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>.

[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).