Friday, October 11, 2013

RIGHT TO COUNSEL

An attorney researching a legal issue.
An effective attorney will work hard to defend you!

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Introduction:

The United States Constitution affords persons accused of crimes with certain special rights not extended to civil litigants. Among these is the right to counsel. The Sixth Amendment provides “in all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.” This right consists of four lesser privileges.

I. Counsel Of Choice (& Self Representation):

A person accused of a crime has the right to be represented by and through an attorney of his choosing. In other words, the law places no limitation on that person’s decision regarding which qualified attorney may represent him in court. The right to select one’s legal representative also includes the right to forego representation by an attorney. When this happens, the accused has chosen to represent himself in all his dealings with the prosecutor, the judge, and (potentially) a jury. Although there is no constitutional limitation on representing oneself, it is good to consider this old adage, as the legal issues in a criminal proceeding can be difficult to confront without formal legal training: “He who represents himself in a court of law may have a na├»ve person for an attorney.”

II. Appointment Of Counsel:

Persons unable to arrange for representation due to insufficient financial resources will be appointed an attorney at public expense. This is done to protect the constitutional rights of such individuals. The obvious drawback to appointed counsel is that the accused has little or no ability to select his attorney. Also, there is often no prior relationship between the accused and the appointed attorney. Trust is therefore lacking, and the attorney-client relationship frequently breaks down as a result. This can lead to impasse, which may potentially compromise the accused’s right to counsel. To avoid this, many persons facing criminal charges gather resources to hire an attorney whom they trust and can freely communicate with throughout the legal process.

III. Conflict-Free Representation:

Regardless of whether an attorney is privately retained or appointed, a person charged with a crime is entitled to “conflict-free” representation. This means the attorney handling that person’s case must not have divided loyalties, such that the attorney is able to unreservedly and specially advocate for his client. This issue often arises when an attorney is retained or appointed to represent multiple defendants whose interests are adverse (e.g., where co-defendants defend themselves by blaming each other for the alleged crime).

IV. Effective Assistance Of Counsel:

The right to counsel also means the right to competent counsel. A person charged with a crime is deprived of his right to representation when the performance of his attorney is deficient and the accused suffers prejudice thereby. To show prejudice, the accused must demonstrate the result in his case would have been different but for his attorney’s poor performance. As a practical matter, most ineffective assistance of counsel claims are made on appeal after conviction. By that time, the ship has sailed, as it were. Moreover, such claims are difficult to prove because showing attorney blunder is not enough- the error must have resulted in substantial prejudice (i.e., not "harmless error"). This is why it is essential that a person charged with a crime select an attorney at the outset of his case who will competently represent him at each stage in the legal process.

Summary:

If you have been accused of committing a crime, you have the right to be represented by an attorney. As soon as you have been arrested or learn of pending charges, you should seek the assistance of a lawyer who will represent your interests and provide you with excellent service and a strong defense.

Video Podcast of this Article: