Criminal Law and Procedure

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Boston College Law School




Effective assistance of counsel. Massachusetts has been in the forefront of the nation in providing indigent defendants the right to the appointment of counsel in criminal cases. The Supreme Judicial Court adopted its Rule 3:10, guaranteeing counsel to all indigent defendants charged with a crime punishable by imprisonment in 1967, well before the United States Supreme Court ruled in Argersinger v. Hamlin' that, absent a valid waiver, no defendant may be imprisoned unless represented by an attorney. The procedural aspects of the right to an attorney, involving the question of at what stages of the proceedings an appointment must be made, present far easier issues than does the question of defining the substantive content of the right to counsel. The mere presence of an attorney is not sufficient to satisfy the essence of the right to counsel as it is guaranteed by the Sixth Amendment of the United States Constitution and Article XII of the Declaration of Rights for the Commonwealth. For example, in Avery v. Alabama5 the Supreme Court stated: [T]he denial of opportunity for appointed counsel to confer, to consult with the accused and to prepare his defense, could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution's requirement that an accused be given the assistance of counsel. The Constitution's guarantee of assistance of counsel cannot be satisfied by mere formal appointment.

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