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The Sixth Amendment Right to Counsel and its Underlying Values: Defining the Scope of Privacy Protection

The Sixth Amendment Right to Counsel and its Underlying Values: Defining the Scope of Privacy Protection

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http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=7044&context=jclc

Winter 2000

Martin R. Gardner
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=7044&context=jclc

Winter 2000

Martin R. Gardner

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 Article 1 Winter 2000
Te Sixth Amendment Right to Counsel and itsUnderlying Values: Dening the Scope of PrivacProtection
Martin R. Gardner
 
Tis Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted forinclusion in Journal of Criminal Law and Criminology by an authorized administrator of Northwestern University School of Law Scholarly Commons.
Recommended Citation
Martin R. Gardner, Te Sixth Amendment Right to Counsel and its Underlying Values: Dening the Scope of Privacy Protection, 90 J.Crim. L. & Criminology 397 (1999-2000)
 
0091-4169/00/9002.0397
THE
JOURNAL F
CRD04AL
LAW & CRDAMJLOGY
Vol. 90,
No. 2
Copyright
0 2000
by
Nonhwesten
University,School
of
Law
Prnted
in
U.S.A.
CRIMINAL
LAW
THE
SIXTH
AMENDMENT
RIGHT
TO
COUNSEL
AND
ITS
UNDERLYING
VALUES:
DEFINING
THE
SCOPEOF
PRIVACY
PROTECTION
MARTIN
P,
GARDNER"
I.
INTRODUCTION
The
Sixth
Amendmenthas
been
described
by
leading
commentators
as
the
centralfeature
ofour
adversarial
system,
nevertheless"scholars,
lawyers,
and judges
have
oftenlost
their
way"
in
their
attempts
to
understand
the Amendment's
scope
and
underlying
values.
3
Such
observations
are
particularly
fit-
ting
inthe context
of
the
right
to
counselprovision.
A
search
of
.
SteinhartFoundation
Professor
of
Law,
University
of
Nebraska
College
of
Law.
The
author
expresseshis
gratitude to
Tammy
Mahl-Bodlak
andJosh Gardner
for
their
research
assistance.
The author
also
appreciates
the
support
provided
by
the
Ross
McCollumFaculty
Research
Fund
at
the
University
of
Nebraska
College
of
Law.
'The
Sixth
Amendment
providesin
full:
In
all
criminal
prosecutions,
the
accusedshall enjoy
the
right
to
a
speedy
and
public
trial,
by
an
impartial
jury of
the
State
and
district wherein the
crimeshall
have
been
com-
mitted,
which
district
shall
have
been
previously
ascertained
by
law,
and
tobe
informed
of
the
nature
and
cause
of
the
accusation;
to be
confronted
with
the
witnesses
against
him;
to
have
compulsoryprocess
for
obtaining
witnesses
in
his favor,
and
to
have
the
Assistance
of
Counsel
for
his
defence.
U.S.
CONST.
amend.
VI
2
See,
e.g.,
Akhil
R.
Amar,
Sixth Amendment
First
Principles,
84
GEO.
LJ.
641,
641
(1996)
("The
Sixth
Amendment
is
the
heartland
of
constitutional
criminal
proce-
dure.");JamesJ.
Tomkovicz,
The
Massiah
Right
to
Exclusion:
ConstitutionalPrenises
and
Doctrinalmplications,
67
N.C.L.
REv.
751,
753
(1989)
("The sixth
amendmentright
to
counsel
is
the central
element
of our
adversary
system.").
'
SeeAmar,supra
note
2.
397
 
MARTJNR
GARDNER
the
scholarly
literature
reveals
avariety
of
viewpoints
regardingthe
interests
embraced
by
the
Sixth
Amendment's
promise
that
"[iln
all
criminalprosecutions,
the
accused
shall
...
ave
the
Assistance
of
Counsel
for
hisdefense."
4
Moreover,
the reported
cases
bespeak
a
body
of
law
lacking
theoreticalcohesion.
5
This
Article
will
examine
the
doctrinalconfusion
atthe
heartof right
to
counseijurisprudence.
The
Article
will
identify
three
values
underlyingthe
Sixth
Amendment
Right
to Counsel
Clause
by
examining
several
leading
Supreme
Court
cases,
pay-
ing
particular
attention
to
the
possible
role
played
by
privacy
protection
as
a
basis
for
theCourt's
decisions.
The
discussion
will
then
review
lower
court
opinions
and
documentthe
sub-stantial
disagreement
by
thosecourts
as
to
the
role
of
privacy
protection
as
a Sixth
Amendment
value.
Building
on
an
opin-
ion
of
Chief
Judge
Richard
A.
Posner
of
the
Seventh
Circuit
Court
of
Appeals,
the
Article
will
then
derive
principles recom-
mended
as
useful
vehicles
for
defining
the
proper
scope
of
Sixth
Amendment
privacy.
Those principles
will
then
beap-
plied
to
the
relevant
body
of
Supreme
Court
case
law
illustrating
that
privacy
protection
is
not
a
relevant
value
in
those
cases.
Fi-
nally,
the
Article
will
urge judicial
clarification
of
the
function
of
attorney-client
privacy
in
right
to
counsel
cases
and
offer
the
principles
herein
as
aids
to
that
clarification.
'
See
supra
note
1;
infra
Part
V.B.
In
interpretingthe
Sixth
Amendment,the
Su-
preme Court
has
read thelimitation to"criminal prosecutions"
as
generatinga
righttocounsel
only
"at
or
after
the
time
that
adversary
judicial
proceedings
have
been
ini-
tiated."
Kirby
v.
Illinois,
406 U.S.
682, 688,690
(1972);
see
also
Brewer
v.
Williams,
430
U.S.
387, 398(1977)
(holding
that
a
person's
Sixth
Amendment
counsel
rightsattachwhen
"judicial
proceedings
have
been
initiated
against
him
'whether
by
way
of
formal
charge,
preliminary
hearing, indictment,
information,
or
arraignment'").
Moreover,when
the
trial process
is
completed,
the
"prosecution"ends
and the
Sixth
Amend-
ment
counsel provision
becomes inapplicable.
JOSHUA
DRESSLER,
UNDERSTANDING
CRIuMNAL
PROCEDURE
518
(2d
ed.
1997).
Despite
the
fact
that
the
Sixth
Amendment
right
tocounsel
terminates
at
the
completion
of
trial,
claims
that
counsel
rights
were
deniedat
trial
may
be
raised
in
postconviction
proceedings.
See,
e.g.,
CHARLES
H.
WHITEBREAD
&
CHRISTOPHER SLOBOGIN,
CRIMINALPROCEDURE
760-61,
888-97
(3rded.
1993).
5
See
infra
Part
Ill.
[Vol.
90

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