Pg 30 Flashcards
Who has an unqualified right to appointed counsel?
All state defendants
No indigent criminal defendant can be sentenced to a term of imprisonment unless what?
The state has given him the right to counsel
When does the right to counsel apply for state cases?
It applies to any case that is brought in state court for a serious crime with a sentence of confinement
Does the right to counsel apply to both felonies and misdemeanors?
No. It does apply to felonies, but not to misdemeanours that do not involve jail time
If a defendant was sentenced to confinement, even for one day, and he requested a lawyer and that was denied, what happens?
That is a violation of his sixth amendment rights
What is the rule for appointed counsel in federal cases?
Indigents must be given counsel
If the right to counsel applies, who is included in the possible pool of people providing it?
– individual appointed private lawyers
– public defenders
– contract attorney organizations like legal aid
What is considered to be a critical stage of trial?
Anytime that the defendant has to make a decision that requires legal advice or defend himself against a direct onslaught of the prosecutor
What are examples of critical stages where the right to an attorney applies?
- lineups – official attempting to get an incriminating statement from the defendant – arraignments – D being asked to enter a plea – trial – pre-trial corporeal identifications – police questioning – preliminary hearings – juvenile delinquency proceedings
When does the adversarial process begin so that the right to counsel applies?
With the first appearance before a judicial officer. This triggers the right to counsel, but after that point it depends on whether a critical stage in the process is involved
What are things that are undecided as to whether or not they are a critical stage that the right to an attorney applies to?
– bail hearings
– pre-trial psychiatric exams
– period between arraignment and trial
– parental status termination proceedings
What are stages that a defendant has no right to representation?
- probation – parole revocation hearings – summary courts-martial – contempt hearings where both parties are unrepresented – prison disciplinary proceedings – handwriting exemplars
What are the factors to consider if deciding that a critical stage applies such that the right to counsel would be present?
- time when defences could be irretrievably lost if they are not asserted
– the assistance of counsel is necessary to mount a meaningful defence at that point
– potential for substantial prejudice to the defendant’s rights is present in a confrontation
– counsel’s assistance can help avoid prejudice
– if the consequences would be adverse to the defendant or the charge can be avoided or mitigated if he had counsel
– if the procedure gave the opportunity to benefit the defendant about the disposition of the charge through rights that could’ve been exercised through counsel
– if adverse consequences could’ve been avoided or lost opportunities regained by action that counsel could’ve taken
When does the right to counsel attach?
At the moment that a criminal prosecution begins
After the right to counsel attaches, when must counsel be appointed?
Within a reasonable time
Who determines if the appointment of counsel is necessary?
A magistrate
What is the tricky thing about deciding right to counsel?
If a magistrate doesn’t appoint a lawyer because he doesn’t think that incarceration is a possibility, the judge cannot impose incarceration later regardless of any new information that comes to light
What is the right to counsel on appeal?
Right to a government appointed lawyer for an indigent interest extends to the first appeal of right, but to no further appeals
Do courts have to give counsel to indigents for second tier or discretionary appellate reviews?
No, right to counsel only applies to the first appeal of right
In what circumstances does the right to counsel apply for trial, first appeal, and discretionary appeal?
- trial: yes if there is a jail sentence
- first appeal: yes for appeal of right [a.k.a. automatic first appeal]
- discretionary appeal: no right to appointed counsel
What is the situation under the sixth amendment that gives a right to pro se representation?
The sixth amendment has a right to represent yourself if the defendant knowingly and intelligently waived his right to counsel. This means he must understand the right, the risks involved in giving it up, and must do it without coercion. Must be KNOWING, INTELLIGENT, and VOLUNTARY.
Defendant chooses to represent himself, what are the rules?
He must make a timely representation before trial, so it doesn’t disrupt the process. He must follow the rules of decorum in court. He must knowingly and voluntarily waive his right to counsel.
Is it possible for a trial court to appoint “stand by” counsel if a defendant has chosen to represent himself?
Yes, this person then becomes part of the defence team as a legal advisor and if the defendant changes his mind halfway through, counsel can step in and there will not be any delays
If a D chooses to represent himself, can the state still impose a lawyer on him for the sake of efficiency in the appellate process?
Yes. And if the court decides the defendant is not sufficiently competent to manage his own defense, it can deny pro se representation
