Right 2 Counsel: 6th Amend. Rt
Rt 2 Atty
- At Trial
- Effective Assistance of Counsel
- Rt 2 Reject Atty
- Lineup, Showup, & Photo Array
Rt 2 Assistance of Counsel @ Trial
- Powell v. Alabama
- 6th Amend.
- In all crim. prosec's, the accused shall enjoy rt...2 have
the assistance of counsel 4 his defense
- Incorp'ing 6th Amend. by D/P of 14th
- Rt 2 counsel not firmly rooted b/c colony started it, not
- Rt 2 counsel 6th & 14th applies when
- Capital cases / death penalty
- D can't employ atty
- D incapable of adeq'ly making own defense b/c ignorant
- Then must assign counsel / appt atty whether req'ed / not
- Critical Stage Analysis
- Rt 2 atty attached from arraignment 2 trial b/c prosec. commenced
- Rt 2 Atty in Subseq. Cases
- In Fed prosec., appt atty in capital & noncapital cases
- In State, appt atty only 4 spec. noncapital cases like illit.
- In State, appt atty 4 all poor facing capital cases (Hamilton)
- In State, appt atty 4 all felonies (Gideon v. Wainwright)
- Felony is punishable by imprisonment 4 more than 1 yr.
- In State, appt atty 4 msdr so whenever D in crim. prosec.
where punish. is serving X in prison, need atty (Argersinger v.
Rt 2 Atty on Appeal
- 1st Appeal as of Rt
- State Conferred Rt
- Always Appt Atty in Appeal (Douglas v. CA)
- Unfair 4 state 2 deprive those w/o $ of atty & should
allow = appeal by rich & poor
- Both E/P & D/P talked about so prob. 4 future precedents
- Discretionary Rev. / 2nd Appeal (Ross v. Moffitt)
- Other Rts Before Ross Case
- Rt 2 transcript, waive filing fee 2 appeal, etc.
- No Rt 2 Atty in Discretionary Rev by 14th Amend.
- Not a meaningful deprivation b/c still have meaningful access
2 transcript, atty in 1st appeal, & s.t. opinion from lwr
Effective Assistance of Counsel
- Implied in 6th
- Rt 2 Effective Assistance (Powell Holding)
- Need 2 set up fair trial
- When 2 Appeal 4 Ineffective Counsel
- Habeas Corpus Proceeding
- Post conviction petition 4 new evid. hrg
- State, then Fed.
- Strickland / IAC (Ineffective Assistant Counsel) Test: D Must
- Perf Prong
- Atty's rep. of D fell below an obj. stand. of rsblness under
prevailing prof'l norms @ X of conduct & facts of case
- Deference 2 atty's strategy / jgmt
- Ask if atty viol'ed duties
- Loyalty / no conflict of int.
- Advocate 4 client
- Consult w/client
- Inform client
- All gives cushion
- Prejud. Prong
- Rsbl probability that, but 4 counsel's unprof'l errors result
of proceeding would've been dif.
- Must prove prejud. except presumed if
- Serious conflict of int.
- No counsel
- Proceeding can B anything like cap. sentencing, trial conviction,
appeal, & plea barg.
- 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
- Rt 2 Defend Oneself Abs.
- If "knowingly & intelligently" waives rt 2 atty,
must grant self-rep. (Faretta v. CA)
- Policies & arg's of pers'al autonomy v. unfairness of
unknowing people in adversary w/o atty
- Hybrid Counsel
- D & Atty Work Together: 1/2 Self-Rep & 1/2 Atty Rep
- Two Prong Test (McKaskle v. Wiggins)
- Did pro se D keep actual control over case that d chose 2
present 2 jury?
- Did standby atty's participation destroy jury's perception
that D was rep'ing self?
- 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
- Applies When There's
- Post indictment,
- Live confrontation,
- And if atty not notified / present (absent knowing / intelligent
- Evid. of Out of Ct ID
- Per se rule of excl'ing evid.
- Prosec. might ask W if ever ID'ed before so shows W more reliable
& emphasize assumption that memory fresher closer 2 event
- Evid. of In Ct ID (Wade)
- 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
- Prior opp. 2 observe crim. act
- Existence of discrepancy btwn pre=lineup & D's actual
- ID by picture before lineup
- Failure 2 ID D before
- Lapse of X btwn alleged act & lineup ID
- No Rt 2 Counsel 4 Photo (Kirby & Ash Cases)
- Can reconstruct the test
- D not present so no need 4 atty
- Policy concern it's 2 costly 2 have atty's
- No Rt 2 Counsel 4 Scientific Analysis of Police Evid. Gathering
- Reg'ed & normal / stand. operating proced.
- Can test @ trial
- Atty may not help
- Critical Stages
- Anything After Prosec.
- Line up & post indictment R after prosec. so rt 2 atty
- Preindictment ID & photo spread then no rt 2 atty attaches
- Test 4 Dec'ing Critical Stage of Proceeding (Wade)
- Prejud. involved in confrontation w/D: Can it B tested @ trial?
- Would present of atty diminish that prejud.
- Reliability of Dif. Proced. Ranked
- Lineup (most reliable)
- Photo Showup (least reliable)
- Rule on ID Proced. of 14th Amend. D/P (Manson v. Brathwaite)
- Totality of Circ's 2 See If ID Reliable: Balance Corrupting
Effect of Sugg. ID v. Indicators of W's Ability 2 Make Accurate
- Corrupting Effect of Sugg. ID
- How sugg.
- How nec.
- Any pressure 2 ID / motive 2 ID
- Subst'l likelihood of irreparable midID
- Indicators of W's Ability
- Opp. 2 view perpetrator @ X
- Degree of attn @ X
- Accuracy of W's description
- Level of W's cert.
- X btwn crim. & ID
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