Right to Counsel
• Sixth Amendment
o 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 defense.
A. Absolute Right to Counsel
Positive Right
• Sixth Amendment right to counsel is a pre-trial right, and is a positive right; some claim that this right only enjoins the government from interference in the retention of counsel. Note that the right to counsel affects other right afforded a criminal defendant in a prosecution.
o Court first recognized a positive right to counsel in Johnson v. Zerbst (1938); declined to extend this right to non-capital cases in Betts v. Brady (1942), favoring a case-by-case, “special circumstances” due process test based on the totality of the circumstances.
o A question left unresolved from Johnson was what about the state courts? Does 14th amendment extend the Bill of Rights to the states?
Right to Counsel at Trial
• Serious Criminal Prosecutions
o Right to counsel in all federal and state felony prosecutions extended in Gideon v. Wainwright (1963) on due process and equal protection grounds.
Due process prohibits imbalance in adversary system that could lead to bad decisions; equal protection requires that the state remedy the imbalance imposed by the inability to afford counsel.
• Imprisonment Rule
o Absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial. (Argersinger v. Hamlin, 1972)
Scott v. Illinois (1979): Imprisonment rule applied to non-petty offenses.
Alabama v. Shelton (2002): Indigent defendant not represented by counsel or waiving right may not receive a suspended or conditional sentence that may result in incarceration.
o When no imprisonment is to be imposed under any circumstances, conviction without counsel is constitutional.
• Timing
o Right to counsel triggered upon the formal commencement of adversary proceedings, and not upon arrest. It is triggered when the defendant is arraigned, indicted, or at a preliminary hearing.
Ake v. Oklahoma (1985): Indigent pleading insanity defense has a right to a court-appointed psychiatrist.
• Post-Verdict
o Defendant retains right to counsel through sentencing (Mempa v. Rhay, 1967) and through any appeal afforded by the state as a matter of right (Douglas v. California, 1963).
Ineffective Counsel Claims
• In order for a convicted defendant to establish ineffective assistance of counsel, he must show both that the counsel’s performance was deficient and that the deficiencies were prejudicial. (Strickland v. Washington)
o Counsel’s performance to be assessed under a standard of reasonableness under prevailing professional norms.
Strong presumption that the counsel was competent and result was relianble.
Courts must asses counsels actions from his perspective at the time challenged decisions were made
Court must take into account any constraints of time, money or client information and choice.
In capital trials, defendant must show reasonable probability that, absent the errors, sentencer would not have warranted death.
o US v. Cronic: Purpose of defense counsel must ensure a fair trial; no violation if counsel ensured meaningful testing of prosecutions test, even where demonstrable errors were committed.
• New standard is difficult to apply, and courts are reluctant to overturn convictions or find members of the local bar incompetent.
• Ineffective assistance is a particular problem in guilty pleas since there is no evidentiary record from which to asses counsel’s alleged failings.
• Sixth Amendment
o 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 defense.
A. Absolute Right to Counsel
Positive Right
• Sixth Amendment right to counsel is a pre-trial right, and is a positive right; some claim that this right only enjoins the government from interference in the retention of counsel. Note that the right to counsel affects other right afforded a criminal defendant in a prosecution.
o Court first recognized a positive right to counsel in Johnson v. Zerbst (1938); declined to extend this right to non-capital cases in Betts v. Brady (1942), favoring a case-by-case, “special circumstances” due process test based on the totality of the circumstances.
o A question left unresolved from Johnson was what about the state courts? Does 14th amendment extend the Bill of Rights to the states?
Right to Counsel at Trial
• Serious Criminal Prosecutions
o Right to counsel in all federal and state felony prosecutions extended in Gideon v. Wainwright (1963) on due process and equal protection grounds.
Due process prohibits imbalance in adversary system that could lead to bad decisions; equal protection requires that the state remedy the imbalance imposed by the inability to afford counsel.
• Imprisonment Rule
o Absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial. (Argersinger v. Hamlin, 1972)
Scott v. Illinois (1979): Imprisonment rule applied to non-petty offenses.
Alabama v. Shelton (2002): Indigent defendant not represented by counsel or waiving right may not receive a suspended or conditional sentence that may result in incarceration.
o When no imprisonment is to be imposed under any circumstances, conviction without counsel is constitutional.
• Timing
o Right to counsel triggered upon the formal commencement of adversary proceedings, and not upon arrest. It is triggered when the defendant is arraigned, indicted, or at a preliminary hearing.
Ake v. Oklahoma (1985): Indigent pleading insanity defense has a right to a court-appointed psychiatrist.
• Post-Verdict
o Defendant retains right to counsel through sentencing (Mempa v. Rhay, 1967) and through any appeal afforded by the state as a matter of right (Douglas v. California, 1963).
Ineffective Counsel Claims
• In order for a convicted defendant to establish ineffective assistance of counsel, he must show both that the counsel’s performance was deficient and that the deficiencies were prejudicial. (Strickland v. Washington)
o Counsel’s performance to be assessed under a standard of reasonableness under prevailing professional norms.
Strong presumption that the counsel was competent and result was relianble.
Courts must asses counsels actions from his perspective at the time challenged decisions were made
Court must take into account any constraints of time, money or client information and choice.
In capital trials, defendant must show reasonable probability that, absent the errors, sentencer would not have warranted death.
o US v. Cronic: Purpose of defense counsel must ensure a fair trial; no violation if counsel ensured meaningful testing of prosecutions test, even where demonstrable errors were committed.
• New standard is difficult to apply, and courts are reluctant to overturn convictions or find members of the local bar incompetent.
• Ineffective assistance is a particular problem in guilty pleas since there is no evidentiary record from which to asses counsel’s alleged failings.
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