Counsel: Right to Counsel

While both the Fifth Amendment and the Sixth Amendment contain guarantees of the right to counsel, their applications differ significantly along two important dimensions. First, the Fifth Amendment right is spatially limited, while the Sixth Amendment right is temporally limited. Second, the Supreme Court treats waiver of the Fifth Amendment right to counsel far less skeptically than it treats waiver of the Sixth Amendment right to counsel.

Almost always, Fifth Amendment right-to-counsel issues arise in the context of a defendant's attempt to suppress evidence: the defendant claims that an incriminating statement was taken either without her being informed of her right to a lawyer or in disrespect of her invocation of that right. The Fifth Amendment right applies only to government-civilian interactions in particular places: it applies to "custodial interrogation." Thus, the question whether the Fifth Amendment right to counsel has attached depends, first, on whether an individual is in custody and, second, on whether she has been subjected to interrogation.

With respect to the former question, a suspect is not in custody—and, therefore, is not entitled to her Fifth Amendment right to counsel—if she is merely briefly detained against her will by the police. Instead, a person is only in custody if she is under arrest or if a reasonable person in the suspect's situation would understand herself to be subject to restraint comparable to that associated with a formal arrest (Berkemer v. McCarty, 468 U.S. 420 (1984)). With respect to the matter of interrogation, this requirement is met if the suspect is formally questioned or is subjected to words or actions that the police should know are likely to elicit an incriminating response (Rhode Island v. Innis, 446 U.S. 291 (1980)).

Assuming that the appropriate Miranda warning is given and the suspect understands her rights, as a practical matter the government is free to question a suspect in the absence of counsel unless and until the suspect affirmatively and unambiguously invokes her right to counsel (Davis v. United States, 512 U.S. 452 (1994)). If the suspect later claims that her statements should be suppressed, the government need prove waiver only by a preponderance of the evidence (Colorado v. Connelly, 479 U.S. 157 (1986)), and such waiver need not be explicit; it may be inferred from the suspect's actions or words (North Carolina v. Butler, 441 U.S. 369 (1979)).

By contrast, once the Sixth Amendment attaches—a subject addressed in the remainder of this section—there is a heavy presumption against waiver. Indeed, although the Supreme Court has recognized a constitutional right to self-representation (Faretta v. California, 422 U.S. 806 (1975)), an entitlement that involves waiving the right to counsel, it has erected barriers in the way of exercising that right of self-representation that depend on the assumption that few defendants would choose to waive the assistance of a lawyer; and the Court has expressed the view that courts should aim at preserving the sanctity of the attorney-client relationship, rather than freely permit its waiver (Patterson v. Illinois, 487 U.S. 285 (1988)).

Instead of being spatially limited, as the Fifth Amendment is, the Sixth Amendment right is temporally limited: a literal reading of the amendment's text means that it comes into play only once a "criminal prosecution" has begun. Thus, for example, arrest alone is insufficient to trigger the Sixth Amendment right to counsel. In Brewer v. Williams, 430 U.S. 387 (1977), the Supreme Court explained, that "[w]hatever else it may mean, the right to counsel granted by the Sixth and Fourteenth Amendments means . . . that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him—'whether by way or formal charge, preliminary hearing, indictment, information, or arraignment"' (quoting Kirby v. Illinois, 406 U.S. 682 (1972)).

Although the Sixth Amendment right to appear through a lawyer applies to all criminal cases—as the Supreme Court long ago observed in Powell v. Alabama, 287 U.S. 45 (1932), if in "any case" a court were "arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of . . . due process in the constitutional sense"—the Sixth Amendment entitlement to appointed counsel for indigent defendants is more limited. Gideon requires the appointment of counsel in all cases where the defendant is charged with a felony, but Argersinger v. Hamlin, 407 U.S. 25 (1972), and Scott v. Illinois, 440 U.S. 367 (1979), require the appointment of counsel in misdemeanor cases only if the defendant is actually sentenced to imprisonment. As a practical matter, this means that a trial judge who anticipates any possibility that she will wish to sentence a misdemeanor defendant to prison in the event of his conviction will appoint counsel at the outset of the case, so defendants in cases involving serious misdemeanors will receive appointed counsel.

Once the Sixth Amendment right to counsel has been triggered, and the defendant has either retained or been appointed counsel, the question becomes whether counsel must be present on a given occasion. In United States v. Wade, 388 U.S. 218 (1967), for example, the Court held that because a post-indictment lineup was a "critical stage" of the proceedings, "the presence of counsel is necessary to preserve the defendant's basic right to a fair trial." But a substantial number of other government-defendant interactions do not require counsel's presence. For example, in Gilbert v. California, 388 U.S. 263 (1967), the Court held that defense counsel's presence was not required during the taking of handwriting exemplars. And in United States v. Ash, 413 U.S. 300 (1973), the Court held that a lawyer is not required when identifications are made through a photo array. Most significantly, although the Supreme Court had held in Coleman v. Alabama, 399 U.S. 1 (1970), that counsel is required at a hearing to determine whether there is probable cause sufficient to justify charging the defendant with a crime, it held in Gerstein v. Pugh, 420 U.S. 103 (1975), that a preliminary hearing to determine whether there is probable cause to detain a defendant pending trial does not require the provision of counsel because it is not a "critical stage." Thus, while federal and state statutes may require the provision of counsel at bail hearings or preventative detention hearings, the Constitution has not been extended that far. And in a somewhat odd hybrid holding, the Court has required that defense counsel be given notice of state-requested psychiatric evaluations of a defendant, but has refused to hold that counsel have a right to be present during the evaluation (Estelle v. Smith, 451 U.S. 454 (1981)).

Finally, in a different vein, the line of cases stemming from Massiah v. United States, 377 U.S. 201 (1964), and its progeny have held that it is a violation of the Sixth Amendment right to counsel for the government deliberately to elicit incriminating statements from an already charged defendant in the absence of his counsel unless the defendant has knowingly and intelligently waived the right to have counsel present. Massiah has its greatest bite in cases involving undercover officers or informants; clearly in such cases there is no possibility of waiver, so the key question becomes whether the government's agent actively extracted the incriminating statement or was merely a passive recipient of an unsolicited statement.

Once a trial has begun, a defendant is entitled to the continued presence of counsel throughout the trial, including at sentencing (Mempa v. Rhay, 389 U.S. 128 (1967)). There are some lower court cases, however, that have declined to find a Sixth Amendment violation in a defense lawyer's absence from the courtroom for some portion of the trial period—finding, for example, that a defendant has not been denied the right to counsel if his attorney is absent only during a part of the case involving evidence against a codefendant or the introduction of stipulated evidence.

Finally, the Sixth Amendment and equal protection clause rights to counsel end after the conclusion of the first appeal as of right. There is no constitutional right to counsel for discretionary appeals, either to state supreme courts or to the U.S. Supreme Court (Ross v. Moffitt, 417 U.S. 600 (1974)). Nor is there any constitutional right to counsel in postconviction processes such as coram nobis (a procedure in which a defendant can present newly discovered evidence) or habeas corpus proceedings (Pennsylvania v. Finley, 481 U.S. 551 (1987); Murray v. Giarratano, 492 U.S. 1 (1992)). This limitation is important for three distinct, but related, reasons. First, defendants often are not given appointed counsel, and thus must proceed pro se, which substantially reduces their likelihood of successfully obtaining discretionary review (if an appellate court does decide to hear a defendant's case on the merits, it usually appoints an attorney at that point) or post-conviction relief. Second, if a defendant in one of these noncovered procedures is represented by a lawyer, either because he has retained counsel, volunteer counsel, or counsel appointed gratuitously or pursuant to statutory authorization, he does not have a constitutional right to effective assistance. Thus, if his lawyer makes an error—even an error that falls below the acceptable level of attorney performance and that adversely affected the outcome of his case—that error provides no grounds for later reversal. Absent the constitutional right to counsel, a defendant has no right to effective counsel (Coleman v. Thompson, 501 U.S. 722 (1991)). Finally, the first opportunity many defendants will have to establish that they have been denied effective assistance of counsel at trial or in their appeal as of right will often be in postconviction proceedings, either because they were represented throughout the direct appeal process by the lawyer who allegedly was ineffective (and who presumably did not claim his own ineffectiveness as a ground for reversal) or because establishing constitutional ineffectiveness requires an evidentiary hearing. Thus, the fact that defendants are not entitled to counsel to prove that they were deprived of their constitutional entitlement to counsel may effectively foreclose many such claims.