Right to Counsel

Question 1

What is the test for right to counsel?

Answer 1

Does the right apply to this category of case?

Has the right attached yet in this case?

Has this case progressed to a critical stage?

Question 2

What category of case gets right to counsel?

Answer 2

All felonies

Any misdemeanor that carries any jail time – sentence must actually be imposed

Suspended sentence (probation imposed in lieu of jail time)

Question 3

Can prior uncounseled convictions (that were valid at the time) be used as a sentencing enhancement for a current felony conviction, as long as counsel has been appointed for this offense?

Answer 3

Yes. Key question is whether ∆ has counsel at time of conviction in present case

Question 4

What is attachment

Answer 4

Idea that government has committed to prosecuting ∆

Question 5

How is attachment signaled

Answer 5

1. when a defendant becomes the subject of adversary criminal judicial proceedings like a prelim hearing to find probable cause
2. when government formally charges

Question 6

what are the stages before attachment

Answer 6

• investigation by cops
• consultation of prosecutor by cops
• search warrants
• wire taps/ surveillance
• grand jury proceedings
• arrest

Question 7

what are the stages when attachment occurs

Answer 7

• formal charge, including indictment and ‘information’
• preliminary hearing
• arraignment
• plea hearing, trial, sentencing

Question 8

what is critical stage

Answer 8

after the right to counsel attaches, then then critical stage is the events throughout proceeding when counsel is necessary to protect ∆

Question 9

examples of critical stage

Answer 9

• plea hearings
• admissibility of evidence hearings
• prelim hearings
• arraignments
• any informal meeting between state and ∆ in which the state is trying to elicit incriminating info (no 1-1 chats after charging)
• post indictment lineups
• trial
• sentencing

Question 10

hat is not critical stage

Answer 10

• investigation by cops
• jailhouse visit by family
• pre indictment photo arrays, lineups, show ups
• arrest
• unclear if bail hearing counts

Question 11

does right to counsel apply after conviction

Answer 11

yes, for first level appeal. not PCR