Constitutional protection of accused persons - Right to coun...

Learning Outcomes

This article explains the constitutional protection of accused persons through the right to counsel, including:

• Distinguishing clearly between the Sixth Amendment right to counsel and the Fifth Amendment (Miranda) right to counsel, and recognizing which right is being tested in a given fact pattern or answer choice.
• Pinpointing exactly when the Sixth Amendment right to counsel attaches by spotting the initiation of formal proceedings and identifying what counts as a “critical stage” on common MBE scenarios.
• Explaining the offense-specific nature of the Sixth Amendment right and how it limits government questioning about charged versus uncharged crimes, even after indictment.
• Applying and evaluating the rules on invocation and waiver for both Sixth Amendment and Miranda rights, including requirements for a knowing, voluntary, and intelligent waiver and when courts infer waiver from Miranda warnings.
• Analyzing remedies for violations, differentiating structural error, harmless error, and suppression doctrines for statements and identifications, and predicting which remedy the MBE expects in different procedural postures.
• Evaluating claims of ineffective assistance of counsel with the Strickland test, recognizing which fact patterns are likely or unlikely to satisfy deficient performance and prejudice.
• Using a stepwise exam method to organize right-to-counsel multiple-choice answers and essays, ensuring you address attachment, scope, invocation, waiver, and remedy in a clear, structured way.

MBE Syllabus

For the MBE, you are required to understand the constitutional right to counsel as it applies to criminal defendants, with a focus on the following syllabus points:

• Constitutional sources of the right to counsel (Sixth Amendment, Fifth Amendment/Miranda, and incorporation via the Fourteenth Amendment).
• When the Sixth Amendment right to counsel attaches in criminal proceedings and its offense-specific nature.
• What counts as a “critical stage” requiring counsel, including hearings, plea bargaining, trial, and sentencing.
• The Fifth Amendment right to counsel during custodial interrogation, and how it is invoked and waived.
• Requirements for a valid waiver of counsel and the interaction between Miranda waivers and Sixth Amendment protections.
• Consequences of violations: suppression of statements and identifications, independent-source doctrine, structural error, and harmless error.
• The right to effective assistance of counsel, the Strickland test, and common fact patterns involving alleged ineffective assistance.

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. It ensures that defendants have legal assistance at those points in the criminal process where a lawyer’s help is essential to fairness and reliability.

Two separate constitutional doctrines are tested on the MBE:

• The Sixth Amendment trial right to counsel in “all criminal prosecutions.”
• The Fifth Amendment right to counsel as part of the Miranda safeguards during custodial interrogation.

The two rights have different triggers, scope, and rules for invocation and waiver. Many MBE distractors exploit confusion between them, so keeping them conceptually distinct is critical.

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 primarily by the Sixth Amendment trial right and the Fifth Amendment (Miranda) right during custodial interrogation.

Sources of the Right to Counsel

The right to counsel arises from two main constitutional provisions.

• Sixth Amendment
  The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.” This is the core trial right, applied to the states through the Fourteenth Amendment. It:
  • Applies to all felony prosecutions, and to misdemeanor prosecutions in which jail time (including a suspended sentence) is actually imposed.
  • Automatically attaches once the government initiates formal criminal proceedings.
  • Is offense-specific: it protects the defendant only with respect to the offenses that have been formally charged (and lesser-included offenses).

Key Term: Sixth Amendment Right to Counsel
The right to legal representation in criminal prosecutions for any offense that can result in actual imprisonment, beginning after formal charges and applying at all critical stages of the case for the charged offense.

• Fifth Amendment (Miranda)
  The Fifth Amendment privilege against self-incrimination, as implemented in Miranda v. Arizona, creates a separate right to counsel in the interrogation context. It:
  • Protects against compelled testimonial self-incrimination.
  • Applies whenever the police conduct custodial interrogation, regardless of whether the suspect has been charged.
  • Is not offense-specific: once invoked, police cannot question the suspect about any offense unless the rules for re‑initiation are satisfied.

Key Term: Fifth Amendment Right to Counsel (Miranda)
The right of a suspect to have an attorney present during custodial interrogation, arising from the privilege against self-incrimination and triggered by police questioning while the suspect is in custody.

Key Term: Custodial Interrogation
Questioning (or its functional equivalent) by law enforcement after a person has been arrested or otherwise deprived of freedom of movement in a significant way, where police know or should know their words are reasonably likely to elicit an incriminating response.

When Does the Sixth Amendment Right to Counsel Attach

For MBE purposes, attachment is a threshold issue: if the Sixth Amendment right has not attached, there is no Sixth Amendment counsel problem, although Miranda may still apply.

The Sixth Amendment right attaches at the first formal step in the prosecution, such as:

• Formal charge (complaint, information, or indictment)
• Initial appearance before a judicial officer following a charge
• Arraignment
• Other similar proceedings where the government commits itself to prosecute and the adversarial process begins

It does not attach:

• At arrest alone (without formal charges)
• During routine investigation before any charging document is filed
• During voluntary encounters or noncustodial questioning

Key Term: Attachment
The point in the criminal process when the Sixth Amendment right to counsel becomes effective, usually at the initiation of formal proceedings (e.g., indictment, information, or arraignment).

Scope and Critical Stages

Once attached, the Sixth Amendment right applies at all critical stages of the prosecution. A stage is critical when:

• The defendant’s substantial rights may be affected, and
• Counsel’s assistance is necessary to ensure a fair proceeding.

Key Term: Critical Stage
Any stage in the criminal process after attachment where substantial rights of the accused may be affected and where counsel’s presence is necessary to preserve the fairness and reliability of the proceeding.

Examples of critical stages that commonly appear on the MBE include:

• Arraignment and initial appearance where pleas are entered
• Post-indictment custodial interrogation
• Plea negotiations and entry of a guilty plea
• Preliminary hearings to determine probable cause
• Motions to suppress evidence and other important pretrial hearings
• Post-indictment lineups and showups (in-person identifications)
• Trial (jury or bench)
• Sentencing
• Appeals as of right

Stages that are not critical (no Sixth Amendment counsel requirement) include:

• Pre-charge investigative lineups
• Photo arrays, even after indictment (no right to counsel at a photo array)
• Routine administrative proceedings, such as many bail hearings (unless state law makes them critical)
• Discretionary appeals and collateral post-conviction proceedings (no federal constitutional right to counsel there, though some states provide one)

Identification Procedures and the Right to Counsel

The MBE frequently tests the right to counsel in the context of lineups and other identification procedures.

• Photo arrays: No Sixth Amendment right to counsel, before or after indictment.
• Pre-indictment in-person lineups: No Sixth Amendment right; the right has not yet attached.
• Post-indictment in-person lineups or showups: The lineup is a critical stage; the defendant has a Sixth Amendment right to counsel.

If a post-indictment lineup is conducted without counsel (and without valid waiver):

• Evidence that the witness identified the defendant at that lineup must be excluded.
• However, the prosecution may still obtain an in-court identification if it can prove by clear and convincing evidence that the in-court identification has an independent source (e.g., an extended opportunity to observe the defendant at the time of the crime).

Offense-Specific Nature of the Sixth Amendment

The Sixth Amendment right to counsel is offense-specific. It protects the accused only with respect to:

• The offense(s) for which formal proceedings have begun, and
• Any lesser-included offenses (because they are considered the same offense for this purpose).

It does not bar police from questioning about unrelated, uncharged crimes, even after attachment, so long as:

• Miranda is satisfied (if custodial), and
• The questioning does not deliberately elicit statements about the charged offense in the absence of counsel.

Key Term: Offense-Specific
A characteristic of the Sixth Amendment right to counsel under which the right protects the accused only as to the offenses formally charged (and lesser-included offenses), but not as to other uncharged crimes.

The test for whether two crimes are the “same offense” is essentially the Blockburger test: if each offense requires proof of a fact the other does not, they are different offenses; if not, they are treated as the same offense.

Waiver of the Sixth Amendment Right to Counsel

Even after attachment, a defendant may waive the Sixth Amendment right to counsel.

A waiver must be:

• Knowing: The defendant understands the nature of the right and the consequences of abandoning it.
• Voluntary: The waiver is not the product of coercion, threats, or promises.
• Intelligent: The defendant has sufficient awareness of the circumstances and likely outcomes.

Key Term: Knowing, Voluntary, and Intelligent Waiver
A relinquishment of the right to counsel that is made with full understanding of the right and the consequences of waiving it, and without coercion.

Courts can infer a valid Sixth Amendment waiver from a proper Miranda warning and waiver:

• If the defendant has been charged, receives full Miranda warnings, and then clearly agrees to speak without a lawyer, that Miranda waiver generally constitutes a valid waiver of the Sixth Amendment right for that interrogation.

A defendant may also waive counsel at trial and choose to represent himself (pro se). The court must ensure on the record that the waiver is knowing, voluntary, and intelligent. Mental competence to stand trial is necessary but not always sufficient; the judge may refuse self-representation if the defendant cannot conduct the trial in a coherent way.

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 only in the context of custodial interrogation and is part of the Miranda doctrine.

Key points:

• It does not attach automatically. The suspect must unambiguously invoke the right by saying something like “I want a lawyer.”
• Once invoked, the police must cease all interrogation about any offense until:
  • Counsel is actually present, or
  • The suspect initiates further communication and validly waives counsel.

Equivocal statements such as “Maybe I should talk to a lawyer” are not enough to invoke the Fifth Amendment right to counsel.

Because the Miranda right to counsel is based on the Fifth Amendment privilege, it is not offense-specific. If properly invoked, police may not question the suspect about any crime (charged or uncharged) until the conditions for re‑initiation are met.

Remedies for Violations of the Right to Counsel

Understanding remedies is important for the MBE: often every answer choice states a violation; the real issue is what happens next.

Sixth Amendment Violations

If the Sixth Amendment right to counsel is violated at a critical stage:

• For trial-level violations involving a complete denial of counsel (e.g., no lawyer provided at trial for an indigent defendant facing imprisonment), the error is usually a structural error requiring automatic reversal.

Key Term: Structural Error
A fundamental constitutional error that affects the framework of the trial (such as total denial of counsel) and requires automatic reversal of the conviction without a harmless error analysis.

Key Term: Automatic Reversal
A remedy in which the conviction must be vacated without considering whether the error actually prejudiced the outcome.

• For other critical stages (e.g., denial of counsel at a suppression hearing, preliminary hearing, or post-indictment lineup), the error is subject to harmless error analysis.

Key Term: Harmless Error
A constitutional error that does not require reversal if the prosecution can show beyond a reasonable doubt that the error did not contribute to the verdict.

Consequences at specific stages:

• Post-indictment lineup without counsel: Exclude evidence of the lineup identification; allow an in‑court identification only if there is an independent source.
• Statements deliberately elicited by police from a charged defendant without counsel present (and no valid waiver): Those statements are inadmissible in the prosecution’s case in chief for that offense, although they may sometimes be used to impeach the defendant if the statement was otherwise voluntary.

Miranda (Fifth Amendment) Violations

Miranda violations have different remedies:

• A statement obtained in violation of Miranda (but otherwise voluntary) is inadmissible in the prosecution’s case in chief, but may be used to impeach the defendant’s testimony.
• Physical or derivative evidence obtained as a result of a voluntary statement taken in violation of Miranda is generally admissible.
• A truly involuntary statement (coerced by police tactics) is inadmissible for any purpose, and fruits of that statement are also excluded.

Effective Assistance of Counsel

The Sixth Amendment right is not just to have a lawyer in name; it is a right to effective assistance.

Key Term: Effective Assistance of Counsel
Representation by counsel that meets basic professional standards so that the adversarial process functions properly; ineffective assistance can be a ground for vacating a conviction.

The governing standard is the Strickland two‑part test:

1. Deficient performance: Counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms.
2. Prejudice: There is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.

Examples of potentially deficient performance include:

• Failing to file a clearly meritorious motion to suppress key evidence.
• Failing to investigate obvious alibi witnesses.
• Gross misunderstanding of the sentencing range in advising a plea.

However, many choices on the MBE are not ineffective assistance:

• Strategic decisions about which witnesses to call and which arguments to emphasize are rarely second‑guessed.
• Failure to anticipate future changes in the law is not ineffective assistance.

The right to effective assistance extends to:

• Trial
• Sentencing (a critical stage)
• First appeal as of right
• Plea bargaining (counsel must provide competent advice regarding plea offers and consequences, including clear deportation risks)

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 until counsel is provided or D re‑initiates contact and waives the right.

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 lineup identification must be excluded under the Sixth Amendment because the post‑indictment lineup is a critical stage and D was entitled to counsel. The prosecution may still attempt to have the witness identify D in court, but only if it can show by clear and convincing evidence that the in‑court identification has an independent source (for example, the witness had a clear, lengthy view of D during the crime).

Worked Example 1.3

Police, before any charges are filed, ask a suspect to participate in a lineup. The suspect has not requested counsel. The suspect is identified and later indicted. He moves to suppress the lineup identification, arguing he had a right to counsel.

Answer:
The motion should be denied as to the Sixth Amendment claim. At the time of the lineup, no formal charges had been filed, so the Sixth Amendment right to counsel had not attached. The pre‑indictment lineup is not a critical stage. The identification could still be challenged under due process if the procedure was unnecessarily suggestive, but there is no Sixth Amendment violation.

Worked Example 1.4

A defendant is on trial for arson and is represented by counsel. During the trial, police visit him in jail, give Miranda warnings, which he waives, and question him about a related theft of property from the building. He confesses. After acquittal on the arson, he is charged with theft, and the prosecutor seeks to use his statement. The defense argues a Sixth Amendment violation.

Answer:
The statement is admissible at the theft trial. The Sixth Amendment right to counsel attached for the arson charge but is offense-specific. Arson and theft each require proof of an element the other does not, so they are different offenses. Although the defendant was represented on the arson, he had no Sixth Amendment right to counsel yet as to the uncharged theft. Because he was Mirandized and waived his Fifth Amendment rights, the confession is admissible absent other defects.

Worked Example 1.5

A defendant is convicted at trial. On post-conviction review, he argues his lawyer was ineffective for not calling three additional character witnesses and for recommending that he not testify in his own defense.

Answer:
The ineffective assistance claim is unlikely to succeed. Decisions about which witnesses to call and whether the defendant should testify are classic strategic choices. Unless counsel’s choices were outside the wide range of reasonable professional judgment and there is a reasonable probability of a different outcome, the Strickland standard is not met. On these facts, the defendant has not shown either deficient performance or prejudice.

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 this with the Fifth Amendment (Miranda) right to counsel, which turns on custodial interrogation and must be clearly invoked by the suspect.

Revision Tip

When analyzing a right-to-counsel question, proceed in this order:

1. Is the issue Sixth Amendment, Fifth Amendment (Miranda), or both?
2. For Sixth: Has the right attached, and is this a critical stage for the charged offense?
3. For Miranda: Was there custodial interrogation, were warnings given, and was the right clearly invoked or waived?
4. Identify the correct remedy: suppression, independent source, harmless error, or automatic reversal.

Key Point Checklist

This article has covered the following key knowledge points:

• The right to counsel is grounded in both the Sixth Amendment (trial right) and the Fifth Amendment (Miranda) as applied to the states through the Fourteenth Amendment.
• The Sixth Amendment right attaches only upon initiation of formal criminal proceedings and applies to any offense that can result in actual or suspended imprisonment.
• After attachment, the Sixth Amendment right applies at all critical stages of the prosecution, including post‑indictment lineups, important pretrial hearings, plea negotiations, trial, and sentencing.
• The Sixth Amendment right is offense-specific, protecting only the charged offense and lesser‑included offenses; police may still question the defendant about unrelated, uncharged offenses if Miranda is satisfied.
• The Fifth Amendment (Miranda) right to counsel arises during custodial interrogation, must be clearly invoked by the suspect, and is not offense-specific.
• A valid waiver of either right to counsel must be knowing, voluntary, and intelligent; a proper Miranda waiver typically suffices to waive the Sixth Amendment right for that interrogation.
• Violations of the right to counsel at trial can be structural errors requiring automatic reversal; other violations are subject to harmless error analysis or result in suppression of specific evidence (such as lineup identifications).
• The right to counsel includes the right to effective assistance; ineffective assistance requires both deficient performance and prejudice under the Strickland standard.
• Photo arrays do not carry a Sixth Amendment right to counsel, even post‑indictment, but lineup procedures can still be attacked under due process as unnecessarily suggestive.
• Miranda violations differ from Sixth Amendment violations in both scope and remedy; a voluntary statement taken in violation of Miranda can still be used for impeachment, while an involuntary (coerced) statement cannot be used for any purpose.

Key Terms and Concepts

• Right to Counsel
• Sixth Amendment Right to Counsel
• Fifth Amendment Right to Counsel (Miranda)
• Custodial Interrogation
• Attachment
• Critical Stage
• Offense-Specific
• Waiver
• Knowing, Voluntary, and Intelligent Waiver
• Structural Error
• Harmless Error
• Automatic Reversal
• Effective Assistance of Counsel