Criminal Courts & Procedures Chapter 7

critical stage

A ____________ ____________ is any stage of a criminal proceeding where substantial rights of a criminal accused may be affected.

criminal defense

A person accused of a crime is generally represented by a _____________ _________ attorney.

autonomy

A second item that affects the amount of trust a client has in a lawyer involves the level of responsibility and ____________ given an attorney for strategic decisions made in defending a client.

Decisions that are reserved for the defendant to make include the following five items:

1) Whether to plead guilty 2) Whether to accept a plea agreement 3) Whether to waive a jury trial 4) Whether to testify 5) Whether to appeal ----As these items implicate specific constitutional protections, a defendant has the right to make the relevant decision.

From experience with case outcomes and sentencing practices, the defense attorney is in a good position to determine if:

1) a case is winnable 2) the value provided in a plea bargain 3) and what action is in the client's best interest.

Things a lawyer may have to tell their client that they don't want to hear:

1) advising clients to enter into a plea bargain 2) telling them that their story of what occurred is unlikely to be believed by a judge or jury 3) and saying that, despite being willing to fight hard for the client's interests, there are limits to what an attorney is ethically permitted to do.

To effectively put the prosecutor's case to the test, a defense attorney must be able to:

1) challenge the reliability of the evidence presented 2) cross-examine witnesses against the defendant 3) raise matters involving violations of the defendant's rights regardless of whether the defendant is in fact guilty as charged

3 primary indigent defense systems:

1) assigned counsel programs 2) contract systems 3) public defender offices

limitations on prosecutors, police, and investigators in the of absence of counse

1) contact the defendant 2) interrogate the defendant

How people in the system and society as a whole view defense attorneys:

1) Their clients are likely to: (a) distrust them. (b) to believe that they were sold out and coerced into entering into a disadvantageous plea bargain. (c) to believe that their attorneys were not sufficiently skilled or financed to present a winning defense. 2) Prosecutors and police, while knowing the defense attorney has a job to do, resent being constantly and aggressively challenged and having their honesty questioned in the pursuit of a zealous defense. 3) Judges may resent defense attorneys who file frequent legal motions, demand that time-consuming procedural rules be honored, and insist on lengthy and expensive jury trials for their clients. 4) General public views defense lawyers as obstacles to the truth who thrive on using their eloquence and flair to have factually guilty clients found not guilty and released back into society.

Why would a lawyer want to practice in the field of criminal defense?

1) Despite and maybe in part because of the challenges, many defense attorneys enjoy their work. --Compared to the work done by attorneys who never appear in court, criminal defense work is very exciting. 2) It provides attorneys with a chance to stand up for the little guy against the power of the state. 3) For young lawyers who want to be high-level litigators in the future, trying criminal cases is probably the best and most efficient manner in which to gain experience, skills, and a reputation as a skilled litigator. 4) Beginning a legal career in an area that presents so many challenges and so little appreciation provides young attorneys with opportunities to prove their fortitude and abilities under pressure. 5) someone has to do it. --Someone must stand up for individuals who have no means to defend themselves. --Someone must use their training to ensure that the government does not trample over a citizen's rights. --Someone needs to ensure that innocent people have their day in court and guilty defendants are treated fairly under the law. 6) Knowing that they are doing this important work is its own reward. 7) The challenge of winning small victories in an uphill battle is invigorating. 8) View their job as a mission, with the objective of doing their little piece to improve society, promote equality, and serve as an obstacle to governmental oppression.

Zerbst differed from Powell in several important aspects:

1) Unlike Powell, Zerbst applied to all criminal defendants in federal court regardless of the particular circumstances of individual cases. 2) the rights announced in Zerbst were based on the 6th Amendment right to counsel instead of the due process clause. 3) as Zerbst applied only to federal prosecutions, it did not alter Powell's demands on the states.

It is rare for criminal defense attorneys to meet with their clients under positive conditions. Why?

1) In the best of circumstances, the meeting occurs in a law office with the client seeking help and advice in dealing with potential or actual criminal prosecution. 2) Attorneys frequently meet their clients for the first time at the local jail where the client is being held following arrest. --In either case, the client is likely to be scared of what may lie ahead, confused by the process before him or her, and leery of the attorney sitting across the table. 3) The attorney has been assigned by a court to represent the defendant. (a)The client has no input into who will be appointed to be his or her lawyer (b)has no information about the lawyer's ability (c) may well believe the court- appointed lawyer assigned to him or her is probably representing poor defendants because he or she is not capable enough to have a job as a "real" lawyer. 4) in the eyes of many indigent defendants, since the government is paying the salaries of both the prosecutor and the defense lawyer, the attorneys will be working together to get rid of the defendant's case as quickly as possible.

State and local governments across the country work hard to provide counsel to indigent defendants as efficiently and inexpensively as possible. Why?

1) Main reason is due to cost. 2) It is morally and constitutionally required that a defendant be provided with competent representation.

Reasons why clients believe that defendants represented by private attorneys receive better assistance than that provided to defendants with appointed counsel:

1) Public defenders and appointed attorneys are widely viewed as lawyers working for the government, just like the prosecutor. --As such, many defendants view their appointed attorney as being in cahoots with the prosecutor and not having their best interests in mind. 2) it is believed that people get what they pay for, and if they are getting an attorney for free, he or she must not be very good. --Otherwise, this thinking goes, they would have a "real job". *****These perceptions are factually incorrect.

Reasons why recent graduates of law school become criminal defense attorneys:

1) The desire to help individuals in need 2) the determination to serve as a check on the government's power 3) the desire to gain extensive trial and courtroom experience

Realities of being a public defender:

1) The first aspect of the reality of criminal defense work is a lesson that newly minted criminal defense attorneys learn early on that, although they represent individual defendants, they operate within the confines of a courtroom workgroup. 2) success is seldom clear and victories are infrequent. 3) involves how people in the system and society as a whole view them. --are vastly underappreciated. 4) the vast majority of defense attorneys are paid significantly less than lawyers who practice in other areas, and public defenders are paid less than prosecutors with similar experience in the same jurisdiction.

To facilitate the ability of an attorney to effectively represent a client, a number of ethical rules and standards regulate how a lawyer must relate to his or her clients:

1) The most important component of building a client's trust in her or his attorney is the assurance that what is said between attorney and client will be kept confidential. 2) Meet with defendant as soon as practical following appointment or retention. 3) Explain in detail the procedures that will take place as the case progresses. 4) Promptly respond to the client's questions or requests for information. 5) Keep the client informed of developments in the case on a regular basis.

2-pronged test set forth in Strickland v. Washington, to be used in evaluating ineffectiveness of counsel claims:

1) Was the attorney's performance deficient? and If so, 2) did the deficient performance injure (prejudice) the defendant?

Decisions that must be made beyond these items are typically considered to be tactical or strategic in nature and include the following:

1) Whether to call specific witnesses to testify 2) How to cross-examine prosecution witnesses 3) Whether an affirmative defense, such as self-defense or insanity, should be raised 4) Whether potential jurors should be challenged for cause or removed with a peremptory challenge 5) Whether to employ an expert witness 6) Whether to give an opening statement or closing argument

The defense attorney's role in this process is to:

1) continuously challenge the government to ensure that all people's rights are honored 2) ensure that suspects and defendants, regardless of who they may be, are treated equally under the law 3) ensure that a person is not convicted or punished until he or she pleads guilty before a judge or is proven to be guilty beyond a reasonable doubt before a jury.

In a fixed-price contract program, the contracting attorneys are usually responsible for:

1) cost of overhead 2) support services 3) investigation 4) expert witnesses

defense attorney's responsibilities to his/her client:

1) counseling the defendant 2) investigating items relevant to the case 3) pursuing a favorable disposition (plea bargain) prior to trial 4) zealously presenting the defendant's case in court 5) challenging the prosecution's evidence and cross-examining prosecution witnesses at trial 6) ensuring that the defendant's rights are honored and protected

Contract programs operate using either:

1) fixed-price contracts 2) fixed-fee-per-case contracts

The Gideon decision left several questions unanswered:

1) is there a right to counsel in all criminal prosecutions, including prosecutions of petty offenses and misdemeanors? 2) at what point in the court process does the right to counsel attach? 3) does the right to counsel apply to postconviction proceedings, such as appeals, habeas corpus filings, and probation and parole violation hearings?

The coordinated assigned counsel system provides several benefits not available in the ad hoc model:

1) it allows the court or a governing body to require attorneys to meet minimal qualification standards to be accepted into the program. 2) By limiting appointments to attorneys who are prequalified to handle the case, both in terms of ability and desire to receive such appointment, problems associated with unqualified or unwilling attorneys being appointed cases are reduced if not eliminated. 3) since the appointing authority knows the background and level of experience of each attorney eligible for appointment, experienced attorneys can be appointed to highly complex or serious cases, while less serious cases can be handled by less experienced lawyers.

Drawbacks of ad hoc appointment systems:

1) lack of control over the experience level 2) qualifications of the appointed attorneys 3) potential for judges funneling work to preferred lawyers.

Though an attorney should consult with a client before making tactical or strategic decisions, ultimately they are left to the attorney to make. Why?

1) only a trained expert has the ability to comprehend the importance and implications of tactical decisions. 2) as many choices during a trial must be made rapidly, it is not practical to have a client weigh in on each question, objection, or strategic decision.

Benefits associated with being represented by a public defender:

1) public defenders and their offices have the capacity to handle large numbers of cases efficiently because of the fact that criminal defense in a single jurisdiction is the sole focus of their work. --Familiarity with procedures increases efficiency, and appearing before the same judges and with the same prosecutors on a daily basis also facilitates work-group cohesion, which may lead to better outcomes for clients. 3) public defender offices have investigators on staff and funds budgeted for expenses associated with expert witnesses. --if a defendant being represented by a public defender needs investigatory work performed or would benefit from the testimony of an expert witness, these items will be accomplished as a matter of course. ----With assigned counsel or counsel appointed in a contract system, expenses for investigators and expert witnesses are either borne by the attorney as part of the contract or subject to court or administrative approval. ------an indigent defendant who is likely to need the testimony of an expert witness or further investigation beyond what is done by the police is probably better off being represented by a public defender than another type of appointed counsel.

Once the predetermined number of cases has been reached in a fixed-fee-per-case contract system, the option exists to:

1) renegotiate 2) extend 3) terminate the contract

Reasons why defendants distrust their lawyers:

1) stems from the environment and conditions under which a defendant is provided with an attorney. 2) the near autonomy with which the attorney makes strategic decisions on how to conduct the defendant's trial. 3) the advice and counseling the lawyer provides that are less positive than the client envisioned and may include an attorney refusing to partake in unethical behavior on behalf of the client.

The desire of a criminal defendant to proceed pro se, without counsel, raises several conflicting issues:

1) the Supreme Court has found the assistance of an attorney to be critical to a person facing criminal prosecution, going so far as to hold that denying counsel to an indigent defendant makes the prosecution fundamentally unfair. --it would seem to be folly to permit a defendant to facilitate an unfair prosecution by demanding to represent himself or herself. ----should the court force a criminal defendant to rely on an attorney when the defendant believes she or he can represent herself or himself more effectively than appointed counsel?

Differences in the way in which private and appointed attorneys do their jobs:

1) the amount of time the different types of attorneys spend with their clients. --Attorneys who are hired and paid by a defendant spend more time with their client than attorneys who are appointed to represent a defendant. ----It is due to the large number of cases public defenders have and the number of clients they must see in a given day. -----Private attorneys, with smaller caseloads, are able to see their clients more frequently and respond to requests for meetings more expeditiously. 2) private attorneys file more motions, attend more hearings, and meet with family members more than appointed counsel. --Shows the level of effort the attorney is putting into the case and serves to justify the fee she or he is being paid. ----These efforts also make clients feel that someone is fighting for them and is doing everything possible to obtain a positive outcome.

Negative components of a fixed-price contract program:

1) the inherent incentive for the attorney to spend as little time and expense on each case as possible 2) the lack of oversight of the competence of the attorney handling each case for a law firm that has entered into the contract. 3) Under such contracts, law firms have been known to: (a) have their least experienced attorneys handle a majority of cases involving indigent defendants (b) to refrain from employing investigators or expert witnesses (c) to take all steps possible to dispose of cases prior to trial. 4) the quality of representation provided to indigent defendants suffers under fixed-price contract systems.

Variables affecting the cost of an assigned counsel system include:

1) the total number of cases assigned 2) whether any death penalty or complicated cases are filed 3) whether there are drug sweeps resulting in multiple defendants for the same case.

public defender program

A ___________ _____________ _____________ is a public or nonprofit institution designated to provide representation to indigent defendants in criminal cases.

honest

Above all else, while a defense attorney owes these (and other) duties to his or her client, a lawyer also has an obligation to be ____________ and candid with the court.

perjured

An attorney cannot lie or misrepresent facts to the court or knowingly allow the admission of _____________ testimony in a trial. --These limitations apply even when the unethical or impermissible act is requested or demanded by a client.

integrity

An attorney has an overriding obligation to protect the ______________ of the justice system.

right

An indigent defendant has no _________ to choose whom he or she wants as counsel.

United States v. Gonzalez-Lopez (2006)

Answered the following questions: 1) What happens if a defendant has the money to hire an attorney? 2) Can the court place limits or restrictions on the attorney who a defendant wants to hire with his or her own funds? 3) If a nonindigent defendant is prevented from being represented by counsel of his or her choice and is forced to employ a different attorney, has the right to counsel been violated?

Argersinger v. Hamlin (1972)

Argersinger brought a habeas corpus action in the Florida Supreme Court, alleging that his 14th Amendment right to counsel as guaranteed in Gideon was violated. --The Florida Supreme Court refused to provide relief, holding that a defendant has a right to counsel only if he is facing a potential period of incarceration longer than 6 months. ---- The Court noted the vital role counsel plays in providing a defendant with a fair trial regardless of the seriousness of the charges being faced. ------Given the large number of misdemeanants prosecuted in local courts, the potential that indigent defendants in those courts face assembly-line justice is real. --------the Court acknowledged that this same large number of cases would make a requirement that all misdemeanants be provided with counsel largely unfeasible. ----------the Court held that absent a knowing and intelligent waiver, no person may be imprisoned for any offense unless he or she was represented by counsel at his or her trial.

rare

As such instances of prejudice are extremely _________, it is almost always necessary that a defendant be able to establish prejudice to prevail on an ineffective assistance of counsel claim.

overwhelmed

Attorneys who work in an indigent defense system are notoriously ______________ by immense caseloads.

The fixed-fee-per-case model is less common than the fixed-price model for jurisdictions that use a contract system for indigent defense. Why?

Because a number of jurisdictions have adopted the fixed-price contract model solely as a means to cut costs, often at the expense of the quality of the representation provided.

Why is it is almost always in the client's best interest to accept a plea bargain to a reduced charge and less extreme sentence?

Because most criminal defendants are factually guilty of the offenses with which they are charged and will likely lose at trial and receive a sentence based on that crime.

Reason why a defendant has a right to have a lawyer appear on his or her behalf at essentially all court proceedings following the commencement of a criminal prosecution:

Because the basis for the definition of critical stage centers on the fact that the core purpose behind the right to counsel was to provide assistance when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor.

negotiator

Because the decision to plead guilty or go to trial belongs to the defendant, the defense attorney serves only as an adviser and ______________.

Why is the government is required to provide an attorney to indigent defendants?

Because they lack the means to hire an attorney.

violate

Beyond determining whether an individual committed a crime, the criminal court system operates to ensure that the government does not ___________ individual rights as guaranteed by the Constitution.

trust

Beyond maintaining the integrity of the legal system, the overarching theme throughout these rules is the importance of fostering a defendant's _________ in his or her attorney.

ramifications

By representing and advising the criminal defendant before trial, the attorney makes sure that the defendant's rights are being honored and that she or he understands the _________________ of pleading guilty or going to trial.

1970

By the ________s, the Supreme Court clarified under what circumstances indigent defendants were entitled to the assistance of counsel at state expense.

experience, seriousness

Cases are usually assigned to individual public defenders based on the attorney's ____________ and the ______________ and complexity of the charges facing the defendant.

class of cases for which prejudice need not be proven:

Cases involving claims of ineffective assistance of counsel where a defendant was actually denied counsel during a critical stage of a prosecution or where the errors surrounding the representation "are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified".

Scott v. Illinois (1979)

Clarified the standard laid out in Argersinger. --The Supreme Court explicitly recognized that a defendant may not be sentenced to jail or prison unless that person was represented by an attorney or voluntarily waived his or her right to counsel. ---- It essentially requires the trial judge and prosecutor to decide at an early stage of a prosecution whether they believe a defendant charged with a misdemeanor is deserving of a jail sentence if convicted. ------ If a defendant is not provided an attorney, he or she may not be imprisoned if ultimately found guilty. --------This places the prosecutor and judge in a situation where they must balance the ability to incarcerate a defendant on conviction against the cost of providing low-level offenders with counsel.

alternative

Contract programs have been introduced as an __________________ to court-appointed attorneys handling conflict of interest cases in jurisdictions that have a public defender office.

certainty

Counties and states using fixed-price contracts are not subject to these variables, so they can project with _____________ what their indigent defense expenditures will be at the beginning of the year.

Johnson v. Zerbst (1938)

Court expanded the reach of Powell in federal courts to include the right to counsel possessed by defendants who cannot afford to hire an attorney. The opinion stated that the right to counsel was "a constitutionally defined element of a criminal trial," and it was therefore "the trial court's affirmative obligation to see that the accused was given this right."

standby counsel

Courts are not powerless in dealing with pro se defendants. --Typically, judges provide defendants who insist on proceeding pro se with "_____________ ______________."

officers

Criminal defense attorneys are ____________ of the court and must adhere to significant ethical standards & must do all they can to promote the interests and protect the rights of their clients.

distrustful

Despite the importance of having defendants trust their attorneys and regardless of an attorney's efforts to build trust, research has shown that defendants are more often than not very _______________ of their lawyers.

counsel

During the colonial period in America, individuals were charged with crimes and tried before a court without the assistance of ___________.

original

Even if the caseload in the jurisdiction is higher than was projected, the contracting attorney in a fixed-price contract system is responsible for providing representation in each case for the _____________ price.

prejudice, challenge

For a presumption of _____________ to apply, it must be established that counsel failed to ______________ any aspect of the prosecution's case, not simply some aspects.

zealous

For the American adversarial system of justice to work, it is necessary that actions and claims made by the government prosecutor be tested and challenged by a ___________ advocate.

large

From a professional standpoint, criminal defense attorneys gain a __________ amount of courtroom and trial experience in a very short time.

mandated

Gideon and Argersinger _____________ that states provide counsel to indigent criminal defendants charged with felonies and misdemeanors in which a defendant may be sentenced to jail or prison if convicted.

Gideon v. Wainwright (1963)

Gideon, who had no formal education, handwrote a petition for habeas corpus for submission to the Supreme Court. The Court agreed to hear his case and appointed Gideon an attorney to represent him before the Court. Supreme Court held that indigent defendants charged with a felony in state courts must have counsel provided to them at state expense. The Court concluded that the right to counsel was essential to a fair trial and was therefore incorporated into the 14th Amendment's due process clause and was binding on the states.

1000

Given the __________s of indigent defendants charged with misdemeanors each week across the country, if states and local governments were required to provide counsel in each case, the expense would be overwhelming.

layperson

Given the advantage a trained prosecutor had over a ____________ defending himself, it became apparent that such a system was unfair to those charged with crimes.

interpreted

How individual states ______________ what constituted a criminal offense varied greatly.

remote

If the prosecutor's case and evidence can withstand such scrutiny and be accepted beyond a reasonable doubt by a judge or jury, the likelihood of an innocent person being convicted of a crime he or she did not commit is considered ___________.

contract attorney programs

In ____________ ______________ ______________, a state or county government (or judicial district administration) enters into a contract with one or more private attorneys, law firms, or nonprofit organizations to provide representation to indigent defendants. --contracts are normally designated for a specific purpose within the court system, such as felonies, misdemeanors, or all cases where the public defender has a conflict of interest.

18

In _____th-century England, defendants were not allowed to hire an attorney to represent them in most felony prosecutions.

fixed-price contract program

In a _________-_________ ___________ ____________, a contracting lawyer or law firm agrees to accept an unknown number of cases within the contract period, normally one year, for a single flat fee.

Why the prejudice prong of the 2-prong test is difficult to meet:

In most criminal trials, there is extensive evidence against the accused. --In reviewing potential prejudice to a defendant caused by an attorney's ineffectiveness, a court will consider whether a competent attorney would have made a difference in the outcome. ----a defendant must demonstrate that counsel's errors are so severe as to deny him or her of a trial whose outcome is fair or reliable, not merely that the result would have been different.

petition

In most jurisdictions, private, court-appointed counsel must ______________ the court for funds for investigative services, expert witnesses, and other necessary costs of litigation.

increased

In recent years, the number of jurisdictions using contract programs has _____________ substantially.

duty

In serving as a client's defender, a lawyer has a _________ to provide diligent and competent representation for his or her client.

retained attorneys

In terms of case outcomes, however, research has consistently indicated that there is little variation in case outcomes between privately ____________ _____________ and assigned counsel. --no significant difference in the rate of case dismissals, convictions, and sentences following conviction for defendants represented by appointed counsel and _____________ ______________. ----any differences found in case outcomes are due to items other than type of attorney, particularly the race, income, criminal history, and pretrial release status of the defendant. ------While private attorneys generally file more motions and attend more hearings, these acts do not regularly generate better case outcomes.

required

In the 1930's, states were still _____________ to offer court-appointed counsel to indigent defendants only in capital cases or in particular situations that would offend all notions of due process.

first prong

In the ________ _________ of the 2-prong test, the Court held that a court must evaluate whether, "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." --"counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." ----decisions made by the attorney about strategy will not be second-guessed in hindsight.

second prong

In the __________ __________ of the 2-prong test, if counsel's performance is determined to have been below acceptable standards, a claim of ineffective assistance of counsel will not succeed unless it is also shown that counsel's ineffectiveness prejudiced the defendant. --Requires proof that there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different. ----a reasonable probability is "a probability sufficient to undermine confidence in the outcome."

coordinated assigned counsel

In the ______________ _____________ ___________ system, attorneys apply to be included on a list of counsel to be appointed on an as-needed, rotational basis. --attorneys are paid on an hourly or per-case basis.

1700

In the __________s, the colonies moved increasingly toward the use of professional, state-funded prosecutors to prosecute criminal cases.

prosecutor

In the criminal court system, the government is represented by the _______________.

indigent

In the criminal justice system, the vast majority of defendants are ______________.

statement

In the fixed-fee-per-case contract system, the contracting attorney or firm submits a monthly ______________ indicating the number of cases handled during the period.

reasonable, same

In the vast majority of cases in which ineffective assistance of counsel is raised, courts have found either that: (a) the performance of counsel was _____________ (b) or that the outcome of the trial would have been the _________ regardless of the substandard performance and have denied relief.

hire

Individual colonies moved to provide defendants with the right to _________ counsel to assist in their defense by law and, after the Declaration of Independence, by state constitution.

Do defendants who are able to hire private attorneys at their own expense receive better representation than defendants with court-appointed counsel?

It depends largely on whom you ask and how you measure quality of representation. --Client's perspective: there is an overwhelming belief that defendants represented by private attorneys receive better assistance than that provided to defendants with appointed counsel.

1972

It wasn't until __________, nine years after Gideon was decided, that the Supreme Court clarified under what circumstances indigent defendants charged with crimes that were not felonies were entitled to counsel at state expense.

proposals

Jurisdictions using contract systems to provide indigent defense services will periodically advertise requests for ______________ under which attorneys, law firms, and nonprofit organizations can bid for the contract. --bids generally state how much the attorney or firm will charge to handle the specified services.

experience

Many attorneys, particularly those recently out of law school, welcome the opportunity to participate in an assigned counsel program because of the courtroom _____________ they can gain.

reversal

Most decisions made by an attorney that hurt a defendant's case will not be a sufficient basis for ____________ due to grounds of ineffective assistance of counsel. --Only those decisions that are considered professionally unreasonable and are found to have prejudiced the defendant are grounds for ____________.

90

Nearly _______% of criminal defendants are indigent.

1933

Prior to ________, the right to counsel was assumed to simply permit defendants to hire and to be represented by an attorney.

superior

Private attorneys consistently receive ____________ ratings on the quality of representation provided than do court-appointed lawyers on the quality or representation provided.

significant

Public defender offices are predominantly used in larger jurisdictions with a ______________ number of criminal prosecutions.

budgets

Public defender offices employ full-time investigators and support staff and have ___________ to hire expert witnesses as needed.

aspects

Public defenders normally handle all ___________ of a case, from arraignment through sentencing.

time

Rather than using their skills to defend people at trial, much of a defense attorney's __________ is spent meeting with clients, negotiating with prosecutors, and settling cases.

conviction, prison

Often a criminal defense attorney is the only thing standing between a criminal defendant and a criminal _____________ and lengthy ____________ sentence.

compounded

Often, the distrust felt by defendants is _____________ by the fact that defense attorneys frequently have different opinions than their clients on how to proceed with a case.

Supreme Court has held that indigent defendants have the right to the assistance of court-appointed counsel for their first appeal. Why?

On the basis of the assumption that a defendant's right to appeal can be effective only if counsel is provided.

control

Once a criminal case reaches court, a defendant who is represented by an attorney has complete ___________ over a limited number of basic, fundamental decisions about how his or her defense will proceed.

critical

Once the right to counsel has attached, a defendant has the right to an attorney at all __________ stages in the court process.

Bill of Rights

Shortly after the ratification of the U.S. Constitution, the right to counsel was included in the ________ _____ __________ presented to the First Congress.

procedural

Standby counsel advice frequently involves _____________ matters and issues involving rules of evidence that are unfamiliar to nonattorneys.

adviser

Standby counsel does not formally represent the defendant but acts as an ____________ during the proceedings.

Indiana v. Edwards (2008)

Supreme Court considered whether a person who is mentally competent to stand trial (able to understand the proceedings and assist in his or her defense) may be prevented from criminal prosecution due to mental deficiencies.

Betts v. Brady (1942)

Supreme Court considered whether the right to counsel as provided for in Zerbst should be applied to the state court prosecutions. Supreme Court held that the 14th Amendment's due process clause did not mandate counsel for an indigent defendant charged with a felony offense in state court.

United States v. Cronic (1984)

Supreme Court described such a circumstance: "If counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable." --prejudice need not be proven.

McMann v. Richardson (1970)

Supreme Court explicitly held that the right to counsel included the right to the effective assistance of counsel. --Supreme Court did not define what level of performance is sufficiently effective.

Faretta v. California (1975)

Supreme Court held that the Sixth Amendment may not be used to prevent a competent defendant from self-representation.

Strickland v. Washington (1984)

Supreme Court set forth the standard to be used in evaluating ineffectiveness of counsel claims. --the standard for judging a claim of ineffectiveness is whether counsel's performance so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

Rothgery v. Gillespie County (2008)

Supreme Court stated that a prosecution begins and the right to counsel attaches at a defendant's first appearance before a judicial officer, at which point the defendant is informed of the charges against him or her and has restrictions imposed on his or her liberty.

adversarial

The American court process is based on the _________________ system of justice.

unitary

The Court noted that one can be competent to stand trial but still lack the capacity to stand trial without the benefit of counsel. This is because mental illness is not a _____________ concept, but varies in degree and manifestations.

initiation

The Supreme Court has held that the right to counsel for a defendant who would be entitled to an attorney under Gideon or Argersinger attaches at the ____________ of formal adversarial proceedings, which occurs when a defendant is arrested and brought before a judge for an initial appearance or when the accused is indicted or formally charged with a crime by criminal complaint.

director

The ___________ of most public defender offices is normally appointed by a governing body (generally a county commission or a state's governor).

fixed-price

The ___________-___________ contract program does provide a level of certainty for a governmental agency trying to budget for indigent defense services.

prejudice

The ____________ prong of the test is difficult to pass.

Constitution

The ______________ guarantees that an indigent defendant be given effective counsel, not the counsel of his or her choosing.

cornerstone

The _________________ of an adversarial system is the presence of advocates representing opposing positions to the best of their ability.

predominant

The ad hoc assigned counsel method is the _______________ indigent defense system used in the country. --It works particularly well in smaller, rural counties that have limited demand for indigent defense services.

Reason why indigent defense attorneys are overworked:

The caseload standards are advisory and contain no mechanism for enforcement.

better

The coordinated assigned counsel model is generally recognized to be __________ than the ad hoc assigned counsel system.

client

The third area giving rise to defendants' distrust of their defense attorneys involves the counseling and advice conveyed from attorney to __________.

concern with the Argersinger case:

The criminal justice system would be overwhelmed with the new requirement for the appointment of counsel in thousands of new cases.

double agent

The defense attorney is often viewed by his or her clients as a __________ __________ who is lazy and does not want to do what is needed to have the client emerge from the system victorious. --This perception is far from the truth.

function

The founding fathers recognized that for the adversarial system to _____________, persons accused of crimes needed to be represented by an advocate equally as skilled and educated as the opposing government prosecutor.

scope

The lack of controversy around the right to counsel was due to the limited ___________ of the right.

difficult

The two-pronged standard established by the Court in Strickland has proven very ____________ to meet.

condemned

The use of fixed-price contracts has been ______________ by the American Bar Association.

ad hoc

The most common type of assigned counsel system is the _____ ______ assigned counsel program, under which the appointment of counsel is generally made by the court on an _____ ______ basis; that is, lawyers are appointed to represent defendants on a case-by-case basis when necessary. --cases are assigned to whoever happens to be in the courtroom at a defendant's first appearance or arraignment. ---- attorneys are usually paid on an hourly basis ------In some states, attorneys are provided a flat fee per case.

end

The right to counsel does not ________ following the conviction and sentencing of a defendant. This right does not extend to subsequent appeals, habeas corpus petitions, or other postconviction proceedings.

1930

The right to counsel generated minimal controversy until the __________s.

impact

The role of counsel in criminal proceedings in 17th- and 18th-century England had a significant __________ on the development of the right to counsel in the United States.

ethical standards

Though criminal defense lawyers must do all within their power to obtain favorable outcomes for their clients, lawyers must do so within the rules of the court and __________ ____________ laid out by state bar associations.

6

To help ensure this balance between the defense and the prosecution, the ____th Amendment to the Constitution provided that "in all criminal prosecutions the accused shall enjoy the right ... to have the Assistance of Counsel for his defense."

Powell v. Alabama (1932)

U.S. Supreme Court addressed for the first time whether indigent criminal defendants had a right to have an attorney provided to them at state expense. The Court concluded that given the seriousness of the charges and the special circumstances present, the lack of counsel denied the defendants due process under the law.

Nix v. Whiteside (1986)

U.S. Supreme Court considered how an attorney should handle a situation where he or she knows that a client intends to commit perjury while testifying in his or her own defense.

capital

Under English common law, a person charged with a crime was generally not allowed counsel in a prosecution for any felony or ___________ offense.

fixed-fee-per-case contract

Under the ________-_____-_____-_______ ___________ system, the contract entered into by the attorney or law firm and the local government entity agrees to a specific number of cases to be handled for a fixed fee per case.

1980

Up until the mid-_________s, a number of varying definitions and standards for what constituted effective assistance of counsel were used in federal and state courts. --these standards were so broad and ill defined as to be largely unusable.

counselor

When representing a client, criminal defense attorneys are required to "serve as the accused's ____________ and advocate with courage and devotion and to render effective, quality representation".

1st Congress

When the right to counsel was introduced and later adopted on the House and Senate floors during the _______ _____________, it was uncontroversial and adopted with little debate.

point

While Argersinger and Gideon laid out the types of cases in which a defendant has a right to counsel, they did not address the _________ in the prosecution process at which the right to an attorney attaches.

Powell

While ___________ established a right to appointed counsel in capital cases, it did not require counsel be appointed in noncapital state prosecutions so long as the proceedings were not fundamentally unfair.

hear

While a lawyer will counsel and advise clients on their best options, frequently an attorney must tell clients what they do not want to _________.

ethical

While a prosecutor may not seek to convict a person she or he believes to be innocent, a defense attorney has an ___________ obligation to zealously defend a client she or he knows to be guilty.

disposition

While appointed attorneys fare just as well as retained counsel in the ultimate _____________ of cases, achieving a positive result absent vivid displays of effort and adversariness is frequently unappreciated and dismissed.

reality

While being a public defender or attorney who represents indigent defendants does provide the opportunity to accomplish each of these goals to a degree, new criminal defense attorneys learn in short order that the ____________ of their job is significantly different from what they envisioned.

9

While criminal defense attorneys do have the opportunity to conduct more trials than lawyers practicing civil law, the reality of the criminal court system is that _____ out of 10 cases are settled by a plea bargain.

truth

While not necessarily involving a search for the _________, defense attorneys play an important role in the search for justice.

pro se

While noting that a lawyer who represents himself or herself has a fool for a client, so long as a defendant knowingly, intelligently, and voluntarily waives his or her right to counsel, that person will be entitled to proceed _______ ____.

obligation

While prosecutors, as representatives of the state, have an ____________ to seek the truth and attain justice outcomes, criminal defense attorneys have no such obligation.

less

While public defenders and their offices are routinely thought to provide _________ effective representation than attorneys in the private sector, this is not necessarily the case.

150, 400

While the American Bar Association and many states have explicit caseload limits of ________ felonies and ________ misdemeanors a year, these limits are routinely ignored, with attorneys actual caseloads ballooning up to 200% more than what is authorized.

assigned

With an _____________ counsel system, it is impossible to predict the total cost for the upcoming year.

primary

Within the confines of the workgroup—where the prosecution decides who to charge and what types of plea bargains to offer, and judges are interested in seeing just results achieved quickly—the defense attorney finds that a _____________ part of his or her job is to convince clients to accept plea offers made by the prosecution.

confidentiality

Without the assurance of _______________, there is no reason to expect defendants to be candid with their lawyers about events surrounding the charges they face. --Without such candor, the ability for a lawyer to effectively represent a client is greatly diminished.

attorneys

____________ working in public defender offices range from those recently out of law school and admitted to the bar to veterans who have been public defenders for many years and even decades.

Assigned counsel programs

______________ ____________ ____________ employ private attorneys to represent indigent defendants.

Gideon

______________ established that indigent defendants have the right to the assistance of counsel. --It also gave rise to a new and related matter: Do criminal defendants have the right to represent themselves?

The defining characteristic of a public defender office is:

it directly employs staff attorneys whose sole job is to provide representation to indigent defendants.

The primary appeal of contract systems to funding bodies is:

the ability to project costs for the upcoming year accurately by limiting the total amount of money that is contracted out.