22.2 Pretrial Identification & the Sixth Amendment Right to Counsel

22.2 Pretrial Identification & the Sixth Amendment Right to Counsel

NCBE's outline pairs pretrial identification with the right to counsel because lineups are one of the critical stages at which counsel is required. Identification procedures are also tested separately under due process, which applies whether or not the right to counsel has attached.

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Sixth Amendment Right to Counsel

The Sixth Amendment guarantees the accused the right to legal representation to ensure a fair trial in adversarial criminal proceedings (Gideon v. Wainwright).

1. Attachment of the Right

Unlike the Fifth Amendment Miranda right to counsel—which arises during custodial interrogation and must be affirmatively invoked—the Sixth Amendment right to counsel attaches automatically upon the initiation of formal adversarial judicial proceedings against the defendant.

• Attachment Milestones: Formal indictment, information, preliminary hearing, arraignment, or initial formal charge (Kirby v. Illinois; Brewer v. Williams).
• Arrest Does NOT Attach: An arrest alone, with or without an arrest warrant, does not attach the Sixth Amendment right to counsel.

2. The Offense-Specific Rule (Texas v. Cobb [2001])

The Sixth Amendment right to counsel is offense-specific. It applies only to the specific crime charged (and any uncharged offenses that would be considered the same offense under the Blockburger test).

• Interrogation on Unrelated Crimes: Even after a defendant has been indicted and has retained counsel on a charged offense, police may approach and question the defendant regarding an unrelated, uncharged offense without violating the Sixth Amendment (provided they obtain a valid Miranda waiver) (Texas v. Cobb).

3. Critical Stages

Once attached, the defendant is entitled to counsel at every critical stage of the prosecution where substantial rights may be affected:

• Critical Stages (Counsel Required): Post-indictment interrogations and undercover deliberate elicitations (Massiah v. United States); preliminary hearings; post-charge corporeal lineups and showups (United States v. Wade; Gilbert v. California); arraignment; guilty plea negotiations; trial; sentencing; and first appeal of right.
• Non-Critical Stages (No Right to Counsel): Pre-charge investigatory lineups; photo displays / photo arrays (United States v. Ash); taking of handwriting exemplars, voice exemplars, or blood samples; grand jury proceedings; discretionary appeals; and parole or probation revocation hearings.

4. Ineffective Assistance of Counsel (Strickland v. Washington [1984])

To establish a violation of the Sixth Amendment right to effective assistance of counsel, the defendant must satisfy the rigorous two-pronged Strickland test:

1. Deficient Performance: Counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Judicial scrutiny is highly deferential, indulging a strong presumption that counsel's conduct falls within the wide range of reasonable professional tactical discretion.
2. Prejudice: 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.

• Plea Bargain Application (Missouri v. Frye; Lafler v. Cooper [2012]): Counsel's failure to communicate a favorable formal plea offer, or deficient advice causing a defendant to reject a plea and receive a harsher sentence at trial, satisfies Strickland if the defendant shows a reasonable probability they would have accepted the plea.

5. Right to Self-Representation (Faretta v. California [1975])

A criminal defendant has a constitutional right to proceed pro se (waive counsel and represent themselves). The trial court must ensure on the record that the defendant's waiver of counsel is knowing, voluntary, and intelligent, warning the defendant of the grave dangers and disadvantages of self-representation. A defendant must be mentally competent to stand trial.

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Comparison: Fifth Amendment vs. Sixth Amendment Right to Counsel

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Pretrial Identification

Due Process Limits on Suggestive Procedures

1. Was the procedure unnecessarily suggestive? Examples include showing a witness a single photograph when a lineup could have been arranged, or placing the suspect in a lineup where he is the only person matching the description (Foster v. California, 1969). A one-person showup may be permissible when necessary—for example, when the only witness is hospitalized and may not survive (Stovall v. Denno, 1967).
2. Did police arrange the suggestive circumstances? The due process check applies only to identifications made under suggestive circumstances arranged by law enforcement (Perry v. New Hampshire, 2012).
3. Is the identification nonetheless reliable? Under Neil v. Biggers (1972) and Manson v. Brathwaite (1977), the court weighs the witness's opportunity to view the perpetrator during the crime, the witness's degree of attention, the accuracy of the witness's prior description, the witness's level of certainty, and the time between the crime and the identification. The identification is excluded only if there is a very substantial likelihood of irreparable misidentification.

Counsel at Identifications

Appearing in a lineup or speaking words for identification is not testimonial, so the Fifth Amendment privilege does not apply (Wade).

More on the Right to Counsel

Attachment, Elicitation, and Waiver

• Initial appearance: The right attaches at a criminal defendant's initial appearance before a judicial officer, where he learns the charge and his liberty is subject to restriction, even if no prosecutor is involved (Rothgery v. Gillespie County, 2008).
• Deliberate elicitation: A detective's emotional "Christian burial speech" to a charged defendant during a car ride was deliberate elicitation (Brewer v. Williams, 1977), and so was a paid informant cellmate's active questioning (United States v. Henry, 1980). An informant who merely listens without prompting does not violate the right (Kuhlmann v. Wilson, 1986).
• Waiver: Miranda warnings and a valid waiver suffice to waive the Sixth Amendment right for police interrogation (Patterson v. Illinois, 1988), and police may approach a represented defendant who has not invoked the right (Montejo v. Louisiana, 2009).
• Impeachment: A statement obtained in violation of the Sixth Amendment may be used to impeach a defendant who testifies inconsistently (Kansas v. Ventris, 2009).

Appointment, Choice, and Conflicts

• Indigent defendants: Counsel must be appointed in all felony cases (Gideon v. Wainwright, 1963) and in misdemeanor cases that result in actual imprisonment (Argersinger v. Hamlin, 1972) or a suspended sentence of imprisonment (Alabama v. Shelton, 2002), but not when only a fine is imposed (Scott v. Illinois, 1979). There is a right to appointed counsel on a first appeal as of right (Douglas v. California, 1963) but not on discretionary appeals (Ross v. Moffitt, 1974).
• Counsel of choice: Wrongfully denying a defendant his chosen retained lawyer is structural error requiring reversal without any showing of prejudice (United States v. Gonzalez-Lopez, 2006), and the government may not freeze untainted assets a defendant needs to hire counsel (Luis v. United States, 2016).
• Conflicts: When a defendant shows that his lawyer actively represented conflicting interests that adversely affected performance, prejudice is presumed (Cuyler v. Sullivan, 1980). A trial court must inquire when a defense lawyer timely objects to joint representation (Holloway v. Arkansas, 1978).
• Self-representation limits: A state may require counsel for a defendant who is competent to stand trial but not competent to conduct trial proceedings himself (Indiana v. Edwards, 2008). There is no right to self-representation on appeal (Martinez v. Court of Appeal, 2000).

Applying Strickland

• Guilty pleas: Prejudice means a reasonable probability that, but for counsel's errors, the defendant would have rejected the plea and insisted on going to trial (Hill v. Lockhart, 1985). Counsel must tell a noncitizen client when a plea clearly carries a risk of deportation (Padilla v. Kentucky, 2010), and a defendant for whom avoiding deportation was the determinative issue may show prejudice even if conviction at trial was likely (Lee v. United States, 2017).
• Presumed prejudice: Prejudice is presumed when counsel entirely fails to subject the prosecution's case to meaningful adversarial testing (United States v. Cronic, 1984) or fails to file a notice of appeal the defendant requested, even if the plea agreement contained an appeal waiver (Garza v. Idaho, 2019).
• Autonomy: Defense counsel may not concede the defendant's guilt over the defendant's express objection; doing so is structural error (McCoy v. Louisiana, 2018).