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Advanced Criminal Procedure
Villanova University School of Law
Packel, Leonard


In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Federal Sentencing
Misdemeanors: anything in which the sentence can be up to 1 year
Petty Offenses: any misdemeanor in which the potential sentence can be up to 6mths
Felonies: anything which can be punished over 1 yr



Powell v. Alabama (1932) (state case)
§ “Right to be heard…little avail…right to be heard by counsel”
§ Special circumstances: “∆s stood in peril of their lives”
§ Failure of trial court to give ∆ reasonable time and opportunity to secure counsel was clear denial of DP of 14th
§ With these facts the right to have counsel appointed is a logical corollary of the constitutional right to be heard by counsel

Johnson v. Zerbst (1938)
§ 6th guaranteed indigent federal ∆ (at least all felony ∆s) a right to appointed counsel
§ Realistic recognition of the obvious truth that the avg ∆ doesn’t have the professional legal skill to protect himself before tribunal taking away his life/liberty when prosecution is presented by experienced/learned counsel
§ 6th am “to have assistance of Counsel for his defense” à plausible alternative of this language is that if you have a lawyer right to bring lawyer to court but court held that language means in felony cases federal government has obligation of appointing counsel if ∆ can’t afford it à thus, broader reading of 6th

Betts v. Brady (1942)
§ DP of 14th doesn’t incorporate specific guarantees in 6th but denial may in certain circumstances deprive ∆ of DP
§ DP less rigid/more fluid à totality of the facts of given case
§ In capital case where ∆ unable to employ counsel, incapable of making own defense, duty of court (requested or not) to assign counsel for DP
§ While want of counsel in a particular case may result in a conviction lacking in such fundamental fairness, 14th doesn’t embody inexorable command that no trial for any offense, or in any court, can be fairly conducted and justice accorded a ∆ who is not represented by counsel
§ People working in system troubled by result in Betts à notion of “special circumstances” where counsel would be provided proved difficult for states to apply and states that made it for supreme court review found special circumstances but how were the states to know that
Absolute Right to Retained Counsel:
ü Chandler v. Fretag (1954) right to be heard through own counsel is unqualified
ü US v. Gonzalez-Lopez: 6th right to counsel of choice commands not that a trial be fair, but that a particular guarantee of fairness be provided – that the accused be defended by the counsel he believes is best (rejecting prejudicial showing requirement when district court denied ∆ of out-of-state counsel)

Gideon v. Wainwright (1963)
§ Reject Betts (anachronism): 6th guarantee of counsel if a fundamental right via 14th
§ SC lays down a more manageable rule which the states can follow
§ Precedent, reason, reflection à adversary system à poor person haled into court can’t be assured a fair trial unless counsel is provided for him
§ Vast sums of money to establish machinery to try ∆s à lawyers deemed essential to protect public interest in orderly society and necessities not luxuries
§ Procedural and substantive safeguards designed to assure fair trial à stand equal before the law à not equal if poor without a lawyer
§ Concurrence: special circumstances rule formally abandoned in capital cases and now time to abandon in non-capital at least where offense carries possibility of substantial prison sentence

Ardersinger v Hamlin (1972)
§ Absent a knowing and intelligent waiver no person may be imprisoned for any offense (petty, misd, felony) unless he was represented by counsel
§ Focus is on actual rather than potential incarceration
o Thus, if the prosecutor doesn’t seek incarceration, the ∆ is not required to have counsel
§ Sup Ct. choice not to issue a broad rule about the right to counsel for all petty offenses
§ Note: in felony cases right to counsel turns on potential incarceration; actual not required
§ Focus is on actual (not potential) incarceration in felony cases [right to counsel turn on potential incarceration – actual is no required] à turns on actual incarceration not grading of offenses
§ Impact à practice of judge saying this is not a case where would ever impose incarceration thus denying ∆ right to counsel
§ Court did not say in all cases all ∆ get lawyers à balance b/w concerns of ∆ (confidence in fair result) and burdens on State (financial/administrative)
§ Florida adopted system where the right to counsel for petty and non-petty offenses is where the right to jury trial kicks in b/c that is where adversarial nature of system is most acute
o Florida adopted a sensible line but court rejected holding that you can’t imprison ∆ without affording ∆ right to counsel.
§ Concurrence: every judge will know when the trial of misd starts that no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel
§ Concurrence: no rigid constitutional rules à judicial discretion à complexity of the offense, probable sentence, individual peculiar factors (e.g. competency of ∆)

Scott v. Illinois (1979) *redefining Ardesinger
§ At issue was whether a non-petty misd (right to jury attached) required the right to counsel where the ∆ could be, but was not actually incarcerated
§ Type of offense: non-petty misd à actual sentence: fine only à no right to counsel
§ Ardersinger warrants adoption of actual imprisonment as the line defining the constitutional right to appointed counsel
§ 6th and 14th require only that no indigent crim ∆ be sentence to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense
§ Right to trial by jury but not right to trial by lawyer because in trial cases turns on potential incarceration and here turns on actual sentence
§ Concurrence: actual imprisonment rule impairs criminal justice system b/c compelled to forgo legislatively granted option to impose a sentence of prison upon conviction but rule is clear guidance for daily problem, hoping in due time a flex rule consistent with DP will better serve cause of justice

ü As long as there is no jail time there is no 6th amend violation but still fall back on the argument of 14th violation of special circumstances of cases that made in unfair for ∆ to proceed without counsel

Nichols v. US (1994)
§ An uncounseled conviction valid under Scott [b/c no prison term was imposed] may be relied upon to enhance the sentence for a subsequent offense, even though that sentence entails imprisonment
§ Enhancement statutes do not change the penalty imposed for the earlier convictions
o The punishment doesn’t represent additional punishment for the un-counseled conviction, but rather proper punishment for the current felony
o Thus, an un-counseled conviction is not unconstitutional as long as you are not punshed further for it while on trial for the current time
§ ∆ could have been sentenced to more severely simply based on evidence of underlying conduct that give rise to DUI offense (nolo contendere plea) by preponderance of the evidence thus must be constitutionally permissible to consider a prior uncounseled conviction based on the same conduct where that conduct must be proved beyond reasonable doubt

Alabama v. Shelton (2002)
§ Convicted of assault without assistance of counsel à sentence imposed (30days jail)/suspended and ∆ placed on 2yr probation
§ Reversing ∆ suspended sent

§ ∆ need not have the skill and experience of a lawyer to competently and intelligently choose self rep he should be made aware of the dangers and disadvantages of self rep (choose with “eyes open”)
§ Here, ∆ clear declaration, literate, competent, understanding must follow ground rules of trial procedure à no inquiry into whether ∆ mastered intricacies of hearsay or code provisions à technical legal knowledge not relevant to an assessment of his knowing exercise of the right to defend himself.
§ Trial judge may terminate self rep by ∆ who deliberately engages in serious and obstructionist misconduct
§ A state may – even over the objection of ∆ – appoint a “standby” counsel to aid the accused if and when the accused requests help, and to be available to represent the accused in the even that termination of ∆’s self rep is necessary
§ The right of self rep is not a license to abuse the dignity of the courtroom, not comply with relevant rules of procedural and substantive law à ∆ who elects self rep can’t appeal ineffective assistance of counsel
§ The only constitutional issue is whether the ∆ understands the downsides of proceeding without counsel à judge can probe further and try to demonstrate the advantage of having a lawyer but he can’t reject a valid waiver
§ Dissent: deference to trial judge to decline waiver, society’s interest in justice, ∆ tried according to Constitution
§ Dissent: State need not subordinate interests to whimsy of accused + procedural problems

Assistance of Counsel

Right to Jury Trial

∆ can waive

∆ can waive

If ∆ waives court can’t impose counsel

If ∆ waive court may impose jury

∆ has right to self representation

∆ has no right to trial without jury

PA Rule of Conduct 1.2(a)
® A lawyer shall abide by a client’s decision concerning objectives of representation… and shall consult with client as to the means by which they are to be pursued
® In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify

Martinez v. Court of Appeal CA (2000)
§ No constitutional right to self-representation on direct appeal from a criminal conviction
§ 6th doesn’t include any right to appeal
§ Right to self representation not absolute (Faretta) – balance b/w competing interests
§ Faretta’s historical analysis not always useful because decision to self represent no longer compelled by necessity
§ Concurrence (Scalia): doesn’t share skepticism of Faretta à framers suspicious of compulsory assignment of counsel by government (would have rested on DP) à no constitutional right to appeal
§ Concurrence (Breyer): Faretta may be counterproductive for trial judges

Lower Court Decisions on Faretta Procedural Concerns