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Assistance of Counsel in a Criminal Appeal

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What Does Assistance of Counsel Mean?

The sixth amendment of the constitution guarantees every criminal defendant the right to an attorney. There are several phases where the accused has the right to an attorney including during pre-trial, which is also known as Miranda rights.

The sixth amendment right to the assistance of counsel or effective assistance of counsel provides the accused with the right to an attorney during their trial. This right requires that the defendant have an attorney who represents them to the best of their ability to create a fair trial for the defendant.

The right to an attorney also provides that a defendant who declines the services of an attorney either privately paid by the defendant or provided by the public at no cost to the defendant, may choose to represent themselves.

This right, however, does not mean that a defendant who has the ability to afford a private attorney is entitled to a free lawyer from the government, also know as a public defender lawyer.

Defendants who choose to represent themselves must knowingly and voluntarily waive their right to an attorney. Defendants who may not have the ability to waive the right or do not fully understand what is happening, may nonetheless be appointed a lawyer to represent them.

Does the Right to Assistance of Counsel Extend to the Appeals Process?

Defendants have the right to an appeal after being found guilty or convicted by the trial court. Usually, higher courts look at the trial proceeding and determine whether some error of law occurred. Appellate courts very rarely consider the facts of the case.

Thus, they do not review all the evidence and consider that maybe the defendant was not guilty. Another ground may include discovering new evidence that did not exist at the time of the trial.

Because the constitution requires that the defendant receive a fair trial, finding out that the prosecutor withheld evidence or some other unfairness may give the defendant a new trial.

Criminal defendants enjoy the right to assistance of counsel when filing the first appeal to a higher court and if the court grants a hearing, the defendant is entitled to an attorney during that process as well. If the defendant cannot afford an attorney, the government must appoint one for them.

Does the Right to Assistance of Counsel Extend to a Second Appeal?

Arriving at a second appeal means the defendant was denied during the first appeal. In many cases, the right to an attorney does not exist in a second appeal. However, it depends on the state.

The defendant may hire their own attorney to assist them in filing a second appeal even if they are not entitled to an attorney.

Do I Need the Assistance of Counsel in Filing an Appeal?

Filing appeals usually involves a question of law, the recent discovery of new evidence or finding out some serious unfairness about the trial process. As a result, filing a petition to appeal the conviction can be complicated. A criminal lawyer can help you determine the likelihood of your appeal, what grounds to file the appeal, and complete the paperwork for the appeal.

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 02-07-2018 04:04 PM PST

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