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The Fifth and Sixth Amendments to the U.S. Constitution give criminal defendants the right to counsel, or in other words, to be represented by an attorney in most criminal proceedings. However, it is important to understand how far the right to counsel reaches, as well as its limitations. This section has information on the types of proceedings and situations in which someone is entitled to an attorney, plus what this right guarantees.

Invoking the Right to Counsel + Because the invocation of Miranda rights, particularly the right to counsel, has created significant burdens on law enforcement's ability to conduct effective interrogations, several recent court decisions have begun to limit a custodial suspect's ability to invoke that right. Specifically, the Court wants to ensure that a suspect's invocation of rights is not frivolous. To do this, courts require that suspects invoke their right to counsel unequivocally, as well as in a timely manner.

If individuals are arrested or questioned, the burden is on them to invoke their right to counsel in a clear and unequivocal manner. They should receive notice that they have the right to an attorney, but law enforcement is not required to ask them whether they want an attorney, nor do they need to ask them clarifying questions if they are unclear in their request for an attorney. Not only must invoking the right to counsel be unequivocal, but courts also have begun to insist that invocations of the Miranda right to counsel be made in a timely manner. Individuals should not wait to be asked if they want a lawyer, nor should they expect the police to read them Miranda warnings before they ask for counsel.

Judicial Proceedings and Custodial Interrogation + Generally, defendants are entitled to counsel from the time of their arraignment until the beginning of their trial. This is because the defendant's need for consultation, investigation, and preparation are critically important for a fair trial. The courts have gradually expanded this idea to the point that there is a legal concept of "a critical stage in a criminal proceeding" that indicates when a defendant must be represented by counsel.Custodial Interrogation

Defendants who have been taken into custody and have invoked their Sixth Amendment right to counsel with respect to the offense for which they are being prosecuted may not later waive that right. However, defendants may waive their right under Miranda not to be questioned about unrelated and uncharged offenses.

What happens if the police violate the right to counsel? The remedy for violation of the Sixth Amendment rule is that any statements obtained from defendants under these circumstances will be excluded from the evidence at trial. There is one important exception to the Sixth Amendment exclusionary rule: evidence obtained from defendants held in custody that violates the Sixth Amendment may be used for the sole purpose of impeaching the defendants' testimony at trial.

Lineups and Other Identification Situations + Lineups are considered to be "critical stage" and the prosecution may not admit into evidence in-court identification of defendants based on out-of-court lineups or show-ups if they were obtained without the presence of defendant's counsel. Courts have found that a defendant's counsel is necessary at a lineup because the lineup stage is filled with much potential for both intentional and unintentional errors. Without the defendant's attorney present at the lineup, these errors may not be discovered and remedied prior to trial.

This rule does not apply to other methods of obtaining identification and other evidentiary material relating to the defendant, including the following:blood samplesDNA sampleshandwriting samplesvocal samples

In these cases, there is far less chance that the absence of counsel at the time the evidence is obtained from the defendant might prevent the defendant from getting a fair trial.

The Sixth Amendment does not guarantee the presence of the defendant's counsel at a pretrial proceeding unless the physical presence of the defendant is involved. Furthermore, the defendant's presence must be required at a trial-like confrontation at which the defendant requires the advice and assistance of counsel.

Post-Conviction Proceedings +  In a criminal trial, the law requires a lawyer for defendants to be present at the sentencing stage of the trial. If individuals are convicted of a crime and are placed on probation, they still have the right to counsel at a later hearing on the revocation of their probation and imposition of the deferred sentence. Due process and equal protection rather than Sixth Amendment rights, however, will apply in the following three post-trial hearings: 1. for granting parole or probation 2. for revoking parole when parole was imposed after sentencing 3. for prison disciplinary hearings

Right to Assistance of Counsel: First Appeal + A criminal defendant's Sixth Amendment right to assistance of counsel has been extended by the U.S. Supreme Court to include representation during the first appeal after conviction. This stage is sometimes called the "appeal as a matter of right."

If You Cannot Afford to Hire an Attorney for a First Appeal

Just as with the right to assistance of counsel at earlier stages such as preliminary hearing and trial, the government appoints an attorney to represent any criminal defendant who cannot afford a lawyer for a first appeal. For any subsequent appeal, the person usually must pay to hire an attorney. In many states, however, public interest or civil rights groups sometimes represent convicted persons for free at subsequent appeals.

A person who has been convicted of a crime may have certain options for relief in both state and federal court.

The 6th Amendment's Confrontation Clause + The 6th Amendment to the U.S. Constitution sets out many rights for defendants during a criminal prosecution, including the right of the accused to confront their accusers. The relevant text of the Confrontation Clause of the 6th Amendment reads as follows: In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.

The 14th Amendment has made the 6th Amendment's right to confrontation applicable to state court as well as federal court.

The confrontation clause guarantees criminal defendants the opportunity to face the prosecution's witnesses in the case against them and dispute the witnesses' testimony. This guarantee applies to both statements made in court and statements made outside of court that are offered as evidence during trial.The Right to Cross-Examine

For in-court statements, the confrontation clause essentially means that the defendant has a right to cross-examine witnesses in order to challenge their testimony. Trial rules can shape or limit the manner of the cross-examination, so long as those rules stand up to a confrontation clause analysis. A trial court may prevent repetitive or unduly harassing cross-examination, but defendants otherwise enjoy a wide latitude when confronting witnesses during a cross-examination. If a trial judge restricts cross-examination too severely, a violation of the confrontation clause may have occurred.Out-of-Court Statements

In building a case, prosecutors may want to use statements that people have made outside of the courtroom as evidence against the defendant. If the person making the statements does not appear in court to testify, however, using such statements may constitute a confrontation clause violation.

Here are some examples of out-of-court statements that may run afoul of the confrontation clause:Statements by a non-testifying victim made during a police interrogationStatements by a non-testifying victim to emergency medical responders, hospital staff or social workersAn autopsy report by a non-testifying medical examinerCrawford v. Washington and Out-of-Court Statements

In 2004, the Supreme Court decided an important case, Crawford v. Washington, that altered the rules for when prosecutors can use out-of-court statements against a defendant.

Before Crawford, the Supreme Court had held that out-of-court statements did not violate the confrontation clause as long as they were adequately reliable. In Crawford, the Court changed course and determined that defendants had a right to cross-examine out-of-court statements, regardless of whether or not the statements were reliable.

After Crawford, the government cannot use out-of-court statements that are offered as testimony against the defendant unless the witness is unavailable and the defendant has had a previous opportunity to cross-examine the witness.

The Supreme Court recently carved out an important exception to this general rule for so-called "dying declarations". In Michigan v. Bryant, the Court ruled that a statement made by a dying person can be entered into evidence at trial if the statement was made to assist police with an "ongoing emergency" as opposed to merely helping the police investigate a past crime.Melendez-Diaz v. Massachusetts and Forensic Tests

In Melendez-Diaz v. Massachusetts, the Supreme Court extended its rule from Crawford to cover reports from forensic analysts. Specifically, the Court ruled that prosecutors cannot use a report on the chemical makeup of a batch of alleged illegal drugs if the laboratory technician who prepared the report does not testify at trial.

The Court upheld, however, the use of "notice and demand" statutes. Notice and demand statutes allow the prosecution to notify the defendant of the prosecution's intent to use a drug report without additional testimony. If the defendant does not object to the prosecution's use of the report, no confrontation clause violation has occurred.

Recently, the Court further enhanced the rules for forensic analyses in a case known as Bullcoming v. New Mexico. In that case, the Court clarified the Melendez rule by stating that the actual person who performed the forensic test must also give testimony at trial. Testimony from a different forensic analyst from the same lab would not satisfy the 6th Amendment's requirements, according to the Court.

Testimony from a different analyst could constitute an acceptable substitute, however, if the original analyst was not available to testify and the defense had a previous opportunity to perform cross-examination.

The Miranda Case and the Right to Counsel + In 1966, the United States Supreme Court decision in Miranda v. Arizona ushered in a period of court-imposed restraints on the government's ability to interrogate suspects it takes into custody. This famous decision focused on Fifth Amendment protections against self-incrimination, but it also spoke to the right to counsel. One of the most important restraints enumerated in the Miranda decision is the prohibition against the government's interrogation of suspects or witnesses after the suspect has invoked the right to counsel. Here's what the Miranda warnings generally say:You have the right to remain silent.Anything you say can be used against you in a court of law.You have the right to have an attorney present now and during any future questioning. The right to have counsel present at a custodial interrogation is necessary to protect the Fifth Amendment privilege against self-incrimination. A suspect detained for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation.If you cannot afford an attorney, one will be appointed to you free of charge if you wish. The Supreme Court found it necessary to mandate notice to defendants about their constitutional right to consult with an attorney. They went one step further and declared that if a defendant is poor, the government must appoint a lawyer to represent him.

The Court further instructed the police that if a suspect says he wants a lawyer, the police must cease any interrogation or questioning until an attorney is present. Further, the police must give the suspect an opportunity to confer with his attorney and to have the attorney present during any subsequent questioning.

Individuals need to remember that they can be arrested without being advised of their Miranda Rights. The Miranda rights do not protect individuals from being arrested, but they help suspects keep from unwittingly incriminating themselves during police questioning.

All the police need to arrest a person is probable cause to believe a suspect has committed a crime. Probable cause is merely an adequate reason based on the facts or events. Police are required to read or give suspects their Miranda warnings only before questioning a suspect. Failing to follow the Miranda rules may cause suspects' statements to be inadmissible in court; the original arrest may still be perfectly legal and valid.

Police are allowed to ask certain questions without reading the Miranda rights, including the following: Name Address Date of birth Social Security number Other questions necessary to establishing a person's identity

Police can also give alcohol and drug tests without Miranda warnings, but individuals being tested may refuse to answer questions.

The Right to Adequate Representation + Indigent defendants who are represented by appointed lawyers and defendants who can afford to hire their own attorneys are both entitled to adequate representation. But "adequate representation" does not mean perfect representation. However, an incompetent or negligent lawyer can so poorly represent a client that the court is justified in throwing out a guilty verdict based on the attorney's incompetence.

If a defendant's lawyer is ineffective at trial and on direct appeal, the defendant's Sixth Amendment right to a fair trial has been violated. In analyzing claims that a defendant's lawyer was ineffective, the principal goal is to determine whether the lawyer's conduct so undermined the functioning of the judicial process that the trial cannot be relied upon as having produced a just result. Proving this requires two steps:

1. The defendant must show that his own lawyer's job performance was deficient. The defendant must prove that his counsel made errors so serious that the lawyer did not function as the counsel guaranteed the defendant by the Sixth Amendment.

2. The defendant must show that the deficient performance unfairly prejudiced the defense. The defendant must show that his lawyer's errors were so serious as to wholly deprive the defendant of a fair trial.

Unless a defendant proves both steps, the conviction or sentence cannot be said to result from a breakdown in the judicial process such that the result is unreliable. When courts review a lawyer's advocacy of a defendant, they are deferential. Courts are bound by a strong presumption that any given lawyer's conduct falls within the range of reasonable professional assistance.

The Right to Counsel + A criminal defendant's right to an attorney is found in the Sixth Amendment to the U.S. Constitution, which requires the "assistance of counsel" for the accused "in all criminal prosecutions." This means that a defendant has a constitutional right to be represented by an attorney during trial. It also means that if the defendant cannot afford an attorney, in almost all instances the government will appoint one to handle the case, at no cost to the defendant.

Keep in mind that, while the right to counsel is discussed here in connection with a criminal trial, a suspect has the right to a lawyer at almost every important phase of the criminal process, typically from arrest through the first appeal after conviction.

How Does an Attorney Assist a Defendant in a Criminal Case ?

The defense attorney's role is of paramount importance in almost every criminal case. While specific duties of an attorney vary depending on the nature of the charges and the case, key responsibilities of any criminal defense lawyer include:Advising the defendant of his or her rights and explaining what to expect at different stages of the criminal process;Ensuring that the defendant's constitutional rights are not violated through law enforcement conduct, or in court proceedings;Negotiating a plea bargain with the government, on the defendant's behalf;From arraignment to sentencing: investigating facts and evidence, cross-examining government witnesses, objecting to improper questions and evidence, and presenting any legal defenses.

To What Standards is a Criminal Defense Attorney Held ?

Courts have interpreted the Sixth Amendment right to counsel as guaranteeing the "effective assistance of counsel" to criminal defendants. It doesn't matter whether the attorney is hired by the defendant or appointed by the government. However, questionable strategic choices made by an attorney (and even serious lawyer errors, in some instances) do not usually cause a conviction to be thrown out, unless it is clear that the attorney's incompetence affected the outcome of the case. 

U.S. Constitution: Sixth Amendment + Rights of Accused in Criminal Prosecutions

Amendment Text

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.


Criminal Prosecutions +

Coverage + Offenses Against the United States = 

Right to a Speedy and Public Trial +

Speedy Trial + Source and Rationale = Application and Scope = When the Right Is Denied 

Public Trial +

Right to Trial by Impartial Jury +

Jury Trial = The Attributes and Function of the Jury = Criminal Proceedings to Which the Guarantee Applies =

Impartial Jury +

Place of Trial--Jury of the Vicinage +

Notice of Accusation +

Confrontation +

Compulsory Process +

Assistance of Counsel +

Development of an Absolute Right to Counsel at Trial + Powell v. Alabama = Johnson v. Zerbst = Betts v. Brady and Progeny = Gideon v. Wainwright = Protection of the Right to Retained Counsel = Effective Assistance of Counsel = Self-Representation =  

Right to Assistance of Counsel in Nontrial Situations + Judicial Proceedings Before Trial = Custodial Interrogation = Lineups and Other Identification Situations = Post-Conviction Proceedings = Noncriminal and Investigatory Proceedings

What the Sixth Amendment Guarantees + The Sixth Amendment guarantees the right to legal counsel at all significant stages of a criminal proceeding. This right is so important that there is an associated right given to people who are unable to pay for legal assistance to have counsel appointed and paid for by the government. The federal criminal justice system and all states have procedures for appointing counsel for indigent defendants. The Sixth Amendment right to counsel has been extended to the following:

The interrogation phase of a criminal investigationThe trial itselfSentencingAt least an initial appeal of any convictionIf individuals are arrested in the United States they have a range of rights that give them certain protections, even if they are not a citizen of the United States. These rights include the following:A trial by a jury (in most cases)The jury to hear all of the witnesses and see all of the evidencePresence at the trial and while the jury is hearing the caseThe opportunity to see, hear, and confront the witnesses presenting the case against themThe opportunity to call witnesses and to have the court issue subpoenas to compel the witnesses to appearThe chance to testify themselves should they choose to do soThe option to refuse to testifyAccess to a criminal defense lawyer. If individuals cannot afford to hire their own criminal defense lawyer, a public defender will represent them. This lawyer can act on their behalf before, during, and after the trialThe right to cross-examine the witnesses giving testimony against themThe right to compel the state to prove its case against them beyond a reasonable doubt

A judge will appoint an attorney for an indigent defendant; this attorney will be compensated at government expense if at the conclusion of the case the defendant could possibly be imprisoned for a period of more than six months. In reality, judges almost always appoint attorneys for indigents in practically every case in which a jail sentence is a possibility regardless of how long the sentence may be. Generally, a judge will appoint the attorney for an indigent defendant at the defendant's first court appearance; for most defendants, the first court appearance is an arraignment or a hearing to set bail.

Your Rights with Police + Criminal Rights +

Search and Seizure + Miranda Rights + Right to Counsel + Trial Rights + 42 USC 1983

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Disclaimer and Fair Use Pages For Westlaw Books + See Full Disclaimer Page + Its Five 5 Button Down From The Top Of This Website + You Can Click # Button + To Read The Whole Disclaimer For This Website and My Other Website's Info. !

The monthly hosting costs and annual domain costs have been coming out of my own pocket to keep this site online. I really think that sites like this are important to all civil rights Issus's and I really want to keep this site alive. therefore I am ? asking 4 donations to keep this site up and running.  you can donate any amount a few pennies to a few dollars the choice is totally yours and it's totally optional. If you feel that sites like this need to exist on the internet, please support it. Jan 2018