A relational Sixth Amendment during interrogation.

I. INTRODUCTION

[L]awyers in criminal courts are necessities, not luxuries. (1)

Ever since the U.S. Supreme Court trumpeted the Sixth Amendment right to counsel in Gideon v. Wainwright, (2) our legal culture has extolled the value of this right in ensuring a fair criminal trial. (3) Yet, a "fair trial" implicates much more than the trial itself, particularly since the vast majority of today's criminal cases--90% or more--are resolved by negotiated disposition rather than trial. (4) Defendants thus rarely face their accusers during traditional courtroom proceedings that pit skilled trial lawyers against each other. Instead, defense attorneys determine most clients' fate through telephone calls, meetings, and investigations, and by advising a client effectively on how properly to limit the scope or strength of a prosecution, all to achieve the best disposition possible. (5) Increasingly, the assistance of counsel during a criminal prosecution occurs in pretrial contexts where, after a charge has been filed, (6) preemptive legal advice is imparted, damage is minimized, and bargains are struck.

Perhaps in no pretrial context can this advice of counsel matter more than during an interrogation, (7) where cases and deals often can be won or lost. (8) Yet, the U.S. Supreme Court's current right to counsel jurisprudence profoundly minimizes the importance of the attorney-client relationship during post-charge, pretrial interrogation. For example, notwithstanding the Court's view that a post-charge interrogation constitutes a "critical stage," thus entitling a defendant to appointed counsel, (9) the Court has undermined the real-world import of this ruling by holding that the Sixth Amendment right to counsel, even once attached, is not self-actuating and thus can be waived in the absence of counsel. (10) Further, the Supreme Court largely gutted the notion that counsel's constitutional value to a client extends beyond the four corners of the charging instrument when the Court declared that the right to counsel is "'offense specific,'" (11) with offense defined narrowly under the Blockburger double-jeopardy test. (12) The practical consequence of these holdings is that law enforcement easily can work around an existing attorney-client relationship to question a charged defendant about nearly anything, up to and including the precise factual subject of filed charges. (13)

This Article examines and critiques this Sixth Amendment right-to-counsel jurisprudence, focusing on the Supreme Court's failure to establish Sixth Amendment rules that recognize and protect the necessary professional relationship that attorney and client share in a criminal case. (14) To frame this discussion, Part II.A of the Article surveys the Supreme Court's right-to-counsel jurisprudence in the interrogation context, culminating in the Patterson-Cobb framework, and highlights the debate within the Court over the function that defense counsel serves under the Sixth Amendment.

In Part III, this Article distills the Court's Sixth Amendment jurisprudence to its core: a general apathy towards--if not outright disdain for--the real-world professional value of defense counsel during an interrogation. This view of counsel's role in this context has led the Court improperly to gauge Sixth Amendment problems by a counter-textual freewill theory of client decision-making imported from Fifth Amendment Miranda jurisprudence. This emphasis on free-will in the Sixth Amendment context is wholly disconnected from the counsel whose assistance the Constitution assures to guide defendant decision-making, resulting in precisely the sort of unequal footing between established adversaries that the attorney-client relationship is meant to counterbalance. (15)

In Part III.C, this Article presents an alternative "relational" model for the right to counsel. I argue that this alternate model properly takes the concept of a defendant's free will from the Fifth Amendment Miranda context, and conditions its exercise in the Sixth Amendment context on the promised assistance of counsel if the subject or setting of interrogation intrudes into that attorney-client relationship or necessitates that relationship to preserve equal footing between established adversaries. This model, I argue, correctly conceptualizes the right to counsel in relational terms of attorney and client, not attorney and offenses. (16)