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America’s Courts and the Criminal
Justice System, 13th Edition
Chapter 7
Defense Attorneys
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Learning Objectives (1 of 2)
1. Interpret the four major legal issues surrounding the
right to counsel.
2. Discuss how the courtroom work group affects how
defense attorneys represent their clients.
3. Explain why most lawyers do not represent criminal
defendants.
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Learning Objectives (2 of 2)
4. Compare and contrast the three systems of providing
indigents with court-appointed attorneys.
5. Recognize possible tensions between lawyers and
clients.
6. Analyze the importance of legal ethics to the defense
of criminal defendants.
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Case Close-Up:
Gideon v. Wainwright (1963)
• Clarence Earl Gideon
– Requested a court appointed attorney and was refused
– Unrepresented by counsel
– Supreme Court sided with Gideon
• Indigent defendants have the right to court-appointed
counsel
– Applies in felony criminal proceedings
– Decision sent shock waves through the criminal
justice system
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The Right to Counsel
• Sixth Amendment
• Extended to juveniles in In re Gault (1967)
– Issues of right to counsel with
▪ Nonfelony criminal prosecutions
▪ Stages of the criminal process
▪ Ineffective assistance to counsel
▪ Self-representation
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Non-Felony Prosecutions
• Argersinger v. Hamlin (1972)
• Scott v. Illinois (1979)
• Alabama v. Shelton (2002)
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Thinking Point: Justice Scalia
• Research Justice Antonin Scalia and his
rulings/discussions regarding juvenile court
proceedings.
– Are the issues fair and impartial? Why or why not?
– How do the issues relate to the adult system?
– What cases are most current?
– Discuss these cases and their issues.
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Stages of the Criminal Process (1 of 2)
• Sixth Amendment applies to all criminal prosecutions,
thus coined the Critical Stages test
– Mempa v. Rhay (1967)
– Miranda v. Arizona (1966)
– Kirby v. Illinois (1972)
• Once adversary proceedings have begun
– Brewer v. Williams (1977)
– Rothgery v. Gillespie County (2008)
– Missouri v. Frye (2012)
– Lafler v. Cooper (2012)
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Stages of the Criminal Process (2 of 2)
• Custodial interrogations
– Miranda v. Arizona (1966)
• Police lineups
– U.S. v. Wade (1967)
– Kirby v. Illinois (1972)
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Right to Counsel During Steps in
Felony Prosecutions (1 of 3)
Extent of Right Supreme Court Case
Arrest No lawyer required
Initial appearance
yer required
if critical stage
Rothgery v. Gillespie
County (2008)
Ball
yer required
if critical stage
Coleman v. Alabama (1970)
Charging No lawyer required
Preliminary hearing yer required Coleman v. Alabama (1970)
Grand jury No lawyer allowed
Arraignment yer required Hamilton v. Alabama (1961)
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Right to Counsel During Steps in
Felony Prosecutions (2 of 3)
Extent of Right Supreme Court Case
Interrogation
(preindictment)
yer on request Miranda v. Arizona (1966)
Interrogation
(postindictment)
yer required Massiah v. U.S. (1964)
Lineup (preindictment) No lawyer required Kirby v. Illinois (1972)
Lineup
(postindictment)
yer required U.S. v. Wade (1967)
Plea bargaining yer required
Brady v. U.S. (1970);
Tollett v. Henderson (1973);
Missouri v. Frye (2012)
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Right to Counsel During Steps in
Felony Prosecutions (3 of 3)
Extent of Right Supreme Court Case
Trial yer required
Gideon v. Wainwright
(1963)
Sentencing yer required Mempa v. Rhay (1967)
Probation revocation
yer at court’s
discretion
Gagnon v. Scarpelli (1973)
Parole revocation
yer at board’s
discretion
Morrissey v. Brewer (1972)
First appeal yer required Douglas v. California (1963)
Discretionary appeal No lawyer required Ross v. Moffitt (1974)
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Ineffective Assistance of Counsel
• Objective Standard of Reasonableness
• Strickland v. Washington (1974)
– Did counsel’s conduct undermine the proper function
of the process?
– Did it render the outcome unfair?
• Appellate courts must reverse if proceedings were
unfair and the outcome would have been different
if counsel had not been ineffective
– Few appellate court reversals on these grounds
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Self-Representation
• Defendants have a Sixth Amendment right to
self-representation.
– Pro se
– Missouri v. Frye (2012)
– Lafler v. Cooper (2012)
– Faretta v. California (1975)
– Limits
▪ Must show judge the ability to conduct the trial
▪ Standby council is available during the trial
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Thinking Point: Self-Representation
• You have just been arrested for armed robbery
of a bank. You decide you will represent yourself.
– Come up with a defense to your actions. Present
this to your class. Allow the class to ask questions.
– Discuss your overall experience and why you want
to defend yourself.
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Defense Attorneys and
Courtroom Work Group (1 of 2)
• Defining Winning
– Winning is doing the best for a client.
▪ Probation, accepting a plea to a misdemeanor
(assuming client is guilty), and so on
• Cooperative Attorneys
– Rewards
▪ Access to police reports, witnesses
– Sanctions
▪ Indirect: poor scheduling, dragging out of trials
▪ Direct: criticism, lack of assignment of some cases
▪ Tougher plea bargaining
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Defense Attorneys and
Courtroom Work Group (2 of 2)
• Variations in cooperation
– Inexperienced attorneys
– Gamblers
– Public defenders
– Private attorneys with large numbers of defendants
• An assessment
– Co-opted?
▪ Or
– Cooperative?
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The Criminal Bar
• Diversity and stratification of the legal profession
– Environment of practice
▪ Low status
▪ Difficulty in securing clients
▪ Low fees
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Providing Indigents with Attorneys
• Appointed counsel
• Indigents
– Those who are too poor to pay for an attorney and
are entitled to have one provided for them for free
▪ 75% of state prison inmates have a court-appointed
lawyer
▪ In urban courthouses, 82% of felony defendants are
too poor to hire their own lawyer
▪ It is up to counties to determine what type of system
they will utilize
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Three Systems of Providing
Indigents with Attorneys
1. Assigned counsel
– Attorneys appointed by the judge on a case-by-case
basis
2. Contract systems
– Attorneys hired to provide services for a specified
dollar amount
3. Public defender
– A salaried public official representing all indigent
defendants
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Assigned Counsel
• Most common in small counties
• Criticisms
– Least-qualified attorneys
– Inadequate pay
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Contract Systems
• Most common in small counties
• Criticisms
– Lower standard of representation due to bidding
– Private bar no longer plays an important role in
indigent defense
– Found unconstitutional in Arizona
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Public Defender
• Started in Los Angeles County, 1914
• Today the public defender system represents
approximately 70% of all indigents nationwide
• Public or private nonprofit organizations
representing indigents
• Funding occurs at the state or local level
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Courts, Controversy, and
Economic Inequality
• Are we spending too little or too much on indigent
defense?
– What do you think? Do we spend too much on indigent
defense, or do we currently spend too little?
– Do you agree more with the due process model or crime
control model thinking on indigent defense? Why?
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Assessing the Merits of the Public Defender
• Proponents
– Devote more attention to clients
– More experienced, competent counsel
– Continuity and consistency
• Critics
– Tied too closely to the courtroom work group
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yers and Clients (1 of 2)
• yer acts as advocate and counselor
– Privileged communication
• yers’ views on their clients
– Frustration due to difficult clients
▪ Lack of trust
▪ Evasion
▪ Deception
▪ Failure to take advice
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yers and Clients (2 of 2)
• Defendants’ views on their lawyers
– Skeptical about skill
– Worry about whose side their lawyer is on
– Suspicious
– Lack of one-to-one contact
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Defense Attorney Ethics
• Model Rules of Professional Conduct
– Zealous representation
– Abide by client’s decision
– Avoidance
– Act with reasonable diligence
– Keep the client reasonably informed
– Confidentiality
– Avoid conflict of interest
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Thinking Point: Model Rules of
Professional Conduct
• Research the Model Rules of Professional Conduct
adopted by the American Bar Association.
– Are the rules substantial? Why or why not?
– How do they apply directly to all courtroom actors?
– What are the advantages and disadvantages to this
ethical model?
– Would you change any of the rules? Why or why not?
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