Sixth Amendment to the United States Constitution (PART 2)
In Ohio v. Roberts,166 the Court explained that it had construed the clause “in two separate ways to restrict the range of admissible hearsay.” First, there is a rule of “necessity,” under which in the usual case “the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.” Second, “once a witness is shown to be unavailable . . . , the Clause countenances only hearsay marked with such trustworthiness that ‘there is no material departure from the reason of the general rule.”’167 That is, if the hearsay declarant is not present for cross–examination at trial, the “statement is admissible only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.”168
Roberts was narrowed in United States v. Inadi,169 holding that the rule of “necessity” is confined to use of testimony from a prior judicial proceeding, and is inapplicable to co–conspirators’ out– of–court statements. The latter—at least those “made while the conspiracy is in progress”—have “independent evidentiary significance of [their] own”; hence in–court testimony is not a necessary or valid substitute.170 Similarly, evidence embraced within such firmly rooted exceptions to the hearsay rule as those for spontaneous declarations and statements made for medical treatment” is not barred from trial by the Confrontation Clause.171 Particularized guarantees of trustworthiness inherent in the circumstances under which a statement is made must be shown for admission of other hearsay evidence not covered by a “firmly rooted exception;” evidence tending to corroborate the truthfulness of a statement may not be relied upon as a bootstrap.172 [p.1427]
Contrasting approaches to the Confrontation Clause were taken by the Court in two cases involving state efforts to protect child sex crime victims from trauma while testifying. In Coy v. Iowa,173 the Court held that the right of confrontation is violated by a procedure, authorized by statute, placing a one–way screen between complaining child witnesses and the defendant, thereby sparing the witnesses from viewing the defendant. This conclusion was reached even though the witnesses could be viewed by the defendant’s counsel and by the judge and jury, even though the right of cross–examination was in no way limited, and even though the state asserted a strong interest in protecting child sex–abuse victims from further trauma.174 The Court’s opinion by Justice Scalia declared that a defendant’s right during his trial to face–to–face confrontation with his accusers derives from “the irreducible literal meaning of the clause,” and traces “to the beginnings of Western legal culture.”175 Squarely rejecting the Wigmore view “that the only essential interest preserved by the right was cross–examination,176 the Court emphasized the importance of face– to–face confrontation in eliciting truthful testimony.
Coy’s interpretation of the Clause, though not its result, was rejected in Maryland v. Craig.177 In Craig the Court upheld Maryland’s use of one–way, closed circuit television to protect a child witness in a sex crime from viewing the defendant. As in Coy, procedural protections other than confrontation were afforded: the child witness must testify under oath, is subject to cross examination, and is viewed by the judge, jury, and defendant. The critical factual difference between the two cases was that Maryland required a case–specific finding that the child witness would be traumatized by presence of the defendant, while the Iowa procedures struck down in Coy rested on a statutory presumption of trauma. But the difference in approach is explained by the fact that Justice O’Connor’s views, expressed in a concurring opinion in Coy, became the opinion of the Court in Craig.178 Beginning with the proposition[p.1428] that the Confrontation Clause does not, as evidenced by hearsay exceptions, grant an absolute right to face–to–face confrontation, the Court in Craig described the Clause as “reflect[ing] a preference for face–to–face confrontation.”179 This preference can be overcome “only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.”180 Relying on the traditional and “transcendent” state interest in protecting the welfare of children, on the significant number of state laws designed to protect child witnesses, and on “the growing body of academic literature documenting the psychological trauma suffered by child abuse victims,”181 the Court found a state interest sufficiently important to outweigh a defendant’s right to face–to–face confrontation. Reliability of the testimony was assured by the “rigorous adversarial testing [that] preserves the essence of effective confrontation.”182 All of this, of course, would have led to a different result in Coy as well, but Coy was distinguished with the caveat that “[t]he requisite finding of necessity must of course be a case–specific one;” Maryland’s required finding that a child witness would suffer “serious emotional distress” if not protected was clearly adequate for this purpose.183
In another case involving child sex crime victims, the Court held that there is no right of face–to–face confrontation at an in– chambers hearing to determine the competency of a child victim to testify, since the defendant’s attorney participated in the hearing, and since the procedures allowed “full and effective” opportunity to cross–examine the witness at trial and request reconsideration of the competency ruling.184 And there is no absolute right to confront witnesses with relevant evidence impeaching those witnesses; failure to comply with a rape shield law’s notice requirement can validly preclude introduction of evidence relating to a witness’s prior sexual history.185
RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS
The provision requires, of course, that the defendant be afforded legal process to compel witnesses to appear,186 but another apparent purpose of the provision was to make inapplicable in federal trials the common–law rule that in cases of treason or felony the accused was not allowed to introduce witnesses in his defense.187 “The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law,” applicable to states by way of the Fourteenth Amendment, and the right is violated by a state law providing that coparticipants in the same crime could not testify for one another.188
The right to present witnesses is not absolute, however; a court may refuse to allow a defense witness to testify when the court finds that defendant’s counsel willfully failed to identify the witness in a pretrial discovery request and thereby attempted to gain a tactical advantage.189
In Pennsylvania v. Ritchie, the Court indicated that requests to compel the government to reveal the identity of witnesses or produce exculpatory evidence should be evaluated under due process rather than compulsory process analysis, adding that “compulsory process provides no greater protections in this area than due process.”190
RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS
Development of an Absolute Right to Counsel at Trial
Neither in the Congress which proposed what became the Sixth Amendment guarantee that the accused is to have the assistance of counsel nor in the state ratifying conventions is there anyindication[p.1430] of the understanding associated with the language employed. The development of the common–law principle in England had denied to anyone charged with a felony the right to retain counsel, while the right was afforded in misdemeanor cases, a rule ameliorated in practice, however, by the judicial practice of allowing counsel to argue points of law and then generously interpreting the limits of “legal questions.” The colonial and early state practice in this country was varied, ranging from the existent English practice to appointment of counsel in a few States where needed counsel could not be retained.191Contemporaneously with the proposal and ratification of the Sixth Amendment, Congress enacted two statutory provisions which seemed to indicate an understanding that the guarantee was limited to assuring that a person wishing and able to afford counsel would not be denied that right.192It was not until the 1930’s that the Supreme Court began expanding the clause to its present scope.
Powell v. Alabama.—The expansion began in Powell v. Alabama,193in which the Court set aside the convictions of eight black youths sentenced to death in a hastily carried–out trial without benefit of counsel. Due process, Justice Sutherland said for the Court, always requires the observance of certain fundamental personal rights associated with a hearing, and “the right to the aid of counsel is of this fundamental character.” This observation was about the right to retain counsel of one’s choice and at one’s expense, and included an eloquent statement of the necessity of counsel. “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crimes, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent eviden[p.]the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”194
The failure to afford the defendants an opportunity to retain counsel violated due process, but the Court acknowledged that as indigents the youths could not have retained counsel. Therefore, the Court concluded, under the circumstances—“the ignorance and illiteracy of the defendants, their youth, the circumstances of public hostility, the imprisonment and the close surveillance of the defendants by the military forces, the fact that their friends and families were all in other states and communication with them necessarily difficult, and above all that they stood in deadly peril of their lives”—“the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the Fourteenth Amendment.” The holding was narrow. “[I]n a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy,195
Johnson v. Zerbst.—Next step in the expansion came in Johnson v. Zerbst,196in which the Court announced an absolute rule requiring appointment of counsel for federal criminal defendants who could not afford to retain a lawyer. The right to assistance of counsel, Justice Black wrote for the Court, “is necessary to insure fundamental human rights of life and liberty.” Without stopping to distinguish between the right to retain counsel and the right to have counsel provided if the defendant cannot afford to hire one, the Justice quoted Justice Sutherland’s invocation of the necessity of legal counsel for even the intelligent and educated layman and said: “The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.”197Any waiver, the Court ruled, must be by the intelligent choice of the defendant, will not be presumed from[p.1432]a silent record, and must be determined by the trial court before proceeding in the absence of counsel.198
Protection of the Right to Retained Counsel.—The Sixth Amendment has also been held to protect absolutely the right of a defendant to retain counsel of his choice and to be represented in the fullest measure by the person of his choice. Thus, in Chandler v. Fretag,218when a defendant appearing to plead guilty on a house– breaking charge was orally advised for the first time that, because of three prior convictions for felonies, he would be tried also as an habitual criminal and if convicted would be sentenced to life imprisonment, the court’s denial of his request for a continuance in order to consult an attorney was a violation of his Fourteenth Amendment due process rights. “Regardless of whether petitioner would have been entitled to the appointment of counsel, his right to be heard through his own counsel was unqualified. . . . A necessary corollary is that a defendant must be given a reasonable opportunity to employ and consult with counsel; otherwise, the right to be heard by counsel would be of little worth.”219But the right to retain counsel of choice does not bar operation of forfeiture provisions, even if the result is to deny to a defendant the wherewithal to employ counsel. In Caplin & Drysdale v. United States,220the Court upheld a federal statute requiring forfeiture to[p.1436]the government of property and proceeds derived from drug–related crimes constituting a “continuing criminal enterprise,”221even though a portion of the forfeited assets had been used to retain defense counsel. While a defendant may spend his own money to employ counsel, the Court declared, “[a] defendant has no Sixth Amendment right to spend another person’s money for services rendered by an attorney, even if those funds are the only way that defendant will be able to retain the attorney of his choice.”222Because the statute vests title to the forfeitable assets in the United States at the time of the criminal act,223the defendant has no right to give them to a “third party” even if the purpose is to exercise a constitutionally protected right.224
Whenever defense counsel is representing two or more defendants and asserts in timely fashion to the trial judge that because of possible conflicts of interest between or among his clients he is unable to render effective assistance, the judge must examine the claim carefully, and unless he finds the risk too remote he must permit or appoint separate counsel.225Subsequently, the Court elaborated upon this principle and extended it.226First, the Sixth Amendment right to counsel applies to defendants who retain private counsel as well as to defendants served by appointed counsel. Second, judges are not automatically required to initiate an inquiry into the propriety of multiple representation, being able to assume in the absence of undefined “special circumstances” that no conflict exists. Third, to establish a violation, a defendant must show an “actual conflict of interest which adversely affected his lawyer’s performance.” Once it is established that a conflict affected the lawyer’s action, however, prejudice need not be proved.227
“[T]he right to the assistance of counsel has been understood to mean that there can be no restrictions upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary factfinding process that has been[p.1437]constitutionalized in the Sixth and Fourteenth Amendments.”228So saying, the Court invalidated a statute empowering every judge in a nonjury criminal trial to deny the parties the right to make a final summation before rendition of judgment which had been applied in the specific case to prevent defendant’s counsel from making a summation. The opportunity to participate fully and fairly in the adversary factfinding process includes counsel’s right to make a closing argument. And, in Geders v. United States,229the Court held that a trial judge’s order preventing defendant from consulting his counsel during a 17–hour overnight recess between his direct and cross–examination, in order to prevent tailoring of testimony or “coaching,” deprived defendant of his right to assistance of counsel and was invalid.230Other direct and indirect restraints upon counsel and his discretion have been found to be in violation of the Amendment.231Governmental investigative agents may interfere as well with the relationship of defense and counsel.232
Effective Assistance of Counsel.—“[T]he right to counsel is the right to the effective assistance of counsel.”233From the beginning of the cases holding that counsel must be appointed for defendants unable to afford to retain a lawyer, the Court has indicated that appointment must be made in a manner that affords “effective aid in the preparation and trial of the case.”234Of course, the government must not interfere with representation, either through the manner of appointment or through the imposition of restrictions upon appointed or retained counsel that would impede his ability fairly to provide a defense,235but the Sixth Amendment[p.1438]goes further than that. “The right to counsel prevents the States from conducting trials at which persons who face incarceration must defend themselves without adequate legal assistance.”236That is, a criminal trial initiated and conducted by government is state action which may be so fundamentally unfair that no conviction obtained thereby may be allowed to stand, irrespective of the possible fact that government did nothing itself to bring about the unfairness. Thus, ineffective assistance provided by retained counsel provides a basis for finding a Sixth Amendment denial in a trial.237
The trial judge must not only refrain from creating a situation of ineffective assistance, but may well be obligated under certain circumstances to inquire whether defendant’s counsel, because of a possible conflict of interest or otherwise, is rendering or may render ineffective assistance.238A much more difficult issue is presented when a defendant on appeal or in a collateral proceeding alleges that his counsel was incompetent or was not competent enough to provide effective assistance. While the Court touched on the question in 1970,239it was not until 1984, in Strickland v. Washington,240that the Court articulated a general test for ineffective assistance of counsel in criminal trials and in capital sentencing proceedings.241
There are two components to the test: deficient attorney performance and resulting prejudice to the defense so serious as to bring the outcome of the proceeding into question. Although the gauge of effective attorney performance is an objective standard of reasonableness, the Court concluded that “[j]udicial scrutiny of counsel’s performance must be highly deferential.” Strategic choices made after thorough investigation of relevant law and facts are “virtually unchallengeable,” as are “reasonable” decisions making investigation unnecessary.242In order to establish prejudice resulting from attorney error, the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”243In Strickland, neither part of the test was satisfied. The attorney’s decision to forego character and psychological evidence in the capital sentencing proceeding in order to avoid evidence of the defendant’s criminal history was deemed “the result of reasonable professional judgment,” and prejudice could not be shown because “the overwhelming aggravating factors” outweighed whatever evidence of good character could have been presented.244In Hill v. Lockhart,245the Court applied the Strickland test to attorney decisions in plea bargaining, holding that a defendant must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty.
Supplement: [P. 1439, delete last sentence at end of first full paragraph on page and add the following:]
In Lockhart v. Fretwell,9the Court refined the Strickland test to require that not only would a different trial result be probable because of attorney performance, but that the trial result which did occur was fundamentally unfair or unreliable.10
There are times when prejudice may be presumed, i.e. there can be “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.”246These situations include actual or constructive denial of counsel, and denial of such basics as the right to effective cross–examination. However, “[a]part from circumstances of that magnitude[p.1440]. . . there is generally no basis for finding a Sixth Amendment violation unless the accused can show [prejudice].”247
Self–Representation.—The Court has held that the Sixth Amendment, in addition to guaranteeing the right to retained or appointed counsel, also guarantees a defendant the right to represent himself.248It is a right the defendant must adopt knowingly and intelligently; under some circumstances the trial judge may deny the authority to exercise it, as when the defendant simply lacks the competence to make a knowing or intelligent waiver of counsel or when his self–representation is so disruptive of orderly procedures that the judge may curtail it.
Supplement: [P. 1440, add to text at end of first paragraph of section:]
The right applies only at trial; there is no constitutional right to self–representation on direct appeal from a criminal conviction.11
The essential elements of self–representation were spelled out in McKaskle v. Wiggins,249a case involving the self–represented defendant’s rights vis–a-vis “standby counsel” appointed by the trial court. The “core of the Faretta right” is that the defendant “is entitled to preserve actual control over the case he chooses to present to the jury,” and consequently, standby counsel’s participation “should not be allowed to destroy the jury’s perception that the defendant is representing himself.”250But participation of standby counsel even in the jury’s presence and over the defendant’s objection does not violate the defendant’s Sixth Amendment rights when serving the basic purpose of aiding the defendant in complying with routine courtroom procedures and protocols and thereby relieving the trial judge of these tasks.251
Right to Assistance of Counsel in Nontrial Situations
Judicial Proceedings Before Trial.—Dicta in Powell v. Alabama252 indicated that “during perhaps the most critical period of the proceedings . . . that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing[p.1441] investigation and preparation [are] vitally important, the defendants . . . [are] as much entitled to such aid [of counsel] during that period as at the trial itself.” This language has gradually been expanded upon and the Court has developed a concept of “a critical stage in a criminal proceeding” as indicating when the defendant must be represented by counsel. Thus, in Hamilton v. Alabama,253 the Court noted that arraignment under state law was a “critical stage” because the defense of insanity had to be pleaded then or lost, pleas in abatement had to be made then, and motions to quash on the ground of racial exclusion of grand jurors or that the grand jury was improperly drawn had to be made then. White v. Maryland254 set aside a conviction obtained at a trial at which defendant’s plea of guilty, entered at a preliminary hearing where he was without counsel, was introduced as evidence against him at trial. Finally in Coleman v. Alabama,255 the Court denominated a preliminary hearing as a “critical stage” necessitating counsel even though the only functions of the hearing were to determine probable cause to warrant presenting the case to a grand jury and to fix bail; no defense was required to be presented at that point and nothing occurring at the hearing could be used against the defendant at trial. The Court hypothesized that a lawyer might by skilled examination and cross–examination expose weaknesses in the prosecution’s case and thereby save the defendant from being bound over, and could in any event preserve for use in cross–examination at trial and impeachment purposes testimony he could elicit at the hearing; he could discover as much as possible of the prosecution’s case against defendant for better trial preparation; and he could influence the court in such matters as bail and psychiatric examination. The result seems to be that reached in pre–Gideon cases in which a defendant was entitled to counsel if a lawyer might have made a dif256
Custodial Interrogation.—At first, the Court followed the rule of “fundamental fairness,” assessing whether under all the circumstances a defendant was so prejudiced by the denial of access[p.1442]to counsel that his subsequent trial was tainted.257It was held in Spano v. New York258that under the totality of circumstances a confession obtained in a post–indictment interrogation was involuntary, and four Justices wished to place the holding solely on the basis that post–indictment interrogation in the absence of defendant’s lawyer was a denial of his right to assistance of counsel. That holding was made in Massiah v. United States,259in which federal officers caused an informer to elicit from the already–indicted defendant, who was represented by a lawyer, incriminating admissions which were secretly overheard over a broadcasting unit. Then, in Escobedo v. Illinois,260the Court held that preindictment interrogation was a violation of the Sixth Amendment. But Miranda v. Arizona261switched from reliance on the Sixth Amendment to the Fifth Amendment’s self–incrimination clause, although that case still placed great emphasis upon police warnings with regard to counsel and foreclosure of interrogation in the absence of counsel without a valid waiver by defendant.
Massiah was reaffirmed and in some respects expanded by the Court. Thus, in Brewer v. Williams,262the right to counsel was found violated when police elicited from defendant incriminating admissions not through formal questioning but rather through a series of conversational openings designed to play on the defendant’s known weakness. The police conduct occurred in the post–arraignment period in the absence of defense counsel and despite assurances to the attorney that defendant would not be questioned in his absence. United States v. Henry263held that government agents violated the Sixth Amendment right to counsel when they contacted the cellmate of an indicted defendant and promised him payment under a contingent fee arrangement if he would “pay attention” to incriminating remarks initiated by the defendant and others. The Court concluded that even if the government agents did not intend the informant to take affirmative steps to elicit incrimi[p.1443]nating statements from the defendant in the absence of counsel, the agents must have known that result would follow.
The Court has extended the Edwards v. Arizona264rule protecting in–custody requests for counsel to post–arraignment situations where the right derives from the Sixth Amendment rather than the Fifth. Thus, the Court held in Michigan v. Jackson, “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police–initiated interrogation is invalid.”265The Court concluded that “the reasons for prohibiting the interrogation of an uncounseled prisoner who has asked for the help of a lawyer are even stronger after he has been formally charged with an offense than before.”266The protection, however, is not as broad under the Sixth Amendment as it is under the Fifth. While Edwards has been extended to bar custodial questioning stemming from a separate investigation as well as questioning relating to the crime for which the suspect was arrested,267this extension does not apply for purposes of the Sixth Amendment right to counsel. The Sixth Amendment right is “offense–specific,” and so also is “its Michigan v. Jackson effect of invalidating subsequent waivers in police–initiated interviews.”268Therefore, while a defendant who has invoked his Sixth Amendment right to counsel with respect to the offense for which he is being prosecuted may not waive that right, he may waive his Miranda–based right not to be interrogated about unrelated and uncharged offenses.
The remedy for violation of the Sixth Amendment rule is exclusion from evidence of statements so obtained.269And, while the basis for the Sixth Amendment exclusionary rule—to protect the right to a fair trial—differs from that of the Fourth Amendment rule—to deter illegal police conduct—exceptions to the Fourth Amendment’s exclusionary rule can apply as well to the Sixth. In Nix v. Williams,270the Court held the “inevitable discovery” exception applicable to defeat exclusion of evidence obtained as a result of an interrogation violating the accused’s Sixth Amendment rights.[p.1444]“Exclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial.”271Also, an exception to the Sixth Amendment exclusionary rule has been recognized for the purpose of impeaching the defendant’s trial testimony.272
Lineups and Other Identification Situations.—The concept of the “critical stage” was again expanded and its rationale formulated in United States v. Wade,273which, with Gilbert v. California,274held that lineups are a critical stage and that in–court identification of defendants based on out–of–court lineups or show–ups without the presence of defendant’s counsel is inadmissible. The Sixth Amendment guarantee, said Justice Brennan, was intended to do away with the common–law limitation of assistance of counsel to matters of law, excluding matters of fact. The abolition of the fact–law distinction took on new importance due to the changes in investigation and prosecution since adoption of the Sixth Amendment. “When the Bill of Rights was adopted there were no organized police forces as we know them today. The accused confronted the prosecutor and the witnesses against him and the evidence was marshalled, largely at the trial itself. In contrast, today’s law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused’s fate and reduce the trial itself to a mere formality. In recognition of these reali275
“It is central to [the principle of Powell v. Alabama] that in addition to counsel’s presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.”276Counsel’s presence at a lineup is constitutionally necessary because the lineup stage is filled with numerous possibilities for errors, both inadvertent and intentional, which cannot adequately be discovered[p.1445]and remedied at trial.277However, because there was less certainty and frequency of possible injustice at this stage, the Court held that the two cases were to be given prospective effect only; more egregious instances, where identification had been based upon lineups conducted in a manner that was unnecessarily suggestive and conducive to irreparable mistaken identification, could be invalidated under the due process clause.278The Wade–Gilbert rule is inapplicable to other methods of obtaining identification and other evidentiary material relating to the defendant, such as blood samples, handwriting exemplars, and the like, because there is minimal risk that the absence of counsel might derogate from the defendant’s right to a fair trial.279
In United States v. Ash,280the Court redefined and modified its “critical stage” analysis. According to the Court, the “core purpose” of the guarantee of counsel is to assure assistance at trial “when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor.” But assistance would be less than meaningful in the light of developments in criminal investigation and procedure if it were limited to the formal trial itself; therefore, counsel is compelled at “pretrial events that might appropriately be considered to be parts of the trial itself. At these newly emerging and significant events, the accused was confronted, just as at trial, by the procedural system, or by his expert adversary, or by both.”281Therefore, unless at the pretrial stage there was involved the physical presence of the accused at a trial–like confrontation at which the accused requires the guiding[p.1446]hand of counsel, the Sixth Amendment does not guarantee the assistance of counsel.
Since the defendant was not present when witnesses to the crime viewed photographs of possible guilty parties, since therefore there was no trial–like confrontation, and since the possibilities of abuse in a photographic display are discoverable and reconstructable at trial by examination of witnesses, an indicted defendant is not entitled to have his counsel present at such a display.282
Both Wade and Gilbert had already been indicted and counsel had been appointed to represent them when their lineups were conducted, a fact noted in the opinions and in subsequent ones,283but the cases in which the rulings were denied retroactive application involved preindictment lineups.284Nevertheless, in Kirby v. Illinois285the Court held that no right to counsel existed with respect to lineups that precede some formal act of charging a suspect. The Sixth Amendment does not become operative, explained Justice Stewart’s plurality opinion, until “the initiation of adversary judicial criminal proceedings— whether by way of formal charge, preliminary hearings, indictment, information, or arraignment. . . . The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the Government has committed itself to prosecute, and only then that the adverse positions of Government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the ‘criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendm286The[p.1447]Court’s distinguishing of the underlying basis for Miranda v. Arizona287left that case basically unaffected by Kirby, but it appears that Escobedo v. Illinois,288and perhaps other cases, is greatly restricted thereby.
Post–Conviction Proceedings.—Counsel is required at the sentencing stage,289 and the Court has held that where sentencing was deferred after conviction and the defendant was placed on probation, he must be afforded counsel at a hearing on revocation of probation and imposition of the deferred sentence.290 Beyond this stage, however, it would appear that the issue of counsel at hearings on the granting of parole or probation, the revocation of parole which has been imposed following sentencing, and prison disciplinary hearings will be determined according to due process and equal protection standards rather than by further expansion of the Sixth Amendment.291
Noncriminal and Investigatory Proceedings.—Commitment proceedings which lead to the imposition of essentially criminal punishment are subject to the due process clause and require the assistance of counsel.292 A state administrative investigation by a fire marshal inquiring into the causes of a fire was held not to be a criminal proceeding and hence, despite the fact that the petitioners had been committed to jail for noncooperation, not the type of hearing at which counsel was requisite.293 Another decision refused to extend the right to counsel to investigative proceedings antedating a criminal prosecution, and sustained the contempt conviction of private detectives who refused to testify before a judge[p.1448] authorized to conduct a non–prosecutorial, fact–finding inquiry akin to a grand jury proceeding, and who based their refusal on the ground that their counsel were required to remain outside the hearing room.294
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