Author: Andrew Fernandez, Associate Member, University of Cincinnati Law Review
The Sixth Amendment is a fundamental right that ensures those accused of criminal offenses have sufficient legal counsel on decisions that will affect their life and liberty. Without this right, criminal defendants would be forced to navigate the confusing and seemingly harsh world of criminal law. Without this protection, the government could manipulate criminal defendants into severe restrictions of their liberty without the guidance of someone advocating their interests. One significant component of this right is the point at which the right attaches. The Supreme Court has held the right to counsel attaches at a “critical stage” of a criminal proceeding. Critical stages can be pre-trial proceedings if formal charges have been filed including post indictment plea negotiations, post indictment lineups, and post indictment interrogations.
Circuit courts have inconsistently interpreted whether a critical stage test should be determined using a bright line test or if there should be a rebuttable presumption incorporated into the analysis. Five circuit courts follow the bright line rule approach; while, four other circuits allow for a rebuttable presumption to the standard that the right to counsel only attaches after formal charges are filed. For example, the Sixth Circuit applied the bright line approach in holding a criminal defendant did not have a right to counsel at plea negotiations before formal charges were filed.  In contrast, the Seventh Circuit held this standard is merely a presumption the prosecution has crossed the threshold of factfinder to adversary.  However, the Supreme Court should alter its holdings in order to accommodate the Seventh Circuit approach because it best protects criminal defendants.
The Bright Line Approach
In Turner, the Sixth Circuit applied the bright line approach holding the defendant in this case had no Sixth Amendment right to counsel during plea negotiations because no formal charges had been filed.  During Tennessee’s prosecution of the defendant for aggravated robbery, the defendant’s attorney and U.S. District Attorney’s Office discussed a potential plea offer for federal charges arising out of the same conduct. The defendant originally declined to plead but later accepted a less favorable plea offer. The defendant then sued to have his conviction struck down because of ineffective counsel during his plea negotiations. The court determined even though the Supreme Court had never directly addressed whether a defendant had a right to counsel at plea-negotiations, it had consistently stated the right to counsel only applies when formal charges have been filed.
Furthermore, the Sixth Circuit had previously held twice the right to counsel only applies when formal charges are brought against the defendant.  For example, in Moody, even though the Court felt the result was “a triumph of the letter over the spirit of the law”, the Sixth Circuit felt bound to follow Supreme Court precedent even though it thought this interpretation was inconsistent with the Framer’s intentions for the Sixth Amendment.  The Sixth Circuit held the defendant’s motion must be dismissed because it was undisputed by the parties no formal federal charges had been filed during the course of the plea negotiations.
The Rebuttable Presumption Approach
In Larkin, the Seventh Circuit applied the rebuttable presumption approach by holding a defendant could prove the government had crossed the divide from factfinder to adversary. In this case, the convictions of the defendant for robbery were largely founded on the eyewitness testimony of bank employees. The employees identified the defendants at a lineup six months before trial in addition to their in-court identification of the defendants. The defendants argued the district court committed reversible error by not suppressing the testimony for a number of reasons including the fact that the government refused to grant the defendant’s request to furnish appointed counsel at the lineup. The court first noted the right to counsel attaches at the beginning of adverse criminal proceedings. Therefore, had the lineup occurred after the grand jury had indicted the defendant, refusal to provide counsel would have violated the Sixth Amendment and suppression of the evidence would have been necessary. However, the lineup in this case occurred three months before the indictment so the right presumptively did not attach. This presumption may be rebutted by a demonstration that even though formal charges had not been filed, the government had ceased to be a factfinder and was now an adversary. The court held the defendants failed to show the government had crossed the line from factfinder to adversary and therefore ruled against the defendants. The court did note that although the Constitution did not compel the government to grant the defendant’s request for appointed counsel, the government should make every effort to grant such requests at pre-indictment lineups. In this way, justice is best served and convictions are not tainted.
The Supreme Court Should Follow the Seventh Circuit Approach
Because there is such a significant circuit split, it is likely the Supreme Court will rule on the split soon. When the Supreme Court chooses to rule on this split, it should follow the Seventh Circuit’s approach because this strikes the best balance between protecting the rights of criminal defendants and ensuring the government’s interest in fighting crime.
In Turner, the Sixth Circuit referred to its precedent in Moody to flesh out how its decision was rooted in the letter of the law as opposed to the spirit of the Sixth Amendment. The Sixth Circuit in that case acknowledged the pretrial plea negotiations raised the certainty in many cases of the defendant waiving his trial rights in exchange for an imbalanced plea without the assistance of legal counsel. Perhaps most importantly, by offering a plea deal, a prosecutor had committed himself to raising prosecution against the defendant. Even in the Sixth Circuit opinion upholding the bright line approach, the court saw the wisdom in using some sort of presumption standard.
The presumption would best ensure the constitutional balance of the government’s fact finding function and the right of the defendant to an effective legal defense. The presumption the constitutional right does not attach ensures the government is still able to pursue its fact-finding function without being unnecessarily compromised by constitutional restraint. Having a rebuttable presumption also allows the court discretion to look at the facts of the case and determine whether the government crossed the line from factfinder to adversary. For example, as the Sixth Circuit noted it seemed clear the prosecution had crossed the line to adversary when it offered a plea deal. Yet the government can get away with these offers to uneducated clients because they have not formally charged the defendant. This seems to make the Sixth Amendment protection ring hollow particularly when its purpose is to prevent criminal defendants from facing the rigors of prosecution without the assistance of legal counsel.
Some may argue the bright line approach has it merits because it fixes a certain standard that is easy to follow. To allow a rebuttable presumption under the standard could lead to uncertain outcomes in the legal system. Furthermore, the government would be hampered in its criminal investigations by not knowing when it has crossed the line from factfinder to adversary. However, adjusting the standard to a rebuttable one is not likely to lead to different results. As the Seventh Circuit showed in its holding in Larkin, it will still be difficult for defendants to show the government crossed the threshold from factfinder to adversary particularly in a non-plea setting. Furthermore, utilizing a rebuttable presumption standard ensures a criminal defendant has the advice of legal counsel when the defendant faces the possibility of prosecution and incarceration. Therefore, changing the standard will likely not fundamentally change the prevailing norm that the Sixth Amendment does not demand a lawyer be present for most pre-trial proceedings before charges are formally filed.
The Supreme Court should adopt the Seventh Circuit approach because it best balances the fact-finding needs of the government with the protections of the Sixth Amendment of criminal defendants. A rebuttable presumption standard will ensure a criminal defendant will have the advice of legal counsel when the government considers prosecuting the defendant as opposed to merely collecting information. This is critical in plea negotiations when the liberty of the defendant is at stake. Finally, applying the rebuttable presumption standard will not fundamentally change criminal procedure because defendants would have the burden of proving the nature of the fact-finding function has changed to adversarial. Therefore, the rebuttable presumption standard from the Seventh Circuit will best preserve the fundamental rights the Sixth Amendment offers to criminal defendants.
 United States v. Moody, 206 F.3d 609, 614-615 (6th Cir. 2000)
 Montejo v. Louisiana, 556 U.S. 778, 786 (2009).
 Turner v. United States, 848 F.3d 767, 770 (6th Cir. 2017).
 Id. at 771.
 Id. at 773.
 U.S. v. Larkin, 978 F.2d 964, 969 (7th Cir. 1992).
 Turner, 848 F.3d at 771.
 Turner, 848 F.3d at 770.
 Id. at 771.
 See id.
 Larkin, 978 F.2d. 964, 969 (1992).
 Id. at 967.
 Id. at 969.
 Larkin, 978 F.2d at 969.
 Larkin, 978 F.2d at 970.
 Turner, 848 F.3d at 771.
 Id. at 773.
Larkin, 978 F.2d at 969.