The Right to Counsel

Question 1

Powell v. Alabama in 1932 held that the right to counsel:

Answer 1

There is no right to appointed counsel at any level.

Question 2

Betts v. Brady (1942) held that the right to counsel:

Answer 2

Majority decides that the case should examine the totality of the circumstances to decide when counsel should be appointed, but this does not extend the right to counsel against the states.

Question 3

What does Gideon v. Wainwright (1963) hold in regards to the right to counsel?

Answer 3

The Warren Court overruled Betts v. Brady in holding that States must appoint a criminal defendant counsel if they cannot afford one and this is a felony trial.

Question 4

What does Argensinger v. Hamliin (1972) stand for in regards to the types of sentences that counsel must be appointed for in criminal cases?

Answer 4

SCOTUS holds that any offense which has the possibility of imprisonment must provide counsel for a defendant who cannot afford one.

Question 5

What is required under Johnson v. Zerks to waive the right to counsel?

Answer 5

A defendant may voluntarily waive their right to counsel as long as it fulfills the VIK standard. VIK stands for Voluntarily, Intelligently, and Knowingly.

Question 6

Because of the Holding in Argensinger v. Hamlin, when the judge can impose a sentence of either a fine or jail time and the defendant asks to be appointed an attorney, does the judge have to give an attorney under Scott v. Illinois (1979)?

Answer 6

No. When the defendant is not sentenced to imprisonment, he does not have the right to counsel. Only when the actual punishment is jail time, the person has a right to counsel.

Question 7

What is a criminal prosecution as it pertains to the right to counsel?

Answer 7

1) Getting arrested is NOT a criminal prosecution.

2) Traditionally, the criminal prosecution starts at the indictment/ information stage.

Question 8

What happens once the suspect is arrested and the criminal prosecution is established as to the right to an attorney?

Answer 8

Once a criminal prosecution is established and right to counsel has “attached” then a lawyer must be present at the critical stages of the prosecution.
Critical Stage = anytime in a courtroom or something big for the case is happening, such as a lineup.

Question 9

Does an indigent defendant have the right to an attorney for their appeal under Griffin v. Illinois (1956)?

Answer 9

Yes. Griffin states that although the 6th amendment does not provide it, under the 14th amendments Due Process Clause, an indigent defendant has the right to an attorney for their appeal because it would be discrimination and a violation of due process to not allow it.

Question 10

What does Douglas v. California (1963) hold in regards to rights to an attorney for an appeal?

Answer 10

Applied the 14th amendment’s due process clause to the states as well as to the federal level.

Question 11

What does the Griffin-Douglas Equality principle stand for?

Answer 11

Basically, there can be no equal justice where the kind of trial a man gets depends on the amount of money he has.

Question 12

What type of appeals does counsel have to be given for under Ross v. Moffit (1974)?

Answer 12

Although the state must provide counsel to indigent defendant for their automatic appeals, they are not provided one for their discretionary appeals.

Question 13

What is required for an indigent defendant to go pro se under Faretta v. California (1975)?

Answer 13

A defendant can waive their right to counsel and proceed pro se with little to no knowledge of the legal system. They must only waive their right to counsel voluntarily, knowingly, and intelligently.

Question 14

Can a court require a pro se defendant to have “stand by” counsel under McKaskle v. Wiggins (1984)?

Answer 14

Yes. A court can require an indigent defendant to have standby counsel if they are proceeding pro se, even if the defendant does not want it. The standby counsel cannot participate in the case without the permission of the defendant though.

Question 15

What are the Strickland Standards found in Strickland v. Washington (1984)?

Answer 15

For a defendant to prove that their counsel was ineffective, requires two steps:

1) Defendant must show that counsel’s performance was deficient;
2) Defendant must show that the deficient performance prejudiced the defense.

Note: The court will often err on the side of the attorney if it is a close call - except in death penalty cases.

Question 16

Does an indigent defendant have the right to the assistance of expert witnesses at the states expense under Ake v. Oklahoma (1985)?

Answer 16

Under the 14th amendment due process clause, an indigent defendant has the right to the assistance of experts to have an adequate opportunity to present their claims fairly within the adversarial system. This is a requirement to have a fair and adequate defense. But the defense must show that they require the expert, they cannot just simply ask for it and have it be granted.