7. Right to Counsel (6A)

Question 1

What is the right to counsel?

Answer 1

1) Assistance of counsel during all ‘critical stages’ of prosecution

2) After judicial proceedings have commenced (after formal charges filed)
- NOT during pre-charge custodial interrogation

3) Prevent police eliciting incriminating statement without counsel presence

Question 2

What are examples of police eliciting incriminating statements without counsel presence that violate 6A?

Answer 2

Placing ‘undisclosed’ gov informant into D’s cell + eliciting incriminating statements

Recording conversations between D + co-defendant

Question 3

At what stage is the right to counsel available?

Answer 3

Pre-trial

• Post-charge interrogation
• Preliminary hearings to determine probable cause for prosecution
• Arraignment
• Post-charge line-up

Trial

• Felony trial
• Misdemeanor trial (imprisonment/suspended jail sentence imposed)
• Guilty plea

Post-trial

• Sentencing hearing
• Appeals (matter of right/guilty pleas)

Question 4

What happens if the right to counsel is violated?

Answer 4

Pre-trial
- Harmless error test applies (gov must show other overwhelming evidence of guilt)

Trial
- Conviction overturned

Question 5

At what stage is the right to counsel not available?

Answer 5

Pre-trial

• Blood sampling
• Handwriting exemplars
• Voice exemplars
• Photo identification lineups
• Pre-charge lineups

Post-trial

• Discretionary appeals
• Post-conviction proceedings

Question 6

What type of offence must defendant invoke right to counsel?

Answer 6

Offence (related/unrelated)

• D must invoke right to counsel
• Police can question otherwise
• UNLESS 5A violation (D knows officer is police)

Second charge (unrelated)

• D must invoke right to counsel
• Police can question otherwise
• UNLESS 5A violation (D knows officer is police)

Question 7

What type of offence does defendant not need to invoke right to counsel?

Answer 7

Second charge (related)

• No need to invoke right to counsel
• Police can NOT question without counsel present

Question 8

How can you determine whether two offences are not related to each other?

Answer 8

Blockburger test

- One offence requires proof of an element which the other offence does not

Question 9

What is required for waiver of right to counsel?

Answer 9

1) Knowing
2) Voluntary

3) Counsel’s presence
- If appointed by D => Counsel’s presence required
- If appointed by court => Counsel’s presence NOT required

Question 10

Is the defendant’s statement admissible if it was obtained in violation of 6A?

Answer 10

Impeachment

NOT prosecution’s case-in-chief (Exclusionary Rule)

Question 11

When is counsel’s assistance not effective?

Answer 11

1) Counsel’s assistance falls below reasonable standard

2) ‘Reasonable probability’ that outcome of case would be different