2. Reminders  Writing Assignment:  Pay attention to spelling and grammar  Use APA format – one inch margins, double spaced, internal citations, cover and reference page  FUN! Analyze a case  Try not to use Wikipedia, it is not always accurate  I use the plagiarism database  What is plagiarism?????

3. Topic this week  For this week’s seminar we will examine two amendments to the US Constitution that specifically deal with a defendant’s rights at trial:  the 5th and 6th amendments.  Special focus will center on the purpose of the right to remain silent provision of the 5th amendment and the various provisions of the 6th amendment including, but not limited to, right to counsel, right to confront witnesses and right to a speedy trial.

4. 6 th Amendment Guarantees  Right to Counsel  Right to trial by jury  Speedy Trial  Right to a Public Trial  Implications with the press  Media coverage  The First Amendment gives the press a limited right to attend a criminal trial.  A trial judge may issue a gag order that directs the parties to the trial not to talk to the press or otherwise release information that would jeopardize a fair trial.

5. 6 th Amendment Guarantees…continued  Right to be present at trial  Trial may continue after it is started if defendant absents him, or her self or is removed from the courtroom because of disruptive behavior.  Effective Assistance of Counsel  Strickland v. Washington test  Counsel performance was deficient.  The deficient performance prejudiced the defense.

6. What the 6 th Amendment Guarantees  A trial by a jury (in most cases)  The jury to hear all of the witnesses and see all of the evidence  Presence at the trial and while the jury is hearing the case  The opportunity to see, hear, and confront the witnesses presenting the case against them  The opportunity to call witnesses and to have the court issue subpoenas to compel the witnesses to appear  The chance to testify themselves should they choose to do so  The option to refuse to testify  Access to a criminal defense lawyer. If individuals cannot afford to hire their own criminal defense lawyer, a public defender will represent them. This lawyer can act on their behalf before, during, and after the trial  The right to cross-examine the witnesses giving testimony against them  The right to compel the state to prove its case against them beyond a reasonable doubt

7. Bench v. Jury Trial?  Bench trial–judge is the fact finder and the lawgiver  Jury trial–the jury is the fact finder and the judge the lawgiver  Why would an accused select a bench trial rather than a jury trial?

8. History 6 th Amendment Right to Counsel  Supported by colonists / eventually guaranteed by the 6 th Amendment.  In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.  Right to counsel or assistance of counsel was not guaranteed in England’s early legal system. In all

9. Definition of Indigent  Generally, a person who is poor, and unable to afford a lawyer;  Court’s make the legal determination if a Defendant is indigent;  Affidavit of income and expenses is completed by a Defendant and examined by the court;  Order entered declaring indigent status or denying indigent status;

10. Evolution of Right to Counsel via Case Law  Powell v. Alabama – 1932 “In a capital case, where a defendant is unable to employ counsel, and is capable of making his own defense because of ignorance, feeblemindedness, illiteracy, or the like, it is the duty of the court…to assign counsel to give effective aid in the preparation and trial of the case.”

11. Additional Cases  Johnson v. Zerbst The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel. The waiver, the Court ruled, must be by the intelligent choice of the defendant, will not be presumed from a silent record, and must be determined by the trial court before proceeding in the absence of counsel. '

12. Gideon v. Wainwright (1963)  The United States Supreme Court decided that the right to assistance of counsel is ''fundamental'' and the Fourteenth Amendment does make the right constitutionally required in state courts.  The Court did not address the issue of whether the right to assistance of counsel was allowed for defendants charged with misdemeanors.

13. Is there a right to counsel in Misdemeanor cases:  Argersinger v. Hamlin (1972): The United States Supreme Court held that the right applies to any misdemeanor case in which imprisonment is imposed--that no person may be sentenced to jail who was convicted in the absence of counsel, unless he validly waived his right.

14. When does the Right to Counsel Attach?  At what point in the criminal process is a suspect entitled to counsel?  Escobedo v. Illinois (1964): Right to counsel begins with a criminal investigation;  Focus is on the process before an arrest;  Defendant is not necessarily a defendant, but a suspect;  How does this work?  Who determines at this stage if a Defendant is indigent?

15. Right to Counsel at “CRITICAL STAGE”  During questioning and investigative stage if defendant requests an attorney (Part of Miranda)  After being charged with a crime  At line up  Pretrial stages for identification purposes  Arraignment / Preliminary Hearings  Pretrial Stages  Trial  Appellate Process

16. Switch gears…. 5 th Amendment Protections at trial  The Fifth Amendment to the U.S. Constitution:  gives individuals the right to refuse to answer any questions or make any statements, when to do so would help establish that the person committed a crime or is connected to any criminal activity. This right is also known as the Fifth Amendment privilege against self-incrimination, which is invoked when someone is said to "plead the Fifth". (Findlaw.com)  Defendant CANNOT be forced to testify at trial  Once defendant takes the stand  What about compelling defendant to submit hair, urine, handwriting, vocal (speech exemplars) or DNA samples?  Witnesses can also avail themselves of 5 th Amendment