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Hastings Constitutional Law Quarterly

Abstract

To date, a separate right to counsel at the penalty phase of a capital trial is not recognized as fundamental under the Sixth Amendment right to counsel provision. This Note addresses a capital defendant's constitutional right to have a separate attorney represent him during the sentencing stage. The Supreme Court, in several significant holdings, has stepped towards recognizing this right. The Court has held that the right to counsel applies to capital trials and to all critical stages therein. It also has held that the right to effective assistance of counsel applies at the sentencing phase of these trials and that capital sentencing must comport with the slippery notion of due process. In addition, the procedural and evidentiary components that make up the sentencing phase signify that the sentencing phase is, indeed, a separate trial. In response to these facts, the Court has held that the double jeopardy clause applies to the capital sentencing "trial." Therefore, a defendant's decision regarding his right to counsel at the guilt phase of a capital trial should under not circumstances bind him in the sentencing phase. Hence, this Note concludes that the Sixth Amendment's right to counsel provision guarantees a defendant a separate right to counsel at the sentencing phase of a capital trial consistent with the due process of law.

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