Right to Counsel (Sixth Amendment) - Next Generation Bar Exam

1. What two elements establish ineffective assistance of counsel under Strickland v. Washington?

   Deficient performance and a reasonable probability that, but for the deficiency, the result would have differed. Courts strongly presume that counsel's conduct was reasonable.

2. At what stages does the attached Sixth Amendment right to counsel apply?

   Critical stages, including post-charge interrogations and lineups, plea negotiations, trial, and sentencing. A critical stage is one where the absence of counsel might impair the defense.

3. Under Massiah v. United States, what violates the Sixth Amendment right to counsel?

   Government agents deliberately eliciting incriminating statements about the charged offense in counsel's absence. An informant who merely listens passively does not deliberately elicit statements.

4. Under Montejo v. Louisiana, what allows police to interrogate a charged, represented defendant who has not invoked counsel?

   Police may approach and interrogate, if the defendant validly waives the right after Miranda warnings. Montejo overruled the presumption that a defendant's request for counsel at arraignment barred all police-initiated interrogation.

5. Under United States v. Gonzalez-Lopez, what is the effect of wrongfully denying a defendant counsel of choice?

   It is structural error requiring reversal without a showing of prejudice. The right to counsel of choice applies to defendants who can retain counsel.

6. Under McNeil v. Wisconsin and Texas v. Cobb, to which offenses does the Sixth Amendment right to counsel apply?

   Only to the charged offense and offenses that are the same under the Blockburger test. Police may question a charged defendant about uncharged, unrelated crimes.

7. When does an indigent defendant charged with a misdemeanor have a right to appointed counsel?

   When a sentence of imprisonment, including a suspended sentence, is imposed. Gideon v. Wainwright established the right to appointed counsel in felony cases.

8. Under Faretta v. California, when may a defendant represent himself at trial?

   When he knowingly and intelligently waives the right to counsel. A state may insist on counsel for a defendant competent to stand trial but not to conduct trial proceedings.

9. Under Cuyler v. Sullivan, what must a defendant show to obtain relief based on counsel's conflict of interest?

   An actual conflict that adversely affected counsel's performance. Prejudice is then presumed.

10. After indictment, police plant an informant in a defendant's cell to ask about the charged crime, and the defendant incriminates himself. What is the status of the statements?

    They are inadmissible under Massiah because the government deliberately elicited them in counsel's absence. The informant acted as a government agent and actively questioned the defendant.

11. Under Missouri v. Frye, what duty does defense counsel owe regarding plea offers?

    To communicate formal plea offers from the prosecution to the defendant. Failing to do so is deficient performance under Strickland.

12. When does the Sixth Amendment right to counsel attach?

    At the initiation of adversary judicial proceedings, such as formal charge, indictment, information, or arraignment. The right does not attach merely because a person is arrested or is a suspect.

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