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Criminal Procedure
University of North Carolina School of Law
Rosen, Richard A.

The Right to Appointed Counsel
Sixth Amendment- “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defense.” 
Our legal system has so many rules and pitfalls in it that trying to navigate it without a lawyer is almost like showing up for surgery without a doctor being there. 
Powell v. Alabama (U.S. 1932)
o        Supreme Court held that, in capital cases, the 14th Amendment’s due process rights require that a defendant have the effective assistance of counsel.
o        However, Powell’s guarantee of assistance of counsel was limited to situations in which the defendant was “incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy or the like.” 
v      Essentially, Powell created the special circumstances rule- a defendant must be given or at least have the ability to obtain, effective assistance of counsel if that defendant is unable to defend himself adequately.
Hamilton v. Alabama (U.S. 1962)
o        Did away with the Powell’s “special circumstances” rule with regard to capital cases. – Gave an outright requirement of counsel in capital cases. 
Johnson v. Zerbst (1938)
o        Held that there was a right to counsel in federal felony prosecutions. 
Betts v. Brady (1942)
o        Betts argued that the right to counsel set up in Zerbst extended to state courts as well as federal courts. – Supreme Court said that, in non-capital, state cases, a defendant has a right to counsel only when the denial of counsel would result in a “trial … offensive to the common and fundamental ideas of fairness and right.” ß Special circumstances rule of sorts.
Gideon v. Wainwright (U.S. 1963)
Indigent defendants have the right to representation in felony cases. 
Argersinger v. Hamlin (U.S. 1972)
o        “Absent a knowing and intelligent wavier, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony unless he was represented by counsel at his trial.” 
o        In other words, criminal defendants have the right to counsel if they will be imprisoned (for any amount of time) upon conviction. 
§         Critics of the Argersinger decision (and Justice Powell in his concurrence) claim that, as the decision of whether to appoint counsel for an indigent defendant occurs at the outset of a trial, judges must decide BEFORE hearing any evidence, whether they will sentence the defendant to imprisonment if he is convicted. This seems silly.
§         Additionally, there are situations where punishments other than imprisonment (such as license revocation or the fact that it is harder for a convict to find employment) are potentially de

a sentence).
o        Which stages are “critical?” 
v    Critical apparently refers to any interaction between the defendant and the state that could adversely affect the defendant’s ability to exercise a legal right. The following have been recognized as “critical” stages:
·         Preliminary hearings (Coleman)
·         Initial appearances (Brewer)
·         Arraignments (Hamilton v. Alabama)
·         Informal meetings between defendant and representatives of the state that are meant to get info from the defendant
o        At what point does the 6th Amendment right to counsel run out? à after sentencing
v    Morrisey v. Brewer (U.S. 1972) – parole revocation is not part of a “criminal prosecution” but that certain “procedural protections” apply at parole revocation hearings.
Gagnon v. Scarpelli (U.S. 1973) – the Court held that one of the “procedural protections” alluded to in Morrisey is the right to counsel at parole or probation revocation hearings where (unlike in Mempa), sentence is not imposed at that hearing but where there are “special circumstances.”