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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

Sixth AmendmentRight to Counsel

Gideon and Strickland

leading up to gideon
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
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
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
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
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.