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bail, Gideon, right to counsel, sua sponte, indigent defendants, fair trial


Recently, the Maryland Court of Appeals became the first state court of last resort to reject Gideon v. Wainwright’s guarantee of counsel at the bail stage. In ruling sua sponte that bail is not a critical stage entitling indigent defendants to invoke their constitutional right to counsel, the Fenner Court held that statements offered by an unrepresented and non-Mirandized indigent defendant were admissible at trial. I contend that the Fenner ruling may transform the pretrial fact-gathering process by providing prosecutors with an additional source of evidence against indigent defendants, namely statements made at a judicial proceeding for the purpose of seeking pretrial release. In my article, I explain the widespread state court practice of denying indigent defendants counsel at bail and suggest that other state courts may soon be faced with the same issue. I caution against judicial rulings of class-based, constitutional issues without full briefing and argument and guaranteeing the affected class of indigent defendants are given the opportunity to be heard. I also argue that the presence of counsel at the bail stage is critical toward protecting an accused’s right to a fair trial and argue that Gideon should extend to a defendant’s initial judicial appearance.

Publication Citation

35 Seton Hall Law Review 653 (2006).


Criminal Procedure | Law