SIXTH AMENDMENTSIXTH AMENDMENTSIXTH AMENDMENTSIXTH AMENDMENTSIXTH AMENDMENT
I. RIGHT TO COUNSEL
A. Origin
In all criminal prosecutions, the accused shall enjoy the
right ... to have the assistance of counsel for his or her
defense. N.J. Const. 1947, Art. I, ¶ 10; U.S. Const. Amend.
VI.
Powell v. Alabama, 287 U.S. 46 (1932), held “The
right to be heard would be in many cases, of little avail if it
did not comprehend the right to be heard by counsel. Even
the intelligent and educated layman has small and
sometimes no skill in the science of law. If charged with
crime, he is incapable, generally of determining for himself
whether the indictment is good or bad. He is unfamiliar
with the rules of evidence. Left without the aid of counsel
he may be put on trial without a proper charge, and
convicted upon incompetent evidence, or evidence
irrelevant to the issue or otherwise inadmissible. He lacks
both the skills and knowledge to adequately prepare his
defenses, even though he may have a perfect one. He
requires the guiding hand of counsel in every step of the
proceedings against him. Without it, though he be not
guilty, he faces the danger of conviction because he does
not know how to establish his innocence....” Id. at 68-69.
Gideon v. Wainwright, 372 U.S. 335 (1963), held that
the Sixth Amendment is obligatory on the states, and
therefore the right to counsel was extended to indigent
defendants in state courts.
See Pointer v. Texas, 380 U.S. 400 (1965); Rodriguez v.
Rosenblatt, 58 N.J. 281, 285 (1971); State v. Slattery, 239
N.J. Super. 534, 543-44 (App. Div. 1990); State v. Melvins,
155 N.J. Super. 316 (App. Div. 1978), certif. denied 87 N.J.
320 (1981).
The right to counsel attaches only at or after the
initiation of adversary judicial proceedings against a
defendant. It is at this point the criminal prosecution is
commenced. Kirby v. Illinois, 406 U.S. 682 (1972). See
Michigan v. Jackson, 475 U.S. 625 (1986)(defendant’s
request for appointment of counsel at arraignment is
sufficient to invoke Sixth Amendment right to counsel to
extend to all subsequent formal and informal proceedings).
See also State v. P.Z., 152 N.J.I 86, 110 (1996)(during pre-
indictment period of criminal investigation, a law
enforcement officer can question defendant without
implicating his Sixth Amendment right; interview with
social worker does not trigger the right during this time
period either). See also State v. Tucker, 137 N.J. 259, 288-
291 (1994).There is no right to an attorney before taking, or before
refusing to take, a breathalyzer test. State v. Macuk, 57 N.J.
1, 15 (1970); State v. Leavitt, 107 N.J. 454 (1987); State v.
DeLorenzo, 210 N.J.Super. 100, 104 (App. Div.), certif.
denied 105 N.J. 507 (1986).The Court must honor a defendant’s request for
counsel at a bail hearing. State v. Fann, 239 N.J. Super. 507
(Law Div. 1990).Defendant’s right to counsel was not violated when he
made incriminating statements to police, after being given
Miranda rights several times but never requested an
attorney, even though in his interview with Criminal Case
Management Office, he was deemed eligible and
recommended for acceptance for Public Defender
assistance. State v. Perez, 334 N.J. Super. 296 (App. Div.
2000).There is no right to counsel where an out-of-court
identification precedes both custody and arrest. State v.
Royster, 57 N.J. 472, 482 (1971) and State v. Farrow, 61
N.J. 434 (1972), cert. denied 410 U.S. 937 (1972).Suspect must be given the opportunity to have counsel
present at pre-arrest and pre-charge investigative
detentions such as line-up identification procedure. State
v. Hall, 93 N.J. 552 (1983).Defendant is entitled to counsel at post-indictment
identification line-up, which is a “critical stage” of the
prosecution. United States v. Wade, 388 U.S. 218 (1967);
Gilbert v. California, 388 U.S. 263 (1967).Counsel should be appointed for defendant with
history of psychiatric problems and current disorder
creates reasonable basis to question defendant’s compe-
tency to stand trial or proceed pro se, even if defendant is
not facing consequence of magnitude. State v. Ehrenberg,
284 N.J. Super. 309 (Law Div. 1994).When defendant’s testimony is interrupted by
overnight recess, defendant has constitutional right to
discuss his testimony with counsel. To prohibit such
consultation deprives defendant of his right to assistance of
counsel; prejudice is presumed and reversal automatic.
State v. Fusco, 93 N.J. 578 (1983).