Chapter 3 Right to Counsel

• Jurisdiction: United States

Chapter 3 Right to Counsel

The Sixth Amendment of the U.S. Constitution states: "In all criminal prosecutions, the accused shall . . . have the assistance of counsel for his defense."

Conflicts

Criminal defendants are entitled to "conflict-free" representation. The following is a non-exhaustive list of common conflicts:

• Counsel represented a former client whose interest's conflicts with that of the current client.
• The current client has not paid counsel's fees.
• A romantic relationship exists between counsel and client.
• The relationship between counsel and client has broken down to the point of being irreconcilable.
• Counsel has somehow become a witness in the current matter.
• The defendant tells his counsel he intends to give perjured testimony.

Faretta Motion (Pro Per Request)

A defendant has a Sixth and Fourteenth Amendment right to waive counsel and represent him- or herself before the court. In legal terms, this is called a self-represented litigant or a propria persona, or in short, a pro per request. Faretta v. California (1975) 422 U.S. 806. A criminal defendant who wishes to invoke the right of self-representation must make an unequivocal request in a timely fashion. If the criminal defendant does not file the motion within a reasonable time or fails to assert the request unequivocally, the court has the right to deny the motion.

To establish whether a criminal defendant recognizes the disadvantages, nature of charges, possible penalties, and outcomes of the self-representation, the court must conduct a hearing. A waiver must be done knowingly, intelligently, and voluntarily. In determining whether a defendant's decision to waive counsel is knowingly, intelligently, and voluntarily done, the court must establish whether a defendant is fully aware of the jeopardies and consequences that come with representing one's self. A defendant's technical knowledge of the law or ability to litigate a case is not relevant. Faretta at 835. A defendant who requests self-representation cannot later appeal on the ground of ineffective assistance of counsel.

A criminal defendant's absolute right to the Faretta motion does not, however, mean that a defendant is permitted to misuse the court or the process of justice. The court is entitled to maintain order and decorum in a court consistent with the justice and traditions of court. Thus, any time the defendant is unable or unwilling to abide by the rules of procedure and courtroom protocol or is disruptive...