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- Chapter 28 The Right To Counsel: At Trial and On Appeal
§ 28.07 INTERFERENCE WITH THE RIGHT TO COUNSEL
Jurisdiction | North Carolina |
§ 28.07. Interference with the Right to Counsel
The right to counsel includes the right "that there . . . be no restrictions upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary [system] . . . that has been constitutionalized in the Sixth and Fourteenth Amendments."172 This means, among other things, that the government may not ordinarily: (1) restrict defense counsel's decision on whether, and when in the course of the presentation of the defendant's case, the accused will testify;173 (2) prevent counsel from eliciting testimony from his client through direct examination;174 or (3) deny counsel the opportunity to make a summation to the jury.175
The Constitution is also violated if a trial judge prohibits a defendant from consulting with his attorney during an overnight recess, even if the recess is called while the defendant is on the witness stand and is about to be cross-examined by the prosecutor.176 However, the Supreme Court explained in Perry v. Leeke177 that because "cross-examination often depends for its effectiveness on the ability of counsel to punch holes in a witness' testimony at just the right time, in just the right way," a judge may prohibit consultation between the defendant and his counsel during a brief same-day recess, while the accused is testifying, in order to further the truth-seeking function of the trial.
Direct interference by the government with the defendant's right to the assistance of counsel ordinarily requires automatic reversal of any resulting conviction.178
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Notes:
[172] Herring v. New York, 422 U.S. 853, 857 (1975).
[173] Brooks v. Tennessee, 406 U.S. 605 (1972) (applying the Fifth Amendment self-incrimination and due process clauses).
[174] Ferguson v. Georgia, 365 U.S. 570 (1961).
[175] Herring, 422 U.S. 853.
[176] Geders v. United States, 425 U.S. 80 (1976).
[177] 488 U.S. 272, 282 (1989).
[178] E.g., Geders, 425 U.S. at 91-92 (reversing conviction without expressly determining whether prejudice occurred).
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Request your trial- Title
- Chapter 28 The Right To Counsel: At Trial and On Appeal
- § 28.01 OVERVIEW: THE IMPORTANCE OF DEFENSE LAWYERS IN THE ADVERSARY SYSTEM
- § 28.02 WHEN THE RIGHT TO COUNSEL APPLIES
- § 28.03 THE RIGHT TO COUNSEL: AT TRIAL
- § 28.04 THE RIGHT TO COUNSEL: ON APPEAL
- § 28.05 THE RIGHT OF SELF-REPRESENTATION
- § 28.06 THE RIGHT TO REPRESENTATION BY ONE'S PREFERRED ATTORNEY
- § 28.07 INTERFERENCE WITH THE RIGHT TO COUNSEL
- § 28.08 EFFECTIVE ASSISTANCE OF COUNSEL: GENERAL PRINCIPLES
- § 28.09 EFFECTIVE ASSISTANCE OF COUNSEL: CONFLICTS OF INTEREST
- § 28.10 EFFECTIVE ASSISTANCE: THE ROLE OF ETHICAL CANONS
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