Counsel: Right to Counsel

The constitutional right to counsel has its roots in four separate constitutional provisions. The most explicit of these is the Sixth Amendment, quoted above. Like the rest of the Bill of Rights, the Sixth Amendment applied originally only to criminal prosecutions brought by the federal government.

As with most of the other provisions dealing with the criminal justice process, however, the Sixth Amendment came to be "incorporated" against the states through a second constitutional provision—the due process clause of the Fourteenth Amendment. In a series of cases beginning in the 1930s (Palko v. Connecticut, 302 U.S. 319 (1937)), the Supreme Court held that provisions of the Bill of Rights that were "implicit in the concept of ordered liberty" and thus necessary for a trial to be fundamentally fair were to be applied in state-court proceedings as well. In Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court held that the Sixth Amendment's guarantee of counsel to indigent defendants was so fundamental and essential to a fair trial that the due process clause required states to provide counsel to all indigent defendants in felony cases.

In addition to the Sixth Amendment–based right, the Supreme Court has found a right to counsel within the Fifth Amendment's privilege against self-incrimination (also made applicable to the states through incorporation). In Miranda v. Arizona, 384 U.S. 436 (1966), the Court held that an individual who is taken into police custody "must be clearly informed that he has the right to consult with a lawyer and to have that lawyer with him during interrogation" since otherwise he may be unable to protect his right not to be a witness against himself.

Finally, the equal protection clause of the Fourteenth Amendment has been held to require the appointment of counsel for indigent defendants in first appeals as of right following their convictions (Douglas v. California, 372 U.S. 353 (1963)). The precise analytic contours of the equal protection right to counsel are somewhat fuzzy, perhaps because the cases applying the equal protection clause to the criminal justice process arose largely during a period when the Warren Court seemed to be moving toward treating wealth as a quasi-suspect classification. The Burger and Rehnquist Courts have repudiated that position, but they have left Douglas and Griffin v. Illinois, 351 U.S. 12 (1956), in place. In the end, the equal protection rationale seems mostly to reflect the Court's discomfort in using the due process clause to require the appointment of counsel on appeal when the Court had declined to hold that the due process clause requires providing appeals in the first place (see, e.g., Martinez v. California, 526 U.S. 152, 161 (2000), reiterating that "the Sixth Amendment does not apply to appellate proceedings").