How to Analyze 6th Amendment Right to Counsel on a Criminal Procedure Essay
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How to Analyze 6th Amendment Right to Counsel on a Criminal Procedure Essay
SIXTH AMENDMENT RIGHT TO COUNSEL
The 6th Amendment guarantees a criminal defendant “the assistance of counsel for his defense.”
AUTOMATIC ATTACHMENT
Unlike the 5th Amendment right to counsel ( • How to Analyze Police ... ), the 6th Amendment right to counsel AUTOMATICALLY attaches at all critical stages of the prosecution once formal adversarial judicial proceedings have commenced (i.e., a formal charge or indictment).
"Critical Stages"
Critical stages of the prosecution include: a preliminary hearing to determine probable cause to prosecute the defendant, post-indictment lineups/in-person identifications, post-indictment interrogations, all parts of the trial process, plea bargaining process, guilty pleas, sentencing, and appeals as a matter of right.
Critical stages of the prosecution do NOT include: a preliminary hearing to determine probable cause to detain the defendant, pre-charge lineups, taking of fingerprints/DNA samples, discretionary appeals, and post-convictions proceedings (e.g., parole/probation hearings)
VIOLATION OF THE SIXTH AMENDMENT
Once a defendant’s right to counsel has attached, any attempts to deliberately elicit a statement from him in the absence of his attorney violates the 6th Amendment.
OFFENSE-SPECIFIC
However, the 6th Amendment right to counsel is offense-specific; meaning that it only applies to the offense that the defendant has been formally charged with. The police are free to question the defendant about unrelated offenses without his attorney present (expressly or through undercover means).
WAIVER
The 6th Amendment right to counsel is in effect once it automatically attaches UNLESS the defendant voluntarily, knowingly, and intelligently waives the right. The defendant must understand the nature of the right being waived and the consequences of waiving it.
INEFFECTIVE ASSISTANCE OF COUNSEL
In Strickland v. Washington, the Supreme Court has held that part of the 6th Amendment right to counsel is a right to effective assistance of counsel. If a convicted defendant can prove that he had ineffective assistance of counsel at trial, his conviction can be overturned. To prove ineffective assistance, a defendant must show: (1) That his trial lawyer’s performance fell below an objective standard of reasonableness; AND (2) A reasonable probability that the result of the proceeding would have been different BUT FOR his counsel’s unprofessional errors.
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You are messiah for those preparing for BAR. I have not heard anyone explaining complex legal concept in such a simpler manner. You are amazing and your selfless efforts to help BAR students are highly commendable. You are eloquent and great speaker, very clear in mind and words when dissecting the issues while using very simple examples from real life. God Bless You!!!
These videos are not only good for BAR exams, but they are fantastic for general college criminal justice classes. I use them as an extra tool alongside my textbook and lectures. Thanks so much!!
Note from Barbri - United States Supreme Court held that the Sixth Amendment right to a jury trial, applicable to the states through the Fourteenth Amendment, requires a unanimous verdict to support a conviction in both federal and state court. [Ramos v. Louisiana, 590 U.S. ____ (2020)] This case overturned the previous rule that defendants did not have an absolute right to a unanimous verdict-only six-person juries had to be unanimous
These videos are fantastic! I was really struggling with the 5th vs 6th amendment issues and this really helped me nail them down. Wish me luck on my final!
No problem, happy to help - best of luck! 🙏
Thank you. "Honorable" James Barker and the DA office where I live are about to along with the County Police are hopefully going to get just deserts.
Perfect. Realized I was entrapped and my 6th amendment rights were violated.
Thx a lot well organized easy to understand
Intuitive nature. Prevent being owed once you learn why they think you don't deserve the money.
Thank you so much 💯
in·dig·e·nous
adjective
1.
originating or occurring naturally in a particular place; native.
in·di·gent
adjective
poor; needy.
Very nice lecture.
Thank you!
Excellent video. Excellent explination.
Thank you-glad it's helpful for you!
I'm so confused how a civil matter from family court can be turned into a criminal matter, say over delinquent child support, without any guarantee of defensive counsel. How does that work?
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What about specialty areas of law where an attorney should have experience in a certain area of practice. How is that explained in Strickland. You said the Attorney does not have to be a good or the best lawyer. If that is the standard, one would think an attorney would have to be good in a certain specialty area of law.
Thank you, this helped me out a lot in my class!
Awesome, happy to help!
love your videos...you literally saved my last Torts exam. Can you do some property and con law videos? Thanks
Thank you, absolutely! I have one more video left to wrap up Criminal Procedure, then I am going to move on to Constitutional Law. After that, Real Property is next on the docket.
@@studicata Thank you so much!!!
@@studicata omg yes!
Yes, but herein lays another problem to the attachment and the release of assistance of counsel. I am not a BAR attorney, nor shall I ever be. I respect what a BAR attorney does, but it is a rigged game, and everybody that's been around long enough knows what's really going on. I won't go into that here and now.
My friend fired his PD because she was lame and didn't do shit! He asked me on as Assistance of Counsel, as is his right. He petitioned the court for the right to assistance of counsel from friends. They agreed, though weren't very cooperative or nice about it. Now they drag him into court appearances, unannounced 2 days in a row after denying him his bail review hearing. I have no way to get his bail reduction / order for release signed because they won't recognize me as counsel without the BAR code. (see how that works in lex mercantoria?)'
Malicious Prosecution is ready to be pursued, but how does one effectively put themselves on as assistance of counsel in a manner that attaches to the one in custody when you are unable to reach the one in custody because of the blockade set up through BAR attorneys, judges and prosecutors?
U r awesome! Thank you dude, for making these very informative and clearly understood videos. You do a great job in thoroughly covering the subject in great detail, as well as give clear understanding on the method of it's proper application, and effectively address questions. I appreciate you man! I do have 1 question I was hoping you might answer for me. After an arrest by police, and where felony charges have been filed by an information, is a grand jury indictment a constitutional requirement to confirm the validity of the charges and is a prelim hearing or grand jury indictment a waivable right by the defendant?
I have a question, if a defendant is “booked” and held in jail for a crime, does 6th Amen attach?
Nice work
Thank you!
What about custodial interrogations (critical stage) by police at a crime scene or near a crime scene when a suspect is potentially identified by a witness as the person who committed a crime.
...is that hypothetical about an attorney not even reaching out to an alibi witness based on the Adnan Syed case from Serial?
you are the best
I need your help so can this right help a friend I know get out of a crime he did not commit
Why does it read that the attorney must 'zealously' represent the client? To me that means he/she must represent the client as if it is themselves they are defending. A true defender will fight tooth and nail for his client.
You can be zealous but ineffective. You can be effective but not zealous. 6th Amendment does not require one to be a “true defender who fights tooth and nail.”
What if you want a certain lawyer but the trial judge won't let that lawyer represent you.
If a person is considered indigent (cannot afford an attorney), then he or she would be appointed an attorney (i.e., they would not be able to choose the attorney). On the other hand, if a person retains an attorney on their own, I do not see how a trial judge would be able to prevent that attorney from representing their client.
If an undercover cop is questioning a suspect who is being held in prison after being charged with an unrelated crime, doesn't that count as a custodial interrogation?
You mentioned custodial interrogation, so I assume you are referring to Miranda. Miranda does not prohibit undercover questioning. Further, while the Sixth Amendment does NOT allow active undercover questioning, it IS offense specific. So, the Sixth Amendment does not attach to an unrelated crime that the person is suspected of committing, but has not been formally charged with. Hope that helps!!! Also, on a side note, while the Sixth Amendment prohibits active undercover listening under Massiah, it allows passive listening.
Although the Sixth Amendment right to counsel clearly attaches only to charged offenses, the SCOTUS has recognized in other contexts that the definition of an "offense" is not necessarily limited to the four corners of a charging document. Be careful: The test to determine whether there are two different offenses [or] only one is whether each provision requires proof of a fact which the other does not. See, Blockburger v. United States, 284 U. S. 299, 304. The Blockburger test has been applied to delineate the scope of the Fifth Amendment's Double Jeopardy Clause, which prevents multiple or successive prosecutions for the "same offense." See, e.g., Brown v. Ohio, 432 U. S. 161, 164-166. The Court held that there is no constitutional difference between "offense" in the double jeopardy and right-to-counsel contexts. Accordingly, when the Sixth Amendment right to counsel attaches, it encompasses offenses that, even if not formally charged, would be considered the same offense under the Blockburger test.
lol my crim pro exam was a year ago now but thanks anyways@@cascam1
You hit all statements on the nose.