Right to Effective Counsel and Attachment of the Right to Counsel

The Sixth Amendment to the United States Constitution guarantees a defendant the right to effective assistance of counsel in criminal proceedings. Effective assistance of counsel is presumed. If the defendant claims that his counsel was ineffective, he has the burden of proving that the ineffectiveness prejudiced him and that a different result would have occurred but for the ineffectiveness. Instances that do not constitute ineffectiveness include trial tactics, failure to raise an invalid defense, and failure to argue frivolous matters.

When Does the Right to Counsel Attach

The right to counsel attaches when the adversarial process has begun. The defendant has a right to counsel during the following stages:

Custodial police interrogation.
Interrogation after an indictment.
Preliminary proceedings to determine probable cause.
Arraignment.
Line-ups conducted after the defendant is charged.
When entering a guilty plea.
Sentencing.
Felony trials.
Appeals as a matter of right, usually first appeals.

Some examples of instances that the defendant is not entitled to counsel during are:

Photo line-ups.
Line-ups before a defendant is charged
Parole and revocation proceedings.
Postconviction proceedings.
Discretionary appeals.

Indigent Defendants

An indigent defendant, one without the proper funds to pay for counsel, may be entitled to the appointment of counsel. Once it is established that the defendant is indigent, a trial judge may appoint counsel to represent him.

Conflicts of Interests and Joint Representation

Counsel may jointly represent a defendant and his co-defendant. However, joint representation should only be done if no conflict of interest exists.

Waiver of Right to Counsel and Self-Representation

A defendant may waive his right to counsel and represent himself. The trial judge must make sure that the defendant's waiver of counsel is knowing, intelligent, and voluntary. Most states have certain language or require a certain line of questioning for ascertaining the defendant's waiver of counsel. There is no requirement that the defendant be found capable of representing himself. A trial judge can appoint standby counsel for the defendant. If a case involves a lot of issues or if the trial judge finds that in the interests of justice the appointment of standby counsel is necessary, such appointment may be made.