Brief of Amicus Curiae National Association for Public Defense and in Support of Petitioner-Appellant

Abstract

The Sixth Amendment right to counsel should apply to pre-indictment plea negotiations. Specifically, the right to counsel should apply when: (1) a state or federal prosecutor is involved; (2) the prosecutor contacts an individual who will be subject to state or federal charges; (3) the prosecutor informs the individual of the particular charges that will be brought; and (4) the prosecutor attempts to resolve the matter, through a plea offer or other agreement, before seeking an indictment.

Two reasons counsel in favor of adopting this rule. First, the underlying rationale of Kirby v. Illinois, 406 U.S. 682 (1972), supports extending the right to counsel to pre-indictment plea negotiations. The plurality in Kirby strongly suggested that the right to counsel attaches when the government has committed itself to prosecuting a particular individual, has solidified an adversarial relationship with that individual, and has confronted the individual with the complexities of procedural and substantive law. See Kirby, 406 U.S. at 680.

Second, in Missouri v. Frye, 132 S. Ct. 1399 (2012), the Supreme Court held that plea negotiations constituted a “critical stage” of a criminal proceeding and triggered the Sixth Amendment right to counsel. See id. at 1407-1408.

Keywords: Sixth Amendment, right to counsel, Kirby v. Illinois, Fifth Amendment

JEL Classification: K14