California Supreme Court Rules on Sixth Amendment Right to Counsel

A recent decision from the California Supreme Court concerning the way clients and their attorneys share information is making headlines. In an opinion released in April, the California Supreme Court ruled that a defendant’s Sixth Amendment right to counsel is not necessarily violated by a court order barring the defendant’s attorney from discussing the existence or contents of a witness’ plea proceedings and a witness declaration executed as part of those proceedings. For the defendant to prove a Sixth Amendment violation, the defendant must show that the violation influenced the outcome of the trial.

The underlying facts in People v. Hernandez involved a Defendant charged with attempted murder along with three others. Two of the co-defendants entered into plea bargains where they executed sealed declarations as part of their plea agreement. One testified for the prosecution at Defendant’s trial. The witness’ declaration was sealed, and defense counsel was not given access or allowed to reveal the existence of said declarations to his client or any other person. When one of the witnesses testified at trial, defense counsel was given access to the witness’ sealed declaration but was not allowed to discuss its existence or contents with the Defendant or anyone else.

On appeal for his conviction of attempted murder the Defendant argued that not allowing defense counsel to discuss the declaration with him violated his Sixth Amendment right to counsel. The California Supreme Court stated that the only way that the Defendant can prove that his right to counsel was violated is by showing that the violation influenced the outcome of the case, and remanded accordingly.

Under the Sixth Amendment, a criminal defendant is entitled to the effective assistance of counsel. The right to an attorney under the Sixth Amendment is triggered once criminal proceedings begin against an individual and applies to all “critical stages” in a criminal proceeding. Critical stages in a proceeding include arraignment, post indictment interrogation, post indictment line-ups, plea negotiations, and entering a guilty plea. In this case, the Defendant had access to and representation by his attorney at all critical stages of the trial.

The right to an attorney under the Sixth Amendment also encompasses the effective assistance of counsel, meaning that there is a constitutional violation only when some type of ineffective assistance on the part of the attorney influenced the outcome of the trial. In cases where ineffective assistance of counsel is alleged due to counsel’s inability to share a witness’ declaration, the burden lies on the Defendant to prove that his counsel’s inability to discuss the declaration with him influenced the outcome of the trial.

When deciding whether forbidding a defense attorney from discussing a witness’ declaration with a defendant influenced the outcome of a trial, the Court suggested lower courts consider several factors. These include the importance of the witness’ testimony for the prosecution’s overall case, whether there was other testimony or evidence that duplicated the testimony, the extent of cross-examination permitted, and the presence or absence of corroborating or contradicting evidence on material points in the testimony.

It is unclear what effect this decision will have on criminal appeals based on the Sixth Amendment right to counsel in California. It may open the door to allow prosecutors and defense attorneys to withhold important evidence from defendants. This would then force the defendant to have to prove that he or she was harmed by these actions on appeal. It seems like defendants will have a difficult time discovering the existence of this evidence in the first place, and then having to prove that it unfairly influenced their case.


A Sixth Amendment violation defense can be complicated and should be handled by an experienced criminal defense attorney. At the Johnson Criminal Law Group our experienced attorney can discuss all of your legal options.