Sixth Amendment — Right to Counsel

Amdt6.6.1 Historical Background on Right to Counsel

The records of neither the Congress that proposed what became the Sixth Amendment nor the state ratifying conventions elucidate the language on assistance of counsel. The development of the common-law principle in England had denied to anyone charged with a felony the right to retain counsel, while the right was afforded in misdemeanor cases. This rule was ameliorated in practice, however, by the judicial practice of allowing counsel to argue points of law and then generously interpreting the limits of “legal questions.” Colonial and early state practice varied, ranging from the existent English practice to appointment of counsel in a few states where needed counsel could not be retained.¹ Contemporaneously with the proposal and ratification of the Sixth Amendment, Congress enacted two statutory provisions that seemed to indicate an understanding that the Sixth Amendment guarantee extended only to retained counsel by a defendant wishing and able to afford assistance.²

Amdt6.6.2.1 Early Doctrine on Right to Have Counsel Appointed

The Court began to develop its doctrine on the right to have counsel in Powell v. Alabama,¹ a 1932 opinion in which the Court set aside the convictions of eight Black youths sentenced to death in a hastily carried-out trial without benefit of counsel.² The failure to afford the defendants an opportunity to retain counsel violated due process, but the Court acknowledged that as indigents the youths could not have retained counsel.³ Noting circumstances including the “ignorance,” “illiteracy,” and youth of the defendants; their lack of access to friends and family; the consequences they faced; and the “public hostility” surrounding the trial, the Court concluded that the trial court’s failure to make an effective appointment of counsel was “a denial of due process within the meaning of the Fourteenth Amendment.”⁴

The holding in Powell was narrow. The Court stated that in a case in which the defendant faces the death penalty; does not have a lawyer; and is unable to mount his own defense because of intellectual disability, illiteracy, or a similar condition, “it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law.”⁵ Despite this narrow scope, the Court in Powell made some more general statements about the importance of the right to counsel. Due process, the Court said, always requires observance of certain fundamental personal rights associated with a hearing, and “the right to the aid of counsel is of this fundamental character.”⁶ In addition, noting the limited legal skill and training of even “the intelligent and educated layman,” the Court observed that “[t]he right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.”⁷ Without the “guiding hand of counsel at every step in the proceedings against him,” the Court noted, even an innocent defendant “faces the danger of conviction because he does not know how to establish his innocence.”⁸

In 1938, the Court expanded its jurisprudence on the right to have counsel appointed in Johnson v. Zerbst.⁹ In Zerbst, the Court announced an absolute rule requiring appointment of counsel for federal criminal defendants who could not afford to retain a lawyer.¹⁰ According to the Zerbst Court, the right to assistance of counsel, “is necessary to insure fundamental human rights of life and liberty.”¹¹ Without distinguishing between the right to retain counsel and the right to have counsel provided if the defendant cannot afford to hire one, the Court quoted Powell’s invocation of the necessity of legal counsel for even the intelligent and educated layman. The Court stated: “The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.”¹² Any waiver, the Court ruled, must be by the intelligent choice of the defendant, will not be presumed from a silent record, and must be determined by the trial court before proceeding in the absence of counsel.¹³

In the 1942 case Betts v. Brady, the Supreme Court rebuffed an effort to obtain the same rule in the state courts in all criminal proceedings.¹⁴ The Court observed that the Sixth Amendment applied only to trials in federal courts.¹⁵ In state courts, the Due Process Clause of the Fourteenth Amendment “formulates a concept less rigid and more fluid” than those guarantees embodied in the Bill of Rights, although a state denial of a right protected in one of the first eight Amendments might “in certain circumstances” be a violation of due process.¹⁶ The relevant question according to the Court was whether the Sixth Amendment right to appointment of counsel in federal courts “expresses a rule so fundamental and essential to a fair trial, and so, to due process of law, that it is made obligatory upon the States by the Fourteenth Amendment.”¹⁷ Examining the common-law rules, the English practice, and the state constitutions, laws and practices, the Court concluded that it was the “considered judgment of the people, their representatives and their courts that appointment of counsel is not a fundamental right, essential to a fair trial.”¹⁸ Want of counsel in a particular case might result in a conviction lacking in fundamental fairness and so necessitate the interposition of constitutional restriction upon state practice, but this was not the general rule.¹⁹

Amdt6.6.2.2 Modern Doctrine on Right to Have Counsel Appointed

Starting in 1938, the Supreme Court recognized that in federal courts the Sixth Amendment requires the provision of counsel absent waiver.¹ For state proceedings, however, the Court instead determined that the scope of the right to have counsel appointed stemmed from the Due Process Clause of the Fourteenth Amendment,² and the applicability of the right depended on the circumstances facing the accused in a given case.³ The purpose behind examining the circumstances facing the accused was to afford some certainty in the determination of when failure to appoint counsel would result in a trial lacking in “fundamental fairness.”⁴ Over time, the Court developed three often-overlapping categories of circumstances that required the furnishing of assistance of counsel to satisfy due process: (1) where the personal characteristics of the defendant made it unlikely he could obtain an adequate defense of his own,⁵ (2) where the charges or possible defenses to the charges were technically complex,⁶ and (3) where events occurring at trial raised problems of prejudice.⁷ The last characteristic especially had been used by the Court to set aside convictions occurring in the absence of counsel,⁸ and the last case rejecting a claim of denial of assistance of counsel had been decided by 1950.⁹

In 1961, the Court held that in a capital case a defendant need not establish a particularized need or prejudice resulting from absence of counsel.¹⁰ Rather, the Court concluded that assistance of counsel was a constitutional requisite in capital cases, although the Court did not expressly articulate whether its holding was based on the Sixth Amendment or the Due Process Clause of the Fourteenth Amendment.¹¹ Two years later, the Court expanded the right to counsel in non-capital cases as well, holding unanimously in Gideon v. Wainwright¹² “that in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”¹³ In a rejection of earlier precedent,¹⁴ the Court held that the Sixth Amendment right to assistance of counsel is “fundamental” and constitutionally required by the Fourteenth Amendment in state courts.¹⁵ Gideon stemmed from a felony charge, and the Court’s opinion in the case did not expressly decide whether the right to assistance of counsel could be claimed by defendants charged with misdemeanors or serious misdemeanors as well as by those charged with felonies.¹⁶ Later, however, the Court held that the right applies to any misdemeanor case in which imprisonment is imposed-indeed, no person may be sentenced to jail who was convicted in the absence of counsel, unless he validly waived his right.¹⁷ The Court subsequently extended the right to cases where a suspended sentence or probationary period is imposed, on the theory that any future incarceration that occurred would be based on the original uncounseled conviction.¹⁸

The absence of counsel when a defendant is convicted or pleads guilty goes to the fairness of the proceedings and undermines the presumption of reliability that attaches to a judgment of a court. Consequently the Court has held that Gideon is fully retroactive, so that convictions obtained in the absence of counsel without a valid waiver are not only voidable,¹⁹ but also may not be used subsequently either to support guilt in a new trial or to enhance punishment upon a valid conviction.²⁰

Amdt6.6.3.1 Overview of When the Right to Counsel Applies

As a result of Gideon v. Wainwright,¹ the Sixth Amendment right to counsel applies at criminal trials, regardless of whether a given trial is federal or state, or whether the counsel is retained or appointed.² As the Court in Gideon explained, the “right of one charged with crime to counsel” is “fundamental and essential.”³ A more complicated question is the extent to which the Sixth Amendment right to counsel applies in contexts beyond the trial itself, such as preliminary criminal proceedings. As a general matter, the Court has explained that the “the Sixth Amendment right to counsel is triggered ‘at or after the time that judicial proceedings have been initiated . . . ‘whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ ”⁴ In other words, the Sixth Amendment right to counsel does not begin until “the initiation of adversary judicial criminal proceedings.”⁵ Even once adversary judicial criminal proceedings begin, the Sixth Amendment right to counsel applies only to critical stages of criminal prosecutions.⁶ In a number of cases, the Court has examined the extent to which the Sixth Amendment⁷ right to counsel applies in contexts including pretrial judicial proceedings,⁸ custodial interrogations,⁹ and lineups and other identification situations,¹⁰ among others.¹¹

Amdt6.6.3.2 Pretrial Judicial Proceedings and Right to Counsel

While the Supreme Court has established a right to counsel,¹ it has recognized some limitations to that right. In Rothgery v. Gillespie County, the Court noted that the “Sixth Amendment right of the ‘accused’ to assistance of counsel in ‘all criminal prosecutions’ is limited by its terms: ‘it does not attach until a prosecution is commenced.’”² Pretrial judicial proceedings may amount to the commencement of prosecution, and in the 2008 case Rothgery,³ the Court clarified that even a preliminary hearing where no government prosecutor is present can trigger the right to counsel. In determining whether the right to counsel applies to a particular pretrial judicial proceeding, the Court generally has considered whether the proceeding amounts to a “critical stage” in a criminal prosecution.⁴ This inquiry may be traced back to dicta in Powell v. Alabama,⁵ noting that “during perhaps the most critical period of the proceedings . . . that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation [are] vitally important, the defendants . . . [are] as much entitled to such aid [of counsel] during that period as at the trial itself.”

The Court expanded on this language in Hamilton v. Alabama,⁶ where the Court noted that arraignment under Alabama state law was a “critical stage.” The Court reached that conclusion because in Alabama arraignment was the stage where certain defenses, pleas, and motions had to be made.⁷ In White v. Maryland,⁸ the Court set aside a conviction obtained at a trial at which the defendant’s plea of guilty, entered at a preliminary hearing at which he was without counsel, was introduced as evidence against him at trial. Citing to Hamilton, the Court explained that “[w]hatever may be the normal function of the ‘preliminary hearing’ under Maryland law, it was in this case as ‘critical’ a state as arraignment under Alabama law” because the defendant “entered a plea before the magistrate and that plea was taken at a time when he had no counsel.”⁹

Subsequently, in Coleman v. Alabama,¹⁰ the Court identified a preliminary hearing as a “critical stage” necessitating counsel even though the only functions of the hearing were to determine probable cause to warrant presenting the case to a grand jury and to fix bail, and although no defense was required to be presented at that point and nothing occurring at the hearing could be used against the defendant at trial. The Court emphasized the practical difference a lawyer could have made at the preliminary hearing.¹¹ In particular, the Court hypothesized that a lawyer might, by skilled examination and cross-examination, expose weaknesses in the prosecution’s case and thereby save the defendant from being required to face trial.¹² Further, the Court speculated that a lawyer could preserve testimony he elicited at the hearing for use in cross-examination at trial and impeachment purposes; better prepare for trial by discovering as much as possible of the prosecution’s case against defendant; and influence the court in such matters as bail and psychiatric examination.¹³

Amdt6.6.3.3 Custodial Interrogation and Right to Counsel

In the context of custodial interrogations—such as police questioning of a suspect¹—the Court’s doctrine on the extent of the right to counsel has evolved to be closely related to its doctrine on the Fifth Amendment’s protection against self-incrimination.² At first, the Court evaluated the constitutionality of custodial interrogations against a rule of “fundamental fairness,” assessing whether under all the circumstances a defendant was so prejudiced by the denial of access to counsel at custodial interrogation that his subsequent trial was tainted.³ In 1959, the Court in Spano v. New York⁴ declined to consider whether, as a blanket rule, a “confession obtained in the absence of counsel can be used without violating the Fourteenth Amendment.” Instead, the Court in Spano concluded that use of the confession at issue violated the Fourteenth Amendment based on the surrounding circumstances—including the defendant’s limited education, the numerous denials of request for counsel, and the hours of interrogation undertaken by various officers (one of whom was a friend of the defendant).⁵

Five years later, in Massiah v. United States,⁶ the Court began to move away from this circumstance—dependent approach rooted in the Fourteenth Amendment, holding that post—indictment interrogation in the absence of defendant’s lawyer was a denial of the defendant’s Sixth Amendment right to assistance of counsel.⁷ The same year as Massiah, the Court in Escobedo v. Illinois⁸ held that preindictment custodial interrogation violates the Sixth Amendment when “the suspect has requested and been denied an opportunity to consult with his lawyer.” In 1966, the Court in Miranda v. Arizona⁹ reaffirmed Escobedo, but switched from reliance on the Sixth Amendment to reliance on the Fifth Amendment’s Self-Incrimination Clause in cases of pre-indictment custodial interrogation. That said, Miranda still placed great emphasis upon police warnings of the right to counsel and foreclosed interrogation in the absence of counsel without a valid waiver by defendant.¹⁰ However, in subsequent opinions, the Court clarified that neither Miranda nor Escobedo support the assertion that “the Sixth Amendment right, in any of its manifestations, applies prior to the initiation of adversary judicial proceedings.”¹¹

Despite Miranda’s general reliance on the Fifth Amendment, and the Court’s limitation on the scope of Escobedo, it has reaffirmed and in some respects expanded Massiah. First, in Brewer v. Williams,¹² the Court held that police had violated the right to counsel by eliciting from the defendant incriminating admissions not through formal questioning but rather through a series of conversational openings designed to play on the defendant’s known weakness. The police conduct occurred in the post-arraignment period in the absence of defense counsel and despite assurances to defense counsel that the defendant would not be questioned in his absence.¹³ Then, in United States v. Henry,¹⁴ the Court held that government agents violated the Sixth Amendment right to counsel when they contacted the cellmate of an indicted defendant and promised him payment under a contingent fee arrangement if he would “pay attention” to incriminating remarks initiated by the defendant and others. The Court concluded that, even if the government agents did not intend the informant to take affirmative steps to elicit incriminating statements from the defendant in the absence of counsel, the agents must have known that that result would follow.¹⁵

Another issue in the custodial interrogation context involves waiver of the right to counsel where the suspect makes incriminating statements during police questioning following a request for counsel. In Michigan v. Jackson, the Court held that, “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.”¹⁶ The Court concluded that “the reasons for prohibiting the interrogation of an uncounseled prisoner who has asked for the help of a lawyer are even stronger after he has been formally charged with an offense than before.”¹⁷ However, in Montejo v. Louisiana,¹⁸ the Court overruled Jackson, finding that the prophylactic Fifth Amendment protections created by Miranda and its progeny constitute sufficient protection of the right to counsel. The Court in Montejo was faced with the question of whether Jackson also barred waivers of the right where an attorney had been appointed in the absence of such an assertion.¹⁹ In deciding to overrule Jackson, the Court in Montejo noted that “[n]o reason exists to assume that a defendant . . . who has done nothing at all to express his intentions with respect to his Sixth Amendment rights, would not be perfectly amenable to speaking with the police without having counsel present.”²⁰ Moreover, the Court found, Jackson achieves little by way of preventing unconstitutional conduct.²¹

Statements obtained during custodial interrogation in violation of the Sixth Amendment right to counsel are ordinarily inadmissible at trial (a remedy known as the exclusionary rule).²² In light of the Sixth Amendment basis for the exclusionary rule—to protect the right to a fair trial—exceptions to that rule exist where that basis is not served. For example, in Nix v. Williams,²³ the Court held the “inevitable discovery” exception applied to defeat exclusion of evidence obtained as a result of an interrogation violating the accused’s Sixth Amendment rights. The Court in Nix reasoned that “[e]xclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial.”²⁴ An exception to the Sixth Amendment exclusionary rule has also been recognized for the purpose of impeaching the defendant’s trial testimony.²⁵

Amdt6.6.3.4 Lineups and Other Identification Situations and Right to Counsel

Whether the right to counsel applies to identification situations depends in part on the extent to which they represent a critical stage in a criminal proceeding. United States v. Wade,¹ in conjunction with Gilbert v. California,² held that lineups are of critical importance and in-court identification of defendants based on out-of-court lineups or show-ups without the presence of defendant’s counsel is inadmissible. In reaching that conclusion, the Court observed that “today’s law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused’s fate and reduce the trial itself to a mere formality.”³ Summarizing its Sixth Amendment doctrine in light of this context, the Court noted that “our cases have construed the Sixth Amendment guarantee to apply to ‘critical’ stages of the proceedings . . . The plain wording of this guarantee thus encompasses counsel’s assistance whenever necessary to assure a meaningful ‘defence.’”⁴

The Court reasoned that the presence of counsel at a lineup is constitutionally necessary because the lineup stage is filled with numerous possibilities for errors, both inadvertent and intentional, which cannot adequately be discovered and remedied at trial.⁵ However, the Court concluded that there was less certainty and frequency of possible injustice stemming from lack of counsel in lineups than at trial, and the Court held that Wade and Gilbert were to be given prospective effect only; more egregious instances, where identification had been based upon lineups conducted in a manner that was unnecessarily suggestive and conducive to irreparable mistaken identification, could be invalidated under the Due Process Clause.⁶ The Wade-Gilbert rule is inapplicable to other methods of obtaining identification and other evidentiary material relating to the defendant, such as blood samples, handwriting exemplars, and the like, because there is minimal risk that the absence of counsel might derogate from the defendant’s right to a fair trial.⁷

In United States v. Ash,⁸ the Court redefined and modified its “critical stage” analysis. According to the Court, the “core purpose” of the guarantee of counsel is to assure assistance at trial “when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor.”⁹ Given developments in criminal investigation and procedure, assistance would be “less than meaningful if it were limited to the formal trial itself;” therefore, counsel is compelled at “pretrial events that might appropriately be considered to be parts of the trial itself.”¹⁰ The court explained that at these “newly emerging and significant events, the accused was confronted, just as at trial, by the procedural system, or by his expert adversary, or by both.”¹¹ Therefore, unless the pretrial stage involves the physical presence of the accused at a trial-like confrontation at which the accused requires the guiding hand of counsel, the Sixth Amendment does not guarantee the assistance of counsel.¹² Because the defendant in Ash was not present when witnesses to the crime viewed photographs of possible guilty parties, the Court therefore concluded that there was no trial-like confrontation.¹³ Further, because the possibilities of abuse in a photographic display are discoverable and reconstructable at trial by examining witnesses, the Court in Ash concluded that an indicted defendant is not entitled to have his counsel present at such a display.¹⁴

Another issue involves whether the right to counsel applies to lineups or identification procedures occurring before indictment. The defendants in Wade and Gilbert had already been indicted and counsel had been appointed to represent them when their lineups were conducted.¹⁵ Subsequently in Kirby v. Illinois,¹⁶ the Court held that no right to counsel exists for lineups that precede some formal act of charging a suspect. In a plurality opinion, the Court explained that the Sixth Amendment does not become operative until “the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.”¹⁷ Such a step is significant, the Court observed, because, “it is the starting point of our whole system of adversary criminal justice” and it is only “then that the government has committed itself to prosecute, and only then that the adverse positions of Government and defendant have solidified.”¹⁸ Further, the Court noted, “[i]t is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.”¹⁹ Therefore, the Court stated that the initiation of adversary judicial criminal proceedings “marks the commencement of the ‘criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendment are applicable.”²⁰ Kirby appears to limit opinions such as Escobedo v. Illinois,²¹ which had held that the Sixth Amendment right to counsel applies to pre-indictment custodial interrogation,²² at least to the extent Escobedo suggested that the right to counsel could apply before the initiation of adversary proceedings.²³

Amdt6.6.3.5 Post-Conviction Proceedings and Right to Counsel

With respect to post-conviction proceedings, the Court has held that the right to counsel applies at the sentencing stage,¹ and where sentencing was deferred after conviction and the defendant was placed on probation, he must be afforded counsel at a hearing on revocation of probation and imposition of the deferred sentence.² In other contexts such as state criminal appeals and prison disciplinary hearings the Court has eschewed Sixth Amendment analysis, instead delimiting the right to counsel under due process and equal protection principles.³

Amdt6.6.3.6 Noncriminal and Investigatory Proceedings and Right to Counsel

The Court has construed the applicability of the right to counsel, or lack thereof, in various noncriminal and investigatory proceedings as a matter of the Due Process Clause rather than the Sixth Amendment. For example, commitment proceedings that lead to the imposition of essentially criminal punishment are subject to the Due Process Clause and require the assistance of counsel.¹ However, a state administrative investigation by a fire marshal inquiring into the causes of a fire was held not to be a criminal proceeding and hence, despite the fact that the petitioners had been committed to jail for noncooperation, not the type of hearing at which counsel was requisite as a matter of Due Process.² In another decision, the Court refused to extend the Due Process-based right to counsel to a non-prosecutorial, fact-finding inquiry akin to a grand jury proceeding, even though the defendants in the case were subsequently prosecuted and sentenced for contempt in refusing to testify at the inquiry on the ground that their counsel were required to remain outside the hearing room.³

Amdt6.6.4 Right to Choose Counsel

Under the Sixth Amendment, there is a presumption that a defendant may retain counsel of choice, but the right to choose a particular attorney is not absolute.¹ For instance, in Wheat v. United States, a district court had denied a defendant’s proffered waiver of conflict of interest and refused to allow representation by an attorney who represented the defendant’s co-conspirators in an illegal drug enterprise.² Upholding the district court’s discretion to disallow representation in instances of actual conflict of interests or serious potential for conflict, the Court mentioned other situations in which a defendant’s choice may not be honored.³ A defendant, for example, is not entitled to an advocate who is not a member of the bar, nor may a defendant insist on representation by an attorney who denies counsel for financial reasons or otherwise, nor may a defendant demand the services of a lawyer who may be compromised by past or ongoing relationships with the Government.⁴

The right to retain counsel of choice generally does not bar operation of asset forfeiture provisions, even if the forfeiture serves to deny to a defendant the wherewithal to employ counsel. In Caplin & Drysdale v. United States,⁵ the Court upheld a federal statute requiring forfeiture to the government of property and proceeds derived from drug-related crimes constituting a “continuing criminal enterprise,”⁶ even though a portion of the forfeited assets had been used to retain defense counsel. Although a defendant may spend his own money to employ counsel, the Court declared, “[a] defendant has no Sixth Amendment right to spend another person’s money for services rendered by an attorney, even if those funds are the only way that [the] defendant will be able to retain the attorney of his choice.”⁷ Because the statute vests title to the forfeitable assets in the United States at the time of the criminal act,⁸ the defendant has no right to give them to a “third party” even if the purpose is to exercise a constitutionally protected right.⁹ Moreover, on the same day Caplin & Drysdale was decided, the Court, in United States v. Monsanto, held that the government may, prior to trial, freeze assets that a defendant needs to hire an attorney if probable cause exists to “believe that the property will ultimately be proved forfeitable.”¹⁰ Nonetheless, in Luis v. United States the Court limited the holdings from Caplin & Drysdale and Monsanto, deciding that the Sixth Amendment provides criminal defendants the right to preserve legitimate, untainted assets unrelated to the underlying crime in order to retain counsel of their choice.¹¹

Where the right to be assisted by counsel of one’s choice is wrongly denied, a Sixth Amendment violation occurs regardless of whether the alternate counsel retained was effective, or whether the denial caused prejudice to the defendant.¹² Further, because such a denial is not a “trial error” (a constitutional error that occurs during presentation of a case to the jury) but a “structural defect” (a constitutional error that affects the framework of the trial), the Court held that the decision is not subject to a “harmless error” analysis.¹³

In Faretta v. California, the Court held that the Sixth Amendment, in addition to guaranteeing the right to retained or appointed counsel, also guarantees a defendant the right to represent himself.¹⁴ It is a right the defendant must adopt knowingly and intelligently;¹⁵ under some circumstances the trial judge may deny the authority to exercise it, as when the defendant simply lacks the competence to make a knowing or intelligent waiver of counsel¹⁶ or when his self-representation is so disruptive of orderly procedures that the judge may curtail it.¹⁷ The right applies only at trial; there is no constitutional right to self-representation on direct appeal from a criminal conviction.¹⁸ The Court spelled out the essential elements of self-representation in McKaskle v. Wiggins,¹⁹ a case involving the self-represented defendant’s rights vis-a-vis “standby counsel” appointed by the trial court. The “core of the Faretta right” is that the defendant “is entitled to preserve actual control over the case he chooses to present to the jury,” and consequently, standby counsel’s participation “should not be allowed to destroy the jury’s perception that the defendant is representing himself.”²⁰ But participation of standby counsel even in the jury’s presence and over the defendant’s objection does not violate the defendant’s Sixth Amendment rights when serving the basic purpose of aiding the defendant in complying with routine courtroom procedures and protocols and thereby relieving the trial judge of these tasks.²¹

Amdt6.6.5.1 Overview of the Right to Effective Assistance of Counsel

In McMann v. Richardson, the Court held that “the right to counsel is the right to the effective assistance of counsel.”¹ This right to effective assistance may be implicated in at least three ways.² First, a court’s action may interfere with counsel’s effectiveness if the court restricts a defense counsel in exercising his or her representational duties and prerogatives attendant to the adversarial system of justice of the United States.³ Second, the Sixth Amendment is implicated when a court appoints a defendant’s attorney to represent his co-defendant as well, where the co-defendants are known to have potentially conflicting interests.⁴ Third, defense counsel may deprive a defendant of effective assistance by failing to provide competent representation that is adequate to ensure a fair trial,⁵ or, more broadly, a just outcome.⁶ The right to effective assistance may be implicated as early as the process for appointment of counsel.⁷

Amdt6.6.5.2 Deprivation of Effective Assistance of Counsel by Court Interference

Restrictions on representation imposed during trial have been stricken as impermissible interference with defense counsel. For example, the Court invalidated application of a statute that empowered a judge to deny final summations before judgment in a nonjury trial; explaining that “the right to the assistance of counsel . . . ensures to the defense in a criminal trial the opportunity to participate fully and fairly in the adversary factfinding process.”¹ In Geders v. United States,² the Court held that a trial judge’s order preventing a defendant from consulting his counsel during a 17-hour overnight recess between his direct and cross-examination, to prevent tailoring of testimony or “coaching,” deprived the defendant of his right to assistance of counsel and was invalid.³ The Court has treated other direct and indirect restraints upon counsel as violations of the Fourteenth Amendment right to due process.⁴

Amdt6.6.5.3 Deprivation of Effective Assistance of Counsel in Joint Representation

In cases of joint representation of codefendants, deprivation of effective assistance of counsel may result from a lack of fidelity by the attorney to the client. For instance, in Glasser v. United States, the Court held a trial judge erred in appointing one defendant’s attorney to also represent a codefendant in a conspiracy case, where the judge knew of potential conflicts of interest in the case, and the original defendant had earlier expressed a desire for sole representation.¹ In another case, counsel for codefendants made a timely assertion to the trial judge that continuing joint representation could pose a conflict of interest, and the Court held that the trial judge erred in not examining the assertion closely and by not permitting or appointing separate counsel, absent a finding that the risk of conflict was remote.² Joint representation does not deny effective assistance per se, however.³ Judges are not automatically required to initiate an inquiry into the propriety of multiple representation, and are able to assume in the absence of “special circumstances” that no conflict exists.⁴ On the other hand, a defendant who objects to joint representation must be given an opportunity to make the case that potential conflicts exists.⁵ Absent an objection, a defendant must later show the existence of an “actual conflict of interest [that] adversely affected his lawyer’s performance.”⁶ Once it is established that a conflict did actively affect the lawyer’s joint representation, however, a defendant need not additionally prove that the lawyer’s representation was prejudicial to the outcome of the case.⁷

Amdt6.6.5.4 Deprivation of Effective Assistance of Counsel by Defense Counsel

The Sixth Amendment’s guarantee of effective assistance of counsel is not satisfied by the mere appointment of counsel regardless of the competence or fidelity of their services; indeed, the “right to counsel prevents the States from conducting trials at which persons who face incarceration must defend themselves without adequate legal assistance.”¹ Further, the Sixth Amendment’s right to effective assistance applies to counsel regardless of whether counsel is appointed or privately retained or whether the government in any way brought about the defective representation.² As the Court has explained, “[t]he vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant’s entitlement to constitutional protection.”³

The seminal test for adequate representation stems from the Court’s 1984 opinion Strickland v. Washington.⁴ There are two components to the Strickland test: (1) deficient representation and (2) resulting prejudice to the defense so serious as to bring the outcome of the proceeding into question.⁵

Amdt6.6.5.5 Deficient Representation Under Strickland

The gauge of deficient representation is an objective standard of reasonableness “under prevailing professional norms” that takes into account “all the circumstances” and evaluates conduct “from counsel’s perspective at the time.”¹ Providing effective assistance is not limited to a single path. No detailed rules or guidelines for adequate representation are appropriate, as “[a]ny such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.”²

Because even the most highly competent attorneys might choose to defend a client differently, “[j]udicial scrutiny of counsel’s performance must be highly deferential.”³ Counsel’s obligation is a general one: to act within the wide range of legitimate, lawful, and reasonable conduct.⁴ The Court has advised that “strategic choices made after thorough investigation of [relevant] law and facts . . . are virtually unchallengeable,”⁵ and the same is true of reasonable decisions that “make[ ] particular investigations unnecessary,”⁶ or reasonable decisions in selecting which issues to raise on appeal.⁷ In Strickland itself, the allegation of ineffective assistance failed; the Court held that the defense attorney’s decision to forgo character and psychological evidence in a capital sentencing proceeding to avoid rebuttal evidence of the defendant’s criminal history was “the result of reasonable professional judgment.”⁸

On the other hand, defense counsel does have a general duty to investigate a defendant’s background, and a decision to limit investigation and presentation of mitigating evidence must be supported by reasonable efforts and judgment.⁹ Also, even though deference to counsel’s choices may seem particularly apt in the unstructured, often style-driven arena of plea bargaining,¹⁰ an accused, in considering a plea, is clearly entitled to advice of counsel on the prospect of conviction at trial and the extent of punishment that might be imposed. Thus, in Lafler v. Cooper the government conceded that the deficient representation part of the Strickland test was met when an attorney erroneously advised the defendant during plea negotiations that the facts in his case would not support a conviction for attempted murder.¹¹ In Missouri v. Frye,¹² the Court held that failure to communicate a plea offer to a defendant also may amount to deficient representation.

Moreover, in Padilla v. Kentucky the Court held that defense counsel’s Sixth Amendment duty to a client considering a plea goes beyond advice on issues directly before the criminal court to reach advice on deportation.¹³ Because of its severity, historical association with the criminal justice system, and increasing certainty following conviction and imprisonment, the Court found deportation to be of a “unique nature.”¹⁴ Further, the Court held that defense counsel failed to meet prevailing professional norms in representing to the defendant that he did not have to worry about deportation because of the length of his legal residency in the United States.¹⁵ The Court emphasized that this conclusion was not based on the attorney’s mistaken advice, but rather on a broader obligation to inform a noncitizen client whether a plea carries a risk of deportation.¹⁶

Amdt6.6.5.6 Prejudice Resulting from Deficient Representation Under Strickland

For deficient representation to constitute a constitutional violation, the Court established in Strickland v. Washington that there must be (1) deficient representation and (2) resulting prejudice to the defense so serious as to bring the outcome of the proceeding into question.¹ Meeting the second requirement of Strickland—whether the deficient representation resulted in prejudice—can be challenging The touchstone of “prejudice” under Strickland is that the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”² Defendants frequently fall short on the prejudice requirement.³

Beyond Strickland’s “reasonable probability of a different result” test for determining prejudice, there are issues of when an “outcome determinative” test alone suffices, what exceptions exist, and whether the general rule should be modified. In Lockhart v. Fretwell, the Court appeared to refine the Strickland test when it stated that an “analysis focusing solely on mere outcome determination” is “defective” unless attention is also given to whether the result was “fundamentally unfair or unreliable.”⁴ However, the Court subsequently characterized Lockhart as limited to a class of exceptions to the “outcome determinative” test and not supplanting it.⁵ According to Williams v. Taylor, it would disserve justice in some circumstances to find prejudice premised on a likelihood of a different outcome.⁶ For example, fundamental fairness precluded finding prejudice where defense counsel had failed to object to the use sentencing of an aggravating factor barred by a recent appellate case, but where that case was subsequently overturned.⁷ According to the Court, finding prejudice based on defense counsel’s failure to object in the narrow window where it would have been permissible based on the shifting precedent would have been nothing more than a fortuitous windfall for the defendant.⁸ As another example, the Court has said it would be unjust to find legitimate prejudice in a defense attorney’s interference with a defendant’s perjured testimony, even if that testimony could have altered a trial’s outcome.⁹

A second category of recognized exceptions to the application of the “outcome determinative” prejudice test includes the relatively limited number of cases in which prejudice is presumed. This presumption occurs when there are “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.”¹⁰ These situations, the Court explained in United States v. Cronic involve some kind of “breakdown of the adversarial process,” and include actual or constructive denial of counsel, denial of such basics as the right to effective cross-examination, or failure of counsel to subject the prosecution’s case to meaningful adversarial testing.¹¹ Moreover, prejudice is presumed “when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken.”¹² “Apart from circumstances of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation unless the accused can show [prejudice],”¹³ and consequently most claims of inadequate representation continue to be measured by the Strickland standard.¹⁴

Amdt6.6.5.7 Limits on Role of Attorney

While the Sixth Amendment guarantees the right of assistance of counsel, that right does not require the defendant to surrender control entirely to his representative.¹ Defense counsel’s central province is in trial management, providing assistance in deciding what arguments to make, what evidentiary objections to raise, and what evidence should be submitted.² At the same time, the accused has the “ultimate authority to make certain fundamental decisions regarding the case,” including “whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.”³ Such decisions are for the criminal defendant to make notwithstanding the defendant’s own inexperience or lack of professional qualifications.⁴ Allowing counsel to usurp such decisions from the accused violates the Sixth Amendment’s right to counsel, amounting to a structural error that obviates any need to inquire into whether the criminal defendant was prejudiced in any way.⁵

In this vein, the Court held in McCoy v. Louisiana that a criminal defendant’s choice to maintain his innocence at the guilt phase of a capital trial was not a strategic choice for counsel to make, notwithstanding counsel’s view that confessing guilt offered the best chance to avoid the death penalty.⁶ Instead, the Court concluded that such a decision amounts to a fundamental choice about the client’s objectives for the criminal proceeding.⁷ More specifically, while acknowledging that counsel “may reasonably assess a concession of guilt as best suited to avoiding the death penalty,” the Court noted that a criminal defendant may not share the objective of avoiding such a punishment and instead may wish, above all else, to avoid admitting guilt or living the rest of his life in prison.⁸ Because the Sixth Amendment requires the assistance of counsel, the McCoy Court concluded that a lawyer cannot concede his client’s guilt and must instead assist in achieving his client’s express objective to maintain his innocence of the charged criminal acts.⁹