The Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defence. U.S. Const. amend. VI. As already has been demonstrated, however, this guarantees more than the mere presence of a lawyer at a criminal trial. It protects, among other things, an individual's right to choose the lawyer or lawyers he or she desires and to use one's own funds to mount the defense that one wishes to present. Moreover, a defendant's exercise of his Sixth Amendment right to counsel is not to be feared or avoided by the government: No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of and exercise those rights. If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, there is something very wrong with that system.
An attorney general issued a memorandum stating that the advancement of attorneys' fees to personnel of a business under investigation was a factor in the decision to indict. When defendants were indicted for violations of Internal Revenue Service (IRS) regulations with regard to tax shelters the firm entered into a deferred prosecution agreement in which it agreed to cease payment of defendants' legal fees. Defendants filed a motion to dismiss claiming that the federal government's pressure on the firm to cease the advancement of defense costs to defendants violated their rights to counsel and a fair trial.
Were the Defendants' Fifth and Sixth Amendment rights to a fair trial and counsel violated in this case?
The court granted defendants' motions holding that their rights were affected. Nevertheless, part of the motions were denied insofar as monetary sanctions against the government were requested. The memorandum was not narrowly tailored to achieve a compelling objective because it prevented companies from providing employees with the means to exercise their constitutional rights to defend themselves.