In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Gideon v. Wainwright 1is regarded as having consolidated a right to counsel at trial in the Sixth Amendment, be the trial federal or state or counsel retained or appointed. 2 The Sixth Amendment cases, together with pre-Gideon cases that applied due process analysis under the Fourteenth Amendment to state proceedings, point to an unquestioned right to retain counsel for the course of a prosecution, but also to circumstances in which the choice of a particular representative must give way to the right's fundamental purpose of ensuring the integrity of the adversary trial system.
The pre-Gideon cases often spoke of the right to retain counsel expansively. Thus, in Chandler v. Fretag, when a defendant appearing in court to plead guilty to house-breaking was advised for the first time that, because of three prior convictions, he could be sentenced to life imprisonment as a habitual offender, the court’s denial of his request for a continuance to consult an attorney was a violation of his Fourteenth Amendment due process rights. 3
Regardless of whether petitioner would have been entitled to the appointment of counsel, his right to be heard through his own counsel was unqualified. . . . A necessary corollary is that a defendant must be given a reasonable opportunity to employ and consult with counsel; otherwise, the right to be heard by counsel would be of little worth. 4
Right to Assistance of Counsel in Nontrial Situations
Judicial Proceedings Before Trial
Even a preliminary hearing where no government prosecutor is present can trigger the right to counsel. 5
[A] criminal defendant's defendant's initial appearance before a judicial officer, where he learns the charges against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. 6
Attachment, however, may signify
nothing more than the beginning of the defendant's prosecution [and] . . . not mark the beginning of a substantive entitlement to the assistance of counsel. 7 Thus, counsel need be appointed only
as far in advance of trial, and as far in advance of any pretrial ‘critical stage,’ as necessary to guarantee effective assistance at trial. 8
Dicta in Powell v. Alabama, 9 however, indicated that
during perhaps the most critical period of the proceedings . . . that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation and preparation [are] vitally important, the defendants . . . [are] as much entitled to such aid [of counsel] during that period as at the trial itself. This language was gradually expanded upon and the Court developed a concept of
a critical stage in a criminal proceeding as indicating when the defendant must be represented by counsel. Thus, in Hamilton v. Alabama, 10 the Court noted that arraignment under state law was a
critical stage because the defense of insanity had to be pleaded then or lost, pleas in abatement had to be made then, and motions to quash on the ground of racial exclusion of grand jurors or that the grand jury was improperly drawn had to be made then. In White v. Maryland, 11 the Court set aside a conviction obtained at a trial at which the defendant’s plea of guilty, entered at a preliminary hearing at which he was without counsel, was introduced as evidence against him at trial. Finally, in Coleman v. Alabama, 12 the Court denominated a preliminary hearing as a
critical stage necessitating counsel even though the only functions of the hearing were to determine probable cause to warrant presenting the case to a grand jury and to fix bail; no defense was required to be presented at that point and nothing occurring at the hearing could be used against the defendant at trial. The Court hypothesized that a lawyer might by skilled examination and cross-examination expose weaknesses in the prosecution’s case and thereby save the defendant from being bound over, and could in any event preserve for use in cross-examination at trial and impeachment purposes testimony he could elicit at the hearing; he could discover as much as possible of the prosecution’s case against defendant for better trial preparation; and he could influence the court in such matters as bail and psychiatric examination. The result seems to be that reached in pre-Gideon cases in which a defendant was entitled to counsel if a lawyer might have made a difference. 13
At first, the Court followed the rule of
fundamental fairness, assessing whether under all the circumstances a defendant was so prejudiced by the denial of access to counsel that his subsequent trial was tainted. 14 It held in Spano v. New York 15 that, under the totality of circumstances, a confession obtained in a post-indictment interrogation was involuntary, and four Justices wished to place the holding solely on the basis that post-indictment interrogation in the absence of defendant’s lawyer was a denial of his right to assistance of counsel. The Court issued that holding in Massiah v. United States, 16 in which federal officers caused an informer to elicit from the already-indicted defendant, who was represented by a lawyer, incriminating admissions that were secretly overheard over a broadcasting unit. Then, in Escobedo v. Illinois, 17 the Court held that preindictment interrogation violated the Sixth Amendment. But Miranda v. Arizona 18 switched from reliance on the Sixth Amendment to reliance on the Fifth Amendment’s Self-Incrimination Clause in cases of pre-indictment custodial interrogation, although Miranda still placed great emphasis upon police warnings of the right to counsel and foreclosure of interrogation in the absence of counsel without a valid waiver by defendant. 19
Massiah was reaffirmed and in some respects expanded by the Court. In Brewer v. Williams, 20 the right to counsel was found violated when police elicited from defendant incriminating admissions not through formal questioning but rather through a series of conversational openings designed to play on the defendant’s known weakness. The police conduct occurred in the post-arraignment period in the absence of defense counsel and despite assurances to the attorney that defendant would not be questioned in his absence. In United States v. Henry, 21 the Court held that government agents violated the Sixth Amendment right to counsel when they contacted the cellmate of an indicted defendant and promised him payment under a contingent fee arrangement if he would
pay attention to incriminating remarks initiated by the defendant and others. The Court concluded that, even if the government agents did not intend the informant to take affirmative steps to elicit incriminating statements from the defendant in the absence of counsel, the agents must have known that that result would follow.
The Court extended the Edwards v. Arizona 22 rule protecting in-custody requests for counsel to post-arraignment situations where the right derives from the Sixth Amendment rather than the Fifth. In the subsequently overruled Michigan v. Jackson, the Court held that,
if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid. 23 The Court concluded that
the reasons for prohibiting the interrogation of an uncounseled prisoner who has asked for the help of a lawyer are even stronger after he has been formally charged with an offense than before. 24 The protection, however, is not as broad under the Sixth Amendment as it is under the Fifth. Although Edwards has been extended to bar custodial questioning stemming from a separate investigation as well as questioning relating to the crime for which the suspect was arrested, 25 this extension does not apply for purposes of the Sixth Amendment right to counsel. The Sixth Amendment right is
offense-specific, and so also is
its Michigan v. Jackson effect of invalidating subsequent waivers in police-initiated interviews. 26 Therefore, although a defendant who has invoked his Sixth Amendment right to counsel with respect to the offense for which he is being prosecuted may not waive that right, he may waive his Miranda-based right not to be interrogated about unrelated and uncharged offenses. 27
In Montejo v. Louisiana, 28 the Court overruled Michigan v. Jackson, finding that the Fifth Amendment's
Miranda-Edwards-Minnick line of cases constitutes sufficient protection of the right to counsel. In Montejo, the defendant had not actually requested a lawyer, but had stood mute at a preliminary hearing at which the judge ordered the appointment of counsel. Later, before Montejo had met his attorney, two police detectives read him his Miranda rights and he agreed to be interrogated. Michigan v. Jackson had prohibited waivers of the right to counsel after a defendant's assertion of the right to counsel, so the Court in Montejo was faced with the question of whether Michigan v. Jackson applied where an attorney had been appointed in the absence of such an assertion.
The Court in Montejo noted that
[n]o reason exists to assume that a defendant like Montejo, who has done nothing at all to express his intentions with respect to his Sixth Amendment rights, would not be perfectly amenable to speaking with the police without having counsel present. 29 But, to apply Michigan v. Jackson only when the defendant invokes his right to counsel
would be unworkable in more than half the States of the Union, where
appointment of counsel is automatic upon a finding of indigency or may be made
sua sponte by the court. 30
On the other hand, eliminating the invocation requirement would render the rule easy to apply but depart fundamentally from the Jackson rationale, which was
to prevent police from badgering defendants into changing their minds about their rights after they had invoked them. 31 Moreover, the Court found, Michigan v. Jackson achieves little by way of preventing unconstitutional conduct. Without Jackson, there would be
few if any instances in which
fruits of interrogations made possible by badgering-induced involuntary waivers are ever erroneously admitted at trial. . . . The principal reason is that the Court has already taken substantial other, overlapping measures toward the same end. . . . Under the Miranda-Edwards-Minnick line of cases (which is not in doubt), a defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given the Miranda warnings. At that point, not only must the immediate contact end, but 'badgering' by later requests is prohibited. 32 Thus, the Court in Montejo overruled Michigan v. Jackson. 33
The remedy for violation of the Sixth Amendment rule is exclusion from evidence of statements so obtained. 34 And, although the basis for the Sixth Amendment exclusionary rule – to protect the right to a fair trial – differs from that of the Fourth Amendment rule – to deter illegal police conduct – exceptions to the Fourth Amendment’s exclusionary rule can apply as well to the Sixth. In Nix v. Williams, 35 the Court held the
inevitable discovery exception applicable to defeat exclusion of evidence obtained as a result of an interrogation violating the accused’s Sixth Amendment rights.
Exclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial. 36 Also, an exception to the Sixth Amendment exclusionary rule has been recognized for the purpose of impeaching the defendant’s trial testimony. 37
Lineups and Other Identification Situations
The concept of the
critical stage was again expanded and its rationale formulated in United States v. Wade, 38 which, with Gilbert v. California, 39 held that lineups are a critical stage and that in-court identification of defendants based on out-of-court lineups or show-ups without the presence of defendant’s counsel is inadmissible. The Sixth Amendment guarantee, said Justice Brennan, was intended to do away with the common-law limitation of assistance of counsel to matters of law, excluding matters of fact. The abolition of the fact-law distinction took on new importance due to the changes in investigation and prosecution since adoption of the Sixth Amendment.
When the Bill of Rights was adopted, there were no organized police forces as we know them today. The accused confronted the prosecutor and the witnesses against him, and the evidence was marshaled, largely at the trial itself. In contrast, today’s law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused’s fate and reduce the trial itself to a mere formality. In recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee to apply to ‘critical’ stages of the proceedings. . . . The plain wording of this guarantee thus encompasses counsel’s assistance whenever necessary to assure a meaningful ‘defence.’ 40
It is central to [the principle of Powell v. Alabama] that in addition to counsel’s presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial. 41 Counsel’s presence at a lineup is constitutionally necessary because the lineup stage is filled with numerous possibilities for errors, both inadvertent and intentional, which cannot adequately be discovered and remedied at trial. 42 However, because there was less certainty and frequency of possible injustice at this stage, the Court held that the two cases were to be given prospective effect only; more egregious instances, where identification had been based upon lineups conducted in a manner that was unnecessarily suggestive and conducive to irreparable mistaken identification, could be invalidated under the Due Process Clause. 43 The Wade-Gilbert rule is inapplicable to other methods of obtaining identification and other evidentiary material relating to the defendant, such as blood samples, handwriting exemplars, and the like, because there is minimal risk that the absence of counsel might derogate from the defendant’s right to a fair trial. 44
In United States v. Ash, 45 the Court redefined and modified its
critical stage analysis. According to the Court, the
core purpose of the guarantee of counsel is to assure assistance at trial
when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor. But assistance would be less than meaningful in the light of developments in criminal investigation and procedure if it were limited to the formal trial itself; therefore, counsel is compelled at
pretrial events that might appropriately be considered to be parts of the trial itself. At these newly emerging and significant events, the accused was confronted, just as at trial, by the procedural system, or by his expert adversary, or by both. 46 Therefore, unless the pretrial stage involved the physical presence of the accused at a trial-like confrontation at which the accused requires the guiding hand of counsel, the Sixth Amendment does not guarantee the assistance of counsel.
Because the defendant was not present when witnesses to the crime viewed photographs of possible guilty parties, and therefore there was no trial-like confrontation, and because the possibilities of abuse in a photographic display are discoverable and reconstructable at trial by examination of witnesses, an indicted defendant is not entitled to have his counsel present at such a display. 47
Both Wade and Gilbert had already been indicted and counsel had been appointed to represent them when their lineups were conducted, a fact noted in the opinions and in subsequent ones, 48 but the cases in which the rulings were denied retroactive application involved preindictment lineups. 49 Nevertheless, in Kirby v. Illinois, 50 the Court held that no right to counsel exists with respect to lineups that precede some formal act of charging a suspect. The Sixth Amendment does not become operative, explained Justice Stewart’s plurality opinion, until
the initiation of adversary judicial criminal proceedings – whether by way of formal charge, preliminary hearings, indictment, information, or arraignment. . . . The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of Government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the ‘criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendment are applicable. 51 The Court’s distinguishing of the underlying basis for Miranda v. Arizona 52 left that case basically unaffected by Kirby, but it appears that Escobedo v. Illinois, 53 and perhaps other cases, is greatly restricted thereby.
The right to counsel under the Sixth Amendment applies to
criminal prosecutions, a restriction that limits its scope but does not exhaust all constitutional rights to representation in adversarial contexts associated with the criminal justice process. The Sixth Amendment requires counsel at the sentencing stage, 54 and the Court has held that, where sentencing was deferred after conviction and the defendant was placed on probation, he must be afforded counsel at a hearing on revocation of probation and imposition of the deferred sentence. 55 Beyond this, however, the Court has eschewed Sixth Amendment analysis, instead delimiting the right to counsel under due process and equal protection principles. 56
Noncriminal and Investigatory Proceedings
Commitment proceedings that lead to the imposition of essentially criminal punishment are subject to the Due Process Clause and require the assistance of counsel. 57 A state administrative investigation by a fire marshal inquiring into the causes of a fire was held not to be a criminal proceeding and hence, despite the fact that the petitioners had been committed to jail for noncooperation, not the type of hearing at which counsel was requisite. 58 Another decision refused to extend the right to counsel to investigative proceedings antedating a criminal prosecution, and sustained the contempt conviction of private detectives who refused to testify before a judge authorized to conduct a non-prosecutorial, fact-finding inquiry akin to a grand jury proceeding, and who based their refusal on the ground that their counsel were required to remain outside the hearing room. 59