FIRST PRINCIPLESConstitutional Matters: Right to Counsel

2023 (October Term)

United States v. Hasan, 84 M.J. 181 (the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense; that right includes the right to waive counsel and to represent oneself).

(while the Constitution does not force a lawyer upon a defendant, it does require that any waiver of the right to counsel be knowing, voluntary, and intelligent; the voluntariness of a waiver is measured by reference to the surrounding circumstances; and a simple disagreement with counsel about a certain line of defense is not enough to establish involuntary waiver of counsel).

2019 (October Term)

United States v. Watkins, 80 M.J. 253 (the Sixth Amendment guarantees the right to counsel, and within that, the right to choice of counsel for those who hire their own counsel; it commands, not that a trial be fair, but that a particular guarantee of fairness be provided, to wit, that the accused be defended by the counsel he believes to be best). 

(despite adequate representation by counsel, if it is not the accused’s counsel of choice and if he is erroneously prevented from being represented by the lawyer he wants, then the Sixth Amendment right has been violated). 

(the violation of the right to choice of counsel is not subject to harmless error analysis; erroneous deprivation of the right to counsel of choice, withconsequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as structural error; harmless error analysis under such circumstances would be a speculative inquiry into what might have occurred in an alternate universe; to compare two attorneys, one whose services were denied, would require a court to speculate upon what different choices or different intangibles might have been between the two).

2017 (October Term)

United States v. Condon, 77 M.J. 244 (the fact that the accused during official questioning and in exercise of rights under the Fifth Amendment to the United States Constitution or Article 31 requested counsel is not admissible against the accused). 

2016 (October Term)

United States v. Mitchell, 76 M.J. 413 (because the circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege). 

(once a suspect in custody has expressed his desire to deal with the police only through counsel, he is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication). 

(in every case involving Edwards (451 US 477 (1981)), the courts must determine whether the suspect was in custody when he requested counsel and when he later made the statements he seeks to suppress). 

(Edwards (451 US 477 (1981)) clearly applies to the military). 

2015 (September Term)

United States v. Bess, 75 M.J. 70 (the Constitutional right of a defendant to be heard through counsel necessarily includes his right to have his counsel make a proper argument on the evidence and the applicable law in his favor). 

2014 (September Term)

United States v. Akbar, 74 M.J. 364 (an accused has the right to conflict-free legal representation; however, he may waive this right so long as it is knowing and voluntary). 

(as an Article I court, the CAAF notes that, absent constitutional implications in a particular case or congressional authorization, it is beyond its authority to impose the learned counsel qualification for military capital cases). 

(the CAAF does not adopt the ABA Guidelines in analyzing capital defense counsels’ performance; instead it adheres to the Supreme Court’s guidance that no particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant; it examines whether counsel made objectively reasonable choices based on all the circumstances of a case). 

2012 (September Term)

United States v. Mott, 72 M.J. 319 (a waiver of an accused’s Fifth Amendment and Article 31, UCMJ, rights to counsel must be knowing and intelligent, and not merely voluntary).   

(an accused’s statement during a custodial interrogation is inadmissible at trial unless the prosecution can establish that the accused in fact knowingly and voluntarily waived Miranda rights).

(in the military system the accused’s right to counsel, and the requirement of knowing and voluntary waiver, are not limited to custodial interrogation; military officials and civilians acting on their behalf are required to provide rights warnings prior to interrogating a member of the armed forces if that servicemember is a suspect, irrespective of custody).   

(voluntariness of consent and knowing waiver of an accused’s right to counsel are two distinct and discrete inquiries; in addition to showing that the waiver was voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception, the government must also demonstrate that the accused understood his right to counsel and intelligently and knowingly relinquished it). 

(the accused has to have full awareness of both the nature of the right to counsel being abandoned and the consequences of the decision to abandon it; however, the Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege; in other words, the accused must fully understand the nature of the right and how it would likely apply in generalin the circumstances, even though the defendant may not know the specific detailed consequences of invoking it; the analysis should take into account the accused’s age, experience, education, background, and intelligence, and his capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights; and the government must show waiver by a preponderance of the evidence). 

(there are two branches to the waiver of the right to counsel analysis; first, was the waiver voluntary; and, second, was the waiver knowing and intelligent). 

(whether an accused’s waiver of his right to counsel was knowing and intelligent is a conclusion of law rather than a conclusory finding of fact). 

2010 (September Term)

United States v. Gooch, 69 M.J. 353 (the Sixth Amendment guarantees a criminal accused, including military service members, the right to effective assistance of counsel). 

United States v. Hutchins, 69 M.J. 282 (any procedural deficiencies concerning the termination and replacement of the first detailed military defense counsel did not result in prejudice to the accused under applicable constitutional and statutory standards of law; the accused had the assistance of multiple counsel throughout the pertinent proceedings; after the assistant detailed defense counsel left the defense team, the accused had the assistance of a replacement assistant defense counsel detailed prior to trial; also, the military judge, at the request of the defense, granted a continuance to facilitate preparation by the new member of the defense team; the defense did not thereafter request additional time or resources to permit the reconstituted defense team to prepare for or conduct proceedings at trial; similarly, the personnel action leading to the severance in the present case resulted from a request initiated by the assistant defense counsel, not by the prosecution or the command; in that context, the case did not involve a violation of the accused’s Sixth Amendment right to counsel; also, the case did not involve structural error; the errors in this case involved oversights and omissions in addressing the issue of severance on the part of defense counsel, senior officials in the defense counsel structure, and the military judge; the case did not involve any decision by the military judge to deny pertinent relief requested by the defense, such as a request for additional time or resources for trial preparation, nor does the case involve a decision by the military judge to overrule a related defense objection; likewise, the case involves a personnel action initiated by a member of the defense team, and does not involve governmental action undertaken for the purpose of altering the composition of the defense team). 

2008 (September Term)

United States v. Wiechmann, 67 M.J. 456 (when a Sixth Amendment claim involves a governmental act or omission affecting the right of an accused to the assistance of counsel, an appellate court considers whether the infringement involves a structural error -- an error so serious that no proof of prejudice is required -- or whether the error must be tested for prejudice; structural error exists when a court is faced with the difficulty of assessing the effect of the error or the error is so fundamental that harmlessness is irrelevant; structural errors involve errors in the trial mechanism so serious that a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence; there is a strong presumption that an error is not structural). 

2008 (Transition)

Denedo v. United States, 66 M.J. 114 (a military accused is entitled under the Constitution and Article 27(b), UCMJ, to the effective assistance of counsel). 

United States v. Lee, 66 M.J. 387 (in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense; one element within this Sixth Amendment right to counsel is the right of a defendant who does not require appointed counsel to choose who will represent him; further, counsel provided to or retained by the accused must provide reasonably effective assistance; third, where a constitutional right to counsel exists, there is a correlative right to representation that is free from conflicts of interest; finally, it follows that where assistance of counsel has been denied entirely, the likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary).


(an accused may waive his right to conflict-free counsel; however, waivers must be voluntary, and they must be knowing intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences; courts will indulge every reasonable presumption against the waiver of this right).


United States v. Brooks, 66 M.J. 221 (in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense; the Supreme Court has extended the right to counsel to first appeals guaranteed as a matter of right; in military jurisprudence, an accused has the right to effective representation by counsel through the entire period of review following trial, including representation before the CCA and the CAAF by appellate counsel appointed under Article 70, UCMJ). 


(necessarily included in the Sixth Amendment right to counsel is the right of an accused to confer privately with his attorney).

(not all impingements on attorney-client communication constitute per se violations of the Sixth Amendment right to counsel thereby requiring reversal; per se violations are limited to structural errors and require no proof of prejudice for reversal). 


United States v. Rhoades, 65 M.J. 393 (under the Sixth Amendment, the accused in a criminal proceeding has the right to the assistance of counsel for his defense; under the UCMJ, an accused has the right to representation by military counsel provided at no expense to the accused, and the accused may be represented by civilian counsel; the right to counsel of choice under the Sixth Amendment, as well as under the UCMJ, is not absolute; the need for fair, efficient, and orderly administration of justice may outweigh the interest of the accused in being represented by counsel of choice; for example, disqualification of an accused’s chosen counsel due to a previous or ongoing relationship with an opposing party, even when the opposing party is the government, does not violate the Sixth Amendment). 



United States v. Moran, 65 M.J. 178 (in the American system of justice, the exercise of the right to counsel is proof of neither guilt nor innocence).



United States v. Dobson, 63 M.J. 1 (the right to counsel under the Sixth Amendment includes the right to the effective assistance of counsel).


United States v. Gonzalez, 62 M.J. 303 (servicemembers are guaranteed the right to effective assistance of counsel at trials by court-martial).




United States v. Davis, 60 MJ 469 (the Sixth Amendment guarantees that a servicemember tried by court-martial will receive competent, effective legal representation; the Sixth Amendment right to effective assistance of counsel at trials by court-martial is a fundamental right of servicemembers). 




United States v. Wiest, 59 MJ 276 (the right to counsel is fundamental to our system of justice).


United States v. Cain, 59 MJ 285 (members of the armed forces facing criminal charges, like their civilian counterparts, have a constitutional right to effective assistance of counsel). 

United States v. Seay, 60 MJ 73 (the Fifth Amendment right to counsel applies to pretrial interrogation; the Sixth Amendment provides criminal accused the right to counsel during criminal proceedings).  


(when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights; an accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police).


(one cannot anticipatorily invoke the right to counsel prior to custodial interrogation). 


(custodial interrogation may be reinitiated without counsel being present where a suspect is provided a meaningful opportunity to consult with counsel, and subsequently waives his right to counsel).



United States v. Dorman, 58 MJ 295 (individuals accused of crime shall have the assistance of counsel for their defense through completion of their appeal; this right includes the right to the effective assistance of counsel on appeal).


United States v. McClain, 50 MJ 483 (Sixth Amendment guarantee of the right to effective assistance of counsel means the right to counsel who is conflict free; to demonstrate a violation of this right an appellant must establish (1) an actual conflict of interests that (2) adversely affects the lawyer’s performance).

United States v. Scott, 51 MJ 326 (Sixth Amendment right to counsel codified under Article 27, UCMJ, applies to the pretrial, trial, and post-trial stages).

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