6th Amend. & Right to Counsel
Identify the procedural milestone that converts a criminal matter from investigative to accusatory—the moment the Sixth‑Amendment right to counsel “switches on.”
The initiation of formal charges—filing an indictment, information, complaint, or the defendant’s first appearance on one of those documents.
The Court first coined “adversarial judicial proceedings” in Kirby v. Illinois (1972) and reaffirmed in Maine v. Moulton (1985) that the government’s commitment to prosecute—not the arrest—triggers the Sixth Amendment and requires counsel at every subsequent “critical stage.”
Which constitutional guarantee obligates state courts to provide counsel to defendants in all felony prosecutions?
The Sixth‑Amendment right to counsel, applied to the states through the Fourteenth Amendment.
Gideon v. Wainwright (1963) overruled Betts and declared counsel “fundamental and essential” for a fair trial, making it binding on the states via due process.
“Deficient performance” under Strickland is measured against what objective standard, and what professional materials often guide courts in applying it?
The prevailing norms of reasonable professional competence, often illuminated by ABA Criminal Justice Standards and similar guidelines.
Strickland v. Washington (1984) warned against hindsight and instructed courts to judge by “objective reasonableness” at the time of the conduct, frequently consulting ABA norms.
What did the the Bail Reform Act of 1984 do?
Explicitly authorizes judges to detain defendants pre‑trial based on dangerousness.
United States v. Salerno (1987) upheld the Act, finding preventive detention compatible with due process when backed by strong procedural safeguards.
What are the factors in the four‑factor balancing test for Sixth‑Amendment speedy‑trial claims?
(1) length of delay, (2) reason for delay, (3) defendant’s assertion of the right, and (4) prejudice.
Barker instructs courts to weigh all four factors. No single factor is dispositive, but an unusually long delay is the “trigger” that obliges courts to examine the other three.
Is the right to automatic grand jury indictment incorporated to the states?
No.
Hurtado v. California (1884) ruled that states are not constitutionally required to initiate felony prosecutions by grand jury indictment. Many states use an information plus magistrate review as a valid alternative.
Statistical disparities alone rarely prove selective prosecution. Besides disparate impact, what additional showing must the defendant make to establish discriminatory intent?
Evidence that the prosecutorial policy was designed or applied to target the protected group, such as official statements or a pattern of decisions against similarly situated comparators.
Wayte v. United States (1985) and United States v. Armstrong (1996) require proof of intentional discrimination, not just uneven outcomes.
"Materiality” in the Brady context asks whether suppression creates a reasonable probability of a different outcome. Explain how that standard differs from both preponderance and harmless‑error beyond a reasonable doubt.
It demands less certainty than ‘more‑likely‑than‑not’ but more concern than harmless‑error review; the question is whether confidence in the verdict is undermined, not whether the result would surely change.
United States v. Bagley (1985) coined the “reasonable probability” test; Kyles v. Whitley (1995) said it’s lower than “preponderance” but higher than harmless‑error’s certainty.
Federal Rule 11 requires judges to advise defendants of three trial rights they give up plus two direct sentencing consequences. Name those two consequences.
The maximum possible penalty and any mandatory minimum penalty.
Rule 11(b)(1) codifies Boykin v. Alabama (1969) and ensures pleas are “knowing.”
Which two constitutional amendments work together to guarantee a state criminal defendant the right to a jury trial?
The Sixth Amendment (jury trial) and the Fourteenth Amendment’s Due‑Process Clause, which incorporates that right against the states.
Duncan v. Louisiana (1968) declared jury trials fundamental to the American scheme of justice.
In a jury trial, jeopardy “attaches” at what exact moment? What about a bench trial?
(a) When the jury is empaneled and sworn.
(b) When the first witness is sworn.
Attachment marks the point after which the Double Jeopardy Clause protects against multiple trials for the same offense. Once the jurors are sworn, the defendant has a constitutional interest in having that particular tribunal decide guilt or innocence.
What single historical fact may be found by a judge—rather than a jury—even if it increases the authorized penalty?
The existence of a prior conviction.
Almendarez‑Torres v. United States (1998) carved out this lone exception.
At what first‑court appearance does the Sixth‑Amendment right attach even if no prosecutor is present and bail is the only issue discussed?
The defendant’s initial appearance before a judicial officer (often called an arraignment or mag‑court appearance.
In Rothgery v. Gillespie County (2008) the Court held that a magistrate appearance alone “signals the start of formal adversary proceedings,” so the State cannot postpone counsel by keeping the prosecutor away.
State the “actual‑imprisonment” rule for misdemeanors and explain how it applies when the court imposes a suspended jail term.
Counsel is required only if a sentence of incarceration—actual or suspended—is imposed, because a suspended term can later be activated.
Argersinger v. Hamlin (1972) limited counsel to cases involving jail; Alabama v. Shelton (2002) closed the loophole by treating suspended sentences as “a prison term in a cloak of invisibility.”
The Court presumes prejudice without further inquiry in three narrow situations. Name any two of them.
(1) Total denial of counsel at a critical stage, (2) counsel’s complete failure to subject the prosecution’s case to adversarial testing, or (3) circumstances where no lawyer could provide effective help (such as almost no prep time in a complex trial).
United States v. Cronic (1984) created these exceptions: constructive denial, total failure, and impossible circumstances (e.g., lawyer appointed day‑of‑trial in a complex fraud case).
What burden of proof must the government meet to detain a defendant on the ground of community danger?
Clear and convincing evidence that no release condition will reasonably assure safety.
Salerno noted this heightened burden, plus a prompt adversarial hearing, balances the defendant’s liberty interest.
When a court determines that the government has violated a defendant’s Sixth‑Amendment right to a speedy trial, this is the only remedy the Constitution allows.
Ddismissal of the charges (with prejudice).
The Supreme Court made clear in Strunk v. United States (1973) that any lesser remedy—such as reducing a sentence—would leave the defendant exposed to the very harm the Speedy‑Trial Clause forbids. Therefore, once a violation is established, the indictment must be thrown out and the prosecution cannot be re‑filed.
At a state preliminary hearing, what quantum of proof must the prosecution show to bind a defendant over for trial?
Probable Cause.
A preliminary (or “bind‑over”) hearing is a screening device. Most jurisdictions—echoing the Fourth Amendment standard—require the magistrate to find probable cause that the accused committed the charged offense. Anything higher would collapse the distinction between a screening hearing and a trial.
Courts compare defendants to “similarly situated” individuals of another group. Name one factor used to decide whether two suspects are truly comparable for this analysis.
The severity and quantity of the alleged offense conduct (including drug amount, weapon use, prior record, etc.).
Armstrong demanded near‑identical culpability before granting discovery into prosecutors’ files to inquire into selective prosecution.
Give one example of impeachment evidence whose suppression can violate Brady.
A non‑disclosed promise of leniency or payment to a key prosecution witness.
Giglio v. United States (1972) extended Brady to impeachment; even credibility deals must be revealed.
Define a “knowing” plea and name one collateral consequence that need not be explained for the plea to stand.
Full understanding of the nature of the charge and its direct consequences; loss of voting rights (or firearm possession) is a collateral consequence that need not be explained.
Brady v. United States (1970) distinguished direct from collateral consequences; Padilla v. Kentucky (2010) made deportation advice an exception.
What is the minimum amount of jurors required by the sixth amendment?
6.
Rejecting the historical requirement of 12 jurors, Williams concluded that six jurors still provide the essential benefits of a jury—community participation and group deliberation.
Courts decide whether two statutes punish the same offense by using what “same‑elements” test.
Blockburger test.
Under Blockburger v. United States (1932), two crimes are distinct if each requires proof of a fact the other does not. If they pass that test, separate convictions or successive prosecutions are generally permissible.
A “statutory maximum” is “the highest sentence a judge may impose without any additional findings other than those reflected in the ____________ or _________________."”?
jury's verdict, admitted by the defendant.
Blakely v. Washington (2004) framed the rule; Apprendi v. New Jersey (2000) supplied the constitutional hook.
Give any two post‑charge events that are considered “critical stages” at which counsel must be present.
Post‑charge lineup, custodial interrogation, preliminary hearing, plea negotiations, or sentencing.
United States v. Wade (1967) labeled post‑indictment lineups “critical” because a lawyer helps preserve misidentification defenses; Missouri v. Frye (2012) and Lafler v. Cooper (2012) clarified that plea bargaining is critical because 95 % of convictions come from pleas.
Hypo: Judge promises no jail, appoints no lawyer, and fines the defendant $500 for petty theft. Is that constitutionally permissible?
Yes—because no imprisonment (actual or suspended) was imposed.
Under Scott v. Illinois (1979) fines alone do not trigger the Sixth‑Amendment counsel guarantee; the Court balanced fairness with state resources.
Defense counsel speaks to no witnesses and conducts virtually no investigation. On appeal, which Strickland prong is usually hardest to satisfy, and why?
Prejudice—because the defendant must show a reasonable probability that a more thorough investigation would have changed the outcome.
Wiggins v. Smith (2003) illustrates this: Court found deficiency but remanded for prejudice; later evidence of mitigating childhood abuse cleared that hurdle.
Hypo: An indigent shoplifter gets a $50,000 cash‑only bond for stealing $40 of groceries. Identify two constitutional doctrines she could invoke.
The Eighth‑Amendment Excessive‑Bail Clause and the Fourteenth‑Amendment Equal‑Protection principle against wealth‑based detention.
The Eighth forbids bail that is “greater than reasonably calculated” (Stack v. Boyle, 1951); recent circuit cases like ODonnell v. Harris County (2018) apply equal‑protection analysis to cash‑only bail.
Delays caused by court‑appointed defense counsel are ordinarily attributed to which party for speedy‑trial purposes?
The defendant, because counsel is considered the defendant’s agent absent state bad faith.
Vermont v. Brillon (2009) held public‑defender delays count against the defendant, distinguishing systemic funding shortages (State fault) from counsel’s scheduling choices.
Can an indictment be based entirely on hearsay or other “incompetent” evidence?
Yes.
Costello said forcing trial‑type evidentiary rules on the grand jury would stall investigations and is not required by the Fifth Amendment.
Explain why a prosecutor’s threat during plea talks to file a harsher charge if the defendant refuses to plead does not normally create a presumption of vindictiveness.
Because plea bargaining is a legitimate give‑and‑take; leveraging any charge supported by probable cause is considered permissible negotiation, not retaliation for exercising a right.
Bordenkircher v. Hayes (1978) distinguished bargaining (acceptable) from retaliatory post‑trial upping of charges (presumptively vindictive in Blackledge 1974).
Even if the prosecution did not solicit false testimony, what due‑process obligation arises once the State learns that a witness’s statement is false?
The duty to correct the false testimony; failing to do so violates due process.
Napue v. Illinois (1959) and Mooney v. Holohan (1935) hold the State may not knowingly allow perjury to stand uncorrected.
What general retroactivity rule governs whether new procedural decisions apply to convictions already final on collateral review, and what are its two exceptions?
New procedural rules are not retroactive unless (1) they are substantive or (2) they are ‘watershed’ procedural rules essential to accuracy and fairness.
Teague v. Lane (1989) announced this; Chaidez v. United States (2013) applied it to deny Padilla retroactivity.
Social‑science research persuaded the Court that juries smaller than six are unreliable. Name one empirical drawback the Court cited.
Smaller juries deliberate less thoroughly, are less representative of the community, and deliver more variable verdicts.
Ballew v. Georgia (1978) relied on 20+ studies showing five‑person juries compromise accuracy and legitimacy.
Why does the Double‑Jeopardy Clause allow retrial when a conviction is reversed for trial error, such as faulty jury instructions?
Because the reversal indicates the first proceeding was legally defective and left the issue of guilt unresolved, so the defendant is returned to the status of an accused.
United States v. Tateo (1964) and Burks v. United States (1978) distinguish trial error (retrial OK) from evidentiary insufficiency (retrial barred).
True or false: facts raising a criminal fine above the statutory maximum do not need to be found by a jury?
False.
Extending Apprendi, the Court in Southern Union Co. v. United States (2012) held that a judge cannot increase the maximum potential fine based on facts the jury did not find beyond a reasonable doubt (unless the defendant admits them).
A defendant wants to fire counsel and represent herself at trial. Before allowing it, the judge must conduct this on‑the‑record inquiry to be sure the waiver is knowing and intelligent.
A Faretta Colloquy
Faretta v. California requires judges to explain the risks of self‑representation and the nature of the charges before accepting an in‑court waiver.
How does the Constitution treat a suspended jail sentence with respect to the right to appointed counsel?
Exactly like actual incarceration; counsel must be provided at the plea or trial because the term can later be activated.
Shelton reasoned that activation hearings are too late for counsel to cure the original uncounseled conviction, so the right attaches up front.
When a judge is aware of a potential conflict of interest but the defendant never objects, what must the defendant later prove to obtain relief?
An actual conflict that adversely affected counsel’s performance.
Cuyler v. Sullivan (1980) imposed this two‑part showing; Mickens v. Taylor (2002) clarified it applies even where the court should have inquired sua sponte.
What constitutional principle requires judges to set bail on an individual basis rather than relying on a blanket schedule?
The Excessive‑Bail Clause’s requirement that bail be tailored to the defendant’s flight risk and danger, not fixed by a one‑size‑fits‑all schedule.
Stack invalidated uniform $50,000 bonds for all Communist Party defendants, emphasizing individualized assessment.
When the government is merely negligent, roughly how many years of delay have the Justices suggested will presumptively establish prejudice?
5+ years.
Doggett v. United States (1992) found an 8‑year negligent delay presumptively prejudicial; the Court hinted 6‑year negligence “approaches” the line.
Hypo: State law makes preliminary hearings optional; prosecutors skip it and go straight to grand jury. Defendant claims denial of counsel at a critical stage. Does the Sixth Amendment require a preliminary hearing here?
No—because the Constitution doesn’t compel the State to hold an adversarial preliminary hearing; without one, no ‘critical stage’ arises.”
Coleman v. Alabama (1970) said prelims are critical if adversarial, but Gerstein allows ex parte probable‑cause reviews.
Hypo: After a mistrial, prosecutors add an aggravated‑assault count based on the same facts. Is a presumption of vindictiveness triggered?
No—post‑mistrial, pre‑trial charge increases do not automatically create a vindictiveness presumption; the defendant must show actual retaliatory motive.
United States v. Goodwin (1982) said pre‑trial decisions are fluid; only post‑appeal increases raise the presumption.
Hypo: Police deliberately destroy a knife they believe is inculpatory, but later testing might have revealed exculpatory DNA. What two things must a defendant prove to establish a due‑process violation?
1) The evidence had apparent exculpatory value before destruction and was not replaceable, and (2) the police acted in bad faith.
California v. Trombetta (1984) requires apparent exculpatory value; Arizona v. Youngblood (1988) adds the bad‑faith requirement for merely “potentially useful” evidence.
A guilty‑plea record must affirmatively show that the defendant waived which rights?
Jury, confrontation, and self‑incrimination.
Boykin v. Alabama (1969) states that judges must engage the defendant on the record, ensuring the plea is voluntary, and that these key constitutional rights are knowingly relinquished.
When are statements to police non-testimonial?
When their primary purpose is to address an ongoing emergency.
Michigan v. Bryant (2011) treated roadside dying‑declaration statements as non‑testimonial because police needed to neutralize the threat.
Hypo: Prosecutor deliberately provokes the defense into moving for mistrial by repeated references to inadmissible evidence. What specific intent must the court find to bar retrial?
Intent to provoke the defendant into requesting the mistrial (i.e., to abort the trial and seek a more favorable second chance).
Oregon v. Kennedy (1982) limited the bar to prosecutorial conduct intended to “goad” a mistrial, not mere over‑zealousness.
True or false: The federal sentencing guidelines are not mandatory
True.
United States v. Booker (2005).
State two key differences between the Fifth‑Amendment Miranda/Edwards counsel safeguard and the Sixth‑Amendment right to counsel.
(a) A Miranda is offense‑blind and can be invoked during any custodial interrogation, even pre‑charge, while the Sixth right is offense‑specific and arises only after charges; (b) Miranda must be invoked by the suspect, whereas the Sixth right attaches automatically.
Miranda v. Arizona (1966) and Edwards v. Arizona (1981) protect custodial suspects broadly; Texas v. Cobb (2001) emphasizes that the Sixth right is limited to the charged offense, permitting questioning on unrelated crimes without violating the Sixth.
Some judges avoid appointing counsel by promising to impose only a fine. Which Sixth‑Amendment doctrine lets them do that—and why?
Because fines alone do not trigger the right to counsel.
Scott v. Illinois allows uncounseled convictions if no jail (actual or suspended) is imposed; courts may “avoid appointing counsel by imposing only fines.”
Hypo: A single lawyer represents both driver and passenger in a drug‑trafficking case and, during cross‑examination, suggests the passenger owned the drugs. What must the passenger show to win a new trial?
The joint representation created an actual conflict and that the conflict adversely affected counsel’s performance (e.g., the lawyer pulled punches to protect the driver).
The Mickens standard requires proof of a “lapse in representation,” such as failing to present exculpatory evidence because it would harm the co‑client.
Hypo: After a probable‑cause finding, the magistrate imposes GPS monitoring, daily check‑ins, and a secured bond without explaining why lesser measures won’t work. What modern appellate standard could reverse this order, and what must the judge do to comply?
The ‘least‑restrictive‑conditions’ mandate requires explicit, on‑the‑record findings that each condition is the least restrictive means of mitigating flight and danger.
Circuits like the D.C. Circuit in United States v. Friedman (2022) reverse when courts “check every box” without explaining why milder conditions—e.g., phone reporting—are inadequate.
Hypo: Five‑year delay-
Three years from docket congestion, one year from defendant’s continuances, one year from intentional prosecutorial stalling.
Defendant objected throughout. Apply the four‑factor balance and predict the outcome.
Likely dismissal—the intentional one‑year prosecutorial delay weighs heavily, the overall length is presumptively prejudicial, the defendant asserted the right, and only modest prejudice need be shown.
Barker treats deliberate delay as “weighty” against the State; United States v. Moreno (9th Cir. 2021) shows that even minimal prejudice can tip the scale when the government acts in bad faith.
True or false: prosecutors have a constitutional duty to present exculpatory evidence to the grand jury.
False.
In United States v. Williams (1992), the Court emphasized the grand jury’s independence: because it operates in secrecy and without an adversary, the Due Process Clause does not oblige the prosecutor to disclose evidence that might negate guilt. States can impose such a duty by rule, but the Constitution does not.
When do federal courts have the authority to compel the executive branch to investigate or file criminal charges?
Courts may not order the filing of charges or supervise an investigation unless prosecutors themselves violated a constitutional right.
In Inmates of Attica Correctional Facility v. Rockefeller (1973), the court held that decisions whether to investigate or prosecute lie within the Executive’s exclusive discretion.
Hypo: Prosecutors suppress four minor items, each with a 10 % chance of altering the verdict. Explain why suppression might still be “material.”
Because courts evaluate cumulative impact; the combined effect of multiple items can create a reasonable probability of a different result even when no single item would do so alone.
Kyles rejected a “piece‑by‑piece” approach; suppressed evidence must be considered “in the aggregate.”
What is an Alford plea?
When a defendant pleads guilty yet maintains innocence.
In North Carolina v. Alford (1970), the Court allowed a plea where the defendant professed innocence but acknowledged the prosecution’s evidence was likely to secure a conviction. An Alford plea is valid if the record shows a factual basis and the decision is rational and uncoerced.
Fill in the blank: jury venires must represent a _________________ of the community, making systematic exclusion unconstitutional?
“Fair cross‑section”
In Taylor v. Louisiana, the Court reversed a conviction obtained from a venire that systematically excluded women.
After a state acquittal for drug trafficking, a Native‑American tribe prosecutes the same act in tribal court. Does the dual‑sovereignty doctrine allow this?
Yes.
United States v. Wheeler (1978) held tribal and federal/state prosecutions are not “successive prosecutions by the same sovereign.” Each draws authority from a different source than the state.
Hypo: A jury convicts Dana of two separate felonies—burglary and sexual assault—each carrying a statutory range of 0‑10 years. At sentencing, the judge (not the jury) finds that the offenses occurred on different dates and involved different victims, then orders the two 10‑year terms to run consecutively for a total of 20 years. Dana objects that, under Apprendi/Blakely, a jury had to make the “different‑episode” findings beyond a reasonable doubt. Does the Sixth Amendment require jury fact‑finding before a judge can impose consecutive sentences?
No—the judge may find those facts and impose consecutive terms because the jury verdict already authorized the full penalty for each count; choosing consecutive versus concurrent sentences falls within traditional judicial discretion.
In Oregon v. Ice (2009) the Supreme Court held that the Apprendi rule does not extend to a judge’s decision to stack sentences. Since each conviction independently permits the statutory maximum for that offense, making them consecutive does not raise the maximum for any single count, so judicial fact‑finding on separateness of episodes or victims is constitutionally permissible.
FINAL JEOPARDY
Identify all distinct constitutional violations the defense could raise on these facts:
After a 2 a.m. arrest for armed home‑burglary, Danielle signs a written Miranda waiver and confesses during a 30‑minute station‑house interview. Forty‑eight hours later, the State files an information charging first‑degree burglary; that same afternoon detectives, without appointing counsel, return Danielle to the interview room, remind her only of the earlier Miranda waiver, and obtain a second, far more detailed confession. During discovery the prosecution suppresses a text the victim sent police on the night of the crime naming another acquaintance as the masked intruder. On the eve of trial the prosecutor threatens to amend the information to add a life‑qualifying habitual‑offender count unless Danielle pleads to the existing burglary charge; she accepts the plea. At sentencing the judge—over defense objection—finds by a preponderance that the victim suffered “serious bodily injury,” doubling the statutory maximum from 15 to 30 years and imposing 25.
Sixth‑Amendment violation — The second interrogation occurred after formal charges; without a separate, knowing Sixth‑Amendment waiver, the post‑charge confession is inadmissible.
Brady violation — The suppressed victim text is favorable (points to another suspect) and potentially material (could have altered plea strategy); withholding it violates Brady/Bagley.
Plea voluntariness problem — While threatening a harsher but supported charge is permissible under Bordenkircher, Danielle’s plea may not be knowing and intelligent because it was entered without the exculpatory evidence the State hid.
Apprendi/Blakely error — The judge’s fact‑finding on “serious bodily injury” increased the statutory maximum; any fact that raises the ceiling must be proved to a jury beyond a reasonable doubt or admitted by the defendant.