Trials

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III. TRIALS

RIGHT TO COUNSEL

Scope and Application. The Sixth Amendment provides that in all criminal prose-

cutions, defendants have the right to have “Assistance of Counsel”for their

defense.

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The Sixth Amendment right to counsel applies to all federal and state

criminal prosecutions

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in which the defendant is accused of a crime,

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if an actual

or suspended sentence of imprisonment is imposed.

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The accused does not need to

request counsel for the right to attach. The right to counsel attaches in a criminal

prosecution after the initiation of adversarial judicial proceedings.

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After the right

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1615. U.S. CONST. amend. VI.

1616. See Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (6th Amendment right to counsel applies to

states through 14th Amendment); see also Johnson v. Zerbst, 304 U.S. 458, 467 (1938) (“Since the Sixth

Amendment constitutionally entitles one charged with crime to the assistance of counsel, compliance with this

constitutional mandate is an essential jurisdictional prerequisite to a federal court’s authority to deprive an

accused of his life or liberty.”), overruled on other grounds by Edwards v. Ariz., 451 U.S. 477 (1981).

1617. See Beard v. Banks, 542 U.S. 406, 418 (2004) (noting Gideon established right to counsel in felony

cases).

1618. See Argersinger v. Hamlin, 407 U.S. 25, 37-38 (1972) (no person may be imprisoned for a

misdemeanor if denied right to counsel); see also Ala. v. Shelton, 535 U.S. 654, 674 (2002) (no person may

receive a suspended sentence that might result in actual imprisonment if denied right to counsel); Glover v.

U.S., 531 U.S. 198, 203 (2001) (“[A]ny amount of actual jail time has Sixth Amendment significance.”); Scott

v. Ill., 440 U.S. 367, 373 (1979) (penalty of actual imprisonment warrants right to counsel whereas fines or

threat of imprisonment may not). But see, e.g., U.S. v. Pollard, 389 F.3d 101, 105 (4th Cir. 2004) (right to

counsel not violated when defendant received stand-alone probation sentence but was later imprisoned for

violating its conditions); U.S. v. Rios-Cruz, 376 F.3d 303, 304-05 (5th Cir. 2004) (same).

1619. See Kirby v. Ill., 406 U.S. 682, 689-90 (1972) (plurality opinion) (right to counsel attaches at

initiation of judicial criminal proceedings); see also Rothgers v. Gillespie County, 554 U.S. 191, 213 (2008)

(right to counsel attaches at initial appearance before judicial officer when defendant learns of charge filed,

even if prosecutor is not present); Brewer v. Williams, 430 U.S. 387, 399 (1977) (right to counsel attaches

before post-arraignment interrogation); see, e.g., U.S. v. Leon-Delfis, 203 F.3d 103, 110 (1st Cir. 2000) (right to

counsel attached at arraignment); U.S. v. Black, 918 F.3d 243, 256 (2d Cir. 2019) (same); Matteo v. Superint.,

SCI Albion, 171 F.3d 877, 893 (3d Cir. 1999) (right to counsel attached before defendant talked with informant

because defendant already faced preliminary arraignment); U.S. v. Williamson, 706 F.3d 405, 416 (4th Cir.

2013) (right to counsel attached after judicial proceedings were initiated against defendant); U.S. v. Portillo,

969 F.3d 144, 160-61 (5th Cir. 2020) (right to counsel attached after defendant’s initial appearance before

magistrate judge); U.S. v. Young, 657 F.3d 408, 416 (6th Cir. 2011) (right to counsel attached when judicial

proceedings were initiated); Thompkins v. Pfister, 968 F.3d 976, 984 (7th Cir. 2012) (right to counsel attached

at bond hearing); U.S. v. Bird, 287 F.3d 709, 716 (8th Cir. 2002) (right to counsel attached at tribal court

arraignment); U.S. v. Rice, 776 F.3d 1021, 1024 (9th Cir. 2015) (right to counsel attached at initial appearance

and arraignment); Valdez v. Ward, 219 F.3d 1222, 1234 (10th Cir. 2000) (right to counsel attached at

arraignment); U.S. v. Garey, 540 F.3d 1253, 1262-63 (11th Cir. 2008) (right to counsel attached when

adversarial proceedings began). But see, e.g., U.S. v. Boskic, 545 F.3d 69, 83 (1st Cir. 2008) (right to counsel

did not attach when government had merely secured a criminal complaint); U.S. v. Moore, 670 F.3d 222, 233-

34 (2d Cir. 2012) (right to counsel did not attach at questioning that occurred after arrest but before

arraignment); U.S. v. Jones, 418 F.3d 368, 371-72 (3d Cir. 2005) (right to counsel did not attach at plea hearing

when defendant pleaded guilty to misdemeanor that did not carry jail time); U.S. v. Holness, 706 F.3d 579, 589

(4th Cir. 2013) (right to counsel did not attach when government informally questioned defendant regarding

federal investigation, even though related proceedings were already underway in state court); U.S. v. Mata, 517

F.3d 279, 291 (5th Cir. 2008) (right to counsel did not attach when defendant questioned prior to arrest or

formal charges); Turner v. U.S., 885 F.3d 949, 953 (6th Cir. 2018) (right to counsel did not attach at

preindictment plea negotiations with federal prosecutors, even though defendant indicted in state court for same

conduct); U.S. v. Stadfeld, 689 F.3d 705, 711 (7th Cir. 2012) (right to counsel did not attach at prearrest

informal questioning); U.S. v. Waits, 919 F.3d 1090, 1094 (8th Cir. 2019) (right to counsel did not attach when

federal investigator recorded defendant’s conversation before prosecution commenced); Sanders v. Cullen, 873

F.3d 778, 814 (9th Cir. 2017) (right to counsel did not attach at pre-charge lineup); U.S. v. Williston, 862 F.3d

1023, 1034 (10th Cir. 2017) (right to counsel did not attach when defendant questioned in front of grand jury);

51 Geo. L.J. Ann. Rev. Crim. Proc. (2022) 601

to counsel first attaches, courts make a separate determination about whether a partic-

ular proceeding counts as a critical stage that requires counsel’s presence.

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Philmore v. McNeil, 575 F.3d 1251, 1258 (11th Cir. 2009) (right to counsel did not attach when defendant

questioned prior to filing of formal charges); U.S. v. Islam, 932 F.3d 957, 963 (D.C. Cir. 2019) (right to counsel

did not attach at revocation hearing).

The accused does not need to request counsel for the right to attach. See Carnley v. Cochran, 369 U.S. 506,

513 (1962) (right to counsel attaches regardless of defendant request).

For a discussion of the Fifth Amendment right to counsel, see CUSTODIAL INTERROGATIONS in Part I.

1620. See Lafler v. Cooper, 566 U.S. 156, 165 (2012) (right to counsel applies to “pretrial critical stages that

are part of the whole course of a criminal proceeding”).

Pretrial lineups, which occur after an adversary judicial proceeding, are considered a critical stage. See Kirby

v. Ill., 406 U.S. 682, 689 (1972); see also U.S. v. Wade, 388 U.S. 218, 236-37 (1967). Many circuits have held

that the “critical stage”of a pretrial lineup is limited to the period when the defendant was in sight of a potential

witness. See, e.g., Sams v. Walker, 18 F.3d 167, 170 (2d Cir. 1994) (pretrial lineup is critical stage but not

identification from lineup if made outside presence of defendant); U.S. v. Wilcox, 507 F.2d 364, 369 & n.19

(4th Cir. 1974) (critical stage limited “to the period during which an accused [was] within sight of a potential

identification witness”(quoting U.S. v. Cunningham, 423 F.2d 1269, 1274 n.3 (4th Cir. 1970))); U.S. v. White,

617 F.2d 1131, 1134-35 (5th Cir. 1980) (post-lineup interrogation of witnesses not critical stage provided there

is an “adequate opportunity at trial for the witnesses to be cross-examined concerning the lineup and

interview”); U.S. v. Bierey, 588 F.2d 620, 623-25 (8th Cir. 1978) (post-lineup interrogation of witnesses not

critical stage because it “does not present that serious potential for prejudice that occurs in the confrontation

between an eyewitness and a suspect where counsel is required”); Jordan v. Ducharme, 983 F.2d 933, 936-38

(9th Cir. 1993) (post-lineup witness interviews do not trigger right to counsel); Hallmark v. Cartwright, 742

F.2d 584, 585 (10th Cir. 1984) (same).

A post-indictment interrogation is considered a critical stage. See Mo. v. Frye, 566 U.S. 134, 140 (2012)

(citing Massiah v. U.S., 377 U.S. 201, 213 (1964)).

An arraignment hearing is also considered a critical stage, necessitating counsel’s presence, see id. (citing

Hamilton v. Ala., 368 U.S. 52, 53-54 (1961)), as is a competency hearing, see, e.g., U.S. v. Zedner, 193 F.3d

562, 567 (2d Cir. 1999) (presence of counsel necessary when defendant appeared at competency hearing pro se

and district judge had “substantial reason to doubt a defendant’s competence”); Appel v. Horn, 250 F.3d 203,

215 (3d Cir. 2001) (competency hearing was critical stage); U.S. v. Barfield, 969 F.2d 1554, 1556 (4th Cir.

1992) (same); U.S. v. Ross, 703 F.3d 856, 873-74 (6th Cir. 2012) (same); Harris v. Thompson, 698 F.3d 609,

640 n.19 (7th Cir. 2012) (same); Raymond v. Weber, 552 F.3d 680, 684 (8th Cir. 2009) (same); U.S. v.

Kowalczyk, 805 F.3d 847, 859 (9th Cir. 2015) (same); U.S. v. Bergman, 599 F.3d 1142, 1147 (10th Cir. 2010)

(same); U.S. v. Klat, 156 F.3d 1258, 1263 (D.C. Cir. 1998) (same). But see, e.g., U.S. v. Morrison, 153 F.3d 34,

47 (2d Cir. 1998) (competency hearing not critical stage when district court held hearing after determining

defendant’s competency based on psychiatric reports and court’s own observation).

A pretrial psychiatric interview is also a critical stage. See Estelle v. Smith, 451 U.S. 454, 470-71 (1981);

see, e.g., Gibbs v. Frank, 387 F.3d 268, 274 (3d Cir. 2004) (defense counsel must be notified before defendant

undergoes compelled psychiatric interview); Murtishaw v. Woodford, 255 F.3d 926, 952 (9th Cir. 2001)

(defendant entitled to consult with counsel before submitting to court-ordered psychiatric interview);

Delguidice v. Singletary, 84 F.3d 1359, 1363-64 (11th Cir. 1996) (defendant has right to consult counsel

regarding scope and nature of psychiatric examination). But see, e.g., U.S. v. A.R., 38 F.3d 699, 705 (3d Cir.

1994) (psychiatric evaluation used only for adult certification determination not critical stage because counsel

would have served “no functional purpose”); Weaver v. Gill, 633 F.2d 737, 737-38 (6th Cir. 1980) (psychiatric

evaluation not critical stage carrying right to counsel when no information from it used at trial); Godfrey v.

Kemp, 836 F.2d 1557, 1564 n.5 (11th Cir. 1988) (psychiatric evaluation only critical stage if focus of

examination concerns “essential issue at trial”).

However, a post-indictment photographic identification is not a critical stage. See Patterson v. Ill., 487 U.S.

285, 298 (1988) (citing U.S. v. Ash, 413 U.S. 300, 313-20 (1973)) (post-indictment photographic identification

not critical stage).

A parole hearing is also not considered a critical stage. See Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973)

(parole proceedings are not stage of criminal prosecution and thus need for counsel at such hearings must be

determined “on a case-by-case basis in the exercise of a sound discretion by the state authority charged with

responsibility for administering the . . . parole system”), abrogated on other grounds by 18 U.S.C. § 3006A;

see, e.g., McCall v. Pataki, 232 F.3d 321, 323 (2d Cir. 2000) (no right to counsel at parole release hearing

because no prosecution); U.S. v. Manuel, 732 F.3d 283, 291 (3d Cir. 2013) (no right to counsel at parole

revocation hearing); U.S. v. Carillo, 660 F.3d 914, 925 (5th Cir. 2011) (citing Gagnon, 411 U.S. at 790) (same);

McGee v. Aaron, 523 F.2d 825, 827 n.2 (7th Cir. 1975) (no right to counsel at parole proceeding); U.S. v.

602 51 Geo. L.J. Ann. Rev. Crim. Proc. (2022)

Once the Sixth Amendment right to counsel has attached, the government may not

use as evidence at trial incriminating statements “deliberately elicited”from the de-

fendant by law enforcement officials

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or individuals used by law enforcement

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Spangle, 626 F.3d 488, 494 (9th Cir. 2010) (no right to counsel at parole revocation proceeding); Robinson v.

Benson, 570 F.2d 920, 923 (10th Cir. 1978) (same).

Nor is a probation revocation hearing considered a critical stage. See Gagnon, 411 U.S. at 790 (probation

revocation hearing not stage of criminal prosecution, and need for counsel at probation revocation hearing must

be determined “on a case-by-case basis in the exercise of a sound discretion”of authority in charge of probation

system); see, e.g., U.S. v. Smith, 839 F.3d 456, 458 (5th Cir. 2016) (no right to counsel at probation revocation

hearing); U.S. v. Wheeler, 330 F.3d 407, 412 (6th Cir. 2003) (no right to counsel at community corrections

sentence revocation hearing); U.S. v. Jones, 861 F.3d 687, 690 (7th Cir. 2017) (no right to counsel at supervised

release revocation hearing). But see Mempa v. Rhay, 389 U.S. 128, 137 (1967) (“[A] lawyer must be afforded

at this proceeding whether it be labeled a revocation of probation or a deferred sentencing.”).

1621. See Brewer v. Williams, 430 U.S. 387, 399-400 (1977) (arraigned defendant’s incriminating

statements inadmissible at trial when made in response to speech by police officer without counsel’s presence

because officer’s speech “tantamount to interrogation”); see also Fellers v. U.S., 540 U.S. 519, 524-25 (2004)

(incriminating statements inadmissible when made during voluntary discussion at home because discussion

took place after indictment and without informed waiver of 6th Amendment rights); see, e.g., U.S. v. Bender,

221 F.3d 265, 268-69 (1st Cir. 2000) (6th Amendment violation when undercover government agent initiated

conversation with defendant about unrelated crimes because government must have known agent was likely to

obtain incriminating statements from defendant); U.S. v. Rodriguez, 993 F.2d 1170, 1174 (5th Cir. 1993) (6th

Amendment violation when police obtained incriminating statement from defendant in custody after

codefendant indicated to police that “they”wanted to speak to officers); U.S. v. Bird, 287 F.3d 709, 716 (8th

Cir. 2002) (6th Amendment violation when federal agents interviewed defendant without counsel after

defendant arraigned on tribal charges factually related to federal charges); Queen v. U.S., 335 F.2d 297, 298

(D.C. Cir. 1964) (6th Amendment violation when police interrogated defendant in secret without counsel

present). But see, e.g., U.S. v. Ocean, 904 F.3d 25, 34 (1st Cir. 2018) (no 6th Amendment violation when

conversation recorded with third party acting as government informant without counsel); Dellavecchia v. Sec’y

Pa. Dep’t of Corr., 819 F.3d 682, 695 (3d Cir. 2016) (no 6th Amendment violation when officer did nothing

more than listen to defendant’s “spontaneous and unsolicited statement that was both unprompted and willingly

provided”); Jones v. Page, 76 F.3d 831, 852 n.23 (7th Cir. 1996) (no 6th Amendment violation when officer

accepted defendant’s written confession); U.S. v. Morriss, 531 F.3d 591, 594 (8th Cir. 2008) (no 6th

Amendment violation when agent asked defendant for “[their] side of the story”after investigation

commenced); Kemp v. Ryan, 638 F.3d 1245, 1256 (9th Cir. 2011) (no 6th Amendment violation when

correctional officers initiated a “custody-related inquiry”with defendant because it was not designed to

deliberately elicit information about crime of arrest).

Government agents may question a defendant after the invocation of the right to counsel if the defendant

initiates communication. See, e.g., U.S. v. Carpentino, 948 F.3d 10, 22 (1st Cir. 2020) (no 6th Amendment

violation when defendant asked officers case-related questions, thereby reinitiating interview); U.S. v.

Gonzalez, 764 F.3d 159, 166 (2d Cir. 2014) (no 6th Amendment violation when defendant asked agents not to

leave, indicating desire to speak with them); Dellavecchia v. Sec’y Pa. Dep’t of Corr., 819 F.3d 682, 695 (3d

Cir. 2016) (no 6th Amendment violation when defendant spontaneously made statement to police officer); U.S.

v. Brown, 757 F.3d 183, 191 (4th Cir. 2014) (no 6th Amendment violation when defendant voluntarily

interviewed with police without counsel present despite counsel scheduling interview); Mann v. Scott, 41 F.3d

968, 975 (5th Cir. 1994) (no 6th Amendment violation when defendant initiated contact with detective without

notifying defendant’s counsel, even when counsel requested to be notified); U.S. v. Potter, 927 F.3d 446, 451-

52 (6th Cir. 2019) (no 6th Amendment violation when defendant initiated conversation with police, even if

right to counsel previously asserted); U.S. v. Hyles, 479 F.3d 958, 966 (8th Cir. 2007) (same); U.S. v. Michaud,

268 F.3d 728, 737 (9th Cir. 2001) (no 6th Amendment violation when defendant initiated communication with

police through third party); U.S. v. Willis, 826 F.3d 1265, 1277 (10th Cir. 2016) (no 6th Amendment violation

when defendant continued speaking to officers after invoking right to counsel); U.S. v. Dixon, 901 F.3d 1322,

1340 (11th Cir. 2018) (no 6th Amendment violation when defendant initiated conversation with federal agent);

U.S. v. Straker, 800 F.3d 570, 623 (D.C. Cir. 2015) (no 6th Amendment violation when defendant left

voicemail “evinc[ing] a willingness and a desire”to reinitiate communications with government agents).

Government agents may question a defendant if the defendant invokes the right to counsel and subsequently

waives the right. See Montejo v. La., 556 U.S. 778, 789 (2009) (no 6th Amendment violation when defendant

was appointed counsel but subsequently waived right to counsel by expressing no opposition to speaking with

law enforcement).

51 Geo. L.J. Ann. Rev. Crim. Proc. (2022) 603