6.2.3 The Stage of the Process: when the Right Applies

• Library: Criminal Procedure in Practice (ABA) (2018 Ed.)

6.2.3 The Stage of the Process: When the Right Applies

The Sixth Amendment dictates that the right to counsel attaches at the beginning of the criminal prosecution,³² which has been interpreted to start at the first "adversary judicial criminal proceeding."³³ Therefore, the right to counsel does not attach to a preindictment, postarrest station house identification because the criminal prosecution had not yet been initiated against the defendant.³⁴ The Sixth Amendment right to counsel applies only after the first indictment, formal charge, or other adversary trial-like proceeding and in any critical stage thereafter.³⁵

The rules on counsel are now fairly clear and can be set out succinctly. The following proceedings do not constitutionally require the appointment of a defense lawyer: a hearing to determine if a warrantless arrest was supported by probable cause,³⁶ postsentenc-ing probation (in lieu of sentence) or parole (after prison) revocation hearings,³⁷ grand jury proceedings,³⁸ and postconviction review.³⁹

Defendants do have the constitutional right to counsel at arraignments,⁴⁰ preliminary examinations,⁴¹ and sentencing hearings.⁴² These stages all have two common elements. They are—or occur after—adversary judicial proceedings, and in each, the defendant is personally confronted by the government in the form of lawyers or witnesses.⁴³

If the government has violated the defendant's Sixth Amendment right by not providing counsel at a critical stage,⁴⁴ the conviction will not automatically be reversed on appeal. Unlike the right to trial articulated in Gideon—where error is per se reversible in all cases⁴⁵—other Sixth Amendment errors are typically subject to the harmless-error rule.⁴⁶ For instance, if an attorney is required at an identification procedure and is not allowed to be present,⁴⁷ such identification should not be brought before the jury. If it is heard by the jurors, the court⁴⁸ then must decide, beyond a reasonable doubt, whether the error was harmless.⁴⁹ The error determination in regard to identifications can become complicated. The problem arises when the pretrial error is present but the jury does not hear about that illegal pretrial identification. In such a situation, an in-court identification by a witness would not necessarily be proper. Rather, the courts must apply a fruit of the poisonous tree analysis⁵⁰ and decide whether the in-court testimony identifying the defendant is independent of the pretrial procedure or whether it is "tainted" by the earlier illegal action.⁵¹

Military practitioners should be aware of a relatively new development: the appointment of military counsel to represent victims, primarily in sexual assault cases, called "Special Victims' Counsel" (SVC) in the Army, Air Force, and Coast Guard, and "Victims' Legal Counsel" (VLC) in the Navy and Marine Corps.⁵² Each service has its own regulations regarding when such appointment is appropriate, but when assigned, the SVC/VLC has an attorney-client privilege with the alleged victim. The new rule requires a defense counsel or prosecutor to request permission to interview an alleged victim and permits the SVC/VLC to be present at any such interview. This process is intended to protect the rights of victims, especially with regard to the litigation of issues relating to the victims' privacy such as motions under...