Sixth Amendment Right to Counsel

1. Sixth AmendmentRight to Counsel Gideon and Strickland

2. 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

3. 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

4. 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.

5. 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

6. 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

7. 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

8. 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.

9. 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!

10. 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.