Custodial Interrogation .--At first, the Court followed the rule of ''fundamental fairness,'' assessing whether under all the circumstances a defendant was so prejudiced by the denial of access to counsel that his subsequent trial was tainted. 257 It was held in Spano v. New York 258 that under the totality of circumstances a confession obtained in a post-indictment interrogation was involuntary, and four Justices wished to place the holding solely on the basis that post-indictment interrogation in the absence of defendant's lawyer was a denial of his right to assistance of counsel. That holding was made in Massiah v. United States, 259 in which federal officers caused an informer to elicit from the already-indicted defendant, who was represented by a lawyer, incriminating admissions which were secretly overheard over a broadcasting unit. Then, in Escobedo v. Illinois, 260 the Court held that preindictment interrogation was a violation of the Sixth Amendment. But Miranda v. Arizona 261 switched from reliance on the Sixth Amendment to the Fifth Amendment's self-incrimination clause, although that case still placed great emphasis upon police warnings with regard to counsel and foreclosure of interrogation in the absence of counsel without a valid waiver by defendant.
Massiah was reaffirmed and in some respects expanded by the Court. Thus, in Brewer v. Williams, 262 the right to counsel was found violated when police elicited from defendant incriminating admissions not through formal questioning but rather through a series of conversational openings designed to play on the defendant's known weakness. The police conduct occurred in the post-arraignment period in the absence of defense counsel and despite assurances to the attorney that defendant would not be questioned in his absence. United States v. Henry 263 held that government agents violated the Sixth Amendment right to counsel when they contacted the cellmate of an indicted defendant and promised him payment under a contingent fee arrangement if he would ''pay attention'' to incriminating remarks initiated by the defendant and others. The Court concluded that even if the government agents did not intend the informant to take affirmative steps to elicit incrimi nating statements from the defendant in the absence of counsel, the agents must have known that result would follow.
The Court has extended the Edwards v. Arizona 264 rule protecting in-custody requests for counsel to post-arraignment situations where the right derives from the Sixth Amendment rather than the Fifth. Thus, the Court held in Michigan v. Jackson, ''if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid.'' 265 The Court concluded that ''the reasons for prohibiting the interrogation of an uncounseled prisoner who has asked for the help of a lawyer are even stronger after he has been formally charged with an offense than before.'' 266 The protection, however, is not as broad under the Sixth Amendment as it is under the Fifth. While Edwards has been extended to bar custodial questioning stemming from a separate investigation as well as questioning relating to the crime for which the suspect was arrested, 267 this extension does not apply for purposes of the Sixth Amendment right to counsel. The Sixth Amendment right is ''offense-specific,'' and so also is ''its Michigan v. Jackson effect of invalidating subsequent waivers in police-initiated interviews.'' 268 Therefore, while a defendant who has invoked his Sixth Amendment right to counsel with respect to the offense for which he is being prosecuted may not waive that right, he may waive his Miranda-based right not to be interrogated about unrelated and uncharged offenses.
The remedy for violation of the Sixth Amendment rule is exclusion from evidence of statements so obtained. 269 And, while the basis for the Sixth Amendment exclusionary rule--to protect the right to a fair trial--differs from that of the Fourth Amendment rule--to deter illegal police conduct--exceptions to the Fourth Amendment's exclusionary rule can apply as well to the Sixth. In Nix v. Williams, 270 the Court held the ''inevitable discovery'' exception applicable to defeat exclusion of evidence obtained as a result of an interrogation violating the accused's Sixth Amendment rights. ''Exclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial.'' 271 Also, an exception to the Sixth Amendment exclusionary rule has been recognized for the purpose of impeaching the defendant's trial testimony. 272
Lineups and Other Identification Situations .--The concept of the ''critical stage'' was again expanded and its rationale formulated in United States v. Wade, 273 which, with Gilbert v. California, 274 held that lineups are a critical stage and that in-court identification of defendants based on out-of-court lineups or show-ups without the presence of defendant's counsel is inadmissible. The Sixth Amendment guarantee, said Justice Brennan, was intended to do away with the common-law limitation of assistance of counsel to matters of law, excluding matters of fact. The abolition of the fact-law distinction took on new importance due to the changes in investigation and prosecution since adoption of the Sixth Amendment. ''When the Bill of Rights was adopted there were no organized police forces as we know them today. The accused confronted the prosecutor and the witnesses against him and the evidence was marshalled, largely at the trial itself. In contrast, today's law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused's fate and reduce the trial itself to a mere formality. In recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee to apply to 'critical' stages of the proceedings. . . . The plain wording of this guarantee thus encompasses counsel's assistance whenever necessary to assure a meaningful 'defence.''' 275
''It is central to [the principle of Powell v. Alabama] that in addition to counsel's presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial.'' 276 Counsel's presence at a lineup is constitutionally necessary because the lineup stage is filled with numerous possibilities for errors, both inadvertent and intentional, which cannot adequately be discovered and remedied at trial. 277 However, because there was less certainty and frequency of possible injustice at this stage, the Court held that the two cases were to be given prospective effect only; more egregious instances, where identification had been based upon lineups conducted in a manner that was unnecessarily suggestive and conducive to irreparable mistaken identification, could be invalidated under the due process clause. 278 The Wade-Gilbert rule is inapplicable to other methods of obtaining identification and other evidentiary material relating to the defendant, such as blood samples, handwriting exemplars, and the like, because there is minimal risk that the absence of counsel might derogate from the defendant's right to a fair trial. 279
In United States v. Ash, 280 the Court redefined and modified its ''critical stage'' analysis. According to the Court, the ''core purpose'' of the guarantee of counsel is to assure assistance at trial ''when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor.'' But assistance would be less than meaningful in the light of developments in criminal investigation and procedure if it were limited to the formal trial itself; therefore, counsel is compelled at ''pretrial events that might appropriately be considered to be parts of the trial itself. At these newly emerging and significant events, the accused was confronted, just as at trial, by the procedural system, or by his expert adversary, or by both.'' 281 Therefore, unless at the pretrial stage there was involved the physical presence of the accused at a trial-like confrontation at which the accused requires the guiding hand of counsel, the Sixth Amendment does not guarantee the assistance of counsel.
Since the defendant was not present when witnesses to the crime viewed photographs of possible guilty parties, since therefore there was no trial-like confrontation, and since the possibilities of abuse in a photographic display are discoverable and reconstructable at trial by examination of witnesses, an indicted defendant is not entitled to have his counsel present at such a display. 282
Both Wade and Gilbert had already been indicted and counsel had been appointed to represent them when their lineups were conducted, a fact noted in the opinions and in subsequent ones, 283 but the cases in which the rulings were denied retroactive application involved preindictment lineups. 284 Nevertheless, in Kirby v. Illinois 285 the Court held that no right to counsel existed with respect to lineups that precede some formal act of charging a suspect. The Sixth Amendment does not become operative, explained Justice Stewart's plurality opinion, until ''the initiation of adversary judicial criminal proceedings-- whether by way of formal charge, preliminary hearings, indictment, information, or arraignment. . . . The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the Government has committed itself to prosecute, and only then that the adverse positions of Government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the 'criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable.'' 286 The Court's distinguishing of the underlying basis for Miranda v. Arizona 287 left that case basically unaffected by Kirby, but it appears that Escobedo v. Illinois, 288 and perhaps other cases, is greatly restricted thereby.
Post-Conviction Proceedings .--Counsel is required at the sentencing stage, 289 and the Court has held that where sentencing was deferred after conviction and the defendant was placed on probation, he must be afforded counsel at a hearing on revocation of probation and imposition of the deferred sentence. 290 Beyond this stage, however, it would appear that the issue of counsel at hearings on the granting of parole or probation, the revocation of parole which has been imposed following sentencing, and prison disciplinary hearings will be determined according to due process and equal protection standards rather than by further expansion of the Sixth Amendment. 291
Noncriminal and Investigatory Proceedings .--Commitment proceedings which lead to the imposition of essentially criminal punishment are subject to the due process clause and require the assistance of counsel. 292 A state administrative investigation by a fire marshal inquiring into the causes of a fire was held not to be a criminal proceeding and hence, despite the fact that the petitioners had been committed to jail for noncooperation, not the type of hearing at which counsel was requisite. 293 Another decision refused to extend the right to counsel to investigative proceedings antedating a criminal prosecution, and sustained the contempt conviction of private detectives who refused to testify before a judge authorized to conduct a non-prosecutorial, fact-finding inquiry akin to a grand jury proceeding, and who based their refusal on the ground that their counsel were required to remain outside the hearing room. 294
[Footnote 255] 399 U.S. 1 (1970). Justice Harlan concurred solely because he thought the precedents compelled him to do so, id. at 19, while Chief Justice Burger and Justice Stewart dissented. Id. at 21, 25. Inasmuch as the role of counsel at the preliminary hearing stage does not necessarily have the same effect upon the integrity of the factfinding process as the role of counsel at trial, Coleman was denied retroactive effect in Adams v. Illinois, 405 U.S. 278 (1972). Justice Blackmun joined Chief Justice Burger in pronouncing Coleman wrongly decided. Id. at 285, 286. Hamilton and White, however, were held to be retroactive in Arsenault v. Massachusetts, 393 U.S. 5 (1968).
[Footnote 259] 377 U.S. 201 (1964). See also McLeod v. Ohio, 381 U.S. 356 (1965) (applying Massiah to the States, in a case not involving trickery but in which defendant was endeavoring to cooperate with the police). But see Hoffa v. United States, 385 U.S. 293 (1966). Cf. Milton v. Wainwright, 407 U.S. 371 (1972).
[Footnote 262] 430 U.S. 387 (1977). Chief Justice Burger and Justices White, Blackmun, and Rehnquist dissented. Id. at 415, 429, 438. Compare Rhode Island v. Innis, 446 U.S. 291 (1980), decided on self- incrimination grounds under similar facts.
[Footnote 266] 475 U.S. at 631 . If a prisoner does not ask for the assistance of counsel, however, and voluntarily waives his rights following a Miranda warning, these reasons disappear. Moreover, although the right to counsel is more difficult to waive at trial than before trial, ''whatever standards suffice for Miranda's purposes will also be sufficient [for waiver of Sixth Amendment rights] in the context of postindictment questioning.'' Patterson v. Illinois, 487 U.S. 285, 298 (1988).
[Footnote 276] Id. at 226 (citations omitted).
[Footnote 277] Id. at 227-39. Previously, the manner of an extra-judicial identification affected only the weight, not the admissibility, of identification testimony at trial. Justices White, Harlan, and Stewart dissented, denying any objective need for the Court's per se rule and doubting its efficacy in any event. Id. at 250.
[Footnote 281] Id. at 309-10, 312-13. Justice Stewart, concurring on other grounds, rejected this analysis, id. at 321, as did the three dissenters. Id. at 326, 338-344. ''The fundamental premise underlying all of this Court's decisions holding the right to counsel applicable at ''critical' pretrial proceedings, is that a 'stage' of the prosecution must be deemed 'critical' for the purposes of the Sixth Amendment if it is one at which the presence of counsel is necessary 'to protect the fairness of the trial itself.''' Id. at 339 (Justice Brennan dissenting). Examination of defendant by court-appointed psychiatrist to determine his competency to stand trial, after his indictment, was a ''critical'' stage, and he was entitled to the assistance of counsel before submitting to it. Estelle v. Smith, 451 U.S. 454, 469 -71 (1981). Constructive notice is insufficient to alert counsel to psychiatric examination to assess future dangerousness of an indicted client. Satterwhite v. Texas, 486 U.S. 249 (1987) (also subjecting Estelle v. Smith violations to harmless error analysis in capital cases).
[Footnote 286] Id. at 689-90. Justices Brennan, Douglas, and Marshall, dissenting, argued that it had never previously been doubted that Wade and Gilbert applied in preindictment lineup situations and that in any event the rationale of the rule was no different whatever the formal status of the case. Id. at 691. Justice White, a dissenter in Wade and Gilbert, dissented simply on the basis that those two cases controlled this one. Id. at 705. Indictment, as the quotation from Kirby indicates, is not a necessary precondition. Any initiation of judicial proceedings suffices. E.g., Brewer v. Williams, 430 U.S. 387 (1977) (suspect had been seized pursuant to an arrest warrant, arraigned, and committed by court). United States v. Gouveia, 467 U.S. 180 (1984) (Sixth Amendment attaches as of arraignment--there is no right to counsel for prison inmates placed under administrative segregation during a lengthy investigation of their participation in prison crimes).
[Footnote 287] ''[T]he Miranda decision was based exclusively upon the Fifth and Fourteenth Amendment privilege against compulsory self- incrimination, upon the theory that custodial interrogation is inherently coercive.'' 406 U.S. 688 , (Emphasis by Court).
[Footnote 288] ''But Escobedo is not apposite here for two distinct reasons. First, the Court in retrospect perceived that the 'prime purpose' of Escobedo was not to vindicate the constitutional right to counsel as such, but, like Miranda, 'to guarantee full effectuation of the privilege against self-incrimination. . . .' Johnson v. New Jersey, 384 U.S. 719, 729 . Secondly, and perhaps even more important for purely practical purposes, the Court has limited the holding of Escobedo to its own facts, Johnson v. New Jersey, supra, at 733-34, and those facts are not remotely akin to the facts of the case before us.'' Id. at 689. But see id. at 693 n.3 (Justice Brennan dissenting).
[Footnote 291] Counsel is not a guaranteed right in prison disciplinary proceedings. Wolff v. McDonnell, 418 U.S. 539, 560 -70 (1974); Baxter v. Palmigiano, 425 U.S. 308, 314 -15 (1976). Other cases are assembled infra under analysis of the Fourteenth Amendment due process clause.