4.2​Constitutional Rights to Counsel

A criminal defendant has a constitutional right to counsel. Coleman v Alabama, 399 US 1, 7 (1970). In Michigan, a criminal defendant’s right to counsel has two sources: (1) the Sixth Amendment to the United States Constitution, US Const, Am VI, applicable to the states through the Fourteenth Amendment, US Const, Am XIV, and its Michigan corollary in Const 1963, art 1, § 20, and (2) a prophylactic right found in the Supreme Court’s jurisprudence relating to the Fifth Amendment right against compelled self-incrimination and to due process, US Const, Am V, and its Michigan corollary in Const 1963, art 1, § 17. People v Williams, 244 Mich App 533, 538 (2001). “The Fifth Amendment right to counsel is distinct and not necessarily coextensive with the right to counsel afforded criminal defendants under the Sixth Amendment,” because “the Fifth Amendment right to counsel during a custodial interrogation serves an entirely different purpose than the Sixth Amendment right to counsel at trial.” Id. at 538-539. This section focuses on a defendant’s Sixth Amendment right to counsel. For more information on suppressing a defendant’s statement for violation of his or her Fifth Amendment right to counsel, see the Michigan Judicial Institute’s Evidence Benchbook.

“Once an individual’s Sixth Amendment right to counsel attaches, any statements deliberately elicited from him without permitting him the assistance of counsel must be excluded as violative of that right.” People v Wade, ___ Mich App ___, ___ (2025). “The right to counsel attaches at ‘the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’” Id. at ___, quoting Rothgery v Gillespie Co, Texas, 554 US 191, 198 (2008) (holding that the Sixth Amendment right to counsel attaches without regard to whether a public prosecutor is aware of the initial proceeding or is involved in its conduct). “The right might attach before then if an investigation has become so focused and targeted that the suspect has, ‘for all practical purposes, already been charged.’” Id. at ___, citing Escobedo v Illinois, 378 US 478, 484-486 (1964). “But the right generally does not attach until adversary judicial proceedings are formally initiated, even if the government has sufficient evidence to arrest the suspect.” Id. at ___.

“The Sixth Amendment right to counsel is offense specific.” Id. at ___ (quotation marks and citation omitted). “This means that, even if the right attached to one offense, a suspect’s incriminating statements about a different crime to which the right has not yet attached are, of course, admissible at a trial for the other crime.” Id. at ___ (quotation marks and citation omitted). In Wade, “defendant was incarcerated for reasons unrelated to the present case when he spoke with [his then-girlfriend].” Id. at ___. “At the time, defendant had not been charged with [the victim’s] murder, and would not be so charged for years.” Id. at ___. “In other words, when defendant spoke with [his then-girlfriend], no adversary judicial proceedings had been initiated against defendant for [the victim’s] death.” Id. at ___. “While it is plausible or even likely that [the detective] suspected that defendant was involved in [the victim’s] murder at the time given that he asked [defendant’s then-girlfriend] to wear a recording device, this merely show[ed] that the government was investigating defendant’s potential involvement in the crime, which f[ell] woefully short of the exception to the initiation-of-adversary-judicial-proceedings requirement . . . .” Id. at ___ (“conclud[ing] that, when defendant spoke to [his then-girlfriend], he did not yet have a Sixth Amendment right to counsel as it relates to [the victim’s] murder, so that right could not have been violated”).

See also Montejo v Louisiana, 556 US 778, 797 (2009) (critical stage includes interrogation after a defendant has asserted his or her right to counsel at an arraignment or similar proceeding); People v Perkins, 314 Mich App 140, 151-152 (2016) (holding that where an investigating officer “knew that [the defendant] was in jail on an unrelated offense and was represented by counsel and nevertheless questioned [him] without his attorney[,]” the defendant’s confession was properly admitted into evidence; “[b]ecause the Sixth Amendment right to counsel is offense specific and because adversarial judicial proceedings had not been initiated for the offenses [to which the defendant confessed], [his] right to counsel under the Sixth Amendment had not yet attached”); People v Collins, 298 Mich App 458, 470 (2012) (bond revocation hearing that has no effect on determination of defendant’s guilt or innocence is not a critical stage in the proceeding; therefore, counsel’s presence is not constitutionally required).

A.​Actual Imprisonment

No person may receive an actual or suspended sentence for any offense—petty, misdemeanor, or felony—unless he or she was represented by counsel at trial or knowingly and intelligently waived representation. Alabama v Shelton, 535 US 654, 657-659, 662 (2002) (an indigent defendant who is not represented by counsel and who has not waived the right to appointed counsel may not be given a probated or suspended sentence of imprisonment). An indigent defendant’s right to counsel applies to the states through the Fourteenth Amendment. Gideon v Wainwright, 372 US 335, 340, 344-345 (1963).

No real distinction exists between “actual imprisonment” and probated or “threatened” imprisonment for purposes of an indigent defendant’s right to counsel. Shelton, 535 US at 659.

B.​Counsel of Choice

A criminal defendant has a constitutional right to retain an attorney of his or her choice. People v Arquette, 202 Mich App 227, 231 (1993). However, the constitutional right to counsel of choice is not absolute; it only applies to criminal defendants who retain counsel, not to indigent defendants for whom counsel is appointed. United States v Gonzalez-Lopez, 548 US 140, 144, 151 (2006).

Where a defendant is wrongly denied his or her Sixth Amendment right to counsel of choice, the constitutional violation is complete and the defendant’s conviction must be reversed; the defendant need not show that he or she was denied a fair trial or that his or her actual counsel was ineffective. Gonzalez-Lopez, 548 US at 148; People v Aceval, 282 Mich App 379, 386 (2009). “However, this right to choice of counsel is limited and may not extend to a defendant under certain circumstances.” Aceval, 282 Mich App at 386. For example, a defendant may not insist on retaining counsel who is not a member of the bar, or counsel for whom representation of the defendant would constitute a conflict of interest. Gonzalez-Lopez, 548 US at 152. Nor may a defendant insist on retaining a specific attorney as a tactic to delay or postpone trial. People v Akins, 259 Mich App 545, 557-558 (2003). “‘[A] balancing of the accused’s right to counsel of his choice and the public’s interest in the prompt and efficient administration of justice is done in order to determine whether an accused’s right to choose counsel has been violated.’” Aceval, 282 Mich App at 387, quoting People v Krysztopaniec, 170 Mich App 588, 598 (1988).

C.​Access to Interpreter During Meetings with Counsel

“[T]here are both state and federal constitutional implications–based on a defendant’s right to counsel during critical stages of the proceedings–when a defendant who is entitled to an interpreter is prevented from communicating with his attorney because he has been denied an interpreter.” People v Hoang, 328 Mich App 45, 59 (2019). “Depriving a defendant of the ability to communicate with his or her attorney during pretrial preparations—a critical stage of the proceedings—prevents the attorney from fulfilling the attorney’s duty to investigate and prepare possible defenses.” Id. at 60. However, in Hoang, “there was no Sixth Amendment violation” where although the defendant did not “have an interpreter physically present during [his] pretrial meetings with his attorney,” he “was granted the appointment of an interpreter” who “participated via speakerphone while [defendant] and his attorney prepared the case and discussed the prosecution’s plea offer.” Id. at 62-63.

D.​Polygraph Examination

A defendant has the right to have counsel present during a polygraph examination if the examination occurs after the Sixth Amendment right to counsel has attached. People v Leonard, 125 Mich App 756, 759 (1983).¹ However, a defendant may waive the right to have counsel present at a polygraph examination. See Wyrick v Fields, 459 US 42 (1982); McElhaney, 215 Mich App at 274-277.

E.​Standard of Review

Violation of a defendant’s Sixth Amendment right to counsel of choice is a structural error and is not subject to harmless error analysis. Gonzalez-Lopez, 548 US at 150. However, “deprivation of counsel at a preliminary examination is subject to harmless-error review.” People v Lewis, 501 Mich 1, 9 (2017).

Whether to permit the substitution of appointed counsel with retained counsel is reviewed for an abuse of discretion. Akins, 259 Mich App at 556; Arquette, 202 Mich App at 231. “[A] defendant must be afforded a reasonable time to select his own retained counsel.” Id. at 231.