Abstract: The right of the accused to the assistance of counsel has been continuously developed and expanded by the Justices of the Supreme Court of the United States, and it is also understood as the right to the effective assistance of counsel. In addition to maintaining due process, recognizing and ensuring the right to effective assistance of counsel will also promote the objectivity and accuracy of courts’ judgments, gaining faith in the judicial system. Studying of the emergence and development of the right to effective assistance of counsel, as well as the mechanisms for its enforcement in the United States, provides a basis for drawing lessons for the development and refinement of the right to defense in Vietnamese criminal procedure, ensuring democratic and fair judicial proceedings.
Keywords: Right to Counsel, Right to Defense, Criminal Procedure, Due Process, Fair trial, Right to Effective assistance of counsel, counsel
Introduction
The adversarial criminal procedure model in the United States aims to control crime while simultaneously maintaining a fair procedural process.[1] To preserve such fairness, according to the views of U.S. judges and legal scholars, a fair trial is one conducted by “a neutral judge, an impartial jury, …”.[2] In addition to these elements, based on the view that “an accused has little, if any, chance to withstand the prosecution’s charges if he is forced to defend himself,”[3] U.S. lawmakers have also recognized that the presence of counsel is an essential factor in ensuring a fair trial.[4] Accordingly, the right to the assistance of counsel—the Right to Counsel—was enshrined by the U.S. constitutional framers in the Sixth Amendment, becoming a constitutional right of all U.S. citizens.
However, merely appointing counsel or allowing counsel to be present, or the fact that the prosecution and the police merely notify the defendant’s counsel, is not sufficient.[5] In the United States, the right to counsel must be understood as the “right to the effective assistance of counsel,”[6] and the “right to defense” recognized in the Sixth Amendment has been further developed and expanded by federal court judges and is now understood as the right to effective defense.[7]
The right to effective defense in U.S. criminal procedure has been recognized through case law and comprises two components: the right to have defense counsel and the right to be effectively defended by counsel. A historical study of case law addressing the right to effective defense in the United States provides Vietnamese legal scholars with a multidimensional perspective, thereby enabling the drawing of lessons for improving Vietnamese criminal procedural law on the right to defense of the accused, ensuring fair judicial proceedings, and meeting the objective of building and refining a rule-of-law state.
1. The Right to Effective Defense in United States Criminal Procedure
1.1. The Right to Counsel
Originating from the objective of ensuring human rights as well as fairness in adjudication between the defendant and the prosecutor (the prosecution authority), at its very first session the Continental Congress considered that individuals should receive legal assistance from counsel and that a “level playing field” should be created in criminal trials.[8] In 1791, the United States Congress conferred upon accused persons the right to defense as enshrined in the Sixth Amendment to the Constitution, which provides: “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.”[9]
However, the right to counsel under the Sixth Amendment in its early stages did not carry the significance it does today.[10] In the initial period, the vision of the early U.S. legislators remained rather limited, as they focused mainly on ensuring that those who could afford to hire counsel would have the right to maintain the presence of, and receive defense from, their counsel at trial or during court proceedings.[11] After a relatively long period of application, U.S. law on the right to counsel was expanded beyond its original purpose of merely allowing those with sufficient financial means to retain counsel at court. Under the U.S. Constitution (the Sixth Amendment) and other federal statutes (for example, Section 35 of the Judiciary Act of 1789; the Judiciary Act of April 30, 1790), individuals tried for serious offenses that could result in the death penalty (capital offenses – capital crimes)[12] within the federal legal system were entitled to appointed counsel for their defense.[13]In Powell v. Alabama (1932), through their reasoning, the Justices of the U.S. Supreme Court reaffirmed that: “… in a capital case, where the defendant is unable to employ counsel and is incapable adequately of making his own defense because of ignorance, illiteracy, feeble-mindedness, or the like, it is the duty of the court, whether requested or not, to assign counsel for him.”[14]
Several years after Powell v. Alabama (1932), the U.S. Supreme Court continued to expand the scope of the right to counsel in Johnson v. Zerbst (1938), which concerned felony offenses. On the one hand, similar to Powell v. Alabama, the Justices in Johnson v. Zerbst reaffirmed the critical role of counsel, reasoning that lawyers constitute an “essential barrier against arbitrary or unjust deprivation of human rights,” and that legal assistance from counsel is “necessary to insure the fundamental human rights of life and liberty.”[15] On the other hand, the Supreme Court sought to create a broader impact than it had six years earlier in Powell v. Alabama by holding that: “The Sixth Amendment right to the assistance of counsel is applicable in all federal courts, in all criminal proceedings. The power and authority to deprive an accused of his life or liberty may be exercised only if he has been afforded or has waived the assistance of counsel.”[16]It can thus be seen that the Supreme Court’s requirement of mandatory appointment of counsel in all federal criminal cases carried two principal implications: (1) creating balance in the “contest” of accusation and defense between the prosecutor and the defendant; and (2) promoting and improving judicial procedures toward the adversarial model consistently pursued in the United States.[17] The Supreme Court’s decision contributed to bringing the Sixth Amendment right to counsel closer to judicial practice, strengthening the protection of human rights and responding to societal demands for fair trials in the United States at that time—at least within the federal court system.[18] However, state courts were not bound by the requirements established in Johnson v. Zerbst (1938) when adjudicating criminal cases, as they continued to be governed primarily by the laws of their respective states.[19]
The history of the right to counsel in the United States has not followed a purely expansive trajectory; rather, it has experienced certain periods of “regression,” most notably reflected in Betts v. Brady (1942). The central question addressed by the Supreme Court in Betts v. Brady was whether the failure to appoint counsel for a defendant charged with a criminal offense under state law constituted a violation of the Constitution. This question provided the Court with an opportunity to rely on and combine the rulings in Powell v. Alabama and Johnson v. Zerbst to extend the Sixth Amendment right to counsel so as to mandate the appointment of counsel in all criminal cases tried in state courts.[20] Nevertheless, the Justices issued what is widely regarded as a setback, holding that the Sixth Amendment right to counsel was not an essential right required to ensure a fair trial “in all cases,”[21] and therefore did not impose a mandatory obligation on states to appoint counsel in every criminal prosecution.[22]With such reasoning, the Supreme Court not only failed to extend the right to counsel to all criminal defendants but also created additional difficulties for both federal and state courts, which were required to determine the specific “circumstances” under which counsel must be appointed in order to avoid constitutional violations.[23] In subsequent years, the federal court system struggled with numerous appeals and post-conviction claims alleging constitutional violations by state courts for failing to appoint counsel in criminal cases.[24] Against this backdrop, in 1963 the Supreme Court decided to reconsider the ruling in Betts v. Brady.[25]
Gideon v. Wainwright (1963) is widely regarded as one of the landmark cases that transformed the U.S. criminal justice system.[26] In this case, the Supreme Court rendered three crucial determinations: (1) the Sixth Amendment right to the assistance of counsel is a fundamental right and is binding on both federal and state criminal prosecutions for all serious offenses;[27] (2) defendants who lack the financial means to hire counsel must nonetheless be provided with legal assistance to ensure fairness in adjudication; and (3) the complete overruling of Betts v. Brady (1942).[28]Responding to societal demands for fairness in criminal adjudication, the Court emphasized that “governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime,” but, conversely, citizens must also be protected from the potential abuse of prosecutorial power; therefore, “the presence of counsel in criminal trials is a necessity, not a luxury.”[29] On this basis, the Court affirmed that: “Any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”[30] With respect to overruling Betts v. Brady, the Supreme Court reasoned that the Betts decision had “made an abrupt break with its own well-considered precedents” established in Powell v. Alabama (1932) and Johnson v. Zerbst (1938), and thus concurred with “twenty-two States that the Betts v. Brady rule was an anachronism.”[31]
For juvenile defendants, the right to counsel was affirmed in In re Gault (1967). The Supreme Court held that juveniles require the assistance of counsel to address legal issues, thoroughly examine the objective circumstances of the case, assess the legality of procedural steps, identify defense strategies, and carry out the defense.[32] To underscore this point, the Court emphasized that “the child requires the guiding hand of counsel at every step in the proceedings against him.”[33] Accordingly, to safeguard the rights of juveniles, the Supreme Court imposed an obligation to inform both juveniles and their parents of the right to counsel and the right to appointed counsel.[34] Relying on In re Gault (1967), the Tenth Circuit Court of Appeals further reasoned that, in proceedings involving juveniles or individuals with mental disabilities, the state assumes the role of parens patriae in their best interests; consequently, the state bears the obligation to ensure that such individuals are afforded access to counsel and provided with legal assistance at every stage of the proceedings, and thus held that persons with mental disabilities are likewise entitled to the assistance of counsel throughout the entire procedural process.[35]
In 1972, the scope of mandatory appointment of counsel was further expanded to cases involving offenses punishable by imprisonment through Argersinger v. Hamlin. In this case, the Supreme Court held that the Florida Supreme Court erred by refusing to appoint counsel for a defendant charged with a misdemeanor offense punishable by up to six months’ imprisonment.[36] First, the Justices reasoned that “the complexity of misdemeanors and felonies” may be essentially comparable; therefore, counsel is necessary to ensure that “the accused knows what he is doing, understands that he may be deprived of his liberty, and is treated fairly by the prosecution.”[37] Second, based on empirical studies and judicial reports, the Court observed that: (1) the volume of misdemeanor cases far exceeds that of felony cases, potentially creating pressure for expedited adjudication at the expense of fairness;[38] and (2) many misdemeanor trials are conducted in a cursory and perfunctory manner.[39]. perfunctory manner.[39]
Accordingly, to ensure fair trials, the Supreme Court held that “absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel.”[40] Through Argersinger v. Hamlin, the right to appointed counsel was thus extended to defendants prosecuted for misdemeanor offenses.
1.2. The Right to Effective Assistance of Counsel
However, if the provisions of the Sixth Amendment were limited merely to permitting counsel to appear at the stages of criminal proceedings, the fundamental rights of the accused could not be ensured in the most effective manner. Granting the right to defense to the accused would be entirely meaningless if it were not possible to guarantee that counsel would exert their utmost efforts to protect their clients[41]. More specifically, according to the Supreme Court of the United States, in order to best ensure the accused’s right to defense under the Sixth Amendment, “the accused cannot be left to the mercies of incompetent counsel”[42]. Therefore, the right to counsel (Right to Counsel) must be understood as the right to effective assistance of counsel (Right to Effective Assistance of Counsel)[43].
The right to effective assistance of counsel was first addressed in Powell v. State of Alabama in 1932, when the Supreme Court of the United States exercised its judicial authority to review the case and decided to remand it for retrial on the ground that the Alabama state court had failed to properly appoint counsel for the defendants[44]. To clarify its decision, the Supreme Court explained that although the Alabama state court had appointed counsel, the attorney Roddy appointed by that court was “not familiar with the criminal procedure of the State of Alabama” and, at the same time, “had no time to prepare” in order to assist the defendants[45]. Accordingly, the counsel appointed by the Alabama state court lacked sufficient capacity to assist the defendants, and the court itself failed to create favorable conditions (in terms of time) for counsel to provide “effective” legal assistance to the defendants[46]. In this case, the Justices of the Supreme Court of the United States affirmed that the effectiveness of defense counsel is a mandatory requirement for ensuring due process in the United States, through the reasoning that “the appointment of counsel must be accompanied by such conditions as will enable counsel to render effective assistance in the preparation and trial of the case”[47]. Through this reasoning, the Justices of the Supreme Court evaluated the impact of counsel’s performance in a criminal case, thereby indirectly highlighting the importance of defense counsel in ensuring that a criminal case is adjudicated fairly[48]. The Supreme Court of the United States recognized that the mere nominal presence of counsel, without adequate preparation or competence, renders the defense futile. This precedent affirmed that the right to have counsel is not merely a formal right but must be a right of real substance, and it constitutes an important foundation for establishing the “right to effective assistance of counsel” in United States criminal procedure. The Justices of the Supreme Court held that the mere presence of counsel cannot fully safeguard the rights of the accused, implicitly indicating the need to establish certain requirements or standards regarding the professional competence of defense counsel[49] so that the defendant may enjoy a fair trial through the protection of the “right to effective assistance of counsel.” However, formulating criteria to assess the effectiveness of defense counsel has proven to be extremely difficult for courts. Consequently, rather than assessing effectiveness, it is easier to assess ineffectiveness in defense performance as a violation of the Sixth Amendment.
In 1945, Judge Thurman Arnold established one of the earliest standards regarding the competence of defense counsel by issuing a judgment affirming that due process would be violated when the performance of defense counsel was so poor as to turn “the proceedings into a farce and a mockery of justice”[50], a standard later known as the “farce and mockery” standard. Following Judge Thurman’s 1945 decision, all 11 United States Courts of Appeals (U.S. Circuit Courts – U.S. Courts of Appeals) adopted this standard to resolve complaints or claims raised by the accused concerning the performance of defense counsel during criminal proceedings[51]. Nevertheless, this standard was criticized as vague and subjective[52], and as placing an excessively heavy burden of proof on the defendant, thereby leading to difficulties in application or inconsistent application in practice[53]. It reflected a level of defense counsel incompetence so severe and obvious that any observer could perceive the proceedings as having been reduced to a “farce,” no longer constituting a fair trial, and rendering the defense entirely meaningless. This harsh standard resulted in the consequence that many defendants adversely affected by poor-quality defense, yet not to the extent of a “farce,” were denied the opportunity to have their cases reviewed, even though the “right to effective assistance of counsel” had not been ensured.
Beginning in the 1970s, United States Courts of Appeals gradually replaced the above standard with other standards[54], such as the reasonably competent standard[55] and the normal competency standard[56], in order to assess the competence of defense counsel in criminal cases[57]. By 1983, the Court of Appeals for the Second Circuit became the last appellate court to abandon the application of the “farce and mockery” standard and to adopt the “reasonably competent” standard[58] for evaluating whether the right to effective assistance of counsel had been ensured.
Over a period of more than two decades of efforts to safeguard the right to effective assistance of counsel, appellate courts sought to provide the most comprehensive possible interpretations of the concepts of “reasonable competence” or “normal competence of counsel.” For example, Judge Bazelon of the United States Court of Appeals for the District of Columbia Circuit relied on several defense standards of the American Bar Association’s Standards for the Defense Function (for example: counsel must consult with the client without delay on all matters; counsel must promptly inform the client of all rights and take all possible measures to protect those rights; counsel must conduct necessary investigations to clarify factual and legal elements, etc.)[59]. Although the reasonably competent standard was also adopted, some judges argued that it was impossible to predetermine the specific duties of defense counsel because each criminal case contains its own distinctive characteristics. In addition to the standards articulated by Judge Bazelon, certain states or other regional courts of appeals introduced additional criteria to ensure that defense counsel’s performance in criminal cases would be as effective as possible (for example: requiring an assessment of whether there exists any prejudice on the part of counsel against the accused; etc.)[60]. Divergent views in the interpretation and establishment of standards concerning the right to effective assistance of counsel among different regional courts caused significant disruption to defense practice in the United States.
In 1984, the Supreme Court of the United States put forward landmark legal reasoning to shape the right to effective assistance of counsel in Strickland v. Washington. First, the Justices of the Supreme Court reaffirmed the reasoning articulated in McMann v. Richardson (1970), according to which the “right to counsel” enshrined in the Sixth Amendment “must be understood as the right to effective assistance of counsel”[61]. Second, the Justices of the Supreme Court identified circumstances constituting violations of the right to effective assistance of counsel. Accordingly, the government, or competent authorities conducting criminal proceedings, are deemed to violate this right when they engage in actions that interfere with counsel’s ability to make independent defense decisions[62]. Third, the Justices also identified another subject capable of violating the right to effective assistance of counsel recognized under the Sixth Amendment, namely defense counsel themselves. Specifically, “counsel may also deprive the accused of the right to effective assistance of counsel simply by failing to provide adequate legal assistance (for example, in cases involving an actual conflict of interest between counsel and the defendant)”[63]. On the basis of this legal reasoning, the Supreme Court of the United States developed a doctrine for evaluating defense counsel’s performance known as the “Strickland standard” (the Strickland test)[64], which consists of two prongs: (1) demonstrating the existence of deficient performance in fact (The Deficient Performance Prong); and (2) demonstrating that the deficient performance of counsel caused prejudice to the defendant (The Prejudice Prong)[65].
Strickland v. Washington constitutes a significant legal milestone, as it not only defined the “right to effective assistance of counsel” but also established a framework for assessing whether that right has been violated. Although debates continue regarding the fairness and practical applicability of the standard it introduced (including criticisms that the standard is vague and unclear[66], and that it imposes an excessively heavy burden of proof on the defendant[67]…), the Strickland decision has become the foundational precedent for all claims of “ineffective assistance of counsel” in United States criminal procedure. Despite criticisms from the United States legal scholarship, the “Strickland standard” has gradually evolved over time and continues to exist to this day as a mechanism to ensure that defendants in criminal cases enjoy the right to effective assistance of counsel[68].
2. Improving Vietnamese criminal procedure law on the right to defense based on United States experience
2.1. Advantages of United States criminal procedure regarding the right to effective assistance of counsel
Through the reasoning of the United States Supreme Court, it can be seen that the role of lawyers in the adjudication of criminal cases in particular, and in United States criminal procedure in general, is to ensure fairness in judicial activities. When the government possesses a specialized corps of prosecutors to carry out prosecution, citizens likewise need lawyers to counterbalance the power of the state[69]. The presence of defense counsel safeguards the legitimate rights and interests of the accused throughout the entire criminal procedure, and also reflects the humanitarian nature of the law, as defense counsel serve not only as legal representatives but also as companions providing psychological and moral support. Moreover, a fair procedure also requires the effective performance of defense counsel in order to supervise the procedural activities of the prosecuting authorities, protect the lawful rights and interests of the accused, and ensure the court’s ability to reach objective conclusions.
The advantages of United States criminal procedure concerning the right to effective assistance of counsel that may be referenced in proposing improvements to Vietnamese law include the following:
First, in the United States, a legal doctrine on the “right to effective assistance of counsel” has been formed, recognized, and developed as an inherent component of the right to defense, together with the recognition and development of standards for assessing the effectiveness of defense.
Second, the right to have defense counsel in the United States constitutes the primary condition for ensuring the right to effective assistance of counsel and maintaining fair procedure, and the appointment of defense counsel has been developed and expanded to cover defendants facing the possibility of imprisonment.
Third, the United States Supreme Court has established valid standards governing the waiver of the right to assistance of counsel. In Johnson v. Zerbst (1938), the United States Supreme Court held that a defendant “may waive the right to be assisted by counsel; however, the waiver must be made by a person who is knowledgeable, …” and that “the Federal Court has the duty to safeguard the defendant’s right to the assistance of counsel, as well as to determine whether the defendant possesses sufficient understanding and capacity when refusing this right; the process of determination (of the defendant’s capacity and understanding) should be recorded in the case file.” A waiver of the right to assistance of counsel is considered valid when the defendant clearly understands the charges, the range of possible penalties, available defenses, mitigating circumstances, and has a general understanding of the entire criminal case[70]. In 1975, in Faretta v. California, the United States Supreme Court established the basic standard for assessing the legality of a refusal of the right to assistance of counsel. Accordingly, such refusal is valid only when it is made voluntarily, knowingly, and intelligently[71]. Based on the Supreme Court’s rulings, the federal courts of appeals have recommended that trial judges conduct or engage in formal colloquies (recorded in the case file) to ascertain that the defendant has waived the right to assistance of counsel voluntarily and with full understanding.
Fourth, United States law ensures the legality of evidence as well as the effectiveness of defense by providing that the absence of defense counsel in many investigative activities will result in the exclusion of evidence. Except where the accused voluntarily waives the right to assistance of counsel, police officers or investigators are not permitted to carry out certain procedural activities requiring the participation of the accused (such as interrogation or identification procedures, …) without the presence of defense counsel[72]. Statements or confessions obtained in the absence of defense counsel constitute violations of the Sixth Amendment right to assistance of counsel, and accordingly, such statements and any information obtained therefrom are inadmissible and must be excluded[73]. In Massiah v. United States (1964), the United States Supreme Court addressed one of the most important legal questions, namely whether statements or confessions provided by a defendant in the absence of counsel could be admitted as lawful evidence[74]. The Massiah doctrine provides that “once the adversarial stage of criminal proceedings has begun, the defendant has the right to be represented by counsel whenever he is interrogated”[75].
2.2. Proposals for improving Vietnamese criminal procedure law
In Viet Nam, from a policy perspective, “building a judicial procedure institution that takes adjudication as the center and adversarial proceedings as the breakthrough; ensuring democratic, fair, civilized, rule-of-law-based, modern, strict, accessible judicial procedures that guarantee and protect human rights and citizens’ rights”[76] is a task set in the process of building a socialist rule-of-law state. In this context, “ensuring democratic and fair judicial procedure” has, for the first time, been recognized as a mandatory objective in the current period.
From the perspective of legal science, studies on the right to have defense counsel in criminal procedure also affirm that “the requirement of fair procedure is a core criterion in the construction and improvement of criminal procedure law in general and in ensuring the rights of the accused in particular”[77]. Fair procedure is always associated with the principle of fair trial, in which the procedural rights of the accused are guaranteed. Effective defense thus becomes an inevitable requirement to ensure the right to defense of the accused, contribute to discovering objective truth, and ensure the fairness of the procedural process.
The current Vietnamese Criminal Procedure Code, in addition to supplementing the content that courts adjudicate cases in a timely and fair manner into the principle set out in Article 25 of the 2015 Criminal Procedure Code, also additionally recognizes the principle of the presumption of innocence and the principle that adversarial proceedings in adjudication are guaranteed, with the acknowledgment of equality among investigators, procurators, other persons with authority to conduct proceedings, the accused, defense counsel, and other participants in proceedings in presenting evidence, assessing evidence, and making requests. These provisions demonstrate that the legislator has selectively absorbed rational elements of the adversarial procedural model in order to strengthen debate, exchange, examination of evidence, and proof in a democratic and fair manner so as to discover the objective truth of the case.
The provisions of the 2015 Criminal Procedure Code show that Vietnamese law on the right to defense has several points of similarity with United States law: i) recognition of the right to defense for the accused; ii) the existence of mechanisms to ensure that persons lacking financial capacity or belonging to vulnerable groups can access legal aid; iii) permission for defense counsel to participate in proceedings from the early stages of case resolution, although the timing may differ; iv) standards applicable to lawyers in professional practice, as well as principles and regulations on the rights and obligations of lawyers in carrying out defense activities, are all recognized in specific legal instruments (in the United States, the standards promulgated by the American Bar Association, ABA[78]; in Viet Nam, the rights and obligations of defense counsel provided in the Criminal Procedure Code, and the principles, conditions, scope, forms of practice, standards, rights, and obligations of lawyers set out in the Law on Lawyers[79]).
Beyond these similarities, it can be seen that there are differences between the two legal systems when addressing the right to effective assistance of counsel. First, Vietnamese criminal procedure law does not formally introduce the concept or terminology of the “right to effective assistance of counsel” or standards of “ineffective assistance of counsel”. Vietnamese law, as well as the actual resolution of criminal cases within the scope examined by the author, shows that there has not yet been any case establishing standards to assess the “ineffectiveness” of defense leading to the consequence of annulling a judgment. Although Article 73 of the 2015 Criminal Procedure Code provides for the responsibility of defense counsel when engaging in unlawful acts, where defense counsel fails to fully perform obligations resulting in “ineffective defense”, the accused finds it difficult to request the court to annul the judgment on that ground. Only where the right to defense of the accused is not ensured due to fault of the procedural authorities and is determined to constitute a serious violation does it become a ground for annulling the judgment[80]. Second, the scope of mandatory appointment of defense counsel is narrower, being limited to suspects and defendants charged with offenses for which the Criminal Code prescribes a maximum penalty of 20 years’ imprisonment, life imprisonment, or death.
The Criminal Procedure Code of 2015 is assessed as having ensured a certain balance between the accused and the accusing authority, namely the People’s Procuracy as the representative of the State, while simultaneously “affirming the position and important role of the defense counsel in the process of performing the basic functions of criminal procedure”[81]. However, according to assessments, “the legal system still has certain shortcomings and has not yet met practical requirements”[82], including criminal procedural law concerning the right to defense. Meanwhile, in order to meet the requirements of national development in the new era, Viet Nam must have “a high-quality, modern legal system, approaching advanced international standards and practices and suitable to domestic realities, which is strictly and consistently implemented, and which respects, guarantees, and effectively protects human rights and citizens’ rights”[83].
On the basis of studying United States law with arguments affirming the necessity of ensuring the right to effective defense, it is possible to propose several initial orientations for improving Vietnamese criminal procedural law on the right to defense, aiming to “ensure democratic and fair judicial proceedings” in the construction of a rule-of-law State.
First, expanding cases in which defense counsel is appointed
The important role of defense counsel is affirmed in the justice system in general and in criminal justice in particular in any country. In addition to performing the defense function, defense counsel also plays the role of supervising and ensuring that justice is implemented and respected. Conversely, prosecutorial authorities and investigative authorities, in the course of performing their duties, tend to act more cautiously in carrying out professional activities when the presence of defense counsel exists[84]. One of the reasons prompting such caution stems from the fear of what defense counsel (an independent subject not subject to the control of any state authority) may be able to do upon discovering their mistakes[85]. Therefore, the presence of defense counsel is of great significance in limiting bureaucratic behavior and enhancing accuracy in procedural activities. It may even reduce the number of “hope-based” appeals after first-instance trials, as the prior procedural process consistently involves the support of defense counsel.
Accordingly, the author argues that accused persons in Viet Nam should not only be guaranteed the right to self-defense but should also be guaranteed “the right to have defense counsel” so that defense counsel can effectively perform defense functions, ensure fair proceedings, and ensure that justice is carried out. The Criminal Procedure Code of 2015 expanded the category of subjects entitled to appointed defense counsel to include suspects and defendants charged with crimes for which the Criminal Code prescribes a maximum penalty of 20 years’ imprisonment. On the basis of studying the process of expanding the right to defense counsel in the United States and affirming the important role of lawyers in case resolution, the author proposes amending Point a Clause 1 Article 76 of the Criminal Procedure Code in the direction of expanding the category of accused persons entitled to appointed defense counsel to include suspects and defendants charged with very serious crimes. In the future, depending on the development of the contingent of lawyers and economic conditions, it may be possible to further expand the right “to have defense counsel” of accused persons through the appointment of defense counsel for suspects and defendants charged with serious crimes and less serious crimes carrying potential custodial penalties.
Second, regulating procedures for refusal of appointed defense counsel with the participation of the Court
In Viet Nam, Article 77 of the Criminal Procedure Code of 2015 provides for subjects entitled to refuse defense counsel as well as procedures for refusing defense counsel. In cases where an arrested person, a person held in custody, or a person in temporary detention during the investigation stage requests to refuse defense counsel appointed at the request of their relatives, the investigator must directly meet together with that defense counsel and the arrested person, the person held in custody, or the person in temporary detention to confirm the refusal. Where defense counsel is refused, the competent procedural authority must draw up a record of the refusal of defense counsel by the accused or by the representative or relative of the accused as prescribed at Point b Clause 1 Article 76 of the Criminal Procedure Code and terminate the appointment of defense counsel.
When the accused agrees to refuse defense counsel, under the current provisions of the Criminal Procedure Code, the competent procedural authority merely carries out confirmation procedures and prepares a record of refusal. This approach demonstrates respect for the autonomy of the accused, but its limitation lies in the difficulty of ensuring openness and transparency. On the basis of studying United States law, the author argues that refusal of defense counsel (in cases of appointment prescribed by law) should be carried out under more stringent procedures to ensure that the accused clearly understands that having defense counsel is necessary for the effective exercise of the right to defense. Such procedures should be conducted by the Court, as this involves the refusal of a right of constitutional nature. The accused should present reasons for refusal, and the Court bears the responsibility to explain to the accused, relatives, and representatives the nature of the act with which the accused is charged, the criminal liability prescribed by law for such act, the activities that defense counsel may carry out during procedural proceedings (such as being present at certain investigative activities, reading, recording, and copying documents in the case file related to defense after the conclusion of investigation), as well as legal assistance throughout the entire procedural process and after the issuance of the judgment. The Court should assess the accused’s capacity to independently exercise the right to defense and subsequently prepare a record confirming that the accused voluntarily refuses the right to appointed defense counsel.
Third, regulating the presence of defense counsel in certain investigative activities to enhance the effectiveness of defense
Under the provisions of Article 73 of the current Criminal Procedure Code, defense counsel has the right to be present when statements are taken from arrested persons or persons held in custody, when suspects are interrogated, and to be present at certain other investigative activities; defense counsel has the obligation to be present upon summons by the Court; in cases of appointed defense counsel, they must be present upon request of the investigative authority or the People’s Procuracy. Regarding investigative activities, during interrogation, investigators have the responsibility to notify defense counsel; during crime-scene examination, defense counsel may be allowed to participate; where necessary, defense counsel may participate in investigative experiments. Thus, the presence of defense counsel in the above investigative activities is not mandatory in all cases. The author argues that when the accused has exercised the right to request defense counsel, this reflects their desire to receive legal assistance and defense superior to self-defense. In cases of appointed defense, the requirement for defense counsel arises due to the limited capacity of the accused to defend themselves or due to the risk of facing severe penalties. Therefore, in cases where the accused has defense counsel, the presence of defense counsel should be mandatory when taking statements from arrested persons, persons held in custody, and when interrogating suspects. This regulation would bind responsibility not only on investigative authorities but also constitute an obligation of defense counsel, ensuring substantive defense activities and creating balance in proceedings at the pre-trial stage.
Conclusion
Through the recognition of the accused person’s “right to effective assistance of counsel,” the Supreme Court of the United States affirms the central role of defense counsel in ensuring a fair criminal justice system. This is because ineffective assistance of counsel is capable of undermining public confidence in the courts and in the fairness and reliability of procedural proceedings. The history of the formation and development of the “right to effective assistance of counsel” in the United States also demonstrates the role of the courts in safeguarding the accused person’s right to defense and in ensuring the right to a fair trial. Ensuring “democratic and fair judicial proceedings” in the construction of the Vietnamese rule-of-law State needs to begin by considering the effectiveness of defense activities, rather than merely assessing the correctness of the activities of competent procedural authorities. However, expanding the content of and ensuring the right to defense in the direction of recognizing it as the right to effective assistance of counsel requires time to prepare necessary resources. Therefore, the above proposals merely constitute an initial step in preparation for subsequent proposals, in parallel with other systemic changes in the provisions of criminal procedural law./.
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9. Jeffrey L. Kirchmeier, Drink, Drugs, and Drowsiness: The Constitutional Right to Effective Assistance of Counsel and the Strickland Prejudice Requirement, Nebraska Law Review Vol. 75, 425-431 (1996).
10.John D. King, Beyond "Life and Liberty": The Evolving Right to Counsel, Harvard Civil Rights-Civil Liberties Law Review Vol. 48, 1 (2013).
11.Keith Cunningham-Parmeter, Dreaming of Effective Assistance: The Awakening of Cronic's Call to Presume Prejudice from Representational Absence, Temple Law Review Vol. 76, 827, 836 (2003).
12.Lauren Lipson, Settling on a Standard: Reviewing the Right to Self-Representation, Fordham Law Review Vol. 94, 1177, 1184 (2025).
13.Pamela R. Metzger, Beyond the Bright Line: A Contemporary Right-to-Counsel Doctrine, Northwestern University Law Review Vol. 97, 1640 (2002)
14.Eve Brensike Primus, Disaggregating Ineffective Assistance of Counsel Doctrine: Four Forms of Constitutional Ineffectiveness, Stanford Law Review 72, No. 6, 1581, 1605-1626 (2020).
15.Luong Thi My Quynh, The Right to Counsel in Criminal Procedure in Viet Nam, Germany, and the United States, National Political Publishing House – Truth, Ha Noi, 34 (2013).
16.Jacob J. Stender, Protect Me from Myself: Determining Competency to Waive the Right to Counsel During Civil-Commitment Proceedings in Washington State, Seattle University Law Review Vol. 35, 973, 976 (2012)
17.Richard S. Shine, “The Criminal Procedure Model of the United States Federal System,” in Typical Criminal Procedure Models in the World, To Van Hoa (ed.), Hong Duc Publishing House, Ha Noi, 366 (2012).
18.Walter W. Steele Jr., The Doctrine of Right to Counsel: Its Impact on the Administration of Criminal Justice and the Legal Profession, SMU Law Review Vol. 23 Issue 3 Art. 4, 506 (1969).
19.U.S. Government Publishing Office – GPO (2014), Sixth Amendment – Right of Acccused in Criminal Prosecutions, 1647 (2014), https://www.govinfo.gov/content/pkg/GPO-CONAN-REV-2014/pdf/GPO-CONAN-REV-2014-10-7.pdf.
20.Unknow Authors, An Historical Argument for the Right to Counsel during Police Interrogation, The Yale Law Journal 73 No. 6, 1000 (1964), https://doi.org/10.2307/794630.
21.CHARLES H. WHITEBREAD & CHRISTOPHER SLOBOGIN, CRIMINAL PROCEDURE – AN ANALYSIS OF CASES AND CONCEPTS (2ND EDITION), THE FOUNDATION PRESS, NEW YORK, 795 (1986).
22.Jennifer Williams, Criminal Law—The Sixth Amendment Right to Counsel—The Supreme Court Minimizes the Right to Effective Assistance of Counsel by Maximizing the Deference Awarded to Barely Competent Defense Attorneys. Florida v. Nixon, 125 S. Ct. 551 (2004)., University of Arkansas at Little Rock Law Review Vol. 28, Issue 1, 149 (2005).
Related Laws and Legal Instruments
1. Judiciary Act of 1789, ch. 20, 1 Stat. 73.
2. The Crime Act of April 30, 1790, ch. 9, 1 Stat. 118.
3. U.S. Const. amend. VI.
4. United States Code, 2006 Edition, Supplement 5, Title 18 - CRIMES AND CRIMINAL PROCEDURE – 18 U.S.C. § 3559
5. Central Committee’s Resolution No. 27 dated 9 November 2022 of the Sixth Plenum of the Central Committee of the Communist Party of Viet Nam, 13th tenure, on continuing to build and improve the socialist rule-of-law State of Viet Nam in the new period.
6. Criminal Procedure Code, Consolidated Document No. 46 issued by the Office of the National Assembly, dated 28 February 2025.
7. Law on Lawyers 2006, Consolidated Document No. 12 issued by the Office of the National Assembly, dated 12 December 2012.
8. Central Committee’s Resolution No. 66 dated 30 April 2025 on reforming law-making and law enforcement to meet the requirements of national development in the new era.
RELEVANT CASE LAW
1. Argersinger v. Hamlin, 407 U.S. 25 (1972).
2. Avery v. Alabama, 308 U.S. 444 (1940)
3. Betts v. Brady, 316 U.S. 455 (1942).
4. Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232 (1977).
5. Caraway v. Beto, 421 F.2d 636 (5th Cir. 1970)
6. Diggs v. Welch, 148 F.2d 667 (D.C. Cir. 1945).
7. Fred W. Heryford v. Charles W. Parker, 396 F.2d 393 (10th Cir. 1968).
8. Gideon v. Wainwright, 372 U.S. 335 (1963).
9. Glasser v. United States, 315 U.S. 60 (1942)
10.In re Gault, 387 U.S. 1 (1967).
11.Johnson v. Zerbst, 304 U.S. 458 (1938).
12.Johnson v. Zerbst, 304 U.S. 462 (1938).
13.MacKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960)
14.Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199 (1964).
15.McMann v. Richardson, 397 U.S. 759 (1970).
16.Moore v. United States, 432 F.2d 730, 739 (3d Cir. 1970).
17.Powell v. Alabama, 287 U.S. 45 (1932).
18.Scott v. Illinois, 440 U.S. 367 (1979).
19.Strickland v. Washington, 466 U.S. 668, 686 (1984).
20.Trapnell v. United States, 725 F.2d 149, 151 (2d Cir. 1983).
21.United States v. DeCoster, 487 F.2d 1197, 1203, 1204 (D.C. Cir. 1973)
* PhD. Hanoi Law University. Email: haininh.hn2005@gmail.com, date of approval for publication: January 27, 2026
** Master. Thang Long University
[1] RICHARD S. SHINE, THE CRIMINAL PROCEDURE MODEL OF THE UNITED STATES FEDERAL SYSTEM in TYPICAL CRIMINAL PROCEDURE MODELS AROUND THE WORLD, edited by TO VAN HOA, Hong Duc Publishing House, Hanoi, 366 (2012).
[2] Danny J. Boggs (1998), The right to a fair trial, University of Chicago Legal Forum: Vol. 1998, Issue 1, Article 2, 1-4 (1998).
[3] Unknow Authors, An Historical Argument for the Right to Counsel during Police Interrogation, The Yale Law Journal 73 No. 6, 1000 (1964), . “Though the colonial provisions about counsel were in accord on few things, they agreed on the necessity of abolishing the facts-law distinction; the colonists appreciated that, if a defendant were forced to stand alone against the state, his case was foredoomed.”
[4] United States v. Wade, 388 U.S. 218 (1967). “It is central to that principle that, in addition to counsel's presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial.”
[5] Samuel Dash, The Emerging Role and Function of the Criminal Defense Lawyer, North Carolina Law Review Vol. 47 No. 3 Art. 4, 612 (1969).
[6] McMann v. Richardson, 397 U.S. 759, 771 (1970). “If the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel, and that judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts.”
[7] McMann v. Richardson, 397 U.S. 759, 771 (1970); Strickland v. Washington, 466 U.S. 668, 686 (1984).
[8] Pamela R. Metzger, Beyond the Bright Line: A Contemporary Right-to-Counsel Doctrine, Northwestern University Law Review Vol. 97, 1640 (2002).
[9] U.S. Const. amend. VI. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
Xem thêm: Johnson v. Zerbst, 304 U.S. 462, 463 (1938). “This is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty … It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.”
See also : Samuel Dash, supra note 6, at 612.
[10] Pamela R. Metzger, supra note 9, at 1640.
[11] Id. at 1640.
See also: John D. King, Beyond “Life and Liberty”: The Evolving Right to Counsel, Harvard Civil Rights–Civil Liberties Law Review, Vol. 48, 1 (2013).
See also: Section 35 of the Judiciary Act of 1789, ch. 20, 1 Stat. 73. Indicating that “parties in federal courts could manage and plead their own causes personally or by the assistance of counsel as provided by the rules of court.”
See also: The Crime Act of April 30, 1790, ch. 9, 1 Stat. 118. Indicating that: “Every person who is indicted of treason or other capital crime, shall be allowed to make his full defense by counsel learned in the law; and the court before which he is tried, or some judge thereof, shall immediately, upon his request, assign to him such counsel not exceeding two, as he may desire, and they shall have free access to him at all reasonable hours.”
See also: Scott v. Illinois, 440 U.S. 367 (1979). “There is considerable doubt that the Sixth Amendment itself, as originally drafted by the Framers of the Bill of Rights, contemplated any guarantee other than the right of an accused in a criminal prosecution in a federal court to employ a lawyer to assist in his defense.”
[12] 18 U.S.C. § 3559 – Sentencing classification of offenses. Crimes under United States law are classified into three categories, including: (1) Felony; (2) Misdemeanor; (3) Infraction. Accordingly, (1) Felony (depending on different translations, it may be rendered as a serious crime or a serious offense) refers to crimes for which the maximum penalty is death and the minimum penalty is imprisonment for a term exceeding one year. (2) Misdemeanor (minor offense, petty offense, or less serious crime) refers to crimes for which the maximum penalty is imprisonment for a term of up to one year and the minimum penalty is imprisonment for a term exceeding five days. (3) Infraction (administrative violation or petty offense) refers to offenses punishable by a fine or detention for no more than five days. Accordingly, capital offenses or capital crimes—crimes for which the death penalty may be imposed—are classified as felonies.
[13] U.S. Government Publishing Office – GPO, Sixth Amendment – Right of Acccused in Criminal Prosecutions, 1647 (2014), https://www.govinfo.gov/content/pkg/GPO-CONAN-REV-2014/pdf/GPO-CONAN-REV-2014-10-7.pdf.
[14] Powell v. Alabama, 287 U.S. 45 (1932).
[15] Johnson v. Zerbst, 304 U.S. 458, 462 (1938).
[16] Johnson v. Zerbst, 304 U.S. 458, 462, 463 (1938). “A person charged with crime in a federal court is entitled by the Sixth Amendment to the assistance of counsel for his defense … The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.”
[17] Pamela R. Metzger, supra note 9, at 1644.
[18] Id.
Xem thêm: John D. King, supra note 12, at 9.
[19] Pamela R. Metzger, supra note 9, at 1644.
Xem thêm: John D. King, supra note 12, at 9. “The Court declined, however, to extend the categorical rule established in Johnson to state criminal proceedings.”
[20] Pamela R. Metzger, supra note 9, at 1644.
[21] Betts v. Brady, 316 U.S. 455, 461, 462, 465 (1942).
Xem thêm: Pamela R. Metzger, supra note 9, at 1645. “Therefore, state court defendants were entitled to appointed counsel only under the general guarantees afforded by the Fourteenth Amendment due process clause, and only if the case presented ‘special circumstances’ indicating that a trial without counsel would violate ‘fundamental fairness essential to the very concept of justice’.”
Xem thêm: U.S. Government Publishing Office – GPO, supra note 14, at 1649. “… although a state denial of a right protected in one of the first eight Amendments might “in certain circumstances” be a violation of due process.”
[22] Betts v. Brady, 316 U.S. 455, 457, 473 (1942). “… appointment of counsel for indigent defendants in criminal cases is not a fundamental right, essential to a fair trial, …”
See also: John D. King, supra note 12, at 9.
See also U.S. Government Publishing Office – GPO, supra note 14, at 1649.
[23] Pamela R. Metzger, supra note 9, at 1645.
[24] Id.
[25] Gideon v. Wainwright, 372 U.S. 335, 338 (1963).
[26] Mary Sue Backus & Paul Marcus, The Right to Counsel in Criminal Cases: Still a National Crisis?, College of William & Mary Law School, Faculty Publications, 1564 – 1565 (2018), https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2935&context=facpubs.
[27] 18 U.S.C. § 3559 - Sentencing classification of offenses.
[28] Gideon v. Wainwright, 372 U.S. 335, 338 (1963).
[29] Gideon v. Wainwright, 372 U.S. 335, 344 (1963). “Govemments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime.”; while there was a “widespread belief that lawyers in criminal courts are necessities, not luxuries.”
See also: Pamela R. Metzger, supra note 9, at 1646.
[30] Gideon v. Wainwright, 372 U.S. 335, 344 (1963). “Any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Xem thêm: John D. King, supra note 12, at page 10.
[31] Gideon v. Wainwright, 372 U.S. 335, 345 (1963). “The Court in Betts v. Brady departed from the sound wisdom upon which the Court’s holding in Powell v. Alabama rested … Twenty-two States, as friends of the Court, argue that Betts was ‘an anachronism when handed down’ and that it should now be overruled. We agree.”
See also: U.S. Government Publishing Office – GPO, supra note 14, at 1651.
[32] In re Gault, 387 U.S. 1 (1967). “There is no material difference in this respect between adult and juvenile proceedings …”
[33] In re Gault, 387 U.S. 1 (1967). The child “requires the guiding hand of counsel at every step in the proceedings against him.”
[34] In re Gault, 387 U.S. 1 (1967). “The child and his parents must be notified of the child's right to be represented by counsel retained by them, or, if they are unable to afford counsel, that counsel will be appointed to represent the child.”
[35] Fred W. Heryford v. Charles W. Parker, 396 F.2d 393 (10th Cir. 1968). “Where, as in both proceedings for juveniles and mentally deficient persons, the state undertakes to act in parens patriae, it has the inescapable duty to vouchsafe due process, and this necessarily includes the duty to see that a subject of an involuntary commitment proceedings is afforded the opportunity to the guiding hand of legal counsel at every step of the proceedings, …”
[36] Argersinger v. Hamlin, 407 U.S. 25 (1972). “In this case, the Supreme Court of Florida erred in holding that petitioner, an indigent who was tried for an offense punishable by imprisonment up to six months, a $1,000 fine, or both, and given a 90-day jail sentence, had no right to court-appointed counsel, on the ground that the right extends only to trials "for non-petty offenses punishable by more than six months imprisonment.”
[37] Argersinger v. Hamlin, 407 U.S. 25 (1972). “Counsel is needed so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution.”
[38] Argersinger v. Hamlin, 407 U.S. 25 (1972). “In addition, the volume of misdemeanor cases, far greater in number than felony prosecutions, may create an obsession for speedy dispositions, regardless of the fairness of the result.”
[39] Argersinger v. Hamlin, 407 U.S. 25 (1972). “The misdemeanor trial is characterized by insufficient and frequently irresponsible preparation on the part of the defense, the prosecution, and the court. Everything is rush, rush.”
[40] Argersinger v. Hamlin, 407 U.S. 25 (1972). “We hold, therefore, that, absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.”
[41] CHARLES H. WHITEBREAD & CHRISTOPHER SLOBOGIN, CRIMINAL PROCEDURE – AN ANALYSIS OF CASES AND CONCEPTS (2ND EDITION), THE FOUNDATION PRESS, NEW YORK, 795 (1986).
[42] McMann v. Richardson, 397 U.S. 759, 771 (1970). “… if the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel, and that judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts.”
[43] Jennifer Williams, Criminal Law—The Sixth Amendment Right to Counsel—The Supreme Court Minimizes the Right to Effective Assistance of Counsel by Maximizing the Deference Awarded to Barely Competent Defense Attorneys. Florida v. Nixon, 125 S. Ct. 551 (2004)., University of Arkansas at Little Rock Law Review Vol. 28, Issue 1, 149 (2005).
See also: Jeffrey L. Kirchmeier, Drink, Drugs, and Drowsiness: The Constitutional Right to Effective Assistance of Counsel and the Strickland Prejudice Requirement, Nebraska Law Review Vol. 75, 425-431 (1996).
See also: Keith Cunningham-Parmeter, Dreaming of Effective Assistance: The Awakening of Cronic's Call to Presume Prejudice from Representational Absence, Temple Law Review Vol. 76, 827, 836 (2003).
See also: Caraway v. Beto, 421 F.2d 636, 637 (5th Cir. 1970); MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960). “We interpret the right to counsel as the right to effective counsel.”
[44] John D. King, supra note 12, at 10 – 13.
[45] Powell v. Alabama, 287 U.S. 45 (1932)
Xem thêm: Pamela R. Metzger, supra note 9, at 1642.
[46] Powell v. Alabama, 287 U.S. 45 (1932).
Xem thêm: John D. King, supra note 12, at 10 – 13.
Xem thêm: Pamela R. Metzger, supra note 9, at 1642 – 1644.
[47] Powell v. Alabama, 287 U.S. 45 (1932)
[48] Pamela R. Metzger, supra note 9, at 1644.
[49] Bruce A. Green, A Functional Analysis of the Effective Assistance of Counsel, A Note, Columbia Law Review Vol. 80, 1053-1057 (1980).
See also: Jeffrey L. Kirchmeier, supra note 44, at 431.
See also: Jennifer Williams, supra note 44, at 161. “The notion of effective assistance of counsel can be found as early as the Powell decision, …”
See also: Glasser v. United States, 315 U.S. 60, 70 (1942); Avery v. Alabama, 308 U.S. 444, 446 (1940); Powell v. Alabama, 287 U.S. 45, 71 (1932).
[50] Bruce A. Green, supra note 50, at 1058.
See also: Jeffrey L. Kirchmeier, supra note 44, at 431.
See also: Keith Cunningham-Parmeter, supra note 44, at 836-837.
See also: Jennifer Williams, supra note 44 , at 161-162.
See also: Diggs v. Welch, 148 F.2d 667, 670 (D.C. Cir. 1945). “They are all cases where the circumstances surrounding the trial shocked the conscience of the court and made the proceedings a farce and a mockery of justice.”
[51] Jeffrey L. Kirchmeier, supra note 44, at 431.
See also: Trapnell v. United States, 725 F.2d 149, 151 (2d Cir. 1983). “By 1962, nine of the eleven circuits were applying the Diggs "farce and mockery" standard … The two remaining circuits adopted the "farce and mockery" standard in 1965 and 1970, respectively.”
[52] CHARLES H. WHITEBREAD & CHRISTOPHER SLOBOGIN, supra note 42, at 795. “Moreover, the “farce and mockery” standard was extrenely vague, …”
[53] Id. at 795. “On its face, the standard put an unduly heavy burden on the defendant.”
See also: Bruce A. Green, supra note 50, at 1058. “For many courts that now acknowledge the independent sixth amendment underpinnings of the right to effective assistance, the “farce and mockery” standard seems to have become little more than a metaphor for the heavy burden imposed upon defendants to demonstrate attorney ineffectiveness.”
[54] Trapnell v. United States, 725 F.2d 149, 151, 152 (2d Cir. 1983).
See also: Bruce A. Green, supra note 50, at 1059.
See also: Jeffrey L. Kirchmeier, supra note 44, at 431.
[55] Jeffrey L. Kirchmeier, supra note 44, at 432.
See also: Caraway v. Beto, 421 F.2d 636, 637 (5th Cir. 1970); MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960).
[56] Moore v. United States, 432 F.2d 730, 739 (3d Cir. 1970). “This standard also makes it clear that … whether counsel’s performance was at the level of normal competency”.
[57] Jeffrey L. Kirchmeier, supra note 44, at 432.
[58] Trapnell v. United States, 725 F.2d 149, 155 (2d Cir. 1983). “There are nonetheless substantial reasons that call for the explicit adoption of a standard of "reasonable competence."
[59] CHARLES H. WHITEBREAD & CHRISTOPHER SLOBOGIN, supra note 42, at 796.
Xem thêm: United States v. DeCoster, 487 F.2d 1197, 1203, 1204 (D.C. Cir. 1973).
[60] Jeffrey L. Kirchmeier, supra note 44, at 433.
[61] McMann v. Richardson, 397 U.S. 759, 771 (1970); Strickland v. Washington, 466 U.S. 668, 686 (1984).
[62] Strickland v. Washington, 466 U.S. 668, 686 (1984). “Government violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense.”
[63] Strickland v. Washington, 466 U.S. 668, 686 (1984). “Counsel, however, can also deprive a defendant of the right to effective assistance, simply by failing to render "adequate legal assistance (actual conflict of interest adversely affecting lawyer's performance renders assistance ineffective).”
[64] Jeffrey L. Kirchmeier, supra note 44, at 434.
See also: Keith Cunningham-Parmeter, supra note 44, at 838.
See also: Jennifer Williams, supra note 44, at 162-163.
Xem thêm: Eve Brensike Primus, Disaggregating Ineffective Assistance of Counsel Doctrine: Four Forms of Constitutional Ineffectiveness, Stanford Law Review 72, No. 6, 1581, 1605-1626 (2020).
[65] Jeffrey L. Kirchmeier, supra note 44, at 434-435
See also: Eve Brensike Primus, supra note 65, at 1584-1585.
See also: Jennifer Williams, supra note 44, at 162-163.
[66] Eve Brensike Primus, supra note 65, at 1628 (footnote 256).
[67] Jeffrey L. Kirchmeier, supra note 44, at 439.
[68] Eve Brensike Primus, supra note 65, at 1626. “A detailed review of the Supreme Court case law reveals that Strickland’s two-pronged test has more defense-friendly layers to it than scholars and courts have recognized. The failure to recognize these developments means that personal ineffectiveness doctrine is not being used by litigants or courts to its full potential.”
[69] John D. King, supra note 12, at 10.
[70] Lauren Lipson, Settling on a Standard: Reviewing the Right to Self-Representation, Fordham Law Review Vol. 94, 1177, 1184 (2025).
[71] Jacob J. Stender, Protect Me from Myself: Determining Competency to Waive the Right to Counsel During Civil-Commitment Proceedings in Washington State, Seattle University Law Review Vol. 35, 973, 976 (2012)
[72] THOMAS J. GARDNER & TERRY M. ANDERSON, CRIMINAL LAW – CHAPTER 12: OBTAINING STATEMENTS AND CONFESSIONS FOR USE AS EVIDENCE, CENGAGE LEARNING, 301 – 303 (2014).
See also: Mark E. Cammack, The Rise and Fall of the Constitutional Exclusionary Rule in the United States, The American Journal of Comparative Law Vol.58, 631, 632-634 (2010).
[73] Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199 (1964). “Incriminating statements thus deliberately elicited by federal agents from the petitioner, in the absence of his attorney, deprived the petitioner of his right to counsel under the Sixth Amendment; therefore such statements could not constitutionally be used as evidence against him in his trial.”
See also: Fellers v. U.S., 540 U.S. 519 (2004). Finding that "implicit questions" and "discussion" about defendant's methamphetamine use constituted a Sixth Amendment violation.
[74] Massiah v. United States, 377 U.S. 201 (1964).
[75] Massiah v. United States, 377 U.S. 201 (1964).
See also: Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232 (1977). “Rather, the clear rule of Massiah is that once adversary proceedings have commenced against an individual, he has a right to legal representation when the government interrogates him.”
[76] Resolution No. 27 of the Central Committee dated November 9, 2022, adopted at the Sixth Plenum of the 13th Central Committee of the Communist Party of Viet Nam, on continuing to build and improve the socialist rule-of-law State of Viet Nam in the new period.
[77] Luong Thi My Quynh, The Right to Counsel in Criminal Procedure in Viet Nam, Germany, and the United States, National Political Publishing House – Truth, Hanoi, 34 (2013).
[78] American Bar Association, Model Rules of Professional Conduct, (2025), https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents/.
[79] Criminal Procedure Code (Consolidated Legal Document No. 46 issued by the Office of the National Assembly, dated February 28, 2025), Article 73.
See also: Law on Lawyers 2006 (Consolidated Legal Document No. 12 issued by the Office of the National Assembly, dated December 12, 2012).
[80] Criminal Procedure Code of 2015, Article 4, Article 358, Article 391.
[81] Phan Trung Hoai, Defense and Protection of the Lawful Rights and Interests of Victims and Litigants, in New Contents of the 2015 Criminal Procedure Code, edited by Nguyen Hoa Binh, National Political Publishing House, Hanoi, 195 (2016).
[82] Resolution No. 27 of the Central Committee dated November 9, 2022.
[83] Resolution No. 66 of the Central Committee dated April 30, 2025, on reforming the work of law-making and law enforcement to meet the requirements of national development in the new era.
[84] Walter W. Steele Jr., The Doctrine of Right to Counsel: Its Impact on the Administration of Criminal Justice and the Legal Profession, SMU Law Review Vol. 23 Issue 3 Art. 4, 506 (1969).
[85] Id. at 506. The frequent presence of defense counsel, even without a fixed schedule, may enhance the effectiveness of oversight over prosecutorial authorities. The element of unpredictability in the lawyer’s presence enables more effective scrutiny than that conducted by state inspection bodies, which typically operate according to pre-announced schedules, thereby allowing inspected entities time to prepare and conceal deficiencies or violations.
