9.2 Right to Counsel

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

9.2 RIGHT TO COUNSEL

9.201 General Considerations The United States Supreme Court has held that no person may be incarcerated for a criminal offense without either the assistance of counsel or a knowing and intelligent waiver of counsel. ⁴⁴ The right to the assistance of counsel in criminal prosecutions is a fundamental right guaranteed by the Sixth Amendment to the United States Constitution, and the provisions of the amendment are binding on the states through the Fourteenth Amendment. ⁴⁵

The right to the guiding hand of counsel in criminal cases is much broader than the right to the assistance of counsel at trial, and the constitutional bases of the right to counsel are often grounded in the Equal Protection and Due Process clauses of the Fifth and Fourteenth Amendments rather than in the Sixth Amendment. ⁴⁶ The constitutional issues discussed in this chapter thus go well beyond the right to counsel at trial and the obligation of the state to provide counsel at trial in certain cases at state expense. Other issues include: (i) the various stages of the criminal prosecution other than trial when the right to counsel applies; (ii) the obligation of the commonwealth to provide counsel for indigents; (iii) the standard by which waiver of the right to counsel is to be measured and the concomitant right to proceed pro se; (iv) the scope and extent of an indigent's right to services other than counsel at state expense; and (v) the right to effective assistance of counsel.

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9.202 Determination of Indigence. Since many of the issues discussed in this chapter involve the obligation of the commonwealth to provide counsel or other services at state expense for persons financially unable to pay their own way, the standards and procedures for determining indigence are very important.

The Virginia Code provides that whenever a person charged with a criminal offense, the penalty for which may be death or confinement in the penitentiary or jail, appears before any court without being represented by counsel, the court must inform the accused of his or her right to counsel. ⁴⁷ If the accused claims to be without funds to employ counsel, the court must ascertain by oral examination of the accused and other competent evidence whether or not the accused is indigent. ⁴⁸ Additionally, upon the court's request, the commonwealth's attorney must make an investigation to determine whether the accused is indigent. ⁴⁹ If the court determines that the accused is indigent and is entitled to appointed counsel, the court must provide the accused with a statement to be executed under oath, requesting the appointment of counsel. ⁵⁰ The Virginia Code provides for penalties for false swearing. ⁵¹ The accused must notify the court of any change in circumstances that would render him or her no longer eligible for appointed counsel. ⁵² The accused, of course, may waive the right to counsel at state expense, and, in some misdemeanor cases, counsel need not be appointed.

Indigence is determined according to the following standards: (i) if the accused is a current recipient of a state- or federally funded public assistance program, he or she is presumed (subject to rebuttal) eligible for appointment of counsel; and (ii) if the accused is not presumptively eligible, the court must make a thorough examination of financial resources with consideration given to: (a) the net income of the accused; (b) assets convertible into cash within a reasonable time; and (c) exceptional expenses of the accused and his or her family. For purposes of determining eligibility, the income, assets, and expenses of a spouse who is a member of the accused's household must be considered

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unless the spouse was the victim of the offenses allegedly committed. ⁵³ Expenses that the defendant is obligated to pay must be credited in the determination of indigence, even if the defendant is not currently meeting those obligations. ⁵⁴

Counsel must be appointed for the accused if his or her available funds are equal to or below 125 percent of the federal poverty income guidelines prescribed by the federal Department of Health and Human Services. If available funds exceed 125 percent of the guidelines, the court may, in exceptional cases and where the ends of justice so require, still appoint counsel, but the court must state in writing its reasons for doing so. ⁵⁵

9.203 Proceedings in Which the Right to Counsel Applies.

A. 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. ⁵⁶ In misdemeanor cases, however, counsel need not be appointed if, upon conviction, no term of imprisonment will be imposed. ⁵⁷ 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. ⁵⁸ In the absence of a motion by the commonwealth's attorney, a court may proceed on its own motion. ⁵⁹ An indigent defendant who has not been furnished and has

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not waived the right to counsel cannot be given a suspended sentence and be placed on probation. ⁶⁰

Va. Code § 19.2-163.7 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 Va. Code § 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.

B. 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. ⁶¹ 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. ⁶² 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. ⁶³ Moreover, only those stages of the prosecution that constitute "critical stages" in the prosecution, namely, in which critical decisions must

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be made, require the appointment of counsel. ⁶⁴ 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 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. ⁶⁵

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. ⁶⁶ 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. ⁶⁷ What is determined as "in custody" is the subject of a plethora of case law, but suffice it to say that whenever "a person has been taken into custody or otherwise deprived of his freedom of action in any significant way" by law enforcement, the person is in custody. ⁶⁸

Once an accused has invoked his or her Fifth Amendment right to counsel during interrogation, no further interrogation by the authorities is allowed until counsel has been made available or...