Answer to Question 1
A number of Supreme Court cases have sought to define effective assistance. In McMann v. Richardson, 397 U.S. 759 (1970), the Court held that counsel is effective when his or her legal advice is within the range of competence demanded of attorneys in criminal cases. This was a somewhat vague standard, so the Court created a new test in Strickland v. Washington, 466 U.S. 668 (1984). It held that a two-prong test must be applied in order to determine whether counsel is ineffective:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable.
Answer to Question 2
Though the Sixth Amendment provides for the right to counsel, accused individuals sometimes prefer to mount a pro se defense to represent themselves in court. Indeed, according to the Supreme Court, criminal defendants have a constitutional right to represent themselves at trial.
The Court also emphasized in Faretta that the framers viewed the inestimable worth of free choice as more important than the right to counsel. Also, to force a lawyer on a defendant can only lead the defendant to believe that the law contrives against him.
Not every defendant who wishes to proceed without counsel is allowed to do so, however. In Johnson v. Zerbst, 304 U.S. 458 (1938), the Supreme Court stated that a defendant may only waive counsel if the waiver is competent and intelligent. This language was clarified in Carnley v. Cochran, 369 U.S. 506 (1962), when the Court noted that the record must show, or there must be an allegation and evidence must show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not a waiver.
The Court held that a judge can appoint standby counsel to relieve the judge of the need to explain and enforce basic rules of courtroom protocol or to assist the defendant in overcoming routine obstacles that stand in the way of the defendant's achievement of his own clearly indicated goals. When waiver of counsel is knowing and intelligent, a judge's decision to appoint standby counsel will not be unconstitutional as long as (1) the defendant retains control over the case and (2) the jury understands that the defendant represents himself or herself.
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