THE RIGHT TO EFFECTIVE COUNSEL

Today’s we review the accused’s constitutional right to the effective assistance of counsel. This not only encompasses the right to have counsel — but also to have competent legal representation, regardless of whether you hire your lawyer or your lawyer is appointed by the court.  The right to effective assistance of counsel applies at trial as well as to the plea bargain process. The right to effective counsel comes from the Sixth Amendment which specifically states that: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. One of the seminal cases is Strickland v. Washington, 466 U.S. 668 (1984). This case affirmed that the right to effective counsel exists and is needed to protect an individual’s fundamental right to a fair trial. In Strickland the Supreme Court was asked to determine whether in the death penalty phase the criminal defendant had received effective assistance of counsel. The Supreme Court established a two part test for an ineffective assistance of counsel claim. To be successful on an ineffective assistance of counsel appeal, the defendant must establish the following: That the attorney’s actions and/or inactions fell below an objective standard of reasonableness; and That but for the attorney’ ineffective...

¿CÓMO PROTEGER TUS DERECHOS CONSTITUCIONALES?

La 4ta Enmienda de la Constitución de los Estados Unidos nos da uno de los derechos individuales más valiosos. Específicamente nos da el derecho de estar seguros en nuestros hogares. También nos protege de inspecciones y embargos no razonables. Sin embargo, porque estos derechos son personales- sólo usted puedes hacerlos valer. Y si usted no los hace valer, nadie los va a hacer valer por usted. De hecho, se considera que usted renuncia a sus derechos cuando no los reclama o hace valer personalmente. Además, con muy pocas excepciones el gobierno no tiene la obligación de explicarle sus derechos antes de preguntarle que haga algo que implicaría la renuncia a éstos derechos. Como la 4ta enmienda de la Constitución es una de los derechos fundamentales de la libertad individual en nuestra sociedad, un pequeño repaso a su historia es educativo. Los fundadores de Estados Unidos generalmente coincidían que todas las persona tenia el derecho natural de ser libres de la intrusión del gobierno en sus hogares. De hecho, una de las injusticias más grandes que llevaron a la Revolución Americana fue el uso los “mandatos de ayuda” por el gobierno Inglés. Con un “mandato de ayuda,” los representantes del Rey podían entrar a su propiedad sin previo aviso y sin ninguna razón en particular. Un caso famoso de esa época es el de un abogado de Boston, James Otis, quien representaba un grupo de comerciantes que demandaron al gobierno Inglés, alegando que el uso del “mandato de ayuda” era injusto. Aunque el Sr. Otis perdió el caso, su argumento condenando los “mandatos de ayuda” y las ordenes de inspecciones...

CHILD CUSTODY AND ADULTERY

In all child custody cases, judges are tasked with figuring out what custody arrangement is in the best interests of the child. In making this determination, Mississippi judges are required to look at 11 factors (known as the Albright factors). When considering evidence of sexual misconduct and adultery, the Mississippi Supreme Court (in the case of Borden vs. Borden) has reaffirmed that “[d]eterminations of child custody, however, are not an opportunity to punish a parent for misconduct.” In this case the Mississippi Supreme Court found, among other things, that the judge gave undue weight to the evidence of sexual misconduct by the mother when it awarded custody to the husband. Specifically, the trial judge found that evidence that the mother sent sexual communications, went out of town and partied with men, and met a man at a hotel could not be used to support the conclusion that the moral fitness, parenting skills and stable home environment favored the husband. In reversing the judge’s decision to award the father custody, the Mississippi Supreme Court reiterated that while evidence of adultery by one parent does weigh on that parent’s moral fitness, the same evidence could not be used as a basis for findings on other Albright factors. This decision serves as a reminder in custody disputes to present specific evidence on each of the Albright factors as opposed to simply relying on marital...

THE RIGHT TO REMAIN SILENT

In our experience, local police and law enforcement officers can usually be counted on to act fairly and professionally when interacting with members of the public. Nevertheless, it is still important for you to understand your rights. So today we want to revisit one of the most important constitutional rights that we all share — the right to remain silent. In the United States, the right to remain silent comes from that part of the Fifth Amendment which says that no person “shall be compelled in any criminal case to be a witness against himself.” This is also known as your right against self-incrimination. These rights are communicated wtih the familiar words used by law enforcement: You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? These five sentences together are known as a Miranda Warning. They are the result of the decision by the United States Supreme Court in the case of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966). As a result of the Miranda decision, law enforcement officials must specifically advise anyone taken into custody of the right to remain silent and the right to have an attorney. It is important for you to remember that while you have a right to remain silent, it has to be asserted by you or it will be waived. You affirmatively assert your right to...

WARRANTLESS COLLECTION OF DNA — MARYLAND V. KING, 133 S.CT. 1958 (2013)

Photo by Mica Baldwin (some rights reserved) Today we are reviewing the standards for warrantless searches. This involves revisiting an important criminal law case from a few years ago known as Maryland v. King, 133 S.Ct. 1958 (2013). In Maryland v. King, the United States Supreme Court was asked to decide if the Constitution prevented the routine collection of DNA from someone who is arrested. The challenge to collecting DNA without a warrant was based on the Fourth Amendment. As a refresher, the Fourth Amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The Fourth Amendment protects each of us from unreasonable searches and seizures by the government and stands as one of the pinnacles of privacy law by restricting government conduct. The facts in Maryland v. King were rather simple. In 2003 a woman was raped. She reported the attack and a underwent a rape exam. A sample of the unknown perpetrator’s DNA was obtained and entered into a Maryland DNA database. Six years later, Mr. King, was arrested on unrelated assault charges. After his arrest, a routine warrantless DNA sample was taken by means of a cheek swab. Mr. King’s DNA sample was run through the Maryland DNA database and matched the sample from the 2003 rape exam. Charges were then brought against Mr. King for the 2003 crime. Mr....