The Sixth Amendment right to counsel and its underlying values: defining the scope of privacy protection.

AuthorGardner, Martin R.

    The Sixth Amendment(1) has been described by leading commentators as the central feature of our adversarial system,(2) nevertheless "scholars, lawyers, and judges have often lost their way" in their attempts to understand the Amendment's scope and underlying values.(3) Such observations are particularly fitting in the context of the fight to counsel provision. A search of the scholarly literature reveals a variety of viewpoints regarding the interests embraced by the Sixth Amendment's promise that "[i]n all criminal prosecutions, the accused shall ... have the Assistance of Counsel for his defense."(4) Moreover, the reported cases bespeak a body of law lacking theoretical cohesion.(5)

    This Article will examine the doctrinal confusion at the heart of right to counsel jurisprudence. The Article will identify three values underlying the Sixth Amendment Right to Counsel Clause by examining several leading Supreme Court cases, paying particular attention to the possible role played by privacy protection as a basis for the Court's decisions. The discussion will then review lower court opinions and document the substantial disagreement by those courts as to the role of privacy protection as a Sixth Amendment value. Building on an opinion of Chief Judge Richard A. Posner of the Seventh Circuit Court of Appeals, the Article will then derive principles recommended as useful vehicles for defining the proper scope of Sixth Amendment privacy. Those principles will then be applied to the relevant body of Supreme Court case law illustrating that privacy protection is not a relevant value in those cases. Finally, the Article will urge judicial clarification of the function of attorney-client privacy in right to counsel cases and offer the principles herein as aids to that clarification.


    Since its first major discussion in the 1932 decision Powell v. Alabama,(6) the United States Supreme Court has decided numerous cases raising a variety of issues under the Right to Counsel Clause of the Sixth Amendment.(7) These cases, in turn, articulate several disparate interests sought to be protected by the fight to counsel provision.

    No attempt will here be made to chronicle the whole of the Court's performance. Rather, several representative cases will be highlighted in order to illustrate the relevant values at the foundation of the Right to Counsel Clause.


      The most prominent value bottoming the Sixth Amendment right to counsel provision is the concern for providing fair trials for criminal defendants.(8) The cases seek to protect the fairness value not only during the actual trial(9) but also under certain circumstances during the pretrial phase.(10)

      In Gideon v. Wainwright,(11) the Court addressed the unfairnessinherent when defendants are financially unable to obtain counsel during trial. In Gideon, the Court recognized the applicability of the Sixth Amendment counsel right to the States(12) and held that indigent defendants were entitled to counsel at state expense.(13) The court noted:

      [R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries.... From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.(14) The Gideon Court recognized the unfairness of forcing a defendant untrained in the law to defend himself against the power and legal acumen of the State.(15) Fairness requires rough equality between adversarial opponents.(16)

      While the right to counsel originally extended to trials alone,(17) the Court eventually extended the right to certain pretrial contexts. Thus, in Massiah v. United States(18) the Government made evidentiary use of incriminating statements made by a defendant while he was free on bail after having been indicted for a federal narcotics offense. The Government obtained the statements by surreptitiously monitoring conversations between the defendant and a co-defendant who had agreed to cooperate with the government and to permit the installation of a radio transmitter under the seat of his car.(19) While the defendant had retained a lawyer prior to being released on bail, the lawyer was not present at the time of the conversations with the codefendant.(20) The Supreme Court eventually held that the Government had violated the defendant's Sixth Amendment rights by "deliberately elicit[ing]" the statements from him after he had been indicted and in the absence of counsel.(21) As a consequence, the Court reversed the defendant's conviction and suppressed the use of the tainted statements in any subsequent trial.(22)

      The Massiah Court offered little explanation for the basis of its holding.(23) Indeed, sixteen years after its decision, Chief Justice Rehnquist would lament that "[t]he doctrinal underpinnings of Massiah have been largely left unexplained."(24) In light of this, the Chief Justice offered the following rationale, noting however that the Massiah decision was "difficult to reconcile with the traditional notions of the role of an attorney."(25)

      Historically and in practice, in our country at least, [a hearing] has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he may have a perfect one. He requires the guiding hand of counsel every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.(26) With Massiah's realization that the Sixth Amendment right to counsel was not limited alone to the actual trial phase, the Supreme Court subsequently recognized the applicability of the counsel right to a variety of pretrial contexts.(27) In each instance the Court's concern was to protect against governmental circumvention of the ideal of maintaining a fair balance between adversarial opponents while "the core purpose of the counsel guarantee [is] to assure `Assistance' at trial, when the accused [is] confronted with both the intricacies of the law and the advocacy of the public prosecutor."(28) Massiah and its progeny thus embrace the view that cherished trial protections may become irrelevant if the accused is already "convicted" through pretrial governmental activities.

      The trial fairness interest articulated by cases such as Gideon and Massiah vindicates rights personal to the accused. The interest is aimed at sparing the accused the harm inherent in being forced to face the power of government prosecution without the ability to deal effectively with the complexities of the criminal justice process. As such, the fairness interest speaks to protecting procedural rights of the accused rather than to punishing the government for violation of a protected substantive interest.(29)


      Along different lines, Supreme Court case law has obliquely suggested that Sixth Amendment interests are violated when the government acts in ways perceived as interfering with the counsel rights of an accused even though no unfairness to the accused actually results. In such cases, the Court implies that the Sixth Amendment speaks not simply to protecting the accused from actual unfairness but also to deterring the government from certain conduct deemed inimical to the right to counsel. This view appears to recognize that the Sixth Amendment protects substantive interests in addition to promoting the procedural goal of trial fairness.

      For example, in United States v. Morrison(30) the Supreme Court assumed a Sixth Amendment violation in a case in which the accused suffered no actual interference with her right to counsel and thus incurred no unfairness as a result of the violation. In Morrison, two federal drug enforcement officials confronted the accused, who had been indicted and had retained counsel, and outside counsel's presence and without his knowledge or permission urged the accused to cooperate in a related investigation, promising benefits for cooperation and threatening a jail term if the accused failed to cooperate.(31) During the course of their conversations, the federal officials, aware that the accused had been indicted and had retained counsel, disparaged...

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