sixth amendment right to counsel Flashcards
what is the sixth amendment right to counsel?
In all criminal prosecutions, the accused shall enjoy the right ….to have the Assistance of Counsel for his defense.
what does the sixth amendment right to counsel guarantee
the right to the assistance of counsel in all criminal proceedings
= all critical stages of a prosecution after judicial proceedings have begun (for example, formal charges have been filed).
Prohibits the police from deliberately eliciting an incriminating statement from a defendant outside the presence of counsel after the defendant has been charged unless the defendant has waived their right to counsel.
when does sixth amendment right to counsel not apply?
before suspect is formally charged
so there is NOT a right to Sith amendment assistance of counsel upon arrest!
what does it mean to have a sixth amendment right to counsel
private counsel
or
appointed counsel for indigent defendants
stages at which you have a right to counsel under sixth amendment [critical stages]
- Post-indictment interrogation, whether or not custodial
- Preliminary hearings to determine probable cause to prosecute
- Arraignment
- Post-charge lineups
- Guilty plea and sentencing
- Felony trials
- Misdemeanor trials when imprisonment is actually imposed or when a suspended jail sentence is imposed
- Overnight recesses during trial
- Appeals as a matter of right
- Appeals of guilty pleas or nolo contendere pleas
- sentencing hearings
stages at which you DO NOT have right to counsel under sixth amendment [NOT critical stages]
- Blood sampling
- Taking of handwriting or voice exemplars
- Precharge or investigative lineups
- Photo identifications
- Preliminary hearings to determine probable cause to detain
- Brief recesses during the defendant’s testimony at trial
- Discretionary appeals, except please of guilt or nolo contendere
- Parole and probation revocation proceedings
- Post-conviction proceedings [habeas corpus]
is sixth amendment right to counsel offense specific?
compare to miranda right to invoke right to counsel’s presence during interrogation
sixth amendment right to counsel IS offense specific, so you can be questioned regarding unrelated, uncharged offenses without violating 6th amendment
[different offenses = each requires proof of a n additional element that the other crime does not]
BUT it might violate miranda because miranda’s 5th amendment right against compelled incrimination for counsel invocation IS NOT offense specific [once you invoke as to one offense, it counts for all offenses]
explain waiver of sixth amendment right to counsel
it may be waived if knowing and voluntary
the waiver does not need presence of counsel if counsel has not been requested but was appointed by the court
remedy for violating 6th Am right to counsel t nontrial proceedings and at trial
NONTRIAL [post-indictment and interrogations]
harmeless error rule applies
TRIAL
automatic reversal of conviction if not provided lawyer at trial when D was entitled to one — no need to show unfairness
erroneous disqualification of privately retained counsel at trial results in
automatic reversal
to what extent is a statement obtained in violation of sixth amendment right to counsel admissible?
NOT admissible in prosecutor’s case in chief
yes admissible if used to impeach D’s contrary trial testimony [like miranda violations]
if suspect is already represented by counsel, counsel shows up to see the D, but police do not let him see D, and then D waives right to counsel, what happens?
If a suspect is already represented by counsel, officers’ interference with counsel’s access to the client-suspect will render invalid the waiver of the Sixth Amendment right to counsel.
It will NOT invalidate the Miranda waiver, however
once right to counsel attaches what odd and tricky situations require counsel?
- The defendant has a right to counsel at questioning by an under- cover officer.
- The defendant has a right to counsel at questioning even if the defendant is not in custody.
- The police violate the right to counsel if they interfere with coun- sel contacting a client undergoing questioning.
is there a right to have an attorney present before giving testimony to a grand jury?
no
