The 6th Amendment guarantees criminal defendants the right to a speedy and public trial by an impartial jury, to be informed of charges, to confront witnesses, to compulsory process, and to counsel. It applies to critical stages of criminal proceedings where rights could be affected without counsel. The right to counsel extends from investigation through appeal. Counsel is presumed effective unless representation falls below objective standards and likely altered the outcome.

1. THE 6TH AMENDMENT: RIGHT TO
COUNSEL AND A FAIR TRIAL
Chapter 12

2. Introduction



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

3. Speedy and Public Trial


The 6th Amendment require a speedy and
public trial
A delayed or prolonged trial is inherently unfair

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

4. Speedy and Public Trial


Delay that harms the accused’s defense
may cause the charges to be dismissed
Ba rke r v. Wing o (1972)

A trial is sufficiently “speedy” is determined by
1.
2.
3.
4.
The length of the delay
The reason for the delay
The defendant’s assertion of this right
The harm caused

5. Speedy and Public Trial

G a nne tt Co . v. De Pa s q ua le (1979)


The Court held that the 6th Amendment does not
permit the public to attend every trial
Ric hm o nd N ws p a p e rs , I . v. Virg inia (1980)
e
nc

The public does have the right to attend trials
unless there is a compelling government interest
in doing otherwise
 For
example, in cases involving National Security

6. Where the Trial Is Held


6th Amendment requires that the trial occur in
the district in which the crime was committed
Venue

The geographical area in which a specific case
may come to trial, and the area from which the
jury is selected

7. Where the Trial Is Held

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

8. An Impartial Jury



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


No definition of what a petty crime is
More serious offenses warrant a jury trial

Generally those who punishments could exceed
jail time of six months

9. An Impartial Jury
FEDERAL


12 person jury is required
in federal court
Federal juries must reach
a unanimous vote for
conviction
STATE



State trials do not
required to have 12 jurors
States require a
unanimous vote only in
death penalty cases
Supreme Court declared
that state courts have a
minimum of 6 jurors

a unanimous verdict must
be reached to find the
defendant guilty

10. An Impartial Jury

Voir dire


The process of questioning potential jurors to
determine their impartiality
Peremptory challenges

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

11. An Impartial Jury

Ba ts o n v. Ke ntuc ky (1986)

Held that 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

12. An Impartial Jury

To try defendants before juries unfairly
composed of a group likely to find against
them has been held a denial of equal
protection

Stra ud e r v. We s t Virg inia (1879)
 The
Court held that a black defendant could not be
tried before a jury from which all members of his
race were purposely excluded

13. An Impartial Jury


For tactical reasons, a person might waive the
right to a jury trial and select a court trial
Having the case heard before only the bench
(judge), without a jury

14. Jury Nullification


When a jury believes that a defendant to be
guilty but acquits that person because they do
not feel the circumstances would make a
conviction fair or they disagree with the law
Why would a jury nullify a law?


Mostly because they do not agree with it or think
it is unjust
A jury may also feel the penalty is too harsh for
the circumstances

15. Current Events
DOUG
DARREL
L



In September 2012 a jury
unanimously acquitted him in New
Hampshire for marijuana cultivation
charges
His attorney argued that he was
growing cannabis for his own
religious and medicinal use
He escaped prison because his
attorney convinced the jury to nullify
the charges against him

16. The Right to Confront Witnesses


The confrontation clause of the 6th Amendment
requires that witnesses be present in court so
that the defendant can confront them
The Supreme Court has supported state laws
that protect juvenile victims by permitting child
abuse victims to testify via one-way closed
circuit television

17. The Right to Confront Witnesses


The 6th Amendment also excludes hearsay
evidence
Hearsay



An out-of-court statement used to prove the truth
of the matter asserted
Can include statements made by the person
actually testifying, before taking the stand
Evidentiary law pertaining to hearsay and
exceptions is complex and voluminous

18. Compulsory Process


Permits a defendant to require witnesses to
appear in court, usually under the issuance by
the court of a subpoena
Subpoena


Requires an individual to appear in court to testify
or to bring documents or other physical evidence
to the court
Can be served by an officer of the court, or by
any other adult who is not a party to the action

19. Right to Counsel



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

20. Right to Counsel




It is to ensure that those accused are afforded their
legal right and that they understand the process in
which they are involved
Based on the adversarial justice system
 Places one party against another to resolve a
legal issue
The prosecutor must prove the accused beyond a
reasonable doubt
The defense lawyer must raise a doubt to win their
case

21. Development of the Right to
Counsel



England’s early legal system did not include the
assistance of counsel
Po we ll v. A ba m a (1932)
la
 Denying legal counsel for a defendant at trial is a
denial of due process
G id e o n v. Wa inwrig ht (1963)
 Held that 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
 Indigent defendants

Poor, unable to afford a lawyer

22. Development of the Right to
Counsel

A e rs ing e r v. Ha m lin (1972)
rg


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
Es c o be d o v. I is (1964)
llino

When police inquiry has begun to focus on a
particular suspect, custodial interrogation at the
police station entitles a suspect to legal
representation

23. Current Events
THE
ACCESS
TO
JUSTICE
INITIATIVE



In March 2010 the U.S. Department
of Justice established this to address
the access-to-justice crisis in the
criminal justice system
The mission is to deliver outcomes
that are fair and accessible to all,
regardless of wealth or status
Many agencies will work together to
improve the services for those who
are unable to afford lawyers

24. Right to Counsel at Critical Stages
of Criminal Proceedings



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

25. Critical Stages during the Criminal
Investigation

M s s ia h v. Unite d Sta te s (1964)
a


Statements a defendant makes after being
charged with a crime, would not be admissible is
the attorney is not present
Unite d Sta te s v. He nry (1980)

A defendant's 6th Amendment right to counsel is
violated if police intentionally create a situation
likely to result in incriminating statements

26. Critical Stages during the Criminal
Investigation


The Miranda warning is meant to both
safeguard the 5th Amendment right against
self-incrimination, and
To declare that a person who is questioned
while in police custody has a 6th Amendment
right to an attorney

The exclusionary rule will prohibit confessions
obtained in violation of these rights from being
used in court

27. Critical Stages during the Criminal
Investigation
Miranda



Applies only if the
suspect is in custody
Custody arises at arrest
or equivalent physical
restraint
Does not prohibit
undercover questioning
Massiah



Applies either in or out of
custody
Attaches by indictment
or first court appearance
Allows passive listening,
but not active
undercover questioning

28. Critical Stages during the Criminal
Investigation

Bre we r v. Willia m s (1977)

In holding that the Christian Burial Speech was a
de facto interrogation the Court found it to be the
functional equivalent of custodial interrogation
 This
case is often considered to be a 5th Amendment
Miranda issue, but
 It also stands for the rule of law that questioning of a
person after adversarial proceedings have
commenced against a person, they have the right to
legal representation because it is a critical stage
 There was deliberate elicitation of incriminating
statements

The method used purposefully, yet covertly, produced

29. Rights during Identification




In addition to questioning people, police work
involves identifying perpetrators in the course and
scope of case preparation
Eyewitness testimony is a valuable investigative
tool
However, mistaken eyewitness identification has
been reported to play a role in more than 75% of
the convictions that have been overturned by DNA
testing
Causes of misidentification:
 Cross-racial identification suggests that people
of one race have difficulty recognizing facial

30. Rights during Identification


Criminal procedure defines ways police identify
suspects to victims or other witnesses
Showup


Lineup


Identification technique in which only one individual is
shown to the victim or witness
Identification technique in which the victim or witness
is shown several people, including the suspect
Blind Lineup

One conducted by someone who does not know who
the suspect is

31. Rights during Identification

Unite d Sta te s v. Wa d e & G ilbe rt v. Ca lifo rnia
(1967)

Established the Wade-Gilbert Rule, that the Court
held that pretrial lineups invoke the 6th
Amendment protection and require that the
suspect have a lawyer

32. Rights during Identification

Fo s te r v. Ca lifo rnia (1969)


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. I is (1972)
llino

Pre-indictment identification procedures are not
critical stages of criminal proceedings, so there is
no 6th Amendment right to a lawyer

33. Rights during Identification

Factors to consider in determining witness
reliability:





The opportunity of the witness to view the defendant
during the crime
The level of attention the witness was paying to the
defendant
The accuracy of any descriptions of the defendant
made by the witness before the identification
procedure
The witness’s level of certainty in his or her
identification
The time between the crime and confrontation

34. Critical Stages at Hearings, Trials
and Appeals

What events require counsel other than a
trial?

Preliminary Hearing
 When
it is determined if probable cause exists to
believe a crime has been committed and that the
defendant committed it


Deemed a critical stage and thus the right to counsel
attaches
Arraignment
 Usually
the first court appearance by a defendant
during which the accused is advised of his or her
rights, advised of the charges and given the
opportunity to enter a plea

35. Critical Stages at Hearings,
Trials and Appeals

M o re v. M hig a n (1957)
o
ic


Established that a defendant has the right to
counsel while submitting a guilty plea to the
court
Do ug la s v. Ca lifo rnia (1963)

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

36. Critical Stages at Hearings, Trials
and Appeals

Bra d y v. M ry la nd (1963)
a

Established the rules for “discovery”, making
unconstitutional “trial by ambush” where the
defendant learns the identity or prosecution
witnesses when they walk down the courtroom
aisle
Rule- the suppression by the prosecution of
evidence favorable to an accused upon request
violates due process
 Brady

37. Critical Stages at Hearings,
Trials and Appeals

Te x a s v. Co bb (2001)


The Court asserted that the right of counsel only
applied to charged offenses
The Supreme Court called this “offense specific”
 Only
applies to the specific charges for which the
defendant has been indicted or arraigned

38. The Presumption of Effective
Counsel

Po we ll v. A ba m a (1932)
la


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”

39. The Presumption of Effective
Counsel

Stric kla nd v. Wa s hing to n (1984)

Established a two-prong test to establish a
claim of ineffective counsel
1.
2.
The counsel’s representation fell below an
objective standard of reasonableness
There is a reasonable probability that, but for the
counsel’s unprofessional errors, the result of the
proceeding would have been different

40. The Presumption of Effective
Counsel

Unite d Sta te s v. Cro nic (1984)


Inexperience may not suffice as ineffective
representation
Failure to take normal and routine steps before
and during trial could

41. The Presumption of Effective
Counsel


If a lawyer has a conflict of interest by
representing another client who would
prejudice the other, ineffective assistance of
counsel would exist
Because the Stric kla nd decision places the
burden to prove ineffective representation on
the claimant, few appeals on such grounds are
successful

42. Waiver of 6th Amendment Right to
Legal Counsel


A suspect cannot be forced to deal with an
attorney and so may waive this right
Pa tte rs o n v. I is (1988)
llino


Held that a valid waiver of Miranda rights not only
waives the 5th Amendment right against selfincrimination but also waves the 6th Amendment
right to counsel
The requirements that a waiver be knowing,
voluntary and intelligent remain the same

43. Waiver of 6th Amendment Right to
Legal Counsel



A court will consider the totality of
circumstances regarding how the waiver was
obtained and the competency and age of the
person
As well as issues of intelligence, health and
ability to understand the language
For a waiver to be effective, it need no be in
writing, but whatever statement is made by the
suspect must show there was, in fact:

An intentional relinquishment of the known right

44. The Right to Act as One’s Own
Counsel

People may elect to appear in court pro se




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

45. The Right to Act as One’s Own
Counsel

Fa re tta v. Ca lifo rnia (1975)

Set forth three conditions to be met before a
person could represent themselves:
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
1.


46. Juveniles and the 6th Amendment

I re G a ult (1967)
n

Established that the Constitution applied to
juveniles as well as adults

Gives rights to juveniles including the right
against self-incrimination

To receive notice of charges

To confront and cross-examine witnesses

Right to counsel

47. The 6th Amendment and
Corrections


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

Document filed against inmates who have other
criminal charges pending against them

48. The 6 Amendment and
Corrections
th

M m p a v. Rha y (1967)
e


Convicted offenders have right to assistance of
counsel at probation revocation hearings in which
sentencing has been deferred
G a g no n v. Sc a rp e lli (1973)

Probationers/parolees have a constitutionally
limited right to counsel on a case-by-case basis at
revocation proceedings