Extending the Right to Counsel?

In the “class participation” section of my comic, commenter G. T. Bogosian this morning asked:

Why does the supreme court keep guaranteeing that we have a right to counsel, but only in situations that almost never come up in real life? Is there some guiding constitutional interpretive philosophy that explains all or most of this? Or does the supreme court just really want to sound like they are pro-defendants’ rights without actually jeopardizing law-enforcement?

To which I hastily replied over my morning coffee:

They just haven’t extended the rule far enough yet.

Originally, the right-to-counsel clause of the Sixth Amendment was intended to allow you have a defense attorney. It was a reaction to the English rule prohibiting defense counsel.

The English prohibition started out as a well-intentioned policy. Originally, criminal trials didn’t involve lawyers on either side. The victim or his family presented their case, and the defendant defended himself. A criminal trial was a “battle of amateurs,” and so judges would strictly enforce the prohibition on defense counsel to be fair. Lawyers were also seen as an impediment, preventing the court from getting all the evidence it could have heard.

But by the time of the American Revolution, the rule had become unfair. Defendants had to deal with the intricacies of procedure, complexities of law, and now the government was using lawyers to prosecute cases. The Sixth Amendment was meant to fix that unfairness.

But the focus then was only on the trial itself. The framers of the Bill of Rights were really only thinking about trial. The Amendment’s rights apply “in all criminal prosecutions,” and at the time, that meant “at trial.”

Over time, however, prosecutions got longer, and more procedures came to be seen as being part of the case. Defendants had to face professional lawyer adversaries earlier and earlier, and confront witnesses at pretrial and preliminary hearings. The Supreme Court responded by extending the right to counsel, letting it take effect sooner.

The rule became that the right to counsel “attaches” at all “critical stages” of a prosecution before trial.

And that’s what the Court was thinking when it talked about interrogations and lineups. The Court was trying to be expansive, to say these investigative procedures were in fact “critical stages” of a prosecution, requiring the assistance of counsel.

But the right is still only about “criminal prosecutions.” And there is no prosecution until the defendant has been formally charged. A prosecution does not begin with a police investigation. A prosecution does not begin with an arrest. It begins with arraignment in court on a complaint, an indictment by a grand jury, and similar court procedures formally accusing the defendant of a crime.

It would be a leap of language — but not of logic — to extend the rule of the Sixth Amendment sooner, to extend it to police investigations. Remember, police weren’t a thing when the Sixth Amendment was written. They have since become an important part of the government’s prosecution of a case. The Court already recognizes that the investigative stage is a critical stage of the prosecution; it just hasn’t recognized that the investigative stage precedes the filing of an accusatory instrument.

Right now, however, that is where they’ve drawn the line. They’ve adhered to the words of the Amendment rather than the principle they’ve recognized. And this rule has become “well-settled” by the passage of time.

So the short answer to your question is they’re trying to protect defendants, but haven’t yet seen that to do that they need to extend the meaning of “criminal prosecution” to include police investigations.

It’s not impossible. They did that with self-incrimination, as we saw in the previous chapter, extending the right to pre-prosecution interrogations. Nevertheless, challenge to get the Court to extend the right to counsel meaningfully would have to overcome the inertia of stare decisis, would have to present a powerfully principled argument, and would have to rigorously unknot the Court’s perpetual confusion over what to do about police given (also covered in the previous chapter) that the law never contemplated the roles that police have taken on.

But now it’s later in the morning, I’m at work, having a coffee break, and I’m pondering a couple of things. My thoughts are disjointed, and perhaps writing them down will bring clarity.

We’ve already extended the right to counsel beyond the charging instrument to the police investigation, in the self-incrimination context. Is there really much of an obstacle to applying the same reasoning to other contexts where the Court recognizes the need for counsel’s protection? Would a rule like Miranda work in something like eyewitness identifications?

I don’t think it’s that much of a stretch. Yes, there are very different policies in play, but as a practical matter the rule would seem to work.

With self-incrimination, the policy is to prevent the government from forcing you to give evidence against yourself. There’s a waiveable right to counsel at a custodial interrogation in the hopes of ensuring that self-incrimination is voluntary. (That’s not how it works, but that’s not the point.)

With identifications, however, the policy is to prevent the government from interfering with a witness’s memory. Not overcoming your free will, but tampering with the evidence. Would a waiveable right to counsel insure against such tampering?

The Court has already recognized the need for counsel at post-indictment lineups and showups, to ensure minimal messing with minds. So it seems easy to extend that protection pre-indictment. (It hasn’t been extended to photo arrays, though, which can be just as dangerous and are much more common. But let’s just pretend those are included, for the sake of argument, and because I can dream, can’t I?)

But when would it attach? At first glance, the “custody” requirement of Miranda doesn’t make sense here. Custody is important to Miranda because it implies compulsion. But compulsion isn’t an issue in IDs.

Still, it couldn’t attach at the outset of a police investigation. Even though that’s arguably when the police can do the most damage to witness memory, by careless questioning and suggestion. Because there’s no suspect yet. Who’s the defense lawyer defending? Plus requiring a lawyer to be looking over the cop’s shoulder during the preliminary stages would be time-consuming, wasteful, and a serious impediment to collecting evidence.

Arrest, on the other hand, is too late. Often, the arrest isn’t made until after the ID procedure we’re trying to protect.

So on second thought, custody seems to be a meaningful bright line to draw. It’s already understood by police and counsel, for one thing. But it’s a workable line between when a lawyer is useful or not. Once the suspect is in custody, there’s someone whose rights can be defended. The preliminary stages of the investigation are over, so a lawyer is less of an impediment.

As showups usually require custody, they would have to wait until counsel could be obtained, unless counsel was waived. That could be a problem. Most showups are quick-and-dirty “did we get the right guy” scenarios shortly after the crime. Requiring counsel would require a lot of delay. In a drive-by ID, I reckon counsel would have to be in the car with the witness and the detective, to make sure nothing too suggestive was said, and that could be physically difficult to arrange. The logistics aren’t insurmountable, but they’re awkward.

But lineups and photo arrays are easy. While the detectives are setting everything up, they bring in the lawyer as well. Logistically not a problem. And even in showups, the lawyer isn’t an impediment. Police actually do want to do these things right, and a lawyer’s role would be to ensure that they do.

If the right’s waiveable, what would the warnings look like? “An eyewitness is going to look at you, to tell us if they recognize you as the person who committed a crime. You have the right to have an attorney present during this procedure. If you cannot afford to hire an attorney, one will be appointed to represent you. Do you wish to have an attorney present at this time?” Again, awkward. But not terribly so.

Would it even be waived? This isn’t like confessions, where suspects often want to tell their story, and will gladly waive their rights in order to do so. A suspect has nothing to gain from waiving here, so I imagine few rational suspects would say “nah, go ahead, I don’t need a lawyer for this.”

As a practical matter, I don’t see it being waived all that often. So a defense lawyer would be required at most ID procedures. In interrogations, invoking the right to counsel simply means “no interrogation.” They don’t go round up a lawyer. Would a right to counsel in identifications essentially mean “no identifications?” I don’t see any court agreeing to that, if that’s the case.

And yet, with both interrogations and identifications, the courts have recognized the great potential for injustice, and have stated that a lawyer’s protection is the remedy. And perhaps the risk of losing identifications isn’t that high. It’s not as if the police would decline to conduct ID procedures just because a lawyer would be watching. It’s not the same as interrogations, where any lawyer would simply advise her client not to answer any questions. Here, a lawyer would only be watching to make sure the police did their job right. It’s a very different dynamic. I imagine that it wouldn’t reduce the number of ID procedures meaningfully.

So to answer my own questions, I’m starting to convince myself that a rule analogous to Miranda might actually work in the ID world. Once a suspect is in custody, he has a waiveable right to an attorney at any ID procedure. It seems doable, and consistent with the way our law’s been trending over the past 75 years or so.

Welp, coffee break’s over. I’m done rambling. It’s been fun, but back to work.