The Rights of the Accused before Trial

Of course the accused--assuming he pleads "not guilty" in a hearing--will eventually have to speak in his defense, either personally or, as is more likely, through legal counsel. The right to representation by an attorney is guaranteed in the Sixth Amendment, but the Court did not begin to explore the implications of this guarantee until 1932, with Powell v. Alabama. In this, the celebrated case of the Scottsboro boys, a group of young black men accused of raping two white women in Alabama, the Court found that the accused had been denied the right to legal counsel, and its ruling extended the application of this right from the federal government to the states. As Justice George Sutherland wrote for the majority in Powell, "The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.... Without it [the accused] though he be not guilty... faces the danger of conviction because he does not know how to establish his innocence."

As with other rights discussed here, the right to counsel is as important prior to trial as it is when the trial commences; indeed, in Powell, the Court described the pre-trial phase as "the most critical." There is an old saying that "he who speaks in his own defense has a fool for a lawyer," and this would seem to be true even if the accused is himself an attorney. But it is perhaps particularly so when the accused lacks education, as is often the case with economically disadvantaged defendants--precisely the people who cannot afford to pay legal counsel. For years, it was generally believed that the Sixth Amendment implied that the court should appoint legal counsel to indigent, or poor, defendants in federal cases, and Gideon v. Wainwright (1963) opened the way for making court-appointed legal counsel a practice in the states as well.

Among the areas in which legal counsel is most helpful in the pre-trial phase is during interrogation, or questioning by police following arrest. The Court upheld the right to have counsel present during interrogation in Escobedo v. Illinois (1964), and reinforced its holding two years later with the Miranda ruling. The presence of a lawyer at a police lineup is also extremely important. In a lineup, the accused is required to stand alongside other persons, often of similar description, while a witness or witnesses attempt to identify the person they saw committing the crime. The 1992 film The Player contains a memorable scene in which police officers attempt to influence the recollections of a witness in order to compel identification of a suspect they believe to be the guilty party--a dramatic example of the need for legal counsel at the lineup.