6Th Amendment Right to Counsel

6th Amendment – Right to Counsel

Introduction
Two fundamental processes of criminal procedure
Method of interpretation
meaning and scope of relevant constitutional provisions
determines outcome
2 styles of constitutional interpretation
living constitution approach
courts and judges interpret the constitution
changes over time depending upon the court and the trends of society
Justice Brennan
literal interpretation
just what the clauses of the constitution state
no judicial interpretation
Justice Black
Determines the extent of constitutional authority over the states
Federalism
language of the 14th amendment due process and equal protection clause
Bill of Rights
Bound to states by the 14th amendment
Original inception to restrain governmental oppression
After the civil war 13th, 14th and 15th amendments added
14th Amendment: “No state shall deprive person of due process of life, liberty and property without due process of law
14th applied to federal law but didn't originally apply the Bill of Rights directly to the states
Radical Republicans lobbied to apply all aspects of the Bill of Rights to the states, at least the first 8 amendments and the 15th (voting rights)
Due process clause interpreted to incorporate the Bill of Rights guarantees to apply to the states
Incorporation Theory
3 approaches of incorporation
Total incorporation:
Argues that all the guarantees given in the Bill of Rights are “incorporated” into the 14th, and are thus applicable to the states.
states bound by principles of first 8 amendments
“Fundamental Fairness Test” incorporation:
holds that the fact that a particular criminal procedure is prohibited by the Bill of Rights does not necessarily mean that the 14th amendment prohibits its use by the states.
Requires only that the states apply those procedures which are “implicit in the concept of ordered liberty” or which are “fundamental to the American scheme of justice”
If a procedure is inconsistent with liberty or justice, it cannot be used by the states, whether or not it is prohibited by the Bill of Rights. All other procedures, even those prohibited by the BR, can be applied by the states
case by case method – those amendments crucial to maintain fundamental fairness in the criminal justice system
Selective incorporation: used today
Not all rights enumerated in the BR are applicable to the states, but if any aspect of a right is so necessary to fundamental fairness that it applies to the states, then all aspects of that right apply.
If the right is applicable at all in state courts, its scope is the same as in federal courts.
courts decide which guarantees of the Bill of Rights are to be bound to the states
Basic premise of Incorporation theory
All criminal procedural rights, except 5th (right to grand jury indictments), have been incorporated against the states
Incorporation began in the late 1920’s with the 1st amendment
Framers didn’t intend for due process clause to bind states. Framers intended privileges and immunities clause to bind states
BR guarantees applicable to the states
4th right to be free from unreasonable searches and seizures and to have any illegally seized evidence excluded from criminal trials (Mapp v. Ohio)
5th privilege against self incrimination (Malloy v. Hogan)
6th right to counsel (Gideon v. Wainright)
6th right to a speedy trial (Klopfer v. N.C.) and public trial (In re Oliver)
6th right to confront opposing witnesses (Pointer v. Texas)
6th right to impartial jury (Duncan v. Louisiana)
5th guarantee against double jeopardy (Benton v. Maryland)
Today all amendments of the Bill of Rights except the 2nd (right to bear arms) and the 7th (right to civil jury trial) apply to the states in some form

6th Amendment Right to Jury Trial
Duncan v. Louisiana, 391 U.S. 145 (1968) – [Justice White]
Facts:  convicted of simple battery (misdemeanor) in LA. LA law only provides trial by jury in capital punishment cases and hard labor imprisonment.  requested trial by jury, which was denied.  convicted of simple battery and sentenced to 60 days in jail and $150 fine.  appealed to LA Supreme Court – cert denied.  applied for writ of cert to USSC for violation of 6th and 14th amendments guaranteeing trial by jury to all criminal s.
Issue: Was ’s denial by state court of trial by jury a violation of his constitutional rights? Does 14th due process clause include 6th amend. right to trial by jury and require it to be adhered to by the states?
Holding: 14th guarantees trial by jury in all criminal cases where incarceration equal more than 6 months
Implication of Duncan
Court applied federal standards to state law
Requirement of minimum of 6 man jury – unanimity is not required
watered down the BR to apply to states and the backlash felt by federal gov’t causing significant changes in pre-existing federal laws
Medina v. California
14th prohibits criminal prosecution of a  who is not competent to stand trial.
Does due process permit a State to require a  who alleges incompetence to stand trial to bear the burden of proving so by a preponderance of the evidence?
Court in Matthews v. Eldridge established a 3-factor test for evaluating procedural due process claims
the private interest that will be affected by the official action
the risk of an erroneous deprivation of such interest through the procedure used and the probable value of additional or substitute procedural safeguards
the gov’t interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail
It is within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion
Court ultimately rejected the petitioner’s argument that the State carries the burden to prove  not incompetent. States determine procedural laws.

Evolution of 6th Amendment right to assistance of counsel at trial
Right to counsel for indigent s
issues arise most often in indigent  context. Right to retain private counsel isn’t an issue
Right depends upon the severity of incarceration
Common law categories of criminal offenses
Petty offenses: no imprisonment – fine imposed or maximum of 6 months
Simple misdemeanor: penalty over 6 months up to and including 1 year
Felonies and Aggravated Misdemeanors: penalty over 1 year to life

Powell v. Alabama (1932) - Capital Crimes
First case in which a constitutional right to appointed counsel existed
Limited holding: applied to capital crimes and those capital crimes where the  was incapable of adequately making his own defense because of ignorance, feeble-mindedness, illiteracy, etc.
Holding not based on 6th but on 14th right to due process because case was so prejudicial to  that trial was fundamentally unfair
Betts v. Brady (1942) - Federal Only
6th amendment right to counsel was not to apply to state trials because lack of appointed counsel did not result in a denial of due process.
Gideon v. Wainright, 372 U.S. 335 (1963)- Felony
Facts:  charged with the robbery of a poolroom in Florida. At trial denied request of appointed counsel. Convicted and sentenced to 5 years imprisonment
Overruled Betts v. Brady
Per se rule: Supreme Court held that  had been denied a fair trial because “any person too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided …”
6th Amendment entitles an indigent  to appointed counsel
Lower courts interpreted Gideon to apply to felony incarceration cases only
Argesinger v. Hamlin (1972) - Misdemeanor
Extended the 6th right to all indigent misdemeanor s subject to imprisonment
Court held that no person may be incarcerated/imprisoned without assistance to counsel absent a waiver
Complications of ruling:
Does right only apply to actual incarceration or the possibility of incarceration?
Is actual incarceration a necessary or sufficient condition? Sufficient
Court only addressed actual incarceration and reserved decision to other offenses not included under Gideon (felonies) or non-felonies
Allows discretion to state judges to either appoint counsel or forego incarceration.
Scott v. Illinois (1979) - Misdemeanor with threat of actual imprisonment
Right to appointed counsel extends only to cases of actual incarceration. Necessary condition added to Argesinger
Did Scott overrule Gideon?
Gideon didn’t have an actual incarceration requirement
Scott required actual imprisonment – mere threat or fines didn’t impose 6th right
Scott court only applied decision to facts of case with maximum penalty of 1 year of $50.
Argesinger/Scott apply to petty offenses and misdemeanors
Gideon applies to felonies
Remedies for 6th violations
Gideon:  felon has conviction reversed with assistance of counsel
Chapman v. California
pro-prosecution court and applied “Harmless Error Doctrine”
not all constitutional violations require reversal
case by case analysis to determine if harmful error
s who use Gideon retroactively and time served and conviction is still harmful, but prior conviction cannot be used for recidivism or sentencing
Scott/Argesinger
conviction must be vacated and new trial granted with counsel
without actual incarceration conviction stands
Baldasar v. Illinois
recidivist statute
un-counseled conviction cannot be used to enhance secondary conviction
Nichols v. U.S.
DUI misdemeanor without counsel
Overruled Baldasar. Valid Argesinger/Scott conviction without incarceration can be used in future convictions

When does the criminal prosecution begin?
Critical stage analysis
Two stage Process
Whether pre-trial event is part of criminal prosecution
Whether pre-trial proceeding constitutes a critical stage that requires lawyer to protect s right to a fair trial
U.S. v. Wade: developed critical stage analysis of when right to counsel attaches (See page 11)
Powell v. Alabama
Confirmed right to counsel included at time of arraignment up through the trial - Affirmed by Gideon
14th requires effective assistance of counsel
Kirby v. Illinois
Pre-trial identification
Adversary judicial proceeding has been instituted against  which equates to a criminal prosecution (arraignment, indictment or grand jury)
Is proceeding part of the critical stage of the Wade-Gilbert doctrine?
test determined if counsel’s presence was necessary to avoid potential substantial prejudice to s right to a fair trial
Preliminary Hearing
Gov’t goes to court to determine if there is enough probable cause and evidence to bind  over for trial
Not required under 5th/14th
Determined by the states by enacting statutes
Prosecutorial discretion
Is  entitled to have attorney present at preliminary hearing?
6th doesn’t require attorney to be present at Grand Jury hearings
Coleman v. Alabama
determined that preliminary hearing is part of the criminal prosecution process if  required to enter a plea
then only is a preliminary hearing a critical stage
Brewer v. Williams
Criminal prosecution begins at adversarial judicial proceedings
Initial appearance is part of the criminal process - entering plea
Critical stage of process
No right to counsel at bail hearings
In this case, Δ was required to enter a plea, therefore entitled to an attorney
Mempa v. Rhay
Right to counsel continues until final imposition of criminal sentence
Right to counsel applicable at probation revocation proceedings in which judge imposes a sentence
Hamilton v. Alabama
Arraignments are critical stages of the criminal prosecution
Ex parte proceedings that will not adversely affect a s legal right is not a critical stage
Griffin v. Illinois
Supreme Court struck down Illinois statute denying free transcripts to indigent s where transcript is necessary for appeal
Implication
where transcript is not necessary to appeal, state is not required to furnish a free copy to indigents
Constitution prohibits state from structuring appellate process to limit appeals to those with financial means
Supreme Court applied equal protection rationale
Held that a state must provide a free transcript of the trial proceedings when submission of a transcript is a prerequisite to appeal
Douglas v. California
Counterpart of Gideon
Facts: Petitioner appealed as of right to Court of Appeals and was denied counsel. Petitioner wasn’t denied access to the appellate process, only denied assistance of counsel after state determined such assistance was futile.
Supreme Court found state practice unconstitutional and interpreted Douglas as providing counsel under the equality principle of the 14th equal protection
Required that counsel be appointed to assist indigent s in preparing the first appeal from a conviction, at least when the first appeal is available as a matter of right to every convicted 
Neither the constitution, nor Supreme Court has held that the right to appeal is automatic.
Issue to be decided by the States on an individual basis
Limited holding: declined to decide whether the right to counsel attaches to discretionary higher appeals.
Ross v. Moffitt
Supreme Court addressed whether Douglas requirement of counsel to first appeal as of right extended to discretionary state appeals. 4th Circuit held yes it extended to discretionary state appeal.
Reversed by the USSC
State is not obligated to provide any appeal process McKane v. Daniels
Due process doesn’t require the state to provide counsel for discretionary appeals. Equal protection clause doesn’t either.
State not required to furnish counsel to indigent s on discretionary state appeals or writ of cert to the United States Supreme Court
Appeal of right to USSC for death and life sentences
Appeal of right for all other sentences to be determined by the state court of appeals (in most states, every criminal Δ gets one state appeal)
Supreme Court adopted a narrow view of the Griffin-Douglas equal protection principle
Criticism
Inconsistent with the holding in Douglas
Distinguishes Douglas and uses new basis for decision under Equal Protection clause
Evitts v. Lucy
Does due process guarantee criminal  the right to effective assistance of counsel on appeal? YES
Two lines of cases
14th guarantees right of adequate and effective appeals
trial level right to counsel equals effective assistance of counsel
Right to effective assistance of counsel recognized by the lower courts
affirmed by 6th Circuit decision that  has the right to effective assistance of counsel
USSC affirms for appeals as of right
Mayer v. City of Chicago: Indigent  must be provided with free transcript for all sentences including fines and non-imprisonment
U.S. v. McCollum: court upheld 28 USC § 753 requiring free transcripts for indigent s only if trial judge certifies claim as not frivolous and transcript is necessary for appeal

Morrissey v. Brewer
Paroled revocation not part of criminal prosecution proceeding
but, due process does apply requiring certain procedural protections for 
Gagnon v. Scarpelli
Probation revocation hearing doesn’t invoke 6th
Must be applied on a case-by-case basis
 on probation from a prior felony and probation revoked without hearing, court held assistance of counsel not required
3 part test to determine if assistance of counsel is required during probation revocation
 did not commit the violation in which probation is being revoked
probationer claims there were mitigating reasons for violation
intellectual capacity of probationer is inadequate
3 part test must be satisfied for due process appointment of counsel
18 USC §4214 mandates counsel for all indigent s in federal court

Pro Se Representation
Follows waiver of s right to counsel
Adams v. U.S.
Supreme Court held the right to assistance of counsel implicitly embodies a correlative right to dispense with a lawyer’s help
An accused, in the exercise of free and intelligent choice and with the approval of the court, may waive trial by jury and therefore can competently and intelligently waive Constitutional right of assistance of counsel
Faretta v. California
Issue of whether a  in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently waives his right
May a state hale a person into court and force a lawyer upon him, even when  insists he chooses to conduct his own defense?
At trial  waived his right to counsel. Judge held there was no right to pro se representation and  must use appointed counsel
Supreme Court held that the right to counsel and the right to pro se representation were 2 independent rights
Court addressed two implications of allowing  to represent themselves pro se
Policy: if  does not want counsel to represent him, then the representation will be ineffective
Choice: the  bears the consequences of a conviction. Thus  should be able to have autonomous right not to be represented.
Autonomy supersedes government effort to assist a criminal 
Origin of pro se representation
Statutory - § 35 of Judiciary Act. Later codified as 28 U.S.C. § 1654
State law: Most state constitutions include some provision for pro se representation
McKaskle v. Wiggins
 indecisive as to whether he wanted to be represented by counsel or not.  selectively used aid of counsel to conduct defense, but once convicted Δ argued that he was prohibited from conducting an independent pro se defense.
Supreme Court held that if pro se  invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the s consent, at least until  expressly states otherwise.
pro se  is entitled to preserve actual control over the case he chooses to present to the jury
participation by standby counsel without s consent should not be allowed to destroy the jury’s perception that  is representing himself
**Once  chooses to represent himself pro se they cannot on appeal raise the issue that they were not represented by effective counsel.  must waive that objection on appeal.

Effective Assistance of Counsel
Developing the Standards regarding effective assistance of counsel
McMann v. Richardson: 6th guarantees the right to effective assistance of counsel
Geders v. United States: an attorney may not be prohibited from conferring with client during an overnight recess that falls between direct and cross examination
Herring v. New York: an attorney may not be denied the right to give a closing summation in a nonjury trial
Ferguson v. Georgia: the state may not prohibit the attorney from eliciting the client’s testimony on direct examination
Brooks v. Tennessee: the state may not restrict the attorney’s choice as to when to put the  on the stand
Perry v. Leeke: trial court may prevent an attorney from conferring with his client during a 15-minute recess immediately following direct and preceding cross examination
Stone v. Powell:  may not relitigate 4th issues on habeas if state provided an adequate opportunity to litigate the issue at trial (issue preclusion)
Wainright v. Sykes:  may not litigate on habeas claims that were procedurally defaulted in state court, unless  can show “cause” for the default and prejudice
Strickland v.