Amdt6.7.2.3 When the Right to Counsel Applies

Sixth Amendment:

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. Wainwright1is 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

Custodial Interrogation

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 York15 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. Arizona18 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. Arizona22 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. Arizona52 left that case basically unaffected by Kirby, but it appears that Escobedo v. Illinois, 53 and perhaps other cases, is greatly restricted thereby.

Post-Conviction Proceedings

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

Footnotes

  1.  Jump to essay-1372 U.S. 335 (1963).
  2.  Jump to essay-2E.g., Wheat v. United States, 486 U.S. 153, 158 (1988).
  3.  Jump to essay-3348 U.S. 3 (1954).
  4.  Jump to essay-4348 U.S. at 9, 10. See alsoHouse v. Mayo, 324 U.S. 42 (1945); Hawk v. Olson, 326 U.S. 271 (1945); Reynolds v. Cochran, 365 U.S. 525 (1961).
  5.  Jump to essay-5Rothgery v. Gillespie County, 128 S. Ct. 2578 (2008) (right to appointed counsel attaches even if no public prosecutor, as distinct from a police officer, is aware of that initial proceeding or involved in its conduct).
  6.  Jump to essay-6128 S. Ct. at 2592.
  7.  Jump to essay-7128 S. Ct. at 2592 (Alito, J., concurring). Justice Alito's concurrence, joined by Chief Justice Roberts and Justice Scalia, was not necessary for the majority opinion in Rothgery, but the majority noted that it had not decided whether the 6-month delay in appointment of counsel resulted in prejudice to Rothgery's Sixth Amendment rights, and have no occasion to consider what standards should apply in deciding this. Id.
  8.  Jump to essay-8128 S. Ct. at 2595 (Alito, J. concurring).
  9.  Jump to essay-9287 U.S. 45, 57 (1932).
  10.  Jump to essay-10368 U.S. 52 (1961).
  11.  Jump to essay-11373 U.S. 59 (1963).
  12.  Jump to essay-12399 U.S. 1 (1970). Justice Harlan concurred solely because he thought the precedents compelled him to do so, id. at 19, while Chief Justice Burger and Justice Stewart dissented. Id. at 21, 25. Inasmuch as the role of counsel at the preliminary hearing stage does not necessarily have the same effect upon the integrity of the factfinding process as the role of counsel at trial, Coleman was denied retroactive effect in Adams v. Illinois, 405 U.S. 278 (1972). Justice Blackmun joined Chief Justice Burger in pronouncing Coleman wrongly decided. Id. at 285, 286. Hamilton and White, however, were held to be retroactive in Arsenault v. Massachusetts, 393 U.S. 5 (1968).
  13.  Jump to essay-13Compare Hudson v. North Carolina, 363 U.S. 697 (1960), with Chewning v. Cunningham, 368 U.S. 443 (1962), and Carnley v. Cochran, 369 U.S. 506 (1962).
  14.  Jump to essay-14Crooker v. California, 357 U.S. 433 (1958) (five-to-four decision); Cicenia v. Lagay, 357 U.S. 504 (1958) (five-to-three).
  15.  Jump to essay-15360 U.S. 315 (1959).
  16.  Jump to essay-16377 U.S. 201 (1964). See also McLeod v. Ohio, 381 U.S. 356 (1965) (applying Massiah to the states, in a case not involving trickery but in which defendant was endeavoring to cooperate with the police). But see Hoffa v. United States, 385 U.S. 293 (1966). Cf. Milton v. Wainwright, 407 U.S. 371 (1972). In Kansas v. Ventris, 556 U.S. 586, 592 (2009), the Court conclude[d] that the Massiah right is a right to be free of uncounseled interrogation, and is infringed at the time of the interrogation, not merely if and when the defendant's statement is admitted into evidence.
  17.  Jump to essay-17378 U.S. 478 (1964).
  18.  Jump to essay-18384 U.S. 436 (1966).
  19.  Jump to essay-19The different issues in Fifth and Sixth Amendment cases were summarized in Fellers v. United States, 540 U.S. 519 (2004), which held that absence of an interrogation is irrelevant in a Massiah-based Sixth Amendment inquiry.
  20.  Jump to essay-20430 U.S. 387 (1977). Chief Justice Burger and Justices White, Blackmun, and Rehnquist dissented. Id. at 415, 429, 438. Compare Rhode Island v. Innis, 446 U.S. 291 (1980), decided on self-incrimination grounds under similar facts.
  21.  Jump to essay-21447 U.S. 264 (1980). Justices Blackmun, White, and Rehnquist dissented. Id. at 277, 289. Accord, Kansas v. Ventris, 556 U.S. 586, 589 (2009). But cf. Weatherford v. Bursey, 429 U.S. 545, 550 (1977) (rejecting a per se rule that, regardless of the circumstances, if an undercover agent meets with a criminal defendant who is awaiting trial and with his attorney and if the forthcoming trial is discussed without the agent revealing his identity, a violation of the defendant's constitutional rights has occurred . . .).
  22.  Jump to essay-22451 U.S. 477 (1981). See Fifth Amendment, Miranda v. Arizona, supra.
  23.  Jump to essay-23475 U.S. 625, 636 (1986).
  24.  Jump to essay-24475 U.S. at 631. If a prisoner does not ask for the assistance of counsel, however, and voluntarily waives his rights following a Miranda warning, these reasons disappear. Moreover, although the right to counsel is more difficult to waive at trial than before trial, whatever standards suffice for Miranda’s purposes will also be sufficient [for waiver of Sixth Amendment rights] in the context of postindictment questioning. Patterson v. Illinois, 487 U.S. 285, 298 (1988).
  25.  Jump to essay-25Arizona v. Roberson, 486 U.S. 675 (1988).
  26.  Jump to essay-26McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). The reason that the right is offense-specific is that it does not attach until a prosecution is commenced. Id.
  27.  Jump to essay-27Rejecting an exception to the offense-specific limitation for crimes that are closely related factually to a charged offense, the Court instead borrowed the Blockburger test from double-jeopardy law: if the same transaction constitutes a violation of two separate statutory provisions, the test is whether each provision requires proof of a fact which the other does not. Texas v. Cobb, 532 U.S. 162, 173 (2001). This meant that the defendant, who had been charged with burglary, had a right to counsel on that charge, but not with respect to murders committed during the burglary.
  28.  Jump to essay-28556 U.S. 778, 794 (2009).
  29.  Jump to essay-29556 U.S. 778, 789 (2009).
  30.  Jump to essay-30556 U.S. 778, 792, 783 (2009).
  31.  Jump to essay-31556 U.S. 778, 792, 789 (2009).
  32.  Jump to essay-32556 U.S. 778, 794 (2009).
  33.  Jump to essay-33Justice Stevens, joined by Justices Souter and Ginsburg, and by Justice Breyer except for footnote 5, dissented. He wrote, The majority's analysis flagrantly misrepresents Jackson’s underlying rationale and the constitutional interests the decision sought to protect. . . . [T]he Jackson opinion does not even mention the anti-badgering considerations that provide the basis for the Court's decision today. Instead, Jackson relied primarily on cases discussing the broad protections guaranteed by the Sixth Amendment right to counsel – not its Fifth Amendment counterpart. Jackson emphasized that the purpose of the Sixth Amendment is to 'protec[t] the unaided layman at critical confrontations with his adversary,' by giving him 'the right to rely on counsel as a medium between him[self] and the State.' . . . Once Jackson is placed in its proper Sixth Amendment context, the majority's justifications for overruling the decision crumble. 556 U.S. at 805-06 (internal quotation marks and citations omitted). Justice Stevens added, Even if Jackson had never been decided, it would be clear that Montejo's Sixth Amendment rights were violated. . . . Because police questioned Montejo without notice to, and outside the presence of, his lawyer, the interrogation violated Montejo's right to counsel even under pre-Jackson precedent. 556 U.S. at 810-11.
  34.  Jump to essay-34See Michigan v. Jackson, 475 U.S. 625 (1986).
  35.  Jump to essay-35467 U.S. 431 (1984).
  36.  Jump to essay-36467 U.S. at 446.
  37.  Jump to essay-37Michigan v. Harvey, 494 U.S. 344 (1990) (post-arraignment statement taken in violation of Sixth Amendment is admissible to impeach defendant’s inconsistent trial testimony); Kansas v. Ventris, 556 U.S. 586, 593 (2009) (statement made to informant planted in defendant's holding cell admissible for impeachment purposes because [t]he interests safeguarded by . . . exclusion are 'outweighed by the need to prevent perjury and to assure the integrity of the trial process).
  38.  Jump to essay-38388 U.S. 218 (1967).
  39.  Jump to essay-39388 U.S. 263 (1967).
  40.  Jump to essay-40United States v. Wade, 388 U.S. 218, 224-25 (1967).
  41.  Jump to essay-41388 U.S. at 226 (citations omitted).
  42.  Jump to essay-42388 U.S. at 227-39. Previously, the manner of an extra-judicial identification affected only the weight, not the admissibility, of identification testimony at trial. Justices White, Harlan, and Stewart dissented, denying any objective need for the Court’s per se rule and doubting its efficacy in any event. Id. at 250.
  43.  Jump to essay-43Stovall v. Denno, 388 U.S. 293 (1967).
  44.  Jump to essay-44Gilbert v. California, 388 U.S. 263, 265-67 (1967) (handwriting exemplars); Schmerber v. California, 384 U.S. 757, 765-66 (1966) (blood samples).
  45.  Jump to essay-45413 U.S. 300 (1973). Justices Brennan, Douglas, and Marshall dissented. Id. at 326.
  46.  Jump to essay-46413 U.S. at 309-10, 312-13. Justice Stewart, concurring on other grounds, rejected this analysis, id. at 321, as did the three dissenters. Id. at 326, 338-344. The fundamental premise underlying all of this Court’s decisions holding the right to counsel applicable at ‘critical’ pretrial proceedings, is that a ‘stage’ of the prosecution must be deemed ‘critical’ for the purposes of the Sixth Amendment if it is one at which the presence of counsel is necessary ‘to protect the fairness of the trial itself.’ Id. at 339 (Justice Brennan dissenting). Examination of defendant by court-appointed psychiatrist to determine his competency to stand trial, after his indictment, was a critical stage, and he was entitled to the assistance of counsel before submitting to it. Estelle v. Smith, 451 U.S. 454, 469-71 (1981). Constructive notice is insufficient to alert counsel to psychiatric examination to assess future dangerousness of an indicted client. Satterwhite v. Texas, 486 U.S. 249 (1987) (also subjecting Estelle v. Smith violations to harmless error analysis in capital cases).
  47.  Jump to essay-47413 U.S. at 317-21. The due process standards are discussed under the Fourteenth Amendment, Criminal Identification Process, infra.
  48.  Jump to essay-48United States v. Wade, 388 U.S. 218, 219, 237 (1967); Gilbert v. California, 388 U.S. 263, 269, 272 (1967); Simmons v. United States, 390 U.S. 377, 382-83 (1968).
  49.  Jump to essay-49Stovall v. Denno, 388 U.S. 293 (1967); Foster v. California, 394 U.S. 440 (1969); Coleman v. Alabama, 399 U.S. 1 (1970).
  50.  Jump to essay-50406 U.S. 682, 689 (1972).
  51.  Jump to essay-51406 U.S. at 689-90. Justices Brennan, Douglas, and Marshall, dissenting, argued that it had never previously been doubted that Wade and Gilbert applied in preindictment lineup situations and that, in any event, the rationale of the rule was no different whatever the formal status of the case. Id. at 691. Justice White, who dissented in Wade and Gilbert, dissented in Kirby simply on the basis that those two cases controlled this one. Id. at 705. Indictment, as the quotation from Kirby indicates, is not a necessary precondition. Any initiation of judicial proceedings suffices. E.g., Brewer v. Williams, 430 U.S. 387 (1977) (suspect had been seized pursuant to an arrest warrant, arraigned, and committed by court); United States v. Gouveia, 467 U.S. 180 (1984) (Sixth Amendment attaches as of arraignment – there is no right to counsel for prison inmates placed under administrative segregation during a lengthy investigation of their participation in prison crimes).
  52.  Jump to essay-52[T]he Miranda decision was based exclusively upon the Fifth and Fourteenth Amendment privilege against compulsory self-incrimination, upon the theory that custodial interrogation is inherently coercive. 406 U.S. at 688 (emphasis by Court).
  53.  Jump to essay-53But Escobedo is not apposite here for two distinct reasons. First, the Court in retrospect perceived that the ‘prime purpose’ of Escobedo was not to vindicate the constitutional right to counsel as such, but, like Miranda, ‘to guarantee full effectuation of the privilege against self-incrimination. . . .’ Johnson v. New Jersey, 384 U.S. 719, 729 (1966). Secondly, and perhaps even more important for purely practical purposes, the Court has limited the holding of Escobedo to its own facts, Johnson, 384 U.S. at 733–34, and those facts are not remotely akin to the facts of the case before us. 406 U.S. at 689. But see id. at 693 n.3 (Justice Brennan dissenting).
  54.  Jump to essay-54Townsend v. Burke, 334 U.S. 736 (1948).
  55.  Jump to essay-55Mempa v. Rhay, 389 U.S. 128 (1967) (applied retroactively in McConnell v. Rhay, 393 U.S. 2 (1968)).
  56.  Jump to essay-56State criminal appeals, applications for collateral relief, and post-sentencing parole or probation determinations are examples of procedures with respect to which the Court has not invoked the Sixth Amendment. Using due process analysis, the Court has found no constitutional right to counsel in prison disciplinary proceedings. Wolff v. McDonnell, 418 U.S. 539, 560-70 (1974); Baxter v. Palmigiano, 425 U.S. 308, 314-15 (1976). See Fourteenth Amendment, Rights of Prisoners, infra.
  57.  Jump to essay-57Specht v. Patterson, 386 U.S. 605 (1967).
  58.  Jump to essay-58In re Groban, 352 U.S. 330 (1957). Four Justices dissented.
  59.  Jump to essay-59Anonymous v. Baker, 360 U.S. 287 (1959). Four Justices dissented.