When Does Right to Counsel End ?
The Sixth Amendment right to counsel attaches when adversary proceedings are initiated (McNeil v. Wisconsin (1991) 501 U.S. 171, 175 111 S. Ct. 2204, 2207, 115 L. Ed. 2d 158), but when precisely does it terminate ?
Generally, the Fifth Amendment right applies to postconviction statements as long as a defendant's right to appeal has not expired. (People v. Fonseca (1995) 36 Cal. App. 4th 631, 635 42 Cal. Rptr. 2d 525;
In re Courtney S. (1982) 130 Cal. App. 3d 567, 573 181 Cal. Rptr. 843; see also People v. Webster (1971) 14 Cal. App. 3d 739 93 Cal. Rptr. 260.)
In Fonseca a codefendant, who had pleaded guilty, was permitted to assert his Fifth Amendment privilege against self-incrimination to avoid testifying in the defendant's trial.
The court concluded, "the privilege expires when the time to file an appeal has passed with no notice of appeal filed." (Fonseca, supra, at p. 637.)
Where an attorney continues to have a duty to represent the interests of a defendant in continuing judicial proceedings the Sixth Amendment right to counsel is maintained as to that prosecution.
As Cahill v. Rushen (E.D.Cal. 1980) 501 F. Supp. 1219, affirmed (9th Cir. 1982) 678 F.2d 791 explains, "The guarantee of counsel, in addition to assuring equality in trial-like adversary confrontations, prevents the accused from being misled by his lack of familiarity with the law.
Application of Massiah to post trial statements when an appeal is not final, will protect the right to 'counsel,' 'assistance,' 'advice,' and 'shelter' encompassed in the Sixth Amendment right to counsel.