4.2Constitutional 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.

“The Sixth Amendment right, which is offense-specific and cannot be invoked once for all future prosecutions, attaches only at or after adversarial judicial proceedings have been initiated[,]” People v Smielewski, 214 Mich App 55, 60 (1995), i.e., at the first appearance before a judicial officer at which the defendant is told of the formal accusation against him or her, and restrictions are imposed on his or her liberty (e.g., formal charge, preliminary hearing, indictment, information, or arraignment). Rothgery v Gillespie Co, Texas, 554 US 191, 198 (2008). 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). 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. Rothgery, 554 US at 194-195.

“Trial management is the lawyer’s province: Counsel provides his or her assistance by making decisions such as what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence.” People v Klungle, ___ Mich App ___, ___ (2024) (quotation marks and citation omitted). “Some decisions, however, are reserved for the client—notably, whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal.” Id. at ___ (quotation marks and citation omitted). “Autonomy to decide that the objective of the defense is to assert innocence belongs in this latter category.” Id. at ___ (quotation marks and citation omitted). “These are not strategic choices about how best to achieve a client’s objectives; they are choices about what the client’s objectives in fact are.” Id. at ___ (quotation marks and citation omitted). “But, this reasoning is only applicable when a client expressly asserts that the objective of his [defense] is to maintain innocence of the charged criminal acts; it is in this situation that his lawyer must abide by that objective and may not override it by conceding guilt.” Id. at ___ (cleaned up). “If a client declines to participate in his defense, then an attorney may permissibly guide the defense pursuant to the strategy she believes to be in the defendant’s best interest. Presented with express statements of the client’s will to maintain innocence, however, counsel may not steer the ship the other way.” Id. at ___ (quotation marks and citation omitted).

In Klungle, the “defendant acknowledged that he, despite [an] eviction order, and despite receiving the eviction notice, knowingly remained on the property.” Id. at ___. “In response to defendant’s refusal to leave the home, three . . . police officers eventually came to evict him.” Id. at ___. “Police body camera footage show[ed] defendant resisting the officers, culminating in his arrest.” Id. at ___. “The officers ultimately had to drag defendant out of the home.” Id. at ___. “Defendant’s relationship with his counsel deteriorated over time,” and “[b]y the time of trial, defendant and his counsel ‘were virtually not speaking at all,’ despite counsel’s best efforts.”Id. at ___. At trial, the “[d]efendant made a generalized claim of ownership of the home, but provided no factual support for this claim other than his testimony that his grandmother intended for him to inherit the property and that he owned a separate property with his grandmother.” Id. at ___. During closing argument, “defense counsel conceded defendant’s guilt as to the trespassing charge . . . .” Id. at ___. “Counsel instead argued to the jury that defendant was not guilty of the harsher resisting and obstructing charges.” Id. at ___. “Defendant’s testimony at [a subsequent evidentiary] hearing was generally consistent with trial counsel’s representation that he never unequivocally instructed counsel not to concede guilt.” Id. at ___. “Because defendant did not express a contrary instruction, trial counsel properly exercised his discretion in implementing what he reasonably believed was the most prudent trial strategy.” Id. at ___. “Therefore, trial counsel’s concession was not contrary to defendant’s assertion of innocence because defendant limited communication with counsel and did not vociferously insist that he did not engage in the charged acts.” Id. at ___ (cleaned up) (“[T]rial counsel’s concession of guilt as to the trespassing charge did not violate defendant’s Sixth Amendment right to counsel.”).

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 [or her] 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 (Gary), 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 [or her] own retained counsel.” Id. at 231.