Fifth Amendment rights

If the police place a bundle of confiscated cash in front of a suspect in order to get a response, this could amount to the functional equivalent of a question. Miranda requires that police officers make an affirmative and active effort to inform someone of his or her Fifth Amendment rights; they cannot assume that the suspect is aware of his or her constitutional rights. The warnings contain four parts that are now familiar to most Americans: 1. You have the right to remain silent. 2. Anything you say can and will be used against you in court. 3. You have the right to talk with an attorney and to have an attorney present before and during any questioning. 4. If you cannot afford an attorney, one will be appointed free of charge to represent you before and during any questioning. One of three things can occur after the warning is read: 1. The suspect refuses to talk, in which case police questioning must stop. 2. The suspect agrees to talk without the assistance of counsel. 3. The suspect agrees to talk and expresses a desire to have counsel present. Fourteenth Amendment and Due Process In the 1932 case of Powell v. Alabama,15 the Supreme Court reversed the convictions of several poor defendants who were not represented by counsel at their trial. The Court argued, in part, that the defendants’ due process rights were violated, not the Sixth Amendment’s right to counsel provision. It said that the defendants were “denied due process of law and the equal protection of the laws in contravention of the Fourteenth Amendment.”16 While a critical milestone in itself, the Powell case only applied to “capital case[s], where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like.”17 Because of this limitation, the Supreme Court was forced to return to this issue in a series of cases that relied on the Sixth Amendment.

Discussion Question What does “effective assistance” mean? What are some specific examples of ineffective assistance? Effective Assistance of Counsel Over the years, the Supreme Court has paid increasing attention to effective assistance of counsel. In general, defense representation must be effective for the Sixth Amendment to be satisfied. The Sixth Amendment does not explicitly state that effective assistance of counsel is required, but the Supreme Court has interpreted it this way. However, the right to effective assistance only applies where the right to counsel applies. For example, the Supreme Court has held that a defense attorney’s failure to file a timely discretionary appeal was not “ineffective” because the right to counsel does not extend to such appeals.18 Only where counsel is required can an ineffective assistance claim be made. Ineffective assistance claims can be filed against both retained and appointed counsel. For a time the Supreme Court held that nonindigent defendants who retained their own attorney were bound by that attorney’s representation (for better or worse) because there was no “state action” responsible for the ineffective representation.

However, in Cuyler v. Sullivan,19 the Court held that privately retained counsel can be ineffective in the same way a public defender can.20 When Is Counsel Effective? What is effective assistance of counsel? The Supreme Court first tried to answer this question in the 1970 case of McMann v. Richardson.21 There, it held that counsel is effective when the legal advice is “within the range of competence demanded of attorneys in criminal cases.”22 This standard was somewhat vague, so the Court offered clarification in Strickland v. Washington.23 In that case, the Court created a two-pronged test for determining effective assistance of counsel: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable.