About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

45 Wm. & Mary L. Rev. 783 (2003-2004)
Critical Stage: Extending the Right to Counsel to the Motion for New Trial Phase

handle is hein.journals/wmlr45 and id is 797 raw text is: CRITICAL STAGE: EXTENDING THE RIGHT TO COUNSEL
Only in relatively recent times has the right to counsel for
criminal defendants expanded to the level that we now take for
granted; namely, that any indigent defendant facing prosecution for
a crime has the right to free, effective assistance of counsel for his
defense.' This development in Sixth Amendment jurisprudence,
however, has not come without its share of ambiguity.
The current confusion over the reach of the Supreme Court's
Sixth Amendment right to counsel doctrine2 as it applies to
criminal defendants in the post-trial setting has resulted in a split
of authority at the circuit court level.3 The gravamen of the split is
whether the period for filing a motion for new trial is a critical
1. For a good overview of this history and the transition to the current constitutional
framework for the Sixth Amendment's right to counsel, see ROBERT HERMANN ET AL.,
2. U.S. CONST. amend. VI (In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial ... and to have the Assistance of Counsel for his defence.)
(emphasis added); see also Pennsylvania v. Finley, 481 U.S. 551 (1987) (holding that the right
to counsel does not extend to discretionary appeals); Argersinger v. Hamlin, 407 U.S. 25
(1972) (holding that the Sixth Amendment right to appointed counsel extends to
misdemeanor prosecutions); Douglas v. California, 372 U.S. 353 (1963) (holding that the
Equal Protection Clause of the Fourteeenth Amendment mandated extension of the right to
counsel to all appeals of right); Gideon v. Wainwright, 372 U.S. 335 (1963) (holding that the
Sixth Amendment right to counsel is made obligatory on the states by the Fourteenth
Amendment); Johnson v. Zerbst, 304 U.S. 458 (1938) (holding that indigent defendants have
a Sixth Amendment right to counsel for all serious cases in federal courts).
3. Compare United States v. Tajeddini, 945 F.2d 458, 470 (1st Cir. 1991) (per curiam),
overruled on other grounds by Roe v. Flores-Ortega, 528 U.S. 470 (2000), United States v.
Lee, 513 F.2d 423,424 (D.C. Cir. 1975) (per curiam), and United States v. Birrell, 482 F.2d
890, 892 (2d Cir. 1973) (per curiam) (holding that criminal defendants do not have a right to
counsel for post-appeal motions for a new trial), with Kitchen v. United States, 227 F.3d
1014, 1018-19 (7th Cir. 2000) (per curiam), Robinson v. Norris, 60 F.3d 457, 459-60 (8th Cir.
1995), and Menefield v. Borg, 881 F.2d 696, 699 (9th Cir. 1989) (holding, on particular facts,
that the motion for new trial phase is a critical stage of the prosecution to which the right
to counsel attaches).


What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most