Chapter Seven:
Defense Attorneys
The RIGHT TO COUNSEL
SIXTH AMENDMENT
“In all criminal prosecutions the accused shall enjoy
the right…..to have
the assistance of counsel for his defense.”
What does this mean?
Supreme Court Cases
Concerning Right to Counsel
Supreme Court Cases
Concerning Right to Counsel
Right to Counsel
Steps of Felony Criminal Procedure
Steps Where No Counsel Required
Steps Where Counsel Required
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Initial Appearance*
Bail*
Preliminary Hearing
Arraignment
Interrogation
Lineup
Plea Bargaining
Trial
Sentencing
1st Appeal
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Arrest
Charging
Grand Jury
Lineup (pre-indictment)
Discretionary Appeal
Step Where Lawyer on Request
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Interrogation (pre-indictment)
Steps Where Lawyer
at Court’s Discretion
If a critical stage.
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Probation and Parole revocations
Right to Counsel during Steps of
Felony Crime Procedure
The Role of Defense Attorneys
in a Typical Felony Case
Defense Attorneys
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Defense attorneys are officers of the court.
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Defense attorneys are members of the courtroom
workgroup. Generally, they have the least power.
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According to Skolnick, defense attorneys are divided into
three categories: those attorneys who handle few cases,
those attorneys who have criminal practices and are
adversarial, and those attorneys who handle large numbers
of clients, i.e., public defenders.
Defense attorneys utilize a reactive approach in response to
their continual exposure to various “rewards and sanctions”
deemed appropriate by other courtroom workgroup
members.
Supreme Court Decisions
Re: Right to Counsel and Indigents
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Powell v. Alabama (1932): Indigent defendants have a right
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Johnson v. Zerbst (1938): Indigent defendants have a right
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Gideon v. Wainwright (1963): Indigent defendants have a
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In re Gault (1967): Juveniles have a right to counsel in
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Mempa v. Rhay (1967): Indigent defendants have a right to
to counsel in a capital case in state court.
to counsel in federal court.
right to counsel in state court.
juvenile court proceedings.
counsel in all “critical stages” of the criminal justice
process.
Indigent Defense Systems
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Assigned Counsel: Involves the appointment by counsel by
the court of private attorneys from a list of available
attorneys.
Contract System: Involves bidding by private attorneys to
represent all criminal defendants found indigent during the
term of the contract. (Cost over Quality).
Public Defenders: Public or private nonprofit organizations
with full or part-time salaried staff who represent indigents
in criminal cases in their jurisdiction.
If you were arrested,
which would you rather have,
a private attorney or a public defender?
(Stolen property or Embezzlement)
Why?
Indigents
Defendants who are too poor
to pay a lawyer and therefore
are entitled to a lawyer for free.
Merits of Public Defender System
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The PDS provides lawyers who are paid to
represent indigents on a continuous basis and
who devote more attention than those attorneys
who receive minimal compensation.
The PDS provides more experienced and
competent counsel because their day-to-day
courtroom workgroup exposure keeps them
knowledgeable of both the criminal law and the
informal norms of the court (the going rate).
Assessing the Merits of the
Public Defender System
Question:
Is there a difference in outcomes
between those defendants represented
by privately retained counsel
or by
those defendants represented
by public defenders?
Question:
Although Crime Control and Due Process
advocates agree that indigents should
have counsel during the criminal process,
the scope of this right is disputed.
Crime control advocates are concerned that
government spends too much on providing
the poor with lawyers, whereas the due
process advocates are concerned
Are we spending too little or too much?
Views of Lawyers and Clients
Lawyers View of Their Clients
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Clients View of Their Lawyers
Lawyers advocate a
counseling approach.
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Clients are skeptical about the
skills of their lawyers.
Lawyers must weigh the
likelihood of conviction or
acquittal.
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PD’s are paid whether they
win or not.
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A breakdown of trust between
client and lawyer.
Lawyers must prepare clients
for consequences and the
possibility of conviction.
Lawyers are exposed to
dishonesty and deception by
their clients.
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Clients can become hostile
due to lack of confidence –
they feel the attorney should
always win.
“…..most defense attorneys
deal with a steady stream of defendants
who are in fact guilty,
and their representation focuses on
plea bargaining.”
QUESTION
Do you feel this is an accurate statement?
Why?