8.2 The Right to Counsel

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

8.2 THE RIGHT TO COUNSEL

8.201 In General. The Supreme Court has held that the Sixth Amendment may require the presence of counsel at certain pretrial identification confrontations between the accused and an eyewitness, and, if the accused is indigent, the state must provide counsel at the state's expense. ⁹ The right to counsel, however, does not apply to all pretrial confrontations. The right is given only after the commencement of the "adversarial criminal prosecution." ¹⁰ Moreover, like other constitutional rights, the right to counsel can be waived. ¹¹ If the right is not waived and the lawyer is not present, the exclusionary rule will operate to suppress the pretrial identification. ¹² Nevertheless, a subsequent in-court identification by the same eyewitness will be permitted as long as it is independent of the illegal pretrial identification. ¹³

The right to have counsel present at eyewitness identification proceedings rests on the right to a fair trial and the recognition that eyewitness evidence, while probative, is not always reliable. Having counsel present increases the reliability of the evidence and, therefore, assures a fair trial in three important ways. First, the presence of a lawyer discourages "suggestive" and "pernicious" identification procedures. ¹⁴ This makes it more likely that the identification obtained will be accurate. Second, the presence of counsel enables the defendant to effectively confront and cross-examine out-

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of-court eyewitnesses. ¹⁵ Absent the knowledge gained through the attorney's presence, the defendant may not be able to reconstruct what happened in order to effectively cast doubt on identification reliability. Finally, participation by the attorney at this stage assures that the right to effective assistance of counsel at trial will be meaningful. ¹⁶

8.202 When the Right Attaches.

A. In General. The right to have counsel present during pretrial eyewitness identification proceedings attaches only after "adversary judicial proceedings" have commenced. ¹⁷ Once judicial proceedings are initiated, the right to counsel must be afforded at every "critical stage" in the prosecution. ¹⁸ To determine what amounts to a "critical stage" in the prosecution, a court must consider: the susceptibility of the procedures to improper suggestion, the degree to which a jury is likely to rely on an identification made under the particular circumstances, the difficulty of proving unfairness in the procedures at trial, and the degree to which it is believed that the presence of counsel would have a corrective effect on future proceedings. ¹⁹

B. Eyewitness Identification Before Preliminary Hearing. The exact point at which adversarial judicial proceedings commence in Virginia has never been established definitively. One Virginia Court of Appeals decision, however, rejected the argument that it starts immediately after a warrantless arrest and before the first appearance at the magistrate. ²⁰ At least one Virginia federal court rejected the argument that it commences after the issuance of an arrest warrant. ²¹ However, if the confrontation between the eyewitness and the accused occurs at or after the preliminary hearing, the right to counsel attaches, ²² and it also probably attaches after the accused's first appearance before the magistrate. ²³

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8.203 Scope of the Right. Not all eyewitness identification proceedings involve an actual face-to-face confrontation. Often the witness is asked to identify the accused from a photo spread. The Supreme Court has held that there is no right to be represented by counsel when the witness is asked to view a photo spread, regardless of when it occurs. ²⁴ The risks inherent in the use of photographic displays are not so pernicious that an extraordinary system of safeguards (namely, the presence of counsel) is required. ²⁵ Cross-examination is thought to sufficiently assure the reliability of the identification. Unless they occur before adversarial judicial proceedings commence, confrontations between an eyewitness and the accused for the purpose of voice identification must be conducted in the presence of counsel. ²⁶ However, identification from an...