Sixth Amendment

Because of the law's complexity and the often substantial deprivations that a criminal conviction can produce, the Sixth Amendment provides criminal defendants with a RIGHT TO COUNSEL. A defendant's Sixth Amendment right to counsel attaches when the government initiates adversarial criminal proceedings, whether by way of formal charge, PRELIMINARY HEARING, indictment, information, or ARRAIGNMENT (United States v. Larkin, 978 F.2d 964 [7th Cir. 1992]). Unlike the right to a speedy trial, this Sixth Amendment right does not arise at the moment of arrest unless the government has already filed formal charges (Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 [1972]). However, defendants may assert a FIFTH AMENDMENT right to consult with an attorney during CUSTODIAL INTERROGATION by the police, even though no formal charges have been brought and no arrest has been made (MIRANDA V. ARIZONA, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966]).

Defendants do not enjoy a Sixth Amendment right to be represented by counsel during every phase of litigation that follows the initiation of formal adversarial proceedings by the state. Instead, defendants may only assert this right during "critical stages" of the proceedings (Maine v. Moulton, 474 U.S. 159, 106 S. Ct. 477, 88 L. Ed. 2d 481 [1985]). A critical stage of prosecution includes every instance in which the advice of counsel is necessary to ensure a defendant's right to a fair trial or in which the absence of counsel might impair the preparation or presentation of a defense (United States v. Hidalgo, 7 F.3d 1566 [11th Cir. 1993]).

Obviously, the trial is a critical stage in any criminal proceeding, as are jury selection, sentencing, and nearly every effort by the government to elicit information from the accused, including interrogation. However, courts are divided on the issue of whether the state may perform a consensual search of a defendant's premises without the advice or presence of counsel. At the same time, courts generally agree that pretrial hearings involving issues related to bail, the suppression of evidence, or the viability of the prosecution's case all qualify as critical stages of criminal proceedings (Smith v. Lockhart, 923 F.2d 1314 [8th Cir. 1991]). The U.S. Supreme Court has ruled that the denial of counsel during a critical stage amounts to an unconstitutional deprivation of a fair trial, warranting the reversal of conviction (United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 [1984]).

Courts also generally agree on a number of instances that do not constitute critical stages. For example, pretrial scientific analysis of fingerprints, blood samples, clothing, hair, handwriting, and voice samples have all been ruled to be noncritical stages (United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 [1967]). Nor is a PROBABLE CAUSE hearing sufficiently critical to trigger the right to counsel (Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 [1975]). Each of these noncritical stages has been described as a preliminary facet of criminal prosecution that is largely unassociated with the more adversarial phases invoking the right to counsel.

If a defendant cannot afford to hire an attorney, the Sixth Amendment requires that the trial judge appoint one on her behalf (GIDEON V. WAINWRIGHT, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 [1963]). In instances where an indigent defendant has some financial resources, she may be required to reimburse the government for a portion of the fees paid to the court-appointed lawyer. The Sixth Amendment right of indigent criminal defendants to receive a court-appointed lawyer applies to every case involving a felony offense and to all other cases in which the defendant is actually incarcerated for any length of time, regardless of whether the crime is categorized as a misdemeanor or petty offense (Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 [1972]).

Persons who have been convicted of crimes may not compel a court-appointed attorney to file an appeal that the attorney believes is frivolous. In Anders v. California, 368 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the U.S. Supreme Court set out a procedure that an attorney must follow to request either withdrawal from the case or to have the court dispose of the case without a full legal review. However, in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L. Ed. 2d 756 (2000) the Court ruled that its precedent was not a "straitjacket" and that states were free to come up with procedures that protected both the criminal client and his attorney.

However, if an indigent defendant is prosecuted for a non-felony offense that is punishable by a potential jail or prison sentence, the Sixth Amendment is not violated if he is denied a court-appointed attorney as long as no penalty of incarceration is actually imposed (Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 [1979]). In other words, an indigent defendant has no Sixth Amendment right to a court-appointed lawyer in a non-felony case when the only punishment he receives is a fine, the FORFEITURE of property, or some other penalty not involving incarceration. Thus, in a forfeiture proceeding where the government seized almost $300,000 from an arrested drug smuggler, the Sixth Amendment right to counsel was not infringed when the court denied the smuggler's request for a court-appointed attorney because no jail or prison sentence was ultimately imposed (United States v. $292,888.04 in U.S. Currency, 54 F.3d 564 [9th Cir. 1995]).

Nor is the Sixth Amendment right to counsel infringed when an indigent defendant is denied a court-appointed lawyer of her choice (Ford v. Israel, 701 F.2d 689 [7th Cir. 1983]). The selection of counsel to represent an indigent defendant is within the discretion of the trial court. The attorney selected need not be a great litigator, a savvy negotiator, or the best attorney available. Rather, the court-appointed lawyer must be a member in good standing of the bar who gives the client his complete and undivided loyalty, as well as a zealous and GOOD FAITH defense (United States v. Cariola, 323 F.2d 180 [3rd Cir. 1963]). The quality of representation need not be perfect but only effective and competent enough to assure the defendant due process of law (Pineda v. Bailey, 340 F.2d 162 [5th Cir. 1965]). If the attorney representing a defendant is incompetent, whether the attorney has been appointed by the court or privately retained, the Sixth Amendment right to the effective assistance of counsel has been violated.

The U.S. Supreme Court has reviewed numerous ineffective counsel claims. In Glover v. United States, 531 U.S. 198, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001), the Court allowed review based on ineffective counsel at the sentencing stage. In Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000), the Court considered whether a defense lawyer must always consult with a defendant regarding an appeal of the conviction. The Court rejected a bright-line rule that would have mandated such a consultation, ruling that each case must be analyzed using a set of standards. In death-penalty cases, the Court had been more willing to vacate convictions based on ineffective counsel. However, in Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002), the Court departed from what has come to be known as the "death is different" standard. This standard requires less hard evidence of prejudice because of ineffective counsel. The Court ruled that the convicted murderer's ineffective counsel claim must be analyzed by the "but for" test. The general rule mandates that the defendant show that "but for" the lawyer's conduct the result of the trial would have been different.

The court may replace any attorney, publicly appointed or privately retained, if that is in the best interests of the defendant. A court will normally replace an attorney who has a conflict of interest that prevents her from faithfully discharging her obligation of loyalty to the client. Courts also retain the prerogative to deny a defendant's request to substitute attorneys if the request comes too late in the proceedings, is made solely to delay the trial, or is not for a good reason. However, if a defendant demonstrates a good reason for the substitution of attorneys, such as a complete breakdown in communication between lawyer and client, the court must honor the request for substitution unless a compelling reason exists for denying it. The efficient administration of justice is one reason that has been deemed sufficiently compelling to deny such requests (United States v. D'Amore, 56 F.3d 1202 [9th Cir. 1995]).

Finally, all defendants have a Sixth Amendment right to decline the representation of counsel and proceed on their own behalf. Defendants who represent themselves are said to be proceeding pro se. However, defendants who wish to represent themselves must first make a knowing and intelligent waiver of the Sixth Amendment right to counsel before a court will allow them to do so. (Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 [1975]). Courts must ensure that the defendant appreciates the disadvantages of appearing pro se and that he understands the potential consequences. The defendant must be informed that the presentation of a defense in a criminal case is not a simple matter of telling a story, but that it requires skills in examining a witness, knowledge of the RULES OF EVIDENCE and procedure, and persuasive oratory abilities. However, the U.S. Supreme Court has declined to apply this rule pro se appeals. In Martinez v. Court of Appeal of California, Fourth Appellate District, 528 U.S. 152, 120 S.Ct. 684, 145 L. Ed. 2d 597 (2000), the Court held that Faretta did not apply and that the state appeals court could require that an attorney be appointed to conduct the criminal appeal. In so ruling, the Court made clear that the Sixth Amendment does not apply to appellate proceedings.