Right to Counsel
Attachment of the right to counsel
• The Sixth Amendment right to counsel attaches when the State initiates adversarial proceedings against a person by filing an indictment or information.
Right to counsel at identification procedures conducted prior to the filing of an information or indictment
• [The] defendant is not entitled to counsel at a lineup that is held before he is formally charged by the filing of an information or indictment.
See Strowmatt v. State, 686 N.E.2d 154, 158 (Ind. Ct. App. 1997), reh’g denied(citing Bray v. State, 443 N.E.2d 310, 313-14 (Ind. 1982))(“Once a charge is filed, a defendant has the right to the presence of counsel at any critical stage of the proceedings. However, a lineup conducted prior to the filing of an information or indictment is not a critical stage which necessitates the presence of counsel to preserve a defendant’s right to a fair trial.”)
See also Page v. State, 582 N.E.2d 438, 440 (Ind. Ct. App. 1991)(citing Bray v. State, 443 N.E.2d 310, 313-14 (Ind. 1982))(“Although the presence of counsel is necessary at any critical stage in the proceedings to preserve the defendant’s right to a fair trial, a lineup conducted prior to the filing of an information or indictment is not a critical stage which requires counsel.”)
• [T]here was no right to counsel at the confrontation since the right to counsel does not attach until the judicial adversary proceedings are begun either by the filing of an affidavit or by indictment.
See Wethington v. State, 560 N.E.2d 496, 504 (Ind. 1990)(citing Kirby v. Illinois, 406 U.S. 682, 690 (1972))(“[T]he confrontations between [the defendant] and the victims were conducted before the initiation of adversary proceedings, and therefore his right to counsel was not violated because it had not yet attached.”)
• The fact that charges have been filed against a defendant concerning unrelated incidents does not entitle him to counsel at a lineup where he has not been charged with any criminal offense relating to the lineup’s purpose, and for which he is subsequently charged, tried and convicted.
Right to counsel at lineups conducted after the filing of an information or indictment
• Once charges are filed against defendant[,] the Sixth Amendment right to counsel attaches to any critical stage in the proceedings, including pretrial identification lineups . . . .
See Young v. State, 700 N.E.2d 1143, 1146 (Ind. 1998)(“The Sixth Amendment right to counsel attaches when an adversary judicial proceeding is initiated against the defendant and includes the right to have counsel present at a pretrial lineup.”)
See also United States v. Wade, 388 U.S. 218, 236-37 (1967)(quoting Powell v. Alabama, 287 U.S 45, 57 (1932))(some alterations in the original)(“[T]here can be little doubt that for [the defendant] the postindictment lineup was a critical stage of the prosecution at which he was ‘as much entitled to such aid [of counsel] . . . as at the trial itself.’”)
Right to counsel at photo arrays
• The Sixth Amendment does not grant the right to counsel at photographic displays conducted by the Government for the purpose of allowing a witness to attempt an identification of the offender.
United States v. Ash, 413 U.S. 300, 321 (1973)(“We hold, then, that the Sixth Amendment does not grant the right to counsel at photographic displays conducted by the Government for the purpose of allowing a witness to attempt an identification of the offender.”)
• In the United States Supreme Court’s recent decision in United States v. Ash, 413 U.S. 300 (1973) . . . it was specifically held that the Sixth Amendment does not grant the right to have counsel present at a post indictment photographic display. The court stated that this type of display was not a critical stage of the criminal proceeding since the accused was not present at the display and did not require aid in ‘coping with legal problems or help in meeting his adversary.’ Under the Ash decision therefore [the defendant’s] Sixth Amendment contention is without merit.
Role of counsel at a lineup
• The role of an attorney at a line-up differs from his usual role as counsel for the criminal defendant. A suspect in custody has no choices to make, and his attorney does not function in the usual advisory fashion. Rather the line-up role of counsel is essentially that of witness to the procedure, to permit reconstruction of that procedure and to deter abuses.
See Little v. State, 475 N.E.2d 677, 684 (Ind. 1985)(citing Bruce v. State, 375 N.E.2d 1042, 1086 (Ind. 1978), reh’g denied, cert. denied, 439 U.S. 988 (1978))(“[T]he role of counsel at the lineup is essentially that of a witness[,] to enable reconstruction of the lineup procedures and to deter prejudices or abuses . . . .”)
Sanctions for violating the right to counsel
• When the police conduct a lineup without defense counsel at a time when the defendant has the right to have counsel present, evidence of the witness’ identification at the lineup is inadmissible.
See Hatcher v. State, 414 N.E.2d 561, 563 (Ind. 1981)(citing Gilbert v. California, 388 U.S. 263, 273 (1981))(“Moreover, when police conduct an uncounseled “lineup” at a time when the defendant is entitled to counsel, the sanctions are clear. Evidence of a witness’ identification of the accused at the “lineup” is per se inadmissible at trial.”)