In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
In cases of joint representation of codefendants, deprivation of effective assistance of counsel may result from a lack of fidelity by the attorney to the client. For instance, in Glasser v. United States, the Court held a trial judge erred in appointing one defendant’s attorney to also represent a codefendant in a conspiracy case, where the judge knew of potential conflicts of interest in the case, and the original defendant had earlier expressed a desire for sole representation.1 In another case, counsel for codefendants made a timely assertion to the trial judge that continuing joint representation could pose a conflict of interest, and the Court held that the trial judge erred in not examining the assertion closely and by not permitting or appointing separate counsel, absent a finding that the risk of conflict was remote.2 Joint representation does not deny effective assistance per se, however.3 Judges are not automatically required to initiate an inquiry into the propriety of multiple representation, and are able to assume in the absence of “special circumstances” that no conflict exists.4 On the other hand, a defendant who objects to joint representation must be given an opportunity to make the case that potential conflicts exists.5 Absent an objection, a defendant must later show the existence of an “actual conflict of interest [that] adversely affected his lawyer’s performance.” 6 Once it is established that a conflict did actively affect the lawyer’s joint representation, however, a defendant need not additionally prove that the lawyer’s representation was prejudicial to the outcome of the case.7
-
Footnotes
- 1
- 315 U.S. 60, 75–76 (1942).
- 2
- Holloway v. Arkansas, 435 U.S. 475, 484 (1978). Counsel had been appointed by the court. Id. at 477.
- 3
- See Cuyler v. Sullivan, 446 U.S. 335, 348 (1980) ( “[M]ultiple representation does not violate the Sixth Amendment unless it gives rise to a conflict of interest.” (citing Holloway, 435 U.S. at 482)).
- 4
- See id. at 346–47 ( “Absent special circumstances, therefore, trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist.” ).
- 5
- Id. at 348.
- 6
- Id.
- 7
- Id. at 348–50; see also Wheat v. United States, 486 U.S. 153, 162 (1988) ( “[W]here a court justifiably finds an actual conflict of interest, there can be no doubt that it may decline a proffer of waiver, and insist that defendants be separately represented.” ); Wood v. Georgia, 450 U.S. 261, 272–73 (1981) (concluding on due process grounds that where counsel retained by defendants’ employer potentially had conflict between defendants’ interests and employer’s, and facts indicating potential conflict were known to trial judge, the trial judge should have inquired further). Where an alleged conflict is not premised on joint representation, but rather on a prior representation of a different client, for example, a defendant may be required to show actual prejudice in addition to a potential conflict. Mickens v. Taylor, 535 U.S. 162, 166–67, 173–74 (2002). For earlier cases presenting more direct violations of defendant’s rights, see generally Glasser v. United States, 315 U.S. 60 (1942); United States v. Hayman, 342 U.S. 205 (1952); and Ellis v. United States, 356 U.S. 674 (1958).