No right to a public defender In a recent court case in NC, USA, the appeals court upheld that the trial court did not make a mistake in forcing a person to choose between counsel and testifying. Basically, the court appointed lawyer said the client was going to lie, and the judge granted his motion to resign. As such the defendant was left with private counsel, or representing himself. I thought there was a law against choosing between testifying and having counsel? Also the right to a public defender couldn't be just taken away? Key exchange: THE COURT: Is he going to have retained counsel by then or is he going to represent himself? MR. CAMPBELL: I would let him speak to that, if that's appropriate. MR. SMITH: I'm going to make an attempt to retain counsel, Your Honor. If I am unable to, I will represent myself. What happens is the court asks will he retain counsel or represent himself, effectively taking away the right to public counsel, at which point he says he will try to get counsel. By not offering the right to public counsel, they effectively took away his right to public counsel.
Smith makes three arguments in his appeal, that the trial court erred by: allowing Smith's trial counsel to withdraw on the sixth day of trial and failing to appoint substitute counsel for Smith thereafter, and that the private substitute counsel Smith retained was presumptively ineffective based upon the amount of time he had to review Smith's case before proceeding with the trial. Smith does not raise the question that you mention: the law against choosing between testifying and having counsel. That question was raised by the state's attorney: There are cases that say the [c]ourt cannot make a defendant choose between the right to testify and the right to counsel... [T]here is a Hobson's choice here between Mr. Smith testifying and Mr. Smith having an attorney. And the courts have ruled at times that there can't be a choice between those things. Speaking of Hobson's choice: United States ex rel. Wilcox v. Johnson, 555 F. 2d 115 - Court of Appeals, 3rd Circuit 1977 the appellee here "was put to a Hobson's choice": decline to testify and lose the opportunity of conveying his version of the facts to the jury, or take the stand and forego his fundamental right to be assisted by counsel. The Trial Judge thus conditioned the exercise of Mr. Wilcox's statutory right to testify upon the waiver of rights guaranteed by the Constitution. This was an impermissible infringement upon the appellee's right to testify and his Sixth Amendment right to counsel. also: US v. Scott, 909 F. 2d 488 - Court of Appeals, 11th Circuit 1990 To advise [the defendant] that he could be precluded from testifying, without confirmation that [the defendant] intended to commit perjury, or could proceed pro se impermissibly forced Scott to choose between two constitutionally protected rights. and: Wilson v. State, 12 So.3d 292 (Fla. Dist. Ct. App. 2009) This case concerns a defendant's desire to testify in greater detail about the incidents giving rise to the criminal charges, confronted by his attorney's belief that more testimony was not a good idea. The judge offered the defendant the choice of testifying further by giving up his attorney, and representing himself. The defendant chose not to testify. We hold that the trial court improperly forced a choice between two constitutional rights, and reverse. Here is a really recent case where The Connecticut Supreme Court gave defendant a new trial after his lawyer quit (went into snooze mode) when the defendant insisted on testifying. State of Connecticut v. Maurice Francis, (SC 19305) The record reflects that the court and defense counsel understood the defendant to be self-represented during his testimony. Defense counsel made it abundantly clear that they had no intention of representing the defendant should he testify and would file a motion to withdraw if necessary to avoid doing so. After canvassing the defendant regarding the pitfalls of proceeding pro se, the trial court ruled that it would have to let the defendant ‘‘self-represent . . . during this point . . . .’’ Consistent with this ruling, the court’s docket sheet reflects the court clerk’s notations indicating that, for purposes of the defendant’s testimony only, the defendant was allowed to represent himself and standby counsel was appointed. It further indicated that, for the remainder of the trial, counsel was retained to represent the defendant. Because of this ruling, defense counsel did not need to file a motion to withdraw, as their temporary status as standby counsel remedied the representation problem that they had sought to avoid. An interesting distinction among these cases is the reason the attorney conditioned representation on withholding testimony. One reason is ethical &ndash; knowledge that the client is going to lie. The other reason is strategic; the attorney thinks the witness will hurt the case. Edit to discuss the ethics question as it was brought up in the comments. Comment: However the defendant did not lie, the lawyer provided no evidence the defendant did lie, and the lawyer never stated why/how/what he thought the defendant might lie about. The lawyer did not tell the court, and could not ethically tell the court. The superior court said: Difficulty may be encountered if withdrawal is based on the client's demand that the lawyer engage in unprofessional conduct. The court may request an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. The lawyer's statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient. Lawyers should be mindful of their obligations to both clients and the court under Rules 1.6 and 3.3. The lawyer mentioned 1.16 as the reason he needed to withdraw. It basically says you can't represent someone if the representation would be an ethics violation: Rule 1.16 Declining or Terminating Representation (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of law or the Rules of Professional Conduct; (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged. And then Comment 3 says that if a lawyer wants to withdraw because of an ethics conflict the judge may let him go without further inquiry. Comment 3 When a lawyer has been appointed to represent a client, withdrawal ordinarily requires approval of the appointing authority. Similarly, court approval or notice to the court is often required by applicable law before a lawyer withdraws from pending litigation. Difficulty may be encountered if withdrawal is based on the client's demand that the lawyer engage in unprofessional conduct. The court may request an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. The lawyer's statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient. Lawyers should be mindful of their obligations to both clients and the court under Rules 1.6 and 3.3. However, the appellate court writes that the trial court could have asked about comment 2 which says that suggestion of perjury is not enough to force withdrawal. Comment 2 lawyer ordinarily must decline or withdraw from representation if the client demands that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or other law. The lawyer is not obliged to decline or withdraw simply because the client suggests such a course of conduct; a client may make such a suggestion in the hope that a lawyer will not be constrained by a professional obligation. But, and this is the big but - this is not enough for the appellate court to overturn the trial court. ...we may not consider the correctness of the court's ruling de novo or second guess its exercise of discretion... Rather, we are limited to a determination of whether the court's decision was “manifestly unsupported by reason or so arbitrary that it could not have been the result of a reasoned decision.” The rule violation at risk here is 3.3(a)(3): (a) A lawyer shall not knowingly... offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. It's comment 9 that the state wanted the trial court to consider. It seems to me that she wanted to hint to the defense attorney that he could ethically hear the testimony if he didn't know that it was false. Comment 9 Although paragraph (a)(3) only prohibits a lawyer from offering evidence the lawyer knows to be false, it permits the lawyer to refuse to offer testimony or other proof that the lawyer reasonably believes is false. Offering such proof may reflect adversely on the lawyer's ability to discriminate in the quality of evidence and thus impair the lawyer's effectiveness as an advocate. Because of the special protections historically provided criminal defendants, however, this Rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client's decision to testify. It seems to me that comment 8 is more helpful, but I wasn't there. Comment 8 The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. A lawyer's reasonable belief that evidence is false does not preclude its presentation to the trier of fact. A lawyer's knowledge that evidence is false, however, can be inferred from the circumstances. See Rule 1.0(g). Thus, although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood.
Is this normal? Pretty much. Witnesses lie in court all the time (in my experience, defendants, law enforcement officers and medical doctors are the most likely to lie). Dealing with a witness who lies in court under oath effectively is one of the most challenging tasks lawyers face. It is an inherently challenging hurdle to proving or defending a case. The facts as presented in court often differ in some material way from reality. It is a pretty tough thing to accurately measure, but my gut estimate would be that this happens in a least 30%-40% of cases that produce contested trials, although not infrequently, a judge or jury will not find the false testimony to be credible. On the other hand, it isn't at all uncommon (probably at least 10% of the time) for a judge or jury to believe the liars to be telling the truth, and to find the people who are telling the truth to be less credible. There is absolute immunity from civil liability for lying in court testimony, although it could, in theory, give rise to contempt of court sanctions from the judge in some circumstances, or to a prosecution for perjury. But, perjury prosecutions are, in practice, very rare, and a good share of them arise from false statements made in documents under oath, rather than from courtroom testimony. There is probably less than 1 perjury prosecution per 1000 provable lies made under oath in courtroom testimony on material issues that end up influencing the outcome in a case. I totally sympathize with how frustrating this situation is having been there in cases that I am litigating many, many times. But, in short, life isn't fair.
It does matter if you invoke your right to silence. First, if you do, that affects what police can do (they have to stop interrogating you). Second, it plays a role in &quot;adoptive admissions&quot;. If the police are asking you questions (you are not under arrest) and they make some statement that implies that you committed a crime, your silence can be used against you: it can be taken to be a form of admitting that you committed the crime. The premise is that if they imply that you murdered X, such an accusation if false would be so outrageous to a reasonable, innocent person that they would protest, therefore your lack of protest (denial) is tantamount to a confession. However, you can protect yourself by preemptively invoking your right to silence. See Salinas v. Texas: a witness who “ ‘desires the protection of the privilege . . . must claim it’ ” at the time he relies on it... the Fifth Amendment guarantees that no one may be“compelled in any criminal case to be a witness against himself,” not an unqualified “right to remain silent.” Since any right can be waived, at any time, there is no magic expression that you can utter that nullifies a future waiver of a Constitutional right. The closest that you can come is asserting that you hereby exercise your right to an attorney and that you will not speak until you have consulted with your attorney (then you better shut up). Lawyering up only prevents them from further interrogating you. Don't hedge: say &quot;I am asserting my right to silence and refuse to speak without a lawyer&quot;. &quot;I think I should...&quot; is not a definitive assertion of your rights. If you are (briefly) stopped, police may ask if they can search you or your property. If they have a warrant or probable cause, there's really no point in saying anything. In the case that consent is required, you just have to remember to not consent, and it would not be a bad idea to explicitly deny consent. Each and every time they ask. The same with their statement &quot;It would really help us if you would come to the station to answer a few questions&quot;. If you are under arrest, then you have to go with them: ask &quot;Am I free to go?&quot;. You can say &quot;I do not consent to any search&quot;. Your proposed declaration of rights is pretty vague. Exactly what rights are you talking about? Your right to freedom of religion? Your right to bear arms? Your right to not have to quarter soldiers in your house? Your right to an education? Many detainee statements have been found by the courts to be ineffective because they were unclear. You could give it a shot and see if the Supreme Court accepts your &quot;universal assertion of rights&quot; as effectively invoking your specific 4th and 5th amendment rights. Unless you have something in mind (like, the 6th amendment), the most effective statement is a very specific one. Silence, lawyer, no search.
I will only address this part of the question: Who would be able to authoritatively decide the constitutionality of such a question, with all Supreme Court justices having clear conflict of interest on the matter? The Supreme Court could still hear such a case, as the justices make their own decisions about when to recuse themselves. In particular, they might decide to hear the case based on the "Rule of Necessity", which says roughly that a biased judge is better than none at all: a judge can hear a case, even in the presence of a conflict of interest, if there is no other way for it to be heard. See United States v. Will, 449 U.S. 200 (1980), in which the Supreme Court ruled 8-0 that federal courts could try a case related to the salaries of federal judges. Another possibility is that the case could be brought in a lower federal court, say District Court. There is a question here: the Supreme Court has original jurisdiction in "all Cases affecting Ambassadors, other public Ministers and Consuls" (US Constitution, Article III, Section 2), and I do not know whether Supreme Court justices are "public Ministers". However, if a lower court did have jurisdiction, it could rule on the constitutionality of the question, since a District Court judge would not have a significant conflict of interest. The relevant Circuit Court of Appeals could presumably hear an appeal. If the Circuit Court's ruling was appealed to the Supreme Court, and the Supreme Court felt that they all had conflicts of interest (and decided not to invoke the Rule of Necessity), then they could simply not vote to grant certiorari, in which case the Circuit Court's ruling would stand.
united-states Generally, a witness cannot object to a question on the grounds that it fails to conform to a rule of evidence (e.g. hearsay). A witness can refuse to testify on a matter either due to the 5th Amendment privilege against self-incrimination, or on the grounds that some other privilege (e.g. attorney-client, clergy confession, spousal) applies. A witness can also say that they don't understand the question as phrased (either because it is complicated or because it contains terminology or concepts that the witness doesn't understand), or that the witness didn't hear the question, or that the witness forgot what the question was while the lawyers and judges were discussing whether it could be asked. This often results in the question being restated or rephrased. A witness may also answer a question by stating that there is no answer to the question as it is based upon a false premise (e.g. &quot;on which day of the week did you beat your wife?&quot;). And, if true, a witness can properly answer that they don't know the answer, either because they never knew or because they don't currently recall the answer.
united-states You may be confusing the right to an attorney if you cannot afford one that is applicable only in CRIMINAL cases, not civil cases like you are discussing. You may be able to get an attorney to take your case on a contingency basis but there are two things to keep in mind: The attorney has to have some expectation that the case is winnable. The amount to be recovered must be worth the risk of taking on this case. In other words, for the attorney it's more of a business question that a legal one. Many attorneys will give you a free 30 minute, more or less, consultation. Perhaps you might give that a try.
Criminal charges are filed and prosecuted by the government, on behalf of the public, and there is no requirement for approval or cooperation by the victim. As a policy matter, a DA may decide to not charge a person in case the victim is unwilling (though less so in cases of domestic violence), perhaps because of the widespread impression that the victim has to "press charges" (which indeed they would have to do in the case of private prosecution, which is no longer allowed in the US). The alleged victim's reddit exchanges on the topic are here. An uncooperative victim does not make a good witness, even if they are compelled to testify. The police statement that they cannot pursue an investigation should not be interpreted as a statement of law, it's probably a statement of policy and practicality.
To answer the first question, the answer seems to be "generally not." In federal courts, this is explicitly not allowed -- rule 6(d) of the Federal Rules of Criminal Procedure states that the only people who can be present before a grand jury are government lawyers, the witness being questioned, interpreters, and a court reporter In state courts, the rules vary by state. However, again, private citizens are generally either completely not allowed to act as prosecutors, or are only allowed to act as prosecutors in a restricted set of situations and subject to the ultimate control of public prosecutors. For instance, in Virginia (which allows private prosecutors), the private prosecutor can't speak in front of a grand jury, initiate a criminal case, or participate in a decision to dismiss charges (page 23). In New Hampshire, private prosecution is limited to misdemeanors with no possibility of jail time, and again the state can dismiss charges (page 8). Rhode Island, like New Hampshire, allows private prosecution for misdemeanors but lets the state dismiss charges (page 11). The justification for allowing the state to dismiss charges is generally "prosecution is inherently a governmental task, so the government must retain ultimate control."