Sixth Amendment Right to Counsel Flashcards
At what stages of the criminal process does the right to counsel attach?
After adversarial judicial proceedings have commenced
During all “critical stages” of the criminal process
What standards govern a waiver of the right to counsel?
knowingly, intelligently, and voluntarily
Does an indigent D have the right to appointed counsel of his own choice?
Ds should be afforded a fair opportunity to secure counsel of their own choice.
6th Amend right to counsel analysis
- Had adversarial criminal proceedings begin?
- Did D invoke the right or waive the right?
- Exceptions
- Remedies
Formal adversarial proceeings
indictment
arraignment
first court date
all the way through trial
To what kinds of cases does this right apply?
felonies
misdemeanor if D faces ANY imprisonment
In CA, in all misdemeanor cases too
Once right invoked, when may police question?
attorney present
voluntary waiver
if D goes to cops to talk
if cops are seeking a waiver AND, if in custody, cops Mirandize
effective/ valid waiver standard
knowingly, intelligently, volintarily
Burden to prove effective waiver
on the state to prove “an intentional relinquishment of a known right or privilege”
When may statements in violation of 6th amend be admitted at trial?
for impeachment, unless coerced
2 Exceptions to waiver requirement
- where police intentionally misrepresent that charges have not been filed, the statements must be suppressed
- A Miranda advisement and waiver of rights post-arraignment suffices to demonstrate a waiver of the 6th amendment right to counsel
When can secret agent confessions be admitted?
When they are passive agents
Passive agent
Did the informant ask questions or only listen to the suspects “spontaneous and unsolicited” statements”?
When are confessions made to secret agents NOT allowed
When agents actively seek to elicit statements
If agents created a situation “likely to induce” incriminating statements
difference between Miranda (5th amend right) and 6th amend
a. time right is triggered
b. custody status
c. how incriminating statement is elicited
d. crimes
e. when cops can question D after asserting right to counsel
f. undercover agents
time right is triggered (5th Amend)
during custodial interrogation
time right is triggered (6th Amend)
after formal charges have been brought
custody status (6th Amend)
anytime, whether in or out of custody
Custody status (5th Amend)
while in custody only
how incriminating statement is elicited (5th Amend)
negligence standard
how incriminating statement is elicited (6th Amend)
applies only when DELIBERATE elicitation from accused
crimes (5th Amend)
not crime specific
crimes (6th Amend)
crime specific
When can police ask D about other crimes after D has invoked 6th Amend right to counsel?
- if formal charges have not been brought
- if to elicit incriminating statements, must give second set of Miranda warnings
- 5th Amend rights MAY apply if D is in custody
