The 6th Amendment - Aug. 24 -Sept. 13

Question 1

Can an out-of-court identification of a criminal defendant be suppressed as unduly suggestive under the Due Process Clause if the identification was not orchestrated by law enforcement? (Q)

Answer 1

No. If the identification was not orchestrated by law enforcement, an out-of-court identification of a criminal defendant cannot be suppressed as unduly suggestive under the Due Process Clause.

For an identification procedure to be suppressed as unduly suggestive under the Due Process Clause, the procedure must have been arranged by law enforcement. For there to be any constitutional violation at all—and, hence, a remedy such as suppressing evidence—there must be government action. If law enforcement does not orchestrate the identification, there is no government action and, thus, no constitutional violation to remedy.

Question 2

Could evidence of a pretrial identification procedure by law enforcement be admissible even if the procedure producing it was unnecessarily suggestive? (Q)

Answer 2

Yes. Evidence of a pretrial identification procedure by law enforcement could be admissible even if the procedure producing it was unnecessarily suggestive.

Evidence of the identification will be inadmissible under the Due Process Clause only if the procedure was unnecessarily suggestive, and the resulting identification was ultimately unreliable. The court will consider the totality of the circumstances to determine whether the identification is reliable.

Question 3

If law-enforcement officers employ an unnecessarily suggestive identification process, what principal factors will a court consider when determining whether the resulting pre-trial identification is reliable? (Q)

Answer 3

In assessing the reliability of a pre-trial identification resulting from an unnecessarily suggestive procedure, courts will consider the totality of the circumstances. Principal factors to consider include:

the witness’s opportunity to view the perpetrator at the time of the crime,
how much attention the witness paid to the perpetrator,
the accuracy of the witness’s prior description of the perpetrator,
the time that elapsed between the crime and the identification, and
the degree of certainty the witness exhibited during the identification procedure.

Question 4

In general, if a witness’s pretrial identification of a defendant as the perpetrator is inadmissible on due-process grounds, may the witness identify the defendant as the perpetrator at trial? (Q)

Answer 4

No. In general, if a witness’s pre-trial identification of a defendant as the perpetrator is inadmissible on due-process grounds, the witness may not identify the defendant as the perpetrator at trial.

There is one exception. If the witness can identify the defendant relying solely on knowledge gleaned completely independently of the unconstitutional procedure producing the pretrial identification, then the witness may take the stand and identify the defendant at trial.

Question 5

Could evidence of a pretrial identification procedure by law enforcement be admissible even if it is so suggestive as to undermine the reliability of the resulting identification? (Q)

Answer 5

Yes. Evidence of a pretrial identification procedure by law enforcement can be admissible even if it is so suggestive as to undermine the reliability of the resulting identification.

To exclude evidence of a pretrial law-enforcement identification procedure, the Due Process Clause requires both that the procedure be unnecessarily suggestive, and that the resulting identification be unreliable under the totality of the circumstances. In addition, the suggestive procedure must have been unnecessary under the circumstances. If exigent circumstances supported using a suggestive process at the time—i.e., if using an alternative, more reliable process was not practicable—there is no due-process violation.

Question 6

Is a one-person show-up procedure categorically an unconstitutionally suggestive procedure under the Due Process Clause? (Q)

Answer 6

No. A one-person show-up procedure–in which a complaining witness is asked to confirm the identity of a suspect without being offered any alternative individuals to identify—is not categorically an unconstitutionally suggestive procedure under the Due Process Clause. The Supreme Court has described these procedures as extremely suggestive, observing that they have been strongly condemned. The Court has not, however, interpreted the Due Process Clause to ban the procedure.

In practice, the procedure is commonly used. It is generally justified as a necessary and even useful tool when the suspect is presented to the complaining witness shortly after the alleged crime, ideally at the scene.

Question 7

Before trial, a witness identified the defendant as the perpetrator. At trial, the court ruled the identification constitutionally invalid, on the ground that the law-enforcement procedure producing it was unnecessarily suggestive, and it was unreliable. However, the government showed that the witness had an independent basis to identify the defendant as the perpetrator, separate and apart from the illegal process itself.

May evidence of that pretrial identification be introduced at trial? (Q)

Answer 7

No. Evidence of the pretrial identification may not be introduced at trial. If an out-of-court pretrial identification procedure is unconstitutionally suggestive and produces an unreliable identification, evidence that the witness identified the defendant during that unconstitutional procedure is inadmissible as a matter of due process. An independent basis for recognizing the suspect may permit the witness to identify the defendant in court, but it does not permit introduction of evidence of the earlier, out-of-court identification.

Here, the underlying procedure yielding the pretrial identification was unconstitutionally suggestive, and the identification was unreliable. Thus, evidence of the identification is inadmissible. The witness’s independent basis for recognizing the defendant might allow identification at trial, but the pretrial identification may not be introduced as evidence.

Question 8

Before trial, a witness identified the defendant as the perpetrator. At trial, the court ruled the identification constitutionally invalid, on the grounds that the law-enforcement procedure producing it was unnecessarily suggestive, and it was unreliable. The prosecution wanted to call the same witness at the defendant’s criminal trial to identify the defendant in court as the perpetrator. To support admitting the testimony, the prosecution showed that the witness had an independent basis to identify the defendant as the perpetrator, separate and apart from the illegal process itself.

Is the in-court identification admissible? (Q)

Answer 8

Yes. The in-court identification is admissible. A witness who participated in an unconstitutionally suggestive pretrial identification procedure is not automatically barred from separately identifying the defendant in court, during trial. The admissibility of the subsequent, in-court identification will be assessed under the fruit-of-the-poisonous-tree doctrine. For the in-court identification to be permitted, the prosecution must show, by clear and convincing evidence, that the witness has an independent basis to recognize the defendant as the perpetrator. “Independent” means wholly apart from the illegal pretrial procedure.

Here, the witness does have a basis to identify the defendant as the perpetrator, wholly apart from the illegal procedure. Thus, the in-court identification is admissible.

Question 9

Just after an armed robbery, the victim approached a police officer and described the robber as a young man wearing a t-shirt and jeans. Shortly after, about three blocks away, police apprehended a young man who matched that general description. The police brought the young man to the crime scene in handcuffs and showed him to the victim, who claimed to be “70 percent sure” that the young man was the robber. Prior to trial, the young man moved to suppress all evidence of this one-man show-up identification as unconstitutionally suggestive. The trial court concluded that the procedure was suggestive, and the identification was not reliable. The victim’s initial description was vague, and the identification was tentative.

Does constitutional due process require suppressing evidence of the show-up procedure at trial? (Q)

Answer 9

No. Constitutional due process does not require suppressing evidence of the show-up procedure at trial. Due process bars admitting an out-of-court identification when the identification procedure:

was conducted by law enforcement,
was suggestive,
produced an unreliable identification, and
was unnecessary under the circumstances.
Here, the first three conditions are satisfied. Law enforcement conducted the show-up. The trial court concluded that the process was suggestive, and the identification unreliable. However, the fourth condition is not satisfied. Courts generally deem an on-the-scene show-up identification to be a permissible, valuable, and even necessary law-enforcement tool, given the speed with which it is conducted following the offense. The procedure here was therefore not unnecessary, so no due-process violation occurred.

Question 10

The victim of a robbery chased the perpetrator but lost sight of him. The victim entered a subway station. Inside, she saw two police officers questioning a young man whom they had just observed trying to jump the turnstile. Believing the young man to be the robber, the victim approached the officers and identified him as the robber. Prior to trial, the young man moved to suppress the identification as unduly suggestive, as he was then in police custody and was the only person whom the victim had a chance to identify. The court concluded that the circumstances of the identification were unnecessarily suggestive, producing an unreliable identification.

Does constitutional due process require suppression of the identification? (Q)

Answer 10

No. Constitutional due process does not require suppression of the identification. For an unreliable pretrial identification to be suppressed as the product of an unduly suggestive procedure on due-process grounds, the procedure must have been arranged by law-enforcement actors. Otherwise, there is no government action and, hence, no constitutional violation to remedy.

Here, the police officers were involved in the circumstances leading to the identification, but they did not orchestrate it. On the contrary, the officers did not even know that the victim was identifying the young man as the robber until after the identification occurred. Because the police did not orchestrate the identification, there was no government action and, thus, no constitutional violation. Constitutional due process does not require suppression of the identification.

Question 11

While investigating a robbery, a detective had a hunch that the perpetrator was a suspect whom he had encountered while investigating unrelated crimes. The detective pulled that suspect’s photograph from a mugshot database and inserted it into an array containing photographs of four other people. The detective then showed the photo array to the robbery victim, asking her whether anyone in the array looked familiar. As he did so, he tapped his finger conspicuously on the face of the person he believed to be the perpetrator. The victim pointed to that person, who was thus charged with committing the robbery. Upon learning about the detective’s finger tapping, the defense attorney moved to suppress the identification as a due-process violation.

Should the motion be granted? (Q)

Answer 11

Yes. The defense’s motion to suppress the identification as a due-process violation should be granted. To suppress an out-of-court identification on due-process grounds, a defendant must show that the procedure producing the identification was unnecessarily suggestive and that the resulting identification was unreliable under all the circumstances. A procedure may be unnecessarily suggestive if police manipulate the process to influence the witness, without exigent circumstances to justify it.

Here, the detective’s conspicuous finger tapping seems meant to influence the witness, and no exigent circumstances appear to justify it, so the photo-array procedure was unnecessarily suggestive. Also, nothing about the context suggests that the identification was reliable despite the illegal procedure. Thus, the identification violates the Due Process Clause and cannot be admitted into evidence.

Question 12

A kidnapper held a victim captive in his basement. Each morning and evening, the kidnapper would enter the basement to bring the victim food and speak to him for a few minutes. After three months’ confinement, the victim escaped and ran to a police station. Based on the victim’s description of the kidnapper’s house, the police arrested a defendant at his home. At the station, police told the victim, “We caught the guy.” They then showed the defendant to the victim, and asked him to confirm they had arrested the right person. The victim said, “Yes, that’s him.” The trial court held that the station-house identification procedure was unnecessarily suggestive and unreliable, making the identification inadmissible on due-process grounds.

Does due process also prohibit the victim from identifying the defendant as the kidnapper at trial? (Q)

Answer 12

No. Due process does not prohibit the victim from identifying the defendant as the kidnapper at trial. Under the Due Process Clause, an in-court identification is admissible, notwithstanding an unconstitutional out-of-court identification by the same witness, if there is an independent basis for the witness to identify the defendant as the perpetrator at trial. “Independent” means wholly separate from the unconstitutional pretrial identification procedure.

Here, the victim interacted with his kidnapper daily for three months. That extensive exposure had nothing to do with the circumstances at the station house. It is an independent basis for the victim to identify the defendant as the kidnapper, even if the station-house identification was itself unconstitutionally suggestive. Accordingly, the victim may identify the defendant as the kidnapper at trial.

Question 13

Does the Sixth Amendment right to counsel apply against state and local governments? (Q)

Answer 13

Yes. The Sixth Amendment right to counsel applies against state and local governments. The Sixth Amendment, by its terms, applies only to the federal government. However, the U.S. Supreme Court has interpreted the Fourteenth Amendment Due Process Clause, which applies to the states, to incorporate the right to counsel against the state and local governments.

Question 14

At what point in time does the Sixth Amendment right to counsel attach? (Q)

Answer 14

The Sixth Amendment right to counsel attaches once adversarial judicial proceedings commence against a criminal defendant, with respect to a particular crime. Adversarial judicial proceedings generally commence (1) upon the filing of formal charges, as by indictment, or (2) upon the defendant’s first court appearance with respect to the crime. Attachment means, in general, that the defendant has the right to the assistance of counsel in dealing with the government at each critical stage of the prosecution.

Question 15

In general, what are the critical stages of a criminal prosecution, for purposes of the Sixth Amendment right to counsel? (Q)

Answer 15

In general, the critical stages of a criminal prosecution, for purposes of the Sixth Amendment right to counsel, are:

any pretrial occasion on which the government demonstrates deliberate, active efforts to elicit incriminating information from the defendant, whether known to the defendant or not (e.g., remote eavesdropping, interrogation, confidential informants, or lineups and similar procedures);
pretrial hearings that might affect the defendant’s substantial rights or the outcome of trial; and
the guilt and sentencing phases of trial.
The Sixth Amendment right to counsel does not apply beyond the sentencing phase of trial, though other constitutional provisions afford a limited right to counsel on appeal.

Question 16

Does the Sixth Amendment right to counsel imply an exclusionary remedy? (Q)

Answer 16

Yes. The Sixth Amendment right to counsel implies an exclusionary remedy. That is, if the government gleans information from a defendant in a way that violates the defendant’s Sixth Amendment right to counsel, that information is inadmissible as substantive evidence of guilt at trial against the defendant. Also, under the derivative-evidence doctrine, physical evidence obtained due to the violation may be suppressed.

Question 17

Once the Sixth Amendment right to counsel has attached with respect to an offense, under what circumstances may police actively and deliberately seek incriminating information from the defendant about the offense? (Q)

Answer 17

Once the Sixth Amendment right to counsel has attached with respect to an offense, police may actively and deliberately seek incriminating information from the defendant about the offense only if the defendant knows that he or she is interacting with the government and:

the defendant has the assistance of counsel in the interaction with the government or
knowingly, intelligently, and voluntarily waives the right to counsel.
In this context, the standards to determine whether a defendant has knowingly, intelligently, and voluntarily waived the right to counsel are identical to those that apply under the Miranda doctrine.

Question 18

Is the Sixth Amendment right to counsel the same as the Miranda right to counsel? (Q)

Answer 18

No. The Sixth Amendment right to counsel is not the same as the Miranda right to counsel. The two rights operate very similarly (not identically), to the extent they apply, in the context of police interrogations. However, there are some key differences, including:

the Miranda right is implied under the Fifth Amendment privilege against self-incrimination and does not arise from the Sixth Amendment;
the Sixth Amendment right applies only to formally charged offenses, but Miranda applies to custodial interrogation about any crime;
Miranda applies only if the suspect knows he or she is interacting with the government, but the Sixth Amendment right applies regardless whether the defendant knows this; and
physical fruits of Miranda violations are not excluded on that basis, but physical fruits of Sixth Amendment violations may be excluded.

Question 19

Under the Sixth Amendment, are all criminal defendants entitled to receive an appointed attorney at government expense? (Q)

Answer 19

No. Under the Sixth Amendment, not all criminal defendants are entitled to receive an appointed attorney at government expense. Rather, only defendants who are too poor to hire their own lawyers, often termed indigent defendants, are entitled to appointed counsel. Every criminal defendant has the right to assistance of counsel. However, the right to appointed counsel is not available to defendants who can afford to hire defense counsel.

The Supreme Court has not established standards to determine indigence, leaving the states and, in federal cases, the federal government to establish standards.

Question 20

Is an indigent criminal defendant entitled to appointed defense counsel at government expense in every criminal case? (Q)

Answer 20

No. An indigent criminal defendant is not entitled to appointed defense counsel at government expense in every case. Rather, an indigent criminal defendant is entitled to appointed counsel only in (1) felony cases or (2) misdemeanor cases in which the defendant is actually imprisoned or subjected to a suspended sentence of imprisonment as a consequence of the ensuing criminal conviction. Thus, in a misdemeanor case, an indigent defendant who does not receive appointed counsel may not be incarcerated at all for the misdemeanor.

Question 21

Under what circumstances may a court refer to a prior criminal conviction in enhancing a defendant’s current sentence? (Q)

Answer 21

A court may refer to a prior criminal conviction in enhancing a defendant’s current sentence if:

the defendant had the effective assistance of counsel in the prior proceeding that produced the conviction, or
if not, the defendant was not entitled to appointed counsel in the prior proceeding.
Put differently, if the defendant was entitled to appointed counsel in the prior proceeding and did not receive the effective assistance of appointed counsel, then the court may not refer to the resulting conviction in enhancing the defendant’s sentence.

Question 22

Under what circumstances does the Sixth Amendment guarantee a criminal defendant the right to be represented by an attorney of the defendant’s choosing?(Q)

Answer 22

The Sixth Amendment guarantees a criminal defendant the right to be represented by an attorney of the defendant’s choosing if the defendant can pay for the attorney or find an attorney willing to take the case free of charge. In that event, the court may restrict the defendant’s choice of counsel only as necessary to ensure the basic integrity of the judicial process (e.g., requiring a license to practice law, lack of ethical conflicts, and availability to handle the case on court-set dates). Otherwise, the court must honor the defendant’s choice of counsel.

By contrast, an indigent defendant being represented by a court-appointed attorney has no right to choose the appointed attorney. Rather, the court may select the attorney in its discretion.

Question 23

Does a criminal defendant have a constitutional right to self-representation? (Q)

Answer 23

Yes. A criminal defendant has a constitutional right to self-representation. The Sixth Amendment right to the assistance of counsel includes the inverse right to reject the assistance of counsel—that is, the right to represent oneself in a criminal case.

The decision to waive the right to an attorney, however, must be made competently. Thus, a court may deny a defendant’s request for self-representation if the defendant cannot understand the right being waived or conduct the defense without counsel.

Question 24

Does the U.S. Constitution guarantee an indigent criminal defendant the right to appointed counsel on the first round of appeal from a criminal conviction? (Q)

Answer 24

Yes. The U.S. Constitution guarantees an indigent criminal defendant a right to appointed counsel on the first round of appeal from a criminal conviction. This is ordinarily an appeal as of right to an intermediate appellate court. By contrast, the Constitution does not guarantee a right to appointed counsel for subsequent rounds of discretionary appeals, usually to the court of last resort in the relevant court system.

This limited right to counsel on appeal arises from due-process and equal-protection principles, not from the Sixth Amendment.

Question 25

Does the U.S. Constitution guarantee an indigent criminal defendant the right to appointed counsel in post-conviction collateral-review proceedings? (Q)

Answer 25

No. The U.S. Constitution does not guarantee an indigent criminal defendant the right to appointed counsel in post-conviction collateral-review proceedings, such as habeas corpus proceedings. The constitutional right to the assistance of counsel does not extend to post-conviction collateral-review proceedings, so it follows that the right to appointed counsel does not extend to those proceedings.

Question 26

If the constitutional right to counsel applies, does it guarantee criminal defendants the right to receive the effective assistance of counsel? (Q)

Answer 26

Yes. If the constitutional right to counsel applies, it guarantees criminal defendants the right to receive the effective assistance of counsel. To be effective, counsel must exercise reasonable judgment according to professional norms. If the ineffective assistance prejudices the outcome of the defendant’s case, meaning a defendant receiving adequate representation would likely have obtained a different result, then the conviction must be reversed.

Question 27

Under what circumstances does the Due Process Clause guarantee an indigent criminal defendant a right to appointed counsel in a parole or probation-revocation hearing? (Q)

Answer 27

The Due Process Clause guarantees an indigent criminal defendant a right to appointed counsel in a parole or probation-revocation hearing only if the specific hearing at hand presents issues that are particularly complex. The issues must be so complex that an uncounseled layperson would be unable to navigate the hearing without assistance. In simpler cases, however, due process does not require appointed counsel. Thus, the due-process right to counsel during parole and probation-revocation hearings must be assessed on a case-by-case basis.

Question 28

A criminal defendant was not a citizen of the United States. The defendant was indicted for a crime. The defendant has considered pleading guilty to the crime. A conviction for the crime would likely get him deported from the United States.

Assuming the Sixth Amendment right to counsel applies, does the defendant’s attorney have a constitutional obligation to advise him that pleading guilty to the crime could result in his deportation? (Q)

Answer 28

Yes. The attorney has a constitutional obligation to advise the defendant that pleading guilty could result in his deportation. The Sixth Amendment right to counsel, if it applies, guarantees the effective assistance of counsel. In general, effective assistance requires that the attorney exercise reasonable judgment according to professional norms. The U.S. Supreme Court has held that this means defense attorneys must competently advise their clients about collateral consequences related to immigration, including potential deportation that might flow from a conviction.

Here, the Sixth Amendment right to counsel applies, guaranteeing effective assistance. If the defendant pleads guilty to the crime, he will likely be deported. Thus, the defendant’s attorney must advise him of this.

Question 29

A criminal suspect was arrested for robbery. Soon after, the state’s criminal trial court conducted a preliminary hearing to determine whether there was probable cause to proceed with formal charges against the suspect. The preliminary hearing was the suspect’s first court appearance regarding the robbery charge.

Did the Sixth Amendment right to counsel apply at the preliminary hearing? (Q)

Answer 29

Yes. The Sixth Amendment right to counsel applied at the preliminary hearing. In general, this right applies to every critical stage of a criminal proceeding. A criminal proceeding commences once the defendant is either (1) formally charged or (2) required to appear in court regarding the criminal allegations. A critical stage, in turn, is a stage in which substantial rights of the accused may be affected.

Here, the preliminary hearing was the suspect’s first court appearance concerning the robbery charge, making it the beginning of criminal proceedings. The U.S. Supreme Court has held that a preliminary hearing is a critical stage; it affects an accused’s substantial rights, because the court hears evidence that is central to the pending criminal allegations. Thus, the Sixth Amendment right to counsel applied at the preliminary hearing.

Question 30

A defendant was formally charged with a crime. Law-enforcement officers sent an undercover informant to try to elicit incriminating information from the defendant about the crime. The informant never revealed that he was working for law enforcement, and the defendant never had an attorney present while interacting with the informant.

Have the law-enforcement officers violated the defendant’s Sixth Amendment right to counsel? (Q)

Answer 30

Yes. The officers violated the defendant’s Sixth Amendment right to counsel. That right includes a right to have the government deal with the defendant only through an attorney. If the right is not waived, the government may not intentionally seek to elicit incriminating information from the defendant about a crime for which the right has attached, unless the defendant has the assistance of counsel. The right to counsel attaches when the defendant is formally charged with or presented before a court about the crime.

Here, the defendant was charged with a crime, so the right to counsel attached to that offense. The officers sent an undercover informant to elicit incriminating information about that crime from the defendant. The defendant could not waive the right, as he never knew the informant’s role. Thus, the defendant’s right to counsel was violated.

Question 31

A defendant was arrested for and formally charged with a crime; he remained in jail pending trial. Law-enforcement officers sent an undercover agent into the defendant’s jail cell. They instructed the agent to pose as a fellow inmate and simply report back whatever the defendant might happen to say about the pending charges, without affirmatively seeking incriminating information. The agent complied.

Have the law-enforcement officers violated the defendant’s Sixth Amendment right to counsel? (Q)

Answer 31

No. The officers have not violated the defendant’s Sixth Amendment right to counsel. That right includes a right to have the government deal with the defendant only through an attorney. If the right is not waived, the government may not intentionally seek to elicit information from the defendant about a crime for which the right has attached. But the government may passively listen for incriminating information, as opposed to actively seeking it. The right to counsel attaches when the defendant is formally charged with or presented before a court about the crime.

Here, the defendant was formally charged, so the right to counsel attached. The agent did not solicit incriminating information from the defendant. Rather, she simply listened for what the defendant might say about the crime. Thus, the right to counsel was not violated.

Question 32

A defendant was arrested and charged with robbery; he remained in jail pending trial. Police also suspected the defendant of unrelated drug crimes. The police sent an undercover agent to the defendant’s cell, with instructions to pose as an inmate and attempt to elicit information from the defendant solely about the drug crimes. The agent complied.

Have the police violated the defendant’s Sixth Amendment right to counsel? (Q)

Answer 32

No. The police have not violated the defendant’s Sixth Amendment right to counsel. That right includes a right to have counsel present when the government tries to elicit information about a crime to which the right has attached. It attaches when formal charges are filed or when the defendant has the first court appearance in the matter. The Sixth Amendment right, however, is offense-specific. Thus, the government may question the defendant about an offense to which the right has not attached, without regard to the Sixth Amendment.

Here, the defendant was formally charged with robbery; the right to counsel attached to that offense. But the defendant was merely suspected of the drug crimes, the only topic on which the undercover agent elicited information. Thus, the right to counsel did not attach to the unrelated crimes and was not violated.

Question 33

A defendant was charged with armed robbery, carrying a minimum sentence of 10 years. The prosecutor offered the defendant a chance to plead guilty to unarmed robbery. The defendant asked his attorney whether he should accept. The attorney said the defendant should accept, as unarmed robbery carried no minimum sentence. This statement was wrong; unarmed robbery carried a minimum one-year sentence. Based on the attorney’s advice, the defendant pleaded guilty and received a one-year sentence. Upon learning of the attorney’s error, the defendant moved to revoke his guilty plea, claiming ineffective assistance of counsel during plea negotiations. The defendant would have rejected the guilty plea had he known of the one-year minimum sentence.

Must the court vacate the guilty plea? (Q)

Answer 33

Yes. The court must vacate the guilty plea. The Sixth Amendment affords criminal defendants the right to effective assistance of counsel, which applies in plea negotiations. Ineffective assistance means that counsel’s performance was deficient, or that counsel failed to exercise reasonable judgment under professional norms. If the defendant can show that the deficient performance was prejudicial, or likely altered the outcome, the conviction must be reversed (or the guilty plea vacated). In case of a guilty plea, prejudice exists if the defendant would have rejected the plea upon competent advice from counsel.

Here, the attorney performed deficiently by wrongly advising the defendant of the sentencing consequences of the guilty plea. The defendant would have rejected the plea had the lawyer offered accurate information. Thus, the guilty plea must be vacated.

Question 34

Police suspected a man and his friend of robbing a store. Based on surveillance video, police identified the man and arrested him. The man was charged with the robbery and released on bond. As the man left the courthouse, he saw the friend waiting for him. The friend asked whether the man hid the gun used in the robbery. The man responded that he did, unaware that on behalf of the police, the friend was wearing a secret recording device that captured his words.

At the man’s trial for robbery, may the recording be introduced as evidence against the man, consistent with the Sixth Amendment? (Q)

Answer 34

No. The recording may not be introduced as evidence against the man. Once the Sixth Amendment right to counsel attaches for an offense, it affords the defendant the right to interact with the government about the offense only through counsel, unless the right is waived. The right attaches upon formal charging. If the government intentionally solicits information from the defendant about the offense in violation of the right to counsel, evidence of that information is inadmissible at trial against the defendant.

Here, the right attached when the man was charged with robbery. Yet on behalf of the police, the friend secretly recorded incriminating information from the man about the robbery. The man had no chance to waive his Sixth Amendment right to counsel, because the friend was undercover. Thus, the statement was obtained in violation of the Sixth Amendment and must be suppressed.

Question 35

A protest turned violent; the organizer was arrested and charged with inciting a riot. The organizer reached out to a free-speech attorney for assistance defending the charges. The attorney agreed to represent the organizer for free, as the organizer lacked money. At the first hearing in the case, the judge noted his policy to permit only attorneys who have handled criminal cases to represent criminal defendants in his court. When the attorney admitted she had never handled a criminal case, the judge informed the organizer that he would need a new attorney. As he could not afford one, the court appointed one from the public defender’s office. The organizer appealed his eventual conviction, arguing that the judge denied him his right to be represented by counsel of his own choosing.

Will the appeal succeed? (Q)

Answer 35

Yes. The appeal will succeed. The Sixth Amendment affords a criminal defendant the right to self-retained counsel of his or her choice, whether counsel is paid or takes the case for free. The right attaches upon formal charging or the defendant’s first court appearance. The court may restrict the choice only as needed for the integrity of the judicial process, as by requiring admission to practice law. Otherwise, a court may not reject the defendant’s choice. If it does, any conviction must be set aside.

Here, at the defendant’s first court appearance, the court rejected the free-speech attorney, only because she had never before handled a criminal case. This denied the defendant’s right to the attorney he selected to represent him and who agreed to do so. Thus, on appeal, the conviction will be set aside.

Question 36

A criminal defendant was accused of drunk driving, a misdemeanor carrying a maximum penalty of either five months in jail or a fine of $2,000. When the defendant appeared in court, he told the judge that he did not have money to hire an attorney and thus wanted the court to appoint one to represent him. The judge declined to do so. The defendant was later convicted and assessed the maximum fine of $2,000, with no prison time. Assume the defendant was indigent.

Was the defendant denied his Sixth Amendment right to appointed counsel? (Q)

Answer 36

No. The defendant was not denied his Sixth Amendment right to appointed counsel. The Sixth Amendment guarantees every criminal defendant the right to assistance of counsel. It also guarantees indigent defendants the right to appointed counsel at government expense. The right to appointed counsel, however, applies only in cases in which the defendant is either (1) charged with a felony or (2) charged with a misdemeanor and actually imprisoned, for so much as a day, as a consequence of the ensuing criminal conviction.

Here, the indigent defendant was charged with and convicted of a misdemeanor, drunk driving. He was not imprisoned, but rather was sentenced to pay a fine. A mere fine may be imposed on an indigent, unrepresented defendant without running afoul of the Sixth Amendment. Thus, the defendant’s Sixth Amendment right to appointed counsel was not denied.

Question 37

A criminal suspect was participating in a lineup identification conducted after his indictment.

Is the suspect entitled to the presence of an attorney during the lineup? (Q)

Answer 37

Yes. The suspect is entitled to the presence of an attorney during the lineup. The Sixth Amendment right to counsel entitles a suspect to the presence and assistance of an attorney during critical stages of prosecution, which include all deliberate efforts by the government to elicit incriminating information from the defendant. Criminal proceedings commence with the filing of formal charges (i.e., the indictment), or with the defendant’s first court appearance.

Here, the suspect has been indicted, so criminal proceedings have formally commenced. A lineup’s purpose is to facilitate a witness identification of the suspect as the perpetrator, so it is a critical stage of the criminal process. Thus, the Sixth Amendment right to counsel applies and the suspect is entitled to an attorney’s presence.

Question 38

A criminal suspect was participating in a lineup identification conducted immediately after his arrest. No formal charges had been filed against the defendant, and he had not yet made his first court appearance.

Is the suspect entitled to the presence of an attorney during the lineup? (Q)

Answer 38

No. The suspect is not entitled to the presence of an attorney during the lineup. A pretrial lineup after criminal proceedings formally commence is a critical stage of the criminal process, to which the Sixth Amendment right to counsel applies. The right entitles the suspect to the presence and assistance of an attorney. Criminal proceedings are deemed to have formally commenced with the filing of formal charges (i.e., the indictment), or with the defendant’s first court appearance.

Here, the suspect is participating in a lineup, the purpose of which is to facilitate witness identification of the suspect as the perpetrator. However, no formal criminal charges have been filed, and the suspect has not made his first court appearance. Because criminal proceedings have not formally commenced, the suspect is not entitled to the presence of an attorney during the lineup.

Question 39

Shortly after an alleged bank robbery, police arrested a suspect near the scene, took him to the police station, and made him stand in a lineup. Before entering the lineup, the suspect asked for an attorney to be present during the procedure. The police denied his request. A bank teller who claimed to have witnessed the robbery entered the room and picked the suspect out of the line-up. The next morning, the suspect was brought to court and charged with bank robbery. Prior to trial, the suspect moved to suppress any evidence of the lineup procedure, on the ground that he was denied the right to have counsel present.

Under the Sixth Amendment, should the defendant’s motion be granted? (Q)

Answer 39

No. The defendant’s motion to suppress evidence of the lineup procedure should not be granted. The Sixth Amendment entitles a suspect to the presence an attorney at pretrial lineups that occur after criminal proceedings formally commence. Pretrial lineups are a critical stage of the criminal process because their purpose is to facilitate witness identification of the suspect as the perpetrator. Criminal proceedings are deemed to have formally commenced with the filing of formal charges (i.e., the indictment), or with the defendant’s first court appearance. If, however, the subject has not yet been indicted or formally charged with a crime, police may conduct a lineup without an attorney present.

Here, the lineup occurred before the defendant was formally charged or first appeared in court. The defendant therefore had no right to counsel at the lineup, so the motion should be denied.

Question 40

Does the U.S. Constitution afford a criminal defendant a right to plead guilty? (Q)

Answer 40

No. The U.S. Constitution does not afford a criminal defendant a right to plead guilty. Rather, a court may reject a defendant’s guilty plea in the sound exercise of judicial discretion.

Question 41

What is a plea bargain? (Q)

Answer 41

A plea bargain is an agreement between a criminal defendant and a prosecutor to resolve a criminal case without a trial. Typically, the prosecutor offers to drop or reduce some of the charges against the defendant or recommend a particular sentence to the judge, in exchange for the defendant’s agreement to waive the right to trial and plead guilty to the charges set out in the agreement.

Question 42

What requirements must a guilty plea in a criminal case meet to be constitutionally valid? (Q)

Answer 42

For a guilty plea to be constitutionally valid, it must be knowing, intelligent, and voluntary. The court must reject or vacate any guilty plea that fails any of these requirements.

Question 43

What is required for a guilty plea to be knowing and intelligent? (Q)

Answer 43

For a guilty plea to be knowing and intelligent, the defendant must be aware of the charges, along with the legal consequences of pleading guilty to the charges and waiving the right to trial. Advice of competent counsel generally supports finding a knowing and intelligent guilty plea. By contrast, if the defendant is mentally incompetent to understand the nature of the charges, the legal proceedings at issue, or the consequences of pleading guilty, then the plea is not knowing and intelligent.