Criminal Procedure
Constitution & Society
CHAPTER 6
The Right to Counsel
THE RIGHT TO COUNSEL
• THE ATTORNEY IS THE DEFENDANT’S SURROGATE
• THE LAWYER “STANDS IN THE DEFENDANT’S SHOES”
• THE ATTORNEY OWES THE CLIENT AN UNDIVIDED DUTY OF
REPRESENTATION
• THE ATTORNEY IS CLOAKED WITH THE ATTORNEY-CLIENT PRIVILEGE
WHICH PRESERVES A CRIMINAL CLIENT’S RIGHT AGAINST SELFINCRIMINATION
• WITHOUT ADEQUATE REPRESENTATION, A FAIR TRIAL IS IMPOSSIBLE
ENGLISH COMMON LAW
• ATTORNEYS WERE NOT PERMITTED IN ENGLISH
COMMON LAW JURY TRIALS
• CRIMINAL DEFENDANTS DEFENDED THEMSELVES
• AN ENGLISH CRIMINAL TRIAL WAS A “LONG
ARGUMENT” BETWEEN THE DEFENDANT AND A
PRIVATE ACCUSER
THE DEVELOPMENT OF THE RIGHT TO
COUNSEL
• POWELL V. ALABAMA: THE SCOTTSBORO CASE (1932)
• ESTABLISHED THE RIGHT TO COUNSEL AS A MATTER OF DUE PROCESS
UNDER THE 14TH AMENDMENT
• JOHNSON V. ZERBST (1938)-MADE THE ASSISTANCE OF COUNSEL IN A
FEDERAL CASE AN ABSOLUTE RIGHT
1. A FEDERAL FELONY TRIAL CONDUCTED WITHOUT A DEFENSE
LAWYER, UNLESS PROPERLY WAIVED, IS A JURISDICTIONAL VIOLATION
2. SPECIFIED THE RULES FOR WAIVER OF COUNSEL
WAIVER OF COUNSEL
• MUST BE EXPLICIT
• DEFINED AS “AN INTELLIGENT RELINQUISHMENT OR ABANDONMENT
OF A KNOWN RIGHT OR PRIVILEGE
• DEFENDANT MUST KNOW THAT HE OR SHE HAS A RIGHT TO COUNSEL
AND THEN MUST VOLUNTARILY GIVE IT UP KNOWITH THAT THE
RIGHT TO CLAIM IT EXISTS
• SUPREME COURT REQUIRES JUDGES TO CAREFULLY INVESTIGATE
WAIVERS OF COUNSEL
• WRITTEN RECORD OF WAIVERS IS ALSO REQUIRED
GIDEON V. WAINWRIGHT
•FINALLY ESTABLISHED THE RIGHT TO
COUNSEL IN ALL STATE FELONY CASES
•STATED ESSENTIALLY THAT A FAIR TRIAL
INCLUDES THE RIGHT TO COUNSEL
RIGHT TO COUNSEL IN OTHER PROCEEDINGS
• THE COURTS HAVE ESTABLISHED A RIGHT TO COUNSEL IN THE
FOLLOWING CIRCUMSTANCES:
• 1. DURING PLEA BARGAIN NEGOTIATIONS
• 2. PROBATION REVOCATION HEARINGS
• 3. PAROLE REVOCATION HEARINGS
• 4. ON FIRST APPEALS
RIGHT TO SELF-REPRESENTATION
• DEFENDANTS ACCUSED OF CRIMES HAVE THE ABSOLUTE RIGHT TO REPRESENT AND
DEFEND THEMSELVES PRO SE
• PRO SE-MEANS “IN ONE’S OWN BEHALF”
• SELF-REPRESENTATION REFELCTS THE AMERICAN VALUE OF SELF-RELIANCE AND
DISTRUST OF LAWYERS
• SOME OTHER REASONS INCLUDE:
• FRUSTRATION WITH ACTUAL OR PERCEIVED INCOMPETENCE OF APPOINTED
COUNSEL OR PUBLIC DEFENDER
• AS LEVERAGE TO GET RID OF INCOMPETENT LAWYER AFTER REQUEST FOR NEW
LAWYER DENIED
• TOP PROMOTE A POLITICAL IDEOLOGY
• STANDBY COUNSEL CAN BE APPOINTED W/O INFRINGING ON PRO SE
RIGHTS
EFFECTIVE ASSISTANCE OF COUNSEL
• THE RIGHT TO COUNSEL INCLUDES THE RIGHT TO EFFECTIVE
ASSISTANCE OF BOTH APPOINTED AND RETAINED COUNSEL
• 2-PRONGED TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL
CLAIM TO PREVAIL
• 1. DEFENDANT MUST SHOW THAT COUNSEL’S
PERFORMANCE WAS DEFICIENT
• 2. THE DEFENDANT MUST SHOW THAT THE DEFICIENT
PERFORMANCE PREJUDICED THE DEFENSE