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Right to Counsel (Trial)


Background

Assistance of counsel is the cornerstone of a defendant's constitutional right to counsel.

Both the U.S. Constitution and the New York State Constitution have provisions guaranteeing a defendant the right to representation. U.S. Const. Amend. VI, N.Y. Const., art. I, Section 6. See also, Gideon v. Wainwright, 372. U.S. 335 (1963), People v. Linares, 2 N.Y.3d 507 (2004).

Article I, Section 6 of the New York Constitution provides in pertinent part, "In any trial in any court whatever the party accused shall be allowed to appear and defendant in person and with counsel." This constitutional mandate "extends well beyond the right to counsel afforded by the Sixth Amendment of the United States Constitution and other State Constitutions." People v. Davis, 75 N.Y.2d 517, 521 (1990).

"[T]he right to assistance of counsel is an essential ingredient in our system of criminal jurisprudence, rooted deeply in our concept of a fair trial within the adversarial context." People v. Felder, 47 N.Y.2d 287, 295-296 (1979). Thus, in absence of waiver by the defendant, effective assistance of counsel requires the presence of a licensed attorney-at law. Id. at 293.

In Felder, the court held that representation by a person masquerading as an attorney constituted a per se violation of his constitutional right to assistance of counsel.

Ineffective Assistance of Counsel

In Strickland v. Washington,466 U.S. 668 (1984), the United States Supreme Court held that for a defendant to make out a claim of ineffective assistance of counsel, the defendant must show that 1) counsel's performance was deficient in that it fell below an objective standard of reasonableness and 2) that counsel's deficiencies so prejudiced his case so as to render the outcome of his trial unreliable and therefore unfair.

Per se Ineffective Assistance of Counsel

In the United States, the right to counsel may be strictly construed. If a client is unknowingly represented by an individual masquerading as an attorney, he will have a claim of per se ineffective assistance of counsel. In a per se case, the court should not apply harmless error analysis. The mere fact that the defendant was not represented by an attorney can result in remand for a new trial. "[T]he right to assistance of counsel is an essential ingredient in our system of criminal jurisprudence, rooted deeply in our concept of a fair trial within the adversarial context." People v. Felder, 47 N.Y.2d 287, 295-296 (1979). Thus, in absence of waiver by the defendant, effective assistance of counsel requires the presence of a licensed attorney-at law. In Felder, the court held that representation by a person masquerading as an attorney constituted a per se violation of his constitutional right to assistance of counsel.

Other jurisdictions have held similarly.



See Rights of the Accused