Counsel, Right To

Counsel, Right To The Sixth Amendment to the Constitution dictates that “[i]n all criminal prosecutions, the accused shall … have the Assistance of Counsel for his defence.” For the better part of American history, this guarantee assured that those persons who could afford counsel would have one. Over time the Supreme Court has interpreted this Sixth Amendment provision in an expansive way, first by adding requirements to provide counsel and second by specifying the stages where counsel is required.

The Court began to expand the class of defendants entitled to legal counsel in criminal cases with its decision in Powell v. Alabama (1932), where it ruled that defendants in state capital cases were entitled to legal assistance. Six years later in Johnson v. Zerbst, the Court ruled that the Sixth Amendment required the appointment of counsel for all felony defendants in federal courts. In a break from this expansive pattern, the Court rejected a similar mandate for state felony courts in Betts v. Brady (1942), where it held that the appointment of counsel for indigents in state felony cases should be dictated by the circumstances of the case. Betts was overruled twenty‐one years later in one of the Supreme Court's most important decisions, Gideon v. Wainwright (1963). The Court ruled that counsel is required for defendants in all state felony cases. This guarantee was extended to misdemeanors in Argersinger v. Hamlin (1972) and Scott v. Illinois (1979), although the Court concluded that misdemeanor courts are not required to appoint counsel where imprisonment is possible but not specified.

Related to the Court's requirement of counsel for indigents are the specifications regarding the stages in criminal procedure where counsel is required. The Sixth Amendment holds that the assistance of counsel is required in all criminal prosecutions. In several twentieth‐century decisions the Court has interpreted this to include arraignment, trial, and sentencing. Specifically, the right to counsel is mandated for lineups (United States v. Wade, 1967), for pretrial arraignments (Hamilton v. Alabama, 1961), for preliminary hearings (Coleman v. Alabama, 1970), for trials (Gideon v. Wainwright, Argersinger v. Hamlin, Scott v. Illinois), for sentencing (Mempa v. Rhay, 1967), and at first, automatic appeals (Douglas v. California, 1963). However, the Court has ruled that there is no right to counsel in discretionary appeals beyond the first appeal of right (Ross v. Moffit, 1974).

The right to counsel mandated by the Court for police interrogations in the famous Miranda v. Arizona decision of 1966 derived from the Fifth Amendment's privilege against self‐incrimination, and not the Sixth Amendment's guarantee. In contrast to these expansive holdings, the Court has declined to extend the right to counsel to grand jury processes (U.S. v. Mandujano, 1976), or to postconviction procedures beyond sentencing. The latter includes probation and parole revocation proceedings that do operate under some due process norms (Gagnon v. Scarpelli, 1973; Morrissey v. Brewer, 1972).

More recent holdings have considered the constitutionality of self‐representation (Faretta v. California, 1975) where the Court, in effect, accepted the idea that “fools” may choose to represent themselves. The Court, however, acknowledged some limitations, specifically concluding in Martinez v. Court of California (2000) that the holding in Faretta does not apply when the defendant becomes an appellant as “the Sixth Amendment does not apply to appellate proceedings.”

In other cases, the Court has also considered the quality of legal representation. The central holding on this last point is Strickland v. Washington (1984), where the Court ruled that the Sixth Amendment right to counsel can be infringed by incompetent counsel. Here defendants must establish that counsel's performance was deficient, that that performance prejudiced the case, and that were it not for that deficiency, the defendant would have been acquitted. As illustrated in Burdine v. Johnson, a 2001 Fifth Circuit decision where the appellant claimed that counsel slept through part of his trial, courts have some difficulty interpreting the Supreme Court's holding in Strickland. The Court, however, shows no sign of trying to refine Strickland, concluding in Micken v. Taylor (2002), for example, that a defense attorney's evident conflict of interest does not constitute ineffective counsel unless the defendant can establish that it had an adverse effect on performance. In a somewhat more expansive 2003 ruling (Massaro v. United States), though, the Court concluded the defendants could raise ineffective counsel claims in collateral processes even if they were not raised on direct appeal.

In spite of the Supreme Court's expansive interpretation of the Sixth Amendment right to counsel, several issues remain. The Court has offered no standards related to indigency nor has it required any particular system for public assistance. In spite of this silence, it is clear that the Supreme Court's decisions relative to right to counsel constitute important precedents for criminal procedure. The assistance of counsel, more than any other dimension of due process, evokes general American support for fair play and reflects the centrality of attorneys in the adversarial tradition of Common Law Countries.

See also Due Process, Procedural; Sixth Amendment.

Susette M. Talarico