A Paper on the Aspect/s of Right to Counsel
Introduction
The origin of the modern right to legal counsel for a defendant in legal proceedings can be traced back to about one century ago. The right offers a chance for legal representation to defendants who cannot afford private lawyer/s to represent them in legal proceedings. The right ensures that defendants get legal representation at or after the legal proceedings against them have been started. This could be by the time of preliminary hearing, formal charge, information, indictment or arraignment. The roots of the right were first identified on the Webb versus Baird case (6 Ind.13) in the year 1853 at the Supreme Court of Indiana. This court for the first time recognized a right to a lawyer at the expense of the public for an indigent individual who is accused in a criminal offence. This cognizance was based on the principles recognized as being characteristic of society that is civilized and not because of statutory or constitutional laws. Thus, the court recognized that poor citizens should not be debarred of legal counsel because of their poverty. Therefore, the court made the obligation of the defense of the poor a public and court concern. As such, no self respecting court would be expected to sit in proceedings against poor defendants with no legal counsel.
The right to counsel and the sixth amendment
The United States of America Sixth Amendment to the constitution states that: during all prosecutions of crime the accused should be offered the assistance of legal counsel in the defense of the case against them. This right was put in place early in the history of U.S by statutes and was later reaffirmed by the country’s Supreme Court in the year 1938. This was via the Supreme Court case of Johnson versus Zerbst. During the twentieth century many U.S states relied on volunteering lawyers (volunteer pro bonoefforts) to offer defense for accused poor people in all crimes. This same effort saw the rise of pioneering of public defender offices in states such as Los Angeles in the year 1914. However, there had been earlier privately initiated programs such as the New York legal aid society, which had been active since 1896. The unfortunate twist to these efforts was the fact that this legal aid was never available outside of the major cities in the states of the U.S (NLADA, 2004).
The Supreme Court of the U.S gradually developed and expanded the sixth amendment on the right to counsel in proceedings of the state. Through the Scottsboro case in the depression times the Supreme Court stated a mandatory requirement of counsel in all the state capital proceedings (Powell versus Alabama). Later in the case of Betts versus Brady, the court denied an extension of the right to state felony proceedings. In decisive reviews made in 1963 the court reversed its decision and allowed the right to counsel in all state criminal proceedings. The Gideon versus Wainwright case led to the overruling of the Betts versus Brady case. This led to a unanimous court decision that all indigent accused individuals of serious crime/s were entitled to the right of counsel at the expense of the state. In later years, further expansions were done in respect of Clarence Gideon petition and In re Gault. These led to the expansion of the rights beneficiaries to juvenile delinquents and people charged with felonies. Argersinger versus Hamlin led to the extending of the right to misdemeanor state proceedings (NLADA, 2004). After all these changes the country began on initiating efforts to standardize and systematize the provision defense service. Major steps were made in the 70’s, this led to the formation of the National Advisory Commission on Criminal Justice Standards and Goals (NAC). This led to the convening of the National Study Commission on Defense Services which gave comprehensive guidelines on the matter. The process is still continuous in its efforts to offer better defense service based on this right (NLADA, 2004).
When and how the right of counsel comes to effect in criminal proceedings
According to Blond (2009) the right to counsel for a defendant attaches to the criminal proceedings at any possible point on which the defendants rights may be adversely affected. This is allowed at any critical stage of the criminal proceedings. Additionally, some states have further enacted laws that entitle the right to a defendant in adversarial proceedings of the judiciary. However, it is important to state that an individual is not entitled to any right to counsel until criminal prosecution is initiated against the individual. This begins in cases when the individual is arrested and arraigned before a magistrate, indicted or charged with offence in a reported complaint or information. Therefore, the initiation of formal charges is necessary to trigger the right’s action. However, if and individual is under custody and is subjected to police interrogation; then automatically the 5th amendment right to counsel comes to effect. This attaches at times when an investigation process turns accusatory and focuses on the individual under interrogation (Blond, 2009). The right also attaches after the first appearance before a magistrate whereby, a bail was set or the defendant entered a plea or after a preliminary hearing about the charges took place. Thus, initial appearance at a magistrate and subsequent information by the magistrate on the right to counsel does not determine the rights attachment.The right to counsel may also attach in the proceedings of pretrial confrontations involving the prosecutor/s and defendant/s.
This happens when it is deemed that the counsel’s presence is important in preserving the rights of the defendant (Blond, 2009). The right is also effective at arraignment of the defendant or at post indictment line-ups. The later, happens if the defendant appears in person at the line-up. However, the right ceases to be effective during processes such as DNA sampling after indictment. The right may also attach during preliminary hearings to determine probable cause in a crime. This right also attaches when the accused changes his/her pleas after being arraigned. Subsequently, the right attaches to the trial and court’s entry of sentence and judgment. Additionally, the right attaches to proceedings including probation review, appeals, conviction, extradition and habes corpus proceedings. Finally, there is a retroactive application of the right that considers whether the defendant had the right in initial proceedings of a case. This may lead to grants of post conviction relief if, the defendant was denied the rights at some stages of the proceedings. Additionally, Previous convictions may not be admitted in recent prosecutions if the rights did not apply in the earlier convictions (Blond, 2009).
When and how the right of self representation comes to effect in criminal proceedings
In the Supreme Court case of Faretta versus California the court held that the 6thamendment guaranteed a defendant the right to proceed with the criminal trial by use of self representation. This is allowed under voluntary and intelligently informed cases. This right attaches in cases where the defendant cites incompetence of the representing legal counsel. It is allowed under cases whereby, the defendant is unable to persuade the court to accept another choice of lawyer/s. The exception is also allowed in cases whereby the defendant is unable to get a lawyer that accepts his/her offer in terms of pay (Law Library, 2010).The role of attorneys in the legal counsel is to ensure that the defendant’s rights are not violated. This is ensured by the counsel’s constant advice on how to handle and respond to the proceedings. The counsel is also supposed to argue out the case on behalf of the defendant using legal expertise and procedures. Additionally, the counsel is supposed to offer legal advice to the defendant on the course of the case.
References
Blond, C. N. (2009). Criminal Procedure, sixth edition. New York, NY: Aspen Publishers.
Law Library (2010). Right to Counsel: The right for self representation. Retrieved from, http://law.jrank.org/pages/762/Counsel-Right-Counsel-right-self-representation.html, on 20th May 2010.
National Legal Aid and Defender Association (NLADA). (2004). History of right to counsel. Retrieved from, http://www.nlada.org/About/About_HistoryDefender, on 20th May 2010.
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