6th amendment essay outline
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6th amendmentTRANSCRIPT
6th Amendment Essay Outline 1. The issue is: ……
2. Text:
• In all criminal prosecutions, the accused shall have the assistance of counsel for his defense.
3. Have adversarial formal criminal prosecutions commenced:
• If NO, then it is not a 6th amendment problem.
• If YES, then go to next question. 4. Is there deliberate elicitation?
• Deliberate elicitation is a subjective test. o If NO, stop it is not a 6th amendment.
o If YES, then go to next question.
5. Did the defendant knowingly, intelligently and voluntarily waive the 6th
amendment right to counsel? • If the defendant invokes the right to counsel, the interrogation must stop
until the defendant’s counsel is present.
• If the defendant waives the right to counsel, the waiver must be knowing, intelligent and voluntary without any deliberate elicitation from law enforcement.
o A knowing and intelligent waiver is made with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.
! A waiver cannot be deemed knowing and intelligent unless the police issued proper Miranda warnings.
o A voluntary waiver is the product of a free and deliberate choice rather than intimidation, coercion, or deception.
6. The 6th amendment right to counsel is offense specific: • The defendant is protected from deliberate elicitation from law enforcement
pertaining to the charge on which he was charged, plus on any charges which have the same statutory elements or is a lesser-‐included offense after the right to counsel is invoked.
• If the charges each require proof of at least one element that the other charge does not, then the defendant is NOT protected from deliberate elicitation on that charge unless he invokes the 6th amendment right to counsel on that charge as well.
7. What is the 6th amendment right to counsel, impeachment rule:
• Statements secured in violation of the 6th amendment may be used for impeachment purposes in only a limited context.
o If the police initiate conversation with an accused who has requested counsel, any incriminating statements the defendant makes may be used for impeachment if the accused subsequently waived the right, despite the fact that the improper police conduct precludes admission of the statements as part of the prosecution’s direct case.
8. Does the Fruit-‐Of-‐The-‐Poisonous-‐Tree Doctrine apply to 6th amendment
right to counsel violations: • YES. The fruit-‐of-‐the-‐poisonous-‐tree doctrine applies to violations of the 6th
amendment right to counsel.
9. The 6th amendment right to counsel attaches for identifications after formal proceedings have commenced: • An accused has a 6th amendment right to have counsel present at any
corporeal identification procedure conducted after the commencement of an adversary judicial criminal proceeding against him.
10. What is the difference between In-‐Court Identification & Out-‐Of-‐ Court Identifications? • In-‐ Court Identifications are presumed to be inadmissible unless the
government can show, by CLEAR AND CONVINCING EVIDENCE, that there was an independent source. o Factors:
! Witness’s opportunity to observe defendant; ! Any discrepancies between victim’s description and the defendant; ! Any prior identifications of other people; ! Seeing pictures of defendant prior to line-‐up; ! Time between offense and line-‐up.
• Out-‐Of-‐Court Identifications conducted without counsel present, are deemed
to be inadmissible and are automatically suppressed. o Photo Array Exception:
! The 6th amendment only attaches if it is an IN-‐PERSON line-‐up. ! Photo arrays can be shown without counsel present because it is not
critical stage of the formal criminal proceeding.