The Sixth Amendment of the U.S. Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to have assistance of counsel for his defense.

The Supreme Court has stated that in an adversarial system such as ours, defense counsel are a necessity, not a luxury.

The court ruled that indigent defendants must be furnished with trail transcripts at state expense if such transcripts are necessary to effectuate appellate review of a conviction.

The remedy for the violation of an accused's right to counsel is that any subsequent conviction must be reversed.

Appointed counsel refers to counsel appointed by the court to represent the defendant.

Retained counsel refers to an attorney hired by the accused.

The constitutional right of an indigent defendant to the assistance of court appointed counsel was established to a limited degree—this was a capital case and the defendant was illiterate.

The court held that the average defendant does not have the necessary skills to defend himself

Thus all defendants in federal courts for felony cases had the right to court appointed counsel.

In Betts, the courts refused to extend Zerbst to state courts—so long as the case was a non-capital felony

Overruled Betts v. Brady.

Held that the defendant has a Sixth Amendment right to the assistance of counsel in felony cases and, if the accused could not afford one, he is entitled to a court-appointed counsel.

The indigent defendant is entitled to the appointment of counsel in all felony cases and in any misdemeanor cases in which the a sentence of imprisonment could be received.

While the right to counsel is guaranteed, there is no right to counsel of choice.

An appeal is different than a trial on several levels, and so the right to appointed counsel for "defense" raises different constitutional issues.

Not allowing indigent defendants to make the same appeals as those with money can make is a violation of due process.

This, however, only to appeals that are by right—discretionary appeals (appeals of appeals) are not covered.

Ake v. Oklahoma

The court ruled that indigent defendants have a right to technical assistance in preparing their defense—hiring expert witnesses and investigators

Faretta v. California

The trail court compelled the defendant to allow an attorney to represent him and was convicted.

The Court said there is an absolute right to a pro se defense—forcing an attorney on someone is a violation of the 6^th Amendment

The trial judge must make a careful inquiry into the defendant’s understanding of his right to counsel and his knowledge of the problems associated with self-representation.

A pro se defense is an idiot’s defense

The court ruled that is was permissible for the trail court to force a defendant to have counsel in a consultant role

The lawyer sits with the defendant and offers legal advice

The fact that a person who happens to be a lawyer is present at trail alongside the defendant is not enough to satisfy the sixth amendment.

The right to counsel includes the right to effective representation.

Representation is ineffective if counsel’s conduct so undermines the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

The measure of an attorney’s performance is an objective standard based on prevailing professional norms.

There is a strong presumption that the individual received effective assistance of counsel.

The Strickland test applies to both retained and appointed counsel.

If there is no right to counsel, there is no right to effective assistance of counsel.

For example, there is no right to counsel in discretionary appeals.

Holloway v. AR

Multiple representation involves the representation of more than one client for the same criminal transaction.

The trail court must hold a hearing to make sure the defense knows the dangers of multiple representation.

The SC has adopted a two part test to determine if an event required assistance of counsel:

The even must occur after formal criminal proceedings have commenced

The event must be a critical stage in the criminal process

Generally, formal proceedings begin when a prosecutor or a judge intervenes in a case—such as filing an indictment

There are some events that are non-critical or where criminal prosecution has not begun in which the Supreme Court has used the Due Process Clause to require the appointment of counsel to indigent defendants.

In custody Miranda interrogations

Probation and parole revocation hearings with complex issues.