Chapter Eight Confrontation and Assistance of Counsel

1. Chapter Eight Confrontation and Assistance of Counsel Once I decide to take a case, I have only one agenda: I want to win. I will try, by every fair and legal means, to get my client off—without regards to the consequences. — Alan Dershowitz, The Best Defense, 1983

2. KEY WORDS Key terms to understand for this chapter… • Right of Confrontation • Self-Representation • Standby Counsel • Appointed Counsel • Bench Warrant • Conviction in Absentia • Effective Counsel • Farce or Sham Test • Indigent Defendant • Public Defender • Retained Counsel

3. OBJECTIVES After completing this chapter, you should be able to… • Describe the defendant's right to be present at trial. • Explain the defendant's right to counsel. • Discuss when the state has an obligation to provide defendant with a counsel. • List the duties of a defense counsel. • Distinguish between appointed counsel and retained counsel.

4. (cont.) OBJECTIVES After completing this chapter, you should be able to… • Explain the right of self-representation. • Discuss the functions of a standby counsel. • Explain the test for effective assistance of counsel.

5. Presence of the Defendant at a Trial • In some countries, an accused person may be tried and convicted of a crime without being present and without knowing that a trial has taken place. • referred to as conviction in absentia • To prevent such in the US, the Sixth Amendment of the Constitution, and laws of all states, include a provision that guarantees that witnesses must appear in person in court to present their facts, and gives the defendant the right to be present during every phase of trial proceedings.

6. Presence of the Defendant at a Trial • For many years, interpretation of the accused’s right tobe present was so rigid that, if the defendant was not present, trial had to be halted until he/she was in court. • Defendants occasionally took advantage of this bybeing so disruptive the trial could not continue withtheir presence or by failing to appear in court. • thus preventing the trial from taking place • As time passed, some courts relaxed the rule requiring defendant presence when he/she was voluntarily absent.

7. Attorney Meets with Young Law Offender. Presence of the Defendant at a Trial • The Supreme Court in Estelle v. Williams, stated, with few exceptions, an accused shouldn’t be compelled to go to trial in jail clothing and/or restraints. • because of possible impairment of his/her presumptionof innocence, which is basic to the adversary system

8. Justice Potter Stewart (1915–1985), associate justice of the U.S. Supreme Court, appointed by President Dwight D. Eisenhower in 1958. On the Court, where he served until his retirementin 1981, Stewart was generally regarded as a strict constructionist. Presence of the Defendant at a TrialDisruption of the Trial - Illinois v. Allen • A separate issue is raised when a defendant is present, demands to remain present but becomes so disruptive that the trial cannot take place.

9. Presence of the Defendant at a TrialDisruption of the Trial - Illinois v. Allen • In Illinois v. Allen, the Supreme Court held that a defendant waived right to be present at trial by his disruptive action, stating the Sixth Amendment guarantee of confrontation could be… • “lost by consent or at times even by misconduct.” • Once lost, the right to be present can, of course, bereclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect.”

10. Presence of the Defendant at a TrialDisruption of the Trial - Illinois v. Allen • The Court further stated: • “…we explicitly hold today that a defendant can lose his right to be present at trial if, after he had been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.”

11. Presence of the Defendant at a TrialVoluntary Absence from Trial • Allen definitely established that trial could take place in absence of a defendant when he/she was so disruptive that removal from the courtroom became necessary. • this decision also provided that a defendant who voluntarily absented him/her self waived all right to be present • Even before Allen, courts were beginning to accept that if a defendant was voluntarily absent, the trial could proceed in his/her absence. • This viewpoint was expressed in Cureton v. US.

12. Presence of the Defendant at a TrialVoluntary Absence from Trial - Cureton • The Court concluded in Cureton: • “if a defendant at liberty remains away during his trial the court may proceed provided it is clearly established that his absence is voluntary. • “He must be aware of the processes taking place, of his right and of his obligation to be present, and he must have no sound reason for remaining away.” • This is sometimes referred to as the Cureton test. • the defendant must have “knowingly and voluntarily absented himself.”

13. Presence of the Defendant at a TrialVoluntary Absence from Trial • As a result of Allen and Cureton, many states have passed provisions similar to the Federal Rules of Criminal Procedure, which provides: • “in prosecutions for offenses, not punishable by death,the defendant’s voluntary absence after the trial hasbeen commenced in his presence shall not preventcontinuing the trial to & including the return of the verdict.” • The federal rule, as well as provisions of many states, holds that trial may continue in the absence of the defendant if trial was commenced in his/her presence.

14. Presence of the Defendant at a TrialVoluntary Absence from Trial • Under these circumstances, the trial cannot commence unless the defendant is present. • a defendant out on bail could keep trial from taking place merely by not showing up • To overcome this, several states have provisions stating trial may commence when the defendant, knowing that the case is set for trial, voluntarily fails to appear. • It must be established the trial actually began whilethe defendant was present. • jury trial begins once the jury is sworn; court trial when the first witness is sworn

15. Presence of the Defendant at a TrialVoluntary Absence from Trial • The problem is establishing the defendant knowingly and voluntarily absented him/ herself from the trial. • this could take time, and the judge would have to delay progress of the trial until this could be determined • If the court can’t determine knowing, voluntary absence, the judge must declare a mistrial. • or delay the present trial until the defendant can be located and arrested on a bench warrant • If it cannot be determined the defendant was absent without cause & conviction results, a new trial must be granted unless satisfactory reason for absence is given.

16. Right to Counsel • Under the common law of England, a person on trial for a felony was not entitled to assistance of counsel. • if a misdemeanor the defendant had the right of counsel • Denial of assistance of counsel in felony cases was rejected by the colonists, and in most colonies rightof counsel became a part of their due process of law. • For many generations, right to counsel was interpreted as meaning if an accused appeared with an attorney, the accused could not be denied assistance of the attorney. • however, if defendants were unable to afford an attorneyto assist their defense, it was their misfortune

17. Right to CounselProviding Counsel - Powell v. Alabama • One of the earliest decisions in which the US Supreme Court held that in certain instances an accused must be provided with an attorney, if he/she cannot afford one, was the case of Powell v. Alabama. • Facts indicate that ignorant & friendless black youths, strangers in the community, without means to obtain counsel, were hurried to trial in an Alabama state court for a capital offense without appointment of counsel. • the youths were convicted, and their case taken to the US Supreme Court on grounds the defendants had been denied due process of law

18. Right to CounselProviding Counsel - Powell v. Alabama • The Court agreed that the defendants had been denied due process of law in that they had not been provided with counsel to assist them in their defense. • The Court stated: • “All that is necessary now to decide, as we do decide, is that in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeblemindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law.”

19. U.S. Supreme Court Justice Ruth Bader Ginsburg, appointed by President Bill Clinton and considered to be one of the Court’s most liberal justices. Justice Ginsburg spent thirteen years as a federal judge, prior to which, she was a counsel for the National Organization for Women (NOW). Right to CounselGideon v. Wainwright • The Court held in capital offenses, the judge must appoint an attorney when the accused is unable to obtain counsel. • This decision remained in effect untilGideon v. Wainwright, when the Courtheld counsel must be provided for anydefendant irrespective of charge.

20. Right to CounselRight to Counsel in Petty Cases • There remained question of whether counsel must be appointed for one brought to trial on a petty charge. • In Argersinger v. Hamlin, the Court held that no person may be imprisoned for offense without counsel: • “The Sixth Amendment …provides specified standards forall criminal prosecutions.” • “The requirement of counsel may well be necessary for a fair trial even in a petty offense prosecution.” • “…no person may be imprisoned for any offense, …petty, misdemeanor, or felony, unless he was represented by counsel”

21. Right to CounselWaiver of Counsel - Faretta v. California • In Adams v. US, the Supreme Court held a capable defendant could waive right to counsel. • it must be determined first the accused is capable of defense without counsel’s assistance • Carried further in Faretta v. California, the Court held that when a defendant waives counsel, he/she has the constitutional right to self-representation, stating: • “…in order to represent himself, the accused must “knowingly and intelligently” forego those …benefits” • “his choice must be honored out of that respect for the individual which is the lifeblood of the law.”

22. Right to CounselKnowing and Intelligent Waiver - Faretta • The phrase “knowingly and intelligently” placed a serious burden on trial judges. • of determining if a defendant was capable of “knowingly& intelligently” waiving counsel, and of self-representation • If a trial judge concludes a defendant is capable of self-representation, on conviction, then he/she may appeal. • an appellate court may hold the defendant was not capableof making an intelligent waiver of the right to counsel • If the judge concludes the defendant was incapable… • the appellate court may decide the defendant was denied the right of self-representation

23. Right to CounselKnowing and Intelligent Waiver - Faretta • When an accused requests self-representation, it is usually necessary for the judge to hold a hearing to determine capability of the accused to make the waiver. • referred to as a Faretta hearing • The time required to conduct this hearing varies with the each case, and appellate courts have held: • “perfunctory hearing is improper. The record must showthat the defendant made a knowing and intelligent election” • Dissenting justices in Faretta case believed majority justices had read into the Sixth Amendment something not intended by its framers.

24. Right to CounselStandby Counsel - McKaskle v. Wiggins • The majority justices in Faretta case did indicate a trial judge, over objections of the defendant, could appoint a standby counsel to aid the defendant. • McKaskle v. Wiggins, reaffirmed Faretta: • “…self-representation is not a license to abuse the dignityof the courtroom.” • “A defendant’s …rights are not violated when a trial judge appoints standby counsel …over the defendant’s objection” • “…to assist the defendant in overcoming routine obstacles that stand in the way of the defendant’s achievement of his own clearly indicated goals”

25. Right to CounselWhy Choose Self-Representation? • With the advantages in having assistance of counsel, and disadvantages of self-representation, why a defendant would insist upon self-representation? • Many defendants either do not trust attorneys or question their capabilities; some feel attorneys do not have their client’s best interests at stake or are in collusion with the prosecuting attorney. • others receive certain gratification from self-representation • A defendant who represents him/herself is referred toas “appearing in propria persona” (“in one’s own proper person”), or in person.

26. Right to CounselWhen Right to Counsel Begins • For many years, the Sixth Amendment guarantee to the assistance of counsel was interpreted as meaning assistance at the time of trial. • It was generally accepted that counsel need not be provided for the indigent defendant until the trial. • Later US Supreme Court decisions established a new interpretation of when the right to counsel began and when counsel had to be provided for the indigent defendant.

27. Supreme Court Associate Justice Clarence Thomas stands behind former Justice Sandra Day O’Connor during a formal portrait at the Supreme Court. Right to CounselWhen Right to Counsel Begins • In Escobedo v. Illinois, the US Supreme Court held that the right to the assistance of counsel begins long before the time of the trial, at times, evenbefore an arrest is made. • The Court stated that when aninvestigation shifts from“…frominvestigatory to accusatory,” the accused is entitled to counsel.

28. Right to CounselWhen Right to Counsel Begins • Escobedo provided once suspicion is focused upon a particular suspect, he/she is entitled an attorney. • nothing was said about having to furnish an attorney • In Miranda, as stated, the Court held an accused must be advised of the right to the assistance of counsel. • Although Escobedo and Miranda are more closely related to evidence and admissibility of confessions than procedure, these decisions emphasized the importance of the assistance of counsel • and set guidelines on when that right to assistance begins

29. Right to CounselEffective Counsel • A defendant is entitled to effective counsel. • who has knowledge of defendant rights and capable of presenting defenses to which the accused is entitled • If counsel does not effectively represent a defendant, a conviction could be overruled upon appeal. • because of the denial of assistance of counsel • When found ineffective, attorneys are frequently sanctioned by the state bar association. • a powerful incentive to diligently represent a client

30. Right to CounselEffective Counsel - Farce or Sham Test • Appellate courts have stated it must appear that lack of diligence/competence reduced trial to a farce or sham. • today’s courts have adopted a less stringent criterion for determining the competency of counsel • Counsel is considered ineffective if it fails to meet the standard of competence expected of criminal attorneys. • Effective counsel has the duty to investigate carefully all defenses of fact and law of a case. • if failure to do so results in the failure to present a crucial defense during the trial, the defendant has been deniedproper counsel, and a conviction may be reversed

31. Right to CounselCrucial Error by Counsel • Effectiveness is usually considered when the court appoints an for a defendant who cannot afford one. • It is accepted that whether an attorney is appointed or is one of the defendant’s own choosing, competence will be measured by the same degree. • Stated by the Court in Strickland v. Washington: • “An accused is entitled to be assisted by an attorney, …who plays the role necessary to ensure that the trial is fair.” • “A defendant may not expect an error-free attorney, but if an error is crucial to the defense, effective counsel hasbeen denied.”

32. Right to CounselCrucial Error by Counsel • Determining whether an error was crucial has been a major problem for appellate courts, since no guidelines were set to measure the effectiveness. • In Strickland, the Court endeavored to correct this by providing criteria to measure effectiveness: • “…the defendant must show that counsel’s representation fell below an objective standard of reasonableness. • “More specific guidelines are not appropriate.” • Strickland decision points out that burden of proving ineffective assistance of counsel is on the defendant.

33. Right to CounselPublic Defender and Appointed Counsel • If the accused is not in a position to employ private counsel, the court must appoint effective counsel. • if not be readily obtained, all prosecutive action must suspend • To overcome this, many counties have established the public defender, whose function is representing those defendants who cannot afford an attorney of their own. • like the prosecuting attorney, paid out of public funds • Many do not understand use of public funds to employa prosecutor, and, at the same time, to pay a public defender.

34. Right to CounselPublic Defender and Appointed Counsel • Before an accused may have an appointed attorney, it must be established the defendant is an indigent person. • About 85% of those arrested on felony charges are without question unable to afford an attorney • determining which others can afford an attorney is difficult • Some courts have held if the defendant can post bail, he/she is not indigent; others that counsel is to be provided for any defendant who is unable to obtain counsel without serious financial hardship. • that friends or relatives have posted bail is not sufficient grounds for denying the defendant free counsel

35. Justice Stephen G. Breyer, appointed in 1994 by President Bill Clinton. Known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court. Following a clerkship with Supreme Court Associate Justice Arthur Goldberg in 1964, Breyer became well-known as a law professor and lecturer at Harvard Law School. Right to CounselPublic Defender and Appointed Counsel • Another test is if a private attorney would represent the defendant in his/her present economic circumstances. • Judges who doubt the indigency status of a defendant have required the defendant to file a financial statement under oath.

36. SUMMARY Important topics for this chapter… • The defendant has a right to be present at his/her trial. • The defendant may waive the right by his or her conduct. • The defendant has a right not to be tried before a jury while wearing jail clothes. • An unruly defendant may be gagged. • After the trial has started, the accused may waive his or her right to be present by a voluntary absence from the proceedings.

37. (cont.) SUMMARY Important topics for this chapter… • Under early English law, a person being tried for a felony had no right to counsel. • The defendant has a right to counsel in all criminal proceedings, but whether the state is required to appoint a counsel for an indigent defendant depends on the nature of the charges and the possible punishment. • An indigent defendant has the right to appointed counsel in any felony trial or in any trial where he or she faces confinement.

38. (cont.) SUMMARY Important topics for this chapter… • While an accused has a right to counsel in petty cases, he or she does not have a right to appointed counsel even if indigent. • An accused has the right to waive counsel and represent himself or herself. The waiver must be knowing and intelligent. • The judge may appoint a standby counsel to assist the defendant when the defendant is self-represented.

39. (cont.) SUMMARY Important topics for this chapter… • The right to counsel begins at all important stages of the criminal • The defendant is entitled to the effective assistance of counsel.

40. Chapter End