www.cengage.com/cj/neubauer

David W. NeubauerHenry F. Fradella

Joe Morris • Northwestern State University, Natchitoches, LA Cherly Gary • North Central Texas College, Corinth, TX

Chapter Seven: Defense Attorneys

Right to Counsel

• Gideon v. Wainwright (1963)• Indigent defendants have the right to court

appointed counsel-- felony criminal proceedings

• In re Gault (1967) • Extended to Juveniles

• Argersinger v. Hamlin (1972)• Guaranteed counsel IF possible imprisonment

• Scott v. Illinois (1979)• Narrowed Argersinger to cases that actually result

in imprisonment

Right to Counsel

• “Critical Stages” Test• Mempa v. Rhay (1967) Sentencing - required• Brewer v. Williams (1977) begi n adversarial process

- required• Rothgery v. Gillespie County (2008) – initial

appearance – required if critical stage• Miranda v. Arizona (1966) – custodial interrogation -

required

• Police Lineups• U.S. v. Wade (1967) – post indictment -required• Kirby v. Illinois (1972) – preindictment – not required

Ineffective Assistance of Counsel

• Objective Standard of Reasonableness • Strickland v. Washington (1974)• Did counsel’s conduct undermine the proper

function of the process?• Did it render the outcome unfair?• Few appellate court reversals on these grounds

• Appellate courts must reverse if proceedings were unfair and the outcome would have been different if counsel had not been ineffective

Self-Representation

• Defendants have a 6th Amendment right to self-representation• Faretta v. California (1975) – cannot deny pro

se just b/c defendant does not have expertise, but can for lack of capacity

• Limits• Must show judge the ability to conduct the trial

The Criminal Bar

• Responsibilities• Advocates of the client’s case• Cannot mislead or provide false evidence• They cannot knowingly allow perjured

testimony• A win is knowing what is the best that can be

done for the client

• Environment of Practice• Low status/lower pay• Difficulty in securing clients

Providing Indigents with Attorneys

• Appointed Counsel• Indigents – those who are too poor to pay for

an attorney and are entitled to one free

• Three Systems• Assigned counsel: attorneys appointed by the

judge on a case-by-case basis• Contract systems: attorneys hired to provide

services for a specified dollar amount• Public defender: a salaried public official

representing all indigent defendants

Providing Indigents with Attorneys

• Assigned counsel: attorneys appointed by the judge on a case-by-case basis• Most common in small counties • Criticisms• Least qualified attorneys• Inadequate pay

Providing Indigents with Attorneys

• Contract systems: attorneys hired to provide services for a specified dollar amount• Most common in small counties• Criticisms • Lower standard of representation due to bidding• Private bar no longer plays an important role in

indigent defense• Found unconstitutional in Arizona

Providing Indigents with Attorneys

• Public defender: a salaried public official representing all indigent defendants• Today the public defender system represents

approximately 70 percent of all indigents nationwide

• Proponents• Devote more attention to clients• More experienced, competent counsel• Continuity and consistency

• Critics• Tied too closely to the courtroom work group

Lawyers’ and Clients’ Views

• Frustration due to difficult clients • Lack of trust • Evasion• Deception

• Frustration with attorneys• Skeptical About Skill• Worry About Whose Side Lawyer is On• Suspicious • Lack of One-to-One Contact

Defense Attorney Ethics

• Even the very unpopular have a right to a vigorous defense• Zealous Advocacy• Confidentiality• Conflict of Interest