APPENDIX

Right to Assistance of Counsel

United States Puerto Rico

1) Powell v. Alabama, 287 U.S. 45 (1932). The right to be heard includes the . right to be heard effectively by counsel, and a state conviction for an offense which may entail capital punishment (rape) with- • out complying with that requisite violates the due process of law of the Fourteenth Amendment.

2) Johnson v. Zerbst, 304 U.S. 458 (1941). The right to assistance of counsel after the information has been pre- . sented is absolute, as required by the Sixth Amendment, unless such right is expressly and in- ¡ telligently waived. (Possessing and passing coun- ■ terfeit money.)

*7223) Betts v. Brady, 316 U.S. 455 (1942). A state is not bound constitutionally to furnish counsel at the trial of an indigent defendant at all times and under any circumstances. Reversed in Gideon v. Wainright, 372 U.S. 335 (1963).

4) Carter v. Illinois, 329 U.S. 173 (1946); The need for assistance of counsel exists from arraignment to sentencing, .inclusive.

*7245) Dorsey v. Gill, 148 F.2d 857 (1945) cert, denied, 325 U.S. 890. There is no constitutional right to be represented by counsel in habeas corpus proceedings before the federal courts.

6) In re Groban, 352 U.S. 330 (1957). There is no violation of the due process of law in denying to a person the right to assistance of counsel in an investigation conducted before a Fire Marshal which does not amount to a criminal prosecution.

7) Chessman v. Teets, 354 U.S. 156 (1957). There is right to assistance of counsel throughout the settlement of the trial record.

*7258) Crooker v. California, 357 U.S. 433 (1958). A confession made to the police after expressly denying him the right to assistance of counsel at that stage does not necessarily render the confession thus obtained inadmissible at the trial. The due process of law is not violated by the states unless such denial infects the proceeding with an absence of that fundamental fairness essential to the concept of justice.

9) Cicenia v. Lagay, 357 U.S. 504 (1958). The holding is the same as in Crooker, supra, to the effect that the question whether or not the lack of counsel at that stage constituted lack of justice was to be determined from all the concurring circumstances.

*72610) Hamilton v. Alabama, 368 U.S. 52 (1961). There is right to assistance of counsel at the time of arraignment whenever such act constitutes a critical stage in the criminal proceeding.

11) Gideon v. Wainright, 372 U.S. 335 (1963). The right to assistance' of counsel guaranteed by the' Sixth Amendment is fundamental and essential to a fair trial.' Refusal of a state to grant assistance of counsel violates the due process of law guaranteed by the Fourteenth Amendment. (The offense in this case was a felony not punishable by death.) Betts v. Brady, supra. Reversed.

12) Douglas v. California, 372 U.S. 353.(1963). Denial of assistance of counsel on appeal to indigent persons constitutes, discrimination.

13) White v. Maryland, 373 . U.S. 59 (1963). Where the ■ preliminary hearing constitutes a critical stage *727in the criminal proceeding, a conviction based on a plea of guilty before the magistrate without assistance of counsel violates the Fourteenth Amendment.

14) Massiah v. United States, 377 U.S. 201 (1964). Incriminating statements elicited by federal agents from defendant, in the absence of his attorney, violate the right to assistance of counsel under the Sixteenth Amendment.

15) Escobedo v. Illinois, 378 U.S. 478 (1964). Where the investigation of a crime is no longer a general inquiry and begins to focus on a particular suspect from whom the police elicits a confession after requesting and being denied the right to counsel, such action is unconstitutional. Under the circumstances of this case, defendant is entitled to counsel in the investigatory stage.

*7211) Martínez v. Crosas, 28 P.R.R. 713 (1920). The Bill of Rights, Art. 2, second paragraph, of the Jones Act, and the act creating the Grand Jury grant the right to assistance of counsel during the drawing and challenging of the jury.

2) People v. Sierra, 44 P.R.R. 76 (1932); Zabala v. Rivera, Warden, 71 P.R.R. 807 (1950); People v. López Rivera, 89 P.R.R. 774 (1964), footnote 1. There is no constitutional or statutory right to assistance of counsel during the appellate stage.

*7223) Ex Parte Hernández, 54 P.R.R. 396 (1930). Having examined Johnson v. Zerbst and the Act of March 9, 1905 relative to the appointment of defense counsel in criminal prosecutions entailing life imprisonment or capital punishment, the failure to inform defendant of his right to be represented' by counsel at the trial and to designate one in an of- ' fense which may entail • life imprisonment is error (rape).

4) Cases subsequent to Her-nández, supra, placed on the 'second paragraph of • Art. 2 of the Jones Act of 1917, Bill of Rights, a scope. identical with that placed by. the Federal Supreme Court in Zerbst on the Sixth Amendment un-qualifiedly establishing the right to assistance of counsel both during the trial and during arraignment, unless there is an express, conscientious and intelligent ' waiver. And this without being limited, as was done in Powell v. *723Alabama, to felonies, once the guarantee was also extended to misdemeanors. See Santiago, v. District Court, 54 P.R.R. 577 (1939), attempt to kill; People v. Correa, 54 P.R.R. 755 (1939), extortion; People v. Mercado, 54 P.R.R. 859 (1939), burglary in the first degree; People v. Santana, 55 P.R.R. 231 (1939), illegal use of explosives (misdemeanor) ; Ex parte Oropesa, 55 P.R.R. 274 (1939), murder; Ex parte Rodríguez, 55 P.R.R. 403 (1939), burglary in the second degree (misdemeanor) ; People v. Ortiz, 57 P.R.R. 457 (1940), breach of peace (misdemeanor); Dijols v. Lugo, Warden, 58 P.R.R. 5 (1911), illegal practice of the legal profession (misdemeanor) ; Ex parte Casellas, 58 P.R.R. 107 (1941), aggravated assault (misdemeanor); Veguilla v. Saldaña, Warden, 58 P.R.R. 877 (1941), murder in the second degree; Jiménez *724v. District Court, 59 P.R.R. 29, voluntary manslaughter.

5) Ex parte Resto, 55 P.R.R. 700 (1939); Berríos v. Saldaña, 59 P.R.R. 895 (1942). A defendant is entitled to assistance of counsel at the time of arraignment.

6) Quiñones v. Saldaña, 61 P.R.R. 75 (1942). Our positive law does not require that a defendant be assisted by counsel at the time of arraignment. Overruled in Ruíz v. Rivera, Warden, 71 P.R.R. 499 (1950).

7) People v. Travieso, 60 P.R.R. 518 (1942); People v. Montes, 64 P.R.R. 306 (1944); People v. Rivera, 66 P.R.R. 207 (1946); Rivera v. Delgado, Warden, 80 P.R.R. 800 (1958); Soto Ramos v. Supt. Granja Penal, 90 P.R.R. 711 (1964). There is no constitutional right to assistance of counsel at the stage prior to arraignment, but the conviction *725shall not prevail of such deprivation, if transferred to the trial, constitutes an impartial prosecution.

8) Ruiz v. Rivera, Warden, 71 P.R.R. 499 (1950); Reyes v. Delgado, 81 P.R.R. 906 (1960). There is right to assistance of counsel at the time of passing sentence. Quiñones v. Saldaña, 61 P.R.R. 75 (1942), was expressly overruled. See Carter v. Illinois, supra (1946).

9) Capeles v. Delgado, Warden, 83 P.R.R. 668 (1961). Irrespective of whether or not petitioner is entitled to assistance of counsel in a habeas corpus hearing whenever such proceeding raises an issue of facts, the failure to designate counsel is error.

*72610) People v. Figueroa García, 91 P.R.R. 707 (1965). The applicability of Escobedo, supra, is examined and distinguished on the basis of its facts.

11) See our Rules 22(c) and 23 (a) of the Rules of Criminal Procedure of 1963. Also, Rules Nos. 4 and 57.