Request counsel must be made before or during the interrogation

Request counsel must be made before or during the interrogation

7. 
   Ambiguities relevant only if part of request. – Davis
   
   1. 
      Once D expresses unequivocal desire to receive counsel, no subsequent questions or responses may be used to cast doubt on the request and all questioning must cease.
      
   2. 
      If request is ambiguous, police may ask clarifying questions, but its not required
      
      1. 
         rather, they may continue to interrogate D until an unambiguous request is received
         
   3. 
      If D agrees to answer questions orally, but requests counsel before making any written statements, D’s oral statements are admissible. – Barrett
      
      1. 
         D’s agreement to talk constitutes voluntary and knowing waiver of right to counsel
         

8. 
   Counsel must be present at interrogation. – Minnick (1991)
   
   1. 
      Mere consultation w/ counsel prior to questioning does not satisfy right to counsel – police cannot resume questioning D in absence of counsel.
      
   2. 
      But counsel need not be present if D waives right to counsel by initiating the exchange
      

10. 
    Miranda: Invocation of Silence
    
    1. 
       D may terminate interrogation by invoking his right to remain silent.
       
    2. 
       At any time prior to or during interrogation, D may indicate that he wishes to remain silent.
       
       1. 
          If so, all questioning related to the particular crime must stop.
          

3. 
   Right to silence is crime specific – Mosley (1975)
   
   1. 
      If D invokes his right to silence for first crime, this is good only for first crime but not second. Thus police may reinitiate questioning if they limit it to the second crime (crime that was not the subject of the first questioning)
      

4. 
   Police may resume questioning if they “scrupulously honor” the request – Mosley
   
   1. 
      At very least, police may not badger D into talking and must wait a significant time before reinitiating questioning.
      
   2. 
      Police may reinitiate questioning if:
      
      1. 
         police immediately ceased questioning upon D’s request and did not resume questioning for several hours;
         
      2. 
         D was rewarned of his rights; and
         
      3. 
         question was limited to a crime that was not the subject of the earlier questioning
         

11. 
    Miranda and Second Interrogations
    
    1. 
       If police obtain confession from D without giving him Miranda warnings and then give D Miranda warnings and obtain a second confession, second confession is inadmissible if the “question first, warn later” mature of the questioning was intentional. – Seibert
       
       1. 
          intentional = police used this as scheme to get around Miranda requirements
          

2. 
   Seibert (2004) [Plurality, 4-1-4] – Police procedure – “question first, warn later” – No Miranda warnings during first interrogation, wait until they get confession, then read warnings and have him restate his confession in second interrogation. Violation of Miranda. This midstream recitation of Miranda warnings after interrogation and unwarned confession does not comply w/ Miranda’s constitutional requirement. The repeated statement of confession after Miranda warnings is inadmissible.
   
   1. 
      Souter plurality – goes to the heart of what Miranda warnings are about. The question-first police tactic effectively threatens to thwart Miranda’s purpose of reducing the risk that a coerced confession would be admitted.
      

2. 
   But, second valid confession may be admissible if the original unwarned questioning seemed unplanned and the failure to give Miranda warnings seemed inadvertent.
   

1. 
   Elstad (1985) – Held: Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made. D’s first confession was voluntary and admissible. Second confession does not violate Miranda. ** Police didn’t have to give Miranda warnings the first time if they weren’t going to use that first confession at trial.
   
   1. 
      Interrogation #1 – no Miranda – confession ö custodial interrogation, but voluntary confession
      
   2. 
      Interrogation #2 – w/ Miranda – confession ö Held: second confession does not violate Miranda
      

12. 
    Miranda Exception: Public Safety
    
    1. 
       If police interrogation is reasonably prompted by concern for public safety, responses to questions may be used in court (in case in chief), even though D is in custody and Miranda warnings are not given. — Quarles
       
       1. 
          Narrow exception.
          
       2. 
          Scope of this exception unclear. May be limited to the facts of Quarles.
          
          1. 
             In each case, exception will be circumscribed by the exigency which justifies it.
             
       3. 
          Objective test
          
          1. 
             what a reasonable police officer would ask questions in same situation
             
          2. 
             does not depend upon the motivation of the individual officers involved.
             
       4. 
          Rationale:
          
          1. 
             The need for answers to questions in a situation posing a threat to the public safety outweighs the need for Miranda’s prophylactic rule protecting the 5^th Amend.’s privilege against self-incrimination.
             
       5. 
          In rescue situations, court allows police officers to ask suspect where the person is that they are trying to find who is still alive, without Miranda warnings.
          

2. 
   Quarles (1984) – V accuses man of rape w/ gun and directs police to grocery store. Police find him there, chase ensues, catch him w/ empty holster. D was handcuffed then asked where he had hidden his gun. Police find gun, place him under arrest and read him Miranda warnings, asked more questions about the gun.
   
   1. 
      The arrest and questioning were virtually contemporaneous, and police were reasonably concerned that the gun might be found and cause injury to innocent person.
      
   2. 
      Police were in act of apprehending a suspect and were confronted w/ immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the store. If they had to recite Miranda warnings before asking about the gun, the suspect might be deterred from responding.
      

13. 
    Types of Statements
    
    1. 
       Miranda applies to both inculpatory statements and statements alleged to be merely exculpatory.
       
       1. 
          Ex: D’s exculpatory statement, when confronted w/ another suspect, that “I didn’t shoot Manuel, you did it,” led to the first suspect’s conviction for murder. – Escobedo
          

14. 
    Miranda not applicable at grand jury hearing
    
    1. 
       Miranda inapplicable to witness testifying before GJ even if witness under compulsion of subpoena
       
    2. 
       Witness who has not been charged or indicted does not have right to have counsel present during questioning, but he may consult w/ attny outside GJ room.
       
    3. 
       Witness who gives false testimony before GJ may be convicted of perjury even though he was not given Miranda warnings.
       

4. 
   Sixth Amendment
   
   1. 
      Intro.
      
      1. 
         6^th Amend. right to assistance of counsel
         
         1. 
            Gideon v. Wainwright – 6^th Amend. applies to states
            
         2. 
            In all criminal prosecutions, D has right to assistance of counsel.
            
         3. 
            Protects Ds from having to face a complicated legal system without competent help.
            
         4. 
            D does NOT have to request counsel for the right to attach.
            
            1. 
               but as soon as D asks for a lawyer, the questioning must stop (Edwards)
               
         5. 
            Right attaches only after formal proceedings have begun. – Massiah
            
            1. 
               after formal charges brought against D
               
         6. 
            Right is offense specific
            

2. 
   Right violated when police deliberately elicit incriminating statement from D w/o first obtaining waiver of D’s right to have counsel present. – Brewer
   

3. 
   Since Miranda, 6^th Amend. right to counsel has been limited to cases where adversary judicial proceedings have begun, e.g. formal charges have been filed. – Massiah
   
   1. 
      Thus, the right does not apply in precharge custodial interrogations.
      

4. 
   Following indictment or arraignment:
   
   1. 
      D can request counsel (Jackson)
      
   2. 
      D can be appointed counsel (Brewer)
      
   3. 
      D can retain counsel (Massiah)
      
   4. 
      or D does not request and legal system does not provide counsel (Patterson)
      

2. 
   6^th Amend. right to counsel attaches only after formal proceedings have begun– Massiah
   
   1. 
      Formal proceedings = when formal charges have been brought against D
      
   2. 
      After formal charges have been brought, D has right to counsel during interrogation.
      
   3. 
      6^th Amend. right to counsel applicable at post-indictment interrogation whether custodial or not.
      
   4. 
      Massiah applies only when police are trying to obtain information and the suspect is unaware that he is talking to police.
      
      1. 
         D has right to counsel even when he does not know he is subject to police elicitation.
         
   5. 
      Once D requests counsel at this point, police questioning must stop. – Edwards
      

6. 
   Massiah gives the right to a lawyer, but does not guarantee the right to a lawyer at every proceeding
   
   1. 
      Massiah right to counsel only during interrogation after formal charges filed
      
   2. 
      Often, formal charges not brought during arraignment or initial appearance, so Massiah right to counsel would not attach at arraignment
      
      1. 
         But, lawyer usually appointed at initial appearance, so typically there is no right to a lawyer during that proceeding.
         
      2. 
         Lawyers have a way of manipulating this—police will file formal charges later.
         
   3. 
      The issue is that sometimes Miranda applies.
      
      1. 
         If there is a custodial interrogation, Miranda applies.
         
      2. 
         Police get around this by interrogating BEFORE formal charges and NOT in a custodial setting.
         

7. 
   Massiah (1964) – FBI agents deliberately elicited statements from D when, after he was indicted and in the absence of his attorney, they secretly had his co-D get him to talk about their drug activities in tapped car (wire tap) during which D made incriminating statements. D was denied his 6^th Amend. right to counsel.
   
   1. 
      Held: Suspect – post-indictment, has a lawyer. Once adversary proceedings have commenced against the individual, he has a right to legal representation when the govt interrogates him.
      
   2. 
      Constitutional right to a lawyer after an indictment ö 6^th Amend. triggered
      

8. 
   Compare Miranda vs. Massiah
   
   1. 
      Miranda = right to counsel in custodial interrogation only
      
   2. 
      Massiah = right to counsel whether or not custodial interrogation
      
   3. 
      Massiah, not Miranda, applies when police are trying to obtain information and the suspect is unaware that he is talking to the police.
      

9. 
   Escobedo – After arrest there was right to attorney under 6^th Amend.
   
   1. 
      Escobedo (1964) – Where investigation is no longer general inquiry into unsolved crime but begins to focus on particular suspect, who is in police custody and makes incriminating statements during interrogation, and who requested and was denied an attny, received no warning of his absolute constitutional right to remain silent, he has been denied assistance of counsel and self-incrimination rights violated, both in violation of 6^th Amend. [narrow holding].
      

10. 
    Fruit of the Poisonous Tree Doctrine:
    
    1. 
       4^th Amendment: FPT doctrine DOES apply
       
    2. 
       5^th Amendment: FPT doctrine does NOT apply
       
    3. 
       6^th Amendment: FPT doctrine DOES apply
       
    4. 
       There is a large difference as to what can happen if there is a violation.
       
       1. 
          If 5^th Amend. violation, police may be able to continue.
          
       2. 
          If 4^th or 6^th violation, police may be prevented from access to the evidence.
          

3. 
   Brewer and Deliberate Elicitation
   
   1. 
      Deliberate elicitation = Once D has the right to counsel under Massiah (after formal charges have been brought) police cannot question him anymore.
      
      1. 
         It does not require a request, police are simply barred from further questioning.
         

2. 
   D has a right to counsel once adversary proceedings have begun.
   
   1. 
      “Formal system” begins the rights in many different ways.
      
      1. 
         Once adversarial criminal proceedings HAVE begun—formal charge brought.
         
         1. 
            It does not include being arrested without a warrant.
            
         2. 
            It does not include when the investigation begins to focus on an individual.
            

3. 
   Brewer (1977) – Young girl abducted from YMCA, police caught suspect who was YMCA resident and recently escaped from mental hospital. After judicial proceedings had begun against D in one city, officers were transporting him to other city to face other charges and questioned him regarding whereabouts of victim’s body during which D made incriminating statements. Held: D was deprived of his 6^th Amend. right to counsel. D did not waive this right to counsel during the car ride questioning.
   
   1. 
      Deliberate elicitation when, after officer was told by both D’s attorneys in both towns not to question him in their absence, in the car ride officer purposely sought during D’s isolation from his lawyers to obtain as much incriminating information from D as possible.
      
   2. 
      ** Note: First trial reversed, then he was tried again and convicted. At second trial, the conviction upheld – the body would have been inevitably discovered so it could be used against the D. (Nix)
      
   3. 
      Massiah treats interrogation as a right at a critical stage. Because there is a critical stage, Brewer reads Miranda as a critical right.
      

4. 
   6^th Amend. right to counsel violated when undisclosed, paid govt informant is placed in D’s cell, after D has been indicted, and deliberately elicits statements from D regarding crime for which D was indicted. Right to counsel had attached.
   
   1. 
      Does not matter that informant was told NOT to ask anything, but to keep his ears open. Police cannot passively try and get information once the right to counsel attaches. – Henry (1980)
      
5. 
   NO violation merely to place informant in D’s cell
   
   1. 
      Informant must take some action, beyond mere listening, designed deliberately to elicit incriminating remarks. – Kuhlmann (1986)
      

6. 
   Violation when police arrange to record conversations between indicted D and his co-D. – Maine v. Moulton (1985)
   

7. 
   Govt gets nothing if they deliberately elicit confession
   
   1. 
      If they get confession, they may not be able to use it, but they may get other information from the confession.
      
   2. 
      If they do not get confession, nothing will happen.
      
   3. 
      If they get confession, cell mate may not qualify as deliberate elicitation.
      

4. 
   Waiver under Massiah
   
   1. 
      After requesting COUNSEL, the only way to waive that right is when:
      
      1. 
         Counsel is present OR
         
      2. 
         D initiates the conversation (related conversation)
         

2. 
   Police CANNOT ask him anymore questions without the presence of a lawyer, unless he himself initiates further communication w/ police.
   
   1. 
      Edwards rule applicable to D who requests counsel after being formally charged w/ a crime. – Michigan v. Jackson
      
   2. 
      Once the right to counsel has attached and been invoked, any subsequent waiver during a police-initiated custodial interview is ineffective.
      
   3. 
      6^th Amend. right to counsel at a post-arraignment interrogation requires at least as much protection as the 5^th Amend. right to counsel at any custodial interrogation.
      

4. 
     Michigan v. Jackson (1986) – D made an appearance at the arraignment (two different meanings, one is after indictment, for pleas, the other use is for the initial appearance, right after D was arrested, he/she is brought before the judge for an administrative hearing), the appearance is what happened in this case. D was arrested, questioned, then brought to the judge. In the questioning, he made SIX statements. At the hearing/arraignment, he now asked for the lawyer. Before he got the lawyer, however, he gave the SEVENTH confession. Before every statement, he was given the Miranda rights.
   
   1. 
      Held: First six statements admissible, assuming no DPC violations, no coercion, with Miranda rights, he confessed, assuming there is a VALID waiver, under the FIFTH amendment, this interrogation was okay. If there were no formal charges at the time of the interrogation, then 6^th amendment is not violated either.
      
   2. 
      Arrest---Interrogation---Arraignment (appearance) asked for lawyer----Seventh Confession ö inadmissible.
      
      1. 
         D had asked for a lawyer, which confers the right to counsel upon him under 6^th. Thus D not allowed to be questioned unless HE initiates it, or a lawyer is present.
         
   3. 
      In this case, Massiah right to counsel did not attach b/c it was only an initial appearance (arraignment), which is not a formal charge, and Massiah only applies to former charges (esp. indictment).
      
   4. 
      Once formal charges have been made, you have a RIGHT to counsel, even without requesting that right.
      
      1. 
         Patterson case (p. 707n.6) suggests that Jackson was different b/c there were no formal charges, so he had no right to counsel, however, he ASKED for a lawyer, so that is sufficient to stop future interrogation based on Edwards.
         
      2. 
         However, in Patterson, after an indictment, you do not HAVE to request the counsel bc formal charges have been made, and therefore, you are ENTITLED to an attorney, even without asking for counsel.
         

5. 
   Right to Counsel and Criminal Proceedings:
   
   1. 
      Warrant—Probable cause determined
      
   2. 
      Arrested
      
   3. 
      * Complaint
      
      1. 
         Some jurisdictions consider this to be a formal charges bc there are charges filed.
         
      2. 
         IF THERE IS A FINDING, THIS IS DEFINITELY WHERE FORMAL CHARGES TAKE PLACE, for SOME jurisdictions.
         
   4. 
      Initial appearance OR Arraignment
      
      1. 
         W/o undue delay
         
      2. 
         They deal with administrative issues
         
      3. 
         Tell the D his rights
         
      4. 
         Ask D questions regarding medication, etc.
         
   5. 
      Gerstein Hearing
      
      1. 
         probable cause hearing is usually combined with the probable cause hearing
         
      2. 
         Must be held within forty eight hours of arrest.
         
      3. 
         This only applies if D is held in custody.
         
      4. 
         If D is taken to jail and is let go, this hearing is not necessary
         
   6. 
      * Preliminary Hearing
      
      1. 
         IF THERE IS A FINDING, THIS IS DEFINITELY WHERE FORMAL CHARGES TAKE PLACE.
         
      2. 
         Ten to thirty days after arrest
         
      3. 
         Probable cause hearing
         
   7. 
      * Grand Jury Proceeding
      
      1. 
         IF THERE IS A FINDING, THIS IS DEFINITELY ALSO WHERE FORMAL CHARGES TAKE PLACE.
         
      2. 
         If they have determined that there is actual charges
         
      3. 
         ANOTHER arraignment
         
         1. 
            This is when the pleas happen
            
         2. 
            If there is a guilty plea, then they go to TRIAL
            

6. 
   Massiah vs. Miranda
   
   1. 
      Massiah, not Miranda, applies when police are trying to obtain information and the suspect is unaware that he is talking to the police.
      
   2. 
      Miranda = right to counsel in custodial interrogation only
      
   3. 
      Massiah = right to counsel whether or not custodial interrogation
      

4. 
   OFFENSE SPECIFIC (6^th Amend. right to counsel)
   
   1. 
      5^th Amend. right to counsel (Miranda) – NOT offense specific
      
      1. 
         after right invoked, 5^th Amend. prevents all questioning
         
      2. 
         Miranda is MUCH broader, it cuts across ALL crimes, you are not allowed to refuse interrogation for any crime.
         
         1. 
            Because 6^th amendment is so narrow, 5^th is much stronger.
            
         2. 
            Attny should tell D to suggest that they want a lawyer for EVERY charge.
            
   2. 
      6^th Amend. right to counsel (Massiah) is offense specific
      
      1. 
         If D makes 6^th Amend. request for counsel for one charge, he must make another request if he is subsequently charged w/ separate, unrelated crime if he desires counsel for second charge.
         
      2. 
         Even though D’s 6^th Amend. right to counsel has attached regarding one charge, he may be questioned w/o counsel concerning an unrelated charge.
         
         1. 
            Illinois v. Perkins (1990) – D in jail on batter charge. B/c police suspected D of unrelated murder, they placed undercover officer in D’s cell. Officer elicited damaging confessions from D re: murder. The interrogation did not violate 6^th since D had not been charged w/ the murder, and it did not violate D’s 5^th Amend. right to counsel under Miranda.
            

3. 
   Test for different offenses – Blockburger
   
   1. 
      Two crimes considered different offenses if each requires proof of an additional element that the crime does not require (Cobb)
      
   2. 
      Two crimes are the same only when proving the elements of the greater will always prove the elements of the lesser.
      

5. 
   6^th Amend. right to counsel is offense specific – Cobb and McNeil
   
   1. 
      D’s invocation of 6^th Amend. right to counsel during a judicial proceeding does not constitute an invocation of his Miranda right to counsel.– McNeil (1991)
      
   2. 
      only applies to the same particular offense; not an invocation of counsel for another offense
      
      1. 
         it cannot be invoked once for all future prosecutions b/c it does not attach until a prosecution is commenced, at or after the initiation of adversarial judicial criminal proceedings, whether by way of formal charge, preliminary hearing, indictment, information or arraignment.
         
      2. 
         Jackson effect of invalidating subsequent waivers in police-initiated interviews is also offense-specific.
         

3. 
   Cobb (2001) – He was arrested for robbery in Omaha, Nebraska. He then was given his Miranda rights. In Milwaukee he requested a lawyer. Then he was given Miranda warnings again a second, third, and fourth times, and then he confessed and changed his story. After asking for the attorney, they were not supposed to interrogate him anymore. HOWEVER, the counsel was with the robbery charge, not the murder charge. Held: Confession admissible b/c 6^th Amendment is crime specific. The right to counsel is chopped up PER crime. If the two crimes are not related, then you have to ask for counsel for BOTH event.
   
   1. 
      Murder and the burglary were very separate from the robbery, so in that case, the Sixth Amendment applied to the robbery, however, the confession regarding the murder was NOT protected bc he only invoked the right to counsel for the FIRST crime, not the second one.
      
   2. 
      Adopted double jeopardy clause of offense specificity for 6^th Amend. Blockberger test for “same offense” in 6^th Amend. context is same as in 5^th Amend. double jeopardy clause. Double jeopardy: can’t be different trial for same offense; it not same offense – second trial okay; if same offense – second trial not okay.
      
   3. 
      Indictment automatically invokes 6^th Amend. right to counsel.
      

5. 
   Review of Interrogations
   
   1. 
      Due process – applies at all times, whether indictment or not
      
      1. 
         Whether the confession is involuntary – totality of circumstances
         
      2. 
         If confession flunks due process it is invalid for all purposes – fruit of the poisonous tree doctrine applies.
         
      3. 
         McNabb-Mallory – confession inadmissible only if involuntary – delay is one factor
         
         1. 
            Congress overturned this rule
            
   2. 
      4^th Amend.
      
   3. 
      5^th Amend.
      
      1. 
         Miranda – risk of harm in custodial interrogation
         
         1. 
            5^th Amend. applies to testimonial communications; applies only to custodial interrogation – very narrow category
            
         2. 
            Custody = deprived of your freedom of movement in a significant way
            
            1. 
               objective test: would a reasonable person in D’s situation that he could not leave in a significant way
               
         3. 
            Interrogation = questioning by law enforcement personnel; does not include voluntary statements, i.e. where D runs up to police and confesses
            
            1. 
               functional equivalent of interrogation = police conduct designed to get an incriminating statement
               
         4. 
            D can waive Miranda warnings – but this is heavy burden
            
         5. 
            Waiver not permanent – can waive today and invoke tomorrow
            
   4. 
      6^th Amend.
      
      1. 
         Escobedo, Massiah – confession may be inadmissible even if voluntary if it was in violation of 6^th Amend. right to counsel
         
      2. 
         6^th Amend. triggered by formal charges – arraignment or indictment
         
      3. 
         D can waive 6^th Amend. right to counsel
         
      4. 
         Once D requests counsel and is entitled to it, questioning must stop until counsel is present or D re-initiates the discussion (Edwards)
         

5. 
   IDENTIFICATION
   

1. 
   Introduction
   
   1. 
      State must prove that D is actually person who committed the crime.
      
   2. 
      Usually this is done by bystander as witness – but many problems w/ witness identification
      
   3. 
      Substantive Bases for Attack – grounds to have ID suppressed in court
      
      1. 
         6^th Amend. right to counsel (Wade)
         
      2. 
         4^th Amend.
         
      3. 
         Due process
         
   4. 
      Does not implicate 5^th Amend.
      
      1. 
         Lineup does not involve compulsion to give evidence “testimonial” in nature
         
      2. 
         So D has no basis in 5^th Amend. privilege against compelled self-incrimination to refuse to participate in one. – Wade
         
      3. 
         Also, D has no right to lineup
         
         1. 
            D not entitled to any particular kind of ID procedure and may not demand a lineup
            
   5. 
      Purpose of ID rules:
      
      1. 
         Ensure that when witness identifies person at trial, she is identifying the person who committed the crime and not merely the person whom she has previously seen at the police station.
         

2. 
   6^th Amend. Right to Counsel in Identifications
   
   1. 
      D has right to presence of attny at any post-charge lineup or showup. – Wade
      
      1. 
         Lineup = witness is asked to pick perpetrator of crime from group of persons
         
      2. 
         Showup = one-to-one confrontation between W and D for purpose of ID
         
      3. 
         Lineup is a critical stage and D entitled to counsel at that time.
         
      4. 
         If D’s rights at line up were compromised, it may mean that the ID was tainted as well.
         
      5. 
         Right attaches only after formal charges brought against D.
         

2. 
   Role of Counsel at Lineup
   
   1. 
      Right is simply to have attny present during lineup so that attny can observe any suggestive aspects of the lineup and bring them out on cross-exam of W.
      
   2. 
      No right to have attny help set up the lineup or demand changes in way it’s conducted etc.
      

3. 
   D does NOT have 6^th Amend. right to counsel at photo identifications. – Ash
   
   1. 
      But, D may have due process claim regarding photo ID
      

4. 
   D does NOT have right to counsel when police take physical evidence from her
   
   1. 
      E.g. handwriting sample or fingerprints, other scientific tests
      

5. 
   Waiver – D may intelligently and voluntarily waive his right to counsel at lineup. – Wade
   
   1. 
      D must know of the right to counsel – must make positive waiver of this right
      
   2. 
      Burden on govt to prove waiver
      
   3. 
      Both D and his counsel should be notified of the impending line up, counsel’s presence is required prior to conduct of line up, absent an intelligent waiver
      

6. 
   Wade (1967) – D indicted for robbery, appointed counsel, then line up after indictment but prior to trial where he was IDed, then in court ID. D trying to suppress the import ID, not the initial ID prior to trial. Held: D had a right to a lawyer at this post-indictment line up.
   
   1. 
      After formal charges applied, the line up is a critical stage and D is entitled to counsel at that time. If D’s rights at line up were compromised, it may mean that the import ID was tainted as well. Intelligent Waiver – D may waive his right to counsel at the line up.
      

7. 
   Pre-trial ID and In-trial ID (Wade)
   
   1. 
      Per se rule = if right to counsel was violated in pre-trial ID, that ID cannot be brought up at trial
      
   2. 
      Defect in earlier pre-trial ID tainted the in-trial ID and made the ID inadmissible
      
   3. 
      In-court ID may also be excluded – totality of circumstances approach
      

3. 
   Due Process Standard
   
   1. 
      D can attack ID as denying due process when
      
      1. 
         ID is unnecessarily suggestive and
         
      2. 
         there is a substantial likelihood of irreparable misidentification. – Stovall
         
   2. 
      Both parts must be met for D to win.
      
      1. 
         General rule = preponderance of the evidence
         
      2. 
         Difficult standard to meet.
         
      3. 
         ID must be shown to have been extremely suggestive.
         
      4. 
         A fundamentally unfair procedure, e.g. when D is known to be black and suspect is only black person in lineup, would violate due process standard.
         

3. 
   Showup at hospital did not D due process when procedure was necessary due to need of an immediate ID, the inability of the identifying victim to come to police station, and possibility that victim might die.
   
   1. 
      Stovall (1967) – It was okay to bring D to hospital room for V to ID him b/c showing D to the V in an immediate hospital confrontation was imperative – it was unknown how long V would live; she had responsibility to ID her attacker, there was need for immediate action and V could not visit the jail b/c of her post-surgery condition, the only feasible procedure was for police to take D to hospital for ID.
      
      1. 
         Wade-Gilbert rule only applied prospectively, to ID procedures conducted after the date of those decisions.
         
      2. 
         For line ups after formal charges, due process and 6^th Amend. right to counsel apply.
         
   2. 
      Post-Stovall decisions
      
      1. 
         even if pre-trial ID was faulty, in-trial ID was okay b/c D had plenty of opportunities to observe it
         

4. 
   No substantial likelihood of misidentification was found in the showing of a single photograph to a police officer 2 days after crime.
   
   1. 
      Manson v. Brathwaite (1977) – Wade does not apply to photo display, and it was before any formal proceedings were brought. D’s due process challenge also failed. After applying Biggers factors below, Court found ID was made in circumstances allowing care and reflection. Glover’s ability to make an accurate ID are not outweighed by the corrupting effect of the challenged ID itself.
      

5. 
   Focus on reliability of the identification testimony when determining the ID’s admissibility. Other factors are to be considered: (Biggers, Manson)
   
   1. 
      opportunity of witness to view criminal at the time of the crime
      
   2. 
      Ws’ degree of attention
      
   3. 
      accuracy of W’s prior description of the criminal
      
   4. 
      W’s level of certainty demonstrated at the confrontation
      
   5. 
      time between the crime and the confrontation
      
   6. 
      weigh these factors against corrupting effect of the suggestive identification itself
      
   7. 
      pre-trial ID – likelihood of misidentification; in-court ID – risk of irreparable misidentification
      

6. 
   Photo ID w/ only 6 photos did not violate DP
   
   1. 
      procedure was necessary b/c perpetrators of serious felony (robbery) were at large, and police had to determine if they were on the right track, and Court found little danger of misidentification. – Simmons (1968)
      

4. 
   Remedy for Unconstitutional ID
   
   1. 
      Remedy is exclusion of in-court ID
      
      1. 
         Unless it has independent source
         
      2. 
         This is severe remedy that is rarely granted.
         

2. 
   Independent Source
   
   1. 
      Witness may make an in-court ID despite the existence of an unconstitutional pretrial ID if the in-court ID has an independent source.
      
   2. 
      Factors court will weigh in determining an I.S.:
      
      1. 
         opportunity to observe D at time of crime
         
      2. 
         ease w/ which the witness can identify the D
         
      3. 
         existence or absence of prior misidentifications
         

3. 
   Wade–Gilbert Rule
   
   1. 
      State is not entitled to an opportunity to show that that testimony had an independent source. Only a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused’s constitutional right to the presence of his counsel at the critical lineup.
      

3. 
   Admissibility of ID evidence should be determined at suppression hearing in absence of jury, but exclusion of jury is not constitutionally required.
   

4. 
   Burden of proof
   
   1. 
      Due Process violation
      
      1. 
         burden on D to show the risk of irreparable misidentification
         

1. 
   6^th Amend.–Wade violation
   
   1. 
      Burden on govt:
      
      1. 
         presence of counsel
         
      2. 
         waiver by D
         
      3. 
         independent source for in-court ID
         
   2. 
      Clear and convincing proof (heavy burden)
      
   3. 
      If violated, govt may not buttress a later courtroom ID of the witness by any reference to the previous ID.
      
   4. 
      The courtroom ID is not admissible at all unless govt can establish by clear and convincing proof that the testimony is not the fruit of the earlier ID made in the absence of D’s counsel.
      
1. 
   RIGHT TO COUNSEL
   

1. 
   Intro.
   
   1. 
      D has right to counsel under 5^th and 6^th Amend.
      
      1. 
         5^th Amend. right applies at all custodial interrogations. (Miranda)
         
      2. 
         6^th Amend. right applies at all critical stages of a prosecution after formal proceedings have begun. (Massiah)
         
      3. 
         D has right to be represented by privately retained counsel or to have counsel appointed for him by the state if he is indigent.
         

2. 
   Stages where right to counsel applicable:
   
   1. 
      Custodial police interrogation (Miranda)
      
   2. 
      Post-indictment interrogation whether custodial or not (Massiah)
      
   3. 
      Preliminary hearings to determine probable cause to prosecute (Coleman v. Ala.)
      
   4. 
      Arraignment (Hamilton v. Ala.)
      
   5. 
      Post-charge lineups (Moore v. Illinois)
      
   6. 
      Guilty plea sentencing (Mempa)
      
   7. 
      Felony trials (Gideon v. Wainwright)
      
   8. 
      Misdemeanor trials when imprisonment is actually imposed or a suspended jail sentence is imposed (Scott v. Illinois, Ala. v. Shelton)
      
   9. 
      Overnight recesses during trial (Geders)
      
   10. 
       Appeals as a matter or right (Douglas)
       
   11. 
       Appeals of guilty pleas and pleas of nolo contendere (Halbert)
       

3. 
   Stages where right to counsel NOT applicable:
   
   1. 
      Blood sampling (Schmerber)
      
   2. 
      Taking of handwriting or voice exemplars (Gilbert)
      
   3. 
      Pre-charge or investigative lineups (Kirby)
      
   4. 
      Photo Ids (Ash)
      
   5. 
      Preliminary hearings to determine PC to detain (Gerstein)
      
   6. 
      Brief recess during D’s testimony at trial (Leeke)
      
   7. 
      Discretionary appeals (Moffitt)
      
   8. 
      Parole and probation revocation proceedings (Gagnon v. Scarpelli)
      
   9. 
      Post-conviction proceedings (e.g. habeas corpus), including petitions by death-row inmates (Finley and Giarratano)
      

2. 
   Gideon v. Wainwright (1963)
   
   1. 
      Pre-Gideon
      
      1. 
         Powell – In capital case, where D is unable to employ counsel, and is incapable adequately of making his own defense b/c of ignorance, feeble-mindedness, illiteracy or the like, 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. (Due process, not 6^th Amend. case b/c 6^th Amend. not yet applicable to states.)
         
      2. 
         Betts (1942) – There was a due process right to appointed counsel at state expense only when the failure to appoint counsel would be offensive to the common fundamental ideas of fairness. Required case by case determination. (Due process, not 6^th Amend. case b/c 6^th Amend. not yet applicable to states.) No 6^th Amend. right to counsel in the states, but in some circumstances, due process may require it. Overruled by Gideon.
         
   2. 
      6^th Amend.’s guarantee of counsel is a fundamental right that is essential to a fair trial.
      
      1. 
         All criminal defendants entitled to counsel
         
      2. 
         States must provide appointed counsel to those defendants who cannot afford an attorney unless the right is competently and intelligently waived.
         
      3. 
         In our adversary system of criminal justice, any person haled into court who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.
         
      4. 
         Gideon sets minimal constitutional rule ö 6^th Amend. right to counsel in felony cases
         

3. 
   Gideon and 6^th Amend. right to counsel applies felony cases and misdemeanors where imprisonment or jail is imposed.
   
   1. 
      Argersinger (1972) – Gideon also applies to misdemeanors in addition to felony cases, but only misdemeanor case when imprisonment or jail is imposed only; if no jail term imposed, there is no 6^th Amend. right to counsel. Still, states (under state law) routinely provide counsel for defendants in misdemeanor charge regardless of the punishment imposed.
      

4. 
   Waiver of 6^th Amend. right to counsel
   
   1. 
      Must be knowing, intelligent, and voluntary
      
   2. 
      Must be positive indication of the waiver
      
   3. 
      Waiver must be on the record
      

5. 
   Misc. Gideon
   
   1. 
      Importance of lawyers in a criminal proceeding – are essential to protect the public’s interest in an orderly society; lawyers are essential to a fair trial
      
   2. 
      Applied 6^th Amend. to the states.
      
   3. 
      Leaves open many questions about right to counsel.
      

6. 
   Remedy for Violation
   
   1. 
      If D was entitled to lawyer at trail, failure to provide counsel results in automatic reversal of the conviction, even without any showing of specific unfairness in proceedings.
      
   2. 
      Erroneous disqualification of privately retained counsel results in automatic reversal. – Gonzalez-Lopez (2006)
      
   3. 
      But, at nontrial proceedings (e.g. post-indictment lineup), harmless error rule applies to deprivation of counsel. – Wade
      

7. 
   If D is in jail and in violation of probation, he is entitled to counsel. – Shelton
   
   1. 
      Courts cannot impose suspended sentences on indigent defendants without providing counsel at trial or finding waiver.
      

3. 
   Self-Representation
   
   1. 
      D has absolute right to represent himself at trial as long as his waiver of the right to counsel is knowing and intelligent. – Faretta
      
      1. 
         6^th Amend. implies a right of self-representation.
         
      2. 
         State may not force a lawyer upon D when he waives his right to counsel and insists upon conducting his own defense.
         
      3. 
         Careful scrutiny of waiver to ensure that D has a rational and factual understanding of the proceeding against him.
         
         1. 
            D must choose self-representation competently and intelligently.
            
         2. 
            D’s technical legal knowledge is not relevant to the determination whether he is competent to waive his right to counsel.
            

2. 
   D need not be found capable of representing himself – D’s ability to represent himself has no bearing on his competence to choose self-representation. – Faretta
   
   1. 
      Although D may conduct his own defense ultimately to his own detriment, his choice must be honored.
      

3. 
   Backup attorney may be appointed and may intervene to limited extent – Wiggins
   
   1. 
      As long as impression of self-representation is not destroyed.
      
   2. 
      2-part standard:
      
      1. 
         Pro se D entitled to preserve actual control over the case he chooses to present to jury
         
      2. 
         Participation by standby counsel without the D’s consent should not be allowed to destroy the jury’s perception that the D is representing himself.
         

4. 
   D has no right to self-representation on appeal. – Martinez (2000)
   

5. 
   Faretta (1975) – D chose to represent himself in state criminal trial for grand theft charges. State denied him this right and forced attny on him. D had represented himself before; had high school education. Initially let him represent himself, but at hearing to determine D’s ability to conduct his own defense where judge asked D about hearsay rule and state law re: jury selection (D appeared to not have much knowledge about the law), judge found D did not make intelligent and knowing waiver and appointed him an attny.
   
   1. 
      D in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. State may not force a lawyer upon D when he waives his right to counsel and insists upon conducting his own defense. 6^th Amend. implies a right of self-representation. D choosing self-representation must do so competently and intelligently.
      
   2. 
      D has right to a lawyer and a right to represent himself, but not a right to both – you can’t have an attorney that helps you with your defense (e.g. D and attorney are co-counsels)
      

6. 
   Wiggins (1984) – Role of standby counsel–2 part standard. Here, Faretta right of self-representation not violated when standby counsel intervened w/o D’s permission over 50 times while D was representing himself – standby counsel’s conduct did not prevent D from conducting his own defense.
   

4. 
   Capacity to Waive Counsel
   
   1. 
      Mental Incompetence
      
      1. 
         Level of mental competence to waive counsel is the same as to stand trial – Godinez v. Moran (1993)
         
      2. 
         Test for competence to stand trial – whether D has:
         
         1. 
            sufficient present ability to consult w/ his lawyer w/ reasonable degree of rational understanding
            
         2. 
            rational and factual understanding of the proceedings against him
            
      3. 
         Same test for D’s capacity to waive counsel
         
         1. 
            If D is competent enough to stand trial, he is competent to waive a lawyer
            
         2. 
            as long as waiver is knowing and voluntary
            

5. 
   Competence of Counsel
   
   1. 
      6^th Amend. right to counsel includes right to effective counsel. – Strickland
      
      1. 
         Effective assistance of counsel is presumed unless the adversarial process is so undermined by counsel’s conduct that the trial cannot be relied upon to have produced a just result.
         
         1. 
            presumption that judge and jury acted in accordance w/ the law
            
      2. 
         Effective assistance of counsel also guaranteed on a first appeal as of right.
         
      3. 
         Ineffective counsel is most commonly raised constitutional claim
         
      4. 
         D seeking to reverse conviction and new trial.
         
      5. 
         A criminal defense lawyer’s job is to protect a right to a fair trial.
         
      6. 
         D must prove that counsel’s assistance was so defective as to require reversal of his conviction or death sentence.
         

2. 
   TEST for Ineffective Counsel
   
   1. 
      D must show: (Strickland)
      
      1. 
         Deficient performance by counsel, and that
         
      2. 
         The deficient performance prejudiced his defense.
         

2. 
   Deficient performance
   
   1. 
      Counsel made errors so serious that he was not functioning as the “counsel” guaranteed D by 6^th Amend.
      
3. 
   Prejudice
   
   1. 
      Counsel’s errors so serious as to deprive D of a fair trial – trial w/ reliable result.
      
   2. 
      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.
      
   3. 
      But for the deficiency, the result of the proceeding would have been different
      
      1. 
         e.g. D would not have been convicted or his sentence would have been shorter.
         
   4. 
      Presumption of prejudice if D shows that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected counsel’s performance.
      

4. 
   Objective Standard
   
   1. 
      Reasonableness of counsel’s conduct under prevailing professional norms
      
   2. 
      Typically can only be shown by specifying particular errors of counsel
      

5. 
   Appellate court standard for reversal of trial court’s conviction.
   

3. 
   Circumstances not constituting ineffective assistance
   
   1. 
      Cannot be based on mere inexperience, lack of time to prepare, gravity of charges, complexity of defenses, or accessibility of witnesses to counsel.
      
   2. 
      Acts or omissions by counsel that court views as trial tactics
      
      1. 
         Ex: No ineffective assistance in capital murder trial to fail to obtain client’s affirmative consent to strategy of going to trial and not challenging guilt (rather than pleading guilty) in hope of having more credibility at sentencing.
         
      2. 
         Ex: No ineffective assistance when appointed counsel refused to argue nonfrivolous issues that attny had decided, in exercise of her judgment, not to present.
         
      3. 
         Ex: No ineffective assistance when attny failed to present mitigating evidence or make closing argument at capital sentencing proceeding when counsel asserted that mitigating evidence had just been presented at trial, D’s mother and other character witnesses would not have been effective and might have revealed harmful info, and closing argument would have allowed rebuttal by ver persuasive prosecutor.
         

4. 
   Strickland (1984) – Attny appointed for D at murder trial. Attny actively pursued pretrial motions and discovery. Cut these efforts short when he began to feel hopeless when finding out that D confessed to the murders. At sentencing, attny did not put on any character witnesses nor request psychiatric exam b/c conversations w/ client gave no indication he had psychological problems. Excluded from this hearing potentially damaging evidence, including D’s rap sheet. D sentenced to death.
   
   1. 
      No ineffective counsel. Trial counsel’s defense, though unsuccessful, was the result of reasonable professional judgment. D’s ineffective counsel claim fails.
      

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