Sixth Amendment Right to Counsel

Question 1

At what stages of the criminal process does the right to counsel attach?

Answer 1

After adversarial judicial proceedings have commenced

During all “critical stages” of the criminal process

Question 2

What standards govern a waiver of the right to counsel?

Answer 2

knowingly, intelligently, and voluntarily

Question 3

Does an indigent D have the right to appointed counsel of his own choice?

Answer 3

Ds should be afforded a fair opportunity to secure counsel of their own choice.

Question 4

6th Amend right to counsel analysis

Answer 4

1. Had adversarial criminal proceedings begin?
2. Did D invoke the right or waive the right?
3. Exceptions
4. Remedies

Question 5

Formal adversarial proceeings

Answer 5

indictment
arraignment
first court date
all the way through trial

Question 6

To what kinds of cases does this right apply?

Answer 6

felonies
misdemeanor if D faces ANY imprisonment

In CA, in all misdemeanor cases too

Question 7

Once right invoked, when may police question?

Answer 7

attorney present
voluntary waiver
if D goes to cops to talk
if cops are seeking a waiver AND, if in custody, cops Mirandize

Question 8

effective/ valid waiver standard

Answer 8

knowingly, intelligently, volintarily

Question 9

Burden to prove effective waiver

Answer 9

on the state to prove “an intentional relinquishment of a known right or privilege”

Question 10

When may statements in violation of 6th amend be admitted at trial?

Answer 10

for impeachment, unless coerced

Question 11

2 Exceptions to waiver requirement

Answer 11

1. where police intentionally misrepresent that charges have not been filed, the statements must be suppressed
2. A Miranda advisement and waiver of rights post-arraignment suffices to demonstrate a waiver of the 6th amendment right to counsel

Question 12

When can secret agent confessions be admitted?

Answer 12

When they are passive agents

Question 13

Passive agent

Answer 13

Did the informant ask questions or only listen to the suspects “spontaneous and unsolicited” statements”?

Question 14

When are confessions made to secret agents NOT allowed

Answer 14

When agents actively seek to elicit statements

If agents created a situation “likely to induce” incriminating statements

Question 15

difference between Miranda (5th amend right) and 6th amend

Answer 15

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

Question 16

time right is triggered (5th Amend)

Answer 16

during custodial interrogation

Question 17

time right is triggered (6th Amend)

Answer 17

after formal charges have been brought

Question 18

custody status (6th Amend)

Answer 18

anytime, whether in or out of custody

Question 19

Custody status (5th Amend)

Answer 19

while in custody only

Question 20

how incriminating statement is elicited (5th Amend)

Answer 20

negligence standard

Question 21

how incriminating statement is elicited (6th Amend)

Answer 21

applies only when DELIBERATE elicitation from accused

Question 22

crimes (5th Amend)

Answer 22

not crime specific

Question 23

crimes (6th Amend)

Answer 23

crime specific

Question 24

When can police ask D about other crimes after D has invoked 6th Amend right to counsel?

Answer 24

1. if formal charges have not been brought
2. if to elicit incriminating statements, must give second set of Miranda warnings
3. 5th Amend rights MAY apply if D is in custody

Question 25

When can cops question D after asserting 5th Amend right to counsel?

Answer 25

Can’t unless 14 days have passed AND reMirandized

Question 26

When can cops question D after asserting 6th Amend right to counsel?

Answer 26

Can, if about unrelated crime

Question 27

undercover agent (5th amend)

Answer 27

if deliberate eliciting statement from D, Miranda waiver is needed

Question 28

undercover agent (6th amend)

Answer 28

waiver never needed