12. Sixth Amendment, Right to Counsel

Question 1

6th Amendment Right to Counsel

Answer 1

Once 6th Amendment right to counsel attaches, police may not elicit incriminating statements outside the presence of D’s counsel

♣ Police can question D about any other crime without violating D’s 6th Amendment rights

Question 2

5th vs. 6th Amend. Right to counsel

Answer 2

♣ 5th
• Not automatic: accused must invoke the right by unambiguously requesting presence of counsel
• Not offense specific: once invoked police must stop questioning on all subjects

♣ 6th
• Automatic: attaches once charges have been filed and at all subsequent stages
• Offense-specific: police can question D about any other crime

Question 3

Pretrial Lineups & Show-ups

Answer 3

o Right to counsel
♣ A suspect has a right to counsel at any post-charge, in person lineup or showup
• Does not apply to non-live identification procedures (e.g. photographic lineups, fingerprinting)
o Lineup: witness is shown several possible suspects
o Showups: witness is asked to identify a single suspect

o Due process considerations
♣ D can attack pretrial identification procedures as a denial of due process rights if:
• 1. Identification is unnecessarily suggestive and
• 2. There is a substantial likelihood of misidentification
o determined under the totality of the circumstances
o Tough standard; must be extremely suggestive

o Remedy for violations
♣ D may move to suppress any subsequent in-trial identification made by the witness
• (remedy for a violation is rare because government can often prove the identifying witness has an independent source of identification to overcome the exclusionary rule.