1. Sixth Amendment Right to Counsel
Gideon and Strickland

2. Leading Up to Gideon Betts v. Brady (1942)
“Special Circumstances Rule” No one has a right to counsel unless there are special circumstances which would make it impossible to have a fair trial without counsel
E.g., illiteracy; disability
Thus, right to counsel (6A) not absorbed until Gideon

3. Gideon (1963) Right to counsel is absorbed.
This case says that in all felony cases, one has a right to have a lawyer.
Counsel must be provided to indigent defendant- - - or no imprisonment.
Why is counsel absorbed? Fair Trial, Fundamental Fairness

4. Right to Counsel attaches when the accused is formally charged with a crime.
6A: Note that this is the Sixth Amendment right to a lawyer.
5A: Later on, in Miranda v. Arizona, we will see the Court create a new right to counsel based on the Fifth Amendment, and we will refer to that as the Fifth Amendment right to a lawyer. The significance of the 5A right to a lawyer is that it attaches much, much earlier in the criminal process in the investigative stages at custodial interrogation , and that is usually long before a person is formally charged.

5. So, during all the time (usually some months) between being charged and trial, the accused does not have a right to have a lawyer with him 24/7; the right applies during Critical Stages only
And does not apply to non-critical stages

6. The Critical Stages Doctrine
Critical stages: Rt. To Counsel Exists
Custodial Interrogation [Miranda]
Post-indictment Lineups
Initial Appearance (Charges are identified, bail set)
Preliminary Hearing
Arraignment
Felony Trials [Gideon]
Misdemeanor Trials where imprisonment actual imposed
Sentencing
First Appeal

7. Critical Stages Doctrine, continued
Non-Critical Stages: No Rt. To Counsel
Preliminary I D procedures, like blood sample, handwriting sample, fingerprint etc.
Lineups before indictment
Grand jury proceedings
Discretionary appeals (those appeals after the first appeal)
Most revocation of probation hearings
Most revocation of parole hearings

8. Effective Counsel Strickland
Rt. To counsel is designed to insure a fair trial; therefore, counsel has to be at least minimally effective.
Presumption: Counsel’s performance is reasonable.
Strickland Two-part test
Was counsel’s performance deficient as judged by the “reasonable attorney” standard?
Were counsel’s errors so serious that the verdict was prejudiced (would likely have been different had the errors not been made)?
If both answers are “yes,” conviction reversed.

9. OK under Strickland
Trial strategies, even though they might be outlandish and do not work
Failure to make an objection in trial even though if made it would have prevented the death penalty
Falling asleep during the trial
Attorney smoking mj during trial!
Lots of other examples!

10. Not OK per Strickland
Conflict of interest
Judge’s not allowing attorney to consult with client
A few other things but not many
The Bottom Line: Defense attorney is presumed competent, and it is very hard to prove incompetence.