CRS Annotated Constitution

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Protection of the Right to Retained Counsel.—The Sixth Amendment has also been held to protect absolutely the right of a defendant to retain counsel of his choice and to be represented in the fullest measure by the person of his choice. Thus, in Chandler v. Fretag,218 when a defendant appearing to plead guilty on a house– breaking charge was orally advised for the first time that, because of three prior convictions for felonies, he would be tried also as an habitual criminal and if convicted would be sentenced to life imprisonment, the court’s denial of his request for a continuance in order to consult an attorney was a violation of his Fourteenth Amendment due process rights. “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.”219 But the right to retain counsel of choice does not bar operation of forfeiture provisions, even if the result is to deny to a defendant the wherewithal to employ counsel. In Caplin & Drysdale v. United States,220 the Court upheld a federal statute requiring forfeiture to[p.1436]the government of property and proceeds derived from drug–related crimes constituting a “continuing criminal enterprise,”221 even though a portion of the forfeited assets had been used to retain defense counsel. While a defendant may spend his own money to employ counsel, the Court declared, “[a] defendant has no Sixth Amendment right to spend another person’s money for services rendered by an attorney, even if those funds are the only way that defendant will be able to retain the attorney of his choice.”222 Because the statute vests title to the forfeitable assets in the United States at the time of the criminal act,223 the defendant has no right to give them to a “third party” even if the purpose is to exercise a constitutionally protected right.224

Whenever defense counsel is representing two or more defendants and asserts in timely fashion to the trial judge that because of possible conflicts of interest between or among his clients he is unable to render effective assistance, the judge must examine the claim carefully, and unless he finds the risk too remote he must permit or appoint separate counsel.225 Subsequently, the Court elaborated upon this principle and extended it.226 First, the Sixth Amendment right to counsel applies to defendants who retain private counsel as well as to defendants served by appointed counsel. Second, judges are not automatically required to initiate an inquiry into the propriety of multiple representation, being able to assume in the absence of undefined “special circumstances” that no conflict exists. Third, to establish a violation, a defendant must show an “actual conflict of interest which adversely affected his lawyer’s performance.” Once it is established that a conflict affected the lawyer’s action, however, prejudice need not be proved.227

“[T]he right to the assistance of counsel has been understood to mean that there can be no restrictions upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary factfinding process that has been[p.1437]constitutionalized in the Sixth and Fourteenth Amendments.”228 So saying, the Court invalidated a statute empowering every judge in a nonjury criminal trial to deny the parties the right to make a final summation before rendition of judgment which had been applied in the specific case to prevent defendant’s counsel from making a summation. The opportunity to participate fully and fairly in the adversary factfinding process includes counsel’s right to make a closing argument. And, in Geders v. United States,229 the Court held that a trial judge’s order preventing defendant from consulting his counsel during a 17–hour overnight recess between his direct and cross–examination, in order to prevent tailoring of testimony or “coaching,” deprived defendant of his right to assistance of counsel and was invalid.230 Other direct and indirect restraints upon counsel and his discretion have been found to be in violation of the Amendment.231 Governmental investigative agents may interfere as well with the relationship of defense and counsel.232

Effective Assistance of Counsel.—“[T]he right to counsel is the right to the effective assistance of counsel.”233 From the beginning of the cases holding that counsel must be appointed for defendants unable to afford to retain a lawyer, the Court has indicated that appointment must be made in a manner that affords “effective aid in the preparation and trial of the case.”234 Of course, the government must not interfere with representation, either through the manner of appointment or through the imposition of restrictions upon appointed or retained counsel that would impede his ability fairly to provide a defense,235 but the Sixth Amendment[p.1438]goes further than that. “The right to counsel prevents the States from conducting trials at which persons who face incarceration must defend themselves without adequate legal assistance.”236 That is, a criminal trial initiated and conducted by government is state action which may be so fundamentally unfair that no conviction obtained thereby may be allowed to stand, irrespective of the possible fact that government did nothing itself to bring about the unfairness. Thus, ineffective assistance provided by retained counsel provides a basis for finding a Sixth Amendment denial in a trial.237

The trial judge must not only refrain from creating a situation of ineffective assistance, but may well be obligated under certain circumstances to inquire whether defendant’s counsel, because of a possible conflict of interest or otherwise, is rendering or may render ineffective assistance.238 A much more difficult issue is presented when a defendant on appeal or in a collateral proceeding alleges that his counsel was incompetent or was not competent enough to provide effective assistance. While the Court touched on the question in 1970,239 it was not until 1984, in Strickland v. Washington,240 that the Court articulated a general test for ineffective assistance of counsel in criminal trials and in capital sentencing proceedings.241


There are two components to the test: deficient attorney performance and resulting prejudice to the defense so serious as to bring the outcome of the proceeding into question. Although the gauge of effective attorney performance is an objective standard of reasonableness, the Court concluded that “[j]udicial scrutiny of counsel’s performance must be highly deferential.” Strategic choices made after thorough investigation of relevant law and facts are “virtually unchallengeable,” as are “reasonable” decisions making investigation unnecessary.242 In order to establish prejudice resulting from attorney error, the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”243 In Strickland, neither part of the test was satisfied. The attorney’s decision to forego character and psychological evidence in the capital sentencing proceeding in order to avoid evidence of the defendant’s criminal history was deemed “the result of reasonable professional judgment,” and prejudice could not be shown because “the overwhelming aggravating factors” outweighed whatever evidence of good character could have been presented.244 In Hill v. Lockhart,245 the Court applied the Strickland test to attorney decisions in plea bargaining, holding that a defendant must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty.

Supplement: [P. 1439, delete last sentence at end of first full paragraph on page and add the following:]

In Lockhart v. Fretwell,9 the Court refined the Strickland test to require that not only would a different trial result be probable because of attorney performance, but that the trial result which did occur was fundamentally unfair or unreliable.10

There are times when prejudice may be presumed, i.e. there can be “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.”246 These situations include actual or constructive denial of counsel, and denial of such basics as the right to effective cross–examination. However, “[a]part from circumstances of that magnitude[p.1440]. . . there is generally no basis for finding a Sixth Amendment violation unless the accused can show [prejudice].”247


218 348 U.S. 3 (1954) .
219 Id. at 9, 10. See also House v. Mayo, 324 U.S. 42 (1945) ; Hawk v. Olson, 326 U.S. 271 (1945) ; Reynolds v. Cochran, 365 U.S. 525 (1961) .
220 491 U.S. 617 (1989) .
221 21 U.S.C. § 853 .
222 491U.S. at 626 491U.S. at 626.
223 The statute was interpreted in United States v. Monsanto, 491 U.S. 600 (1989) , as requiring forfeiture of all assets derived from the covered offenses, and as making no exception for assets the defendant intends to use for his defense.
224 Dissenting Justice Blackmun, joined by Justices Brennan, Marshall, and Stevens, described the Court’s ruling as allowing the Sixth Amendment right to counsel of choice to be “outweighed by a legal fiction.” 491U.S. at 644 491U.S. at 644 (dissenting from both Caplin & Drysdale and Monsanto).
225 Holloway v. Arkansas, 435 U.S. 475 (1978) . Counsel had been appointed by the court.
226 Cuyler v. Sullivan, 446 U.S. 335 (1980) .
227 Id. at 348–50. For earlier cases presenting more direct violations of defendant’s rights, see Glasser v. United States, 315 U.S. 60 (1942) ; United States v. Hayman, 342 U.S. 205 (1952) ; and Ellis v. United States, 365 U.S. 674 (1958) .
228 Herring v. New York, 422 U.S. 853, 857 (1975) .
229 425 U.S. 80 (1976) .
230 Geders was distinguished in Perry v. Leeke, 488 U.S. 272 (1989) , in which the Court upheld a trial court’s order that the defendant and his counsel not consult during a 15–minute recess between the defendant’s direct testimony and his cross–examination.
231 E.g., Ferguson v. Georgia, 365 U.S. 570 (1961) (where defendant was prevented by statute from giving sworn testimony in his defense, the refusal of a state court to permit defense counsel to question him to elicit his unsworn statement denied due process because it denied him assistance of counsel); Brooks v. Tennessee, 406 U.S. 605 (1972) (alternative holding) (statute requiring defendant to testify prior to any other witness for defense or to forfeit the right to testify denied him due process by depriving him of decision of counsel on questions whether to testify and when).
232 United States v. Morrison, 449 U.S. 361 (1981) (Court assumed that investigators who met with defendant, on another matter, without knowledge or permission of counsel and who disparaged counsel and suggested she could do better without him interfered with counsel, but held that in absence of showing of adverse consequences to representation, dismissal of indictment was inappropriate remedy).
233 McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970) .
234 Powell v. Alabama, 287 U.S. 45, 71–72 (1932) ; Glasser v. United States, 315 U.S. 60, 70 (1942) .
235 E.g., Glasser v. United States, 315 U.S. 60 (1942) (trial court required defendant and codefendant to be represented by same appointed counsel despite divergent interests); Geders v. United States, 425 U.S. 80 (1976) (trial judge barred consultation between defendant and attorney overnight); Herring v. New York, 422 U.S. 853 (1975) (application of statute to bar defense counsel from making final summation).
236 Cuyler v. Sullivan, 446 U.S. 335, 344 (1980) .
237 Id. at 342–45. But see Wainwright v. Torna, 455 U.S. 586 (1982) (summarily holding that defendant may not raise ineffective assistance claim in context of proceeding in which he had no constitutional right to counsel).
238 Holloway v. Arkansas, 435 U.S. 475 (1978) (public defender representing three defendants alerted trial judge to possibility of conflicts of interest; judge should have appointed different counsel or made inquiry into possibility of conflicts); Cuyler v. Sullivan, 446 U.S. 335 (1980) (trial judge had no obligation to inquire into adequacy of multiple representation, with possible conflict of interest, in absence of raising of issue by defendant or counsel); Wood v. Georgia, 450 U.S. 261 (1981) (where counsel retained by defendants’ employer had conflict between their interests and employer’s, and all the facts were known to trial judge, he should have inquired further); Wheat v. United States, 486 U.S. 153 (1988) (district court correctly denied defendant’s waiver of right to conflict–free representation; separate representation order is justified by likelihood of attorney’s conflict of interest).
239 In McMann v. Richardson, 397 U.S. 759, 768–71 (1970) , the Court observed that whether defense counsel provided adequate representation, in advising a guilty plea, depended not on whether a court would retrospectively consider his advice right or wrong “but on whether that advice was within the range of competence demanded of attorneys in criminal cases.” See also Tollett v. Henderson, 411 U.S. 258, 266–69 (1973) ; United States v. Agurs, 427 U.S. 97, 102 n.5 (1976) .
240 466 U.S. 668 (1984) .
241 Strickland involved capital sentencing, and the Court left open the issue of what standards might apply in ordinary sentencing, where there is generally far more discretion than in capital sentencing, or in the guilt/innocence phase of a capital trial. 466U.S. at 686 466U.S. at 686.
242 466U.S. at 689–91 466U.S. at 689–91. The obligation is to stay within the wide range of legitimate, lawful, professional conduct; there is no obligation to assist the defendant in presenting perjured testimony. Nix v. Whiteside, 475 U.S. 157 (1986) . See also Georgia v. McCollum, 112S. Ct. 2348 (1992) (no right to carry out through counsel the racially discriminatory exclusion of jurors during voir dire). Also, “effective” assistance of counsel does not guarantee the accused a “meaningful relationship” of “rapport” with his attorney such that he is entitled to a continuance in order to change attorneys during a trial. Morris v. Slappy, 461 U.S. 1 (1983) . See also Jones v. Barnes, 463 U.S. 745 (1983) (no obligation to present on appeal all nonfrivolous issues requested by defendant; appointed counsel may exercise his professional judgement in determining which issues are best raised on appeal).
243 466U.S. at 694 466U.S. at 694.
244 466U.S. at 699 466U.S. at 699. Accord, Darden v. Wainwright, 477 U.S. 168 (1986) (decision not to introduce mitigating evidence).

Supplement: [P. 1439, add to n.244:]

In Hill v. Lockhart, 474 U.S. 52 (1985) , the Court applied the Strickland test to attorney decisions in plea bargaining, holding that a defendant must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty.

245 474 U.S. 52 (1985) .
246 United States v. Cronic, 466 U.S. 648, 658 (1984) .
247 466U.S. at 659 466U.S. at 659 n.26 (finding no inherently prejudicial circumstances in appointment of real estate attorney with no criminal law experience to defend mail fraud “check kiting” charges with approximately one month’s preparation time). On the other hand, an attorney’s failure to advise a client of his right to appeal, and of his right to an attorney on appeal, amounts to “a substantial showing” of denial of the right to effective counsel. Lozada v. Deeds, 498 U.S. 430, 432 (1991) (per curiam).

Supplement: [P. 1440, n.247, delete citation to Lozada v. Deeds and accompanying sentence, and substitute the following:]

Also not constituting per se ineffective assistance is a defense counsel’s failure to file a notice of appeal, or even to consult with the defendant about an appeal. Roe v. Flores–Ortega, 120 S. Ct. 1029 (2000).

Supplement Footnotes

9 506 U.S. 364 (1993) .
10 506 U.S. at 368–70 (1993) (failure of counsel to raise a constitutional claim that was valid at time of trial did not constitute “prejudice” because basis of claim had since been overruled).
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