Right to Counsel Flashcards
(15 cards)
What is the three-step analysis for 6A Right to Counsel?
- Does the right to counsel apply to this category of case?
- Has the right to counsel attached yet in this case?
- Has this case progressed to a critical stage?
What are three categories of cases that 6A Right to Counsel applies to?
- Felony Cases. See Gideon.
- Cases where incarceration is actually imposed in a Felony or Misdemeanor Case. See Argersinger and Scott.
- Cases where a suspended sentence is imposed in a Felony or Misdemeanor Case. See Shelton.
Does a case need to fall into more than one category to require a 6A Right to Counsel?
No.
Even a case that falls into only one of the categories requires a 6A Right to Counsel.
What does Attachment mean in the context of 6A Right to Counsel?
6A Right to Counsel attaches is the Government has actually committed to prosecuting the Defendant.
When does Attachment occur?
Attachment occurs when the Defendant is subject to “adversary judicial criminal proceedings.” See Gouveia.
What are the stages preceding Attachment?
- Investigation by police.
- Consultation of prosecutor by police.
- Search warrants.
- Wiretaps and other electronic surveillance.
- Grand jury proceedings.
- Arrest
What are the stages when Attachment occurs?
- Formal Charges are filed.
- Preliminary Hearing
- Arraignment
- Plea Hearing, Trial, Sentencing
What does “Critical Stage” mean in the context of 6A Right to Counsel?
Basically, this means a stage of the proceeding where counsel’s presence is necessary to protect Defendant.
Once a Critical Stage has been reached, are all future stages critical?
No.
You can have a Critical Stage followed by a Non-Critical Stage.
Can you have Attachment without Critical Stage or vice-verse?
Yes.
These are two independent tests and should not be conflated to be one-and-the-same. See Rothgery.
Should you analyze Attachment before Critical Stage?
Yes.
Always analyze Attachment before Critical Stage.
What are some examples of Non-Critical Stages?
- Investigation by police.
- Jailhouse visits by family.
- Photo Arrays.
- Arrest, but 5A Right to Counsel may apply. See Miranda.
- We do not know whether a Bail Hearing is or is not a critical stage.
What are some examples of Critical Stages?
- Initial Appearances and arraignments
- Hearings (e.g., Plea, Prelim, Suppression)
- Lineups and Show-Ups. See Wade.
- Meetings with Government Agents trying to elicit incriminating information from Defendant. See Massiah.
When does Right to Counsel Terminate?
- It survives the entirety of proceedings before trial court (e.g., the Trial, Post-Trial Motions, and Sentencing).
- It has limited application in Courts other than the Trial Court (e.g. it applies to first-level appeals, but not to collateral PCR).
Can States extend the 6A Right to Counsel?
Yes.
The Federal Constitution only sets a floor as to what is required.
