Sixth amendment right to counsel
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Sixth Amendment Right to Counsel. Gideon and Strickland. Leading Up to Gideon. Betts v. Brady (1942) “Special Circumstances Rule” No one has a right to counsel unless there are special circumstances which would make it impossible to have a fair trial without counsel

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Sixth Amendment Right to Counsel

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Sixth AmendmentRight to Counsel

Gideon and Strickland

Leading Up to Gideon

  • Betts v. Brady (1942)

    • “Special Circumstances Rule” No one has a right to counsel unless there are special circumstances which would make it impossible to have a fair trial without counsel

    • E.g., illiteracy; disability

  • Thus, right to counsel (6A) not absorbed until Gideon

Gideon (1963)

  • Right to counsel is absorbed.

  • This case says that in all felony cases, one has a right to have a lawyer.

    • Counsel must be provided to indigent defendant- - - or no imprisonment.

  • Why is counsel absorbed? Fair Trial, Fundamental Fairness

  • Right to Counsel attaches when the accused is formally charged with a crime.

6A: Note that this is the Sixth Amendment right to a lawyer.

5A: Later on, in Miranda v. Arizona, we will see the Court create a new right to counsel based on the Fifth Amendment, and we will refer to that as the Fifth Amendment right to a lawyer. The significance of the 5A right to a lawyer is that it attaches much, much earlier in the criminal process - - - in the investigative stages at custodial interrogation , and that is usually long before a person is formally charged.

  • So, during all the time (usually some months) between being charged and trial, the accused does not have a right to have a lawyer with him 24/7; the right applies during Critical Stages only

    • And does not apply to non-critical stages

The Critical Stages Doctrine

  • Critical stages: Rt. To Counsel Exists

    • Custodial Interrogation [Miranda]

    • Post-indictment Lineups

    • Initial Appearance (Charges are identified, bail set)

    • Preliminary Hearing

    • Arraignment

    • Felony Trials [Gideon]

    • Misdemeanor Trials where imprisonment actual imposed

    • Sentencing

    • First Appeal

Critical Stages Doctrine, continued

  • Non-Critical Stages: No Rt. To Counsel

    • Preliminary I D procedures, like blood sample, handwriting sample, fingerprint etc.

    • Lineups before indictment

    • Grand jury proceedings

    • Discretionary appeals (those appeals after the first appeal)

    • Most revocation of probation hearings

    • Most revocation of parole hearings

Effective Counsel

  • Strickland

    • Rt. To counsel is designed to insure a fair trial; therefore, counsel has to be at least minimally effective.

    • Presumption: Counsel’s performance is reasonable.

    • Strickland Two-part test

      • Was counsel’s performance deficient as judged by the “reasonable attorney” standard?

      • Were counsel’s errors so serious that the verdict was prejudiced (would likely have been different had the errors not been made)?

      • If both answers are “yes,” conviction reversed.

  • OK under Strickland

    • Trial strategies, even though they might be outlandish and do not work

    • Failure to make an objection in trial even though if made it would have prevented the death penalty

    • Falling asleep during the trial

    • Attorney smoking mj during trial!

    • Lots of other examples!

  • Not OK per Strickland

    • Conflict of interest

    • Judge’s not allowing attorney to consult with client

    • A few other things but not many

      The Bottom Line: Defense attorney is presumed competent, and it is veryhard to prove incompetence.

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