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					         CP Lesson 11 – Right to
        Counsel/Right to Effective
          Assistance of Counsel
•   Development of Right
•   Right to Counsel on Appeal
•   Effective Representation
•   Confessions Reconsidered – the Right to
    Counsel and Confessions
            Development of the
             Right To Counsel
• Sixth Amendment provides that in all criminal
  prosecutions, the accused shall enjoy the right to
  have counsel for his defense.
• Primarily a 20th Century development
• Compared to other systems
• Primarily focuses on indigent cases – when is
  the state required to furnish counsel for those
  who can’t afford an attorney?
Development of the Right to Counsel
• Powell v. Alabama (1932)
  –   Racially charged prosecution
  –   What does it mean to meaningfully appoint counsel?
  –   Capital case
  –   Uneducated defendants
  –   What does 14th Amendment Due Process require?
  –   Holding narrowly tailored to facts
   Further Development – Betts and
            Gideon cases
• As noted, Powell holding tied closely to compelling
  facts
• Betts v. Brady (1942)
   – Not capital case; not racially hostile, & competent defendant?
   – Not fundamental here – case by case analysis
• Gideon v. Wainwright (1963)
   – No compelling circumstances; very literate defendant
   – Right to Counsel is Fundamental; at least in serious cases
Development of Right to Counsel
• Argersinger v. Hamlin (1972)
   – What’s a serious case?
   – Threat of imprisonment important
   – Protects against assembly line justice
• Scott v. Illinois (1979)
   – Argersinger forces judge to make pretrial
     determination
   – RTC only when sentence of confinement actually
     imposed in misdemeanor case
      Right to Counsel - Appeals
• General right to counsel on first appeal as of right
   – Douglas v. California (1963)
   – Draws on Equal Protection Clause of the 14th Amendment
     and Griffin v. Illinois (1956)
• Discretionary Appeals – no RTC
   – Ross v. Moffitt (1974)
   – Discretionary review is not just error correction
• Implications for EP and socioeconomic inequality in
  Criminal Justice system
 Effective Representation and RTC
• Waiving the RTC
  – Faretta v. California (1975)
  – Stand by Counsel – McKaskle v. Wiggins (1984)
  – To recap, a judge must:
     • Fully advise defendant of right to counsel
     • Make sure that defendant’s waiver is express, not implied
     • Make sure that defendant is competent to waive RTC
  Effective Representation, cont.
• Standard for Proving ineffective assistance of
  counsel
   – US v. Chronic (1984) – specific errors must
     be shown, no presumption from disadvantage
   – Strickland v. Washington (1984) – must show
     counsel’s performance was short of
     professional standards and that it prejudiced
     defense
      Ineffective Counsel, cont.
• Lockhart v. Fretwell (1993)
  – “To show prejudice under Strickland, a defendant
    must demonstrate that counsel’s errors are so serious
    as to deprive him of a trial whose result is fair or
    reliable, not merely that the outcome would have
    been different.”
• Court willing to find ineffective counsel where
  inadequate preparation or investigation (Wiggins
  v. Smith 2003), but not to second guess
  attorneys’ trial strategies (Bell v. Cohen 2002).
Confessions Revisited – Confessions
     and the Right to Counsel
• Right to Counsel after Indictment
   – Massiah v. US (1964)
   – Fellers v. US (2004)
• Remember “jail house” cases, Kuhlman and Perkins.
• Generally, the right to counsel applies in all critical
  stages of the CJ process – a stage is critical if the
  defendant is compelled to make a decision which
  may later be formally used against him
 Parameters of Right to Counsel
• Before Indictment – Escobedo v. IL (1964)
• Waiver of counsel and confessions – Brewer v.
  Williams (1977)
• Questioning on Different, but Related Offense
  – Texas v. Cobb (2001)
    Differences Between Miranda Confession Rights
        and Right to Counsel Confession Rights
Miranda Warnings                            Right to Counsel
Come under the 5th Amendment against        Comes under the 6th Amendment
self incrimination
Apply only during custodial                 Applies in many proceedings – before
interrogation                               trial, during trial, and during appeal or
                                            sentencing
Given by enforcement agents                 Lawyer is either retained by the suspect
                                            or assigned by a judge
Given in the absence of a lawyer            Once defendant has a lawyer, defendant
                                            can’t be questioned in the absence of a
                                            lawyer unless right is waived (note: this
                                            can be complicated – see below)
Must be given every time there is a         Once given, is violated only if the
custodial interrogation about any offense   interrogation deals with the same offense
except routine traffic stops                but not if it is about other offenses, even
                                            if closely related

				
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posted:10/15/2011
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