6th Amendment

Question 1

Sixth Amendment

Answer 1

D has Sixth Amendment right to counsel at all critical stages of criminal prosecution, after formal proceedings have begun.
* Right violated if police deliberately elicits incriminating statement from D WITHOUT obtaining knowing and voluntary waiver of D’s right to counsel.

Question 2

Informant - 6th Amendment

Answer 2

Unlike Fifth Amendment, Sixth Amendment is violated when police informant deliberately elicits statements from D after D has been indicted
* If informant acts as a “listening post” it’s OK but informant cannot take any action beyond mere listening

Question 3

Confrontation Clause

Answer 3

Sixth Amendment grants D right to confront adverse witnesses in criminal proceeding.

Joint Defendants: If one D made confession that implicates other D, right to confrontation prohibits use of confession UNLESS:
* All portions referring to D has been removed
* Confessing D takes stand and is subject to cross-examination
* Confession is used to rebut D’s claim that his own confession was obtained coerceively

Question 4

Post-Charge Lineup

Answer 4

Post-charge lineup is critical stage of criminal prosecution and right to counsel attaches.
* Sixth Amendment: If counsel not present, Sixth Amendment violated
* Due Process Clause: If lineup procedure (identification process) was unnecessarily suggestive and there was substantial likelihood of MISidentification, DP clause violated (identification must have been extremely suggestive)

Independent Source
* Even if lineup was illegal, if witness’s in-court identification has independent source, witness can still make in-court identification.
* Factors: witness’s opportunity to observe D at time of crime, how easily witness can identify D, and existence of any prior misidentifications

Question 5

Jury Trial

Answer 5

Right to criminal jury trial for serious offenses involving imprisonment of 6+ months
* Right to at least 6 jurors
* Peremptory challenges based on gender/race violates equal protection