Black-letter propositions
- 01
Police-arranged identification violates due process when unnecessarily suggestive and substantially likely to misidentify under total circumstances.
- 02
Post-charge lineups are critical stages for counsel; photo arrays ordinarily are not.
- 03
The prosecution must disclose material exculpatory and impeachment evidence known to its team regardless of good faith.
- 04
Ineffective assistance ordinarily requires deficient performance and a reasonable probability of a different result.
- 05
Testimonial statements from unavailable witnesses generally require prior cross-examination, subject to forfeiture.
- 06
Serious offenses trigger jury trial; cross-section and race- and sex-neutral selection protections apply.
Use this attack sequence under time
Frame the issue
Identify procedural stage and attached right.
Resolve the next checkpoint
Apply suggestiveness plus reliability to identification.
Resolve the next checkpoint
For disclosure, find favorability, suppression, and materiality.
Resolve the next checkpoint
For counsel, prove performance and prejudice.
Finish the conclusion
For confrontation, classify testimonial character and cross opportunity.
Common wrong turns
- Hearsay admissibility does not itself satisfy confrontation.
- A defendant has no right to jurors of a particular demographic, only lawful selection.
- Arrest or bad faith is not required for a disclosure violation.
Worked example
The prosecution withholds a witness's prior identification of another person in a case turning on identity.
The statement is favorable and potentially material. Suppression violates due process if there is a reasonable probability disclosure would have changed the result.
Practice this topic
The Sixth Amendment rights
The Sixth Amendment says that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district where the crime was committed. The accused has the right to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor and to have the assistance of counsel for his defense.
Cornell describes the Confrontation Clause as giving the accused the opportunity to face the witness and cross-examine, applicable to the states through the Fourteenth Amendment, and designed to prevent conviction on written evidence without the chance to test an accuser's honesty before a jury.
Counsel at critical stages
Cornell says the right to counsel gives a defendant the right to a lawyer even if unable to pay, attaching once adversary judicial proceedings begin. In Moran v. Burbine the Court found no violation where police secured Miranda waivers and interviewed the defendant without telling him his attorney was trying to reach him.
Identification procedures, discovery and jury selection each raise their own doctrines. Start with the Sixth Amendment text and ask which enumerated right the fact pattern implicates.
Frequently asked questions
What is the controlling rule for identification, disclosure, confrontation, jury, and counsel?+
Criminal adjudication requires fair identification, disclosure of material favorable evidence, effective counsel, confrontation of testimonial accusers, and an impartial lawfully selected jury.
How should I analyze identification, disclosure, confrontation, jury, and counsel on the bar exam?+
Identify procedural stage and attached right. Apply suggestiveness plus reliability to identification. For disclosure, find favorability, suppression, and materiality. For counsel, prove performance and prejudice.
What rights does the Sixth Amendment list?+
A speedy and public trial by an impartial jury, notice of the accusation, confrontation, compulsory process and the assistance of counsel.
What does the Confrontation Clause protect?+
The accused's right to be confronted with the witnesses against them, including the opportunity to face and cross-examine them.
Does the Sixth Amendment apply to state prosecutions?+
Yes. Cornell says confrontation applies to the states through the Fourteenth Amendment, and the right to counsel was applied to state felonies in Gideon v. Wainwright.
Is there a right to counsel in every misdemeanor case?+
No. Cornell says for certain misdemeanors there is no guaranteed right to counsel, though the Sixth Amendment covers felony prosecutions.
What is compulsory process?+
The right to have the court's power used to obtain witnesses in the accused's favor, listed in the Sixth Amendment.