6th Am Counsel & Trial Rights — Criminal Law & Constitutional Protections

Diaz is arraigned on a robbery charge, and a lawyer is appointed. Two days later detectives come back without that lawyer, give fresh Miranda warnings, and ask about something else entirely. A car theft nobody has charged him with. He confesses. His lawyer moves to suppress, pointing at the right to counsel that attached at the arraignment. Does the confession come in?

Yes. The Sixth Amendment right is offense-specific. It attached to the robbery, not to an uncharged theft, so that confession stands as long as the Miranda waiver was good. One word, offense-specific, decides a whole family of exam questions. Today, the guarantees that protect an accused from the moment charges land through the jury's verdict.

Here is the route. Four clusters. The right to a lawyer, when it begins, how you give it up, and when a lawyer's work becomes unconstitutional. The prosecutor's duty to hand over evidence that helps the defense. The due process limits on lineups and showups. And the right to trial by jury.

Start with timing, because it decides which amendment you are even in. The Sixth Amendment promises the assistance of counsel, but it does not switch on the instant police get involved. It attaches only when the government commits to prosecuting, at the start of adversary judicial criminal proceedings. The formal case has begun.

That happens at the earliest of a formal charge, a preliminary hearing, an indictment, an information, an arraignment, or the first appearance before a judge. Before that line there is no Sixth Amendment right to counsel, though the Fifth Amendment Miranda right may still apply during custodial questioning.

Two features define the right once it attaches. First, it is offense-specific. It covers only the crime charged, plus any crime with the same elements. That is why Diaz loses. Charge him with burglary and police may still question him about an unrelated, uncharged arson, subject only to Miranda.

Second, once attached, the right applies at every critical stage. Any step where the absence of a lawyer might prejudice the case. Counsel is required at post-charge live lineups, post-charge interrogation or deliberate elicitation, the preliminary hearing, arraignment, plea negotiations, trial, and sentencing.

And it is not required at photo arrays, at fingerprints, blood, handwriting, or voice samples, at pre-charge lineups, or generally at parole or probation revocation. Try it. Post-charge live lineup. Counsel? Yes. Photo array, any time at all. Counsel? No.

Two more points on scope. Indigent defendants get counsel appointed whenever a felony is charged, and in any case, including a misdemeanor, that actually results in imprisonment, even a suspended sentence later activated. And on appeal the right comes from due process and equal protection, not the Sixth Amendment, and covers only the first appeal granted as of right.

Hold the contrast with the Fifth Amendment, because the exam builds questions on the gap. Miranda applies only during custodial interrogation, and the suspect must clearly invoke it. The Sixth applies at every critical stage once proceedings begin. Miranda is not offense-specific. The Sixth covers only the charged offense.

Now waiver. A defendant may give up the right and represent himself, which courts call proceeding pro se. The waiver must be knowing, voluntary, and intelligent. The defendant must understand what he is giving up, and the judge must warn him about the dangers of going it alone.

He does not have to prove he is as skilled as a lawyer. The question is whether he grasps the risk, not whether he will do a good job. And a defendant who represents himself cannot later complain his own representation was ineffective.

Four limits. The request must be clear and timely, and a court may deny one made to disrupt the trial. The competence to waive counsel is the same as the competence to stand trial. But a court may still insist on a lawyer for a defendant who, because of severe mental illness, cannot conduct the defense himself. And it may appoint standby counsel over his objection.

Waiver also arises when police want to question a defendant already charged. Even one who asked for a lawyer at arraignment can later waive the right and answer questions, if the waiver is valid. Miranda warnings are generally enough. Requesting counsel at arraignment does not permanently freeze out all future questioning.

Having a lawyer is not enough. The Constitution guarantees an effective one. But effective does not mean perfect, because hindsight makes every losing strategy look foolish. To overturn a conviction a defendant must satisfy a two-part test, and a court may reject the claim on either part.

Part one, deficient performance. The lawyer's work fell below an objective standard of reasonableness measured against prevailing professional norms. Courts strongly presume the choices were sound strategy, so tactical decisions rarely qualify. Part two, prejudice. A reasonable probability that, but for the errors, the result would have been different.

Define that phrase, because it does work. Reasonable probability means strong enough to undermine confidence in the outcome. Less than more-likely-than-not, more than a bare possibility. And this is where most claims die.

Watch it run. At Olympia's arson trial her lawyer never interviews the one witness who would have placed her across town when the fire started. Skipping an obvious, available alibi witness falls below reasonable practice, so part one is met. Part two is the fight.

If the rest of the case was thin, the missing alibi undermines confidence in the verdict and the claim succeeds. But if the state also had her fingerprints on the gas can and a confession, the error probably changed nothing. Same mistake, opposite outcomes.

The test adapts to guilty pleas, where most cases actually end. If bad advice caused a defendant to plead guilty, prejudice means a reasonable probability that, with correct advice, he would have insisted on trial. Failing to tell a client about a favorable plea offer can qualify, and a noncitizen client must be told when a plea will trigger deportation.

In a few situations prejudice is presumed. A complete denial of counsel at a critical stage. A lawyer who entirely fails to test the prosecution's case. Circumstances where even a competent lawyer could not help, like being given no time to prepare. And an actual conflict of interest that adversely affected the representation, such as two co-defendants with clashing interests.

Two shorter stops, both unstarred, so spot them rather than memorize them. First, counsel of choice. A defendant who can afford to retain counsel has a right to the lawyer he hires, and if a court wrongly denies that choice the error is structural. Automatic reversal, with no need to show a different outcome. But it buys no specific appointed lawyer.

Second, the Sixth Amendment exclusionary rule. Once the right has attached, the government may not deliberately elicit incriminating statements about the charged crime without counsel or a waiver. That is broader than interrogation, covering an informant planted to draw the defendant out, though a purely passive listening post does not violate it.

Now the prosecutor's side of the ledger. A trial is not a fair search for truth if the prosecutor hides evidence that helps the accused, so due process requires disclosure of favorable, material evidence. That is the Brady rule. It applies whether or not the defense asks, and even if nothing was hidden on purpose. Good faith is no defense.

Three elements. Favorable, meaning it helps the accused, by tending to show innocence or by undercutting a government witness. A secret deal with a witness is classic impeachment material. Suppressed, meaning the government failed to disclose it, deliberately or by accident. And material, a reasonable probability that disclosure would have changed the result.

Two details. The duty reaches favorable evidence known to the police and others on the government's side, so the prosecutor must actively learn what the team holds. And materiality is judged by weighing all the suppressed evidence together, not piece by piece.

See it work. The state's case against Reyes rests on one eyewitness. Before trial a detective learns the witness was paid a reward and has failing eyesight, but never tells the prosecutor, who never tells the defense. That is a violation even though the prosecutor knew nothing, because the duty reaches evidence held by police.

Two limits are heavily tested. First, the duty to disclose impeachment evidence does not apply before a guilty plea. Second, this rule is about evidence the government has and withholds. A different rule governs evidence police fail to preserve. If it was only potentially useful, the defendant must show bad faith. Only clearly exculpatory evidence makes bad faith unnecessary.

Now identifications, where mistaken eyewitnesses are a leading cause of wrongful convictions. Two separate protections apply and you must keep them apart. The Sixth Amendment right to counsel, and the due process guarantee of a reliable, non-suggestive procedure. Run them in that order.

Counsel first. Because the right attaches only after charging, a defendant has a right to a lawyer at a live, in-person identification after formal charges. A lineup or a one-on-one showup. There is no right at a pre-charge lineup, at a photo array at any time, or at the taking of physical samples.

If police run an uncounseled post-charge lineup, the out-of-court identification is thrown out. A later in-court identification is allowed only if the prosecution proves by clear and convincing evidence that the witness's memory came from an independent source.

Now due process, which applies to every procedure, before or after charging, live or by photo. An identification violates due process if it was unnecessarily suggestive and created a substantial likelihood of misidentification. Step one. Was it unnecessarily suggestive?

Step two. Even if suggestive, was the identification nevertheless reliable under the totality of the circumstances? If it was, it comes in anyway. That is the point candidates miss. Suggestiveness alone does not require exclusion. Unreliability does.

Five reliability factors. The opportunity to view the criminal during the crime. The degree of attention. The accuracy of any earlier description. The level of certainty. And the time between the crime and the identification.

One more gatekeeper, easy to forget. This due process screening applies only when the police arranged the suggestive circumstances. If a witness identifies the suspect through suggestion police did not orchestrate, reliability goes to the jury, not to a motion to exclude.

Last cluster, the jury. The Sixth Amendment guarantees an impartial jury, in state courts too, but not for every offense. The right exists only for serious offenses, those carrying a maximum of more than six months in jail. Petty offenses, six months or less, may be tried without a jury.

Read the statute the way the exam wants. Under Columbia's § 42-3, disorderly conduct is punishable by not more than six months, a fine of not more than $1,000, or both. Petty or serious? Petty, because the maximum is exactly six months, so a bench trial satisfies the Constitution. Raise it to seven months and the same conduct becomes serious.

The line turns on the maximum the legislature authorizes, not the sentence imposed. And you cannot add up several petty offenses to cross it. Three petty charges carry no jury right even if the sentences would stack past six months.

Four mechanics. Size, where twelve is traditional but not required. Six jurors is the constitutional minimum, and five is too small. Unanimity, where a conviction for a serious offense must be unanimous, in federal and state court alike. Non-unanimous guilty verdicts are unconstitutional.

Waiver, where a defendant may choose a bench trial, though courts commonly require the prosecutor's and the court's consent. And impartiality, secured through voir dire, the questioning of prospective jurors, where each side may remove jurors for cause and use a limited number of peremptory strikes.

The pool those jurors come from, the venire, must represent a fair cross-section of the community. Note what that means. It is about the pool, not the final jury. No defendant is entitled to a jury of any particular makeup, only to a system that does not systematically exclude groups.

Proving a violation takes three showings. The excluded group is distinctive in the community. Its representation in jury pools is not fair and reasonable against its share of the community. And the underrepresentation results from systematic exclusion.

Even with a fair pool, lawyers may not misuse peremptory strikes. The Equal Protection Clause forbids striking a juror because of race or sex, and the challenge runs in three steps. The objecting side shows facts suggesting discrimination. The striking side offers a neutral reason. The judge decides whether it is genuine or pretext.

One last connection, between the jury and sentencing. Any fact other than a prior conviction that raises the penalty above the statutory maximum, or raises the mandatory minimum, must be found by the jury beyond a reasonable doubt.

A word on authorities. This episode named two cases, Miranda and Brady, and only because their names have become the names of the rules. The exam will not ask you to cite them. This topic is starred, so no rule will be handed to you, and the points come from applying the elements.

If you keep only three, keep these. The Sixth Amendment attaches at formal charging and is offense-specific. Ineffective assistance needs deficient performance plus prejudice, and prejudice is where claims die. And a suggestive identification still comes in if it is reliable.

Now the traps, and there are eight. One. The Sixth Amendment right is offense-specific, so police may question a charged defendant about a different, uncharged crime. Two. There is no right to counsel at a photo array or a pre-charge lineup, even though there is one at a post-charge live lineup.

Three. A suggestive identification is not automatically excluded. It comes in if still reliable, and the due process check applies only when police arranged the suggestion. Four. A petty offense, six months or less, carries no jury right, and petty offenses do not aggregate. Five. Jury verdicts must now be unanimous in every state. The old rule allowing split verdicts is dead.

Six. The duty to disclose impeachment evidence does not apply before a guilty plea. Seven. Self-representation is a trial right only. Eight. Ineffective assistance requires both deficient performance and prejudice. A bad-looking mistake with no effect on the outcome is not enough.

Time for the quick check, straight from the BARGO question bank. Ivers is convicted of armed robbery. On appeal he claims ineffective assistance, because his trial lawyer failed to object to a stretch of plainly inadmissible hearsay, and everyone agrees that failure fell below reasonable professional standards.

But the rest of the state's case was overwhelming. A clear surveillance video of Ivers committing the robbery, his own recorded confession, and two eyewitnesses who knew him personally. The hearsay the lawyer let in was merely cumulative of that proof. What is Ivers's greatest obstacle to overturning his conviction?

Option one. He cannot show his lawyer's performance was deficient. Option two. He cannot show a reasonable probability that the outcome would have been different. Option three. He must prove his lawyer acted in bad faith. Pause here if you want a moment.

The answer is option two. Ineffective assistance demands both deficient performance and prejudice, and a court may reject the claim on either. Deficiency is conceded here, so the case rises or falls on prejudice. With a surveillance video, a confession, and two eyewitnesses, and only cumulative hearsay at issue, there is no reasonable probability the error changed the verdict.

Option one is wrong because the facts stipulate deficient performance. Option three imports a bad-faith requirement that is no part of the test. Honest incompetence can still be deficient. There are thirty plus more questions on this topic alone, each with every option explained like that.

Five things to take away. One. The Sixth Amendment attaches when formal proceedings begin, and it is offense-specific. Before charging, reach for Miranda. After charging, reach for the Sixth. Two. Once attached it covers every critical stage, but not photo arrays, pre-charge lineups, or physical samples.

Three. Ineffective assistance takes deficient performance plus prejudice, and prejudice is where most claims die. Four. The Brady rule is favorable, suppressed, and material. It reaches what the police know, and good faith is no defense.

Five. On an identification, ask counsel first and reliability second, because suggestive is not the same as excluded. On a jury, check the six-month line, then size and unanimity. Which is why Diaz's theft confession came in, over the head of a lawyer he already had. That is the last stop in Criminal Law and Constitutional Protections.

Practice this topic with more than 2,900 exam-style questions, free to start, at nextgenbargo.com. This episode is for education and exam preparation only, not legal advice, and we are not affiliated with or endorsed by the NCBE or any bar examining authority.