Right to counsel: appointment, attachment, ineffective assistance, self-representation, and conflicts

Black-letter propositions

1. 01

   An indigent defendant charged with a felony in a state court has a right to appointed counsel, which is fundamental to a fair trial and applies to the states through the Fourteenth Amendment.

2. 02

   The Sixth Amendment right to counsel attaches at the start of adversary judicial proceedings, and a defendant's initial appearance before a magistrate, where he learns the charge and his liberty is subject to restriction, triggers attachment without a prosecutor being involved.

3. 03

   The Sixth Amendment right does not apply to a police showup after arrest but before any formal charge, preliminary hearing, indictment, information, or arraignment.

4. 04

   After the right has attached, the government violates the Sixth Amendment when it deliberately elicits incriminating statements from the defendant in the absence of his attorney, and those statements may not be used against him at trial.

5. 05

   A claim of ineffective assistance requires the defendant to show that counsel's performance was deficient, meaning it fell below an objective standard of reasonableness, and that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.

6. 06

   Courts presume that counsel's conduct falls within the wide range of reasonable professional assistance, and prejudice means a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

7. 07

   Prejudice is presumed, without inquiry into counsel's actual performance, when the accused is denied counsel at a critical stage or when counsel entirely fails to subject the prosecution's case to meaningful adversarial testing.

8. 08

   A defendant has an independent constitutional right to conduct his own defense without counsel when he voluntarily and intelligently elects to do so.

9. 09

   A trial court may decline a defendant's waiver of conflict-free counsel in a multiple-representation case, because courts have an independent interest in ensuring compliance with ethical standards and the appearance of fairness.

10. 10

    The right to counsel of choice, which a court may limit when a serious conflict of interest exists, is distinct from the right to effective assistance, which applies to appointed and retained counsel.

Use this attack sequence under time

Common wrong turns

• The Sixth Amendment right does not attach at arrest, and it attaches at the initial appearance or another adversary judicial proceeding.
• A prosecutor need not know of the initial appearance for the right to attach.
• Losing a case or making a strategic mistake does not by itself show ineffective assistance, because both deficiency and prejudice must be shown.
• A defendant's waiver of a conflict does not bind the court, which may decline the waiver.

Worked example

A defendant is indicted and released on bail with a lawyer. Without telling him, federal agents get his cooperating co-defendant to wear a hidden transmitter and talk with him about the crime, and the agents use the recordings at trial.

Practice this topic

Appointment and attachment

Gideon v. Wainwright held that the right of an indigent defendant in a criminal trial to have the assistance of counsel is a fundamental right essential to a fair trial, that the conviction of a defendant charged with a noncapital felony without counsel violated the Fourteenth Amendment, and it overruled Betts v. Brady.

Rothgery v. Gillespie County held that a criminal defendant's initial appearance before a magistrate judge, where he learns the charge against him and his liberty is subject to restriction, marks the initiation of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel, and that attachment does not also require that a prosecutor be aware of the proceeding or involved in it. Kirby v. Illinois, in a plurality opinion, concluded that a showup after arrest but before any formal charge, preliminary hearing, indictment, information, or arraignment is not a criminal prosecution at which the accused is entitled to counsel.

Deliberate elicitation

Massiah v. United States held that incriminating statements deliberately elicited by federal agents from a defendant who had been indicted and had retained counsel, in the absence of his attorney and without his knowledge, deprived him of his Sixth Amendment right to counsel and could not be used against him at trial.

Ineffective assistance and presumed prejudice

Strickland v. Washington held that the Sixth Amendment right to counsel is the right to effective assistance and that a convicted defendant claiming ineffectiveness must show that counsel's performance was deficient and that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. The Court said that a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, and that prejudice requires a reasonable probability that, but for counsel's unprofessional errors, the result would have been different.

United States v. Cronic held that the right to effective assistance is the right to require the prosecution's case to survive the crucible of meaningful adversarial testing, and that prejudice is presumed without inquiry into counsel's performance only in narrow circumstances, such as denial of counsel at a critical stage or a complete failure to subject the prosecution's case to meaningful adversarial testing.

Self-representation and conflicts

Faretta v. California held that the Sixth Amendment, applied to the states, guarantees a defendant an independent constitutional right of self-representation when he voluntarily and intelligently elects to proceed without counsel, and that the state courts erred in forcing a state-appointed public defender on the defendant against his will.

Wheat v. United States held that the district court did not err in declining the defendant's waiver of his right to conflict-free counsel and in refusing to allow substitution of attorneys, because courts must protect defendants against counsel's conflicts of interest and have an independent interest in ethical standards and the appearance of fairness, so waivers by the parties do not necessarily cure the problem.

Frequently asked questions