Rt 2 Atty: 6th Amend.

Right 2 Counsel: 6th Amend. Rt

Rt 2 Atty

At Trial
Appeal
Effective Assistance of Counsel
Rt 2 Reject Atty
Lineup, Showup, & Photo Array

Rt 2 Assistance of Counsel @ Trial

Powell v. Alabama
1. 6th Amend.
  1. In all crim. prosec's, the accused shall enjoy rt...2 have the assistance of counsel 4 his defense
2. Incorp'ing 6th Amend. by D/P of 14th
  1. Rt 2 counsel not firmly rooted b/c colony started it, not Eng.
3. Rt 2 counsel 6th & 14th applies when
  1. Capital cases / death penalty
  2. D can't employ atty
  3. D incapable of adeq'ly making own defense b/c ignorant
  4. Then must assign counsel / appt atty whether req'ed / not
4. Critical Stage Analysis
  1. Rt 2 atty attached from arraignment 2 trial b/c prosec. commenced from arraignment
Rt 2 Atty in Subseq. Cases
1. In Fed prosec., appt atty in capital & noncapital cases (Johnson)
2. In State, appt atty only 4 spec. noncapital cases like illit. (Betts)
3. In State, appt atty 4 all poor facing capital cases (Hamilton)
4. In State, appt atty 4 all felonies (Gideon v. Wainwright)
  1. Felony is punishable by imprisonment 4 more than 1 yr.
5. In State, appt atty 4 msdr so whenever D in crim. prosec. where punish. is serving X in prison, need atty (Argersinger v. Hamlin)

Rt 2 Atty on Appeal

1st Appeal as of Rt
1. State Conferred Rt
2. Always Appt Atty in Appeal (Douglas v. CA)
  1. Unfair 4 state 2 deprive those w/o $ of atty & should allow = appeal by rich & poor
  2. Both E/P & D/P talked about so prob. 4 future precedents
Discretionary Rev. / 2nd Appeal (Ross v. Moffitt)
1. Other Rts Before Ross Case
  1. Rt 2 transcript, waive filing fee 2 appeal, etc.
2. No Rt 2 Atty in Discretionary Rev by 14th Amend.
  1. Not a meaningful deprivation b/c still have meaningful access 2 transcript, atty in 1st appeal, & s.t. opinion from lwr cts

Effective Assistance of Counsel

Implied in 6th
1. Rt 2 Effective Assistance (Powell Holding)
  1. Need 2 set up fair trial
When 2 Appeal 4 Ineffective Counsel
1. Habeas Corpus Proceeding
  1. Post conviction petition 4 new evid. hrg
  2. State, then Fed.
Strickland / IAC (Ineffective Assistant Counsel) Test: D Must Show Both
1. Perf Prong
  1. Atty's rep. of D fell below an obj. stand. of rsblness under prevailing prof'l norms @ X of conduct & facts of case
    1. Deference 2 atty's strategy / jgmt
    2. Ask if atty viol'ed duties
      1. Loyalty / no conflict of int.
      2. Advocate 4 client
      3. Consult w/client
      4. Inform client
      5. Investig.
    3. All gives cushion
2. Prejud. Prong
  1. Rsbl probability that, but 4 counsel's unprof'l errors result of proceeding would've been dif.
    1. Must prove prejud. except presumed if
      1. Serious conflict of int.
      2. No counsel
    2. Proceeding can B anything like cap. sentencing, trial conviction, appeal, & plea barg.
    3. Trial ct's can skip 2 this prong if not matter whay D's atty did, same results

Rt 2 Reject Counsel

14th & 6th Amend. Implication
1. Rt 2 Defend Oneself Abs.
  1. If "knowingly & intelligently" waives rt 2 atty, must grant self-rep. (Faretta v. CA)
  2. Policies & arg's of pers'al autonomy v. unfairness of unknowing people in adversary w/o atty
Hybrid Counsel
1. D & Atty Work Together: 1/2 Self-Rep & 1/2 Atty Rep
2. Two Prong Test (McKaskle v. Wiggins)
  1. Did pro se D keep actual control over case that d chose 2 present 2 jury?
  2. Did standby atty's participation destroy jury's perception that D was rep'ing self?
    1. Standby atty can obj. so long as jury not lose perception

Rt 2 Atty @ Lineup, Showup, & Photo Array

Rule 4 ID Proced. & 6th Amend. Rt 2 Atty
1. Applies When There's
  1. Post indictment,
  2. Live confrontation,
  3. And if atty not notified / present (absent knowing / intelligent waiver) THEN
2. Evid. of Out of Ct ID
  1. Per se rule of excl'ing evid.
  2. Prosec. might ask W if ever ID'ed before so shows W more reliable & emphasize assumption that memory fresher closer 2 event
3. Evid. of In Ct ID (Wade)
  1. If post indictment & live confrontation, then can't make in ct ID unless govt proves by clear & convincing evid. that ct ID based on observation other than line up by factors
    1. Prior opp. 2 observe crim. act
    2. Existence of discrepancy btwn pre=lineup & D's actual descriptions
    3. ID by picture before lineup
    4. Failure 2 ID D before
    5. Lapse of X btwn alleged act & lineup ID
No Rt 2 Counsel 4 Photo (Kirby & Ash Cases)
1. Can reconstruct the test
2. D not present so no need 4 atty
3. Policy concern it's 2 costly 2 have atty's
No Rt 2 Counsel 4 Scientific Analysis of Police Evid. Gathering
1. Reg'ed & normal / stand. operating proced.
2. Can test @ trial
3. Atty may not help
Critical Stages
1. Anything After Prosec.
  1. Line up & post indictment R after prosec. so rt 2 atty attaches
  2. Preindictment ID & photo spread then no rt 2 atty attaches
2. Test 4 Dec'ing Critical Stage of Proceeding (Wade)
  1. Prejud. involved in confrontation w/D: Can it B tested @ trial?
  2. Would present of atty diminish that prejud.
Reliability of Dif. Proced. Ranked
1. Lineup (most reliable)
2. Photospread
3. Showup
4. Photo Showup (least reliable)
Rule on ID Proced. of 14th Amend. D/P (Manson v. Brathwaite)
1. Totality of Circ's 2 See If ID Reliable: Balance Corrupting Effect of Sugg. ID v. Indicators of W's Ability 2 Make Accurate ID
2. Corrupting Effect of Sugg. ID
  1. How sugg.
  2. How nec.
  3. Any pressure 2 ID / motive 2 ID
  4. Subst'l likelihood of irreparable midID
3. Indicators of W's Ability
  1. Opp. 2 view perpetrator @ X
  2. Degree of attn @ X
  3. Accuracy of W's description
  4. Level of W's cert.
  5. X btwn crim. & ID

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12/2/1996

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