right to counsel Flashcards
Right to counsel in probation/parole hearings
The decision as to the need for counsel must be made on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system. Although the presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most revocation hearings, there will remain certain cases in which fundamental fairness—the touchstone of due process—will require that the State provide at its expense counsel for indigent probationers or parolees.
Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself. In every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record
possible punishment required for right to counsel to be applicable
The possibility of jail time - even one day in jail is sufficient.
right to counsel when probation is the punishment
Revocation of probation with incarceration resulting from a probation violation where the defendant was not represented by counsel in the initial proceeding violates the defendant’s right to counsel as does imposition of a suspended imprisonment sentence
Strickland two-part test for ineffective assistance of counsel
(1) Deficient Performance - counsel is strongly presumed to have rendered adequate assistance and made all decisions in the exercise of reasonable professional judgment – the defendant must show that defense counsel’s performance objectively fell outside the wide range of professional reasonableness for representation when assessed not with the benefit of hindsight but viewed as of the time of counsel’s conduct
(2) Prejudice - the defendant must show a reasonable probability, that is a probability sufficient to undermine confidence in the outcome, that but for counsel’s unprofessional errors the result would have been different.
Cronic prejudice presumption (three-part test)
Prejudice is presumed if
(1) there has been a complete denial of counsel,
(2) if counsel entirely fails to subject the prosecution’s case to a meaningful adversarial testing, or
(3) when there is an actual conflict of interest for counsel
Limitations on the Cronic presumed prejudice categories
For the presumption of prejudice to apply with regard to conflicts of interest, the defendant bears the burden of demonstrating that defense counsel was
(1) actively representing conflicting interests and
(2) that the conflict adversely affected counsel’s performance for the defendant;
Cronic categories (1) and (2) have also been limited (ex: Bell v. Cone – attorney who failed to call any mitigation witnesses at capital sentencing proceeding but who did cross-examine some of the prosecutions witnesses did not fall within Cronic category 1 or 2)
Note: Falling outside the ambit of the Cronic presumed prejudice categories does not defeat an ineffectiveness claim rather it forces the defendant to meet the requirements of the Strickland prejudice prong rather than being able to rest upon presumed prejudice
Defendant’s right to expert testimony
when D demonstrates to trial judge his sanity is to be a significant factor, State must, at minimum, assure access to a competent psychiatrist to examine/assist in evaluation/preparation/presentation of the defense.
No right to choose a particular psychiatrist. Court leaves it to the state to implement the right – some have limited to capital cases, some have limited to cases with a psychiatrist as the expert
