The 6th Amendment's Right to Counsel

Most of the Crim Pro questions on the MBE come from the 4th, the 5th, and the 6th Amendment. This post will focus on the applicable areas of the 6th Amendment's right to counsel.

The 6th Amendment guarantees the right to the assistance of counsel in all criminal proceedings. This right is guaranteed throughout all critical stages of a prosecution once formal charges have been filed. That's not an insignificant point to note for the MBE: only once formal charges have been filed do those 6th Amendment rights kick in (as opposed to the 5th Amendment as it relates to Miranda which applies even prior to the filing of formal charges.) The police must not elicit incriminating statements from a defendant outside the presence of counsel after the defendant has been charged unless the defendant has waived the right to counsel. 

Specifically, a defendant has the right to counsel at the following stages of a prosecution: post-indictment interrogation; preliminary hearings to determine probable cause to prosecute; arraignment; post-charge lineups; guilty pleas and sentencing; felony trials; misdemeanor trials when imprisonment is imposed or when a suspended jail sentence is imposed; certain recesses during trial; appeals as a matter of right; and appeals of guilty pleas. 

Just as important is to know when the right to counsel does not apply. It does not apply at the following stages: blood sampling; taking of handwriting samples; pre-charge lineups; photo identifications; preliminary hearings to determine probable cause to detain; brief recesses during the defendant's testimony at trial; discretionary appeals; parole and probation revocation proceedings (this has been tested); and post-conviction proceedings. 

Because the 6th Amendment is offense-specific, it's possible that the 6th Amendment will attach regarding a specific charge, and yet not attach on unrelated uncharged offenses. Importantly, the 6th Amendment may be waived. Like all waivers, it must be be knowing and voluntary. If the 6th Amendment has not been waived and has been violated, then the failure to provide counsel in certain circumstances will require an automatic reversal of the conviction. Other violations of the 6th Amendment outside of trial (such as at a post-indictment interrogation) may be deemed harmless error which will not require reversal. 

As is true with the 5th Amendment under Miranda, a statement obtained in violation of defendant's 6th Amendment right to counsel may be used to impeach the defendant's contrary trial testimony. In other words, even a violation of the 6th Amendment does not preclude using the statement for that specific purpose.