Trial: Right to Counsel

Question 1

What is the general rule w/ regards to D’s right to counsel?

What is the effect of violation of this right at trial?

What is the effect of violation of this right bnefore trial?

Answer 1

In general –> D has right to counsel

Violation of this right AT TRIAL –> requires reversal

Violation of this right BEFORE trial –> harmless error test is applied

REMEMBER ALSO –> limitation for misdemeanors

Question 2

Does D have right to counsel w regards to misdemeanor?

Answer 2

In misdemeanors, right to counsel is only available IF imprisonment is ACTUALLY IMPOSED.

*this is a common test trick

Question 3

What is D’s right to waive counsel and defend himself at trial?

Answer 3

D has right to defend himself at trial IF:

1. waiver is KNOWING and INTELLIGENT; and
2. judge determines he is COMPETENT based on his emotional and physiological state

NOTE –> D has no right to self- representation on appeal,

Question 4

what is the rule w regards to “effective assistance of counsel”?

To when does this right extend?

Answer 4

• 6th amendment right to counsel includes right to “effective counsel”
• this right extends to 1st appeal

Question 5

What is the rule w regards to claims of ineffective counsel?

What must ineffective assistance claimant show?

Answer 5

• effective counsel is PRESUMED
• Ineffective Assistance claimant must show:
  1. DEFICIENT PERFORMANCE by counsel;
  2. BUT FOR the deficiency, D:
  (i) would not have been convicted; OR
  (ii) his sentence would have been shorter

Question 6

What is the standard with regards to ineffective assistance of counsel and plea bargains?

Answer 6

• Ineffective Assistance claimant must show:
  1. DEFICIENT PERFORMANCE by counsel;
  2. REASONABLE POSSIBILITY outcome would have been different with competent advice

Question 7

What if counsel never presents plea bargain?

Answer 7

1. had plea bargain been communicated, he likely would have accepted
2. plea likely would have been entered without prosecutor cancelling it

NOTE –> the fact that D subsequently has fair trial does not cancel this claim

Question 8

What if counsel never communicates that plea bargain can result in deportation?

Answer 8

this IS ineffective

Question 9

Is a D’s conflict of interest with his attorney grounds for relief?

Answer 9

Probably not

Question 10

Does D have right to be jointly represented with his co-defendants?

Answer 10

No, if gov can show potential conflict of interest

Question 11

With regards to joint representation, what is the rule w/ regards to attorney informing judge of conflict of interest?

Answer 11

• joint representation is not per se invalid
• HOWEVER –> If attorney informs judge of conflict of interest at or before trial, and judge refuses to appoint separate counsel —> it’s grounds for AUTOMATIC REVERSAL

Question 12

What is the rule w regards to state providing psychiatrist for defense?

Answer 12

If D makes:
- preliminary showing that he is likely to be able to use insanity defense,

THEN –> state MUST provide psychiatrist for preparation of the defense

Question 13

Does D have the right to consult w her attorney while testifying?

Answer 13

No .

• may be sequestered from attorney for short breaks (15 minutes as opposed to overnight)