Right to Adequate Representation

The U.S. Supreme Court has ruled that both indigent defendants who are represented by appointed counsel and defendants who hire their own attorneys are entitled to adequate representation -- that is, to have a lawyer who does a reasonably good job at defending the defendant.

However, adequate representation is by no means perfect representation. Here are examples of claims that defendants have made to get their guilty verdicts thrown out but that appellate courts have rejected:

• the attorney failed to call favorable witnesses at trial
• the attorney failed to object to a judge's mistaken instructions to jurors concerning the burden of proof
• the attorney repeatedly advised a defendant who claimed innocence to plead guilty
• the attorney used cocaine during the time the representation took place, and
• the attorney represented the defendant while being suspended from the practice of law for failure to pay state bar dues.

On the other hand, circumstances can be sufficiently shocking to justify throwing out a guilty verdict based on an attorney's incompetence. Judges have ruled that the following claims justify a reversal of a guilty verdict:

• the attorney put a law student intern in charge of the defense and left the courtroom while the case was going on
• during closing arguments, the attorney acknowledged that the defendant was guilty of a lesser crime without first securing the defendant's approval of this tactic, and
• during voir dire (questioning of the jury), the attorney failed to challenge two potential jurors who said they would be bothered by the defendant's failure to testify.

Right Not to Be Placed in Double Jeopardy

Among the clauses of the Fifth Amendment is this well-known provision: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." This provision, known as the double jeopardy clause, protects defendants from harassment by preventing them from being put on trial more than once for the same offense. Double jeopardy problems are unusual, because prosecutors usually want to wrap up all their charges at one time in the same case.

One important exception to the rule against double jeopardy is that defendants can properly be charged for the same conduct by different sovereigns. For example, a defendant may face charges in both federal and state court for the same conduct if some aspects of that conduct violated federal laws while other elements ran afoul of the laws of the state.

Furthermore, the double jeopardy clause forbids more than one criminal prosecution growing out of the same conduct. A defendant can be brought once to criminal court (by the government) and once to civil court (by members of the public) for the same offense.

Buy it now! The Criminal Law Handbook: Know Your Rights, Survive the System by Attorney Paul Bergman & Attorney Sara J. Berman.

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