Right to Assistance of Counsel | History and Analysis

In 1791, the United States ratified the Bill of Rights after declaring their independence from Great Britain. The purpose of the Bill of Rights, the first Ten Amendments to the U.S Constitution, were to protect the freedom and liberties of individuals from being impeded upon by the government. The Sixth Amendment reads, “In all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defense.”[1] The lack of direction and ambiguity of this “Right to Assistance of Counsel” has required the need of the Supreme Court to interpret the procedural application of this fundamental right. The Supreme Court has interpreted, through judicial precedence, how the right to counsel is applied today. Historically, at the time of its inception, most defendants appeared before the court pro se. However, when own unique laws were adopted and laws became increasingly complicated, the need for the assistance of counsel subsequently rose. The right to counsel is a fundamental right inherent to the due process of the law for individuals charged with crimes.[2]

The Right to Counsel first originated as a deviation or rejection of the English common law principle that prohibited defendants accused of criminal conduct to be allowed the assistance of counsel. Having found this principle to be hypocritical and contradictory to the inherent freedoms and liberties afforded to individuals, the Founding Fathers adopted a new principle that defendants in criminal trials should be guaranteed the right to be represented by an attorney. The right to counsel has evolved since its inception. The right to the assistance of counsel explicitly appears in the Sixth Amendment of the U.S Constitution, but its vague reference brought it upon the Courts to determine its applicability.[3]

One of the earlier cases with reference to the assistance of counsel to appear in front of the Supreme Court is Powell v. Alabama, 287 U.S 45 (1932).However, this case concerns the due process clause of the Fourteenth Amendment. In Powell v. Alabama, a group of African American men were accused of raping two white women in Alabama. The group of men were denied adequate counsel and were hastily put on trial caused by the hostile pressure of the local community. The defendants were illiterate and uneducated but were forced to stand trial without adequate counsel. Each defendant was sentenced to death for the alleged rape with insufficient evidence and an inadequate trial. The Supreme Court ruled that the trial court denied the defendants due process protected by the Fourteenth Amendment and established a precedent for State responsibility to provide counsel to defendants accused of capital offenses. The court held 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, feeble mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law.” [4]

The Court also established the right of the accused to have sufficient time to advise with counsel and to prepare a defense. The majority opinion in this case stated that these rights were fundamental rights guaranteed by the Due Process Clause of the Fourteenth Amendment.[5] The responsibility for the Government to appoint defendants an attorney is hereby established. However, this right only applied to capital crimes.

The right to counsel applied only to defendants faces capital offenses, until 1938 when the Supreme Court would extend the protections of the Sixth Amendment to defendants in federal court. In Johnson v. Zerbst, 304 U.S 458 (1938), the Court granted the right to counsel to defendants in federal court and granted the defendant the ability to waive them. The defendant must waive their right to counsel intelligently.[6] The guidelines of the Supreme Court make it incumbent upon the courts to protect defendants’ right to counsel; if the defendant wish to waive their rights, the defendant must be competent and aware of the potential consequences of doing so.[7]

In Gideon v. Wainwright, 372 U.S 335 (1963), the Supreme Court extended the Government requisite to appoint assistance to counsel to all felony defendants, including those tried in State Court. Clarence Gideon was accused of breaking and entering in the state of Florida. Upon entering the Court room, Gideon expressed that he wanted a lawyer and was unable to afford one. Gideon requested that the Court appoint him counsel to assist in his defense. The judge denied his request citing a Florida statute that only guaranteed defendants the right to counsel if they are facing a capital offense. Gideon was subsequently found guilty and sentenced to five years in prison. Upon hearing the case, the Supreme Court ruled that “the right of an indigent defendant in a criminal trial to have the assistance of counsel is a fundamental right essential to a fair trial, and petitioner’s trial and conviction without the assistance of counsel violated the Fourteenth Amendment.”[8]This case overruled the previous precedent set in Betts v. Brady that did not require the state to provide counsel to indigent defendants. In his habeas corpus petition to the Supreme Court, Gideon claimed that the lower courts denied him his right to due process by denying him the assistance of counsel.

In the majority opinion of Gideon v. Wainwright, the Supreme Court ruled that “in our adversary system of criminal justice, 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. This seems to us to be an obvious truth…necessities, not luxuries.”[9] One rationale that motivated the decision of the Supreme Court focused on the comparison of the State responsibility to present the prosecution of State crimes, therefore, the State should also bear the responsibility to provide a defense for those individuals the State wish to prosecute. This decision held for the first time that it is the State’s responsibility to appoint counsel for felonious defendants that are incapable of providing counsel for himself. This new precedent requiring State appointed counsel for felony offenders is incorporated in the Massiah Doctrine and Miranda Rights which emanate from Massiah v. U.S, 377U.S 201 (1964) and Miranda v. Arizona, 384 U.S 436 (1966). The two cases begin to outline more clearly the modern application of the right to counsel and the full scope of protections afforded by the Fifth, Sixth, and Fourteenth Amendments. 

In Massiah v. U.S, the petitioner had been indicted on narcotics charges and during the proceedings Massiah retained a lawyer and was released on bail. Massiah and another defendant were charged for the same crimes but when his accomplice decided to cooperate with authorities, federal agents installed a listening device in the vehicle of Massiah’s accomplice. The petitioner argued that the court should not have allowed the evidence seized against Massiah to be admissible due to the unconstitutional methods of collecting it, since Massiah had previously retained an attorney. The Court held in Massiah v. U.S, that the petitioner’s Fifth and Sixth Amendment rights were violated by the use of evidence against him by unconstitutional means of collection incriminating statements when government agents deliberately elicit the evidence in the absence of his retained counsel.[10] This ruling carves out a precedent that in circumstances where a defendant has invoked their right to counsel law enforcement agents are prohibited from attempting to extract evidence from the defendant without their attorney present. Any evidence collected in such an unconstitutional manner would be inadmissible. The Court also makes it clear that the right to counsel begins concurrently with initiation of “adversarial proceedings.”[11]

In Brewer v. Williams, 430 U.S 387 (1977), the court reaffirmed the notion that when a defendant invokes their right to counsel the police are prohibited from attempting to elicit incriminating evidence through interrogations without the presence of counsel. This precedent is reaffirmed as a result of a case where the police were transporting a defendant that had expressed his desire for a lawyer and stated several times that he is interested in remaining silent until his attorney is present. During the transportation of the Petitioner, the police officers gave what has famously been become known as the “Good Christian Burial Speech.” The court held that statements provided under the provocation of law enforcement officials, after an individual in custody has invoked their right to counsel are inadmissible. The Court also held is it unconstitutional for the police to use deceptive tactics to influence the defendant into waiving their right to counsel and a response to an inquiry does not necessarily imply the defendant has knowingly waived such right. Such burden would remain on the prosecution to prove the defendant had intelligently waived such rights.[12]

The Miranda Rights were a result in a rise of cases in which the defendants that were subjected to custodial interrogation, a requisite precursor for the right to attorney, had made incriminating statements without being informed of their rights and were subsequently charged and convicted with crimes. As a result of Miranda v. Arizona, the Court provided explicit guidelines that law enforcement is responsible to abide by to ensure the individuals are properly informed of their rights. “Accordingly, we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation.”[13] This ruling combines the Fifth Amendment and Sixth Amendment to protect defendants during police interrogations by requiring officers to inform defendants of their rights in conjunction with an overt acknowledgment or expressed waiver of their rights.

In 1967, the Supreme Court would also apply the adult standard to juvenile defendants as well. In In Re Gault, 387 U.S 1 (1967), the court held that withholding juvenile defendants from certain constitutional protections was a constitutional violation. The petitioner claimed an Arizona state law was unconstitutional for restricting juvenile defendants of the same due process rights for adults. As a result, the court held that “there is no material difference in this respect between adult and juvenile proceedings of the sort here involved…in such proceedings, the child and his parents must be advised of their right to be represented by counsel and, if they are unable to afford counsel, that counsel will be appointed to represent the child.”[14] A juvenile delinquent is to be afforded the right to counsel in circumstances where the offenders charges result in incarceration.

The Supreme Court in 1972, citing reasoning In Re Gault, extended the right to counsel to all circumstances in which the defendant is facing possible jail time. The Court held in Argersinger v. Hamlin, 407 U.S 25 (1972)that an indigent defendant is not only entitled to counsel when facing serious charges but the Sixth and Fourteenth Amendments protect defendants being charged with misdemeanor crimes with the possibility of a jail sentence. To guarantee fairness and due process, the Court held that states had the responsibility to extend the right to appointed counsel to defendants facing either felony or misdemeanor charges that involve the possibility to incarceration. The precedent set forth in Argersinger protects a defendant from being sentenced to prison without the assistance of counsel once they have invoked such right.[15] However, as clarified in Scott v. Illinois, 440 U.S 367 (1979), the Sixth and Fourteenth Amendments require that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense, but do not require a state trial court to appoint counsel for a criminal defendant that is not imminently facing imprisonment.[16]

In the case Strickland v. Washington, 466 U.S 669 (1984), the court clearly outlines the requirements of the right to counsel in terms of the actions and responsibility of attorneys to fulfill requisite effective assistance of counsel. In this case, the court determines a test for the adequacy and efficacy of the assistance of counsel. “The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.”[17] To substantiate a defendant’s ineffective counsel claim, the Court must weigh the impact of the totality of the circumstances impacted by the deficient counsel, as well as any resulting prejudice in the adjudication and disposition of the case in question. The court must find that in conjunction with ineffective counsel, the disposition of the case would have resulted in a significantly different result.[18] 

The need for the effective assistance of counsel is highlighted by one of the most recent cases to be argued in the Supreme Court. In the case of Buck v. Davis, 580 U.S __ (2017), the Supreme Court held the Mr. Buck’s attorney failed to meet an objective standard of efficient counsel by allowing evidence to be introduced against his client that resulted from expert-witness testimony implicating Mr. Buck’s race to establish a death penalty conviction. The Court overwhelming agreed that the defendant was denied effective assistance of counsel and the introduction of the defendant’s race was inherently prejudice to the outcome of the trial. By allowing such testimony to be admitted, Mr. Buck’s counsel failed to provide adequate legal assistance as set forth in Strickland.[19]

There has been an increasingly support for expanding the right to counsel for all criminal proceedings. The main proponents of this expansion argue that the reasoning of the courts in previous right to counsel issues has expressed the intent to protect the layman without an extensive knowledge of the law from being wrongfully prosecuted. The consequences of prosecuting a defendant without the full awareness and comprehension of his crimes would not allow him the full right to defend himself against his accusers. As a result, the previous courts have broadened the application of the right to counsel to conform with the evolution of the laws. As misdemeanor laws and the court proceedings are becoming more and more complicated, there are lawyers and law experts that are proposing an extension of the right to counsel for all criminal cases. They warn against the unintended or collateral consequences that result from pleading guilty to a misdemeanor to avoid the complicated and untimely process of pro se representation.[20]

Opponents to expanding the rights of counsel often cite two critiques. “First, as with every previous proposal to expand the scope of the right to court-appointed counsel, issues of cost are in the fore. Such cost-based arguments have been made against every expansion of the right to counsel. Second, it is widely acknowledged that the current system of indigent defense representation fails to deliver effective representation to those facing criminal charges, even in serious crimes.”[21] However, supporters of the notion to extend the rights of counsel are quick to point out that many states already provide a more comprehensive right to counsel than the bare bones federal constitutional requirement and therefore, the cost or management of such an expenditure would be feasible to endure.[22] To address the concerns that extending the right to counsel to all criminal cases would overwhelm the current justice system of public defendants and court attorneys, advocates explain that to mitigate such congestion and to protect the defendants constitutional right to an attorney lawmakers may reclassify certain conduct out of the criminal jurisdiction.[23] This is evident recently in New York. In an effort to alleviate the exorbitant amount of traffic within the New York City Court, the mayor signed a bill that would reclassify some lower-level crimes to divert defendants from an inundated criminal court system.[24] Some law experts argue that the current state of indigent defense representation is dysfunction and fails to assure adequate assistance for defendants. “Professor Erica Hashimoto has argued that states should creatively and pragmatically reduce the number of cases in which counsel must be appointed in order to save the system’s resources for those cases where counsel is most needed and useful.”[25]

Sources:

1. U.S Const. Amend VI

2. III, Edmin Meese, Matthew Spalding, David Forte, and David Forte Matthew Spalding. “The Heritage Guide to The Constitution.” Guide to the Constitution. N.p., 2017. Web. <http://www.heritage.org/constitution#!/amendments/6/essays/158/right-to-counsel-clause>.

3. “Liberty versus Tyranny.” Sixth Amendment Center. N.p., n.d. Web. <http://sixthamendment.org/the-right-to-counsel/history-of-the-right-to-counsel/liberty-versus-tyranny/>.

4. Powell v. Alabama, 287 U.S 71 (1932)

5. Johnson v. Zerbst, 304 U.S 458 (1938)

6. Gideon v. Wainwright, 372 U.S 344 (1963)

7. Massiah v. United States, 377U.S 201 (1964)

8. Miranda v. Arizona, 384 U.S 436 (1966)

9. Brewer v. Williams, 430 U.S 387 (1977)

10. In Re Gault, 387 U.S 1 (1967)

11. Argersinger v. Hamlin, 407 U.S 25 (1972)

12. Scott v. Illinois, 440 U.S 367 (1979)

13. Strickland v. Washington, 466 U.S 669 (1984)

14. Alabama v. Shelton, 535 U.S 654 (2002)

15. Buck v. Davis, 580 U.S __ (2017)

16. John D. King, Beyond “Life and Liberty”: The Evolving Right to Counsel, 48 Harvard Civil Rights L. Rev. 39-45 (2013).

17. Goodman, J. David. “New York City Is Set to Adopt New Approach on Policing Minor Offenses.” The New York Times. The New York Times, 20 Jan. 2016. Web. <https://www.nytimes.com/2016/01/21/nyregion/new-york-council-to-consider-bills-altering-how-police-handle-minor-offenses.html?_r=0>.

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[1] Amendment VI of U.S Constitution

[2] Powell v/ Alabama, 287 U.S 45 (1932)

[3] III, Edmin Meese, Matthew Spalding, David Forte, and David Forte Matthew Spalding. “The Heritage Guide to The Constitution.” Guide to the Constitution. 2017. Web.

[4] Powell v. Alabama, 287 U.S 71 (1932)

[5] Powell v. Alabama, 287 U.S 71 (1932)

[6] Johnson v. Zerbst, 304 U.S 458 (1938)

[7] Johnson v. Zerbst, 304 U.S 458 (1938)

[8] Gideon v. Wainwright, 372 U.S 335 (1963)

[9] Gideon v. Wainwright, 372 U.S 344 (1963)

[10] Massiah v. United States, 377 U.S 204 (1964)

[11] Massiah v. United States, 377 U.S 201 (1964)

[12] Johnson v. Zerbst, 304 U.S 458 (1938), Brewer v. Williams, 430 U.S 387 (1977)

[13] Miranda v. Arizona, 384 U.S 471 (1966)

[14] In Re Gault, 387 U.S 36-40 (1967)

[15] Argersinger v. Hamlin, 407 U.S 25 (1972)

[16] Scott v. Illinois, 440 U.S 370 (1979)

[17] Strickland v. Washington, 466 U.S 687 (1984)

[18] Strickland v. Washington, 466 U.S 687 (1984)

[19] Buck v. Davis, 580 U.S __ (2017)

[20] John D. King, Beyond “Life and Liberty”: The Evolving Right to Counsel, 48 Harvard Civil Rights L. Rev. 1-10 (2013).

[21] John D. King, Beyond “Life and Liberty”: The Evolving Right to Counsel, 48 Harvard Civil Rights L. Rev. 39 (2013).

[22] John D. King, Beyond “Life and Liberty”: The Evolving Right to Counsel, 48 Harvard Civil Rights L. Rev. 40 (2013).

[23] John D. King, Beyond “Life and Liberty”: The Evolving Right to Counsel, 48 Harvard Civil Rights L. Rev. 41 (2013).

[24] Goodman, J. David. “New York City Is Set to Adopt New Approach on Policing Minor Offenses.” The New York Times. The New York Times, 20 Jan. 2016. Web.

[25] John D. King, Beyond “Life and Liberty”: The Evolving Right to Counsel, 48 Harvard Civil Rights L. Rev. 43 (2013).