Right to counsel
Several developments in the late 1950’s and early 1960’s enhanced the prospect
that the Supreme Court might ultimately resolve the confession issue in terms of the
right to counsel. In Crooker v. Cal., 357 U.S. 433 (1958), where defendant’s
confession was obtained following denial of his request to call an attorney, the Court
held the confession voluntary and also rejected defendant’s separate contention that
he had a right to counsel at the police station. But the four dissenters asserted that
under due process “the accused who wants a counsel should have one at any time
after the moment of arrest.” Crooker was followed in Cicenia v. La Gay, 357 U.S. 195
504 (1958), where defendant’s requests to see his attorney were refused and his
counsel turned away at the station, but again there was a strong dissent. The
confession in Spano v. N.Y., 360 U.S. 315 (1959), was found involuntary on
traditional grounds, but four concurring justices accepted defendant’s contention
that his absolute right to counsel in a capital case attached at the time he was
indicted (which was prior to his confession). In White v. Md., 373 U.S. 59 (1963), the
absolute right to counsel in a capital case was held applicable to a pretrial “critical
stage,” a preliminary arraignment at which a guilty plea later introduced into
evidence was obtained. Some commentators suggested that if, as in White, an
uncounseled guilty plea could not be admitted as evidence of guilt at trial, then it
followed that the same should be true of an uncounseled confession. White took on
greater significance when the Betts rule (§ 7.1(b), relied upon in Crooker) was
overruled in Gideon v. Wainwright, 372 U.S. 335 (1963), holding that the absolute
right to counsel for indigent state defendants existed as to all felonies and not
merely capital cases. The argument that the right to counsel attaches when the
defendant is indicted and his status thereby changes from “suspect” to “accused,”
not reached by the majority in Spano, was accepted in a somewhat different context
in Massiah v. U.S., 377 U.S. 201 (1964). After defendant’s indictment, he was
engaged in an incriminating conversation by a bugged codefendant-turnedinformer, about which 196 the overhearing agent testified at trial. The Court held,
6–3, that the Sixth Amendment prohibits extraction of incriminating statements
from an indicted person without presence of counsel. The majority indicated this
would be equally true had the incriminating statements been obtained by police
interrogation. Massiah was not limited to federal prosecutions or to cases in which
the defendant had already retained counsel, McLeod v. Ohio, 381 U.S. 356 (1965),
but most lower courts refused to extend Massiah back to the point of earlier
tentative charges.
Waiver of counsel
(f) Waiver of counsel The Court in Williams, supra, acknowledged that the
right to counsel could be waived and that, because it is the right of the client
rather than the attorney, waiver by the client-defendant is possible without
the lawyer’s participation. Seemingly inconsistent with that conclusion is the
statement in Escobedo, supra, that the conduct of the police in turning away
the lawyer was by itself “a violation of the Sixth Amendment.” But in Escobedo
the defendant was aware of that police conduct, which certainly should cast a
heavy cloud over any subsequent “waiver” by the defendant. When the
defendant is not aware, however, it appears the police conduct has no bearing
upon the validity of the waiver. Such a conclusion, already reached by the
Court in a Miranda context, Moran v. Burbine, 475 U.S. 412 (1986), is also
appropriate here unless a much more demanding waiver standard applies in a
Williams Sixth Amendment context. That is not the case; “because the role of
counsel at questioning is relatively simple and limited,” the waiver standard
here is the same as under Miranda (see § 4.9), in contrast to the relatively high
at-trial standard (see § 7.4(a)). Patterson v. Ill., 487 U.S. 285 (1988). In any
event, it is apparent that “the concept of a knowing and voluntary waiver of
Sixth Amendment rights does not apply in the context of communications with
an undisclosed undercover informant acting for the government.” U.S. v.
Henry, 447 U.S. 264 (1980). 203 The special waiver-after-assertion-of-rights
rules that govern in the Miranda area as to a defendant who has invoked his
right to counsel, see § 4.9(c), were held also to apply to the Sixth Amendment
right in Mich. v. Jackson, 475 U.S. 625 (1986), so that when that right has
attached, “if police initiate interrogation after a defendant’s assertion, at an
arraignment or similar proceeding, of his right to counsel, any waiver of the
defendant’s right to counsel for that police-initiated interrogation is invalid.”
But Jackson was later overruled in Montejo v. La., 556 U.S. 779 (2009) as
“unworkable” under either of the possible interpretations of that case—that
the accused would have to actually invoke his right to counsel at arraignment,
meaning that in locales where counsel is appointed without request
defendants would be “out of luck”; or that the mere fact defendant was
represented by counsel should suffice, which is “untenable as a theoretical
and doctrinal matter.” (g) Infringement of the right In Massiah, supra, the
violation of the right to counsel occurred when the police, using a cooperating
and wired-for-sound codefendant, “deliberately elicited” incriminating
statements from the defendant. Similarly, in Williams the Christian burial
speech infringed upon the right because the detective “deliberately and
designedly set out to elicit information from Williams.” But these cases, which
indicate that they extend to police conduct other than interrogation in the
narrow sense of that word, Fellers v. U.S., 540 U.S. 204 519 (2004), do not
require that the police have initiated the contact. Though the Sixth
Amendment is not violated when the state obtains incriminating statements
by mere “luck or happenstance,” “knowing exploitation by the State of an
opportunity to confront the accused without counsel being present is as much
a breach of the State’s obligation not to circumvent the right to assistance of
counsel as is the intentional creation of such an opportunity.” Me. v. Moulton,
474 U.S. 159 (1985). Though Massiah and Williams seem to require “action
undertaken with the specific intent to evoke an inculpatory disclosure,” U.S. v.
Henry, 447 U.S. 264 (1980) (Blackmun, J., diss.), whether that is still so after
the “jail plant” Henry case is unclear. The conduct of the police in asking the
cellmate to report back defendant’s incriminating comments, the Court held,
met the “deliberately elicited” test by virtue of the government “intentionally
creating a situation likely to induce Henry to make incriminating statements.”
Though that language, if read literally, would seem to cover even negligent
triggering of events resulting in an incriminating response by the defendant,
the Henry majority appears to have viewed the case as a true “deliberately
elicited” type of case. That is, they deem the government’s instructions to the
informant not to question Henry about the robbery, in light of all the
circumstances, as not manifesting a lack of intent to obtain incriminating
statements or to have the informant take some affirmative steps to achieve
that result. It is apparently still true, therefore, that there is no 205 MassiahWilliams violation if the person acting with the intention of eliciting an
incriminating statement is not a government agent, or if the government agent
who elicits an incriminating response does so exclusively for some other
legitimate purpose. Because the majority in Henry did not think it was dealing
with a truly “passive” situation in terms of the actions of the government’s
informant, the Court did not have occasion to decide whether the MassiahWilliams doctrine applies to both active and passive efforts to obtain
incriminating statements. But in Kuhlmann v. Wilson, 477 U.S. 436 (1986), on
the ground that “the primary concern of the Massiah line of decisions is secret
interrogation by investigatory techniques that are the equivalent of direct
police interrogation,” the Court ruled that it was not a violation of defendant’s
right to counsel for police merely to arrange for an informant to report back to
police any overheard incriminating comments of the defendant. But
Kuhlmann illustrates the difficulty of drawing the line between active and
passive efforts; defendant’s incriminating comments followed the informant’s
assertion that his original nonincriminating version “didn’t sound too good,”
but the majority felt this was not enough under all the circumstances to bring
the case within the “deliberately elicited” test. That problem is not present
when the police “ ‘listening post’ is an inanimate electronic device”; its use
clearly does not infringe upon the right to counsel, as it “has no capability of
leading the conversation into any particular subject or prompting any 206
particular replies.” U.S. v. Henry, 447 U.S. 264 (1980).
Book- Criminal procedure Constitutional limitations in a nutshell 8th edition
Jerold H. Israel Wayne R. LaFave
LESSON FOUR:
Faith Exception
Lineups, Right to Counsel, Waiver of Counsel, The Exclusionary Rule, Good
Objectives:
.
Understand the privilege against self-incrimination as it applies to lineups
Understand the right to counsel and confrontation in lineups
Understand the right to counsel and confrontation in other identification procedures
Understand due process concerns and identification procedures
Understand the Exclusionary Rules
Understand the Good Faith exception to the Exclusionary Rules
Understand the Sixth Amendment right to counsel
Understand waiver of counsel
Understand the meaning of effective assistance of counsel
.
Reading Assignment:
Read Chapters 5, 6, & 7 in Nutshell
Read the following lesson:
LESSON FOUR: LINEUPS, RIGHT TO COUNSEL, WAIVER OF COUNSEL,
THE EXCLUSIONARY RULE, GOOD FAITH EXCEPTION
LINEUPS AND OTHER IDENTIFICATION
Generally speaking, the law offers no protection against compulsion to submit to fingerprinting,
photographing, or measurements, or to stand in a lineup, or to have blood taken. If the required lineup
procedures are not followed, then testimony as to any identification made at the lineup is inadmissible at
trial. A lineup where only the defendant resembles the description of the robber, or where the defendant
is physically much different from all of the other men in the lineup, or where the defendant is wearing
clothing similar to that worn by the robber has been held to be unnecessarily suggestive and a violation
of due process. A defendant has the right to have an attorney present at a lineup.
The use of pictures may also be unnecessarily suggestive. The Supreme Court held in Simmons v. U.S.,
390 U.S. 377 (1968) that an identification by bank employees of the suspect from group snapshots in
which the suspect appeared was justified, because a serious felony had occurred, the perpetrators were
still at large, and it was important for the FBI to determine quickly whether they were on the right
track. Unlike a properly conducted lineup, the display of a single suspect to a witness carries with it a
great risk of misidentification. In Stovall v. Denno, 388 U.S. 293 (1967), the Supreme Court noted that
"the practice of showing suspects singly to persons for the purpose of identification, and not as part of a
lineup, has been widely condemned".
RIGHT TO COUNSEL
The Sixth Amendment provides a right to counsel in criminal cases. The right of an indigent defendant
to have a lawyer appointed to represent him in a criminal case was set forth by the Supreme Court in
Powell v. Alabama, 287 U.S. 45 (1932). In Gideon v. Waignwright, 372 U.S. 335 (1963), the court
expanded this right by requiring states to appoint counsel for defendants in all felony cases.
The Supreme Court dealt with the issue of misdemeanor defendants in Argersinger v. Hamlin, 407 U.S.
25 (1972). If a misdemeanor offense involves jail time, a lawyer must be made available. The court
reasoned that because of the pressure to dispose of misdemeanor cases quickly, it may be even more
important to provide counsel to prevent from being jailed because they fell through the cracks.
The Sixth Amendment is limited to criminal prosecution, and it is the accused who is entitled to its
protection. In Kirby v. Illinois, 406 U.S. 682 (1972), the Supreme Court held that a lawyer must be
provided at the initiation of adversary judicial proceedings”. The right to counsel continues throughout
the proceedings until the case is completed at sentencing. If a state grants a first appeal as a matter of
right, it must provide a lawyer for the accused at that stage. Douglas v. The People of the State of
California, 371 U.S. 353 (1963). Indigents are also entitled to a free trial transcript to be used in a
collateral attack on a conviction, for a transcript of a habeas corpus hearing, and for a transcript of a
preliminary hearing to be used at trial.
Since the Sixth Amendment covers "critical stages in a criminal proceeding", an accused may not be
subjected to a line-up without either having counsel present or having waived the right to counsel. An
attorney is required at the initial appearance when the accused is informed of the charges and enters a
non-binding plea before a magistrate. An arraignment is another critical stage which requires the
assistance of counsel, as is sentencing. The Sixth Amendment does not apply to Grand Jury proceedings
or probation revocation hearings.
WAIVER OF COUNSEL
A defendant may waive any constitutional rights which he may have, but the waiver must be made
knowingly and intelligently". The record must show that the defendant had a right to counsel and
knowingly waived it. Due process prohibits proceeding against a defendant who does not have the
ability to consult with an attorney.
"Pro se" means that a party is acting as his own attorney. Everyone has the right to represent himself in
court. However, as the law has become more complex, courts are reluctant to allow a defendant to
proceed by himself. If a pro se defendant wishes to plead guilty, the Judge will question him to make
sure that he appreciates the significance of making this decision on his own.
In Faretta v. California, 422 U.S. 806 (1975) the Supreme Court held that the right to counsel also
includes the right to proceed pro se. The state may appoint stand-by counsel even over the objections of
the defendant
EXCLUSIONARY RULES
The exclusionary rule in criminal procedure is one of the most difficult for foreign lawyers to
understand. In its simplest, it is a motion by defense counsel to exclude certain evidence taken from a
defendant by the government. The disallowance of evidence taken in an unconstitutional fashion is
known as the "exclusionary rule.” If, for example, the government introduces a confession obtained by
coercion or compulsion, the court must not allow that statement into evidence.
The Sixth Amendment provides for the assistance of counsel at all critical stages of criminal process. If
the state obtains evidence without counsel being present, and without a waiver of counsel, that evidence
will not be admitted at trial.
Sometimes the courts have said that a particular practice violates due process because in itself it presents
a grave potential for producing untrustworthy evidence.
Police brutality, if proven, violates due process in itself. In Rochin v. California, 342 U.S. 165 (1952)
the Supreme Court held that pumping a stomach to recover illegal morphine tablets was “shocking to the
conscience", and thus the tablets would not be admitted.
Besides the exclusion based on violation of the Fifth and Sixth Amendments, an improper search is
excluded under the Fourth Amendment. Mapp v. Ohio, 367 U.S. 643 (1961) applied the Fourth
Amendment through the Fourteenth Amendment, to the states. The primary reason that the court
applied the exclusionary rule was that they wanted to avoid judicial affirmation of the unconstitutional
actions of the police. The deterrence rationale for the exclusionary rule is to prevent further
unconstitutional actions by law enforcement.
There is a good faith exception to the exclusionary rule. Where a warrant has been obtained in good
faith, and police have relied on that warrant, the evidence may be admitted. This sometimes occurs
when the police rely upon a statute, which is later found to violate the Fourth Amendment.
FRUIT OF THE POISONOUS TREE
If there is an illegal search and seizure, evidence flowing from this is tainted by the illegality of the
search in the poetic language favored by judges, this illegal evidence is the "fruit of the poisonous
tree". If a statement is involuntary and leads to other evidence, not only the coerced confession but all
evidence flowing from it may be excluded. Facts can still be proved, but only from an independent
source: The idea is that the independent source is not connected with, or tainted by the poisonous tree.
Ir the evidence would have inevitably been found anyway, the exclusionary rule is limited. This is
called the inevitable discovery" limitation. The prosecution is not placed in a worse position because of
some policeman's error somewhere along the line. To show this limitation, the prosecution must
demonstrate more than a mere hunch that the police would have found the material anyway.
GOOD FAITH EXCEPTION
Where there is a good faith and reasonable reliance by the police officer that he or she is his conduct
comported with existing law, the evidence seized by that officer should not be excluded. In U.S.
Leon, 468 U.S. 897 (1984), the Supreme Court held that the "Fourth Amendment exclusionary rule
should be modified so as not to bar the use in the prosecution's case-in-chief of evidence obtained by
officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but
ultimately found to be unsupported by probable cause". In Illinois v, Krull, 480 U.S. 340, the court held
that a "good faith exception to the exclusionary rule also should be recognized when officers act in
objectively reasonable reliance upon a statute authorizing the search in question, but where the statute is
ultimately found to violate the Fourth Amendment."
Reflection Assignment Four (10 points)
What is meant by the right to counsel, and when does it apply?
Writing Assignment Four (50 points)
1. What is the "good faith exception" to the Fourth Amendment's exclusionary rule?
2. What is the role of standby counsel, and how does the standby attorney exceed his role?
3. Please point out the difference among the exclusionary rules deriving from the Fourth, Fifth and Sixth
Amendments.
4. Under what circumstances may an accused act as his or her own lawyer?
5. What type of false identification can come from a lineup, and why is it important for a lawyer to be
present at the lineup?
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