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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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Question 1: Reflection question
The right to counsel is a right provided to an accused to have legal representation
in criminal cases. This right is granted in the sixth amendment. The Supreme Court first
introduced the power of an unable defendant to have a lawyer appointed from the case of
Powell vs. Alabama. The court reasoned that this was fundamental for a fair trial. This
was later reinforced and expanded by Gideon vs. Wainwright. These precedents set forth
the right of an accused to be represented by an attorney provided by the state.
The right to counsel applies in criminal cases and minor offense cases. Due to
pressure in presiding over misdemeanor cases, the court argued that it is important to
provide legal representation to prevent being jailed due to technicalities. The accused is
the one entitled to the right to counsel, and t...


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