Question 7: What does "effective assistance of counsel" mean under the 6th and 14th Amendments?

can a judge insist that the D proceed to trial with counsel if the D was found mentally competent to stand trial but not mentally competent to conduct that trial himself?

Yes - Indiana v Edwards

Reality: Has the promise of Gideon been fulfilled? In other words, are defendants entitled to EFFECTIVE assistance of counsel?

Yes, however Public defenders have a lot of clients, not paid very much so sometimes they dont give as much time as they should to each case

Do Defendants Have the Right to Self-Representation?

Yes, per Faretta v. California. The Sixth Amendment guarantees a defendant the right to represent herself.

A right to a jury trial exists if the maximum potential sentence exceeds ___________________months

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Can a defense attorney concede a client's guilt, over her objections, to avoid a death sentence? · McCoy v. Louisiana--

a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel's experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. Guaranteeing a defendant,the right "to have the Assistance of Counsel for his defence," the Sixth Amendment so demands.

What types of cases is the D entitled to counsel? · All felony cases and misdemeanor cases if:

a sentence of incarceration is actually imposed.

right to counsel

all felony and misdemeanor cases with prison time applicable at all critical stages

14th amendment requires a state to provide

counsel for an indigent on his first statutory appeal of right

"prejudice" is presumed:

i. denial of counsel altogether; counsel entirely fails to do anything for the D ii. Conflict of interest iii. Government interference with right to counsel (restrict decision whether/when D will testify; prevent counsel from eliciting testimony from D through direct examination; deny counsel opportunity to make a summation to the jury) iv. Prejudice should be presumed when "counsel was repeatedly unconscious at trial for periods of time in which D's interests were at stake"

·Why is it so important for any D who is sentenced to ____________________ have counsel?

incarceration same reason as last card, this is a big deal

As counsel, we cannot take these rights from a client, lest we create a claim of

ineffective assistance of counsel claim. Unaware, forced

Should the 6th right to counsel apply to the states? Gideon v. Wainwright

it should... Not in bill of rights (more about what the gov cannot due)

In what type of cases is the defendant entitled to counsel?

o All felony cases and misdemeanor cases if a sentence of incarceration is actually imposed. o Look to see whether a sentence of incarceration was on the table at the time of the trial. If it was, then the defendant had the right to counsel.

Does the Bill of Rights include the right to have the government pay for one's attorney?

o The language of the Bill of Rights does not afford the right. The Bill of Rights was written to tell the government what it can't do, not what it must do.

In Gideon v. Wainwright the Court held

that a court can and will appoint counsel if an indigent defendant cannot afford one as part of the 6th and 14th amendments.

If a defendant has chosen to represent himself, can the court appoint standby counsel to assist with that representation?

yes

What happens if a defendant enters a guilty plea, there is no trial, and then pursues an ineffective assistance of counsel claim?

· Missouri v. Frye—The Strickland standard applies in pre-trial settings like plea negotiations. An attorney (must/need not) convey all plea offers to a client. But the standard also requires a showing of prejudice. To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.

Does the Constitution (in particular the 6th Amendment) afford defendants the right to self-representation? Faretta v. California

—The Constitution does afford a defendant the right to represent herself. Recognizing that longstanding practice has its own persuasive authority, the Court wrote, "We confront here a nearly universal conviction, on the part of our people as well as our courts, that forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so." Further, the Sixth Amendment bestows rights upon a__________defendent?__________, not his _____lawyer?_______________.

Sixth Amendment right to counsel:

"In all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defence"

Rights of self representation

- Faretta standard -must be voluntary, knowing and intelligent waiver -colloquy with defendant

Strickland v. Washington Test that looks at 2 considerations: (difficult test to meet) - case-by-case inquiry

1. Was the attorney's performance deficient?: did the attorney's performance fall below the general range of competent lawyering ("outside the wide range of professionally competent assistance")? Did counsel's representation fall below an objective standard of reasonableness? (highly deferential standard of review) and; 2. The effect of the attorney's performance ("prejudice") (laid burden on Ds to demonstrate that counsel's deficient performance impaired the defense in a material way - "a reasonable probability that the result would have been different" had counsel been competent)

What are the 3 decisions the client gets to make?

1. Whether they want to plead guilty or not 2. Whether the go to trial or not 3. Whether to speak/ testify

A client can always decide:

1. Whether to plead guilty 2. Whether to go to trial 3.Whether to testify

What Does Effective Assistance of Counsel Mean Under the 6th and 14th Amendments?

6th amendment right to counsel- can prosecution use eye witnesses to testify. Prosecution has to prove it was from memory

· Why is the right to counsel limited to these types of cases?

Argersinger v hamlin 1972 Because this is a big deal, your entire liberty could be restrained

Gideon v. Wainwright—the Court reversed the case of ____________________. Now, after Gideon, the 6th Amendment right to assistance of counsel applies in ____________________ court proceedings.

Following Argersinger v. Hamlin, the Court extended the rule of Gideon to all cases in which a defendant faces felony or misdemeanor charges imposing prison time. The holding in Betts v. Brady, 316 U.S. 455 (1942), assumed that the state court's refusal to appoint counsel did not violate such fundamental principles of fairness and that there was no due process violation. On reconsideration, however, it is clear that Betts should now be overruled. Not only is it not good law, but even when it was decided it was not consistent with precedent. Powell v. Alabama, 287 U.S. 45 (1932), held that the right to counsel is fundamental. At the time, the Powell holding was limited to its facts. However, what it said about the fundamental nature of the right to counsel must now be embraced. Defendants have the constitutional right to a fair trial and this requires having an advocate present who knows the intricacies of the legal system. Accordingly, the decision in Betts is now overruled.

Does a defendant have the right to represent himself on appeal?

NO

If a defendant has the right to represent himself, does he have the right to have a non-lawyer represent him?

NO

Should a defendant be allowed to represent himself even if it is disruptive to the trial?

NO

Does an indigent defendant have a right to choose his own appointed counsel?

No

standard for effective counsel

Strickland standard (1) specific errors (2) prejudice

Indiana v. Edwards—The Constitution (does/does not) forbid a state from insisting a defendant proceed to trial with assistance of counsel. While a person may be mentally competent to stand trial, they may not be mentally competent to conduct the trial.

The Constitution does not forbid a state from insisting a defendant proceed to trial with assistance of counsel. While a person may be mentally competent to stand trial, they may not be mentally competent to conduct the trial.