The Right to Effective Assistance of Counsel

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We have moved from the Fourth Amendment protections against unreasonable searches and seizures through the Fifth Amendment privilege against self-incrimination. In this section, we will discuss the rights of a defendant at the trial itself.

Among the rights of a defendant at trial is the right to have the effective assistance of counsel. While the Fifth Amendment gives rise to the right to have counsel present during questioning, the rights discussed in this chapter involving counsel stem from the Sixth Amendment. One fundamental difference between the Fifth Amendment right to counsel and the Sixth Amendment right is that the Sixth Amendment explicitly provides that for “all criminal prosecutions, the accused shall enjoy the right…to have the assistance of counsel for his defense.”

The Sixth Amendment right to counsel applies to the states through the Fourteenth Amendment's "due process" clause.

The Fifth Amendment right to counsel applies only during a custodial interrogation. The Sixth Amendment right is far broader and exists in the following situations:

1. Custodial interrogations and all post-indictment interrogations
2. Preliminary hearings to determine probable cause to prosecute (e.g., grand jury hearings) and post-charge lineups
3. Arraignments
4. Entering of guilty pleas and sentencing
5. Felony trials, and misdemeanor trials where actual imprisonment is imposed
6. All juvenile delinquency hearings
7. Appeals as a matter of right

EXAMPLE (1): Joanie is arrested for loitering at a local hamburger joint and is brought to the station house for questioning. Both the Fifth Amendment and Sixth Amendment give her the right to counsel during her in-custody interrogation.

EXAMPLE (2): Following the interrogation, Joanie is charged with loitering, a misdemeanor. She is brought to court the following morning for arraignment. The Sixth Amendment gives her the right to counsel during the proceeding.

EXAMPLE (3): After entering her “Not Guilty” plea, Joanie is brought back to the station house and held for further questioning. Her right to have counsel present during questioning again has two sources – the Fifth and Sixth Amendments.

EXAMPLE (4): Joanie asks for an attorney to be appointed for her during her trial, as she is indigent and cannot afford to pay attorney’s fees. Judge Chachi refuses her request. At the end of the trial she is sentenced to six days in prison. The refusal to appoint an attorney is reversible error, and Joanie will likely win an appeal, during which she will be appointed an attorney.

EXAMPLE (5): Imagine that instead of six days jail time, Judge Chachi had sentenced Joanie to pay a $1000 fine and perform 100 hours of community service. Joanie cannot appeal based on her Sixth Amendment right to counsel because the right exists for misdemeanors only if jail time is imposed as a penalty. For that reason, whether one’s Sixth Amendment right to counsel is violated by refusal to appoint counsel during a misdemeanor trial cannot be determined until sentencing is complete.

EXAMPLE (6): Suddenly it comes to light that Joanie is a juvenile. Rather than hold a regular trial, the judge decides that a juvenile delinquency hearing would be more appropriate. The maximum penalty at the hearing is 10 hours community service, and jail time is not a possibility. Despite the impossibility of jail time and the non-felonious nature of her crime, Joanie has a Sixth Amendment right to counsel at the hearing.

As you can see, determining whether the Sixth Amendment right to counsel applies is not as simple as determining whether the Fifth Amendment right to counsel applies. In fact, in some cases, as in the above example, the applicability of the Sixth Amendment right cannot be ascertained until the trial is concluded and sentence is handed down.

Another difference is that the Fifth Amendment right to counsel is not offense specific, and once it is asserted, it means that all questioning must stop. The Sixth Amendment right to counsel, on the other hand, is offense specific (it only applies to the offense for which the hearing is taking place). In Blockburger v. United States, 284 U.S. 299 (1932), the Supreme Court established the test for determining what constitutes separate offenses. That case held that if each crime requires proving an element that is not required to make out the other crime, then they are different offenses.

EXAMPLE (1): Rich, a resident of the state of Pleasantville, is charged with robbery and also with larceny, after taking money from the local Quicky Mart attendant. The crime of robbery is defined in Pleasantville as “committing assault in the process of committing a larceny”. Because making out the elements of the crime of larceny in this case does not require making out any elements not already required to prove robbery, they are considered the “same offense” for Sixth Amendment purposes. It is true that proving robbery entails something more than proving larceny, i.e., proving the elements of assault. However, EACH offense does not require an element not required for the other. Thus, they are not separate offenses for our purposes here. Larceny would be called a “lesser included offense” in this case.

EXAMPLE (2): Rich is brought to the courthouse and is waiting in the courthouse holding cell for his arraignment on the robbery and larceny charges. One of the guards approaches him and Mirandizes him (which Rich thinks is awfully odd at this point in time). The guard then asks Rich about a rape that took place just before the Quicky Mart robbery. Rich confesses to the rape. Because he is not in custody for that crime, the Sixth Amendment right to counsel does not apply to questioning regarding the separate offense. Furthermore, because he was properly Mirandized, there are no Fifth Amendment concerns. Rich will be back in court tomorrow for another arraignment.

Another ramification of this "separate offense" test involves the "double jeopardy" clause of the Fifth Amendment. Under the Fifth Amendment's clause that states, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb," a person cannot be tried twice for the "same offense." The Blockburger test, that comes from the above referenced case, Blockburger v. United States, provides the test by which to determine whether or not a person can be tried twice for separate crimes that come from the same act or series of acts.

EXAMPLE: In the above example, Rich is tried on the charge of robbery and acquitted. Later, the government wants to put Rich on trial for larceny for the same incident. They cannot do so, as, under Blockburger, the larceny and the robbery are not considered separate offenses.

One further issue remains regarding this initial analysis of the Sixth Amendment right to counsel. Although not found in the Sixth Amendment itself, the right to effective assistance of counsel has been inferred. Convicts have clogged the courts for years appealing convictions by claiming that the counsel provided to them as indigents was ineffective. After all, the argument goes, if their counsel was so effective how did they get convicted? Obviously, this cannot be the test to determine whether counsel was effective. What then constitutes effective counsel?

Legal counsel will not be found to be ineffective simply because the attorney decided to use certain trial tactics which were unsuccessful – tactics are within the attorney’s discretion. Similarly, if the Defendant insists that her attorney argue a specific issue or point, failure to make the argument, even if the issue is non-frivolous, will not   constitute ineffective assistance of counsel. Also, a rejected request for continuance or the failure to raise a constitutional defense, which is later invalidated, will not suffice. See Wainwright v. Torna, 455 U.S. 586 (1982).

In order for an ineffective assistance of counsel to be sustained, a court must find that (1) the performance by counsel was deficient in some way, AND (2) that but for the deficiency, the outcome of the Defendant’s case would have been different. See Strickland v. Washington, 466 U.S. 668 (1984). While the first part is less difficult to show, demonstrating that the deficiency actually caused the result of the trial is often nearly impossible, except in the most obvious cases.

EXAMPLE (1): Hank is arrested for a robbery that took place 8 years ago. In this state, the statute of limitations for robbery is 7 years. Hank’s attorney, believing that it's morally wrong to get a client off on a "technicality," fails to argue that the charge is barred by the statute and Hank is found guilty. The failure to object to the charge on such an obvious basis is certainly ineffective assistance. In addition, but for the deficiency in the assistance of counsel, Hank would not have been found guilty. Counsel was ineffective.

EXAMPLE (2): Hank’s wife is arrested for throwing rotten tomatoes at the President last month while he was riding in a motorcade through her town. Her attorney fails to object to certain questions that the prosecution asks her while on the witness stand. She is found guilty. Even if counsel was deficient in failing to object to the questions, unless it can be shown that, by objecting, it would have changed the outcome of the trial, counsel will not be considered ineffective.

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