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Question 1

Who has an unqualified right to appointed counsel?

Answer 1

All state defendants

Question 2

No indigent criminal defendant can be sentenced to a term of imprisonment unless what?

Answer 2

The state has given him the right to counsel

Question 3

When does the right to counsel apply for state cases?

Answer 3

It applies to any case that is brought in state court for a serious crime with a sentence of confinement

Question 4

Does the right to counsel apply to both felonies and misdemeanors?

Answer 4

No. It does apply to felonies, but not to misdemeanours that do not involve jail time

Question 5

If a defendant was sentenced to confinement, even for one day, and he requested a lawyer and that was denied, what happens?

Answer 5

That is a violation of his sixth amendment rights

Question 6

What is the rule for appointed counsel in federal cases?

Answer 6

Indigents must be given counsel

Question 7

If the right to counsel applies, who is included in the possible pool of people providing it?

Answer 7

– individual appointed private lawyers
– public defenders
– contract attorney organizations like legal aid

Question 8

What is considered to be a critical stage of trial?

Answer 8

Anytime that the defendant has to make a decision that requires legal advice or defend himself against a direct onslaught of the prosecutor

Question 9

What are examples of critical stages where the right to an attorney applies?

Answer 9

- 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

Question 10

When does the adversarial process begin so that the right to counsel applies?

Answer 10

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

Question 11

What are things that are undecided as to whether or not they are a critical stage that the right to an attorney applies to?

Answer 11

– bail hearings
– pre-trial psychiatric exams
– period between arraignment and trial
– parental status termination proceedings

Question 12

What are stages that a defendant has no right to representation?

Answer 12

- probation
– parole revocation hearings
– summary courts-martial
– contempt hearings where both parties are unrepresented
– prison disciplinary proceedings
– handwriting exemplars

Question 13

What are the factors to consider if deciding that a critical stage applies such that the right to counsel would be present?

Answer 13

• 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

Question 14

When does the right to counsel attach?

Answer 14

At the moment that a criminal prosecution begins

Question 15

After the right to counsel attaches, when must counsel be appointed?

Answer 15

Within a reasonable time

Question 16

Who determines if the appointment of counsel is necessary?

Answer 16

A magistrate

Question 17

What is the tricky thing about deciding right to counsel?

Answer 17

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

Question 18

What is the right to counsel on appeal?

Answer 18

Right to a government appointed lawyer for an indigent interest extends to the first appeal of right, but to no further appeals

Question 19

Do courts have to give counsel to indigents for second tier or discretionary appellate reviews?

Answer 19

No, right to counsel only applies to the first appeal of right

Question 20

In what circumstances does the right to counsel apply for trial, first appeal, and discretionary appeal?

Answer 20

• 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

Question 21

What is the situation under the sixth amendment that gives a right to pro se representation?

Answer 21

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.

Question 22

Defendant chooses to represent himself, what are the rules?

Answer 22

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.

Question 23

Is it possible for a trial court to appoint “stand by” counsel if a defendant has chosen to represent himself?

Answer 23

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

Question 24

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?

Answer 24

Yes. And if the court decides the defendant is not sufficiently competent to manage his own defense, it can deny pro se representation

Question 25

If a defendant didn’t get counsel before trial, even though he had lots of time and no good excuse, what often happens?

Answer 25

He can be forced to continue pro se because that is considered to be a waiver by conduct.

Question 26

What is ineffective assistance of counsel?

Answer 26

This occurs when the defendant can show that his lawyer was ineffective. It may mean that he can get a new trial or a new sentencing hearing. It must be proven by a two prong test that considers incompetence and prejudice

Question 27

What is involved in the two prong test for ineffective assistance of counsel?

Answer 27

• incompetence: the lawyer’s performance was constitutionally ineffective and fell below the minimum standard of competence
  – prejudice: as a result, the defendant suffered prejudice

Question 28

What is involved in the incompetence portion of ineffective assistance of counsel?

Answer 28

The sixth amendment gives a right to a minimally competent attorney, so in this case the attorney’s performance fell below that standard.

Question 29

When is ineffective assistance of counsel considered to be inapplicable?

Answer 29

If the defendant had no constitutional right to a lawyer in the first place. For example, this was his second appeal

Question 30

Does ineffective assistance of counsel apply to both retained and assigned counsel?

Answer 30

Yes

Question 31

What is involved in the second prong of the two prong test for ineffective assistance of counsel that’s about prejudice?

Answer 31

As a result of the attorney’s conduct, the defendant suffered prejudice. This means there was a reasonable probability that “but for” the counsel’s unprofessional errors, the result would’ve been different.

Question 32

What are some examples that would meet the ineffective assistance of counsel element for prejudice?

Answer 32

The attorney being drunk or sleeping during trial, not making a closing argument in a capital case because he just gave up, not making any effort, the attorney was prevented from acting as an advocate, etc.

Question 33

What is the question to ask when it comes to ineffective assistance of counsel?

Answer 33

Ask if it was a meaningful adversary testing in which the adversary process was able to achieve its basic objectives

Question 34

What are some examples of areas were ineffective assistance of counsel is assumed because that area is so likely to produce prejudice?

Answer 34

• if counsel was totally absent or prevented from assisting their client during a critical stage
  – if counsel was absent in effort
  – when the likelihood that any lawyer could provide effective assistance is so small

Question 35

Can state interference result in ineffective assistance of counsel?

Answer 35

Yes. If a state action stops counsel from making full use of trial procedures, that can deny effective assistance of counsel. It must be determined if the interference denied counsel the opportunity to participate fully and fairly in the fact-finding process