Section 6.4 Right to Counsel

• Library: Criminal Practice 2012 Supp

D. (§6.4) Right to Counsel

The United States Supreme Court has stated that a preliminary examination is a “critical stage” in the criminal process; therefore, indigent defendants must have appointed counsel. Coleman v. Alabama, 399 U.S. 1 (1970). The initial appearance of the defendant and proceedings before a judge, after a previous ex parte probable cause determination and the defendant’s arrest, are provided for in Rule 22.08.

Advisement by the court of the nature of the charges and rights of the accused to counsel, retained or appointed, and to remain silent also takes place at this time. The right to counsel in preliminary proceedings is further discussed in State v. Barnard, 820 S.W.2d 674 (Mo. App. W.D. 1991). The right to counsel, however, is not an unbridled right in regard to what counsel can do at a preliminary hearing. While a preliminary hearing is an excellent opportunity to elicit testimony from witnesses for the purpose of impeaching them at trial and also to provide initial discovery in a criminal case, this is not the purpose of a preliminary hearing, and these opportunities can be limited by the court. State v. Woods, 723 S.W.2d 488 (Mo. App. S.D. 1986).

An accused does have the right to be physically present at a preliminary hearing and to cross-examine witnesses. State ex rel. Turner v. Kinder, 740 S.W.2d 654 (Mo. banc 1987). In response to Kinder, the General Assembly passed what ultimately became § 561.031, now RSMo 2000, which allows for certain proceedings to occur via closed circuit television when they involve prisoners and the physical presence of the individual in court is not required by statute or Rule. Section 561.031 does not affect a prisoner’s right to be physically present at a preliminary hearing (which can be held within the Department of Corrections), but instead allows for less consequential proceedings, including initial appearance after arrest on complaint, bond hearings, and the waiver of a preliminary hearing, to occur via closed circuit television. The validity of § 561.031 was upheld in Guinan v. State, 769 S.W.2d 427 (Mo. banc 1989). Although not dealing with a...