ASSISTANCE OF COUNSEL

Absolute Right to Counsel at Trial

Historical Practice.

The records of neither the Congress that proposed what became the Sixth Amendment nor the state ratifying conventions elucidate the language on assistance of counsel. The development of the common-law principle in England had denied to anyone charged with a felony the right to retain counsel, while the right was afforded in misdemeanor cases. This rule was ameliorated in practice, however, by the judicial practice of allowing counsel to argue points of law and then generously interpreting the limits of “legal questions.” Colonial and early state practice varied, ranging from the existent English practice to appointment of counsel in a few states where needed counsel could not be retained.289 Contemporaneously with the proposal and ratification of the Sixth Amendment, Congress enacted two statutory provisions that seemed to indicate an understanding that the Sixth Amendment guarantee was limited to retained counsel by a defendant wishing and able to afford assistance.290

By federal statute, an individual tried for a capital crime in a federal court was entitled to appointed counsel, and, by judicial practice, the federal courts came to appoint counsel frequently for indigents charged with noncapital crimes, although it may be assumed that the practice fell short at times of what is now constitutionally required.291 State constitutions and statutes gradually ensured a defendant the right to appear in state trials with retained counsel, but the states were far less uniform on the existence and scope of a right to appointed counsel. It was in the context of a right to appointed counsel that the Supreme Court began to develop its modern jurisprudence on a constitutional right to counsel generally, first applying procedural due process analysis under the Fourteenth Amendment to state trials, also finding a Sixth Amendment based right to appointed counsel in federal prosecutions, and eventually applying this Sixth Amendment based right to the states.

Development of Right.

The development began in Powell v. Alabama,292 in which the Court set aside the convictions of eight black youths sentenced to death in a hastily carried-out trial without benefit of counsel. Due process, Justice Sutherland said for the Court, always requires the observance of certain fundamental personal rights associated with a hearing, and “the right to the aid of counsel is of this fundamental character.” This observation was about the right to retain counsel of one’s choice and at one’s expense, and included an eloquent statement of the necessity of counsel. “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crimes, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”293

The failure to afford the defendants an opportunity to retain counsel violated due process, but the Court acknowledged that as indigents the youths could not have retained counsel. Therefore, the Court concluded, under the circumstances—“the ignorance and illiteracy of the defendants, their youth, the circumstances of public hostility, the imprisonment and the close surveillance of the defendants by the military forces, the fact that their friends and families were all in other states and communication with them necessarily difficult, and above all that they stood in deadly peril of their lives”— “the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the Fourteenth Amendment.” The holding was narrow. “[I]n a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law . . . .”294

The next step in the expansion came in Johnson v. Zerbst,295 in which the Court announced an absolute rule requiring appointment of counsel for federal criminal defendants who could not afford to retain a lawyer. The right to assistance of counsel, Justice Black wrote for the Court, “is necessary to insure fundamental human rights of life and liberty.” Without stopping to distinguish between the right to retain counsel and the right to have counsel provided if the defendant cannot afford to hire one, the Justice quoted Justice Sutherland’s invocation of the necessity of legal counsel for even the intelligent and educated layman and said: “The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.”296 Any waiver, the Court ruled, must be by the intelligent choice of the defendant, will not be presumed from a silent record, and must be determined by the trial court before proceeding in the absence of counsel.297

An effort to obtain the same rule in the state courts in all criminal proceedings was rebuffed in Betts v. Brady.298 Justice Roberts for the Court observed that the Sixth Amendment would compel the result only in federal courts but that in state courts the Due Process Clause of the Fourteenth Amendment “formulates a concept less rigid and more fluid” than those guarantees embodied in the Bill of Rights, although a state denial of a right protected in one of the first eight Amendments might “in certain circumstances” be a violation of due process. The question was rather “whether the constraint laid by the Amendment upon the national courts expresses a rule so fundamental and essential to a fair trial, and so, to due process of law, that it is made obligatory upon the States by the Fourteenth Amendment.”299 Examining the common-law rules, the English practice, and the state constitutions, laws and practices, the Court concluded that it was the “considered judgment of the people, their representatives and their courts that appointment of counsel is not a fundamental right essential to a fair trial.” Want of counsel in a particular case might result in a conviction lacking in fundamental fairness and so necessitate the interposition of constitutional restriction upon state practice, but this was not the general rule.300 Justice Black in dissent argued that the Fourteenth Amendment made the Sixth applicable to the states and required the appointment of counsel, but that even on the Court’s terms counsel was a fundamental right and appointment was required by due process.301

Over time the Court abandoned the “special circumstances” language of Powell v. Alabama302 when capital cases were involved and finally in Hamilton v. Alabama,303 held that in a capital case a defendant need make no showing of particularized need or of prejudice resulting from absence of counsel; henceforth, assistance of counsel was a constitutional requisite in capital cases. In non-capital cases, developments were such that Justice Harlan could assert that “the ‘special circumstances’ rule has continued to exist in form while its substance has been substantially and steadily eroded.”304 The rule was designed to afford some certainty in the determination of when failure to appoint counsel would result in a trial lacking in “fundamental fairness.” Generally, the Court developed three categories of prejudicial factors, often overlapping in individual cases, which required the furnishing of assistance of counsel. There were (1) the personal characteristics of the defendant which made it unlikely he could obtain an adequate defense of his own,305 (2) the technical complexity of the charges or of possible defenses to the charges,306 and (3) events occurring at trial that raised problems of prejudice.307 The last characteristic especially had been used by the Court to set aside convictions occurring in the absence of counsel,308 and the last case rejecting a claim of denial of assistance of counsel had been decided in 1950.309

Against this background, a unanimous Court in Gideon v. Wainwright310 overruled Betts v. Brady and held “that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”311 Justice Black, a dissenter in the 1942 decision, asserted for the Court that Betts was an “abrupt break” with earlier precedents, citing Powell and Johnson v. Zerbst. Rejecting the Betts reasoning, the Court decided that the right to assistance of counsel is “fundamental” and the Fourteenth Amendment does make the right constitutionally required in state courts.312 The Court’s opinion in Gideon left unanswered the question whether the right to assistance of counsel could be claimed by defendants charged with misdemeanors or serious misdemeanors as well as with felonies, and it was not until later that the Court held that the right applies to any misdemeanor case in which imprisonment is imposed—that no person may be sentenced to jail who was convicted in the absence of counsel, unless he validly waived his right.313 The Court subsequently extended the right to cases where a suspended sentence or probationary period is imposed, on the theory that any future incarceration that occurred would be based on the original uncounseled conviction.314

Because the absence of counsel when a defendant is convicted or pleads guilty goes to the fairness of the proceedings and undermines the presumption of reliability that attaches to a judgment of a court, Gideon has been held fully retroactive, so that convictions obtained in the absence of counsel without a valid waiver are not only voidable,315 but also may not be subsequently used either to support guilt in a new trial or to enhance punishment upon a valid conviction.316

Limits on the Right to Retained Counsel.

Gideon v. Wainwright317 is 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.318 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.319 “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.”320

Though there is a presumption under the Sixth Amendment that a defendant may retain counsel of choice, the right to choose a particular attorney is not absolute. The prospect of compromised loyalty or competence may be sufficiently immediate and serious for a court to deny a defendant’s selection. In Wheat v. United States, the district court had denied a defendant’s proffered waiver of conflict of interest and refused to allow representation by an attorney who represented the defendant’s co-conspirators in an illegal drug enterprise.321 Upholding the district court’s discretion to disallow representation in instances of actual conflict of interests or serious potential for conflict, the Court mentioned other situations in which a defendant’s choice may not be honored. A defendant, for example, is not entitled to an advocate who is not a member of the bar, nor may a defendant insist on representation by an attorney who denies counsel for financial reasons or otherwise, nor may a defendant demand the services of a lawyer who may be compromised by past or ongoing relationships with the Government.322

The right to retain counsel of choice generally does not bar operation of forfeiture provisions, even if the forfeiture serves to deny to a defendant the wherewithal to employ counsel. In Caplin & Drysdale v. United States,323 the Court upheld a federal statute requiring forfeiture to the government of property and proceeds derived from drug-related crimes constituting a “continuing criminal enterprise,”324 even though a portion of the forfeited assets had been used to retain defense counsel. Although 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.”325 Because the statute vests title to the forfeitable assets in the United States at the time of the criminal act,326 the defendant has no right to give them to a “third party” even if the purpose is to exercise a constitutionally protected right.327 Moreover, on the same day Caplin & Drysdale was decided, the Court, in United States v. Monsanto, held that the government may, prior to trial, freeze assets that a defendant needs to hire an attorney if probable cause exists to “believe that the property will ultimately be proved forfeitable.”328 Nonetheless, the holdings from Caplin & Drysdale and Monsanto are limited in that the Court, in Luis v. United States, has held that the Sixth Amendment provides criminal defendants the right to preserve legitimate, untainted assets unrelated to the underlying crime in order to retain counsel of their choice.329

Nevertheless, where the right to be assisted by counsel of one’s choice is wrongly denied, a Sixth Amendment violation occurs regardless of whether the alternate counsel retained was effective, or whether the denial caused prejudice to the defendant.330 Further, because such a denial is not a “trial error” (a constitutional error that occurs during presentation of a case to the jury), but a “structural defect” (a constitutional error that affects the framework of the trial),331 the Court had held that the decision is not subject to a “harmless error” analysis.332

Effective Assistance of Counsel.

“[T]he right to counsel is the right to the effective assistance of counsel.”333 This right to effective assistance has two aspects. First, a court may not restrict defense counsel in the exercise of the representational duties and prerogatives attendant to our adversarial system of justice.334 Second, defense counsel can deprive a defendant of effective assistance by failing to provide competent representation that is adequate to ensure a fair trial,335 or, more broadly, a just outcome.336 The right to effective assistance may be implicated as early as the appointment process. Cases requiring appointment of counsel for indigent defendants hold that, as a matter of due process, the assignment of defense counsel must be timely and made in a manner that affords “effective aid in the preparation and trial of the case.”337 The Sixth Amendment also is implicated when a court appoints a defendant’s attorney to represent his co-defendant as well, where the co-defendants are known to have potentially conflicting interests.338

Restrictions on representation imposed during trial also have been stricken as impermissible interference with defense counsel. The Court invalidated application of a statute that empowered a judge to deny final summations before judgment in a nonjury trial: “The right to the assistance of counsel . . . ensures to the defense in a criminal trial the opportunity to participate fully and fairly . . . .”339 And, in Geders v. United States,340 the Court held that a trial judge’s order preventing a defendant from consulting his counsel during a 17-hour overnight recess between his direct and cross-examination, to prevent tailoring of testimony or “coaching,” deprived the defendant of his right to assistance of counsel and was invalid.341 Other direct and indirect restraints upon counsel have been found to violate the Amendment.342 Government investigators also are barred from impermissibly interfering with the relationship between defendant and counsel.343

Additionally, the Sixth Amendment’s right to effective assistance attaches directly to the fidelity and competence of defense counsel’s services, regardless of whether counsel is appointed or privately retained or whether the government in any way brought about the defective representation. “The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant’s entitlement to constitutional protection.”344 To an argument that a state need only appoint for indigent defendants to satisfy Sixth Amendment requirements, the Court responded that “the State’s conduct of a criminal trial itself implicates the State in the defendant’s conviction”, and no state may proceed against a defendant whose counsel, appointed or retained, cannot defend him fully and faithfully.345

Fidelity has been at issue in cases of joint representation of co-defendants. In Glasser v. United States, the Court found a trial judge erred in appointing one defendant’s attorney to also represent a co-defendant in a conspiracy case; the judge knew of potential conflicts of interest in the case, and the original defendant had earlier expressed a desire for sole representation.346 Counsel for codefendants in another case made a timely assertion to the trial judge that continuing joint representation could pose a conflict of interest, and the Court found that the trial judge erred in not examining the assertion of potential conflict closely and permitting or appointing separate counsel, absent a finding that the risk of conflict was remote.347 Joint representation does not deny effective assistance per se, however. 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. On the other hand, a defendant who objects to joint representation must be given an opportunity to make the case that potential conflicts exists. Absent an objection, a defendant must later show the existence of an “actual conflict of interest which adversely affected his lawyer’s performance.” Once it is established that a conflict did actively affect the lawyer’s joint representation, however, a defendant need not additionally prove that the lawyer’s representation was prejudicial to the outcome of the case.348

As to attorney competence, although the Court touched on the question in 1970,349 it did not articulate a general Sixth Amendment standard for adequacy of representation until 1984 in Strickland v. Washington.350 There are two components to the Strickland test: deficient representation and resulting prejudice to the defense so serious as to bring the outcome of the proceeding into question.351 The gauge of deficient representation is an objective standard of reasonableness “under prevailing professional norms” that takes into account “all the circumstances” and evaluates conduct “from counsel’s perspective at the time.”352 Providing effective assistance is not limited to a single path. No detailed rules or guidelines for adequate representation are appropriate: “Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.”353

Because even the most highly competent attorneys might choose to defend a client differently, “[j]udicial scrutiny of counsel’s performance must be highly deferential.”354 Counsel’s obligation is a general one: to act within the wide range of legitimate, lawful, and reasonable conduct.355 “[S]trategic choices made after thorough investigation of relevant law and facts . . . are virtually unchallengeable,”356 as is “a reasonable decision that makes particular investigations unnecessary,”357 or a reasonable decision selecting which issues to raise on appeal.358 In Strickland itself, the allegation of ineffective assistance failed: The Court found that the defense attorney’s decision to forgo character and psychological evidence in a capital sentencing proceeding to avoid rebuttal evidence of the defendant’s criminal history was “the result of reasonable professional judgment.”359

On the other hand, defense counsel does have a general duty to investigate a defendant’s background, and limiting investigation and presentation of mitigating evidence must be supported by reasonable efforts and judgment.360 Also, even though deference to counsel’s choices may seem particularly apt in the unstructured, often style-driven arena of plea bargaining,361 an accused, in considering a plea, is clearly entitled to advice of counsel on the prospect of conviction at trial and the extent of punishment that might be imposed. Thus, in Lafler v. Cooper, the government conceded that the deficient representation part of the Strickland test was met when an attorney erroneously advised the defendant during plea negotiations that the facts in his case would not support a conviction for attempted murder.362

Moreover, in Padilla v. Kentucky, the Court held that defense counsel’s Sixth Amendment duty to a client considering a plea goes beyond advice on issues directly before the criminal court to reach advice on deportation.363 Because of its severity, historical association with the criminal justice system, and increasing certainty following conviction and imprisonment, deportation was found to be of a “unique nature”: the Court pointedly stated that it was not addressing whether distinguishing between direct and collateral consequences of conviction was appropriate in bounding defense counsel’s constitutional duty in a criminal case.364 Further, the Court held that defense counsel failed to meet prevailing professional norms in representing to Padilla that he did not have to worry about deportation because of the length of his legal residency in the U.S. The Court emphasized that this conclusion was not based on the attorney’s mistaken advice, but rather on a broader obligation to inform a noncitizen client whether a plea carries a risk of deportation.365 Silence is not an option. On the issue of prejudice to Padilla from ineffective assistance, the Court sent the case back to lower courts for further findings.366

What constitutes prejudice from attorney error, the second Strickland requirement, has proved to be a more difficult issue, and one that gained additional doctrinal salience after Lafler and Frye.367 The touchstone of “prejudice” under Strickland is that 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.”368 Nevertheless, defendants frequently fall short on the prejudice requirement, with the Court posing it as a threshold matter and failing to find how other representation could have made a significant difference.369

Beyond Strickland’s “reasonable probability of a different result” starting point, there are issues of when an “outcome determinative” test alone suffices, what exceptions exist, and whether the general rule should be modified. In Lockhart v. Fretwell, the Court appeared to refine the Strickland test when it stated that an “analysis focusing solely on mere outcome determination” is “defective” unless attention is also given to whether the result was “fundamentally unfair or unreliable.”370 However, the Court subsequently characterized Lockhart as addressing a class of exceptions to the “outcome determinative” test, and not supplanting it. According to Williams v. Taylor, it would disserve justice in some circumstances to find prejudice premised on a likelihood of a different outcome.371 An overriding interest in fundamental fairness precluded a prejudice finding in Lockhart, for example, because such a finding would be nothing more than a fortuitous windfall for the defendant. As another example, it would be unjust to find legitimate prejudice in a defense attorney’s interference with a defendant’s perjured testimony, even if that testimony could have altered a trial’s outcome.372 In Lafler v. Cooper, four dissenters further would have imposed a fundamental fairness overlay to foreclose relief whenever a defendant proceeded to trial after turning down a plea offer because of incompetent advice of counsel.373 In their view, conviction after a full and fair trial cannot be prejudicial in a constitutional sense, even if a forgone plea would have yielded lesser charges or punishment. This view did not prevail, however.

A second category of recognized exceptions to the application of the “outcome determinative” prejudice test includes the relatively limited number of cases in which prejudice is presumed. This presumption occurs when there are “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.”374 These situations, the Court explained in United States v. Cronic, involve some kind of “breakdown of the adversarial process,” and include actual or constructive denial of counsel, denial of such basics as the right to effective cross-examination, or failure of counsel to subject the prosecution’s case to meaningful adversarial testing.375 “Apart from circumstances of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation unless the accused can show [prejudice],”376 and consequently most claims of inadequate representation continue to be measured by the Strickland standard.377

Self-Representation.

The Court has held that the Sixth Amend-ment, in addition to guaranteeing the right to retained or appointed counsel, also guarantees a defendant the right to represent himself.378 It is a right the defendant must adopt knowingly and intelligently; under some circumstances the trial judge may deny the authority to exercise it, as when the defendant simply lacks the competence to make a knowing or intelligent waiver of counsel or when his self-representation is so disruptive of orderly procedures that the judge may curtail it.379 The right applies only at trial; there is no constitutional right to self-representation on direct appeal from a criminal conviction.380

The essential elements of self-representation were spelled out in McKaskle v. Wiggins,381 a case involving the self-represented defendant’s rights vis-a-vis “standby counsel” appointed by the trial court. The “core of the Faretta right” is that the defendant “is entitled to preserve actual control over the case he chooses to present to the jury,” and consequently, standby counsel’s participation “should not be allowed to destroy the jury’s perception that the defendant is representing himself.”382 But participation of standby counsel even in the jury’s presence and over the defendant’s objection does not violate the defendant’s Sixth Amendment rights when serving the basic purpose of aiding the defendant in complying with routine courtroom procedures and protocols and thereby relieving the trial judge of these tasks.383

Right to Assistance of Counsel in Nontrial Situations

Judicial Proceedings Before Trial.

Even a preliminary hear-ing where no government prosecutor is present can trigger the right to counsel.384 “[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.”385 “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.”386 Thus, counsel need be appointed only “as far in advance of trial, and as far in advance of any pre-trial ‘critical stage,’ as necessary to guarantee effective assistance at trial.”387

Dicta in Powell v. Alabama,388 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,389 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,390 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,391 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.392

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.393 It held in Spano v. New York394 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,395 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,396 the Court held that preindictment interrogation violated the Sixth Amendment. But Miranda v. Arizona397 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.398

Massiah was reaffirmed and in some respects expanded by the Court. In Brewer v. Williams,399 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,400 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. Arizona401 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.”402 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.”403 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,404 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.”405 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.406

In Montejo v. Louisiana,407 the Court overruled Michigan v. Jackson, finding that the Fifth Amendment’s “Miranda-EdwardsMinnick 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.”408 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.”409 “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.410 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.”411 Thus, the Court in Montejo overruled Michigan v. Jackson.412

The remedy for violation of the Sixth Amendment rule is exclusion from evidence of statements so obtained.413 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,414 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.”415 Also, an exception to the Sixth Amendment exclusionary rule has been recognized for the purpose of impeaching the defendant’s trial testimony.416

Lineups and Other Identification Situations.

The concept of the “critical stage” was again expanded and its rationale formulated in United States v. Wade,417 which, with Gilbert v. California,

418 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.’ ”419

“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.”420 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.421 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.422 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.423

In United States v. Ash,424 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.”425 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.426

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,427 but the cases in which the rulings were denied retroactive application involved preindictment lineups.428 Nevertheless, in Kirby v. Illinois,429 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.”430 The Court’s distinguishing of the underlying basis for Miranda v. Arizona431 left that case basically unaffected by Kirby, but it appears that Escobedo v. Illinois,432 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,433 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.434 Beyond this, however, the Court has eschewed Sixth Amendment analysis, instead delimiting the right to counsel under due process and equal protection principles.435

Noncriminal and Investigatory Proceedings.

Commit-ment proceedings that lead to the imposition of essentially criminal punishment are subject to the Due Process Clause and require the assistance of counsel.436 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.437 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.438

Footnotes

289
W. BEANEY, THE RIGHT TO COUNSEL IN AMERICAN COURTS 8–26 (1955). back
290
Section 35 of the Judiciary Act of 1789, ch. 20, 1 Stat. 73, provided that parties in federal courts could manage and plead their own causes personally or by the assistance of counsel as provided by the rules of court. The Act of April 30, 1790, ch. 9, 1 Stat. 118, provided: “Every person who is indicted of treason or other capital crime, shall be allowed to make his full defense by counsel learned in the law; and the court before which he is tried, or some judge thereof, shall immediately, upon his request, assign to him such counsel not exceeding two, as he may desire, and they shall have free access to him at all reasonable hours.” back
291
W. BEANEY, THE RIGHT TO COUNSEL IN AMERICAN COURTS 29–30 (1955). back
292
287 U.S. 45 (1932). back
293
287 U.S. at 68–69. back
294
287 U.S. at 71. back
295
304 U.S. 458 (1938). back
296
304 U.S. at 462, 463. back
297
304 U.S. at 464–65. The standards for a valid waiver were tightened in Walker v. Johnston, 312 U.S. 275 (1941), setting aside a guilty plea made without assistance of counsel, by a ruling requiring that a defendant appearing in court be advised of his right to counsel and asked whether or not he wished to waive the right. See also Von Moltke v. Gillies, 332 U.S. 708 (1948); Carnley v. Cochran, 369 U.S. 506 (1962). A waiver must be knowing, voluntary, and intelligent, but need not be based on a full and complete understanding of all of the consequences. Iowa v. Tovar, 541 U.S. 77 (2004) (holding that warnings by trial judge detailing risks of waiving right to counsel are not constitutionally required before accepting guilty plea from uncounseled defendant). back
298
316 U.S. 455 (1942). back
299
316 U.S. at 461–62, 465. back
300
316 U.S. at 471, 473. back
301
316 U.S. at 474 (joined by Justices Douglas and Murphy). back
302
287 U.S. 45, 71 (1932). back
303
368 U.S. 52 (1961). Earlier cases employing the “special circumstances” language were Williams v. Kaiser, 323 U.S. 471 (1945); Tompkins v. Missouri, 323 U.S. 485 (1945); Hawk v. Olson, 326 U.S. 271 (1945); De Meerleer v. Michigan, 329 U.S. 663 (1947); Marino v. Ragen, 332 U.S. 561 (1947); Haley v. Ohio, 332 U.S. 596 (1948). Dicta appeared in several cases thereafter suggesting an absolute right to counsel in capital cases. Bute v. Illinois, 333 U.S. 640, 674 (1948); Uveges v. Pennsylvania, 335 U.S. 437, 441 (1948). A state court decision finding a waiver of the right in a capital case was upheld in Carter v. Illinois, 329 U.S. 173 (1946). back
304
Gideon v. Wainwright, 372 U.S. 335, 350 (1963). back
305
Youth and immaturity (Moore v. Michigan, 355 U.S. 155 (1957); Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116 (1956); Uveges v. Pennsylvania, 335 U.S. 437 (1948); Wade v. Mayo, 334 U.S. 672 (1948); Marino v. Ragen, 332 U.S. 561 (1947); De Meerleer v. Michigan, 329 U.S. 663 (1947)), inexperience (Moore v. Michigan, supra (limited education), Uveges v. Pennsylvania, supra), and insanity or mental abnormality (Massey v. Moore, 348 U.S. 105 (1954); Palmer v. Ashe, 342 U.S. 134 (1951)), were commonly cited characteristics of the defendant demonstrating the necessity for assistance of counsel. back
306
Technicality of the crime charged (Moore v. Michigan, 355 U.S. 155 (1957); Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116 (1956); Williams v. Kaiser, 323 U.S. 471 (1945)), or the technicality of a possible defense (Rice v. Olson, 324 U.S. 786 (1945); McNeal v. Culver, 365 U.S. 109 (1961)), were commonly cited. back
307
The deliberate or careless overreaching by the court or the prosecutor (Gibbs v. Burke, 337 U.S. 772 (1949); Townsend v. Burke, 334 U.S. 736 (1948); Palmer v. Ashe, 342 U.S. 134 (1951); White v. Ragen, 324 U.S. 760 (1945)), prejudicial developments during the trial (Cash v. Culver, 358 U.S. 633 (1959); Gibbs v. Burke, supra), and questionable proceedings at sentencing (Townsend v. Burke, supra), were commonly cited. back
308
Hudson v. North Carolina, 363 U.S. 697 (1960), held that an unrepresented defendant had been prejudiced when his co-defendant’s counsel plead his client guilty in the presence of the jury, the applicable state rules to avoid prejudice in such situation were unclear, and the defendant in any event had taken no steps to protect himself. The case seemed to require reversal of any conviction when the record contained a prejudicial occurrence that under state law might have been prevented or ameliorated. Carnley v. Cochran, 369 U.S. 506 (1962), reversed a conviction because the unrepresented defendant failed to follow some advantageous procedure that a lawyer might have utilized. Chewning v. Cunningham, 368 U.S. 443 (1962), found that a lawyer might have developed several defenses and adopted several tactics to defeat a charge under a state recidivist statute, and that therefore the unrepresented defendant had been prejudiced. back
309
Quicksal v. Michigan, 339 U.S. 660 (1950). See also Canizio v. New York, 327 U.S. 82 (1946); Foster v. Illinois, 332 U.S. 134 (1947); Gayes v. New York, 332 U.S. 145 (1947); Bute v. Illinois, 333 U.S. 640 (1948); Gryger v. Burke, 334 U.S. 728 (1948). Cf. White v. Ragen, 324 U.S. 760 (1945). back
310
372 U.S. 335 (1963). back
311
372 U.S. at 344. back
312
372 U.S. at 342–43, 344. Justice Black, of course, believed the Fourteenth Amendment made applicable to the States all the provisions of the Bill of Rights, Adamson v. California, 332 U.S. 46, 71 (1947), but for purposes of delivering the opinion of the Court followed the due process absorption doctrine. Justice Douglas, concurring, maintained the incorporation position. Gideon, 372 U.S. at 345. Justice Harlan concurred, objecting both to the Court’s manner of overruling Betts v. Brady and to the incorporation implications of the opinion. Id. at 349. back
313
Scott v. Illinois, 440 U.S. 367 (1979), adopted a rule of actual punishment and thus modified Argersinger v. Hamlin, 407 U.S. 25 (1972), which had held counsel required if imprisonment were possible. The Court has also extended the right of assistance of counsel to juvenile proceedings. In re Gault, 387 U.S. 1 (1967). See also Specht v. Patterson, 386 U.S. 605 (1967). back
314
Alabama v. Shelton, 535 U.S. 654 (2002). back
315
Pickelsimer v. Wainwright, 375 U.S. 2 (1963); Doughty v. Maxwell, 376 U.S. 202 (1964); Kitchens v. Smith, 401 U.S. 847 (1971). See Linkletter v. Walker, 381 U.S. 618, 639 (1965). back
316
Loper v. Beto, 405 U.S. 473 (1972) (error to have permitted counseled defendant in 1947 trial to have his credibility impeached by introduction of prior uncounseled convictions in the 1930s; Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist dissented); United States v. Tucker, 404 U.S. 443 (1972) (error for sentencing judge in 1953 to have relied on two previous convictions at which defendant was without counsel); Burgett v. Texas, 389 U.S. 109 (1967) (admission of record of prior conviction without the assistance of counsel at trial, with instruction to jury to regard it only for purposes of determining sentence if it found defendant guilty, but not to use it in considering guilt, was inherently prejudicial); but see United States v. Bryant, 579 U.S. ___, No. 15–420, slip op. at 13 (2016) (holding that the use of prior, uncounseled tribal-court domestic abuse convictions as the predicates for a sentence enhancement in a subsequent conviction does not violate the Sixth Amendment right to counsel, as repeat offender laws penalize only the last offense committed by the defendant); Nichols v. United States, 511 U.S. 738 (1994) (as Scott v. Illinois, 440 U.S. 367 (1979) recognized that an uncounseled misdemeanor conviction is valid if defendant is not incarcerated, such a conviction may be used as the basis for penalty enhancement upon a subsequent conviction). back
317
372 U.S. 335 (1963). back
318
E.g., Wheat v. United States, 486 U.S. 153, 158 (1988). back
319
348 U.S. 3 (1954). back
320
348 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). back
321
486 U.S. 153 (1988). back
322
486 U.S. at 159. back
323
491 U.S. 617 (1989). back
324
21 U.S.C. § 853. back
325
491 U.S. at 626. back
326
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. back
327
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.” 491 U.S. at 644 (dissenting from both Caplin & Drysdale and Monsanto). back
328
Monsanto, 491 U.S. at 615 (“Indeed, it would be odd to conclude that the Government may not restrain property, such as the home and apartment in respondent’s possession, based on a finding of probable cause, when we have held that . . . the Government may restrain persons where there is a finding of probable cause to believe that the accused has committed a serious offense.”). A subsequent case held that where a grand jury had returned an indictment based on probable cause, that conclusion was binding on a court during forfeiture proceedings and the defendants do not have a right to have such a conclusion re-examined in a separate judicial hearing in order to unfreeze the assets to pay for their counsel. Kaley v. United States, 571 U.S. ___, No. 12–464, slip op. (2014). back
329
578 U.S. ___, No. 14–419, slip op. at 1 (2016) (announcing the judgment of the Court). The Court in Luis split as to the reasoning for holding that a pretrial freeze of untainted assets violates a criminal defendant’s Sixth Amendment right to counsel of choice. Four Justices employed a balancing test, weighing the government’s contingent future interest in the untainted assets against the interests in preserving the right to counsel—a right at the “heart of a fair, effective criminal justice system”—in concluding that the defendant had the right to use innocent property to pay a reasonable fee for assistance of counsel. See id. at 11–16 (Breyer, J., joined by Roberts, C.J., Ginsburg & Sotomayor, JJ.). Justice Thomas, in providing the fifth and deciding vote, concurred in judgment only, contending that “textual understanding and history” alone suffice to “establish that the Sixth Amendment prevents the Government from freezing untainted assets in order to secure potential forfeiture.” See id. at 1 (Thomas, J., concurring); see also id. at 9 (“I cannot go further and endorse the plurality’s atextual balancing analysis.”). back
330
United States v. Gonzalez-Lopez, 548 U.S. 140, 144–45 (2006). back
331
Arizona v. Fulminante, 499 U.S. 279, 307–310 (1991). back
332
Gonzalez-Lopez, 548 U.S. at 148–49. The Court noted that an important component of the finding that denial of the right to choose one’s own counsel was a “structural defect” was the difficulty of assessing the effect of such denial on a trial’s outcome. Id. at 149 n.4. back
333
McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). “[I]f the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel . . . .” 397 U.S. at 771. As a corollary, there is no Sixth Amendment right to effective assistance where there is no Sixth Amendment right to counsel. 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). back
334
E.g., 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). back
335
Strickland v. Washington, 466 U.S. 668, 686 (1984). back
336
Lafler v. Cooper, 566 U.S. ___, No. 10–209, slip op. (2012) (erroneous advice during plea bargaining). back
337
Powell v. Alabama, 287 U.S. 45, 71–72 (1932); Glasser v. United States, 315 U.S. 60, 70 (1942). back
338
Glasser v. United States, 315 U.S. 60 (1942). back
339
Herring v. New York, 422 U.S. 853, 858 (1975). “[T]he right to assistance to 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 constitutionalized in the Sixth and Fourteenth Amendments.” 422 U.S. at 857. back
340
425 U.S. 80 (1976). back
341
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. back
342
E.g., Ferguson v. Georgia, 365 U.S. 570 (1961) (where Georgia statute, uniquely, barred sworn testimony by defendants, a defendant was entitled to the assistance of counsel in presenting the unsworn statement allowed him under Georgia law); 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 the tactical advice of counsel on whether to testify and when). back
343
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 Court held that in absence of showing of adverse consequences to representation, dismissal of indictment was inappropriate remedy). back
344
Cuyler v. Sullivan, 446 U.S. 335, 344 (1980). back
345
Id. back
346
315 U.S. 60 (1942). back
347
Holloway v. Arkansas, 435 U.S. 475 (1978). Counsel had been appointed by the court. back
348
Cuyler v. Sullivan, 446 U.S. 335, 348–50 (1980). Accord But see 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). Where an alleged conflict is not premised on joint representation, but rather on a prior representation of a different client, for example, a defendant may be required to show actual prejudice in addition to a potential conflict. Mickens v. Taylor, 535 U.S. 162 (2002). 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, 356 U.S. 674 (1958). back
349
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). back
350
466 U.S. 668 (1984). Strickland involved capital sentencing, and the Court had left open the since-resolved 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. 466 U.S. at 686. back
351
The Court often emphasizes that the Strckland test is necessarily difficult to pass: Ineffective assistance of counsel claims can put rules of waiver and forfeiture at issue and otherwise threaten the integrity of the adversarial system if wide-ranging, after-the-fact second-guessing of counsel’s action is freely encouraged. E.g., Harrington v. Richter, 562 U.S. ___, No. 09–587, slip op. at 15 (2011). Furthermore, ineffective assistance of counsel claims frequently are asserted in federal court to support petitions for writs of habeas corpus filed by state prisoners. Making a successful Strickland claim in a habeas context, as opposed to direct review, was made doubly daunting by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Pub. L. No. 104–132, § 104, 110 Stat. 1218–1219, amending 28 U.S.C. § 2254. After the passage of AEDPA, one must go beyond showing that a state court applied federal law incorrectly to also show that the court misapplied established Supreme Court precedent in a manner that no fair-minded jurist could find to be reasonable. Harrington v. Richter, 562 U.S. ___, No. 09–587, slip op. at 10–14, 15–16 (counsel’s decision to forgo inquiry into blood evidence held to be at least arguably reasonable). See also Burt v. Titlow, 571 U.S. ___, No. 12–414, slip op. (2013); Cullen v. Pinholster, 563 U.S. 170 (2011). back
352
466 U.S. at 688, 689. See also Maryland v. Kulbicki, 577 U.S. ___, No. 14–848, slip op. at 3 (2015) (per curiam) (reversing an opinion by Maryland’s highest state court, which found that counsel was ineffective because the defendant’s attorneys did not question the methodology used by the state in analyzing bullet fragments, on the grounds that this methodology “was widely accepted” at the time of trial, and courts “regularly admitted [such] evidence”). back
353
466 U.S. at 689. Strickland observed that “American Bar Association standards and the like” may reflect prevailing norms of practice, “but they are only guides.” Id. at 688. Subsequent cases also cite ABA standards as touchstones of prevailing norms of practice. E.g., Wiggins v. Smith, 539 U.S. 510, 524 (2003), and Rompilla v. Beard, 545 U.S. 374, 387 (2005). But in Bobby v. Van Hook, the Court held that the Sixth Circuit had erred in assessing an attorney’s conduct in the 1980s under 2003 ABA guidelines, and also noted that its holding “should not be regarded as accepting the legitimacy of a less categorical use of the [2003] Guidelines to evaluate post- 2003 representation.” . 558 U.S. ___, No. 09–144, slip op. at 5 n.1 (2009) (per curiam). back
354
Strickland, 466 U.S. at 689. The purpose is “not to improve the quality of legal representation, . . . [but] simply to ensure that criminal defendants receive a fair trial.” Id. back
355
There is no obligation to assist the defendant in presenting perjured testimony, Nix v. Whiteside, 475 U.S. 157 (1986), and a defendant has no right to require his counsel to use peremptory challenges to exclude jurors on the basis of race. Georgia v. McCollum, 505 U.S. 42 (1992). 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). back
356
Strickland, 466 U.S. at 690. See also Yarborough v. Gentry, 540 U.S. 1 (2003) (deference to attorney’s choice of tactics for closing argument); Burt, slip op. at 10 (2013) (where a reasonable interpretation of the record indicated that a criminal defendant claimed actual innocence, the defendant’s attorney was justified in withdrawing a guilty plea). back
357
Strickland, 466 U.S. at 691. See also Woodford v. Visciotti, 537 U.S. 19 (2002) (state courts could reasonably have concluded that failure to present mitigating evidence was outweighed by “severe” aggravating factors); Schriro v. Landrigan, 550 U.S. 465 (2007) (federal district court was within its discretion to conclude that attorney’s failure to present mitigating evidence made no difference in sentencing). back
358
There is no obligation to present on appeal all nonfrivolous issues requested by the defendant. Jones v. Barnes, 463 U.S. 745 (1983) (appointed counsel may exercise his professional judgment in determining which issues are best raised on appeal). back
359
466 U.S. at 699. Accord Wong v. Belmontes, 558 U.S. ___, No. 08–1263 (2009) (per curiam); Darden v. Wainwright, 477 U.S. 168 (1986) (decision not to introduce mitigating evidence). back
360
See Buck v. Davis, 580 U.S. ___, No. 15–8049, slip op. at 17 (2017) (concluding that “[n]o competent defense attorney would introduce” evidence that his client was a future danger because of his race); see also Hinton v. Alabama, 571 U.S. ___, No. 13–6440, slip op. (2014) (per curiam) (holding that an attorney’s hiring of a questionably competent expert witness because of a mistaken belief in the legal limit on the amount of funds payable on behalf of an indigent defendant constitutes ineffective assistance); Sears v. Upton, 561 U.S. 945, 952 (2010) (concluding that the “cursory nature” of a defense counsel’s investigation into mitigation evidence was constitutionally ineffective); Porter v. McCollum, 558 U.S. 30, 40 (2009) (holding that an attorney’s failure to interview witnesses or search records in preparation for penalty phase of capital murder trial constituted ineffective assistance of counsel); Rompilla v. Beard, 545 U.S. 374 (2005) (concluding that a defendant’s attorneys’ failure to consult trial transcripts from a prior conviction that the attorneys knew the prosecution would rely on in arguing for the death penalty was inadequate); Wiggins v. Smith, 539 U.S. 510 (2003) (holding that attorney’s failure to investigate defendant’s personal history and present important mitigating evidence at capital sentencing was objectively unreasonable). back
361
See, e.g., Premo v. Moore, 562 U.S. ___, No. 09–658, slip op. (2011). back
362
Lafler v. Cooper, 566 U.S. ___, No. 10–209, slip op. (2012). Failure to communicate a plea offer to a defendant also may amount to deficient representation. Missouri v. Frye, 566 U.S. ___, No. 10–444, slip op. (2012) (“[A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.”). back
363
Padilla v. Kentucky, 559 U.S. ___, No. 08–651, slip op. (2010). back
364
559 U.S. ___, No. 08–651, slip op. at 8. back
365
559 U.S. ___, No. 08–651, slip op. at 12–16. back
366
In Chaidez v. United States, 568 U.S. ___, No. 11–820, slip op. (2013), the Court held that Padilla announced a “new rule” of criminal procedure that did not apply “retroactively” during collateral review of convictions then already final. For a discussion of retroactive application of the Court’s criminal procedure decisions, see supra Article III: Section 2. Judicial Power and Jurisdiction: Clause 1. Cases and Controversies; Grants of Jurisdiction: Judicial Power and Jurisdiction-Cases and Controversies: The Requirements of a Real Interest: Retroactivity Versus Prospectivity. back
367
The Frye Court observed that, according to the Bureau of Justice Statistics, ninety-seven percent of recent federal convictions and ninety-four percent of recent state convictions had resulted from guilty pleas. Hill v. Lockhart had earlier established a basis for a Sixth Amendment challenge to a conviction arising from a plea bargain if a defendant could show he accepted the plea after having received ineffective assistance of counsel. By laying a basis for a Sixth Amendment challenge to a failure to accept a plea offer from the prosecution, Frye and Lafler recognized the possiblility of prejudice from ineffective bargaining alone regardless of the fairness of a subsequent conviction after a later plea to the court or a full trial. back
368
See Strickland, 466 U.S. at 694. This standard does not require that a “defendant show that counsel’s deficient conduct more likely than not altered the outcome in the case.” Id. at 693. At the same time, the Court has concluded that the “prejudice inquiry under Strickland applies to cases beyond those in which there was only “little or no mitigation evidence” presented. See Sears v. Upton, 561 U.S. 945, 955 (2010); Porter v. McCollum, 558 U.S. 30, 40 (2009) (evaluating the “totality of mitigating evidence” to conclude that there was “a reasonable probability that the advisory jury—and the sentencing judge—‘would have struck a different balance’” but for the counsel’s deficiencies). For a recent example of a criminal defendant who succeeded on the prejudice prong of the Strickland test, see Buck v. Davis, 580 U.S. ___, No. 15–8049, slip op. at 18–19 (2017) (holding that, in a case where the focus of a capital sentencing proceeding was on the defendant’s likelihood of recidivism, defense counsel had been ineffective by introducing racially charged testimony about the defendant’s future dangerousness, and “[r]easonable jurors might well have valued [the testimony] concerning the central question before them.”). back
369
See, e.g., Smith v. Spisak, 558 U.S. 139, 154–56 (2010). In Hill v. Lockhart, the Court applied the Strickland test to attorney decisions to accept a plea bargain, holding that a defendant must show a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial. See 474 U.S. 52, 59 (1985). As a result, the prejudice question with respect to when a counsel’s deficient performance leads the defendant to accept a guilty plea rather than go to trial is not whether the trial would have resulted in a not guilty verdict. See Roe v. Flores-Ortega, 528 U.S. 470, 482–83 (2000). Instead, the issue is whether the defendant was prejudiced by the “denial of the entire judicial proceeding . . . to which he had a right.” Id. at 483. As a result, prejudice may be very difficult to prove if the defendant’s decision about going to trial turns on his prospects of success and those chances are affected by an attorney’s error. See Premo v. Moore, 562 U.S. 115, 118 (2011). However, when a defendant’s choice to accept a plea bargain has nothing to do with his chances of success at trial, such as if the defendant is primarily concerned with the respective consequences of a conviction after trial or by plea, a defendant can show prejudice by providing evidence contemporaneous with the acceptance of the plea that he would have rejected the plea if not for the erroneous advice of counsel. See Lee v. United States, 582 U.S. ___, No. 16–327, slip op. at 7–9 (2017) (holding that a defendant whose fear of deportation was the determinative factor in whether to accept a plea agreement could show prejudice resulting from his attorney’s erroneous advice that a felony charge would not lead to deportation even when a different result at trial was remote). back
370
506 U.S. 364, 368–70 (1993). Defense counsel had failed to raise a constitutional claim during sentencing that would have saved the defendant from a death sentence. The case precedent that supported the claim was itself overturned after sentencing but before defendant asserted in a habeas writ that he had received ineffective assistance. The Court held, 7–2, that even though the adequacy of counsel’s representation is assessed under the standards that existed contemporaneously with the conduct, it was inappropriate in assessing prejudice to give the defendant the benefit of overturned case law. So long as the defendant was not deprived of a procedural or substantive right to which he would still be entitled, relief is not available. 506 U.S. at 372–73. back
371
529 U.S. 362 (2000). back
372
529 U.S. at 391–93. The latter example references Nix. v. Whiteside, 475 U.S. 157, 175–76 (1986). back
373
566 U.S. ___, No. 10–209, slip op. (2012) (Scalia, J., with Roberts, C.J., and Thomas, J., dissenting); 566 U.S. ___, No. 10–209, slip op. (2012) (Alito, J., dissenting). back
374
United States v. Cronic, 466 U.S. 648, 658 (1984). back
375
466 U.S. at 657, 659. But see Bell v. Cone, 535 U.S. 685 (2002) (failure to introduce mitigating evidence and waiver of closing argument in penalty phase of death penalty case was not failure to test prosecution’s case, where mitigating evidence had been presented during guilt phase and where waiver of argument deprived skilled prosecutor of an opportunity for rebuttal); Mickens v. Taylor, 535 U.S. 162 (2002) (failure of judge who knew or should have known of an attorney’s conflicting interest to inquire as to whether such conflict was prejudicial not grounds for automatic reversal). In Wright v. Van Patten, 128 S. Ct. 743 (2008) (per curiam), the Supreme Court noted that it has never ruled on whether, during a plea hearing at which the defendant pleads guilty, defense counsel’s being linked to the courtroom by speaker phone, rather than being physically present, is likely to result in such poor performance that Cronic should apply. The fact that the Court has never ruled on the question means that “it cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law,’ ” and, as a consequence, under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d)(1), the defendant is not entitled to habeas relief. Id. at 748 (quoting Carey v. Musladin, 549 U.S. 70, 77 (2006), as to which see “Limitations on Habeas Corpus Review of Capital Sentences” under Eighth Amendment, infra. back
376
Cronic, 466 U.S. at 659 n.26. back
377
Strickland and Cronic were decided the same day, and the Court’s opinion in each cited the other. See Strickland, 466 U.S. at 692; Cronic, 466 U.S. at 666 n.41. The Cronic presumption of prejudice may be appropriate when counsel’s “overall performance” is brought into question, whereas Strickland is generally the appropriate test for “claims based on specified [counsel] errors.” Cronic, 466 U.S. at 666 n.41. The narrow reach of Cronic has been illustrated by subsequent decisions. Not constituting per se ineffective assistance is a defense counsel’s failure to file a notice of appeal, or in some circumstances even to consult with the defendant about an appeal. Roe v. Flores-Ortega, 528 U.S. 470 (2000). But see Lozada v. Deeds, 498 U.S. 430, 432 (1991) (per curiam). See also Florida v. Nixon, 543 U.S. 175 (2004) (no presumption of prejudice when a defendant has failed to consent to a tenable strategy counsel has adequately disclosed to and discussed with him). A standard somewhat different from Cronic and Strickland governs claims of attorney conflict of interest. See discussion of Cuyler v. Sullivan under “Protection of Right to Retained Counsel,” supra. back
378
Faretta v. California, 422 U.S. 806 (1975). An invitation to overrule Faretta because it leads to unfair trials for defendants was declined in Indiana v. Edwards, 128 S. Ct. 2379, 2388 (2008). Even if the defendant exercises his right to his detriment, the Constitution ordinarily guarantees him the opportunity to do so. A defendant who represents himself cannot thereafter complain that the quality of his defense denied him effective assistance of counsel. 422 U.S. at 834–35 n.46. The Court, however, has not addressed what state aid, such as access to a law library, might need to be made available to a defendant representing himself. Kane v. Garcia Espitia, 546 U.S. 9 (2005) (per curiam). Related to the right of self-representation is the right to testify in one’s own defense. Rock v. Arkansas, 483 U.S. 44 (1987) (per se rule excluding all hypnotically refreshed testimony violates right). back
379
The fact that a defendant is mentally competent to stand trial does not preclude a court from finding him not mentally competent to represent himself at trial. Indiana v. Edwards, 128 S. Ct. 2379 (2008). Mental competence to stand trial, however, is sufficient to ensure the right to waive the right to counsel in order to plead guilty. Godinez v. Moran, 509 U.S. 389, 398 (1993). back
380
Martinez v. Court of App. of Cal., Fourth App. Dist., 528 U.S. 152 (2000). The Sixth Amendment itself “does not include any right to appeal.” 528 U.S. at 160. back
381
465 U.S. 168 (1984). back
382
465 U.S. at 178. back
383
465 U.S. at 184. back
384
Rothgery 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). back
385
128 S. Ct. at 2592. back
386
128 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. back
387
128 S. Ct. at 2595 (Alito, J. concurring). back
388
287 U.S. 45, 57 (1932). back
389
368 U.S. 52 (1961). back
390
373 U.S. 59 (1963). back
391
399 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). back
392
Compare 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). back
393
Crooker v. California, 357 U.S. 433 (1958) (five-to-four decision); Cicenia v. Lagay, 357 U.S. 504 (1958) (five-to-three). back
394
360 U.S. 315 (1959). back
395
377 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. ___, No. 07–1356, slip op. at 5 (Apr. 29, 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. back
396
378 U.S. 478 (1964). back
397
384 U.S. 436 (1966). back
398
The 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. back
399
430 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. back
400
447 U.S. 264 (1980). Justices Blackmun, White, and Rehnquist dissented. Id. at 277, 289. Accord, Kansas v. Ventris, 556 U.S. ___, No. 07–1356, slip op. at 2 (Apr. 29, 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 . . . ”). back
401
451 U.S. 477 (1981). See Fifth Amendment, “Miranda v. Arizona,” supra. back
402
475 U.S. 625, 636 (1986). back
403
475 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). back
404
Arizona v. Roberson, 486 U.S. 675 (1988). back
405
McNeil 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. back
406
Rejecting 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. back
407
556 U.S. ___, No. 07–1529, slip op. at 15 (2009). back
408
556 U.S. ___, No. 07–1529, slip op. at 10. back
409
556 U.S. ___, No. 07–1529, slip op. at 13, 4. back
410
556 U.S. ___, No. 07–1529, slip op. at 13, 10. back
411
556 U.S. ___, No. 07–1529, slip op. at 15. back
412
Justice 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.” Slip op. at 5, 6 (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.” Slip op. at 10–11. back
413
See Michigan v. Jackson, 475 U.S. 625 (1986). back
414
467 U.S. 431 (1984). back
415
467 U.S. at 446. back
416
Michigan 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. ___, No. 07–1356, slip op. at 6 (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”). back
417
388 U.S. 218 (1967). back
418
388 U.S. 263 (1967). back
419
United States v. Wade, 388 U.S. 218, 224–25 (1967). back
420
388 U.S. at 226 (citations omitted). back
421
388 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. back
422
Stovall v. Denno, 388 U.S. 293 (1967). back
423
Gilbert v. California, 388 U.S. 263, 265–67 (1967) (handwriting exemplars); Schmerber v. California, 384 U.S. 757, 765–66 (1966) (blood samples). back
424
413 U.S. 300 (1973). Justices Brennan, Douglas, and Marshall dissented. Id. at 326. back
425
413 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). back
426
413 U.S. at 317–21. The due process standards are discussed under the Fourteenth Amendment, “Criminal Identification Process,” infra. back
427
United 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). back
428
Stovall v. Denno, 388 U.S. 293 (1967); Foster v. California, 394 U.S. 440 (1969); Coleman v. Alabama, 399 U.S. 1 (1970). back
429
406 U.S. 682, 689 (1972). back
430
406 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). back
431
“[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). back
432
“But 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. Secondly, and perhaps even more important for purely practical purposes, the Court has limited the holding of Escobedo to its own facts, Johnson v. New Jersey, supra, 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). back
433
Townsend v. Burke, 334 U.S. 736 (1948). back
434
Mempa v. Rhay, 389 U.S. 128 (1967) (applied retroactively in McConnell v. Rhay, 393 U.S. 2 (1968)). back
435
State 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. back
436
Specht v. Patterson, 386 U.S. 605 (1967). back
437
In re Groban, 352 U.S. 330 (1957). Four Justices dissented. back
438
Anonymous v. Baker, 360 U.S. 287 (1959). Four Justices dissented. back