Washington Law Review


In this Article, Professor Mulroy discusses a current circuit split over whether the Sixth Amendment right to counsel can ever attach prior to a prosecutor filing a formal charge (i.e., an indictment or information). Relying on language in several Supreme Court opinions, some lower courts impose a bright-line rule stating that unless there has been such a formal charge (or unless the defendant has appeared before a judge), the right can never attach, in part because the Sixth Amendment’s text refers to a “criminal prosecution” and an “accused.” This rule can lead to harsh results—e.g., where a prosecutor takes advantage of an uncounseled defendant in pre-indictment plea negotiations, or where defense counsel in such negotiations provides unprofessional service, but there can be no claim for ineffective assistance of counsel. The Article argues against a bright-line rule. Professor Mulroy argues that a proper understanding of the Amendment’s text, the language of the relevant Supreme Court opinions explaining the underlying reasons for right to counsel protection, and pragmatic considerations of basic fairness all support a pre-charge right to counsel in at least some circumstances. He proposes a new rule: the right attaches whenever a prosecutor is involved in substantive communications with a defendant, either directly or through defense counsel. This rule would apply to: pre-charge plea and other negotiations; subpoenaed grand jury testimony; pretrial depositions taken pursuant to Rule 15 of the Federal Rules of Criminal Procedure; and similar situations. It derives analogous support from the “no contact” ethical requirement of Model Rule 4.2, and, as applied to custodial interrogations, harmonizes Sixth Amendment doctrine with Fifth Amendment case law

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