Reference no: EM133857155

Excerpt:

In Faretta v. California, 422 U.S. 806 (1975), the right to self-representation was established. The Supreme Court recognized that the assistance of trained legal counsel is essential to preparing and presenting a defense. However, in balance, the Court found that a defendant's right to represent themselves (referred to as pro se) trumps the benefits of forcing appointed counsel.

The record must clearly show that a defendant who has chosen to proceed pro se has done so voluntarily and knowingly. At a Faretta hearing, named for the case just discussed, the defendant "must be made aware of the dangers and disadvantages of self-representation." Whether the defendant possesses any legal training or education is not relevant.

Pro so defendants are notoriously difficult. Most often they are unfamiliar with evidence law and trial procedures. In some instances, they are unruly, and in others, they have a change of heart when they realize they can't adequately defend themselves. To avoid unnecessary mistrials or later reversals, trial judges are permitted to appoint "standby counsel." This attorney attends the trial and is available to provide advice to the defendant or take over the defense, if necessary. The Supreme Court has approved the practice of appointing standby counsel over the objection of the defendant. This is routinely done in felony cases. The right to self-representation is not absolute. A defendant who engages in disruptive behavior during the proceeding may be relieved of pro se status.

Through Gideon, the right to counsel in criminal prosecutions was extended to the states. Argersinger made it clear that counsel must be provided in all cases in which the defendant is sentenced to actual imprisonment. But when does the right begin?

The Supreme Court has held that the Sixth Amendment right to counsel applies to all critical stages of a criminal prosecution. This definition requires that a "prosecution" be initiated before the right to counsel, under the Sixth Amendment, attaches. Accordingly, the Sixth Amendment does not apply to juvenile proceedings, or to administrative hearings such as parole determination and revocation.

The right starts whenever the "adversary judicial proceeding" is initiated. Police contacts prior to the initiation of an adversary judicial proceeding are not covered by the Sixth Amendment.

In determining what constitutes a critical stage, courts focus on "whether substantial rights of the defendant may be affected." The greater the contact between the prosecutor and the defendant, the more likely the event is at a critical stage. The first critical stage is normally the initial appearance or the arraignment. Courts have also determined that a defendant may be entitled to counsel at a police lineup, sentencing, preliminary hearing, and during a probation revocation hearing. Once charges are filed, all interrogations of the defendant by the government are critical stages.

The Sixth Amendment is not the only constitutional provision ensuring counsel. As you learned earlier, the Fifth Amendment's right to be free from self-incrimination also guarantees counsel in some instances, as does the Fourteenth Amendment's Equal Protection Clause and Due Process Clause.