- Should the court suppress the confession?
Answer: No, because the Sixth Amendment right to counsel is offense-specific and had not attached to the uncharged shooting.
When you see post-arraignment questioning about a separate crime, keep the Sixth Amendment right to counsel distinct from the Fifth Amendment right. The Sixth right is offense-specific: it attaches only when formal charges have been filed for a particular offense, and it does not block questioning about different, uncharged crimes. Here, D's request for counsel at arraignment attached the Sixth right only to the burglary charge. The shooting was a separate offense, no charge had been filed for it, and D validly waived Miranda before confessing to it. The motion to suppress should therefore be denied.
The choice saying "once the Sixth Amendment right to counsel has attached to any charge, the police may not initiate interrogation about other crimes" is wrong because that is exactly the rule the Sixth Amendment does not create—the right does not travel with the defendant to other offenses. Likewise, the choice that the right is "continuing and follows a defendant from one offense to the next" is a mistaken extension of the Sixth Amendment. The remaining distractor claims D's arraignment request was an invocation of his Fifth Amendment rights and that Miranda warnings satisfied it. That is also incorrect: asking for counsel at arraignment invokes the Sixth Amendment, not the Fifth, and Miranda warnings do not satisfy the Sixth. But that error does not help D, because no Sixth right had attached to the shooting.
Study tip: when police question a charged defendant about another crime, ask "same offense or different offense?" If different, the Sixth Amendment is not the issue—analyze whether the Miranda waiver was knowing and voluntary.
- To obtain a new appeal, what must D show?
Answer: Only that counsel failed to file a requested notice of appeal; prejudice is presumed.
Whenever you see a claim of ineffective assistance based on a lost appeal, remember the Supreme Court's rule in Roe v. Flores-Ortega: when a defendant expressly instructs counsel to file an appeal and counsel fails to do so, the lawyer is constitutionally deficient and prejudice is presumed. The key is that this differs from ordinary Strickland claims, where a defendant must prove both deficient performance and actual prejudice.
Here, D told his lawyer to file an appeal, the lawyer promised to do so, and then let the deadline pass. D therefore need not show that his appeal would have won. The correct answer is that D must show only that counsel failed to file a requested notice of appeal; prejudice is presumed.
The choice saying D must show the proposed appeal would probably have succeeded is too demanding — a defendant does not need a winning appeal to be entitled to a direct appeal. Similarly, the choice requiring proof that the lawyer's failure fell below professional norms and that D would have been acquitted confuses the trial-prejudice standard with this appeal-specific rule; acquittal is irrelevant. Finally, the choice about knowingly waiving appeal as part of a plea agreement misses the point: even when a defendant has waived something, an unfulfilled promise to file an appeal can still establish ineffective assistance, and D's actual request here shows he did not surrender his right to appeal.
Study tip: anytime you see counsel ignoring a client's explicit request to appeal, think "automatic prejudice" — no merits analysis required.
- Should the court grant D's motion?
Answer: No, because a photographic array is a nonadversarial procedure conducted outside D's presence, not a critical stage requiring counsel.
Whenever you see a Sixth Amendment right-to-counsel claim about identification, separate two questions: Has the right attached? And is this a "critical stage"? Here, D was formally charged by information, so the right to counsel had attached. But attachment alone is not enough—counsel is required only at adversarial, critical stages where D's presence matters.
The court should deny the motion because a photographic array shown to an eyewitness is not a critical stage. D was not present, and there was no confrontation or questioning of D; the procedure was nonadversarial. Under controlling precedent, counsel need not attend photographic identifications because the accused's absence means counsel cannot meaningfully protect D's interests there.
The first wrong answer—"right to counsel attached, so any identification after that point is critical"—overstates the rule: attachment does not make every subsequent event critical. The due process answer is also wrong because an identification outside counsel's presence is not inherently suggestive; D would need to show the array itself was unnecessarily suggestive. The "not in custody and had not requested counsel" answer misunderstands attachment: formal charges trigger the right regardless of custody or request. Finally, the correct answer—that a photo array is nonadversarial and outside D's presence—matches the law.
Study tip: when you see "post-charge identification," check whether the suspect himself participated. Lineups and showups can be critical stages; photographic arrays are not.
- To prevail, D must show:
Answer: That the lawyer actively represented conflicting interests and that an actual conflict of interest adversely affected the lawyer's performance.
When you see a joint-representation claim, think of the special Sixth Amendment conflict-of-interest framework. D does not need to prove ordinary ineffective assistance; he must show that the lawyer actively represented conflicting interests and that an actual conflict of interest adversely affected the lawyer's performance. Here, the lawyer's choice to protect the codefendant by declining to cross-examine the witness could be exactly that adverse effect, but D must establish the conflict and its impact on the lawyer's work.
The "reasonable probability that D would have been acquitted" answer is the ordinary Strickland prejudice standard, not the conflict test. For conflict claims, outcome prejudice is replaced by proof that the conflict adversely affected performance. The "performance fell below prevailing professional norms" answer is wrong because representing codefendants is not automatically ineffective, and prejudice is not presumed simply from joint representation. The "failed to obtain written waivers" answer is also incorrect: while consent is an ethical safeguard, its absence does not make the error structural; the constitutional inquiry still requires an actual conflict that adversely affected counsel's performance.
Study tip: distinguish Strickland from conflict claims. If a question involves counsel with divided loyalties, look for actual conflict plus adverse effect—not outcome prejudice, and not automatic prejudice.
- Which statement best describes Nina's burden to obtain relief?
Answer: She need not prove the appeal would have succeeded, because her explicit, unequivocal instruction to appeal made counsel's failure deficient and prejudice is presumed.
Whenever you see a postconviction claim based on counsel's handling of an appeal, separate two questions: Did the defendant clearly tell counsel to appeal? And did counsel file? An explicit instruction to appeal removes counsel's discretion. Once Nina said, "If I am convicted, I want to appeal," counsel had a ministerial duty to file a notice of appeal; failing to do so was deficient regardless of whether counsel subjectively thought the issues were meritless. And because the complete denial of an appeal is itself prejudicial, she need not prove the appeal would have succeeded. A defendant forced to lose her appeal outright gets relief even if the appeal was weak.
The first wrong choice, saying she must prove that competent appellate counsel would have raised a meritorious issue andhat the appeal likely would have resulted in reversal, confuses this situation with ineffective assistance of appellate counsel for failing to raise a particular issue on an appeal that was actually taken— there, merit matters, but not where the appeal was never filed. The second wrong choice, requiring a showing of actual innocence or structural error, overstates the harm; the loss of the appeal process itself is presumed prejudicial. The third wrong choice, describing counsel's failure as strategic decision no reasonable lawyer would make, also misses the point: an explicit instruction to appeal leaves no room for strategy, sod you do not need to litigate reasonableness beyond that instruction. Her explicit, unequivocal instruction is the trigger; once established, deficient performance and prejudice are presumed, so the correct answer is that she need not prove the appeal would have succeeded. On the bar exam, when a defendant unambiguously asks for an appeal, think "mandatory, no merits inquiry."
- Assuming defense counsel's failure to communicate the offer was professionally unreasonable, what additional showing must Roberto make to obtain relief?
Answer: A reasonable probability that he would have accepted the offer, that the prosecutor and court would have accepted the plea, and that his sentence would have been more favorable than eighteen years.
Whenever you see an ineffective assistance of counsel claim, remember the two-part Strickland test: professionally unreasonable performance plus prejudice. Here, the performance part is given — the failure to communicate was unreasonable — so the question is what the defendant must prove for the second part. In the plea-offer context, prejudice is not automatic; it requires a reasonable probability that the defendant would have accepted the offer, that the prosecutor would have kept it, and that the court would have approved it, resulting in a sentence or other consequences more favorable than what trial produced. That is exactly what the correct answer says.
The answer saying he must show that "but for" the failure he "would have pleaded guilty and received five years or less" is too demanding and too narrow: prejudice requires a reasonable probability, not certainty, and it does not require proof of a specific sentence. The choice that focuses on whether a competent lawyer would have advised accepting the five-year offer misunderstands the prejudice inquiry; that goes to the reasonableness of counsel's performance, which is already assumed. Finally, the claim that prejudice must be presumed because the offer was never communicated is wrong — while some Sixth Amendment violations carry presumed prejudice, a mere failure to convey a plea offer does not. To get relief, Roberto must show the court likely would have accepted the plea and that eighteen years was worse. Practice tip: for plea-bargaining ineffectiveness, ask whether the defendant can show the lost plea would have produced a better outcome, not just that counsel made an error.
- Which statement is correct?
Answer: D had a right to counsel only if the court determined, given the complexity of the issues and D's ability to present his case, that due process required counsel.
When you see a question about the right to counsel at a probation or parole revocation hearing, remember the key distinction: the Sixth Amendment right to counsel attaches to criminal prosecutions, but revocation hearings are not criminal prosecutions. Instead, they are governed by due process, and the Supreme Court in Gagnon v. Scarpelli held that counsel is required only on a case‑by‑case basis—when the court finds that the complexity of the issues or the defendant's ability to present his case makes counsel necessary. That is exactly what the correct answer says: D had a right to counsel only if the court determined that due process required it. The court's denial here was not automatically unconstitutional; it must assess the specific circumstances.
Now why are the others wrong? The statement that D had an automatic Sixth Amendment right because the hearing was a "critical stage" confuses a revocation with a criminal trial—revocation is not a critical stage under the Sixth Amendment, and this was a suspended sentence, not a deferred one. The claim that D had no right to counsel because the Sixth Amendment terminates after conviction is also incorrect—due process may still require counsel even after conviction, as Gagnon shows. Finally, the suggestion that this was a "deferred‑sentencing stage" misreads the facts: the court already imposed a two‑year sentence and suspended it, so the sentence was not being imposed for the first time at the hearing; it was being executed after revocation. The trap here is assuming any liberty‑depriving hearing triggers a full Sixth Amendment right. Remember: for probation revocation, ask whether due process requires counsel case‑by‑case—not whether the Sixth Amendment automatically applies.
- Should the court admit the statement?
Answer: Yes, because the informant merely listened and did not deliberately elicit the statement, and the Sixth Amendment bars only deliberate elicitation by a state agent.
When you see a jailhouse informant after indictment, the Sixth Amendment question is not whether the statement was voluntary, but whether the state "deliberately elicited" it. Once D's right to counsel attached, the government may not use an informant to intentionally obtain incriminating statements through questioning or its functional equivalent. Here, the detective placed the informant and told him to "keep his ears open," but the informant asked nothing and said nothing; D simply volunteered. Merely listening, even in an arranged situation, is not deliberate elicitation. So the statement is admissible, and the choice saying the informant "merely listened and did not deliberately elicit the statement" states the correct rule.
The "No" answers fail because they replace the deliberate-elicitation test with broader, incorrect rules. There is no presumption that a statement to a jailhouse informant after indictment is the product of state action merely because the informant was planted; the state must actively elicit. Likewise, "the state deliberately planted an informant to obtain incriminating statements" is too broad — planting an informant alone does not violate the Sixth Amendment unless the informant acts to elicit. Finally, the claim that D spoke voluntarily "so no state action occurred" misstates the facts: the informant was a state agent, so state action existed, but passive listening is not deliberate elicitation.
On the exam, distinguish active inducement from passive receipt: spontaneous statements to a planted listener are admissible; statements prompted by an informant's questions or equivalent tactics are not.
- Must the state appoint counsel for the discretionary appeal?
Answer: No, because the state must provide counsel only for an appeal as of right; it need not provide counsel for discretionary review.
This question tests a key limit on the right to appointed counsel: the right is not unlimited once a defendant is convicted. When you see an appeal-or counsel question, first ask which stage is at issue. The Sixth Amendment does not guarantee counsel for appeals; instead, equal protection requires a state that creates an appeal as of right to make that appeal meaningful for indigent defendants. Under Douglas v California, once a state provides a first appeal as of right, it must appoint counsel for that appeal. But under Ross v Moffitt, the obligation stops there. A discretionary appeal to the State Supreme Court is a different, optional tier of review, and requiring an indigent defendant to seek that review without appointed counsel does not deny equal protection because he has already had one counseled appellate proceeding. So the correct response is the one stating that the state must provide counsel only for an appeal as of right and need not provide counsel for discretionary review.
The other choices each miss that line. The claim that the right to counsel extends to any appellate proceeding the state makes available is too broad: the state's duty attaches only to the first appeal as of right, not to every layer of review it creates. The equal-protection argument fails because discretionary review is not equivalent to the first appeal; denying counsel there does not create the kind of fundamental unfairness that Douglas addressed. And the idea that the state's obligation ends once a defendant is convicted and sentenced is wrong, because conviction and sentence do not extinguish the right to counsel on a direct appeal as of right. Remember: on appeal, there is only one required rung of the ladder — the first appeal as of right. Discretionary review is optional, so appointed counsel is not required.
- Which statement is most accurate?
Answer: D is entitled to relief only if he shows a reasonable probability that, but for the erroneous advice, he would have rejected the plea and insisted on going to trial.
Whenever you see a noncitizen challenging a guilty plea based on bad advice about deportation, think Padilla and the two-part ineffective-assistance test. Deportation is a unique "collateral" consequence: counsel must inform a client of clear immigration consequences, and affirmative misadvice can be deficient.
The correct approach is that D gets relief only if he shows a reasonable probability that, but for the erroneous advice, he would have rejected the plea and insisted on going to trial. That mirrors the standard Strickland prejudice test in the plea context: the defendant must show the bad advice affected his decision, not that he would have won at trial.
The statement that a lawyer's erroneous advice about collateral consequences is never ineffective assistance is wrong—*Padilla* created a specific duty for deportation advice. The claim that relief is automatic because affirmative misadvice about deportation is per se prejudicial is also wrong: deficient advice alone isn't enough; D must prove prejudice. Finally, the suggestion that D must prove he would have been acquitted at trial sets the bar too high—the question is whether he would have gone to trial, not whether he would have succeeded.
Study tip: for guilty-plea ineffective-assistance questions, remember the two-step: (1) was counsel's advice deficient under Padilla? (2) did the defendant show a reasonable probability he would have rejected the plea? Don't confuse prejudice with acquittal.
- What standard governs D's claim?
Answer: The conviction must be reversed without any showing of prejudice, because the wrongful deprivation of the right to counsel of choice is a structural error.
Whenever you see a Sixth Amendment counsel claim, first classify it: is it a claim of ineffective assistance, or a claim of wrongful denial of counsel of choice? They are governed by different standards. Here the claim is that the district court erroneously disqualified D's retained attorney. The Supreme Court has held that the right to counsel of choice is a structural guarantee, not a trial right that requires outcome prejudice. So once the appellate court concludes the disqualification was erroneous, D's conviction must be reversed without any showing of prejudice.
The wrong answers all import standards from other contexts. The choice requiring D to show a reasonable probability of a different outcome applies to ineffective assistance of counsel and certain prejudice-based review; it has no place in a counsel-of-choice violation. Similarly, the choice requiring constitutionally deficient performance plus prejudice is the full Strickland test for ineffective assistance, which is a different Sixth Amendment claim. And the choice requiring reversal only if the disqualification was arbitrary and capricious confuses the abuse-of-discretion standard governing a trial court's decision on a disqualification motion with the appellate standard once the ruling is found to violate the Constitution. Remember: erroneous disqualification of chosen counsel is structural error, so automatic reversal follows. On the bar exam, when you see "wrongful denial of chosen counsel," look for automatic reversal rather than prejudice.
- Does the Sixth Amendment right to counsel bar admission of Darius's statements about the home invasion?
Answer: No, because the Sixth Amendment right to counsel is offense-specific and had not attached to the home invasion at the time Darius made the statements to the officer.
When you see a Sixth Amendment right-to-counsel question, your first move is to ask: what crime has been charged? The right is offense-specific. It attaches once adversary judicial proceedings have begun—such as indictment—but only for the offense charged. Here, Darius was indicted only for the robbery; the home invasion had not been charged when he spoke to the undercover officer. Therefore, the Sixth Amendment right to counsel had not attached to the home invasion, and the state may use his statements. The correct reasoning is that the right is offense-specific, not crime-general.
The two "yes" answers both fail for the same reason: they treat the Sixth Amendment right as if it protects a represented defendant from questioning about any crime. It does not. Once attached, it bars deliberate police efforts to elicit statements about the charged offense—and sometimes closely related offenses—but it does not cover a separate, uncharged home invasion.
The "no" answer about Miranda also misses the mark. The absence of Miranda warnings does not make a statement voluntary; voluntariness depends on police coercion and the totality of circumstances. Plus, the Sixth Amendment analysis is independent of custody. An undercover officer may be a "state agent" for Sixth Amendment purposes, but only if the right has attached to that specific offense.
Your takeaway: on the bar exam, connect the Sixth Amendment right to counsel to the specific charged offense, and don't confuse it with Miranda's custodial-interrogation rules.
