Chapter Eight

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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 offwithout
regards to the consequences.
Alan Dershowitz, The Best Defense, 1983
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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

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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.

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OBJECTIVES
(cont.)

• 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.

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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.

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Presence of the Defendant at a Trial

• For many years, interpretation of the accuseds
  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.

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Presence of the Defendant at a Trial

• The Supreme Court in Estelle v. Williams, stated,
  with few exceptions, an accused shouldnt 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

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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.

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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.

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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.

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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.

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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.

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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 defendants 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.

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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

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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 cant 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.

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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

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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

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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.

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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.

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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

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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 counsels 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.

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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

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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.

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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 defendants rights are not violated when a
  trial judge appoints standby counsel over the
  defendants objection
• to assist the defendant in overcoming routine
  obstacles that stand in the way of the
  defendants achievement of his own clearly
  indicated goals

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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 clients 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
  ones own proper person), or in person.

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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.

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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 fromfrominvestigatory to accusatory,
  the accused is entitled to counsel.

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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

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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

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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.
• todays 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

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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 defendants 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.

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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 counsels
  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.

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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.

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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

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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.

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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.

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SUMMARY
(cont.)

• 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.

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SUMMARY
(cont.)

• 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.

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SUMMARY
(cont.)

• 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.

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Chapter End