The Right to Counsel: Attachment Before Criminal Judicial Proceedings?

U.S. 478 (1964), which held that, once the investigation had "focused" on the accused, an interrogation conducted in the absence of counsel was a violation of the right to counsel.Id. at 490-91; see Miranda v. Arizona, 384 U.S. at 444 n.4.Although ostensibly decided under the sixth amendment, Escoobedo has been viewed as guaranteeing the fifth amendment privilege against self-incrimination.E.g., Johnson v. New Jersey, 384 U.S. 719, 729 (1966); Eisen & Rosett, Protections for the Suspect Under Miranda v. Arizona, 67 Colum.L. Rev. 645, 665 (1967); Note, The Pretrial Right to Counsel, 26 Stan.L. Rev. 399, 402-03 (1974) [hereinafter cited as The Pretrial Right].4. 384 U.S. at 444. Id.(footnote omitted).The Court stated, however, that the defendant could make a knowing and intelligent waiver of his right.Id.6.The sixth amendment provides in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him. . .and to have the Assistance of Counsel for his defence."U.S. Const.amend.rl.The constitutional guarantee of counsel was intended to overrule English common law.Originally, the right to counsel in England was limited to misdemeanors and only one felony, treason.Even in those instances when the accused was entitled to counsel, the attorney was permitted to advise only on "matters of law," not on "matters of fact."See W. Beaney, The Right to Counsel in American Courts 8-14 (1955).A defendant may challenge an alleged violation of his sixth amendment right to counsel in a number of ways.He may move for a new trial within seven days of the finding of guilt.Fed.R. Crim.P. 33.Second, he may make a motion in arrest of judgment, asserting that the trial court lost jurisdiction by denying the defendant a basic constitutional right.Fed.R. Crim.P. 34.If the time for appeal has lapsed, the defendant may ask for a writ of comm nobis.This writ asks the trial judge to correct judgment because of the discovery of material facts not known earlier.United States v. Steese, 144 F.2d 439, 442-47 (1944) (Biggs, J., concurring in part and dissenting in part).This is generally of little help, since the judge is aware of the facts surrounding the absence of counsel.Fourth, the defendant may move to correct or set aside the sentence "upon the ground that the sentence was imposed in violation of the Constitution."28 U.S.C. § 2255 (1976).This motion is a combination of traditional habeas corpus and coram nobis relief, addressed to the trial court at any time after conviction.To limit its abuse, it must precede a habeas corpus proceeding, the petitioner need not be at the hearing, and the motion need only be heard once.Id.Of course, the defendant may file a direct appeal, but if that fails, the most common means of collateral attack is the writ of habeas corpus, in which the defendant shows how and why he is retained illegally.Id. § § 2241-2242.The scope of review is limited to the trial court's alleged lack of jurisdiction because of an unconstitutional or otherwise unlawful act.See Johnson v. Zerbst, 304 U.S. 458, 466-68 (1938).7. 388 U.S. 218 (1967).8. Id. at 227. 9. 406 U.S. 682 (1972).The Kirby decision was a plurality opinion, with four Justices dissenting and Justice Powell writing a separate concurring opinion.