The Sixth Amendment allows people to hire a lawyer to represent them in criminal cases. But this provision is somewhat vague. It states that defendants must have “the Assistance of Counsel.1

That phrase could mean attorneys must be available for informal consultations. One lawyer must aggressively represent one defendant throughout the process or between. As outlined below, a series of court cases have fleshed out this language and made it more specific.

The criminal law process usually starts with jail release and ends when the defendant’s jail term or period of court supervision ends. In a few cases, the need for a Rochester criminal defense lawyer continues further to criminal record sealing.

Pseudo-Criminal Proceedings

The criminal law process also includes administrative hearings and immigration hearings. The right to counsel varies since the Sixth Amendment doesn’t technically apply.

Administrative hearings are common in DUI and drug cases. An administrative law judge can suspend driver’s licenses following DUI arrests. Prosecutors must convince ALJs that these defendants refused a lawful request to provide a breath or blood sample. Drug cases, especially drug trafficking cases, often involve forfeiture hearings. Authorities can confiscate property, such as money, cars, or houses, which they believe is connected with illegal activity.

Although the law is unclear, the Sixth Amendment right to counsel usually doesn’t apply in these hearings. Nevertheless, ALJs must give these individuals a chance to hire lawyers, and they cannot place any additional limits on a Rochester criminal defense lawyer’s activity.

As for immigration hearings, in 1984, the Supreme Court ruled that these matters are civil hearings, which means the Sixth Amendment doesn’t apply. A limited right to counsel applies in removal proceedings, but no court-appointed lawyers or public defenders are available.

Choice of a Lawyer in Criminal Court

The Supreme Court ruled that felony defendants in state and federal court had an absolute right to counsel in 1963. In 1972, the Supreme Court extended this right to misdemeanors and any other matter that may entail “the actual deprivation of a person’s liberty.”

Individual judges usually have the power to determine if a defendant is indigent and therefore needs a public defender or a court-appointed lawyer. Some judges only require a verbal “I can’t afford a lawyer” affirmation. Others require detailed financial affidavits.

In most cases, a court cannot limit a defendant’s choice of a private attorney. For example, police officers cannot seize so much property that a defendant cannot afford to hire a lawyer of their choice.2 However, a judge can intervene if a lawyer and a client have a significant conflict of interest, such as parents who hire a Rochester criminal defense lawyer to represent their child.3

Courts have also ruled that the right to counsel occurs when the state files formal charging documents. This cutoff means defendants are without counsel at specific critical points of a criminal matter, such as the decision to provide or not provide a chemical sample in the DUI, as mentioned in earlier cases.

Ineffective Assistance or Denial of Counsel

The official test for ineffective assistance of counsel is that an attorney’s performance “fell below an objective standard of reasonableness.” Additionally, defendants must show this misconduct was prejudicial to the case.

As a practical matter, most courts use the glass mirror test. If the judge placed a glass mirror under the lawyer’s nose, and the mirror fogged up, the defendant had the practical assistance of counsel. In one famous case, a court ruled that even though the lawyer slept through much of the trial, the defendant had valuable aid from counsel.4

Courts treat the denial of counsel much differently. The rejection of this right, or even the limitation of it, could be grounds for reversal, even if the denial or restriction didn’t materially affect the outcome of the case.

There’s a big difference between a criminal arrest and a criminal conviction. Contact the Law Office of Frank Ciardi for a free consultation with an experienced Rochester criminal attorney. We routinely handle matters in Monroe County and nearby jurisdictions.







The information in this blog is provided for general informational purposes only and should not be used as a substitute for legal counsel on any subject matter.

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