Chapter 5 - §2. Elements for exclusion

JurisdictionUnited States

§2. Elements for exclusion

The government violates a defendant's Sixth Amendment right to counsel by taking the defendant's statement without his counsel's presence when three separate conditions are met: (1) the defendant's right to counsel has attached, (2) a government agent has deliberately elicited a statement from the defendant without his counsel present, and (3) the defendant has not effectively waived his right to counsel. See U.S. v. Henry (1980) 447 U.S. 264, 269-70 (first and second conditions); Brewer v. Williams (1977) 430 U.S. 387, 398-402 (all three conditions); Massiah v. U.S. (1964) 377 U.S. 201, 205-06 (first and second conditions).

§2.1. Defendant's right to counsel has attached. For a defendant's statement to be subject to exclusion under the Sixth Amendment right to counsel, the defendant's right to counsel must have attached at the time the government agent (e.g., police officer) questioned the defendant. See People v. Clair (1992) 2 Cal.4th 629, 657. Once the Sixth Amendment right has attached, the government may not obtain incriminating statements from a defendant about the charged crime outside the presence of her counsel absent an explicit waiver. People v. Gonzalez (2021) 12 Cal.5th 367, 385.

1. Generally. The Sixth Amendment right to counsel "becomes applicable only when the government's role shifts from investigation to accusation." Moran v. Burbine (1986) 475 U.S. 412, 430. "For it is only then that the assistance of one versed in the 'intricacies . . . of law,' . . . is needed to assure that the prosecution's case encounters 'the crucible of meaningful adversarial testing.'" Id.; see McNeil v. Wisconsin (1991) 501 U.S. 171, 177 ("purpose of the Sixth Amendment counsel guarantee . . . is to 'protec[t] the unaided layman at critical confrontations' with his 'expert adversary,' the government"); Gonzalez, 12 Cal.5th at 384-85 ("It is then that a defendant finds himself faced with the prosecutorial forces of organized society"). This has been interpreted to mean that the right to counsel attaches when a prosecution is commenced. Rothgery v. Gillespie Cty. (2008) 554 U.S. 191, 198; U.S. v. Olson (9th Cir.2021) 988 F.3d 1158, 1160; People v. Fayed (2020) 9 Cal.5th 147, 161. Thus, attachment does not occur simply because a person has become the focus of a criminal investigation or has been arrested. See People v. Johnsen (2021) 10 Cal.5th 1116, 1154 ("The Sixth Amendment protects a defendant's right to counsel on arraigned charges, not unarraigned offenses"). E.g., Gonzalez, 12 Cal.5th at 385 (although D was the subject of an undercover operation, the right to counsel had not attached; incriminating statements were made by D over a month before complaint was filed against him); People v. Cunningham (2015) 61 Cal.4th 609, 648 (although D was focus of murder investigation, D was arrested for probation violation, not murder; no charges had been filed, so right had not attached); see U.S. v. Gouveia (1984) 467 U.S. 180, 190; Clair, 2 Cal.4th at 657; People v. Mattson (1990) 50 Cal.3d 826, 867-68; see, e.g., Y.C. v. Superior Ct. of San Mateo Cty. (1st Dist.2021) 72 Cal.App.5th 241, 254 (D's statements related to offenses for which he had not been charged admissible notwithstanding attachment of Sixth Amendment right to counsel on other charged offenses); People v. Wheelock (1st Dist.2004) 117 Cal.App.4th 561, 566-67 (although D had been taken into custody based on arrest warrant, right to counsel had not attached when he confessed to murder because he had not been formally accused and, despite arrest, "prosecution was still in the investigatory stage"). The U.S. Supreme Court has defined commencement as the initiation of adversary judicial criminal proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. Gouveia, 467 U.S. at 187-88; Brewer v. Williams (1977) 430 U.S. 387, 398; Kirby v. Illinois (1972) 406 U.S. 682, 689; see Moran, 475 U.S. at 431. In California, prosecution is considered to begin when a criminal complaint is filed. People v. Viray (6th Dist.2005) 134 Cal.App.4th 1186, 1197.

Once the right to counsel attaches, the accused is entitled to appointed counsel during a "critical stage" of the post-attachment proceedings. Rothgery, 554 U.S. at 212. A critical stage of the proceeding is defined as any stage of the prosecution, formal or informal, in court or out, where counsel's absence might prevent the accused from having a fair trial. U.S. v. Wade (1967) 388 U.S. 218, 226; see Bell v. Cone (2002) 535 U.S. 685, 695-96 (critical stage is one that has "significant consequences for the accused"); Mempa v. Rhay (1967) 389 U.S. 128, 134 (critical stage is "stage of a criminal proceeding where substantial rights of a criminal accused may be affected"); Chavez v. Robinson (9th Cir.2021) 12 F.4th 978, 997 (a critical stage is a "trial-like confrontation" where counsel may help avoid potential substantial prejudice to rights of the accused); see also People v. Rocha (2d Dist.2019) 32 Cal.App.5th 352, 356-57 (commenting that right to counsel at critical stages of criminal prosecution is enshrined in both U.S. and California Constitutions); People v. Ramos (2d Dist.2016) 5 Cal.App.5th 897, 909 (noting different definitions of "critical stage"). The denial of counsel during a critical stage of the proceedings requires no showing of prejudice because the adversary process itself has been rendered presumptively unreliable. Roe v. Flores-Ortega (2000) 528 U.S. 470, 483; see Garza v. Idaho (2019) ___ U.S. ___, 139 S.Ct. 738, 744.

(1) Critical stages. The following stages have been identified as critical:

(a) Arraignment and plea. Moore v. Michigan (1957) 355 U.S. 155, 159.

(b) Postindictment interrogation. Montejo v. Louisiana (2009) 556 U.S. 778, 786; Patterson v. Illinois (1988) 487 U.S. 285, 290.

(c) Postindictment live lineup. Wade, 388 U.S. at 236-37.

(d) Preliminary hearing. Coleman v. Alabama (1970) 399 U.S. 1, 9-10; People v. Cudjo (1993) 6 Cal.4th 585, 615.

(e) Hearing to substitute counsel. U.S. v. Wadsworth (9th Cir.1987) 830 F.2d 1500, 1510.

(f) Competency hearing. People v. Robinson (3d Dist.2007) 151 Cal.App.4th 606, 612.

(g) Trial. Argersinger v. Hamlin (1972) 407 U.S. 25, 37; see Ramos, 5 Cal.App.5th at 909.

(h) Closing argument. Herring v. New York (1975) 422 U.S. 853, 857-58.

(i) Sentencing. People v. Doolin (2009) 45 Cal.4th 390, 453; People v. Rouse (2d Dist.2016) 245 Cal.App.4th 292, 297; People v. Dial (3d Dist.2004) 123 Cal.App.4th 1116, 1122. This includes resentencing hearings. See People v. Sanchez (4th Dist.2016) 245 Cal.App.4th 1409, 1417; see, e.g., Rouse, 245 Cal.App.4th at 299-300 (resentencing hearing under Proposition 47 (Safe Neighborhoods & Schools Act) was critical stage).

(j) Pretrial prosecution appeal of a suppression order. Gardner v. Appellate Div. of Superior Ct. (2019) 6 Cal.5th 998, 1005.


While the Sixth Amendment right to counsel attaches at resentencing hearings, including those held under Proposition 47, cases suggest that the Sixth Amendment would not be implicated in any eligibility proceedings under Proposition 47. Rouse, 245 Cal.App.4th at 299-300; see People v. Rivas-Colon (1st Dist.2015) 241 Cal.App.4th 444, 451 (no Sixth Amendment right to jury trial on issue of eligibility for resentencing).

(2) Noncritical stages. The following stages have been identified as noncritical:

(a) Preindictment live lineup. Kirby, 406 U.S. at 690; People v. Cook (2007) 40 Cal.4th 1334, 1353.

(b) Postindictment photographic lineup. U.S. v. Ash (1973) 413 U.S. 300, 321.

(c) Taking handwriting exemplar. Gilbert v. California (1967) 388 U.S. 263, 267.

(d) Collecting urine sample after arrest. U.S....

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