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Criminal Procedure II
Wayne State University Law School
Moran, David A.

I. Right To Counsel (6th Amdt.)
A. Scope of the Right:
-pertinent text of amdt: “In all criminal prosecution, the accused shall enjoy the right to have the assistance of counsel for his defense.”
-In Gideon v. Wayneright  (67) FACT SUMMARY: Gideon (D) appealed his criminal conviction for a noncapital felony on the grounds that the trial court’s refusal to appoint counsel for him was unconstitutional.
CONCISE RULE OF LAW: The right to counsel is one of those rights that is “fundamental and essential to a fair trial” and is thus made obligatory upon the states by the Fourteenth Amendment.
FACTS: Gideon (D) was convicted of a noncapital felony after the Florida trial court refused to appoint counsel for him because the law allowed such appointment only in capital cases. His petition for habeas corpus relief was denied, but the U.S. Supreme Court granted certiorari to consider his contention that the denial of appointed counsel had been unconstitutional.
ISSUE: Is the right to counsel a fundamental right that is made obligatory upon the states by the Fourteenth Amendment?
HOLDING AND DECISION: (Black, J.) Yes. A provision of the Bill of Rights which is “fundamental and essential to a fair trial” is made obligatory upon the states by the Fourteenth Amendment. Betts v. Brady was correct in so assuming. However, the Betts Court was wrong in concluding that the Sixth Amendment’s guarantee of counsel is not one of those fundamental rights. It is. In deciding it was not, the Betts Court made an abrupt break with its own well considered precedents. Today, this Court returns to these old precedents by recognizing that the right to counsel of one charged with a crime is deemed fundamental and essential to a fair trial in our country. Reversed.
-The Supreme Court held that all D’s in felony prosecutions were entitled to counsel, and if they could not afford one themselves, the state must provide one. This holding was given complete retroactive effect.
-Gideon incorporated the 6th amdt. right to counsel to the states, and overruled Johnson v. Zerbst (requiring appointment of counsel in all federal criminal cases if D cannot afford one) and Betts v. Brady. In Betts, the Court didn’t apply the right to counsel to the states wholesale, but limited to a case-by-case analysis, and limited it to special circumstances where the D was unable to effectively defend himself. D.P. only required that counsel be appointed in these cases.
-Violations of right to counsel are D.P. violations, (non-compliance w/ the Bill of Rights.)
1. What is the 6th amdt. right to counsel?
a. It doesn’t attach when arrested
b. It attaches at the initiation of judicial proceedings:
(i) pg. 76: Brewer v. Williams defines this as critical stages of prosecution, such as when formal charges are filed, indictments issued, preliminary hearing, information or arraignments. This is presumably at

int an attorney.
3. The right to appointed counsel in proceedings other than criminal prosecutions.
a.Parole Hearings: Gagnon v. Scarpelli (94): CONCISE RULE OF LAW: A probationer or parolee does not have an absolute due process right to the assistance of counsel at a hearing to revoke probation or parole; such right exists only as determined on a case-by-case basis.
FACTS: Scarpelli (D) pled guilty to a charge of armed robbery. He was given a suspended sentence of fifteen years and placed on probation for seven years. Scarpelli (D) was apprehended one month later during an attempted burglary. After having been advised of his constitutional rights, Scarpelli (D) admitted to the police that he had unlawfully broken into the house. Scarpelli (D) now asserts that the statement was made under duress and is false. His probation from the earlier conviction was revoked on the grounds that Scarpelli (D) had been involved in a burglary and that he had associated with a known criminal in the perpetration of the burglary. At no time was Scarpelli (D) afforded a hearing on the new charges and the probation revocation. Scarpelli’s (D) suspended sentence was imposed.