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Prepared by Tony Wolusky, J.D. , Metropolitan State University of Denver

Chapter 11The Sixth

Amendment: Right to Counsel and a Fair Trial

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The 6th Amendment is not that familiar to the public.

It deals with the fairness at trial and the right to a lawyer during the time leading up to and during prosecution.

The 6th Amendment protects the individual against the government’s unlimited resources and ensure a fair trial.

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The 6th Amendment require a speedy and public trial.

Delay that harms the accused’s defense may cause the charges to be dismissed.

A delayed or prolonged trial is inherently unfair.o With the assumption of a person is innocent

until proven guilty, each individual charged with a crime has the right to have their determination made as quickly as possible.

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Facts: Defendant charged with murder and tried five years later after numerous continuances by the prosecution.

Issues: Was the trial “speedy” enough under the 6th Amendment?

Holding: No. Rationale: A trial is sufficiently “speedy” is

determined by:1. The length of the delay.2. The reason for the delay.3. The defendant’s assertion of this right.4. The harm caused.

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6th Amendment requires that the trial occur in the district in which the crime was committed.

Venueo The geographical area in which a specific case may come

to trial, and the area from which the jury is selected. A defendant may seek a change of venue for

several reasons:1. Such prejudice in the county where the case is to be tried

that the defendant cannot obtain a fair and impartial trial there.

2. Another location is much more convenient for the parties and witness than the intended place of trial, and the interests of justice require a transfer of location.

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The 6th Amendment requires an impartial and representative jury.

All crimes involving the potential of jail time do not require a jury trial.

“Petty crimes” do not require a jury trial.o No definition of what a petty crime is.

More serious offenses warrant a jury trial.o Generally those who punishments could exceed

jail time of six months.

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Voir direo The process of questioning potential

jurors to determine their impartiality. Peremptory challenges

o A specific number of allowances given to each side in a case so that they may assert to remove a potential juror for any reason whatsoever.

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Facts: Batson, a black man, was on trial charged with second-degree burglary and receipt of stolen goods. During the jury selection, the prosecutor used his peremptory challenges to strike the four black persons on the venire, resulting in a jury composed of all whites. Batson was convicted on both of the charges against him.

Issues: Did the prosecutor's use of peremptory challenges to exclude the four blacks from the jury violate Batson's Sixth and Fourteenth Amendment rights? 

Holding: Yes. Rationale: Prosecutors’ peremptory challenges to

exclude from a jury members of the defendant’s race based only on racial grounds violates the equal protection rights of both the defendant and the excluded juror.

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The right to counsel is the only 6th Amendment guarantee that extends beyond the trial.

Everyone has the right to legal representation. Every lawyer has an obligation to do

everything legally permissible to see that the client’s rights are upheld.

It is to ensure that those accused are afforded their legal right and that they understand the process in which they are involved.

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Facts: Nine black youths -- young, ignorant, and illiterate -- were accused of raping two white women. Alabama officials sprinted through the legal proceedings: a total of three trials took one day and all nine were sentenced to death. Known as the “Scottsboro” boys.

Issues: Did the trials violate the Due Process Clause of the 14th Amendment?

Holding: Yes. Rationale: The defendants were not given

reasonable time and opportunity to secure counsel in their defense.

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Facts: Gideon was charged with breaking and entering, a felony.  At trial, Gideon appeared in court without an attorney and asked the judge to appoint counsel for him because he could not afford an attorney.  The trial judge denied Gideon’s request because Florida law only permitted appointment of counsel for poor defendants charged with capital offenses. 

Issues: Was Gideon denied his right to counsel under the 6th Amendment?

Holding: Yes. Rationale: The Court held that the 6th Amendment’s

guarantee of counsel is a fundamental right essential to a fair trial and, as such, applies the states through the 14th Amendment for this “deprivation of liberty.” Not only was the right to counsel absolute, but also in all serious cases, indigent defendants accused of a felony were to be provided with legal counsel.

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Facts: Argersinger was an indigent charged with carrying a concealed weapon with a maximum penalty of six months in jail and a $1,000 fine. During the bench trial in which he was convicted and sentenced to serve ninety days in jail, Argersinger was not represented by an attorney.

Issues: Was the defendant entitled to an attorney? Holding: Yes. Rationale: The Court extended the right to an

attorney to defendants accused of misdemeanor offenses. Any time the penalty could include prison, the defendant must have access to a lawyer.

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The Supreme Court has held that no one may be imprisoned for any level of crime without legal representation, unless the accused has knowingly and intelligently waived their right.

6th Amendment right to legal counsel occurs at every critical stage of a criminal proceeding, including during the investigation, at hearings and during the trial.

A critical stage is any step during a criminal prosecution where the accused’s rights may be affected by the absence of legal representation.

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Facts: After pleading not guilty and being released on bail, a co-defendant cooperated with the police to record defendant’s incriminating statements.

Issues: Did this violate the 6th Amendment? Holding: Yes. Rationale: Though it was proper to continue

the investigation, using the co-defendant to interrogate the defendant without his attorney present violated the 6th amendment and the statements are excluded as inadmissible.

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Criminal procedure defines ways police identify suspects to victims or other witnesses.

Showupo Identification technique in which only one individual

is shown to the victim or witness. Lineup

o Identification technique in which the victim or witness is shown several people, including the suspect.

Blind Lineupo One conducted by someone who does not know who

the suspect is.

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Facts: Two men were indicted for bank robbery and appointed counsel to defend them. They were brought before witnesses to participate in a line up identification procedure without the benefit of the presence of counsel, after indictment, but prior to trial. They were identified.

Issues: Did the defendants have the right to notify their attorneys and have them present at the lineup?

Holding: Yes. Rationale: The Court held that pretrial lineups

invoke the 6th Amendment protection and require that the suspect have a lawyer. This was a critical stage.

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Foster v. California (1969)o Lineups may not be arranged in such a

manner as to make the defendant stand out from the others in any unnecessarily suggestive ways.

Kirby v. Illinois (1972)o Pre-indictment identification procedures are

not critical stages of criminal proceedings, so there is no 6th Amendment right to a lawyer.

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Factors to consider in determining witness reliability:o The opportunity of the witness to view the defendant

during the crime.o The level of attention the witness was paying to the

defendant.o The accuracy of any descriptions of the defendant

made by the witness before the identification procedure.

o The witness’s level of certainty in his or her identification.

o The time between the crime and confrontation. .

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Moore v. Michigan (1957)o Established that a defendant has the right

to counsel while submitting a guilty plea to the court.

Douglas v. California (1963)o Any hearing or trial through the first

appeal of right invokes the 6th Amendment right to counsel.• But does not extend to any additional appeals.

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Powell v. Alabama (1932)o The 6th Amendment right to counsel presumes

counsel is effective. Effective counsel- “The proper measure of

attorney performance remains simply reasonableness under prevailing professional norms…The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”

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A suspect cannot be forced to deal with an attorney and so may waive this right.

Patterson v. Illinois (1988)o Held that a valid waiver of Miranda rights not only waives the 5th

Amendment right against self-incrimination but also waves the 6th Amendment right to counsel.

The requirements that a waiver be knowing, voluntary and intelligent remain the same.

For a waiver to be effective, it need not be in writing, but whatever statement is made by the suspect must show there was, in fact:o An intentional relinquishment of the known right.

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People may elect to appear in court pro seo Appearing in court without an attorney,

representing oneself. Some defendants distrust attorneys in general. Believe they can handle their defense

adequately. The expense of hiring a lawyer or not

qualifying for legal aid compels some to defend themselves.

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Faretta v. California (1975)o Set forth three conditions to be met before

a person could represent themselves:1. Awareness of the right to counsel.2. A valid waiver of 6th Amendment rights.3. Competency.

An accused who represents themselves cannot later claim ineffective counsel.

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Facts: Gault  was a 15 year-old accused of making an obscene telephone call to a neighbor. At his hearing, the probation officers filed a report listing the charge as lewd phone calls.  An adult charged with the same crime would have received a maximum sentence of a $50 fine and two months in jail.

Issues: Do procedural rights of a juvenile defendant in delinquency proceedings where there is a possibility of incarceration entitle the juvenile to counsel?

Holding: Yes. Rationale: The 6th and 14th Amendment applies to

juveniles, gives them right against self-incrimination, receive notice of charges, confront and cross-examine witnesses and counsel.

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Like the 5th Amendment, the 6th Amendment is not frequently cited in prisoners’ rights lawsuits.

For prisoners, cases based on the 6th Amendment involve the right to a speedy trial and the detainer problem.o Document filed against inmates who have other criminal charges

pending against them. Mempa v. Rhay (1967)

o Convicted offenders have right to assistance of counsel at probation revocation hearings in which sentencing has been deferred.

Gagnon v. Scarpelli (1973)o Probationers/parolees have a constitutionally limited right to

counsel on a case-by-case basis at revocation proceedings.