Sixth Amendment Right to Counsel

COMPLAINTS, INDICTMENTS, ARRAIGNMENTS, NOTIFICATIONS,
AND THE PRETRIAL RIGHT TO COUNSEL

The six (6) clauses of the Sixth Amendment are as follows, and the first two are dealt with extensively in this lecture, and the latter four are dealt with in a subsequent lecture:

While the Sixth Amendment generally governs trial proceedings, it also provides guarantees at the pretrial level, or what is known as the "critical", "initial", or "formal" stages of criminal justice. Pretrial, or preliminary, proceedings (the decision to prosecute, initial appearance, bail hearing, preliminary hearing, and arraignment) are covered by the notification clause. Other aspects of Sixth Amendment rights reach down to the arrest and booking stage, and are covered by the assistance of counsel clause. Many scholars and most lawyers regard these early parts of the criminal justice process to be of the utmost importance.

The "formal" process of criminal justice begins when a prosecutor files a complaint, information, or indictment. Failure to properly file either of these three documents gives the defense a right to have the case dismissed, so it is very important, therefore, to understand the nature and form of these charging documents. The filing of a complaint follows police action and involves the prosecutor sending a form to the court clerk's office where it is stamped "Filed" and the date is recorded. The filing of an information follows a preliminary hearing and involves a similar form which is also known as the "bind over" document. The filing of an indictment follows grand jury review and involves a ballot form which is also known as a "true bill". In addition, grand juries on their own can produce something called a presentment which serves as a fourth type of charging document. The following table summarizes the various ways to charge somebody with commission of a crime.

    The plaintiff, being the people of Rocky Mount, North Carolina, do hereby state that the above court, having valid jurisdiction and venue in this case, by reason of the count(s) listed having been committed within the boundaries of this court district, should hear the following facts for which the statute of limitations has not expired, said time period being three to six years for these charges according to State Statute:

__________________________________________________________________________
__________________________________________________________________________
    Count I: John E. Doe is hereby charged with burglary in the first degree in violation of penal code GS 13 Section 501a because on or about January 12, 1998, he broke a window and entered a residence located at 123 Cherry Street, Rocky Mount, NC with the intent to steal a television set.
__________________________________________________________________________
__________________________________________________________________________
    Count II: John E. Doe is hereby charged with burglary in the first degree in violation of penal code GS 13 Section 501a because on or about January 13, 1998, he broke into a residence at 432 Elm Street, Rocky Mount, NC with the intent to steal a coin collection.
__________________________________________________________________________
__________________________________________________________________________

Note how exact addresses verify that the court has jurisdiction over this case, and how exact time periods verify that the statute of limitations has not run out. A separate complaint would have to be filled out if any of the crimes occurred in another geographic area with a different court jurisdiction. It is also possible to refer to a TOLLED statute of limitations if the defendant intentionally evaded prosecution by leaving the state. Local custom determines how the counts are tallied. In the example above, the prosecutor is charging first-degree burglary for two separate offenses. Other prosecutors might add duplicate counts for theft as well as burglary, even though at trial, the judge would throw out conviction for one or the other on the basis of double jeopardy. Other, more careful, prosecutors might add all possible degrees of the crime, in this case, adding duplicate second-degree burglary charges. Complaints frequently contain allegations that the defendant committed several crimes. There are no limits on the number of charges that a complaint can contain.

Multiple defendants can be listed on the same complaint. When this occurs, it is known as a joinder, and separate counts must be listed for each defendant. If the defendants request separate trials, the cases are referred to as severed, and the complaint as well as all other documents must be "sanitized" to remove references to other defendants.

The PRELIMINARY HEARING is a "critical stage" in criminal procedure. As a critical stage, the defendant has a right to counsel and to challenge the evidence in open court. It is one of two mechanisms (Grand Jury Review being the other) to test the government's case against defendants. Most defendants waive their right to a preliminary hearing, but the prosecutor always has the option of going this route. If a prelim will be held, it must occur within ten days to two weeks after the initial appearance. Courts usually have at least one judge who hears nothing but prelims on specific days of the week. There is no jury. Witnesses who have been subpoenaed to testify will sit in the jury box. Family members usually attend prelims along with the media in high profile cases. The format is similar to an actual trial except that there are no opening statements. The Rules of Evidence are also relaxed with regard to Hearsay and the Best Evidence rule for purposes of expediting the prelim.

If the judge rules for the defense, the complaint will be dismissed. If the accused has been held in custody, the judge must order their release. The prosecutor cannot refile charges if the complaint was dismissed with prejudice, but often the judge or state law will say whether charges can be refiled. Generally, a sick or missing witness for the prosecution allows refiling of charges. If the judge rules in favor of the prosecution, a document called an information is produced, containing the same format as a Complaint with additional statements, as follows:

TYPICAL LANGUAGE IN AN INFORMATION
"It appearing to me that the offense under consideration has been committed as charged, I find that there is sufficient cause to believe that the within named John
E. Doe is guilty. I hereby order that the defendant be held to answer to the same,
and the case be bound over for trial. ______________________(signature) Judge

The PRELIMINARY HEARING, being an open and adversarial forum, often is time consuming, so many prosecutors do not prefer this route. Defense attorneys also do not like them because they expose too much of the defense strategy. If it looks like the prelim is being delayed or not going well for the prosecution, the prosecutor can still use a Grand Jury Review, where an indictment brings the prelim procedures to a close. The preliminary hearing is more trial-like than a Grand Jury hearing.

Because the right to a grand jury is NOT incorporated into the Bill of Rights, states often develop intricate procedures for their preliminary hearings. Constitutionally, the purpose of a prelim is to satisfy a judge (not just a judicial official or magistrate, who sits over initial appearances and bail hearings) that the prosecutor is not abusing power, and that there is adequate or sufficient evidence. Practically, the purpose of a prelim is to justify the "formal" part of criminal justice, the production of a written document that orders the accused to stand trial on specific charges. The information, or written document produced by the prelim is the rough equivalent of an indictment, which lists the facts more specifically.

The GRAND JURY REVIEW is a closed, secret proceeding which often takes less time than a preliminary hearing. Cases can be decided in an hour, sometimes as long as several months. A simple majority among 23 people (size varies from 16-23) will suffice for an indictment, and Grand jurors rarely disagree with a prosecutor's recommendations. The proceedings begin with a judge giving an opening speech, then leaving the courtroom, turning things over to the prosecutor. The defendant and defense attorney are not allowed to attend. Both prosecutor and Grand Jurors can call witnesses. Proceedings are stenographed or electronically recorded. When the prosecutor and testimony is finished, the Grand Jury is given an indictment form which the foreperson must sign if they are in agreement. Another document called a "true bill" records the number of jurors who voted to indict. The entire Grand Jury, accompanied by the prosecutor, then goes to a judge and hands up the indictment, which amounts to formal filing of charges. The true bill does not become a matter of public record. The form of a Grand Jury Indictment is as follows:

THE GRAND JURY CHARGES:
that John E. Doe of Rocky Mount in the County of Nash and State of North Carolina, on the 12th day of January, 1998, in the town of Rocky Mount, did commit burglary in the first degree by entering a residence not his own with the intent of obtaining or exercising control over the property of another without permission, to wit, one 13" television set, value $150, one 17" television set, value $200, and one coin collection, value $300, all at the aggregate sum of $650 with intent to deprive the owner of rightful possession of said property.

The Supreme Court has NOT held states to the Fifth Amendment requirement for a grand jury (Hurtado v. California 1884). In other words, the right to a Grand Jury is NOT incorporated in the Fourteenth Amendment. However, the Supreme Court has said that in the absence of a Grand Jury, there must be some kind of Preliminary Hearing to determine the sufficiency of information (Gerstein v. Pugh 1975).

The ARRAIGNMENT is often confused with first appearance, and the reason for the confusion is that in misdemeanor cases, the two procedures are usually combined. The main function of the arraignment is to call upon the defendant to plead to the charge(s) after the judge reads the charges, or hands the defendant a copy of the Complaint, Information, or Indictment. Some arraignments are held by closed-circuit television if the defendant is still in jail. If the defendant is not represented by an attorney at this point, the judge must inquire into the reasons for this. Three questions will usually be asked: does the defendant want an attorney? can the defendant not afford an attorney? and does the prosecution intend to seek a sentence that includes incarceration? If the answer to all three questions is "yes", then a public defender is immediately appointed, and a continuance is granted to allow consultation. If the defendant already has an attorney, an inquiry into plea bargaining occurs.

A plea is required at arraignment. A "guilty" or "not guilty" plea is preferred, but some jurisdictions allow a nolo contendere (no contest) plea, which has the same effect as a guilty plea but does not admit guilt for purposes of later civil liability. To raise the insanity issue, a plea of "not guilty AND not guilty by reason of insanity" may be entered. However, the defense may wish to move for continuance with this strategy to allow an opportunity for psychiatric evaluation of the defendant. A plea of not guilty triggers full rights guaranteed by the Fifth and Sixth Amendments. A plea of guilty or no contest triggers sentencing and rights guaranteed by the Eighth Amendment. If a person stands mute or silent at their arraignment, it is assumed to be a not guilty plea. A small number of jurisdictions tolerate an Alford plea (North Carolina v. Aford 1970) which is an intelligent conclusion that a guilty plea is in one's best interests along with a protestation of innocence. The Constitutional requirements on pleas is that they be made knowingly and voluntarily; that is, that the defendant not admit to anything beyond the government's case and that it not be the result of force, threat, or promises apart from a plea bargain.

This right is generally considered a fundamental part of procedural due process in that persons accused of crimes are given fair notice of criminal charges and adequate opportunity to contest them. Fairness is the guiding consideration, and justice as equity tends to prevail. Equity means treating like cases alike and different cases differently. For petty offenses, the right to notification may require no more than appearance before a magistrate in a summary hearing which allows some opportunity for the accused to vent a complaint or contest to the charge (although judicial tolerance varies). This is the type of "assembly-line" or summary justice one sees in traffic and misdemeanor courts. This state of affairs is accepted because people accused of petty offenses are not usually placed under arrest, are rarely in custody, and are most commonly issued a summons, for which a predetermined fine satisfies the charge. Sometimes the fine is larger for those who complain or contest their minor case too much, and this is not considered unusual, vindictive, or grounds for appeal. In many cases, no criminal record is produced. Fines are usually set low enough to offset the need for hiring an attorney.

For more serious offenses (felonies and major misdemeanors), the right to notification involves the full spectrum of what is called criminal procedure, as that phrase is defined in federal and state constitutions, although in college courses, criminal procedure is treated more broadly. Criminal procedure in the limited, notification sense is designed to set the stage for fair and orderly resolution of cases for which there is sufficient reason for going to trial. Here, there are significant factors to consider: pretrial confinement; sufficiency of the government's case; prosecutorial vindictiveness; plea bargaining; jurisdiction and venue; joinder and severance; competency; and pretrial motions like discovery, suppression, and dismissal. These will all be taken up in order.

Pretrial confinement is the most important factor to the accused. People who are deprived of liberty and freedom of movement are at a distinct disadvantage in preparing for trial. Determination of eligibility for bail is a common law, not a constitutional matter. The Eighth Amendment does not require bail (U.S. v. Salerno 1987). Bail can take four forms: personal recognizance; release to custody of another; posting of individual bond; and surety or bail bond. Bail decisions are usually made on the basis of various paperwork prepared by pretrial personnel in accordance with state legislative guidelines. This paperwork typically includes prior offense record, employment history, social history, and some estimate of dangerousness as well as risk of flight from jurisdiction. The results of drug tests are also often used in some locations. None of these factors can or should be used as evidence against a person in formal charges (indictments or informations); they can only be used for bail decisions. The right to notification kicks in when the magistrate or judge decides to deny bail on grounds of dangerousness or risk of flight. In such cases, the law provides that the accused must receive a written statement of the reasons for bail denial and be afforded an opportunity to contest it. This is usually accomplished by affording time for consultation with counsel and the opportunity for immediate appellate review.

Sufficiency of the government's case gets at how clear and understandable the written pretrial documents are. An indictment or information is sufficient if it adequately informs the accused of the facts and elements of the charge so that they can prepare a defense or raise a claim of double jeopardy. What is NOT considered part of the sufficiency standard is attention to technical or typographic errors. Good faith, harmless error, and commonsense prevail over any accused's attempt to dismiss charges by pointing out spelling or other similar errors. Rules on the technical sufficiency of paperwork vary by jurisdiction, but as a general rule, any charging document the accused is provided with must spell out enough statutory language about the offense so that the elements of the crime can be clearly seen (Hamling v. U.S. 1974). Defendants have a right to something called a bill of particulars which is a request for more specifics, but such requests are only granted at the sole discretion of a judge or magistrate. The right to notification in the sufficiency of documents involves clarity, commonsense, and understanding.

Prosecutorial vindictiveness gets at the heart of Sixth Amendment guarantees, and is what the founding fathers wanted to protect us from. Constitutionally, there are two ways a prosecutor can violate someone's rights -- selective prosecution and vindictive prosecution. Selective prosecution occurs when they make an example out of someone, say, by prosecuting someone for a crime that similarly situated others do who go unprosecuted. If the basis for such prosecution singles out race, religion, sex, or other protected class, it is a violation of the equal protection clause of the Fourteenth Amendment. Vindictive prosecution can occur before, during, and after trial (U.S. v. Goodwin 1982), and involves the prosecutor adding charges, making the charges seem more severe, or seeking harsher penalties all because the defendant was exercising the full extent of their constitutional rights. It's a violation of due process as the Sixth Amendment is incorporated into the Bill of Rights. The right to notification requires notice (at least to the defendant's attorney) of any intent to seek additional charges or penalty enhancements.

Plea bargaining is a wonderful thing when it goes smoothly, and involves some interesting notification rights even when it doesn't. The Supreme Court has always approved (Brady v. U.S. 1970) and even encouraged (Santobello v. New York 1971) plea bargaining. It can safely be regarded as an essential part of fundamental fairness or fundamental rights by which ordered liberty could not exist otherwise. The practice is standardized in Rule 11(e) of the Federal Rules of Criminal Procedure. It normally occurs between experienced attorneys for the defense and prosecution, although it can be done pro se, or by the defendant. It can be done in open court, on the record, or upon a showing of good cause, in camera, or outside the sight of the court. Jurisdictions vary by how much they allow the judge to be involved with it. The most significant constitutional requirement on plea bargains is that they are contracts, resting upon a promise or agreement that must be fulfilled. This is called the Santobello standard, that prosecutors must keep their promises. This means that they must admit, in open court, that they agree with the defendant's request for a particular penalty, although with the understanding that such recommendation is not binding upon the court (by the judge). In order for the judge to abide by it, a presentence report is often required, so some notification to defendant (and at least the judge) is required for this. The judge is required to notify the defendant of acceptance or rejection of the plea bargain, and again, in jurisdictions that don't allow judicial involvement, someone else makes this notification. If rejected, notification should also include the reasons why the plea bargain is unacceptable, although this might require asking. If accepted, plea bargains cannot be altered or modified by judges; they can only be accepted in toto. Rejection triggers another notification where the defendant is allowed to change their plea. And finally, if a defendant persists in arguing for their rejected plea bargain, they must be notified that the disposition in their case may be less favorable than before. Prosecutors as well as judges are allowed to make such threats because they aren't seen as vindictive, just attempts to induce acceptance of the state's offer, or going rate. All together, there are about 5-6 notifications involved with plea bargaining.

Jurisdiction and venue refer to the authority of the court and the place at which that authority is exercised. The Sixth Amendment states that all criminal proceedings should take place where said crimes have been committed, which is interpreted as a venue requirement since Article III, Section 2 of the Constitution allows more variability with the concept of jurisdiction. Article IV, Section 2 also sets up a system of interstate extradition to bring offenders to where the crime was committed. Notification of extradition proceedings allow defendants to challenge the regularity of requisition warrants without involving issues of guilt or innocence. For serious crimes, seizure of a defendant is accomplished through an arrest warrant (if indictment) or capias (if information). For changes of venue, the burden of proof is on the defendant, and they must notify both the prosecution and judge of their intent to do so before a jury is impaneled. One a jury has been selected, no change of venue requests are tolerated. States vary on what they consider in granting venue requests. The most common considerations are community prejudice and convenience to witnesses. Notification almost always must be done quickly, however.

Joinder and severance involve mostly the Fifth Amendment double jeopardy clause, although there are Sixth Amendment considerations. The terms can apply to a single defendant or multiple defendants. In the single defendant case, a joinder combines two or more offenses in the same indictment or information. In the multiple defendant case, a joinder prosecutes co-defendants at the same trial. A single defendant can file for severance if charged with more than one crime. Multiple defendants can file for severance to have their trials held separately. In general, the Sixth Amendment prohibits duplicitous and multiplicitous indictments that are prejudicial to the defendant and can result in miscarriages of justice. If such prejudice is not corrected, the indictments are dismissed or there are grounds for reversible error. Pretrial publicity is of this nature, and requires judges to do something about it. Notification rights are triggered by all such remedies as well as any immunities from prosecution when the plan involves using evidence against one defendant that has no relevance to a co-defendant (Kotteakos v. U.S. 1946).

Competency to stand trial is different from an insanity plea, and there are different types of competency. Competency is all about mental state at the time of trial; insanity is about mental state at the time the offense was committed. If a defendant's irrational behavior is known to either side or observed in judicial proceedings, this raises doubts as to competency and the related ability to assist his/her attorney. In such cases, notification occurs, and a special competency hearing must be held with forensic psychologists testifying at these hearings. Determination of competency normally takes place at a state mental hospital or psychiatric unit of a correctional facility. Other times, private facilities are involved. The inmate is interviewed for a period of days, sometimes weeks. Psychometric and neurological testing will be done. Mental retardation, amnesia, and mild forms of mental disorder are not considered proof of incompetency by the courts. In general, the courts are more willing to take persons to trial that psychiatrists think are incompetent. Notification of incompetency often involves civil commitment to undergo rehabilitation with drugs and/or therapy so that they can be restored to a point where they are able to stand trial. Psychologists get paid for restoring someone to competency and notifying the court of progress.

Pretrial motions are numerous, but the more important ones have to do with discovery, suppression, and dismissal. Discovery is the sharing of documents between prosecution and defense, and normally it's done informally. Notification occurs when one side thinks the other side is hiding something, as in the identity of a confidential informant or a surprise witness. Suppression involves notification of intent to claim Fourth and Fifth Amendment rights, as in the suppressing of search and seizure evidence or suppressing a confession. Motions to dismiss are frequently filed after the indictment or information in hopes that a judge will reconsider the sufficiency of the government's case. The circumstances involved with each pretrial motion and judicial rules determine notification procedures.

No other right guaranteed by the Sixth Amendment is more important than the right to counsel. The Supreme Court has even said so - "the right to counsel is a fundamental and essential right" - in Gideon v. Wainwright (1963), the case that incorporated the right by way of the due process clause of the Fourteenth Amendment. In colonial days, the United States stepped out in advance of England and created an uniquely American common law involving the right to counsel. Almost all state constitutions or statutes mandated the right long before the Sixth Amendment was ratified. The Declaration of Independence also frequently mentioned denial of counsel as one of its grievances.

The Sixth Amendment was long interpreted as only meaning the right to counsel of one's choice and at one's own expense. It has since (the "modern" interpretation) come to mean the right to appointed counsel for those who cannot afford one. The genesis of this jurisprudential shift can be found in Powell v. Alabama (1932), or the famous Scottsboro Case. The convictions in that case (of several black youths accused of raping two white women) were overturned on grounds that the defendants did not receive a fair trial because their fundamental rights to effective counsel were denied. Six years later, in Johnson v. Zerbst (1938), the Court ruled that no federal trial shall be held without appointed counsel, and that any waivers of the right to counsel would be closely scrutinized. In an oft-quoted majority opinion, the Powell Court wrote:

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has sometimes no skill in the science of law. He is incapable of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. He requires the hand of counsel at every step of the proceedings against him. If that be true of intelligence, how much more true it is of the ignorant or illiterate, or those of feeble intellect.

Despite this broad dicta, the question still remained what state courts should do. In Betts v. Brady (1942), the Supreme Court took a survey of state practices, and found that the majority of states did NOT provide appointed counsel to indigents, or poor people. The Court therefore ruled that only in special circumstances, when the charges are complex and the defendant suffers from low intelligence, should counsel be appointed. This test became known as the prejudice-special circumstances test because the fairness of the process was determined by whether a lawyer could have saved the defendant anyway. Betts was overruled in Gideon v. Wainwright in 1963.

Gideon was a powerful affirmation of the fundamental right to counsel. The underpinning of Gideon is the notion that a fair trial requires a balance of power, and to the extent that the government spends money in support of the prosecution, it should also spend money on defense. Although the logic sounds like an equal protection approach, the Court's concern was NOT to eliminate a "how good an attorney can you afford" system (that is sometimes referred to as the promise or vision of Gideon), but to establish a procedural due process barrier at the earliest stages of criminal justice so that rich and poor could initially be treated alike. The rich could always afford to win later on appeal after appeal. That's why the PRETRIAL right to counsel is such an important part of due process. It holds everyone up to the same standards at the most critical stages of criminal justice, preventing the creation of a dual system of justice at the bottom, one for the rich and one for the poor.

The way textbooks put this is by saying the right to counsel ATTACHES at every "critical", "initial", or "formal" stage of criminal justice. Indeed, in addition to the following "critical" stages, there is even a Fifth Amendment right to counsel during custodial interrogation (Escobedo v. Illinois 1964 and Miranda v. Arizona 1966):

At the pretrial stage, the right to counsel is a necessity, not a luxury. The Sixth Amendment even confers the right to EFFECTIVE counsel. In Strickland v. Washington (1984), the Court established the Strickland test which requires that counsel's representation meet an objective standard of reasonableness, and that in order to show ineffective counsel, there must be a reasonable probability that the outcome would be different.

PRINTED RESOURCES
Beaney, W. (1955). The Right to Counsel in American Courts. Ann Arbor: Univ. of Michigan Press.
Epstein, L. and T. Walker. (2001). Constitutional Law for a Changing America. Wash. DC: CQ Press.
Ferdico, J. (1996). Criminal Procedure for the Criminal Justice Professional. St. Paul: West.
Garcia, A. (1992). The Sixth Amendment in Modern American Jurisprudence. Westport: Greenwood.
Heller, F. (1951). The Sixth Amendment to the Constitution of the U.S. Westport: Greenwood.
Levy, L. & K. Karst. (eds.) (1998). Encyclopedia of the American Constitution. NY:Macmillan.
Lewis, A. (1989). Gideon's Trumpet. NY: Vintage.
Scheb, J. and J. (1999). Criminal Procedure. Belmont, CA: Wadsworth.
Scott, A. (1982). "Fairness in Accusation of Crime" Minnesota Law Review 41:509-46.

Last updated: July 02, 2006
Not an official webpage of APSU, copyright restrictions apply, see Megalinks in Criminal Justice
O'Connor, T. (Date of Last Update at bottom of page). In Part of web cited (Windows name for file at top of browser), MegaLinks in Criminal Justice. Retrieved from http://www.apsu.edu/oconnort/rest of URL accessed on today's date.

Complaint	Police-Prosecutor Action
Information	Preliminary Hearing Action
Indictment	Grand Jury Action
Presentment	Grand Jury Action