2.2 Proceedings in Which the Right to Counsel Applies

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

2.2 PROCEEDINGS IN WHICH THE RIGHT TO COUNSEL APPLIES

2.201 In General. Absent a knowing and intelligent waiver of counsel, no person may be imprisoned for a criminal offense without the assistance of counsel. This general rule applies to misdemeanor prosecutions as well as to felony prosecutions. ¹⁶ In misdemeanor cases, however, counsel need not be appointed if, upon conviction, no term of imprisonment will be imposed. ¹⁷ Thus, in misdemeanor cases, it is the result rather than the nature of the offense that determines whether counsel must be appointed at state expense for the indigent defendant. The Virginia Code incorporates that distinction and provides that if, in a misdemeanor case, upon motion of the commonwealth's attorney, the court states in writing that a jail sentence will not be imposed if the defendant is convicted, the court may try the case without appointing counsel, and no jail sentence may be imposed. ¹⁸ In the absence of a motion by the commonwealth's attorney, a court may proceed on its own motion. ¹⁹ An indigent defendant who has not been furnished and has

[Page 70]

not waived the right to counsel cannot be given a suspended sentence and be placed on probation. ²⁰

Section 19.2-163.7 of the Virginia Code provides additional requirements for appointment of counsel in capital cases. The judge of the circuit court must appoint at least two attorneys for the defendant in a capital case from a list of qualified attorneys established and maintained by the Supreme Court of Virginia and the Indigent Defense Commission pursuant to section 19.2-163.8. One of these attorneys must be from a capital defense unit maintained by the Indigent Defense Commission. In addition, when a convicted indigent defendant's death sentence has been affirmed on appeal, the court must appoint counsel from the list to represent the defendant in a habeas corpus proceeding.

In addition to the right to counsel at trial, the Sixth Amendment and related constitutional doctrines guarantee the right to counsel at other stages of the criminal prosecution.

2.202 Pretrial Proceedings. The right to counsel, including to appointed counsel at state expense, applies at all stages of the criminal prosecution after the commencement of the "adversarial judicial" process. ²¹ The exact point at which a criminal proceeding becomes an "adversarial judicial" process is unclear. There is authority, however, for the position that it occurs at the time an arrest warrant issues. ²² The Sixth Amendment right to counsel has been held not to attach at the time of a lineup conducted following a warrantless arrest but rather before the first appearance before the magistrate. ²³ Moreover, only those stages of the prosecution that constitute "critical stages" in the prosecution, namely, in which critical decisions must be made, require the appointment of counsel. ²⁴ The Virginia Code, however, eliminates much of the uncertainty concerning the preliminary stages of the prosecution. It provides that at each appearance, including the initial appearance, at which

[Page 71]

a defendant appears without representation, the court must inform the accused of his or her right to counsel and provide a reasonable opportunity for the accused to employ counsel or, if appropriate, execute the statement of indigence. ²⁵

The right to the assistance of counsel, including the right to appointed counsel at state expense, thus applies, after the adversarial judicial process has commenced, to pretrial identification confrontations between the accused and witnesses. ²⁶ In addition, in conjunction with the Fifth Amendment privilege against self-incrimination, the accused is entitled to the assistance of counsel when subjected to in-custody interrogation by law enforcement officials. ²⁷

The decision by the United States Supreme Court in Montejo v. Louisiana, ²⁸ expressly overruling Michigan v. Jackson, ²⁹ expands the right of police to contact and try to question a represented defendant. The Court stated that no reason existed to prohibit the police from initiating an interview after the Sixth Amendment right has attached since a defendant can always assert the right to counsel under Miranda's protection whether the attempt to question comes before or after the arraignment where counsel was appointed. The Court reasoned that, since the initial decision to waive counsel did not itself require the assistance of an attorney, no rational distinction could be made between requiring a defendant to assert this right for the first time or to reassert...