ASSURING THE RIGHT TO AN ADEQUATELY PREPARED DEFENSE

• NCJ Number: 18125
• Journal: Journal of Criminal Law and Criminology Volume: 65 Issue: 3 Dated: (SEPTEMBER 1974) Pages: 302-314
• Author(s): ANON
• Date Published: 1974
• Length: 13 pages
• Corporate Author: Williams and Wilkins Co
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

EXAMINATION OF THE ISSUE OF THE DEFENDANT'S RIGHT TO A CONTINUANCE BASED ON A CLAIM OF INADEQUATE DEFENSE PREPARATION FOR TRIAL.

Abstract

THIS COMMENT CITES SUPREME COURT AND STATE AND LOWER FEDERAL COURT RULINGS TO IDENTIFY THOSE SITUATIONS IN WHICH ADDITIONAL TIME FOR PREPARATION MAY BE NEEDED AND SHOULD BE GIVEN IN ORDER THAT THE ACCUSED RECEIVE A FUNDAMENTALLY FAIR TRIAL. IT FOCUSES ON THOSE ELEMENTS OF INADEQUATE PREPARATION FOR TRIAL THAT LEAD COURTS TO REVERSE AND VACATE CONVICTIONS, SPECIFICALLY SITUATIONS WHERE LATE APPOINTMENT OF DEFENSE COUNSEL PRECLUDES ADEQUATE PREPARATION AND SITUATIONS WHERE ADEQUATE TIME WAS AVAILABLE BUT UNUSED. ALSO CONSIDERED ARE SITUATIONS WHERE THE TRIAL COURT DENIED DEFENSE REQUESTS FOR CONTINUANCES AND SITUATIONS WHERE THE DEFENSE FAILED TO REQUEST MORE TIME. THE AUTHORS INDICATE THAT THE PROBLEM FOR TRIAL JUDGES FACED WITH SUCH REQUESTS FOR ADDITIONAL TIME IS THE RESULT OF THE TENSION BETWEEN TWO SUPREME COURT DECISIONS - POWELL V. ALABAMA (1932) RULING ON THE DEFENDANT'S RIGHT TO ADEQUATE ASSISTANCE OF COUNSEL AND THE 1940 AVERY V. ALABAMA HOLDING THAT THE COURTS MAY DENY REQUESTS FOR ADDITIONAL TIME IF THE COURT IN THE REASONABLE EXERCISE OF ITS DISCRETION CONCLUDES THAT COUNSEL HAD SUFFICIENT TIME. THEY CONCLUDE THAT IF A TRIAL JUDGE, FACED WITH A MOTION TO CONTINUE, AFFIRMATIVELY SEEKS INFORMATION FROM COUNSEL REGARDING HOW THE ADDITIONAL TIME WILL BE USED AND WHAT WILL BE ACCOMPLISHED AND LEARNS THAT THERE IS THE POSSIBILITY THAT ADDITIONAL TIME WILL SUBSTANTIALLY BENEFIT THE DEFENDANT, THEN THE JUDGE SHOULD CONTINUE THE TRIAL FOR A REASONABLE PERIOD OF TIME WITH THE ADMONITION THAT COUNSEL USE THE TIME AND PREPARE IN THE MANNER INDICATED. WHEN THE TRIAL JUDGE FAILS TO MAKE SPECIFIC INQUIRY OF COUNSEL OR ORDERS THE CASE TO TRIAL DESPITE LEARNING THAT COUNSEL IS NOT PREPARED, THE REVIEWING COURT SHOULD REVERSE OR VACATE THE CONVICTION. (AUTHOR ABSTRACT MODIFIED)