Sixth Amendment Flashcards
When does the Sixth Amendment right to counsel attach?
The Sixth Amendment right to counsel attaches automatically upon the commencement of judicial proceedings and applies at all critical stages of prosecution.
- However, this right applies only to the specific offense(s) at issue in those proceedings—not to other crimes in which judicial proceedings have yet to commence.
- And though this right can be waived, a waiver cannot occur until the right has attached.
Sixth Amendment Right to Counsel
Blockburger Test
“The Sixth Amendment right to counsel attaches to an uncharged crime that constitutes the same offense as a formally charged crime. However, it does not attach to an uncharged crime that requires proof of an element that the other does not.”
The Sixth Amendment right to counsel attaches to offenses that have been formally charged (e.g., by indictment).
In Texas v. Cobb, the U.S. Supreme Court held that this right also encompasses offenses that—even if not formally charged—would be considered the same offense as a charged offense.
Under the Blockburger test, offenses are not the same if each offense requires proof of an element that the other does not.
Sixth Amendment Right to Counsel
Attaches when…
The Sixth Amendment right to counsel:
1) automatically attaches once formal judicial proceedings commence (e.g., indictment, filing of formal charges, preliminary hearing, arraignment) AND
2) guarantees that criminal defendants will thereafter have the assistance of counsel during all critical stages of prosecution (i.e., any event where the absence of counsel may prejudice the defendant’s right to a fair trial).
Examples of commencment of formal judical proceedings
i) indictment,
ii) filing of formal charges,
iii) preliminary hearing,
iv) arraignment
The Sixth Amendment right to counsel automatically attaches once formal judicial proceedings have commenced (e.g., at an arraignment). Once the right has attached, it applies to all critical stages of the prosecution.
Sixth Amendment Right to Counsel
Critical & Non-critical stages
1. Critical stages
Post-indictment lineups, in-person identifications, interrogations
Arraignments, preliminary hearings, bail hearings, pretrial motions
Plea negotiations & hearings
Trial & sentencing
2. Noncritical stages
Pre-charge lineups, photo-array identification
Fingerprinting, handwriting & voice exemplars, blood samples
Initial appearances, hearings to determine probable cause to detain defendant
Discretionary appeals
Post-conviction proceedings (eg, parole or probation hearing)
Is a photo array identification a critical stage requiring the presence of counsel for purposes of the Sixth Amendment?
NO.
The Sixth Amendment right to counsel applies at all critical stages of a prosecution after formal proceedings have begun. A photo-array identification is not a critical stage requiring the presence of counsel.
Do criminal defendants have the right to effective assistance of counsel at trial and on a first appeal of right?
YES
Under the Sixth Amendment, applied to the states through the Fourteenth Amendment due process clause, criminal defendants have the right to effective assistance of counsel at trial and on a first appeal of right.
To successfully challenge an appellate court’s decision based on ineffective assistance of counsel (IAC), a defendant must establish:
1) deficient performance – the attorney’s performance fell below objective standards of reasonableness AND
2) prejudice – there is a reasonable probability that, but for that deficiency, the outcome would have been different.
An appointed attorney is generally required to pursue a nonfrivolous appeal on behalf of an indigent defendant after conviction.
- However, the attorney need not advance every nonfrivolous claim of error urged by the client.
The attorney may use his/her professional judgment in determining which claims of error to assert. And so long as the attorney’s judgment is reasonable, the attorney’s conduct does not amount to IAC.
What must a defendant show to establish ineffective assistance of counsel?
To establish ineffective assistance of counsel, a defendant must show that:
(1) the attorney’s performance fell below objective standards of reasonableness AND
(2) there is a reasonable probability that, but for that deficiency, the outcome would have been different.
Is interrogations by jailhouse informants or undercover officers considered a critical stage of the proceedings?
YES.
The Sixth Amendment right to counsel:
1) automatically attaches once judicial proceedings have commenced (e.g., when the defendant is indicted) AND
2) guarantees a defendant access to an attorney at every critical stage of the proceedings.
***A critical stage is an event where the absence of counsel may prejudice the defendant’s right to a fair trial. This includes interrogations by jailhouse informants or undercover officers.***
- However, if the informant’s conduct does not consitute an interrogation–i.e., the defendant voluntarily confessed to the informant–then no Sixth Amendment right to counsel has been violated.
Which Amendment guarantees a criminal defendant the right to be tried by an impartial jury?
The Sixth Amendment guarantees a criminal defendant the right to be tried by an impartial jury—i.e., a jury pool selected from a fair cross section of the community and an unbiased impaneled jury.
Therefore, a potential juror whose views would substantially impair his/her ability to impartially decide the case can be challenged for cause
What is an “impartial jury”?
A jury pool selected from a fair cross section of the community and an unbiased impaneled jury.
Impartiality has two requirements:
1) the jury pool must be selected from a fair cross section of the community AND
2) the impaneled jury must be unbiased and able to decide the case based on the evidence presented at trial.
Challenging jurors for cause in a capital punishment case
To ensure that the impaneled jury is impartial during the guilt and penalty phases of a capital punishment case, the defense and prosecution can challenge potential jurors for cause.
- A for-cause challenge should be granted if a potential juror’s views would prevent or substantially impair his/her ability to impartially decide the case or impose the death penalty.
Is the taking of a handwriting exemplar considered a critical stage of the prosecution for purposes of the Sixth Amendment right to counsel?
NO.
The taking of a handwriting exemplar is not a critical stage of prosecution.
- This is because the defendant still has opportunities to meaningfully confront the government’s handwriting experts through cross-examination and to present his/her own experts.
The taking of handwriting exemplars does not violate the Fourth Amendment (no reasonable expectation of privacy), the Fifth Amendment (no protection for physical evidence), or the Sixth Amendment (not a critical stage of prosecution).
Does the Sixth Amendment right to counsel protect non-indignet criminal defendants’ right to choose the attorney who will represent them?
what is the effect of an erroneous denial of a defendant’s choice of counsel?
YES.
The Sixth Amendment right to counsel protects non-indigent criminal defendants’ right to choose the attorney who will represent them.
The erroneous denial of a defendant’s choice of counsel constitutes structural error and requires automatic reversal of the defendant’s conviction.
Does a defendant have the right to the assistance of counsel at any trial that results in a sentence of incarceration, even when that sentence is suspended?
YES
