8.3 Sixth Amendment right to counsel

The Sixth Amendment right to counsel is a cornerstone of the American criminal justice system. It ensures defendants have legal representation throughout critical stages of prosecution, from arraignment to trial and sentencing.

This fundamental right goes beyond mere appointment of an attorney. It requires effective assistance of counsel, free from conflicts of interest. Defendants may waive this right, but courts must ensure such waivers are knowing and voluntary.

Right to counsel overview

• The Sixth Amendment guarantees criminal defendants the right to assistance of counsel in federal prosecutions
• This fundamental right is essential to ensuring fairness in the adversarial criminal justice system and is incorporated to the states through the Fourteenth Amendment
• Key aspects include when the right attaches, critical stages where counsel is required, and the difference between attachment and invocation of the right

Scope of right

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• Applies to all federal and state criminal prosecutions that may result in imprisonment
• Covers both felonies and misdemeanors with potential jail time
• Does not extend to civil cases or criminal appeals (covered by Due Process Clause and statutory provisions)
• Guaranteed at all critical stages of the criminal process after formal proceedings begin

Critical stages

• Stages where absence of counsel would threaten defendant's right to fair trial
• Includes arraignments, preliminary hearings, plea negotiations, and trial
• Pretrial identification procedures (lineups) are critical stages
  • Presence of counsel can prevent suggestive procedures and preserve challenges
• Sentencing and appeals are also critical stages requiring counsel

Attachment vs invocation

• Right to counsel attaches at the initiation of adversarial judicial proceedings
  • Indictment, information, arraignment, or preliminary hearing
• Mere attachment does not guarantee presence of counsel
• Defendant must take affirmative steps to invoke the right
  • Clear assertion of the right to counsel
• Police must cease questioning until counsel is present once invoked

Right to effective counsel

• Sixth Amendment requires more than just appointment of an attorney
• Defendant has the right to effective assistance of counsel
  • Counsel must play the role of an advocate and provide meaningful adversarial testing
• Ineffective assistance can result in reversal of conviction or sentence

Strickland v Washington standard

• Two-prong test for evaluating claims of ineffective assistance of counsel (IAC)
  1. Counsel's performance was deficient
  2. The deficient performance prejudiced the defendant
• Defendant must satisfy both prongs to prevail on IAC claim
• Highly deferential review to avoid second-guessing counsel's strategic decisions

Deficient performance prong

• Counsel's representation fell below an objective standard of reasonableness
• Judged from counsel's perspective at the time to eliminate effects of hindsight
• Presumption that counsel's conduct was reasonable and might be considered sound trial strategy
• Defendant must identify specific acts or omissions that were not the result of reasonable professional judgment

Prejudice to defendant prong

• Reasonable probability that, but for counsel's errors, the result would have been different
  • A probability sufficient to undermine confidence in the outcome
• Prejudice presumed in certain contexts like actual or constructive denial of counsel altogether
• Actual conflict of interest that adversely affected lawyer's performance may also warrant presumption of prejudice
• Assessment of prejudice should consider totality of the evidence

Waiver of right to counsel

• Defendant may choose to waive the right to counsel and self-represent
• Waiver must be knowing, voluntary, and intelligent
  • Defendant must be made aware of the dangers and disadvantages of self-representation
• Court has a duty to ensure defendant understands the implications of waiver

Knowing and voluntary standard

• Defendant must be competent to waive the right
  • Understand the nature of the charges, proceedings, and risks of waiving counsel
• Waiver must be clear and unequivocal
  • Court should indulge in every reasonable presumption against waiver
• Defendant's technical legal knowledge is irrelevant to valid waiver

Colloquy with judge

• Judge should engage in a colloquy with defendant to ensure proper waiver
• Advise of the charges, possible punishments, and disadvantages of proceeding pro se
  • Warn that self-representation is almost always unwise
• Determine if decision is voluntary and not result of coercion or manipulation
• Make clear no special treatment will be given and procedural rules must be followed

Dangers of self-representation

• Defendant may not later claim ineffective assistance of counsel
  • No constitutional right to "hybrid" representation (advisory counsel)
• Inability to present an effective defense due to lack of legal knowledge and skills
• Difficulty in objectively evaluating the case and making rational decisions
• May unknowingly waive important rights or make incriminating statements

Right to choice of counsel

• Defendant has a qualified right to counsel of choice
  • Not an absolute right to demand a particular attorney
• Indigent defendants are guaranteed counsel but not the right to choose a specific lawyer
• Court has discretion in balancing defendant's preference with efficient administration of justice

Qualified right

• Applies only to defendants with the means to retain counsel
• Court may deny choice if it would lead to delays or adversely affect fair, efficient, and orderly administration of justice
• Defendant's choice may be denied if chosen attorney is not a member of the bar, has a conflict of interest, or is unwilling to represent the defendant

Indigent defendants

• Court appoints counsel for defendants who cannot afford to hire an attorney
• Appointed counsel must provide effective assistance under prevailing professional norms
• Indigent defendants do not have the right to choose a particular appointed attorney
  • May request substitute counsel if exceptional circumstances exist

Court-appointed attorneys

• Court has the ultimate authority to appoint attorneys for indigent defendants
  • Often through public defender's office or panel of private attorneys
• Defendant does not have the right to a meaningful relationship with appointed counsel
• Substitution of counsel only granted for compelling reasons
  • Complete breakdown in communication or irreconcilable conflict

Right to conflict-free counsel

• Sixth Amendment includes the right to representation free from conflicts of interest
• Actual conflicts that adversely affect counsel's performance violate right to effective assistance
• Potential conflicts may also warrant remedial action or disqualification of counsel

Actual vs potential conflicts

• Actual conflict exists when counsel actively represents conflicting interests
  • Choices benefiting one client to the detriment of another
• Potential conflict is a significant risk that a conflict will arise
  • Representation may be materially limited by lawyer's other responsibilities or interests
• Court has a duty to inquire into potential conflicts and take appropriate action

Multiple representation

• Common scenario involving conflicts is multiple representation of co-defendants
  • Inherent dangers include inconsistent defenses, plea negotiations, and sentencing
• Court should elicit a narrative response from counsel detailing risks and potential effects
• Defendant may waive the right to conflict-free counsel if waiver is knowing, voluntary, and intelligent

Waiver of conflict-free counsel

• Defendant may choose to waive the right and proceed with conflicted counsel
• Court should engage in a colloquy to ensure proper waiver
  • Advise of the existence and nature of the conflict
  • Determine if defendant understands the risks and freely chooses to waive
• Some conflicts are so severe they cannot be waived
  • Counsel's representation of a prosecution witness against the defendant

Forfeiture of right to counsel

• Defendant may forfeit the right to counsel through egregious misconduct
  • Physically assaulting the attorney
  • Threatening counsel or engaging in pervasive misbehavior
• Extremely disruptive or dilatory conduct intended to manipulate the right to counsel
• Forfeiture is a severe sanction that should be a last resort

Egregious defendant conduct

• Conduct must be of the most serious nature to justify forfeiture
  • Examples include verbally abusive and threatening behavior, physical violence
• Lesser misconduct like mere disagreements or general uncooperativeness is insufficient
• Court should consider the severity, duration, and impact on the proceedings

Warnings and opportunities

• Court should first warn the defendant that continued misconduct will result in forfeiture
• Clearly advise that the right to counsel may be lost entirely
• Give the defendant opportunities to conform behavior to required standards
• If misconduct persists, court may find forfeiture of counsel

Appointment of standby counsel

• Court should consider appointing standby counsel in forfeiture situations
  • Standby counsel can assist the defendant if needed or take over representation
• Appointment of standby counsel can safeguard defendant's rights and facilitate the trial
• But appointment after forfeiture does not cure the absence of counsel at critical stages
  • Defendant has no right to demand standby counsel step in as counsel of record

Ineffective assistance of counsel claims

• Most common Sixth Amendment claim raised by defendants
• Can be raised on direct appeal or through collateral attack (habeas corpus)
• Often requires development of facts outside the trial record
  • What the attorney did or did not do and reasons for those decisions

Types of IAC claims

• Actual denial of counsel at a critical stage (Cronic)
• Circumstances where prejudice is presumed (actual conflict of interest)
• Deficient performance by counsel resulting in prejudice (Strickland)
  • Failure to investigate, failure to cross-examine, improper advice, etc.
• Claims grounded in both the Sixth Amendment and due process right to fair trial

Guilty plea context

• Strickland standard applies to guilty plea challenges based on IAC
• Prejudice focuses on whether counsel's errors affected the outcome of the plea process
  • Reasonable probability that, but for counsel's errors, defendant would not have pleaded guilty
• Failure to advise of collateral consequences (immigration) can constitute IAC
• Erroneous advice about sentencing exposure may also satisfy prejudice standard

Appellate and post-conviction

• IAC claims can be raised on direct appeal if the record is sufficiently developed
  • Unusual for all relevant facts to be included in the trial record
• More commonly raised in post-conviction proceedings (state or federal habeas corpus)
  • Allows for development of extra-record facts like attorney-client discussions
• Defendant has the burden to show both deficient performance and prejudice
• Appellate courts are highly deferential to trial counsel's strategic decisions