In addition, the court may, even over the defendant’s objection, “appoint a ‘standby counsel,’ to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant’s self-representation is necessary.” Id. at 834, fn 46. A defendant who is competent to stand trial may nevertheless be found incompetent to represent himself. Indiana v. Edwards, 554 U.S. 164 (2009).

6. Withholding Information

The police are under no obligation to inform a suspect that an attorney has been trying to reach him, and may even withhold that information intentionally, so long as the Sixth Amendment right to counsel has not yet attached. Moran v. Burbine, 475 U.S. 412 (1986). If the Sixth Amendment right has attached, this sort of interference with the attorney-client relationship might be a violation of that right.

Question 2

Offense-Specific

Answer 2

Once the Sixth Amendment right to counsel is properly invoked, it applies only to the specific offense at issue in those proceedings. McNeil v. Wisconsin, 501 U.S. 171, 175–176 (1991).

1. 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. Texas v. Cobb, 532 U.S. 162 (2001); Blockburger v. United States, 284 U.S. 299, 304 (1932).

2. Compare to Miranda

Unlike under the Miranda standard, under the Sixth Amendment standard, the requirement for counsel to be present applies only to interrogations about the offense charged. However, like with Miranda, the defendant may make a knowing and voluntary waiver of the right to counsel being present.

Example: Defendant Dave has been charged with burglary and is out on bail awaiting trial. The police also suspect Dave in an unrelated arson case, and they bring him to the police station to question him about the arson. Dave is given the Miranda warnings and waives his right to remain silent, but he asks to see his attorney. The police do not call Dave’s attorney but continue to interrogate Dave until he confesses to the arson. While the police did violate Dave’s Fifth Amendment right to have an attorney present during questioning, they did not violate his Sixth Amendment right to counsel, as the arson was unrelated to the burglary, and he hadn’t been charged with the arson.

Moreover, the focus in determining whether there has been a violation of a defendant’s Sixth Amendment right to counsel is on purposeful police conduct—whether the police have tried to deliberately elicit the incriminating statement from the defendant. Fellers v. United States, 540 U.S. 519 (2004). In contrast, there may be a violation of a defendant’s Fifth Amendment right to counsel if the police know or should know their conduct is reasonably likely to elicit an incriminating response.

Question 3

Remedies for Denial of Counsel

Answer 3

1. Effect on Conviction

If a right to counsel at a trial proceeding under the Sixth Amendment is denied, the defendant’s conviction should be automatically reversed, even without a specific showing of unfairness. Gideon v. Wainwright, 372 U.S. 335, 339 (1963). Automatic reversal also applies to a conviction obtained after a court has erroneously refused to permit an attorney chosen by the defendant to represent him, when that attorney is not supplied by the state. United States v. Gonzalez-Lopez, 548 U.S. 140 (2006).

2. Effect on Guilty Plea

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. White v. Maryland, 373 U.S. 59, 60 (1963).

3. Effect on Denial of Counsel at Nontrial Proceedings

A denial of counsel at a nontrial proceeding, such as a lineup, is subject to harmless-error analysis. United States v. Wade, 388 U.S. 218, 223 (1967).

4. Admissibility of a Defendant’s Statements to Informants

Post-indictment statements that a defendant makes to a police informant are inadmissible when the police intentionally create a situation likely to induce the defendant into making incriminating statements about the crime for which he was indicted without the assistance of counsel. United States v. Henry, 447 U.S. 264, 274–275 (1980). There is no Sixth Amendment violation, however, if the police place an informant in the defendant’s cell simply to listen and report the defendant’s statements, without questioning the defendant. Kuhlmann v. Wilson, 477 U.S. 436, 456 (1986).

5. Exclusionary Rule Under the Sixth Amendment
   a. Fruits doctrine

The fruit of the poisonous tree doctrine is applicable to violations of the Sixth Amendment right to counsel. Nix v. Williams, 467 U.S. 431 (1984). Both statements and physical evidence obtained as a result of a Sixth Amendment violation are inadmissible.

b. Impeachment

If the police initiate a conversation with an accused individual who has requested counsel, any incriminating statements made by the defendant may still be used for impeachment purposes, despite the fact that the improper police conduct precludes admission of the statements as part of the prosecution’s case in chief. Michigan v. Harvey, 494 U.S. 344, 350–351 (1990).

Question 4

Ineffective Assistance of Counsel

Answer 4

1. Standard of Competence

The right to counsel encompasses the right to be assisted by a reasonably competent attorney and is presumed. The right to effective counsel extends to the defendant’s first appeal. To reverse a conviction on the ground of ineffective counsel, the claimant has the burden to show that:

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.

Strickland v. Washington, 466 U.S. 668, 687 (1984). 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. Bell v. Cone, 535 U.S. 685 (2002); Jones v. Barnes, 463 U.S. 745 (1988); United States v. Cronic, 466 U.S. 648 (1984). The failure of defense counsel to raise a federal constitutional issue that was law at the time of the trial, but was later overruled, does not constitute ineffective assistance of counsel. Lockhart v. Fretwell, 506 U.S. 364 (1993).

a. Appeal

Although there is no constitutional right to appeal, when a lawyer’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued, prejudice to the defendant is presumed with no further showing from the defendant of the merits of his underlying claims. Roe v. Flores-Ortega, 528 U. S. 470, 484 (2000). This presumption exists even when the defendant, as part of a guilty plea, has signed a waiver of his right to appeal. Garza v. Idaho, 139 S. Ct. 738, 742 (2019).

2. Conflict of Interest

The representation of defendants with conflicting interests may amount to ineffective assistance of counsel. 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.

a. Actual conflict

To find an actual conflict, a court must determine that the defense attorney is subject to an obligation or unique personal interest that, if followed, would lead her to adopt a strategy other than that most favorable to the defendant.

b. Adverse impact

Adverse impact can be established by demonstrating that some plausible alternative defense strategy or tactic might have been pursued and such strategy or tactic was inherently in conflict with, or not undertaken, due to the attorney’s other loyalties or interests. The conflicting character of the strategy is not sufficient if the strategy actually was rejected because another strategy was viewed as even more favorable to the accused.

c. Knowledge of the court

If an attorney representing codefendants makes a timely motion for appointment of separate counsel based on a potential conflict of interest, then the trial judge must either grant the motion or at least conduct a hearing to determine whether appointment of separate counsel is warranted under the circumstances. Failure of the judge to do so requires automatic reversal of a subsequent conviction. Holloway v. Arkansas, 435 U.S. 475, 484 (1978). Actual conflict and prejudice are presumed under such circumstances.

Unless the trial court knows or reasonably should know that a conflict exists, however, the court is not required to inquire about multiple representations. Cuyler v. Sullivan, 446 U.S. 335, 347–348 (1980). Actual conflict (rather than potential conflict) is required to be shown on appeal if the issue of separate trials was not brought up during the trial, and the defendant must show that the conflict adversely affected counsel’s performance. Mickens v. Taylor, 535 U.S. 162, 173 (2002).

d. Rule 44(c)

When co-defendants are represented by the same attorney, Rule 44(c) of the Federal Rules of Criminal Procedure requires the court to conduct a prompt inquiry into potential conflicts of interest and advise the defendants of the right to separate representation. Failure to comply with the Rule, though, will not constitute a per se reversible error, and an appellate court will likely ask whether the end result was representation by counsel under an actual conflict.

e. Disqualification despite waiver

A trial court has the authority to disqualify a defense attorney, even over the objection of the defendant, if the court concludes that there is serious potential of a conflict of interest. Wheat v. United States, 486 U.S. 153, 158–159 (1988).

3. Communication of Formal Plea Offer

The right to effective assistance of counsel extends to the plea bargaining stage. Defense counsel must accurately communicate to the defendant any formal offer from the prosecution to accept a plea on terms and conditions that may be favorable to the defendant. 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 reasonable probability that she would have accepted the plea offer had it been accurately communicated by defense counsel. A defendant must also demonstrate 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. Missouri v. Frye, 566 U.S. 134 (2012). Ineffective assistance of counsel at the plea bargaining stage may constitute reversible error even if the subsequent trial and conviction are fair. Lafler v. Cooper, 566 U.S. 156 (2012).