Assistance of Counsel in a Criminal Appeal

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 What Does Assistance Of Counsel Mean?

The moment that a person is arrested and charged with a crime, they become a criminal defendant. Criminal defendants have rights that begin at that very first moment when they are arrested. These rights allowed by the United States Constitution, as well as statutes, provide information in terms of how the government investigates, prosecutes and punishes criminal behavior.

The Sixth Amendment is what guarantees every criminal defendant the right to an attorney; the defendant has the right to an attorney under their Miranda rights during pre-trial. The purpose of this guarantee is to increase the fairness and likelihood of justice being served in a criminal system that places individuals and the government in adversarial positions.

An accused defendant has the right to be assisted and represented by either a retained or appointed attorney, who will make decisions about defense strategies without interference from the government. The Sixth Amendment right to assistance of counsel requires that the defendant have an attorney who represents them to the best of their ability to create a fair trial.

The right to an attorney also provides that a defendant who declines the services of an attorney may choose to represent themselves. However, it is important to note that this right does not mean that a defendant who can afford a private attorney is entitled to a free lawyer from the government, also known as a public defender lawyer.

Defendants who choose to represent themselves must knowingly and voluntarily waive their right to counsel. However, they may be appointed a lawyer to represent them if they do not have the mental capacity to represent themselves.

Does The Right To Assistance Of Counsel Extend To The Appeals Process? What Is The Difference Between Appeal As Of Right vs. Discretionary Appeal?

Defendants have the right to an appeal after being found guilty or convicted by the trial court. In general, higher courts consider the trial proceeding in order to determine whether some error of law occurred; meaning, appellate courts very rarely consider the facts of the case.

Grounds for an appeal may include discovering new evidence that did not exist at the time of trial. Because the Constitution requires that the defendant receive a fair trial, discovering some unfairness such as the prosecutor withholding evidence may give the defendant a chance at a new trial.

Additionally, criminal defendants have the right to assistance of counsel when filing their first appeal to a higher court. If the court grants a hearing, the defendant is also entitled to an attorney during that process. To reiterate, if the defendant cannot afford an attorney, the government must appoint one for them. The first appeal state is sometimes referred to as the “appeal as a matter of right.”

Not all appeals are mandatory. An appellate court may hear any appeal from a trial court’s decision in almost every state. The attorney for the defendant, who is now called the “appellant,” files a notice of appeal which begins the appeal process.

A discretionary appeal generally follows the first appeal, with the petitioner sending their request to the state’s highest court. A state’s Supreme Court is the highest court in most states. Litigants do not have the legal right to a discretionary appeal; what this means is that both the highest court in a state as well as the U.S. Supreme Court have discretion whether to hear a case or simply deny the appeal. It is imperative to remember that there is no right to the assistance of counsel in situations such as these.

An example of this would be appealing a criminal conviction in Missouri. Your first appeal “as of right” would be sent to the Missouri Court of Appeals. You’d be entitled to have the court hear your appeal, as well as the assistance of legal counsel. If your appeal is denied after a hearing, you have the possibility of petitioning the Missouri Supreme Court; however, it would be a discretionary appeal, and you would not be entitled to the right of assistance of counsel. However, you could hire a criminal defense attorney to assist you in the appeals process.

Arriving at a second appeal means the defendant was denied during the first appeal. Under most circumstances, the right to an attorney does not exist in a second appeal; however, this largely depends on the state. To reiterate, the defendant may hire their own attorney to assist them in filing a second appeal, even if they are not entitled to an attorney.

What Is Ineffective Assistance Of Counsel? What Is Self Representation?

To further clarify, the constitutional right to counsel includes the right to effective counsel. A formal appointment does not satisfy the Sixth Amendment’s constitutional guarantee. This means criminal defendants are entitled to competent representation, not simply representation in general.

A defendant may obtain relief for ineffective assistance of counsel if they can prove that their counsel fell below an objective standard of reasonableness. They would also need to prove that the proceeding would have gone differently but for the attorney’s insufficient performance.

The probability that the proceeding would have had a different outcome if not for the errors made by the attorney must be significant enough to undermine the judge’s confidence in the outcome of the case, and the fairness of the trial. Unreasonable and unprofessional errors that are made by a defense attorney will not overturn a conviction or death sentence, unless they caused the conviction or sentence.

Additionally, a defendant who pleads guilty must show that but for their counsel’s deficient performance, they would not have pleaded guilty. Most attorney errors, even when unreasonable, are not considered to be ineffective assistance of counsel.

What Is Self Representation?

A criminal defendant has the right to represent themselves, unless a court rules that they are incompetent to waive the right to counsel. In such cases, the court can require a defendant to be represented by counsel. It is possible for a criminal defendant to be simultaneously competent to stand trial and yet not competent enough to represent themselves. As such, a state may require that an otherwise competent criminal defendant proceed to trial with the assistance of counsel.

The standard for competency to stand trial is largely based on the assumption that a defendant will have a lawyer assist them at trial. This is because trial courts are generally interested in:

  • Preserving the courtroom;
  • Promoting the orderly presentation of evidence;
  • Questioning witnesses; and
  • The advancement of legal arguments.

The constitutional right to meaningful access to courts can be satisfied either by counsel, or access to legal materials. Similar to the right to assistance of counsel during preliminary hearings and trial, the government appoints an attorney for any criminal defendant who cannot afford a lawyer for a first appeal. For any subsequent appeals, the person must generally hire their own attorney.

However, public interest or civil rights groups frequently represent convicted persons for free at later appeal in many states. Additionally, some private criminal attorneys offer free case evaluations.

Do I Need Assistance Of Counsel In A Criminal Appeal?

Filing a petition to appeal a conviction can be considerably complicated. As such, a criminal lawyer in your state can help you determine the likelihood of your appeal and what grounds to file the appeal. An attorney will also be able to represent you in court, as needed.


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