Cite as: 535 U. S. 162 (2002)
Souter, J., dissenting
trigger a trial court's duty to enquire further, in the absence of "special circumstances." 2 Id., at 346. The most obvious special circumstance would be an objection. See Holloway, supra, at 488. Indeed, because multiple representation was not suspect per se, and because counsel was in the best position to anticipate a risk of conflict, the Court spoke at one point as though nothing but an objection would place a court on notice of a prospective conflict. Sullivan, 446 U. S., at 348 ("[A] defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance" (footnote omitted)). But the Court also explained that courts must rely on counsel in "large measure," id., at 347, that is, not exclusively, and it spoke in general terms of a duty to enquire that arises when "the trial court knows or reasonably should know that a particular conflict exists," 3 ibid. (footnote omitted). Accord-2 The constitutional rule binding the state courts is thus more lenient than Rule 44(c) of the Federal Rules of Criminal Procedure, which provides:
"Whenever two or more defendants have been jointly charged pursuant to Rule 8(b) or have been joined for trial pursuant to Rule 13, and are represented by the same retained or assigned counsel or by retained or assigned counsel who are associated in the practice of law, the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of the right to the effective assistance of counsel, including separate representation. Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defend-ant's right to counsel."
See Wheat v. United States, 486 U. S. 153, 161 (1988).
3 By "particular conflict" the Court was clearly referring to a risk of conflict detectable on the horizon rather than an "actual conflict" that had already adversely affected the defendant's representation. The Court had just cited and quoted Holloway v. Arkansas, 435 U. S. 475 (1978), which held that the judge was obligated to enquire into the risk of a prospective conflict, id., at 484. This reading is confirmed by the Sullivan Court's subsequent terminology: Because the trial judge in Sullivan had had no duty to enquire into "a particular conflict" upon notice of multiple
193
Page: Index Previous 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 NextLast modified: October 4, 2007