Criminal Justice

Does the Sixth Amendment Right to Counsel Apply Prior to Indictment?

The U.S. Court of Appeals for the Sixth Circuit concludes binding SCOTUS precedent says "no," but perhaps this view should he reconsidered.


The Sixth Amendment to the U.S. Constitution provides that "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." Yesterday, in Turner v. United States, the U.S. Court of Appeals for the Sixth Circuit, sitting en banc, considered whether this right applies prior to criminal indictment. By a vote of 12-4, the Sixth Circuit concluded the answer is "no"—at least under current precedent.

Writing for ten of the court's sixteen judges, Judge Alice Batchelder concluded binding Supreme Court precedent provides that the right does not attach prior to indictment. Her opinion begins:

Appellant John Turner asks us to overrule nearly four decades of circuit precedent holding that the Sixth Amendment right to counsel does not extend to preindictment plea negotiations. . . . We decline to do so. Our rule—copied word for word from the Supreme Court's rule—is that the Sixth Amendment right to counsel attaches only "at or after the initiation of judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." The district court followed this rule, and we AFFIRM.

One of the Sixth Circuit's newest members, Judge John Bush, joined Batchelder's majority, but also wrote a separate opinion "concurring dubitante" suggesting the Supreme Court should reconsider this question. His opinion, which was joined by Judge Ray Kethledge, begins:

History sometimes reveals more import to words than they at first seem to have. And faithful adherence to the Constitution and its Amendments requires us to examine their terms as they were commonly understood when the text was adopted and ratified, rather than applying meaning derived years later that may weaken constitutional rights. This case calls for such an examination.

The Sixth Amendment states in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defence." We must decide whether a criminal suspect, having received from a federal prosecutor an offer to enter into a plea agreement that requires pre-indictment acceptance, is an "accused" in a "criminal prosecution[]" and therefore entitled to a constitutional right to counsel.

We know that it is settled that the substantive right to counsel includes the right to communication of a favorable plea offer: the Supreme Court made that clear in Lafler v. Cooper, 566 U.S. 156 (2012), and Missouri v. Frye, 566 U.S. 134 (2012). So no one disputes that defendant-appellant John Turner's right of "assistance of counsel for his defence" includes his counsel's communicating the offer, assuming the right has attached. Our task, therefore, is to decide only whether that substantive right did attach to Turner upon or before the federal prosecutor's presentment of the plea offer—that is, whether Turner was then an "accused" in a "criminal prosecution."

The majority is correct that we are bound to affirm because of Supreme Court precedents holding that the Sixth Amendment right to counsel attaches only "at or after the initiation of criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." United States v. Moody, 206 F.3d 609, 614 (6th Cir. 2000). But the original understanding of the Sixth Amendment gave larger meaning to the words "accused" and "criminal prosecution" than do these precedents, and for that reason, I write separately. As discussed below, the greater weight of the Founding-era evidence appears to support the propositions that Turner was an "accused" even though he had not yet been indicted federally, and that the communication of an exploding plea-agreement offer by a federal prosecutor that would, if accepted, all but end Turner's criminal litigation, was part of a "criminal prosecution" as those terms were used in the Sixth Amendment. In light of this history of the original meaning of the Sixth Amendment text, the Supreme Court might wish to reconsider its right-to-counsel jurisprudence.

Judges Eric Clay and Helene White also wrote separate opinions concurring in the judgment arguing that prevailing Supreme Court precedent is wrong, but nonetheless controlled the outsome in Turner.

Judge Jane Stranch dissented, joined by Judges Cole, Moore, and Donald, arguing that existing Sixth Amendment jurisprudence allows for a more fact-specific analysis and the conclustion that the defendant's right to counsel did attach pre-indictment, at least in this case.

NEXT: Short Circuit: A roundup of recent federal court decisions

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  1. Did they get their legal history right? It’s certainly worth a debate.

    If they got their history right, then I’m sure the Supreme Court will promptly apologize for its previous error. (sarcasm)

    “The AUSA conveyed to Turner’s attorney a plea offer of fifteen years’ imprisonment which would expire if and when a federal grand jury indicted Turner.

    “Turner’s attorney says that he correctly and timely relayed the federal plea offer to Turner, but that Turner refused it. Turner disputes this. In any event, Turner did not accept the federal plea offer before the federal grand jury in the United States District Court for the Western District of Tennessee indicted him in 2008. Turner hired a new attorney and negotiated a plea deal which resulted in twenty-five years’ imprisonment.”

    Perhaps someone could explain the rationale for offering a different sentence depending on whether there’s an indictment or not?

    I thought a federal indictment was simply a formality, a rubber-stamping process. What benefit would Turner have given the public by giving a plea before the indictment was returned? A benefit so important that Turner should be “rewarded” by having ten years shaved off his formal sentence?

    1. Sorta makes one wonder whether the prosecution wanted to take unconstitutional advantage of the absence of a defense counsel. A variation on a Brady violation that should not be tolerated.

      1. “I’d like you to plead guilty to these crimes you haven’t even been charged with, or else we’ll punish you.”

        If someone took such a plea, exactly when would the right to counsel occur? There wouldn’t be a grand jury, or trial, or anything, really…

        1. The right to counsel occurs at the girst contact by the prosecution. One way to avoid producing exculpatory evidence is what the prosecution did here.

      2. It doesn’t sound like the prosecution was trying to take advantage. If the best Turner could do post indictment with an attorney was 25 years, then it seems to me like the prosecution had the goods.

        How else could you read that?

        Do you think Turner was completely innocent and being railroaded?

        1. It doesn’t matter.

          1. In one sense it doesn’t matter legally, sure.

            But in another sense, if the DA offered 15Y even when he could have gotten 25, and we discourage that, then we are implicitly encouraging DAs not to offer lenient pre-indictment plea offers.

      3. “Sorta makes one wonder whether the prosecution wanted to take unconstitutional advantage of the absence of a defense counsel.”

        Not. The case says he had an attorney representing him in state criminal proceedings. The Assistant US Attorney communicated the plea offer to his attorney. The attorney says he communicated the offer Turner; Turner disputes that. In any case, the AUSA did what he was supposed to do — communicated with Turner’s counsel. (He was ethically barred from communicating with him directly.) Hard to see how he was taking advantage.

  2. Confusing to the non-expert.

    There is a right to have an attorney present at questioning which often occurs before “formal charge, preliminary hearing, indictment, information, or arraignment.”

    What is the distinction I am missing?

    1. Fifth Amendment v. Sixth Amendment. Pre-charging, your right to an attorney is based on the Fifth Amendment and must be invoked to apply. Post-charging, your right to an attorney is based on the Sixth Amendment and applies automatically.

      1. This is the main gist but it actually goes further. Fifth Amendment (Miranda) only applies to custodial interrogations. You don’t have a right to counsel unless in custody. The police can talk to you all they want even if you say you don’t want to talk unless you are actually in custody. Sixth Amendment (Massiah) they can’t even ask you to waive the right without an attorney present.

  3. I’m not sure why this is a problem, if the district judges are doing their job. A judge doesn’t have to accept a plea agreement. If the judge is presented a plea agreement I would expect he would know a few facts before he approves it, like was the client represented, and do the facts of the case support the negotiated plea.

    US Attorney’s have a lot of power, but surely the judge isn’t powerless at the district court level to make sure fair play is required.

    1. They may have the power, but with their schedule, who has time to use it?

      1. Well yeah, but somehow because the district court judges are too busy to properly supervise the justice meted out in their courts the solution is other judges to create a new constitutional right.

        1. What new constitional right? Seems like we’re just discussing whether the exist Sixth Amendment right can be read narrowly enough to subvert its purpose.

    2. I’m also not sure why this is a problem especially in this case, Turner had an attorney. While the attorney may have been from the 5A Right, there was an attorney involved and usually the 5A attorney becomes the 6A attorney once one has been charged or as in this case the 5A attorney was dropped for a new attorney under the 6A.

      I can possibly see where this may occur sometimes without an attorney although I find it highly unlikely that a prosecutor would offer a plea without an attorney as that is still a communication under 5A.

  4. The state gets counsel to consider indictments, why shouldn’t potential defendants?

    Making the state’s job more difficult prosecuting people is anathema to the police state.

    1. I mean, there are all manners of making the State’s job more difficult. We could have 24 or 48 person juries and still require unanimity. In fact, for each jury size N, we can make the State’s job prosecuting people more difficult by changing to a jury size of (N+1).

      1. Of course that would make it more difficult.

        That check and balance to state power was put there by the Founding Fathers who were not ideal police state types.

    2. I understand your concern however Turner had an attorney, most likely under 5A, and this was a communication from the prosecutor to the attorney not with the about to be indicted.

  5. IANAL, but it seems to me that the right to counsel should begin the instant the prosecuting attorney decides to go forward with a prosecution… unless there’s a grand jury, that’s the point where the criminal indictment has occurred.

    1. From the OP, it seems that most of the judges deciding this agree that this is wrong, but accept that they are forced to allow it because of SCOTUS precedent

      1. Sorry, either “agree that this is wrong, but accept that they are forced to allow it because of SCOTUS precedent” or that it’s wrong and that precedent shouldn’t force their hand in this case

    2. But the prosecuting attorney had not decided in this case to go forwards with the prosecution. He offered a plea deal, and was going to make his decision based on the response to that deal.

  6. Let me just ask – does anyone have any criticism of the legal-historical analysis in the concurrence? Are they being selective, omitting inconvenient facts, etc?

    For those interested in getting the actual meaning of the Sixth Amendment, this seems to be the most important question about the case.

    If the historical analysis is right, then that would mean the Supreme Court has been diluting the Sixth Amendment, changing it without benefit of an amendment, all in the name of limiting the rights of suspects.

    1. Or is there anyone willing to say that originalism doesn’t apply here, we have a living constitution, and the living constitution needs to be more flexible in allowing more power to prosecutors?

    2. Or is there anyone willing to say that originalism doesn’t apply here, we have a living constitution, and the living constitution needs to be more flexible in allowing more power to prosecutors?

      1. Let me attempt this in a way that passes some analogue to the idelogical Turing test:

        The Sixth Amendment was designed for a federal government with limited criminal jurisdiction. The everyday maintenance of law and order wasn’t a federal responsibility. Overly defendant-friendly rules were acceptable because these rules weren’t applicable to the states, which *did* have responsibility for law and order.

        But now, if we’re going to extend the Sixth Amendment to the states, we need to do it in a way that doesn’t disrupt the social fabric with overly-tender rules favoring criminals. Using 18th century rules designed for federal courts will damage the effectiveness of state and local law-enforcement.

        Also, plea-bargaining has become essential to the justice system and has developed in ways the 18th-century Founders could not have anticipated. Extending the right to counsel as these concurring judges advocate will make plea-bargains more difficult to maintain and enforce. Prosecutors will have yet another restriction on their ability to contain the crime wave.

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