Chapter 8
Right to Counsel
Objectives
This chapter covers the Sixth Amendment right to counsel and constitutional restrictions on
pretrial witness identification. There are three segments. The first segment covers the main
After completing this chapter, the student should emerge with a working knowledge of:
1. The four main features of the Sixth Amendment right to counsel, namely: (1) the right of
2. Sixth Amendment restrictions on the conduct of the police, including:
a. Pretrial encounters during which the accused is entitled to have a lawyer present;
b. Precautions police must take to secure a valid waiver of the Sixth Amendment right to
3. Constitutional restrictions on the conduct of pretrial witness identification imposed by:
a. the Sixth Amendment right to counsel,
Discussion Outline
§8.1 Overview of the Sixth Amendment Right to Counsel
A. The Si
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C. Review Question 1 tests understanding of this material.
§8.2
A. The right of indigent defendants to assistance of counsel has developed in four stages.
1. For the first 150 years, the Sixth Amendment right to counsel was interpreted to mean
2. In Powell v. Alabama, the Supreme Court ruled that state courts were required to
provide court-appointed counsel for indigent criminal defendants charged with a felony
3. Six years later, the Supreme Court ruled that federal courts were required to provide
4. In Gideon v. Wainwright, the Supreme Court ruled that the Sixth Amendment right to
counsel is applicable to the states through incorporation into the Fourteenth Amendment
and obligates state courts to provide court-appointed counsel to indigent criminal
defendants charged with a felony, without regard to whether they are illiterate or
otherwise disadvantaged in representing themselves.
Gideon v. Wainwright (Part II). An indigent, but not illiterate, defendant facing felony
charges asked a state trial court to appoint counsel to defend him. The court declined
B. Altho
C. Review Question 2 tests knowledge of this material.
§8.3 The Right to Assistance of Counsel in Non-Trial Proceedings: Critical Stages of the
Prosecution
A. The right to counsel originally meant the right to have counsel present only at the trial.
Supreme Court decisions during the past half-century have steadily expanded the number of
1. It must take place after the government has initiated prosecution.
a. This limitation stems from the language of the Sixth Amendment, which guarantees
initiated. This is
2. It must involve a trial- ment.
3. The encounter must be of such a nature that important rights might be lost or a fair trial
jeopardized if the defendant is forced to proceed without counsel being present.
Defendants, for example, are entitled to have counsel present during post-prosecution
lineups because they are entitled to challenge admission of witness identification
testimony at the trial if the lineup is conducted in an impermissibly suggestive manner. It
§8.4 -Representation
A. The Sixth Amendment also guarantees criminal defendants the opposite right the right to
B. Review Question 8 tests understanding of this material.
§8.5 Ineffective Assistance of Counsel
A. The Sixth Amendment guarantees the right to effective assistance of counsel.
2. To secure the reversal of a conviction based on ineffective assistance of counsel, the
defendant must demonstrate tha
B. Review Question 9 tests understanding of this material.
§8.6 Sixth Amendment Restrictions on the Conduct of the Police
A. The defendant has a Sixth Amendment right to have counsel present at lineups, showups, and
subsequent interrogation are exactly the same as under the Miranda rule.
1. Special precautions should be taken in securing a waiver of the right to counsel from a
2. If the defendant invokes the right to counsel after being warned, the proceeding must be
postponed until counsel is present.
3. The degree to which police must permit counsel to participate depends on the procedure.
C. Once adversary judicial proceedings are initiated, the Sixth Amendment right to counsel
imposes a continuing duty on the police to abstain from intruding into the confidentiality of
the court may even dismiss the charges.
1. State v. Quattlebaum (Part II). Police and a prosecutor secretly audio– and videotaped
defendant’s conversation with his attorney. The court to counsel
would be meaningless without the protection of free and open communication between
D. Review Questions 10-11 test understanding of this material.
§8.7 Pretrial Identification Procedures
A. Police use three pretrial identification procedures:
1. Photographic identifications the witness is shown pictures of the suspect, either singly
2. Showups the suspect is presented alone to an eyewitness for identification. The main
cases in which swift action is necessary
3. Lineups the suspect is exhibited, along with stand-ins who possess similar physical
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B. All three witness identification procedures, when properly conducted, generate evidence
admissible at the trial.
§8.8 Fourth Amendment Requirements for Pretrial Identification
A. Evidence of a positive pretrial identification will be suppressed if it derives from an illegal
arrest or detention. Illustration: Police arrest Sam without probable cause and put him in a
§8.9 Due Process Requirements for Pretrial Identification Procedures
A. The due process clause forbids admission of pretrial identification testimony obtained under
circumstance that are so unnecessarily suggestive as to create a substantial likelihood of
1. Unnecessarily suggestive procedure. Unnecessary suggestiveness can result either
because the police: (1) select an identification procedure (usually a showup) that is
unnecessarily suggestive under the circumstances, or (2) conduct an appropriate
procedure in an unnecessarily suggestive manner.
a. Showups are the most inherently suggestive of the three identification procedures
because only one person is presented to the witness for identification and that
murder suspect the day after the crime, police performed a showup at the
bedside of the only eyewitness to the murder. The witness was injured and the
police believed that she was dying. The Supreme Court held that the use of a
c. Unnecessary suggestiveness can also be injected by the manner in which a witness
identification procedure is conducted. Police should avoid the following practices
during witness identification procedures: (1) telling the witness whom the police
participants in the lineup to try on a piece of clothing that fits only the suspect.
2. Substantial risk of misidentification. The second prong of the test requires the court to
examine the surrounding circumstances to determine whether the unnecessary
suggestiveness of the identification procedure created a substantial risk of a mistaken
is unreliable. If the court concludes that the testimony is reliable, it will be admitted
despite the suggestiveness of the procedures. Courts consider the following five factors
a. United States v. Downs (Part II). Lineup in which the defendant was only person
3. A witness who has been exposed to an unnecessarily suggestive identification procedure
under circumstances that create a substantial risk of misidentification will also be barred
from making an identification of the defendant in the courtroom during the trial unless
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4. The following cases illustrate application of the factors that courts consider in deciding
whether to admit evidence of an out-of-court identification obtained through
unnecessarily suggestive identification procedures. The cases can be used as classroom
discussion questions by asking students the following questions about each case: (1)
Was the identification procedure impermissibly suggestive? Yes, in all three cases. (2)
Did the unnecessary suggestiveness create a substantial risk of misidentification? No in
the first two cases, but yes in the third case.
procedure.
Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 224, 353 L. Ed. 2d 14 (1977). An
undercover police officer purchased drugs from a dealer and shortly thereafter described
him to a second police officer. After hearing the description, the second officer
suspected the defendant and left a picture of the defendant, which was pulled from
defendant from the photograph. While condemning the use of a single photograph as
unnecessarily suggestive, the Court, nevertheless, found the identification admissible
because the undercover officer had ample opportunity to view the suspect, was a trained
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he was not
B. Review questions 16-22 test understanding of this material.
§8.10 Right to Counsel during Pretrial Identification Procedures
A. The Sixth Amendment right to counsel bars admission of evidence of pretrial identifications
made during a critical stage lineup or showup unless counsel is present or the defendant
makes a valid waiver.
1. after the
lineups and showups so that counsel can observe the procedure and be in a position to
2.
a. Lineups and showups conducted before the initiation of adversary judicial
proceedings.
b. Photographic identification procedures, whether conducted before or after
prosecution is commenced, because (1) the defendant is not present during the
c. You may wish to add that, although the taking of fingerprints, mug shots,
handwriting samples, hair samples, voice samples, blood samples, semen samples,
B. Before conducting a critical stage lineup or showup, police must warn the defendant of the
right to counsel and secure a waiver or wait until counsel is present.
C. A witness who makes a pretrial identification that is inadmissible on Sixth Amendment
grounds will be barred from making a courtroom identification during the trial unless the
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D. Review Question 23 tests understanding of this material.
E. Class Discussion Question. Officer Green was assigned to the Whosville Police Department
street gang unit. The function of the street gang unit was to compile photographic files of
suspected street gang members for possible future use. On October 18, Officer Green saw a
group of youths dressed in what appeared to be gang jackets, standing on a street corner,
talking. When the youths noticed Officer Green, they started to walk away. Officer Green
Amendment right to counsel appears most promising? The facts of this problem were taken
from People v. Rodriguez, 21 Cal.App.4th 232, 26 Cal.Rptr.2d 660 (Cal.App. 4 Dist, 1993).
under the Fourth Amendment. Police
illegally so that they could take his
photograph and put it in the police photographic files for use in
future criminal investigations. Police had no grounds for the detention. Even though, the
defendant was suspected of street gang membership, he and his companions were doing
nothing suspicious when they were detained; membership in a gang is not a crime. Where
Review Questions
1. What functions does the Sixth Amendment right to counsel serve in our adversary system of
criminal justice? (§8.1)
2. For what crimes do indigent defendants have the right to appointment of counsel? (§8.2)
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Discuss. (§§8.3, 8.10)
6. List all pretrial court appearances and investigative encounters that the Supreme Court has
held constitute critical stages in a criminal prosecution for purposes of the Sixth Amendment
right to counsel. (§8.3)
10. After adversary judicial proceedings have been commenced, police must either secure a valid
waiver of the Sixth Amendment right to counsel or wait until counsel is present before
conducting a lineup, showup, or police-initiated interrogation. What action must the police
take in order to obtain a valid waiver of the Sixth Amendment right to counsel from: (a) A
criminal defendant who has already retained counsel? (b) A criminal defendant who has not
yet retained or requested appointment of counsel? (c) A juvenile? (§8.6)
13. What identification procedures may be used after a lawful custodial arrest? After a lawful
investigatory detention? (§8.8)
14. Which of the following witness identifications is subject to suppression from the Fourth
Amendment exclusionary rule? (§8.7)
15. What standard is used to determine when pretrial identification testimony is inadmissible
under the due process clause? (§8.9)
16. Which of the three witness identification procedures can be challenged under the due process
clause? (§8.9)
19. When is it appropriate for the police to use a showup identification? (§8.9)
20. When is it appropriate for the police to suggest to the witness whom to choose during a
witness identification procedure? (§8.9)
Examination Questions (*indicates correct answer)
(§ 8.1)
1. Gideon v. Wainwright was a milestone in American constitutional jurisprudence because it
was the first case to:
(§§8.2, 8.3)
2. The Sixth Amendment has been interpreted to grant indigent defendants the right to have
counsel appointed to represent them:
3. th
Amendment right to counsel, which of the following factors must always be present?
4. Which of the following events is not one of the events that signals the initiation of adversary
legal proceedings?
5.
of the Sixth Amendment right to counsel?
6. After a defendant is formally charged with an offense and hires an attorney to represent him,
all but which of the following violates the Sixth Amendment right to counsel?
7. George was indicted for child molestation and retained an attorney to represent him. A week
before the trial, George decided that he wanted to represent himself at the trial, fired his attorney,
and made his desires known to the trial judge. The trial judge must:
8.
assistance must be overturned:
9. Which of the following combination of constitutional provisions may, under appropriate
circumstances, provide grounds for objecting to admission of pretrial witness identification
testimony?
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10. The Fourth Amendment requires suppression of testimony about an identification made
during a lineup:
11. The due process clause requires exclusion of a pretrial witness identification only if the
identification:
12. In which of the following circumstances would it be appropriate to use a showup
identification?
13. When is it appropriate for police to compel a suspect to wear a wig, false facial hair, or other
appearance-altering props during a witness identification proceeding?
14. A defendant has a Sixth Amendment right to have counsel present during:
15. A witness who makes a pretrial identification that is inadmissible on Sixth Amendment
grounds:
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Multiple Choice Questions (*indicates correct answer)
1.
2.
3. Defendants wishing to represent themselves must:
4. In order for an event to be considered confrontation, the following parties must be present:
5. The following proceedings have been recognized as critical stages, entitled to Sixth
Amendment protection, except for:
6. Under the Sixth Amendment, lawyers can do the following during interrogations:
7. The Sixth Amendment protection for photographic identification:
8. Showup identification is used:
9. Provisions stemming from the following govern pretrial identification:
10. The following is permissible under a Terry stop:
True/False Questions (*indicates correct answer)
1. Sixth Amendment protection stems from English Common Law.
2. The Sixth Amendment right to appointed counsel extends to the appeals process and habeas
corpus hearings.
3. Sixth Amendment protection attaches only after criminal prosecution has been initiated.
4. Fillers (non-suspects) for use in photographic identification procedures do not need to match
5. Police may not require the presence of the accused at a lineup or showup without a valid
waiver or presence of counsel upon the initiation of prosecution.
6. Powell v. Alabama was the first case to recognize the right of an indigent criminal defendant to
court-appointed counsel.
7. In Gideon v. Wainright, the U.S. Supreme Court refused to establish court-appointed counsel
in felony cases for defendants who lack the means to pay.
8. The Sixth Amendment right to counsel was originally viewed as a trial right.
9. Pre- and post-trial proceedings in which the accused has a Sixth Amendment right to have
counsel present
10. The Sixth Amendment right to counsel places two restrictions on the police and one of them
is that the police must abstain from improper interference with the attorney-client relationship.