(1) The Sixth Amendment Right to Counsel

Amendment VI
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 wherein the crime shall have been committed, which district shall have been previously ascertained by law, and 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.

When is there a right to counsel? There is a right to counsel for:
* post-indictment line-ups
* psych exam
* after charged
* at arraingment if Defendant req'd to enter plea
* at a preliminary hearing
* at sentencing
* NOT at photo lineups or one man show-up
   NOT at administrative detentions
   NOT at probation revokation - but case-by-case maybe right 2 prong analysis
                    Where there is a timely and colorable claim that
                    1) Def didn't do it, or
                    2) subst reasons which justified or mitigated the viol and make revocation inapproprate and
                        that reasons are complex

Gideon Rule (The current rule): 6th Amendment right to counsel applies to all felony trials in state and fed
Argesinger: if a person is actually incarcerated, that person better have had the right to counsel (even if not a felony).

6th amendment Rt to counsel required unless intelligent and competent waiver; and at all felony trials, misdemenaor trials where actually imprisoned, and for appeal where appeal is a matter of right. So, if a person is on trial for a misdemeanor and there is no prison time, then the person usually does not have a right to an attorney. If prison time is actually imposed, the defendant had better have had a right to counsel.

Douglas case - indigent Def has the right to appointed counsel on appeal where appeal is a matter of right (US ct of appeals); no right to counsel for discretionary appellate review (state supreme court)

Rule: once 6th amend rt to counsel attaches and is invoked any subsequent waivers during custodial interrogation are invalid
of known right or privilege (offense-specific)

6th Amendment Right to Counsel
* attaches at Critical Stages
* is specific for the crime you have been charged with (if police come in to question you about a different crime, you do not have a sixth amendment right to counsel for that different crime just because you invoked your 6th for the first crime).

Under the Sixth Amendment Right to Counsel, once this right to counsel has been invoked clearly, can the police question the defendant on:
Same Crime? No
Different Crime? Yes

Def right to competent psychiatrist for defense:
When?
1) Santiy at time of offense is likely to be significant issue at trial
2) Prosecution at sentencing/penalty phase presents evidence of Def's future dangerousness

Can you waive your Sixth Amendment Right to Counsel? Sure! but once 6th amend rt to counsel attaches and is invoked any subsequent waivers during custodial interrogation are invalid
6th amendment: TEST for WAIVER of 6th amendment rt to counsel:
Intentional Relinquishment of a Known Right or Privilege

(2) The Fifth Amendment "Right to Counsel" under Miranda.

For Custodial Interrogation (see Miranda); Fifth Amendment Right to Counsel must be invoked by the defendant. It does not attach automatically. The defendant/suspect has to clearly say something like "I don't want to be questioned without my lawyer present".

There is actually no "right to counsel" in the Fifth Amendment, but the MIRANDA case ruled that a defendant has the right to an attorney during custodial interrogation to protect his Fifth Amendment privilege against self-incrimination.

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Escobeda Case Bright Line Rule
Once a suspect has invoked his rt to counsel in custodial interrogation, he may not be subjected to further interrogation until counsel has been made available to him unless he himself initiates further communication, exchanges, or conversations w/ the police.

Minnick Case
When counsel is requested, interrogation must cease, and officials may not reinitiate interrogation w/out counsel present, whether or not the accused has consulted with his atty.
    i.e, once defendant invokes rt to counsel, police cannot interrogate unless
            - defendant initiates, or
            - counsel present
bottom line:  police do not have to stop questioning unless clear invocation of the right to counsel for Fifth.

Comparison of Fifth and Sixth Right to Counsel:
 
5th right to counsel
* good for same or different crime (applies to custodial interrogation only)
* Information gained from a violation of Miranda/Fifth right to counsel by
   police can be used to impeach the defendant if he takes the witness stand

6th right to counsel
* good for same crime, follows defendant --> not just good during Custodial Interrogation
* not good for a different crime
* Information gained from a violation of the Sixth Amendment by police can
   be used to impeach the defendant if he takes the   witness stand