Dean Mulroy’s Faculty Presentation: The Bright Line’s Dark Zone: Pre-Charge Attachment of the 6th Amendment Right to Counsel

Join SBA tomorrow at noon as we bring back our Faculty Presentations! Tomorrow we are graced with the presence of Dean Mulroy who will present “The Bright Line’s Dark Zone: Pre-Charge Attachment of the 6th Amendment Right to Counsel.”

Does a suspect have a right to the assistance of counsel, even before charges are filed?

There is currently a split among the federal circuits as to when a defendant’s Sixth Amendment right counsel “kicks in” during the course of a criminal investigation. The right to counsel under the Sixth Amendment is distinct from the right to counsel under the Fifth Amendment, which is the one familiar from the Miranda warning. The Fifth Amendment right to counsel protects one from the inherently coercive nature of custodial interrogation. The purpose of the Sixth Amendment right to counsel is to protect one accused of a crime from the government’s inherent advantage in expertise and resources.

All agree the right to counsel applies post-indictment. But there are a number of situations – most notably, pre-indictment plea negotiations involving the prosecutor – where a defendant may need the assistance of counsel even before formal charges are filed. Yet some circuits say there is a “bright line rule” that the Sixth Amendment affords NO right to counsel prior to indictment. In these jurisdictions, if a prosecutor takes advantage of a defendant in plea negotiations, or if defense counsel is grossly negligent giving bad advice as to whether a defendant should accept a plea offer, the defendant’s chances of a legal remedy may turn on whether the indictment was filed the day before or the day after. Is this reasonable? Is it fair? If the custodial interrogation setting is inherently coercive, what about the plea negotiation setting?

Our own Associate Dean and Professor of Law Steve Mulroy has recently published an article in which he argues against the bright line stance taken by some circuits. He proposes a new rule to decide when criminal defendants are entitled to the assistance of counsel. It in part analogizes to the “no contact” rule of legal ethics.

Room 326. Lunch will be provided.