When Does The Right to Counsel Begin?

The Right To Counsel

The Sixth Amendment to the United States Constitution, as well as its New Jersey analogue, Article I, paragraph 10, guarantee an accused the right to counsel. This right to counsel presupposes reasonable, effective and adequate assistance of counsel. Kimmelman v. Morrison, 477 U.S. 365, 377 (1986); Strickland v. Washington, 466 U.S. 668, 687 (1984); Gideon v. Wainwright, 372 U.S. 335, 340 (1963); State v. Fritz, 105 N.J. 42, 58 (1987); State v. Mingo, 77 N.J. 576, 581 (1978). See also State v. Buonadonna, 122 N.J. 22, 24 (1991). The purpose of the right to counsel clauses of the Sixth Amendment and New Jersey Constitution is to enable a defendant to confront the prosecution and to ensure the integrity of the judicial process. State v. Sanchez, 129 N.J. 261, 265 (1992).

Pursuant to RPC 1.2, an attorney must confer with his or her client “as to a plea to be entered, whether to waive jury trial and whether the client will testify.” Further, RPC 1.4(b) requires an attorney to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

The Right To Adequate Representation

The right to adequate representation does not imply an absolute right to any particular counsel, but only the fair opportunity to consult with and secure competent counsel. Wheat  v. United States, 486 U.S. 153, 159 (1988); State v. Crifasi, 128 N.J. 499, 517 (1992), State v. Rivera, 232 N.J. Super. 165, 177 (App. Div.), certify. denied, 117 N.J. 169 (1989). Defendants who are indigent are entitled to be represented at public expense by assigned counsel or the Public Defender’s office, pursuant to N.J.S.A. 2A:158A-16 and 17 and R. 3:4-2. See Rodriguez v. Rosenblatt, 58 N.J. 281, 285 (1971); State v. Rush, 46 N.J. 399, 403-04, 415 (1966); State v. Horton, 34 N.J. 518, 522-523 (1961). In Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002), the United States Supreme Court ruled that under the Sixth Amendment, judges may not impose suspended sentences, even in minor misdemeanor cases, if the State fails to provide defense counsel at trial. The Shelton case may result in more frequent resort by the States to forms of pretrial probation, such as those utilized in New Jersey, pretrial intervention or conditional discharges. (See Chapter II.E.) However, the State is not required to pay for counsel of choice at the public’s expense. Matter of Cannady, 126 N.J. 486, 495 (1991); State v. Stockling, 160 N.J. Super. 486, 489 (App. Div. 1978).

Contact our criminal law firm today, for a free initial consultation, call us today at (908) 561-5577 or contact us online.  Your initial consultation is free.

Share