Lesson 4 Investigation Assignment

Lesson 4 Investigation Assignment

Isai Hosana Ake

Alvernia University

CJ 302: Judicial Process and Procedures

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Abstract

The paper presents summary and answers to the objectives listed at the beginning of chapters

seven and eight in the textbook: Procedures in the Justice System (11th ed.) by Robertson, C.,

Wallace, H. & Stuckey, G. (2016).

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The Development of the Right to Counsel

When a person is accused of crime, they can get a lawyer to help them out irrespective of

their financial or social status. This, as part of an important right to fair trials, is called the right

to counsel of the accused. It helps to check miscarriage of justice, police brutality, and illegal

arrests in the criminal justice system. In addition, the right to counsel is a serious and important

right since the decisions and statements made at the beginning of the investigation have huge

impacts on the outcomes of the investigation process hence the accused individuals required to

have access to a lawyer before the interrogations by the police proceed any further (Patry et al.,

2014). With the right to counsel, the lawyers help the accused persons to understand their rights

which include the right to remain silent.

The origins of the right to counsel for defendants who cannot afford to pay for their legal

services can be traced to events that happened more than 100 years ago. As the law increasingly

grew complex, it became apparent that ordinary individuals would require the assistance of

attorneys/lawyers to interpret the law, especially during proceedings. The defense lawyer was

required to look for any evidence that could exonerate his/her client from the charges labeled

against them. The need for an attorney was crucial for boosting the chances of winning a case.

Individuals who were able to afford legal aid, easily accessed help in interpreting the law, doing

the paper work and mapping out the important events in the course of a trial. However, those

who could not afford the legal services of a lawyer became increasingly disadvantaged as the law

became more complex to interpret.

The Test for Effective Assistance of Counsel

The Strickland v. Washington (1984) decision developed the two-part test for effective

assistance of counsel, which evaluates the constitutional sufficiency of a defendant’s legal

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representation. Evaluating whether the lawyer's performance was insufficient and fell short of the

objective level of rationality required of lawyers in criminal cases is the first step in the process.

Aspects including trial tactics, communication with the defendant, legal expertise, and general

professional competence are taken into account in this evaluation. The defendant needs to show a

reasonable probability that the outcome of the trial would have been different if there are no

mistakes by the attorney, a requirement to pass the second portion of the test, which assesses

whether the insufficient performance led to skepticism. In order for a defendant to prove

ineffective assistance of counsel, they must satisfy both components of the Strickland test. This

approach recognizes that although lawyers aren’t meant to be flawless, they nevertheless need to

help defendants in a fair and just manner by offering aid that is reasonably effective.

The Right to Effective Counsel

In 1853 during the Webb v. Baird, the Indiana Supreme Court identified the need for the

right to an attorney at the expense of the public for an impoverished defendant who was being

tried for criminal offences (Sonneborn, 2004). The right was awarded not as a constitutional law

but based on the principles that the society is civilized (Sonneborn, 2004, p. 34). The court stated

that the life of any citizen was not going to be put into jeopardy or his/her rights infringed due to

the mere fact that he/she is too poor to solicit for counsel aid. The Indiana Supreme Court further

stated that it was wrong for any court to proceed with such a trial. In conclusion, the court stated

that legal aid was essential for the accused and it was the duty of the court and the public to

ensure that such aid was provided. “The right to effective counsel typically entails that the

attorney engaged in zealous advocacy for the defendant. However, there are exceptions to what

attorneys may do for their defendants” (Cornell Law School, n.d.) The right to counsel was

thereafter captured in the sixth amendment of the US Constitution (1932) stating that “in all
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criminal trials, the accused shall enjoy the right to have the assistance of a Counsel for his/her

defense” (Sonneborn, 2004, p. 60).

Issues involved with Indigent Defendant

An indigent defendant is someone who’s incapable of getting a defense lawyer when he has been

accused of a crime that could land him in jail. The United States’ Constitution allowed all

accused individuals have the right to a defense lawyer, even if they cannot afford the legal fees.

If the court finds the person is indigent, a public defender will be assigned to provide their legal

defense. While a lawyer will always be offered to an indigent defendant, they can choose to

represent themselves instead. The requirements to be considered legally indigent vary by court,

but typically the person must have an income less than 125% of the federal poverty level and few

assets. The court will decide whether the defendant qualifies as indigent.

Difference between Appointed counsel and Retained counsel

Appointed counsel is provided by the court, especially in cases where a person is accused

of a crime and cannot afford to hire their own attorney. Retained counsel is hired by a client who

has the money to pay for legal services.

Functions of a Standby Counsel

Functions of a Standby Counsel

Standby counsel is an attorney who’s available to assist a defendant representing

themselves in a legal proceeding. A standby counsel is often hired when a defendant faces

complex legal issues, and is struggling with self-representation, or when the court believes that it

is necessary to ensure a fair trial and protect the defendant’s rights (Faber, 2018). Standby

counsel provides guidance and support while allowing the defendant to maintain control of their
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case (Hamilton, 2022). The role of standby counsel varies by jurisdiction, but it generally aims to

ensure a fair legal process while respecting the defendant’s right to self-representation.

Defendant’s Right to be Present at Trial

The 6th amendment gives the defendant the right to be present at felony trials. This right

is not absolute and the defendant can be removed for disruptive behavior after being warned by

the judge. Upon motion in a felony trial, the defendant can request that he/she not be tried in jail

clothes. This diminishes the presumption of innocence in the eyes of the jury (Benedeti, 2023).

Defendant’s Right of Confrontation

The right of confrontation means that a defendant has a right to cross-examine a witness

who testifies against them in a criminal trial or proceeding. “The right comes from the Sixth

Amendment's confrontation clause, which guarantees criminal defendants the opportunity to face

the prosecution’s witnesses in the case against them and dispute the witnesses’ testimonial

evidence” (Strom, 2023).

The Defendant’s Right to Self-Representation

The Court has ruled that, in addition to guaranteeing the right to retained or appointed

counsel, the Sixth Amendment also guarantees the right of a defendant to represent himself or

herself during a trial (Luban, 2018). If the defendant does not exercise his or her right to counsel

knowingly and intelligently, the trial judge may deny the defendant's ability to do so, for

example, if the defendant simply lacks the competence to make a knowing and intelligent waiver

of counsel, or if the defendant’s self-representation is so disruptive of orderly procedures that the

judge may order it to be curtailed. There is no constitutional right to self-representation on direct

appeal from a criminal conviction; instead, there is only a right to self-representation at the time

of trial.
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When the Right to Counsel Begins

The right to counsel begins/attaches upon the start of the investigation; when the

investigator starts to asks questions to elicit information from the accused.

Defendant’s Right to Pretrial Discovery

Pre-trial Discovery rights is the right by which someone charged with a crime can obtain

information from the prosecutor before they go to trial. Under the U.S. Constitution, a defendant

has a constitutional right to be provided with certain evidence by the prosecutor before the trial.

In addition, most courts require pretrial discovery rights where defendants are also required to

disclose some of their evidence to the prosecutor. Under the Constitution, the prosecutor is

required to disclose exculpatory evidence within its possession and control.

Various Motions that May be Made by A Counsel

A motion is an application to the court made by the prosecutor or defense attorney,

asking that the court decide on a specific issue before trial. The trial may be affected by the

motion, or else the courtroom, defendants, evidence or testimony. Motions’ outcomes only

depend on judges. Some motions that can be made include:

Motion to Dismiss - this is trying to get the judge to drop a charge or end the case. This might

occur where there is insufficient evidence, when alleged facts do not amount to a crime.

Motion to Suppress - it is an attempt to keep certain statements or evidence from being

introduced as evidence. For example, if police conducted a search without probable cause (in

violation of the Fourth Amendment), it may be possible to suppress any evidence they

discovered as a result of that search.

Motion for Change of Venue - this may be made for various reasons including pre-trial
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publicity. If the local news has covered the case extensively, it might become necessary to

relocate trial in order to protect defendant’s right to an impartial jury.

Importance of Evidentiary Motions

Evidentiary motions are motions related to evidence received or not received in a

criminal case (AMBEAU Law Firm, 2024). In some cases, there are many, and in others, none at

all. Evidentiary motions are important because they shape and mold the case for trial.

Reasons for Pretrial Conferences

Pretrial conferences are informal meetings between the court and the opposing counsel

where the counsel to the accused will discuss a plea deal with the prosecutor. If a deal is reached,

the prosecutor will recommend the sentence to the judge. If the judge agrees with it, the case

goes to the sentencing phase, and skips the preliminary hearing and trial.

The Rationale behind the requirement to provide notice of an alibi defense

The rationale behind the requirement to provide notice of an alibi defense is to give an

advance notice to the prosecution to evaluate whether it is still worth bringing the case to trial.

This is often done as written notice to the prosecution that you intend to raise an alibi as a

defense and any evidence or witnesses to support the defense.

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References

AMBEAU Law Firm. (2024). Pre-Trial Evidence and Motions. AMBEAU Law.

Benedeti, B. M. (2023). The influence of the media on the principle of the presumption of

innocence in the jury trial. Seven Editora.

Cornell Law School. (n.d.). Right to counsel. LII / Legal Information Institute.

https://www.law.cornell.edu/wex/right_to_counsel#

Faber, S. R. (2018). Competency, Counsel, and Criminal Defendants’ Inability to

Participate. Duke Law Journal, 1219-1260.

Hamilton, N. (2022). The Right to Decide an Attorney Is Wrong: The Extent of a Defendant's

Right to Control the Objective of the Defense and Reject Counsel's Trial Strategy. Baylor

L. Rev., 74, 285.

Law. https://www.ambeaulaw.com/about-ambeau-law/pre-trial-evidence

Luban, D. (2018). Self-Representation, Access to Justice, and the Quality of Counsel: A

Comment on Rabeea Assy's Injustice in Person: The Right of Self-Representation.

Jerusalem Review of Legal Studies, 17(1), 46-63.

Patry, M. W., Smith, S. M., & Adams, N. M. (2014). Recent Supreme Court of Canada rulings

on criminal defendants' right to counsel. Psychology, crime & law,20(8), 741- 755.

Sonneborn, L. (2004). The War of 1812: a primary source history of America's second war with

Britain. New York, Rosen Central Primary Source.

Strickland v. Washington, 466 U.S. 668 (1984)

Strom, S. (2023, November 19). The Sixth Amendment's Confrontation Clause.

FindLaw. https://www.findlaw.com/criminal/criminal-rights/the-6th-amendment-s-

confrontation-clause.html