Constitutional protection of accused persons - Right to counsel

Learning Outcomes

After reading this article, you will be able to explain the constitutional right to counsel for accused persons, identify when and how this right attaches, distinguish between the Fifth and Sixth Amendment counsel rights, and apply the rules regarding waiver, critical stages, and the consequences of violations. You will be able to answer MBE-style questions on these principles with confidence.

MBE Syllabus

For the MBE, you are required to understand the constitutional right to counsel as it applies to criminal defendants. This includes knowing when the right attaches, its scope, and the effect of violations. You should be prepared to:

• Identify the constitutional sources of the right to counsel (Sixth and Fifth Amendments).
• Determine when the right to counsel attaches in criminal proceedings.
• Distinguish between the right to counsel at critical stages and during custodial interrogation.
• Analyze waiver of the right to counsel and the requirements for a valid waiver.
• Recognize the consequences of violations, including suppression of evidence and exceptions.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. The Sixth Amendment right to counsel attaches:
   1. At the moment of arrest.
   2. At the first police interrogation.
   3. At the initiation of formal criminal proceedings.
   4. Only at trial.
2. Which of the following is true regarding the right to counsel?
   1. It applies only to felonies.
   2. It is offense-specific and applies only to the charged offense.
   3. It applies to all police questioning, regardless of charges.
   4. It cannot be waived by the accused.
3. If a defendant is denied counsel at a post-indictment lineup, the remedy is:
   1. Automatic reversal of the conviction.
   2. Exclusion of the lineup identification at trial.
   3. Dismissal of all charges.
   4. No remedy unless prejudice is shown.
4. The Fifth Amendment right to counsel under Miranda applies:
   1. Only after formal charges are filed.
   2. Only at trial.
   3. During custodial interrogation, regardless of charges.
   4. Only to felony cases.

Introduction

The right to counsel is a core constitutional protection for accused persons in criminal cases. This right ensures that defendants have legal assistance at critical points in the criminal process. The Sixth Amendment guarantees the right to counsel in "all criminal prosecutions," while the Fifth Amendment provides a separate right to counsel during custodial interrogation under Miranda. Understanding when and how these rights apply is essential for MBE success.

Key Term: Right to Counsel The constitutional guarantee that an accused person has the assistance of a lawyer at critical stages of the criminal process, as provided by the Sixth and Fifth Amendments.

Sources of the Right to Counsel

The right to counsel arises from two main constitutional provisions:

• Sixth Amendment: Guarantees the right to counsel "in all criminal prosecutions." This right is triggered by the initiation of formal criminal proceedings and is "offense-specific."
• Fifth Amendment (Miranda): Provides a right to counsel during custodial interrogation, regardless of whether formal charges have been filed.

Key Term: Sixth Amendment Right to Counsel The right to legal representation at all critical stages of a criminal prosecution after formal proceedings have begun, including trial and certain pretrial events.

Key Term: Fifth Amendment Right to Counsel (Miranda) The right to have an attorney present during custodial interrogation, triggered by police questioning while in custody, regardless of charges.

When Does the Right to Counsel Attach?

The Sixth Amendment right to counsel attaches at the first formal step in the prosecution, such as indictment, arraignment, or the filing of formal charges. It does not apply at arrest or during routine investigation before charges are filed.

Key Term: Attachment The point in the criminal process when the right to counsel becomes effective, usually at the initiation of formal proceedings.

Scope and Critical Stages

Once attached, the Sixth Amendment right to counsel applies at all "critical stages" of the prosecution, including:

• Arraignment
• Post-indictment lineups and showups
• Preliminary hearings
• Trial
• Sentencing
• Appeals as of right

It does not apply to:

• Investigatory lineups before charges
• Photo identifications
• Proceedings not considered "critical," such as bail hearings in some jurisdictions

Key Term: Critical Stage Any stage in the criminal process where substantial rights of the accused may be affected and where counsel's assistance is necessary to ensure a fair proceeding.

Offense-Specific Nature

The Sixth Amendment right is "offense-specific." It applies only to the offense for which formal proceedings have begun. Police may question the defendant about unrelated, uncharged offenses without violating this right.

Waiver of the Right to Counsel

A defendant may waive the right to counsel, but the waiver must be knowing, voluntary, and intelligent. Courts must ensure that the defendant understands the consequences of proceeding without counsel.

Key Term: Waiver The intentional and informed relinquishment of a known constitutional right, such as the right to counsel.

Fifth Amendment Right to Counsel (Miranda)

The Fifth Amendment right to counsel arises during custodial interrogation. It is not offense-specific and applies to any questioning by law enforcement while the suspect is in custody. If the suspect invokes the right to counsel, all interrogation must cease until counsel is provided or the suspect initiates further communication.

Remedies for Violations

If the right to counsel is violated at a critical stage, evidence obtained may be excluded from trial. If the violation occurs at trial, the conviction is automatically reversed. For pretrial violations, the remedy is usually suppression of the tainted evidence unless the error is harmless.

Worked Example 1.1

Police arrest D for burglary. D is indicted and counsel is appointed. Police then question D about an unrelated robbery without counsel present, and D confesses. Is the confession admissible at D's burglary trial?

Answer: Yes. The Sixth Amendment right to counsel is offense-specific and applies only to the burglary charge. Questioning about the unrelated robbery does not violate the Sixth Amendment right to counsel for the burglary. However, if D invoked the Fifth Amendment right to counsel under Miranda, questioning about any offense would be prohibited.

Worked Example 1.2

After indictment, D is placed in a lineup without counsel present. The witness identifies D. D moves to suppress the identification at trial.

Answer: The identification must be excluded. The post-indictment lineup is a critical stage, and D was entitled to counsel. The absence of counsel requires suppression of the lineup identification unless the prosecution can show an independent source for the identification.

Exam Warning

The Sixth Amendment right to counsel is not triggered by arrest or police questioning alone. It attaches only after formal charges are filed. Do not confuse the Fifth and Sixth Amendment rights—they have different triggers and scopes.

Revision Tip

Always determine whether the right to counsel being tested is the Fifth Amendment (Miranda) right (custodial interrogation) or the Sixth Amendment right (formal proceedings and critical stages). The remedy and scope differ.

Key Point Checklist

This article has covered the following key knowledge points:

• The right to counsel is protected by both the Sixth and Fifth Amendments.
• The Sixth Amendment right attaches at the initiation of formal criminal proceedings.
• The right applies at all critical stages after attachment and is offense-specific.
• The Fifth Amendment right to counsel applies during custodial interrogation and is not offense-specific.
• Waiver of the right to counsel must be knowing, voluntary, and intelligent.
• Violations may result in exclusion of evidence or reversal of conviction, depending on the stage and prejudice.

Key Terms and Concepts

• Right to Counsel
• Sixth Amendment Right to Counsel
• Fifth Amendment Right to Counsel (Miranda)
• Attachment
• Critical Stage
• Waiver