Chapter 11 lecture notes, videos, and websites

1.  
Michelle Palaro
CJUS 2360
Fall 2015
Chapter 11
The Sixth
Amendment: Right to
Counsel and a Fair
Trial

2.  The 6th Amendment is not that familiar to the
public
 It deals with the fairness at trial and the right to
a lawyer during the time leading up to and
during prosecution
 The 6th Amendment protects the individual
against the government’s unlimited resources
and ensure a fair trial

3.  The 6th Amendment require a speedy and public
trial
 A delayed or prolonged trial is inherently unfair
o With the assumption of a person is innocent until
proven guilty, each individual charged with a crime
has the right to have their determination made as
quickly as possible
 Delay that harms the accused’s defense may
cause the charges to be dismissed

4.  Facts: Defendant charged with murder and tried five
years later after numerous continuances by the
prosecution
 Issues: Was the trial “speedy” enough under the 6th
Amendment?
 Holding: No
 Rationale: A trial is sufficiently “speedy” is determined
by:
1. The length of the delay
2. The reason for the delay
3. The defendant’s assertion of this right
4. The harm caused

5.  6th Amendment requires that the trial occur in the state
and district in which the crime was committed
 Venue
o The geographical area in which a specific case may come to
trial, and the area from which the jury is selected
 A defendant may seek a change of venue for several
reasons:
1. Such prejudice in the county where the case is to be tried that
the defendant cannot obtain a fair and impartial trial there
2. Another location is much more convenient for the parties and
witnesses than the intended place of trial, and the interests of
justice require a transfer of location

6.  The 6th Amendment requires an impartial and
representative jury
 All crimes involving the potential of jail time do
not require a jury trial
o “Petty crimes” do not require a jury trial
• No definition from Supreme Court as to what a
petty crime is
 More serious offenses warrant a jury trial
o Generally those who punishments could exceed jail
time of six months

7.  Voir dire
o The process of questioning potential
jurors to determine their impartiality
 Peremptory challenges
o A specific number of allowances given
to each side in a case so that they may
assert to remove a potential juror for
any reason whatsoever

8.  Facts: Batson, a black man, was on trial charged with second-
degree burglary and receipt of stolen goods. During the jury
selection, the prosecutor used his peremptory challenges to
strike the four black persons on the venire, resulting in a jury
composed of all whites. Batson was convicted on both of the
charges against him
 Issues: Did the prosecutor's use of peremptory challenges to
exclude the four blacks from the jury violate Batson's Sixth and
Fourteenth Amendment rights?
 Holding: Yes
 Rationale: Prosecutors’ peremptory challenges to exclude from
a jury members of the defendant’s race based only on racial
grounds violates the equal protection rights of both the
defendant and the excluded juror
 http://en.wikipedia.org/wiki/Batson_v._Kentucky

9.  The right to counsel is the only 6th Amendment
guarantee that extends beyond the trial
 Everyone has the right to legal representation
 Every lawyer has an obligation to do everything
legally permissible to see that the client’s rights
are upheld
 It is to ensure that those accused are afforded
their legal right and that they understand the
process in which they are involved

10. Powell v. Alabama

11.  Facts: Nine black youths -- young, ignorant, and
illiterate -- were accused of raping two white women.
Alabama officials sprinted through the legal
proceedings: a total of three trials took one day and all
nine were sentenced to death. Known as the
“Scottsboro” boys
 Issues: Did the trials violate the Due Process Clause of
the 14th Amendment?
 Holding: Yes
 Rationale: The defendants were not given reasonable
time and opportunity to secure counsel in their defense

12. Gideon v. Wainwright

13.  Facts: Gideon was charged with breaking and entering, a
felony. At trial, Gideon appeared in court without an attorney and
asked the judge to appoint counsel for him because he could not
afford an attorney. The trial judge denied Gideon’s request
because Florida law only permitted appointment of counsel for poor
defendants charged with capital offenses
 Issues: Was Gideon denied his right to counsel under the 6th
Amendment?
 Holding: Yes
 Rationale: The Court held that the 6th Amendment’s guarantee of
counsel is a fundamental right essential to a fair trial and, as such,
applies the states through the 14th Amendment for this “deprivation
of liberty.” Not only was the right to counsel absolute, but also in all
serious cases, indigent defendants accused of a felony were to be
provided with legal counsel

14.  Facts: Argersinger was an indigent charged with carrying
a concealed weapon with a maximum penalty of six
months in jail and a $1,000 fine. During the bench trial in
which he was convicted and sentenced to serve ninety
days in jail, Argersinger was not represented by an
attorney
 Issues: Was the defendant entitled to an attorney?
 Holding: Yes
 Rationale: The Court extended the right to an attorney to
defendants accused of misdemeanor offenses. Any time
the penalty could include prison, the defendant must have
access to a lawyer
 http://en.wikipedia.org/wiki/Argersinger_v._Hamlin

15.  The Supreme Court has held that no one may be
imprisoned for any level of crime without legal
representation, unless the accused has knowingly and
intelligently waived their right
 6th Amendment right to legal counsel occurs at every
critical stage of a criminal proceeding, including during
the investigation, at hearings and during the trial
 A critical stage is any step during a criminal prosecution
where the accused’s rights may be affected by the
absence of legal representation

16.  Facts: After pleading not guilty and being released on
bail, a co-defendant cooperated with the police to
record defendant’s incriminating statements
 Issues: Did this violate the 6th Amendment?
 Holding: Yes
 Rationale: Though it was proper to continue the
investigation, using the co-defendant to interrogate the
defendant without his attorney present violated the 6th
amendment and the statements are excluded as
inadmissible
 http://en.wikipedia.org/wiki/Massiah_v._United_States

17.  Criminal procedure defines ways police identify
suspects to victims or other witnesses
 Show-up:
o Identification technique in which only one individual
is shown to the victim or witness
 Line-up:
o Identification technique in which the victim or witness
is shown several people, including the suspect
 Blind Line-up:
o One conducted by someone who does not know who
the suspect is

18.  Facts: Two men were indicted for bank robbery and appointed
counsel to defend them. They were brought before witnesses to
participate in a line up identification procedure without the
benefit of the presence of counsel, after indictment, but prior to
trial. They were identified
 Issues: Did the defendants have the right to notify their
attorneys and have them present at the lineup?
 Holding: Yes
 Rationale: The Court held that pretrial lineups invoke the 6th
Amendment protection and require that the suspect have a
lawyer. This was a critical stage
 http://en.wikipedia.org/wiki/United_States_v._Wade
 http://en.wikipedia.org/wiki/Gilbert_v._California

19.  Foster v. California (1969)
o Lineups may not be arranged in such a manner as to
make the defendant stand out from the others in any
unnecessarily suggestive ways
o https://supreme.justia.com/cases/federal/us/394/440/
 Kirby v. Illinois (1972)
o Pre-indictment identification procedures are not
critical stages of criminal proceedings, so there is no
6th Amendment right to a lawyer
o http://en.wikipedia.org/wiki/Kirby_v._Illinois

20.  Factors to consider in determining witness
reliability:
o The opportunity of the witness to view the defendant
during the crime
o The level of attention the witness was paying to the
defendant
o The accuracy of any descriptions of the defendant
made by the witness before the identification
procedure
o The witness’s level of certainty in his or her
identification
o The time between the crime and confrontation

21.  Moore v. Michigan (1957)
o Established that a defendant has the right to counsel
while submitting a guilty plea to the court
o https://supreme.justia.com/cases/federal/us/355/155/
 Douglas v. California (1963)
o Any hearing or trial through the first appeal of right
invokes the 6th Amendment right to counsel
• But does not extend to any additional appeals
• http://en.wikipedia.org/wiki/Douglas_v._California

22.  Powell v. Alabama (1932)
o The 6th Amendment right to counsel presumes
counsel is effective
 Effective counsel - “The proper measure of
attorney performance remains simply
reasonableness under prevailing professional
norms …The benchmark for judging any claim
of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning
of the adversarial process that the trial cannot
be relied on as having produced a just result”

23.  A suspect cannot be forced to deal with an attorney and
so may waive this right
 Patterson v. Illinois (1988)
o Held that a valid waiver of Miranda rights not only waives the 5th
Amendment right against self-incrimination but also waves the
6th Amendment right to counsel
 The requirements that a waiver be knowing, voluntary,
and intelligent remain the same
 For a waiver to be effective, it need not be in writing, but
whatever statement is made by the suspect must show
there was, in fact an intentional relinquishment of the
known right

24.  People may elect to appear in court pro se
o Appearing in court without an attorney, representing
oneself
 Some defendants distrust attorneys in general
 Others believe they can handle their defense
adequately
 The expense of hiring a lawyer or not qualifying
for legal aid compels some to defend
themselves

25.  Faretta v. California (1975)
o Set forth three conditions to be met before a
person could represent themselves:
1. Awareness of the right to counsel
2. A valid waiver of 6th Amendment rights
3. Competency
o http://en.wikipedia.org/wiki/Faretta_v._Califor
nia
 An accused who represents themselves
cannot later claim ineffective counsel

26. In re Gault

27.  Facts: Gault was a 15 year-old accused of making an
obscene telephone call to a neighbor. At his hearing, the
probation officers filed a report listing the charge as lewd
phone calls. An adult charged with the same crime would
have received a maximum sentence of a $50 fine and two
months in jail
 Issues: Do procedural rights of a juvenile defendant in
delinquency proceedings where there is a possibility of
incarceration entitle the juvenile to counsel?
 Holding: Yes
 Rationale: The 6th and 14th Amendment applies to juveniles,
gives them right against self-incrimination, receive notice of
charges, confront and cross-examine witnesses and counsel

28.  Like the 5th Amendment, the 6th Amendment is not frequently
cited in prisoners’ rights lawsuits
 For prisoners, cases based on the 6th Amendment involve the
right to a speedy trial and the detainer problem
o Document filed against inmates who have other criminal charges
pending against them
 Mempa v. Rhay (1967)
o Convicted offenders have right to assistance of counsel at probation
revocation hearings in which sentencing has been deferred
o https://supreme.justia.com/cases/federal/us/389/128/
 Gagnon v. Scarpelli (1973)
o Probationers/parolees have a constitutionally limited right to counsel
on a case-by-case basis at revocation proceedings
o http://en.wikipedia.org/wiki/Gagnon_v._Scarpelli