1. Criminal Procedure Constitution & Society

2. CHAPTER 6 The Right to Counsel

3. THE RIGHT TO COUNSEL THE ATTORNEY IS THE DEFENDANT’S SURROGATE THE LAWYER “STANDS IN THE DEFENDANT’S SHOES” THE ATTORNEY OWES THE CLIENT AN UNDIVIDED DUTY OF REPRESENTATION THE ATTORNEY IS CLOAKED WITH THE ATTORNEY-CLIENT PRIVILEGE WHICH PRESERVES A CRIMINAL CLIENT’S RIGHT AGAINST SELF- INCRIMINATION WITHOUT ADEQUATE REPRESENTATION, A FAIR TRIAL IS IMPOSSIBLE

4. ENGLISH COMMON LAW ATTORNEYS WERE NOT PERMITTED IN ENGLISH COMMON LAW JURY TRIALS CRIMINAL DEFENDANTS DEFENDED THEMSELVES AN ENGLISH CRIMINAL TRIAL WAS A “LONG ARGUMENT” BETWEEN THE DEFENDANT AND A PRIVATE ACCUSER

5. THE DEVELOPMENT OF THE RIGHT TO COUNSEL POWELL V. ALABAMA: THE SCOTTSBORO CASE (1932) ESTABLISHED THE RIGHT TO COUNSEL AS A MATTER OF DUE PROCESS UNDER THE 14 TH AMENDMENT JOHNSON V. ZERBST (1938)-MADE THE ASSISTANCE OF COUNSEL IN A FEDERAL CASE AN ABSOLUTE RIGHT 1. A FEDERAL FELONY TRIAL CONDUCTED WITHOUT A DEFENSE LAWYER, UNLESS PROPERLY WAIVED, IS A JURISDICTIONAL VIOLATION 2. SPECIFIED THE RULES FOR WAIVER OF COUNSEL

6. WAIVER OF COUNSEL MUST BE EXPLICIT DEFINED AS “AN INTELLIGENT RELINQUISHMENT OR ABANDONMENT OF A KNOWN RIGHT OR PRIVILEGE DEFENDANT MUST KNOW THAT HE OR SHE HAS A RIGHT TO COUNSEL AND THEN MUST VOLUNTARILY GIVE IT UP KNOWITH THAT THE RIGHT TO CLAIM IT EXISTS SUPREME COURT REQUIRES JUDGES TO CAREFULLY INVESTIGATE WAIVERS OF COUNSEL WRITTEN RECORD OF WAIVERS IS ALSO REQUIRED

7. GIDEON V. WAINWRIGHT FINALLY ESTABLISHED THE RIGHT TO COUNSEL IN ALL STATE FELONY CASES STATED ESSENTIALLY THAT A FAIR TRIAL INCLUDES THE RIGHT TO COUNSEL

8. RIGHT TO COUNSEL IN OTHER PROCEEDINGS THE COURTS HAVE ESTABLISHED A RIGHT TO COUNSEL IN THE FOLLOWING CIRCUMSTANCES: 1. DURING PLEA BARGAIN NEGOTIATIONS 2. PROBATION REVOCATION HEARINGS 3. PAROLE REVOCATION HEARINGS 4. ON FIRST APPEALS

9. RIGHT TO SELF-REPRESENTATION DEFENDANTS ACCUSED OF CRIMES HAVE THE ABSOLUTE RIGHT TO REPRESENT AND DEFEND THEMSELVES PRO SE PRO SE-MEANS “IN ONE’S OWN BEHALF” SELF-REPRESENTATION REFELCTS THE AMERICAN VALUE OF SELF-RELIANCE AND DISTRUST OF LAWYERS SOME OTHER REASONS INCLUDE: FRUSTRATION WITH ACTUAL OR PERCEIVED INCOMPETENCE OF APPOINTED COUNSEL OR PUBLIC DEFENDER AS LEVERAGE TO GET RID OF INCOMPETENT LAWYER AFTER REQUEST FOR NEW LAWYER DENIED TOP PROMOTE A POLITICAL IDEOLOGY STANDBY COUNSEL CAN BE APPOINTED W/O INFRINGING ON PRO SE RIGHTS

10. EFFECTIVE ASSISTANCE OF COUNSEL THE RIGHT TO COUNSEL INCLUDES THE RIGHT TO EFFECTIVE ASSISTANCE OF BOTH APPOINTED AND RETAINED COUNSEL 2-PRONGED TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM TO PREVAIL 1. DEFENDANT MUST SHOW THAT COUNSEL’S PERFORMANCE WAS DEFICIENT 2. THE DEFENDANT MUST SHOW THAT THE DEFICIENT PERFORMANCE PREJUDICED THE DEFENSE