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Criminal Procedure: Adjudication
Faulkner Law - Thomas Goode Jones School of Law
Craig, Mary W.

Criminal Procedure Adjudication
Right to Counsel
Introductory Right to Counsel
Amendment V: “No person shall…be deprived of life, liberty, or property, without due process of law…”
Restricts the federal government – until the 14th Amendment, states could deprive persons of life, liberty or property without due process unless the states themselves chose to provide due process.
Amendment XIV: “…nor shall any state deprive any person of life, liberty or property, without due process of law…”
Restricts the states
Incorporation debate – Most of the first 10 amendments were incorporated into the 14th Amendment, but not all have been
Amendment VI: “In all criminal prosecutions, the accused shall enjoy…and to have the assistance of counsel for his defense.”
This phrase was originally interpreted to mean that ∆s were allowed to have a defense attorney – didn’t originally mean that the government would provided an attorney if you could not afford one.
General Principles
Defendants are entitled to counsel in all criminal prosecutions
Powell v. Alabama(4)
D’s were a group of 9 black men accused of raping white women. Court did not appoint counsel but appointed the whole state bar to represent them. 
Court held that the appointment of a primary defense lawyer was a requirement of due process in capital cases
Betts v. Brady(5)
Counsel is only required under special circumstances and not in every criminal case
6th Amendment: in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense
Whether the right is among those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions; whether it is basic to our system of jurisprudence; whether it is a fundamental right, essential to a fair trail; whether it is fundamental to the American scheme of justice
Gideon v. Wainwright(5)
D was prosecuted for breaking and entering, a felony. D request, but was denied, the assistance of counsel. Jury convicted him and he appealed, citing the need for counsel
Court holds that the earlier decision of Betts had been a break with the Court’s precedents, and that D is entitled to counsel
Any person who is haled into court who is too poor to hire a lawyer cannot have a fair trial unless counsel is provided for him
Anyone who has money buys the best lawyer they possibly can, implying they are necessities and not luxuries
Also, the government hires lawyers
Mere existence of serious criminal charges justifies the service of counsel
Gideon suggests that the right of an indigent defendant to appointed council applies whenever the defendant is charged with a felony. In subsequent decisions, however, the Court has made clear that the state is required to provide the defendant with an attorney only if the charges result in actual imprisonment. Because the entitlement to appointed council depends on the sentence actually imposed, rather than the penalty authorized by law, the decision whether to provide the accused with a lawyer will limit the court’s sentencing options in the event of a conviction.
Proceedings Requiring Counsel: Critical Stages
General Principles
6th Amendment applies only after the commencement of adversarial judicial proceedings at critical stages of the prosecution
This starts the criminal prosecution
Adversarial Proceedings
Adversarial proceedings do not start until arraignment
Critical Stages of the Prosecution
Those pretrial procedures that would impair defense on the merits if the accused is required to proceed without counsel
Also any stage of the prosecution where counsel’s absence might derogate from the accused’s right to a fair trail
e.g.- pretrial lineups, preliminary hearings, and arraignments where rights may be lost
Does not begin with arrest or even postarrest probable cause hearings
DWI, psych exams, blood tests, and handwriting tests are all not critical stages (depending on the state)
Right to Counsel at Sentencing
Must have counsel at sentencing
However, not required at probation revocations sometimes
Potential Issues in Right to Counsel
Gagnon: D was given a suspended sentence and a term of probation for a counseled felony conviction
Court holds that probation revocation hearings are not part of the criminal prosecution and right to counsel does not apply
Nichols: court holds that a valid, uncounseled misdemeanor conviction may be used as the basis for enhancing punishment of the defendant after a subsequent, counseled conviction
Alabama RCP 6.1(a) (22)
D is entitled to counsel in any criminal proceedings and if indigent, shall have counsel appointed whenever constitutionally required
Right to Counsel on Appeal
D has a right to an attorney on the first appeal as of a right (based on DP and EP rather than 6th Amendment)
Argersinger v. Hamlin(11)
D was charged with a misdemeanor with a max penalty of 6 months imprisonment, $1000, or both
Court holds that absent waiver, no person may be imprisoned for any offense, whether petty or anything else, unless he was represented by counsel at trail
Entitled to counsel only if he actually, not merely potentially, will be jailed if convicted
Scott v. Illinois(11)
D was charged with theft, a misdemeanor with a potential penalty of 1 year imprisonment. D was convicted but only fined $50.
D argues that although he was not imprisoned, he should be entitled to counsel at trial
Court holds that the constitution requires the right to counsel hinges on actual imprisonment, no

does not use ‘hindsight’
Defendant must prove unreasonable performance by a preponderance of the evidence
Wiggins v. Smith
Counsel’s decision to not go beyond presentence report in investigating and preparing for capital sentencing hearing is unreasonable in light of professional norms and prejudicial
D must prove that there is a reasonable probability that but for the errors, the result of the proceeding would have been different
Structural ineffectiveness
This is where there is a conflict of interest, like representing multiple clients who may have conflicting interests
Here, prejudice is presumed if counsel objects at trial
When D is actually or constructively denied counsel
When state unconstitutionally interferes with counsel’s assistance
Areas of conflicts of interest
ABA Standards for Defense Counsel (55)
Inform accused of his rights at earliest opportunity
Take all necessary procedural steps
Duty to investigate
Duty to explore disposition without trial
Strickland v. Washington(38)
D was charged with a series of brutal crimes. Counsel actively pursued pretrial motions and discovery. However, he cut his efforts short after he became hopeless about the case after hearing D confessed, against specific advice, to the murders. Counsel then failed to find character witnesses or request pych exams
D contends that counsel was ineffective because he did not perform these omissions
Court holds that scrutiny of counsel’s performance must be highly deferential, without using hindsight to evaluate performance
Court holds that there was no prejudice in this case, D must affirmatively prove prejudice and it just was not present in the case
Too many aggravating factors
No reasonable probability that the omitted evidence would have changed the conclusion
Bruno v. State(45)
D was sentenced to death for murder, his strategy at trial had been to claim that a friend, who was also an adverse witness, committed the murder. 
D contends counsel was deficient because lawyer had alcohol and drug impairments
During the trial he to be hospitalized before the trial for his problems
D also contends counsel divulged confidential and damaging information to the court