Podstrony

• Index
• Carey Jacqueline [ Dziedzictwo Kusziela 02] Wybranka Kusziela
• Peter Charles Hoffer The Brave New World, A History of Early America Second Edition (2006)
• Diane D. Blair, Jay Barth Arkansas Politics and Government, Second Edition (2005)
• Sturgeon Theodore Klucz do zapory
• PoematBogaCzlowieka k.3z7
• Gibson William Idoru
• Eco Umberto Baudolino
• Grisham John Bractwo (3)
• McNaught Judith 01 Raj
• [4 2]Erikson Steven Dom Lancu Konwergencja
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.The right to counsel also performs a second function.Representation is nec-essary for the effective assertion of a criminal defendant s other constitutionalrights.Protections like the right to remain silent during custodial interrogationsand to have the fruits of an illegal search suppressed are basic to our adversarialsystem but would have little practical application without counsel, because fewdefendants are sufficiently versed in constitutional law to claim these rights ontheir own.Moreover, because important rights may be lost during stages ofthe criminal process other than the trial, the right to counsel is no longer just a6 trial right. It is also available in a variety of pretrial and post-trial contexts.§ 8.2  The Indigent Person s Rightto Appointed CounselAt common law and throughout most of the Sixth Amendment s history,assistance of counsel was available only to defendants who could afford an4U.S.CONST.AMEND.VI (1971).5Powell v.Alabama, supra note 1 (emphasis added).6See § 8.3 infra.§ 8.2 RIGHT TO COUNSEL 407attorney.The Sixth Amendment right to counsel was interpreted to mean onlythat this right could not be denied to defendants who had the means to hire anattorney.The government was under no duty to provide counsel for defendantswho lacked means.This interpretation seems unjust by modern standards.If,7as the founders believed, assistance of counsel was necessary to ensure a fairtrial, then it followed that defendants who lacked means were being unfairlyconvicted, imprisoned, and even executed.8Powell v.Alabama was the first case to recognize the right of an indigentcriminal defendant to court-appointed counsel.In Powell, nine indigent andilliterate African-American youths were charged with raping two white girls.They were tried in a racially tense environment in which the state militia hadto be called in to protect them from an angry mob waiting outside the court-house.The youths were tried without the aid of counsel.Eight of the nine wereconvicted and sentenced to death.The Supreme Court set aside their convictions, holding that they weredenied the right to appointed counsel.The source of this right was not theSixth Amendment right to counsel.Powell involved a state court convictionand, at the time it was decided, the safeguards contained in the Bill of Rightswere not binding on the states.The Supreme Court located the right ofstate criminal defendants to court-appointed counsel in the due processclause of the Fourteenth Amendment, which guarantees a fair trial.The Courtreasoned that placing illiterate youths on trial for their life without affordingthem the help of a lawyer rendered the trial fundamentally unfair, violatingthe Fourteenth Amendment prohibition against depriving citizens of  life.without due process of law. Powell v.Alabama was an exceedingly narrowruling, as the following passage reveals:We are of opinion that, under the circumstances.counsel was so vital andimperative that the failure of the trial court to make an effective appoint-ment of counsel was.a denial of due process within the meaning of theFourteenth Amendment.Whether this would be so in other criminal pros-ecutions, or under other circumstances, we need not determine.All that itis necessary now to decide.is that in a capital case, where the defendantis unable to employ counsel, and is incapable adequately of making his owndefense because of ignorance, feeble-mindedness, illiteracy, or the like, it isthe duty of the court, whether requested or not, to assign counsel for him as9a necessary requisite of due process of law.Powell gave state criminal defendants facing serious charges the rightto court-appointed counsel if they were illiterate or otherwise at a disadvan-tage in defending themselves.Predicated on the due process right to a fairtrial, Powell required proof of special circumstances that caused the failure7Powell v.Alabama, supra note 1.8Id.9Id.408 CONSTITUTIONAL LAW § 8.2to provide court-appointed counsel to result in an unfair trial.Six years later,the Supreme Court conferred a broader right to counsel on indigent criminaldefendants facing federal criminal charges, a right that derived from the SixthAmendment, and did not depend on proof that they were illiterate or otherwise10handicapped in defending themselves.The right to court-appointed counselwas made available to any defendant facing serious federal charges who lacked11the means to hire a lawyer.The law stood at this point for the next 25 years.Federal courts had toprovide counsel for any criminal defendant facing serious charges who lackedthe means to hire an attorney, while state courts had to provide counsel onlyfor defendants who, because of  special circumstances, were incapable ofreceiving a fair trial without representation by counsel.The Supreme Court erased this distinction in the landmark case of Gideon12v.Wainwright.Gideon was charged by the state of Florida with a felony thatcarried a five-year sentence.He demanded that the trial court appoint an attor-ney for him, his only reason being that he could not afford one.The courtdenied Gideon s demand, explaining that because he was not illiterate or oth-erwise hindered from representing himself, he was not entitled to appointmentof counsel.Gideon was convicted and eventually brought a habeas corpuspetition challenging the constitutionality of his imprisonment on the basis thathe was denied the Sixth Amendment right to court-appointed counsel.TheSupreme Court agreed, ruling that court-appointed counsel must henceforthbe furnished to state criminal defendants facing felony charges who lack the13means to hire a lawyer on their own.The Sixth Amendment today entitles indigent criminal defendantscharged with a felony to representation at the state s expense.In the case ofmisdemeanor prosecutions, the right to counsel turns on the sentence actually14imposed, not on the potential sentence faced.Indigent defendants chargedwith a misdemeanor cannot be incarcerated, even for a short time, unlesscounsel is appointed to represent them.However, no right to counsel exists15when a fine alone is imposed.This limitation is based on practical consid-erations.The cost of providing court-appointed counsel in cases where a finealone is imposed would be too burdensome on state governments.If Sam isapprehended for tricycle theft, a misdemeanor punishable by incarceration of10Johnson v.Zerbst, 304 U.S.458, 58 S.Ct.1019, 82 L.Ed.1462 (1938).11Id.12372 U.S.335, 83 S.Ct.792, 9 L.Ed.2d 799 (1963).13Id.14Argersinger v.Hamlin, 407 U.S.321, 92 S.Ct.2006, 32 L.Ed.2d 530 (1972) (holding that,in the absence of a waiver, indigent criminal defendants may not be sentenced to incarcera-tion for any offense, no matter how petty, unless represented by counsel).15Argersinger v.Hamlin, supra note 14; Alabama v.Shelton, 535 U.S.654, 122 S.Ct.1764,152 L.Ed.2d 888 (2002) (holding that a suspended sentence may not be imposed on anunrepresented indigent defendant because the sentences may lead to an actual deprivationof liberty in the future).§ 8.3 RIGHT TO COUNSEL 409up to 60 days, $1,000 fine, or both, the judge will have to decide before histrial starts whether, if Sam is convicted, the offense would merit jail time.Ifso, counsel must be appointed to represent him.If the judge fails to appointcounsel, a fine alone may be imposed even though facts brought to light at thetrial establish that Sam has a tricycle fetish and that this is the sixth one he has16purloined this month [ Pobierz caÅ‚ość w formacie PDF ]