The Sixth Amendment Right to Counsel Flashcards
Right to counsel for any crime involving
actual confinement, both in state and
federal court (Gideon v. Wainwright, AL v. Shelton)
Right to counsel attaches at
at initial appearance (Rothgery v. Gillespie) and ends after first level appeal (Ross v. Moffitt)
Law enforcement can’t deliberately elicit information from you without an attorney
or waiver after
indictment and retention of counsel (Massiah v. US)
Waiver of counsel must be
knowingly, intelligent, and explicit (Brewer v. Williams)
When a suspect receives at attorney at arraignment, police cannot
initiate custodial interrogation without an attorney present (Michigan v. Jackson)
Right to Counsel generally
right to counsel for all felonies, both in federal and state Court
Right to Counsel for misdomeners
- determined by whether there’s actual imprisonment.
If yes, then right to counsel attached
Right to Counsel
When does right attach:
Initial appearance before magistrate
Right to Counsel
When does right end:
Have right in first level appeal, then ends (no right in discretionary appeal)
Right to counsel is offense
specific
wainright takeaway- everyone has a right to consel atleast in
felony cases
If there is jail time, you get
an attouney (assume felony unless says misdomener)
scott v. illinois
if potential jail time, but dont get jail time
you were nto entitled to an attounry
- know bwfore outsome? maybe plea deal
probated sentance
revoke probation and get jail time
misdomener with jail time probated
get attounry
Can they hold you without probable cause?
- they need to get you to hearing soon
- they need to make probable cause determination soon (the court)
Breaking Down Massiah:
When it applies:
- After adversarial proceedings have begun (See Gideon and Rothgery)
- Custodial interrogation doesn’t matter – it’s not Miranda
Breaking Down Massiah:
What it stands for:
After adversarial proceedings have begun, law enforcement cannot deliberately elicit incriminating statements from the accused
- Deliberate: look at subjective intent of the police officer
- Elicit: must be more then listening, must stimulate conversation or ask questions that amount to interrogation
Does not require accused to expressly assert his/her right to counse
Breaking Down Massiah:
The Scope
Offense specific – only applies to the offenses for which the accused has been charged/indicted/arraigned for
Breaking Down Massiah:
Waiver
Right to counsel under 6th Amendment (Massiah) may be waived by an accused so long as relinquishment of the right is voluntary, knowing, and intelligent.
- look to williams for knowingly and voluntarily
Rule Post-Brewer v. Williams
Once adversarial proceedings have commenced against an individual, he/she is entitled to the
assistance of counsel;
- LE may not deliberately elicit incriminating statements from him/her
Rule Post-Brewer v. Williams
Deliberately elicit
Deliberately elicit focuses on subjective intent of police officer.
Rule Post-Brewer v. Williams
Brewer versus Innes focus
- Deliberately elicit focuses on subjective intent of police officer.
- In Innis, focus is on whether the defendant would likely be
provoked to provide an incriminating response
Kuhlmann v. Wilson (1986)
Issue, Holding
Issue:
- Whether law enforcement violated Wilson’s sixth amendment right to counsel when they placed a police informant in his cell
Holding:
- No, law enforcement did not violate Wilson’s sixth amendment right to counsel because the police informant did not deliberately elicit incriminating statements from Wilson
- In order to prove a 6th Amendment violation here, “the defendant must demonstrate that the police and their informant took some action, beyond mere listening, that was designed deliberately to elicit incriminating remark”
- Informant/police need to take some action, whether it be stimulating conversation (Henry) or asking questions (Moulton) for
the police conduct to be an attempt to deliberately elicit an
incriminating statement
- Merely listening doesn’t constitute ‘deliberately elicit’
