The Sixth Amendment Right To Counsel: Application Of The Right Is Perhaps Not So Clear

The Sixth Amendment reads, “In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation . . . and to have the Assistance of Counsel for his defence.”[1] The right provided appears to be straightforward, but when this right applies in the criminal judicial process is not so clear.[2] In United States v. Olson, the Ninth Circuit held that the accused did not have a Sixth Amendment right to counsel during pre-indictment plea negotiations.[3] The holding stems from the circuit’s bright-line rule adopted from Kirby v. Illinois, where “the Supreme Court described the Court’s past cases as ‘firmly establish[ing] that a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him.’”[4] The Ninth Circuit further examined the decision in Kirby and stated, “The plurality in Kirby cited nine previous Sixth Amendment cases and described them as ‘all . . . involv[ing] points of time at or after the initiation of adversary judicial criminal proceedings – whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’”[5]

Subsequent Supreme Court cases appear to have confirmed when this right attaches.[6] For example, in United States v. Gouveia, the Supreme Court stated, “As the Court of Appeals majority noted, our cases have long recognized that the right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant.”[7]However, the Supreme Court in Gouveia goes on to say, 

Although we have extended an accused’s right to counsel to certain “critical” pretrial proceedings, we have done so recognizing that at those proceedings, “the accused [is] confronted . . . by the procedural system, or by his expert adversary” . . . in a situation where the results of the confrontation “might well settle the accused’s fate and reduce the trial itself to a mere formality.”[8]

Some circuits have disagreed on whether the Kirby line of cases mandates such a bright-line rule.[9] In Matteo v. Superintendent, Sci Albion, the Third Circuit acknowledged that “The right also may attach at earlier stages.”[10] The Eleventh Circuit disagreed in United States v. Waldon, stating “[T]he Sixth Amendment right to counsel simply does not attach until the initiation of formal adversary proceedings.”[11] Despite this circuit split, there has been acknowledgement by multiple circuits that the existence of a bright-line rule gives prosecutors a lot of flexibility to use tactics that take advantage of the unrepresented accused.[12] For example, in United States v. Hayes, the Ninth Circuit, after explaining that it has adhered to the bright-line rule, stated “[W]e can’t help being somewhat queasy because it looks like the government is trying to have its cake and eat it too.”[13] In United States v. Heinz, the Fifth Circuit acknowledges that current law teaches the bright-line rule, but then states “This is so despite the fact that some earlier Supreme Court cases seem to imply that a more functional test for the attachment of the Sixth Amendment right to counsel is appropriate.”[14]The Ninth Circuit further acknowledges in Olson “[T]hat the bright-line rule allows prosecutors to employ historically uncommon approaches to investigation and prosecution that a more flexible approach to the Sixth Amendment might deter.” [15]

How should this circuit split be handled moving forward? In Olson, Chief Judge Thomas argues in his concurrence that “there is a pre-indictment Sixth Amendment right to counsel when a functional equivalent of an indictment exists.”[16] He notes that “The Supreme Court has never squarely addressed whether the Sixth Amendment right to counsel attaches during pre-indictment plea negotiations.”[17] Chief Judge Thomas further states “other circuits have expressly concluded that the Supreme Court’s attachment case law permits recognition of the right to counsel in some pre-indictment settings.”[18] In support of his argument, Chief Judge Thomas cites Rothgery v. Gillespie, where the Supreme Court “held that the Sixth Amendment right to counsel kicked in when Rothgery appeared for a pre-indictment probable cause hearing before a magistrate judge and ‘learn[ed] the charge against him.’”[19] The application of the Sixth Amendment right in this case exemplifies why circuits are split on whether the right applies pre-indictment or not. The best way for this split to be resolved is by the Supreme Court, assuming the Court has the opportunity to do so. 

Another way to address this split, but perhaps not resolve it, is for circuits that currently adopt the bright-line rule to revisit en banc when the appropriate case arises, as suggested by Chief Judge Thomas in Olson.[20] Circuits that have adopted the bright-line rule have admitted that some prosecutors’ actions have made them “queasy” and to express discomfort.[21] This sentiment exemplifies why circuits should revisit their adoption of the bright-line rule to pre-indictment cases en banc when given the opportunity. In order to combat prosecutors from employing “historically uncommon approaches to investigation and prosecution”[22], circuits, when revisiting the bright-line rule en banc, should consider a functional equivalent test.[23] The functional equivalent test is when “facts ‘are so closely related to the ultimate fact to be presumed that no rational jury could find those facts without also finding that ultimate fact, making those findings is functionally equivalent to finding the element required to be presumed.’”[24] In this context, the functional equivalent test would apply when the government’s conduct was the functional equivalent of the initiation of formal criminal charges or an indictment.[25] As referenced by the Ninth Circuit in Olson, this type of test is a more flexible approach to the Sixth Amendment right and may deter such uncommon approaches by prosecutors.[26]

Circuits are currently split on whether there is a bright-line rule for when the Sixth Amendment right to counsel attaches to a defendant.[27] The Ninth Circuit in Olson, along with the Sixth and Eleventh circuits, agree that a bright-line rule exists.[28] However, the Third Circuit disagrees as it has said the right to counsel may attach pre-indictment.[29] The Supreme Court in Kirby v. Illinois “defined ‘the initiation of judicial criminal proceedings’” as “the triggering event for Sixth Amendment attachment purposes.”[30] However, in Rothgery, the Supreme Court held that the Sixth Amendment right to counsel kicked in for the accused in a pre-indictment probable cause hearing before a magistrate judge.[31] This split exemplifies why a functional equivalent test should be adopted in the Sixth Amendment attachment issue as it will deter prosecutors from utilizing uncommon approaches to investigation, and allow for a more flexible approach that will benefit the accused.[32]

 Footnotes

[1] U.S. Const. amend. VI. 

[2] Bernie Pazanowski, Church Official Had No Right to Lawyer for Pre-Charge Plea Deal, Bloomberg Law (Feb. 22, 2021, 4:03 PM), https://news.bloomberglaw.com/us-law-week/church-official-had-noright-to-lawyer-for-pre-charge-plea-deal?context=search&index=2. 

[3] United States v. Olson, 2021 U.S. App. LEXIS 5027, at *3, 988 F.3d 1158 (9th Cir. Feb. 22, 2021). 

[4] Olson, 2021 U.S. App. LEXIS 5027 at *8 (quoting Kirby v. Illinois, 406 U.S. 682 (1972)). 

[5] Id. at *8-9 (quoting Kirby v. Illinois, 406 U.S. 682 (1972)). 

[6] Id. at *9.

[7] United States v. Gouveia, 467 U.S. 180, 187 (1984). 

[8] Gouveia, 467 U.S. at 189.

[9] Olson, 2021 U.S. App. LEXIS 5027 at *9.

[10] Matteo v. Superintendent, Sci Albion, 171 F.3d 877, 892 (3d Cir. 1999). 

[11] United States v. Waldon, 363 F.3d 1103, 1112 n.4 (11th Cir. 2004). 

[12] Olson, 2021 U.S. App. LEXIS 5027 at *10 (explaining that the tactics used by prosecutors in United States v. Hayes made this circuit express reservations after upholding the bright-line rule). 

[13] United States v. Hayes, 231 F.3d 663, 675 (9th Cir. 2000).

[14] United States v. Heinz, 983 F.2d 609, 612 (5th Cir. 1993). 

[15] Olson, 2021 U.S. App. LEXIS 5027 at *11.

[16] Olson, 2021 U.S. App. LEXIS 5027 at *15 (Thomas, C.J., concurring).

[17] Id. 

[18] Id.

[19] Id. at 17 (quoting Rothgery v. Gillespie, 554 U.S. 191(2008)). 

[20] Id. at 23. 

[21] Olson, 2021 U.S. App. LEXIS 5027 at *10 (quoting United States v. Hayes, 231 F.3d 663 (9th Cir. 2000)).

[22] Olson, 2021 U.S. App. LEXIS 5027 at *11. 

[23] Id.  

[24] Sullivan v. Louisiana, 508 U.S. 275, 281 (1993) (quoting Carella v. California, 491 U.S. 263, 271 (1989) (Scalia, J., concurring)).

[25] Olson, 2021 U.S. App. LEXIS 5027 at *15, *19 (Thomas, C.J., concurring) (quoting United States v. Hayes, 231 F.3d 663, 673 (9th Cir. 2000)).

[26] Olson, 2021 U.S. App. LEXIS 5027 at *11.

[27] See Pazanowski, supra note ii. 

[28] Id.

[29] Id. 

[30] Olson, 2021 U.S. App. LEXIS 5027 at *15-16 (Thomas, C.J., concurring) (quoting Kirby v. Illinois, 406 U.S. 682 (1972)).

[31] Id. at *17. 

[32] Olson, 2021 U.S. App. LEXIS 5027 at *11.