Sixth Amendment

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SIXTH AMENDMENT

The Sixth Amendment to the U.S. Constitution reads:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

The Sixth Amendment to the U.S. Constitution affords criminal defendants seven discrete personal liberties: (1) the right to a speedy trial; (2) the right to a public trial; (3) the right to an impartial jury; (4) the right to be informed of pending charges; (5) the right to confront and to cross-examine adverse witnesses; (6) the right to compel favorable witnesses to testify at trial through the subpoena power of the judiciary; and (7) the right to legal counsel. Ratified in 1791, the Sixth Amendment originally applied only to criminal actions brought by the federal government.

Over the past century, all of the protections guaranteed by the Sixth Amendment have been made applicable to the state governments through the doctrine of selective incorporation. Under this doctrine, the Due Process and equal protection Clauses of the fourteenth amendment require each state to recognize certain fundamental liberties that are enumerated in the bill of rights because such liberties are deemed essential to the concepts of freedom and equality. Together with the supremacy clause of Article VI, the Fourteenth Amendment prohibits any state from providing less protection for a right conferred by the Sixth Amendment than is provided under the federal Constitution.

Speedy Trial

The right to a speedy trial traces its roots to twelfth-century England, when the Assize of Clarendon declared that justice must be provided to robbers, murderers, and thieves "speedily enough." The Speedy Trial Clause was designed by the Founding Fathers to prevent defendants from languishing in jail for an indefinite period before trial, to minimize the time in which a defendant's life is disrupted and burdened by the anxiety and scrutiny accompanying public criminal proceedings, and to reduce the chances that a prolonged delay before trial will impair the ability of the accused to prepare a defense. The longer the commencement of a trial is postponed, courts have observed, the more likely it is that witnesses will disappear, that evidence will be lost or destroyed, and that memories will fade.

A person's right to a speedy trial arises only after the government has arrested, indicted, or otherwise formally accused the person of a crime. Before the point of formal accusation, the government is under no Sixth Amendment obligation to discover, investigate, accuse, or prosecute a particular defendant within a certain amount of time. The Speedy Trial Clause is not implicated in post-trial criminal proceedings such as probation and parole hearings. Nor may a person raise a speedy-trial claim after the government has dropped criminal charges, even if the government refiles those charges at a much later date. However, the government must comply with the fairness requirements of the Due Process Clause during each juncture of a criminal proceeding.

The U.S. Supreme Court has declined to draw a bright line separating permissible pretrial delays from delays that are impermissibly excessive. Instead, the Court has developed a balancing test in which length of delay is just one factor to consider when evaluating the merits of a speedy-trial claim. The other three factors that a court must consider are the reason for delay, the severity of prejudice, or injury, suffered by the defendant from delay, and the stage during the criminal proceedings in which the defendant asserted the right to a speedy trial. Defendants who fail to assert this right early in a criminal proceeding, or who acquiesce in the face of protracted pretrial delays, typically lose their speedy-trial claims.

Defendants whose own actions lengthen the pretrial phase normally forfeit their rights under the Speedy Trial Clause as well. For example, defendants who frivolously inundate a court with pretrial motions are treated as having waived their rights to a speedy trial (United States v. Lindsey, 47 F.3d 440 [D.C. Cir. 1995]). In such situations, defendants are not allowed to benefit from their own misconduct. On the other hand, delays that are attributable to the government, such as those due to prosecutorial negligence in misplacing a defendant's file, will violate the Speedy Trial Clause (United States v. Shell, 974 F.2d 1035 [9th Cir. 1992]).

A delay of at least one year in bringing a defendant to trial following arrest will trigger a presumption that the Sixth Amendment has been violated, with the level of judicial scrutiny increasing in direct proportion to the length of delay (United States v. Gutierrez, 891 F. Supp. 97 [E.D.N.Y. 1995]). The government may overcome this presumption by offering a "plausible reason" for the delay (United States v. Thomas, 55 F.3d 144 [4th Cir. 1995]). Courts generally will condone longer delays when the prosecution has requested additional time to prepare for a complex or difficult case. When prosecutors have offered only implausible reasons for delay, courts traditionally have dismissed the indictment, overturned the conviction, or vacated the sentence, depending on the remedy requested by the defendant.

Public Trial

The right to a public trial is another ancient liberty that Americans have inherited from Anglo-Saxon jurisprudence. During the seventeenth century, when the English Court of Oyer and Terminer attempted to exclude members of the public from a criminal proceeding that the Crown had deemed to be sensitive, defendant John Lilburn successfully argued that immemorial usage and British common law entitled him to a trial in open court where spectators are admitted. The Founding Fathers believed that public criminal proceedings would operate as a check against malevolent prosecutions, corrupt or malleable judges, and perjurious witnesses. The public nature of criminal proceedings also aids the fact-finding mission of the judiciary by encouraging citizens to come forward with relevant information, whether inculpatory or exculpatory.

Under the Public Trial Clause, friends and relatives of a defendant must be initially permitted to attend trial. However, the right to a public trial is not absolute, and parents, spouses, and children will be excluded if they disrupt the proceedings (Cosentino v. Kelly, 926 F. Supp. 391 [S.D.N.Y. 1996]). Toddlers and infants, ranging from one month to two years in age, may be summarily excluded from a courtroom consistent with the Sixth Amendment, even if the judge fails to articulate a reason for doing so (United States v. Short, 36 M.J. 802 [A.C.M.R. 1993]). Children in this age group are too young to understand legal proceedings, are easily agitated, and present a substantial risk of hindering a trial with distractions.

The Sixth Amendment right to a public trial is personal to the defendant and may not be asserted by the media or the public in general. However, both the public and media have a qualified first amendment right to attend criminal proceedings. The First Amendment does not accommodate everyone who wants to attend a particular proceeding. Nor does the First Amendment require courts to televise any given legal proceeding. Oral arguments before the U.S. Supreme Court, for example, have never been televised.

Courtrooms are areas of finite space and limited seating in which judges diligently attempt to maintain decorum. In cases that generate tremendous public interest, courts sometimes create lottery systems that randomly assign citizens a seat in the courtroom for each day of trial. A separate lottery may be established for the purpose of determining which members of the media are permitted access to the courtroom on a given day, although local and national newspapers and television stations may be given a permanent courtroom seat. Members of the media and public who are excluded from attending trial on a given day are sometimes provided admission to an audio room where they can listen to the proceedings.

In rare cases, criminal proceedings will be closed to all members of the media and the public. However, a compelling reason must be offered before a court will follow this course. For example, when the First Amendment rights of the media to attend a criminal trial collide with a defendant's Sixth Amendment right to a fair trial, the defendant's Sixth Amendment right takes precedence, and the legal proceeding may be closed (In re Globe Newspaper, 729 F.2d 47 [1st Cir. 1984]).

Criminal proceedings also have been conducted in private when the complaining witness is a child who is young and immature and is being asked to testify about an emotionally charged issue such as sexual abuse (Fayer-weather v. Moran, 749 F. Supp. 43 [D.R.I. 1990]). If the court determines that only one stage of a legal proceeding will be jeopardized by the presence of the public or the media, then only that stage should be conducted in private (Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 [1984]). For example, if a witness is expected to testify about classified government information or confidential trade secrets, the court may clear the courtroom for the duration of such tes timony, but no longer.

The right to a public trial extends to pretrial proceedings that are integral to the trial phase, such as jury selection and evidentiary hearings (Rovinsky v. McKaskle, 722 F.2d 197 [5th Cir. 1984]). Despite the strong constitutional preference for public criminal trials, both courts-martial and juvenile delinquency hearings typically are held in a closed session, even when they involve criminal wrongdoing. In all other proceedings, the defendant may waive his right to a public trial, in which case the entire criminal proceeding can be conducted in private.

Right to Trial by an Impartial Jury

In both England and the American colonies, the Crown retained the prerogative to interfere with jury deliberations and to overturn verdicts that embarrassed, harmed, or otherwise challenged the authority of the royal government. Finding such interference unjust, the Founding Fathers created a constitutional right to trial by an impartial jury. This Sixth Amendment right, which can be traced back to the magna charta in 1215, does not apply to juvenile delinquency proceedings (McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 [1971]), or to petty criminal offenses, which consist of crimes punishable by imprisonment of six months or less (Baldwin v. New York, 399 U.S. 66, 90 S. Ct. 1886, 26 L. Ed. 2d 437 [1970]).

The Sixth Amendment entitles defendants to a jury pool that represents a fair cross section of the community. From the jury pool, also known as a venire, a panel of jurors is selected to hear the case through a process called voir dire. During voir dire, the presiding judge, the prose cution, and attorneys for the defense are allowed to ask members of the jury pool a variety of questions intended to reveal any latent biases, prejudices, or other influences that might affect their impartiality. The jurors who are ultimately impaneled for trial need not represent a cross section of the community as long as each juror maintains impartiality throughout the proceedings. The presence of even one biased juror is not permitted under the Sixth Amendment (United States v. Aguon, 813 F.2d 1413 [9th Cir. 1987]).

A juror's impartiality may be compromised by sources outside the courtroom, such as the media. Jurors may not consider newspaper, television, and radio coverage before or during trial when evaluating the guilt or innocence of the defendant. Before trial, judges will take special care to filter out those jurors whose neutrality has been compromised by extensive media coverage. During trial, judges will instruct jurors to avoid exposing themselves to such extraneous sources. Exposure to information about the trial from an extraneous source, whether it be the media, a friend, or a family member, creates a presumption of prejudice to the defendant that can only be overcome by persuasive evidence that the juror can still render an impartial verdict (United States v. Rowley, 975 F.2d 1357 [8th Cir. 1992]). Failure to overcome this presumption will result in the reversal of any conviction.

The Sixth Amendment requires a trial judge to inquire as to the possible racial biases of prospective jurors when defendants request such an inquiry and there are substantial indications that racial prejudice could play a decisive role in the outcome of the case (United States v. Kyles, 40 F.3d 519 [2d Cir. 1994]). But an all-white jury does not, by itself, infringe on a black defendant's right to an impartial jury despite her contention that white jurors are incapable of acting impartially due to their perceived ignorance of inner-city life and its problems (United States v. Nururdin, 8 F.3d 1187 [7th Cir. 1993]). However, if a white juror is biased by an indelible prejudice against a black defendant, he will be stricken from the jury panel or venire.

For similar reasons, jurors are not permitted to begin deliberations until all of the evidence has been offered, the attorneys have made their closing arguments, and the judge has read the instructions. Federal courts have found that premature deliberations are more likely to occur after the prosecution has concluded its case in chief and before the defense has begun its presentation (United States v. Bertoli, 40 F.3d 1384 [3d Cir. 1994]). Federal courts have also determined that once a juror has expressed a view, he is more likely to view the evidence in a light most favorable to that initial opinion. If premature deliberations were constitutionally permitted, then the government would obtain an unfair advantage over defendants because many jurors would enter the final deliberations with a prosecutorial slant (United States v. Resko, 3 F.3d 684 [3d Cir. 1993]).

Although a jury must be impartial, there is no Sixth Amendment right to a jury of 12 persons. In Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970), the U.S. Supreme Court ruled that a jury of at least six persons is "large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a cross-section of the community." Conversely, the Court has declared that a jury of only five members is unconstitutionally small (Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234 [1978]).

Similarly, there is no Sixth Amendment right to a unanimous jury (Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184 [1972]). The "essential feature of a jury lies in the inter-position between the accused and the accuser of the common sense judgment of a group of laymen," the Court wrote in Apodaca. "A requirement of unanimity," the Court continued, "does not materially contribute to the exercise of that judgment." If a defendant is tried by a six-person jury, however, the verdict must be unanimous (Burch v. Louisiana, 441 U.S. 130, 99 S. Ct. 1623, 60 L. Ed. 2d 96 [1979]).

Notice of Pending Criminal Charges

The Sixth Amendment guarantees defendants the right to be informed of the nature and cause of the accusation against them. Courts have interpreted this provision to have two elements. First, defendants must receive notice of any criminal accusations that the government has lodged against them through an indictment, information, complaint, or other formal charge. Second, defendants may not be tried, convicted, or sentenced for a crime that materially varies from the crime set forth in the formal charge. If a defendant suffers prejudice or injury, such as a conviction, from a material variance between the formal charge and the proof offered at trial, the court will vacate the verdict and sentence.

The Sixth Amendment notice requirement reflects the efforts of the Founding Fathers to constitutionalize the common law concept of fundamental fairness that pervaded civil and criminal proceedings in England and the American colonies. Receiving notice of pending criminal charges in advance of trial permits defendants to prepare a defense in accordance with the specific nature of the accusation. Defendants who are incarcerated by totalitarian governments are frequently not apprised of pending charges until the trial begins. By requiring substantial conformity between the criminal charges and the incriminating proof at trial, the Sixth Amendment eliminates any confusion as to the basis of a particular verdict, thereby decreasing the chances that a defendant will be tried later for the same offense in violation of double jeopardy protections.

Many appeals have focused on the issue of what constitutes a material variance. In Stirone v. United States, 361 U.S. 212, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960), the U.S. Supreme Court found a material variance between an indictment charging the defendant with illegal importing activities, and the trial evidence showing that the defendant had engaged in illegal exporting activities. In United States v. Ford, 88 F.3d 1350 (4th Cir. 1996), the U.S. Court of Appeals for the Fourth Circuit found a material variance between an indictment charging the defendant with a single conspiracy, and the trial evidence demonstrating the existence of multiple conspiracies.

However, no material variance was found between an indictment that charged a defendant with committing a crime in Little Rock, Arkansas, and trial evidence showing that the crime was actually committed in North Little Rock, because both cities were within the jurisdiction of the court hearing the case (Moore v. United States, 337 F.2d 350 [8th Cir. 1964]). Nor was a material variance found in a check forgery case where the indictment listed the middle name of the defendant and the forged instrument included only a middle initial (Helms v. United States, 310 F.2d 236 [5th Cir. 1962]).

Confrontation of Adverse Witnesses

The Sixth Amendment guarantees defendants the right to be confronted by witnesses who offer testimony or evidence against them. The Confrontation Clause has two prongs. The first prong assures defendants the right to be present during all critical stages of trial, allowing them to hear the evidence offered by the prosecution, to consult with their attorneys, and otherwise to participate in their defense. However, the Sixth Amendment permits courts to remove defendants who are disorderly, disrespectful, and abusive (Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 [1970]). If an unruly defendant insists on remaining in the courtroom, the Sixth Amendment authorizes courts to take appropriate measures to restrain him. In some instances, courts have shackled and gagged recalcitrant defendants in the presence of the jury (Stewart v. Corbin, 850 F.2d 492 [9th Cir. 1988]). In other instances, defiant defendants have been removed from court and forced to watch the remainder of trial from a prison cell, through closed-circuit television.

The second prong of the Confrontation Clause guarantees defendants the right to face adverse witnesses in person and to subject them to cross-examination. Through cross-examination, defendants may test the credibility and reliability of witnesses by probing their recollection and exposing any underlying prejudices, biases, or motives to distort the truth or lie. Confrontation and cross-examination are vital components of the U.S. adversarial system.

Although defendants are usually given wide latitude in exercising their rights under the Confrontation Clause, courts retain broad discretion to impose reasonable restrictions on particular avenues of cross-examination. Defendants may be forbidden from delving into areas that are irrelevant, collateral, confusing, repetitive, or prejudicial. Similarly, defendants may not pursue a line of questioning solely for the purpose of harassment. For example, courts have prohibited defendants from cross-examining alleged rape victims about their sexual histories because such questioning is frequently demeaning and is unlikely to elicit answers that bear more than a remote relationship to the issue of consent (Bell v. Harrison, 670 F.2d 656 [6th Cir. 1982]).

In exceptional circumstances, defendants may be prevented from confronting their accusers face-to-face. If a judge determines that a fragile child would be traumatized by testifying in front of a defendant, the Sixth Amendment authorizes the court to videotape the child's testimony outside the presence of the defendant and later replay the tape during trial (Spigarolo v. Meachum, 934 F.2d 19 [2d Cir. 1991]). However, counsel for both the prosecution and defense must be present during the videotaped testimony. If neither the defendant nor her attorney are permitted the opportunity to confront a witness, even if the witness is a small child whose welfare might be harmed by rigorous cross-examination, the Sixth Amendment has been violated (Tennessee v. Deuter, 839 S.W.2d 391 [Tenn. 1992]).

Occasionally, defendants are denied the opportunity to confront and cross-examine their accusers under the controversial rules of hearsay evidence. Hearsay is a written or verbal statement made out of court by one person, and that is later repeated in court by another person who heard or read the statement, and presented for the truth of the matter asserted. Because such out-of-court statements are not typically made under oath or subject to cross-examination, the law treats them as untrustworthy when introduced into evidence by a person other than the original declarant. When hearsay statements are offered for their truth, they generally are deemed inadmissible by state and federal law.

However, certain hearsay statements, such as dying declarations, excited utterances, and officially kept records, are deemed admissible when made under reliable circumstances. Dying declarations are considered reliable when made by persons who have been informed of their impending death because such persons are supposedly more inclined to tell the truth. Excited utterances are considered reliable when made spontaneously and without time for premeditation. Business and public records are considered reliable when kept in the ordinary and official course of corporate or government activities. The prosecution may introduce all four types of evidence, as well as other "firmly rooted" exceptions to the hearsay rule, without violating the Sixth Amendment, even though the defendant is not afforded the opportunity to confront or to cross-examine the out-of-court declarant (United States v. Jackson, 88 F.3d 845 [10th Cir. 1996]).

Compulsory Process for Favorable Witnesses

As a corollary to the right of confrontation, the Sixth Amendment guarantees defendants the right to use the compulsory process of the judiciary to subpoena witnesses who could provide exculpatory testimony or who have other information that is favorable to the defense. The Sixth Amendment guarantees this right even if an indigent defendant cannot afford to pay the expenses that accompany the use of judicial resources to subpoena a witness (United States v. Webster, 750 F.2d 307 [5th Cir. 1984]). Courts may not take actions to undermine the testimony of a witness who has been subpoenaed by the defense. For example, a trial judge who discourages a witness from testifying by issuing unnecessarily stern warnings against perjury has violated the precepts of the Sixth Amendment (Webb v. Texas, 409 U.S. 95, 93 S. Ct. 351, 34 L. Ed. 2d 330 [1972]).

A statute that makes particular persons incompetent to testify on behalf of a defendant is similarly unconstitutional. At issue in Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967), was a state statute prohibiting accomplices from testifying for one another. Overturning the statute as a violation of the Sixth Amendment Compulsory Process Clause, the U.S. Supreme Court wrote that the defendant was denied the right to subpoena favorable witnesses "because the state arbitrarily denied him the right to put on the stand a witness who was physically present and mentally capable of testifying to events that he had personally observed and whose testimony was relevant and material to the defense."

Under certain circumstances, the prosecution may be required to assist the defendant in locating potential witnesses. In Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957), the defendant was charged with the illegal sale of heroin to "John Doe." When the prosecution refused to disclose the identity of John Doe, the U.S. Supreme Court concluded that the Sixth Amendment had been abridged because the disclosure of Doe's identity may have produced "testimony that was highly relevant and … helpful to the defense."

Defendants also have a Sixth Amendment right to testify on their own behalf. Before the American Revolution, defendants were not permitted to take the witness stand in Great Britain and in many of the colonies. The common law presumed all defendants to be incompetent to give reliable or credible testimony on their own behalf because of their vested interest in the outcome of the trial. Each defendant, regardless of his innocence or guilt, was declared incapable of offering truthful testimony when his life, liberty, or property was at stake. The Sixth Amendment laid this common law rule to rest in the United States. The amendment permits, but does not require, a defendant to testify on his own behalf.

Right to Counsel

Because of the law's complexity and the often substantial deprivations that a criminal conviction can produce, the Sixth Amendment provides criminal defendants with a right to counsel. A defendant's Sixth Amendment right to counsel attaches when the government initiates adversarial criminal proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment (United States v. Larkin, 978 F.2d 964 [7th Cir. 1992]). Unlike the right to a speedy trial, this Sixth Amendment right does not arise at the moment of arrest unless the government has already filed formal charges (Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 [1972]). However, defendants may assert a fifth amendment right to consult with an attorney during custodial interrogation by the police, even though no formal charges have been brought and no arrest has been made (miranda v. arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966]).

Defendants do not enjoy a Sixth Amendment right to be represented by counsel during every phase of litigation that follows the initiation of formal adversarial proceedings by the state. Instead, defendants may only assert this right during "critical stages" of the proceedings (Maine v. Moulton, 474 U.S. 159, 106 S. Ct. 477, 88 L. Ed. 2d 481 [1985]). A critical stage of prosecution includes every instance in which the advice of counsel is necessary to ensure a defendant's right to a fair trial or in which the absence of counsel might impair the preparation or presentation of a defense (United States v. Hidalgo, 7 F.3d 1566 [11th Cir. 1993]).

Obviously, the trial is a critical stage in any criminal proceeding, as are jury selection, sentencing, and nearly every effort by the government to elicit information from the accused, including interrogation. However, courts are divided on the issue of whether the state may perform a consensual search of a defendant's premises without the advice or presence of counsel. At the same time, courts generally agree that pretrial hearings involving issues related to bail, the suppression of evidence, or the viability of the prosecution's case all qualify as critical stages of criminal proceedings (Smith v. Lockhart, 923 F.2d 1314 [8th Cir. 1991]). The U.S. Supreme Court has ruled that the denial of counsel during a critical stage amounts to an unconstitutional deprivation of a fair trial, warranting the reversal of conviction (United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 [1984]).

Courts also generally agree on a number of instances that do not constitute critical stages. For example, pretrial scientific analysis of fingerprints, blood samples, clothing, hair, handwriting, and voice samples have all been ruled to be noncritical stages (United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 [1967]). Nor is a probable cause hearing sufficiently critical to trigger the right to counsel (Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 [1975]). Each of these noncritical stages has been described as a preliminary facet of criminal prosecution that is largely unassociated with the more adversarial phases invoking the right to counsel.

If a defendant cannot afford to hire an attorney, the Sixth Amendment requires that the trial judge appoint one on her behalf (gideon v. wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 [1963]). In instances where an indigent defendant has some financial resources, she may be required to reimburse the government for a portion of the fees paid to the court-appointed lawyer. The Sixth Amendment right of indigent criminal defendants to receive a court-appointed lawyer applies to every case involving a felony offense and to all other cases in which the defendant is actually incarcerated for any length of time, regardless of whether the crime is categorized as a misdemeanor or petty offense (Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 [1972]).

Persons who have been convicted of crimes may not compel a court-appointed attorney to file an appeal that the attorney believes is frivolous. In Anders v. California, 368 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the U.S. Supreme Court set out a procedure that an attorney must follow to request either withdrawal from the case or to have the court dispose of the case without a full legal review. However, in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L. Ed. 2d 756 (2000) the Court ruled that its precedent was not a "straitjacket" and that states were free to come up with procedures that protected both the criminal client and his attorney.

However, if an indigent defendant is prosecuted for a non-felony offense that is punishable by a potential jail or prison sentence, the Sixth Amendment is not violated if he is denied a court-appointed attorney as long as no penalty of incarceration is actually imposed (Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 [1979]). In other words, an indigent defendant has no Sixth Amendment right to a court-appointed lawyer in a non-felony case when the only punishment he receives is a fine, the forfeiture of property, or some other penalty not involving incarceration. Thus, in a forfeiture proceeding where the government seized almost $300,000 from an arrested drug smuggler, the Sixth Amendment right to counsel was not infringed when the court denied the smuggler's request for a court-appointed attorney because no jail or prison sentence was ultimately imposed (United States v. $292,888.04 in U.S. Currency, 54 F.3d 564 [9th Cir. 1995]).

Nor is the Sixth Amendment right to counsel infringed when an indigent defendant is denied a court-appointed lawyer of her choice (Ford v. Israel, 701 F.2d 689 [7th Cir. 1983]). The selection of counsel to represent an indigent defendant is within the discretion of the trial court. The attorney selected need not be a great litigator, a savvy negotiator, or the best attorney available. Rather, the court-appointed lawyer must be a member in good standing of the bar who gives the client his complete and undivided loyalty, as well as a zealous and good faith defense (United States v. Cariola, 323 F.2d 180 [3rd Cir. 1963]). The quality of representation need not be perfect but only effective and competent enough to assure the defendant due process of law (Pineda v. Bailey, 340 F.2d 162 [5th Cir. 1965]). If the attorney representing a defendant is incompetent, whether the attorney has been appointed by the court or privately retained, the Sixth Amendment right to the effective assistance of counsel has been violated.

The U.S. Supreme Court has reviewed numerous ineffective counsel claims. In Glover v. United States, 531 U.S. 198, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001), the Court allowed review based on ineffective counsel at the sentencing stage. In Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000), the Court considered whether a defense lawyer must always consult with a defendant regarding an appeal of the conviction. The Court rejected a bright-line rule that would have mandated such a consultation, ruling that each case must be analyzed using a set of standards. In death-penalty cases, the Court had been more willing to vacate convictions based on ineffective counsel. However, in Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002), the Court departed from what has come to be known as the "death is different" standard. This standard requires less hard evidence of prejudice because of ineffective counsel. The Court ruled that the convicted murderer's ineffective counsel claim must be analyzed by the "but for" test. The general rule mandates that the defendant show that "but for" the lawyer's conduct the result of the trial would have been different.

The court may replace any attorney, publicly appointed or privately retained, if that is in the best interests of the defendant. A court will normally replace an attorney who has a conflict of interest that prevents her from faithfully discharging her obligation of loyalty to the client. Courts also retain the prerogative to deny a defendant's request to substitute attorneys if the request comes too late in the proceedings, is made solely to delay the trial, or is not for a good reason. However, if a defendant demonstrates a good reason for the substitution of attorneys, such as a complete breakdown in communication between lawyer and client, the court must honor the request for substitution unless a compelling reason exists for denying it. The efficient administration of justice is one reason that has been deemed sufficiently compelling to deny such requests (United States v. D'Amore, 56 F.3d 1202 [9th Cir. 1995]).

Finally, all defendants have a Sixth Amendment right to decline the representation of counsel and proceed on their own behalf. Defendants who represent themselves are said to be proceeding pro se. However, defendants who wish to represent themselves must first make a knowing and intelligent waiver of the Sixth Amendment right to counsel before a court will allow them to do so. (Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 [1975]). Courts must ensure that the defendant appreciates the disadvantages of appearing pro se and that he understands the potential consequences. The defendant must be informed that the presentation of a defense in a criminal case is not a simple matter of telling a story, but that it requires skills in examining a witness, knowledge of the rules of evidence and procedure, and persuasive oratory abilities. However, the U.S. Supreme Court has declined to apply this rule pro se appeals. In Martinez v. Court of Appeal of California, Fourth Appellate District, 528 U.S. 152, 120 S.Ct. 684, 145 L. Ed. 2d 597 (2000), the Court held that Faretta did not apply and that the state appeals court could require that an attorney be appointed to conduct the criminal appeal. In so ruling, the Court made clear that the Sixth Amendment does not apply to appellate proceedings.