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6A prior to formal charges: where investigation focuses on particular suspect in custody and interrogations lead to incriminating statements, suspect has requested and been denied counsel, and police have not warned him of right to remain silent...D has been denied 6A assistance of counsel, and no statement during interrogation may be used against him.
Once 6A right to counsel applies, gov. has no access to D. no matter how reasonable. no way no how. |
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6A post indictment: 5A and 6A were violated by use of statements made to co-defendant after their indictment and release on bail in the absence of D's counsel, (statements were overheard on radio by officer without D's knowledge that co-D decided to cooperate with gov and permitted agent to install radio transmitter under front seat of co-D's car).
Once 6A is triggered, gov. has no access to Defendant! |
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| post indictment contact is per se violative of 6A: (officers violated 6A by deliberately eliciting information from D during post-indictment visit to his home absent counsel or waiver of counsel, regardless of whether officer's conduct constituted an "interrogation"). |
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| approach on unrelated charges: 6A is offense specific (so may approach on other charges...assuming 6A right hasn't been triggered on those charges). |
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Formal step/initiation of adversary proceedings (i.e. arraignment--MI v Jackson, or initial appearance--Rothgery). **when pros takes a formal step towards prosecution**
+ critical stage--an event that has dispositive impact on the outcome of a trial, event that is like trial in its impact (confession, lineup)-game changers.
---++ whether the nature of evidence gathered, the fairness/reliability can be improved through the adversarial process (whether the 6A D counsel has a role--i.e. in a photo array what is counsel's role? none. therefore not critical stage). |
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simultaneous waiver of 5A and 6A counsel: if 6A is triggered, Miranda warnings sufficient to make D aware of 6A counsel; police may question if D waives 6A right to counsel.
D probably still needs to approach? |
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anticipatory request for counsel--D has to accept counsel.
(D made no request for counsel, but had one appointed. 6A is applicable, but officers are not barred from re-approaching a D who has counsel. D has to accept counsel) |
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inherent unrelibility of jailhouse snitches/impeachment: rejected per se exclusionary rule of jailhouse snitches uncorroborated testimony.
Also- a statement violating 6A right to counsel can be used to impeach a D who testifies at trial. (see also, Harris- 5A violation used for impeachment; and Walder- 4A violative statement used for specific impeachment).
***for minor violations-statement is not admissible except for impeachment; however, for major violations-the case will probably be thrown out. |
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entrapment-supplying the necessary ingredient. objective approach. (agents offered drug manufacturer essential ingredient). agent's contribution did not violate fundamental fairness shocking to universal sense of justice.
looks at outrageousness of government's actions.
defense: the government committed the crime.
criticisms: requires police to commit crime along with D |
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entrapment/supplying the criminal intent. subjective approach. Goes to predisposition (already has mens rea). the question is therefore did D have the mens rea or did the government overpower his will to give him the mens rea.
courts have adopted this subjective approach.
Entrapment is a mens rea defense. (defenses: D was targeted, D was not acting in own mind).
criticisms: (1)permits what is otherwise inadmissible evidence (predisposition), allows priors to show predisposition. (2) allows government to target those w/ background which makes them more susceptible to commit a crime they otherwise would not, or makes it appear they would have committed the crime.
more info: in jacobson police sent 10 mailings to D purporting to be from organizations asserting individual rights (D had kiddy porn problem). D responded after 10th mailing. Gov. did not establish that D was predisposed prior to first mailing. |
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elicitation of self-incriminating statements--cellmate: gov. agent cannot deliberately elicit information. D's incriminating statements to paid informant, while confined to same cellblock, who had been told by gov agents to be alert to any statements but not to initiate conversations with or question D regarding his charges--statements were inadmissible as being "deliberately elicited" from D in violation of 6A right to counsel.
(see fellers-deliberately eliciting information is per se violation). |
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6A does not forbid admission of statements to jailhouse informant placed in close proximity but makes no effort to stimulate conversations about crime charged; (gov. eliciting information is question of fact?)
backs up/muddies the water (after henry?)
can have gov agent, as long as they don't initiate incriminating statement. |
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| post-indictment physical lineup is critical stage for 6A purposes. (without notice to and absence 6A counsel, or waiver, lineup is per se reversible) |
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| establishes a per se exclusionary rule for courtroom identification after witness has picked D out of a defective lineup. |
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| pre-indictment lineup: 6A counsel does not attach until prosecution has been initiated, therefore pretrial confrontation before charging does not violate 6A |
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| 6A counsel not required at post-indictment photo array. (the risks inherent in photos are less than physical lineups and don't require extraordinary system of safeguards) |
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pre-indictment and pre-arrest "show-up" using totality of circumstances test to determine fairness under 14A.
No 6A-not critical stage
No 4A- no privacy interest
No 5A- not interrogation
then check 14A |
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| accuracy is a 14A concern: unnecessarily suggestive lineup is a denial of due process. (lineup procedure where accused was first placed in lineup with considerably shorter men, after no positive ID was made a one-on-one confrontation w/ vic who only made tentative ID until later lineup where vic ID'd D, who was the only man who had been in the first lineup. This was so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due process). |
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