Ch 3: Sixth Amendment Right to Counsel

Question 1

What does the Sixth Amendment provide regarding the right to counsel?

Answer 1

The right to assistance of counsel for defense, which includes the right to hire private counsel or be provided with counsel without charge if unable to afford one.

Question 2

In what types of proceedings does the Sixth Amendment provide a right to counsel?

Answer 2

In any case where the defendant is sentenced to incarceration, even if that sentence is suspended.

Question 3

At what stages does the Sixth Amendment right to counsel apply?

Answer 3

At all critical stages of a prosecution after formal proceedings have begun.

Question 4

What are considered ‘critical stages’ where the right to counsel applies?

Answer 4

• Post-indictment lineups and identifications
• Post-indictment interrogations
• Arraignments and preliminary hearings
• Plea bargaining, guilty pleas, trials, and sentencing

Question 5

True or False: There is a right to counsel at post-conviction proceedings.

Answer 5

False

Question 6

What is the Supreme Court’s definition of a ‘critical stage’?

Answer 6

Proceedings that amount to trial-like confrontations where counsel would help the accused cope with legal problems.

Question 7

What are some examples of noncritical stages where the right to counsel does not apply?

Answer 7

• Witness viewing photos of the defendant
• Pre-charge lineups
• Scientific analysis of fingerprints
• Gerstein hearings
• Discretionary appeals
• Post-conviction proceedings

Question 8

What is the right of an indigent defendant regarding counsel?

Answer 8

An indigent defendant has the right to the appointment of counsel when the right to counsel exists.

Question 9

Can a defendant choose their counsel?

Answer 9

A defendant who can afford a lawyer is entitled to choose their counsel; an indigent defendant is not entitled to choose.

Question 10

What is required for a waiver of the Sixth Amendment right to counsel?

Answer 10

The waiver must be voluntary, knowing, and intelligent.

Question 11

What happens if a defendant waives their right to counsel during interrogation?

Answer 11

Statements made during interrogation must still be voluntary to be admissible at trial.

Question 12

What is the ‘Edwards rule’ in the context of the Sixth Amendment?

Answer 12

Once an individual asserts their right to counsel, any subsequent waiver is presumed involuntary unless counsel is present.

Question 13

What is the constitutional right regarding self-representation?

Answer 13

A defendant has the right to refuse counsel and proceed pro se, but must be made aware of the dangers of self-representation.

Question 14

What is the police’s obligation regarding communication with a suspect’s attorney?

Answer 14

The police are under no obligation to inform a suspect that an attorney is trying to reach them before the Sixth Amendment right to counsel has attached.

Question 15

What does the Blockburger test determine?

Answer 15

Whether two crimes are deemed the same offense for Sixth Amendment purposes based on required proof of elements.

Question 16

What is the effect on a conviction if the right to counsel at trial is denied?

Answer 16

The conviction should be automatically reversed.

Question 17

What is the effect on a guilty plea if the defendant was not given the opportunity to have counsel?

Answer 17

The defendant has the right to withdraw the plea, and it may not be used against them.

Question 18

What is the ‘fruit of the poisonous tree’ doctrine?

Answer 18

It applies to violations of the Sixth Amendment right to counsel, making statements and evidence obtained inadmissible.

Question 19

What is the standard of competence for effective assistance of counsel?

Answer 19

Counsel’s representation must meet an objective standard of reasonableness and must not prejudice the defendant.

Question 20

True or False: The right to effective counsel extends to a defendant’s first appeal.

Answer 20

True

Question 21

What must a claimant show to reverse a conviction on the ground of ineffective counsel?

Answer 21

• Counsel’s representation was below an objective standard of reasonableness
• Counsel’s deficient performance prejudiced the defendant

Question 22

What does a defendant’s waiver of the right to counsel entail?

Answer 22

The waiver must be made knowingly and intelligently, with the defendant aware of the consequences.

Question 23

What is the implication if a defendant makes an incriminating statement to a police informant?

Answer 23

Such statements are inadmissible if the police intentionally created a situation likely to induce incriminating statements without counsel.

Question 24

What does a court do if a defendant is competent to stand trial but not to represent themselves?

Answer 24

The court may appoint standby counsel to assist the defendant.

Question 25

What is the standard for determining ineffective assistance of counsel?

Answer 25

Counsel’s deficient performance prejudiced the defendant, resulting in a reasonable probability that the outcome would have been different ## Footnote This is based on the Strickland v. Washington test, which requires both deficient performance and prejudice to the defendant.

Question 26

What factors are insufficient to establish ineffective counsel?

Answer 26

Counsel's mere inexperience, strategy, choice of appellate issues, or failure to produce mitigating evidence ## Footnote These factors do not rise to the level of ineffective counsel.

Question 27

Does failure to raise a federal constitutional issue that was later overruled constitute ineffective assistance of counsel?

Answer 27

No ## Footnote The failure does not constitute ineffective assistance if the issue was law at the time of the trial.

Question 28

What is presumed when a lawyer's deficient performance costs a defendant an appeal?

Answer 28

Prejudice to the defendant is presumed ## Footnote This presumption exists even if the defendant signed a waiver of the right to appeal.

Question 29

What must a lawyer inform their client regarding a plea that carries the risk of deportation?

Answer 29

A lawyer must inform her client about the risk of deportation ## Footnote Failure to do so falls below an objective standard of reasonableness.

Question 30

What must a defendant show to demonstrate prejudice due to deficient performance regarding deportation risks?

Answer 30

There is a reasonable probability that the defendant would have rejected the plea offer ## Footnote This is part of the second prong of the Strickland v. Washington test.

Question 31

What must a defendant show to overturn a conviction based on conflict of interest?

Answer 31

An actual conflict of interest that adversely affected the attorney’s performance ## Footnote An actual conflict means the attorney had an obligation or personal interest leading to a strategy that was not favorable to the defendant.

Question 32

How can adverse impact from a conflict of interest be established?

Answer 32

By demonstrating that a plausible alternative defense strategy was not pursued due to the attorney’s other loyalties ## Footnote The conflicting strategy must be inherently in conflict with the adopted strategy.

Question 33

What must a trial judge do if a conflict of interest is raised by an attorney representing codefendants?

Answer 33

Grant the motion for separate counsel or conduct a hearing to determine if separate counsel is warranted ## Footnote Failure to do so requires automatic reversal of a subsequent conviction.

Question 34

What is Rule 44(c) of the Federal Rules of Criminal Procedure concerned with?

Answer 34

It requires the court to conduct a prompt inquiry into potential conflicts of interest and advise defendants of their right to separate representation ## Footnote Non-compliance does not constitute a per se reversible error.

Question 35

Can a trial court disqualify a defense attorney despite the defendant's objection?

Answer 35

Yes, if there is a serious potential for a conflict of interest ## Footnote The court has the authority to disqualify counsel even over the defendant’s objection.

Question 36

What is required of defense counsel during the plea-bargaining stage?

Answer 36

Accurately communicate any formal offer from the prosecution to the defendant ## Footnote This includes terms and conditions that may be favorable to the defendant.

Question 37

What must a defendant demonstrate if a plea offer has lapsed due to inaccurate communication?

Answer 37

A reasonable probability that she would have accepted the plea offer had it been accurately communicated ## Footnote Additionally, the defendant must show that the prosecutor and trial court would have accepted the plea.

Question 38

Can ineffective assistance of counsel during plea-bargaining be grounds for reversible error?

Answer 38

Yes, even if the subsequent trial and conviction are fair ## Footnote This is based on the precedent set in cases like Missouri v. Frye and Lafler v. Cooper.

Question 39

What rights does the Sixth Amendment encompass?

Answer 39

A defendant's right to a jury, to a public trial, to confront witnesses, to be present at the trial, and to the assistance of counsel.

Question 40

When does the Sixth Amendment right to counsel automatically attach?

Answer 40

When formal judicial proceedings have begun in any case in which actual or suspended incarceration is imposed.

Question 41

What are considered critical stages of prosecution under the Sixth Amendment?

Answer 41

* Post-indictment lineups * In-person identifications * Interrogations * Arraignments * Preliminary hearings * Bail hearings * Pretrial motions * Plea negotiations and hearings * Trial and sentencing

Question 42

What are noncritical stages where the Sixth Amendment right to counsel does not apply?

Answer 42

* Pre-charge lineups * Photo-array identifications * Fingerprinting * Handwriting and voice exemplars * Blood samples * Initial appearances * Hearings to determine probable cause * Discretionary appeals * Post-conviction proceedings

Question 43

Are a defendant's post-indictment statements to an informant admissible?

Answer 43

No, if the situation was likely to induce the defendant to incriminate himself without counsel.

Question 44

What is the Blockburger test?

Answer 44

It determines whether two crimes committed in one criminal transaction are considered the same offense unless each offense requires proof of an element that the other does not.

Question 45

What is required for a waiver of the right to counsel?

Answer 45

It must be voluntary, knowing, and intelligent.

Question 46

What does a Miranda warning provide in terms of the Sixth Amendment?

Answer 46

It sufficiently apprises a person of her Sixth Amendment rights and the consequences of waiving those rights.

Question 47

What happens if the accused has asserted the right to counsel?

Answer 47

Subsequent waivers are presumed involuntary in a custodial setting.

Question 48

What are the distinct offenses in the context of the Sixth Amendment?

Answer 48

* Robbery * Larceny * Arson

Question 49

What is the effect on a conviction if a defendant is denied counsel?

Answer 49

The conviction will be automatically reversed.

Question 50

What happens if a defendant denied counsel enters a guilty plea?

Answer 50

The defendant has the right to withdraw the plea, which cannot be used against them as an admission.

Question 51

What is the exclusionary rule in the context of the Sixth Amendment?

Answer 51

The 'fruit of the poisonous tree' doctrine applies to exclude any statements or physical evidence obtained as a result of a Sixth Amendment violation.

Question 52

When does the Fifth Amendment right to counsel apply?

Answer 52

When a suspect is in custody and subject to interrogation.

Question 53

When does the Sixth Amendment right to counsel apply?

Answer 53

When judicial proceedings commence and during critical stages of prosecution.

Question 54

What are the two requirements to prove ineffective assistance of counsel?

Answer 54

* Counsel's representation fell below the objective standard of reasonableness * Counsel's deficient performance prejudiced the defendant

Question 55

What constitutes an actual conflict of interest in legal representation?

Answer 55

When counsel is subject to an obligation or unique personal interest that leads to a strategy not favorable to the defendant.

Question 56

What is the significance of an adverse impact in ineffective assistance of counsel claims?

Answer 56

It occurs when a plausible alternative strategy might have been pursued but was inherently in conflict with counsel’s other loyalties.