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Right to Counsel

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Right to Counsel
Dimitria Jackson
CJA/ 364 Criminal Procedures
May 22, 2012
Michael Harrison

Right to Counsel
One of the most important rights awarded to the accused is the right to be represented by an attorney. Most individuals accused of a crime will most likely not have an adequate defense without the assistance of counsel. The development of the right to counsel in the twentieth century focused on the issue of whether the state had to pay for attorneys for individuals what are indigent or to poor to pay. Because of Powell v. Alabama, the Court found that in particular cases, state courts had to provide free counsel to criminal defendants. In addition, the right to counsel attaches at the initiation stage of the criminal proceedings. Separate from the Sixth Amendment right to counsel and prior to the initiation stage, an individual has a Fifth Amendment right to counsel during custodial interrogation as well. Zalman (2008) stated “Counsel is required at a pretrial proceeding if it is one in which factual determination can be made that could determine the outcome of the case and in which a lawyer plays a significant role” (p. 337).The adversarial nature of the trial process makes even routine cases dependant on trained, competent lawyers. A defendant without counsel is at an extreme disadvantage.
Development of the Right to Counsel
In the past, the right to counsel meant the right to retain counsel; that is, if the defendant could afford an attorney, he had the right to use an attorney. This right was denied to the indigent defendant. Zalman (2008) affirmed, “Under the U.S. Constitution, there was no obligation in federal or state criminal trials that the government, which was prosecuting the defendant, had any obligation to ensure a fair trial by providing defense counsel” (p. 329). Major changes began to happen when the U.S. Supreme Court decided that the Constitution had to offer free counsel to indigent defendants in all federal cases in federal court. Additional developments came in the 1960s in the landmark case of Gideon v. Wainwright. This case led to a Supreme Court ruling that “the states could no longer use a different standard than the federal government in the appointment of counsel to represent poor defendants”. It declared that all poor persons who are accused of a felony must be represented by free counsel. With this ruling, the court stopped the practice of allowing a defendant who is unrepresented to face police investigators and the state prosecutor’s office without assistance of counsel. Furthermore, in 1972, the Supreme Court declared that the accused must be given an appointed attorney whenever he or she is in danger of losing his freedom. This means that even misdemeanor cases fall under the requirements of the right to assistance of counsel ("The Right of Assistance of Counsel", 2006). Regardless of income status, the recognition of the idea of equal rights for all is as much a foundation of American law as is this particular Sixth Amendment right.
When the Right to Counsel Attaches
The right to counsel under Miranda from the Fifth Amendment and The Sixth Amendment right to counsel differs from each other. The primary purpose of the right under the Fifth Amendment is to ensure that a suspect is not overwhelmed by coercive police interrogation strategies while in custody. Therefore, it exists to prevent self-incrimination in custodial interrogations. On the contrary, the Sixth Amendment protects those who face criminal adversarial procedures in court. “The Sixth Amendment right to counsel attaches when formal criminal proceedings have been initiated against him whether by way of formal charges, preliminary hearing, indictment, information, or arraignment” (Ferdico, Fradella, & Totten, 2012, p. 522). Officers may not participate in any behavior that may bring forth an incriminating response from the defendant without the presence or waiver of counsel once the right to counsel attaches. This means that a defendant may not be questioned without the presence of an attorney unless a waiver of the Sixth Amendment right to counsel is obtained.
Right to Self-Representation
Pro se defense or self-representation most likely occurs when a defendant becomes aggravated with the incompetence of legal counsel, or when a defendant strongly disagrees with counsel’s legal plan. The right to self-representation is invoked by waiving the right to counsel. To allow the state sufficient time to prepare for this type of trial, the defendant must invoke the right to self-representation prior to trial. Blond (2007) stated “After granting the right, a trial judge may decide that the defendant must forfeit the right because of obstructionist tactics that disrupt proceedings” (p. 215). Notably, in most municipalities, it is not a requirement to inform a defendant of the right to self-representation.
Role of the Attorney’s
In the criminal trial process, the prosecutor acts as the “people’s attorney” and represents the state’s interest. “The prosecutor is ordinarily a member of the practicing bar who has been appointed or elected to be a public prosecutor responsible for bringing the state’s case against the accused” (Blond, 2007, p. 157). He or she focuses on those who disregard the law by charging them with a crime and in due course, bring them to trial, or on the contrary, let them go if the evidence is does not amount to proof of a crime. Some of the duties of the prosecutor include investigating possible crimes, cooperating with police investigations, deciding what charges will be brought against the accused, interviewing and subpoenaing witnesses, representing the state in pretrial hearings, negotiating plea-bargains, trying cases, and recommending sentences among conviction (Blond, 2007). The prosecutor’s participation extents the entire scope of the criminal justice system.
The defense attorney is the opposite of the prosecuting attorney in the criminal process. “The accused has a constitutional right to counsel, and if the defendant cannot afford an attorney, the state must provide one” (p. 161). If the defendant is indigent, a public defender may be appointed by the court. However, the accused may retain counsel from a private sector if he can afford to do so. The role of the defense attorney is simple; to provide a fair and adequate defense for the accused. The defense attorney must fight the state’s case against the defendant to avoid conviction of the innocent. He or she must provide legal counsel to the alleged defendant and ensure his or her constitutional rights are protected. Furthermore, the defense will help build a case that will guarantee that the defendant is not wrongfully convicted of a crime he or she did not commit.
At all critical stages of the criminal justice process, the Sixth Amendment right to counsel attaches. This includes first appearances, preliminary hearings, as well as the trial and sentencing phases. The right to counsel is present in any situation where imprisonment is fast becoming reality.

References
Blond, N. (2007). Criminal Procedure. New York, NY: Aspen Publishers.
Ferdico, J. ., Fradella, H. F., & Totten, C. D. (2012). Criminal Procedure for the Criminal Justice Professional (11th ed.). Belmont, CA: Cengage Learning.
The Right of Assistance of Counsel. (2006). Retrieved from http://www.mobar.org Retrieved on

May 23, 2012
Zalman, M. (2008). Criminal Procedure: Constitution and Society (5th ed.). Upper Saddle River, NJ: Prentice Hall.

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