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RUNNING HEAD: Criminal Law Foundations

Criminal Law Foundations
Steven Griffiths
CJA484
Nicholas Barbella
1/13/2014









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Your Right to Counsel
According to the Constitution of the United States of America; the Sixth Amendment holds, in
part that all criminal prosecutions, the accused shall enjoy the right, to have the assistance of counsel for
his defense. It is this specific clause that grants the right to all defendants their right to have an attorney
from the exact moment that they are taken into custody of any law enforcement agency. Certain rulings of
the United States Supreme Court have also shaped this specific Right to Counsel clause, meaning that an
individual who is improvised or indigent, has this Constitutional right to the representation of an attorney
provided by the court, at critical stages in the persons criminal proceedings. These stages include (but are
not limited) to: arraignment, trial, sentencing, preliminary hearings, lineups, post-indictment custodial
interrogation, and the appealing of the first conviction. Let us step back a little bit and look where the
Right to Counsel Clause came from. In the beginning is was formed as a reaction against the Old English
practice of depriving the assistance of a legal aid in serious criminal cases , and made the defendants
appear in front of the judge, in court to represent themselves in only their own words. The 1586 trial of
Mary Stuart, Queen of Scots, illustrates the harshness of denying the assistance of counsel in a criminal
case. Queen Mary was charged with Treason for allegedly conspiring to assassinate Queen Elizabeth I.
Mary asked for the assistance of counsel, Pleading that "the laws and statutes of England are to me most
unknown; I am destitute of counsellors and no man dareth step forth to be my advocate" (Winick 1989,
787). Even after hearing this, her requests were still denied and Mary was convicted, and executed.
Framers of the United States Constitution had considered the lack of legal representation absurd
compared to the basic principles of the still young criminal justice system.
When you are granted legal counsel by the court system, a lawyer is assigned to you and your
specific case, who will act on your behalf in all aspects of your criminal proceedings. There are also three
triggering events that will attach a right to counsel to an individual: (1) entry or retaining of counsel on
the matter; (2) commencement of a criminal prosecution of the matter; (3) request for counsel or
invocation of the right to counsel concerning the matter while held in custody. When the persons right to
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counsel does meet the requirements to be attached according to one of the 3 rules, any and all statements
that are deliberately elicited from the individual by law enforcement without their legal counsel present
are then subject to suppression and any and all consents to search that were obtained without counsel
present is also invalid. In the state of New York the right to counsel attaches to any matter on any of these
three triggering events: (1) Request for counsel while in custody; (2) Commencement of criminal
prosecution on the matter (usually commences by filing of accusatory instrument); (3) Entry or retaining
of counsel on the matter. (Counsel 1963) Notably, the Court of Appeals has also held recently that where
a criminal defendant is being held and is represented by counsel in an earlier Family Court matter that teh
indelible right ot counsel does not attach by virtue of an attorney-client relationship in a Family Court or
other Civil proceeding. People v. Lewie 2011 NY Slip Op 04766. In Lewie the Court of Appeals cited
People v. Bing stating that while an attorney-client relationship formed in one criminal matter may
sometimes bar questioning in another matter in the absence of counsel, a relationship formed in a civil
matter is not entitled to the same deference. (Holistic 2005)
According to Klaus 1997: The demands of courtroom discourse on a person's linguistic resources differ
vastly from those of the environment in which many people in this country have become bilingual. In a
typical family, whether immigrant or not, members usually don't discuss "indictments," "waivers,"
"felonies" or "conspiracies." Yet these are common terms in court discourse. Individuals may learn these
terms in school, but only in English. This poses another problem, can one simply just have their rights
waived because there is no means for them to know what is going on with their case. Also, interpreters
are not always able to ask questions in order to clarify the question to the person who does not speak
English. If witnesses use a specific word, and it cannot be translated to the intended meaning, clarification
may be needed to insure proper accuracy. Accents are another problem, and represent a superficial
bounce back of a certain level of mastery in any given foreign language. If the interpreters accent is
perfect English, it can very well get in the way of the intended comprehension, and thus becomes a
problem. However, those interpreters who are very good, still have slight accents for the simple reason
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that they learned English as a teenager, or even as a young adult; in this case they could very well have an
excellent grasp on the language. For every type of crime committed there is an individual behind the
action that has made a conscious choice to break the law, and accept the consequences of their actions.
Juvenile programs aimed at preventing crime from happening, and providing counseling for youth
offenders to help cope with their individual situations are nothing new. The programs have been
implemented by individual state, city or county officials, and staffed by either paid or volunteer
associates. According to the Kootenai County Juvenile Diversion Program: The Diversion Program is a
voluntary alternative to the formal court process for most first time offending youth. Those referred to the
program have committed a law violation and a police report has been submitted to the Prosecuting
Attorney's Office. Those cases meeting certain criteria are "diverted" to the Youth Accountability Board.
The Board is comprised of community volunteers trained to meet the youths and prepare written
Diversion Agreements. The Kootenai County program offers a variety of efficient and cost effective
programs to help the individual offender. The most common program is community service, where the
sentenced offender spends a determined amount of time serving in their community and even in their
specific neighborhood. Another program they offer is a shoplifting awareness program that focuses on the
effects of shoplifting on the community as well as the overall economy. Diversion is a voluntary program
that offers juveniles an opportunity to resolve a filed police report without appearing in court. If a
juvenile is referred to the Diversion Program by the Prosecuting Attorney, s/he will meet with a Diversion
Probation Officer to review their pending police report, their rights, and expectations of the Diversion
Program. If a juvenile agrees to participate, a social history interview will be conducted, and the
Diversion Officer will develop a contract for the juvenile and parent that may include a Diversion fee,
community service, reparation to victims, letters of apology, and applicable groups. The contract
encompasses aspects of accountability (holding the juvenile responsible to the victim and the community
for his/her offense) and competency development. The juvenile is given more information and skills
about the law, making better choices, and saying no to peer pressure. The typical contract length is 90
days; however, a juvenile may complete the program sooner if all contractual terms are met. Alternately,
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the contract may be extended if more time or services are needed to complete contract terms. It provides
an in depth look at the consequences on the offender as well as the store owner and the consumers that
frequent the establishment. ("Ada County Juvenile Diversion Programs", 2012, para 6-7). These two
programs are both great at what they are meant to accomplish, they help the offender understand the
coming implications of their crime and they get to be a part of the community who wants them to
understand that there are always alternatives to whatever reason they feel a need to steal, vandalize, burn,
or assault. Understanding the causes of juvenile delinquency is an integral part of preventing a young
person from involvement in inappropriate, harmful and illegal conduct. Four primary risk factors can
identify young people inclined to delinquent activities: individual, family, mental health and substance
abuse. Often, a juvenile is exposed to risk factors in more than one of these classifications. The main
participant pool for juvenile diversion programs are those who are most at risk of becoming a multiple
offender both in the juvenile system as well as the adult system later on in life. Also, the key participant in
these programs is the first time offender, who, without these types of programs would not ever know the
domino effect of their actions later in their lives. The best of the two programs at reducing juvenile crime
is going to be a program like the shoplifting prevention program. If the youth offender has a better idea at
who they are hurting (and they actually care) they might think twice before they take money out of their
parents pockets, or even the parents of their friends pockets. Giving them a clear understanding of the
path of their actions might persuade them to be more productive in society rather than a burden to society.

References
Beaney, William M. (1963). "The Right to Counsel: Past, Present, and Future". Virginia Law Review
(Virginia Law Review) 49 (6): 11501159 [p. 1153]. doi:10.2307/1071050. JSTOR 1071050.
McGregor Smyth, "Holistic is Not a Bad Word: A Criminal Defense Attorney's Guide to Using Invisible
Punishments as an Advocacy Strategy" University of Toledo Law Review, Volume 36 (Spring 2005)
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References
Klaus, H. (1997). Court Interpreting: Complexities and Misunderstandings. Retrieved from
http://justice.uaa.alaska.edu/forum/13/4winter1997/a_interp.html