Counsel: Right to Counsel - The Sources Of The Constitutional Right To Counsel, A Framework For Thinking About When The Constitutional Right To Counsel Attaches
The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." Over the past seventy-five years, the contours of this constitutional right have expanded dramatically. Originally, the Sixth Amendment simply ensured that the defendant in a federal criminal case who could afford to hire counsel would be entitled to appear through a lawyer, rather than being forced to defend himself. But beginning in the early 1930s, and expanding over the next three decades, the U.S. Supreme Court and state supreme courts came to require the government to provide lawyers to the vast majority of criminal defendants who could not afford to hire a lawyer. As other aspects of criminal law and procedure have become increasingly complex, the need for counsel has grown correspondingly. Moreover, the greater complexity of constitutional criminal procedure—for example, the intricate rules governing the admission of evidence and appropriate jury instructions—means that defendants need not only a lawyer's physical presence; they need effective assistance. Much of the doctrinal development of the past twenty years, then, has focused not on when a lawyer must be provided—a question largely answered by the 1980s—but on how a lawyer must perform in order to realize the Sixth Amendment's guarantee.
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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 A…
While both the Fifth Amendment and the Sixth Amendment contain guarantees of the right to counsel, their applications differ significantly along two important dimensions. First, the Fifth Amendment right is spatially limited, while the Sixth Amendment right is temporally limited. Second, the Supreme Court treats waiver of the Fifth Amendment right to counsel far less skeptically than it treats wai…
While "[i]t has long been recognized that the right to counsel is the right to the effective assistance of counsel" (McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970)), it was not until the mid-1980s that the Supreme Court began to articulate a test for deciding when a defendant has been denied the right to effective assistance. The seminal cases were Strickland v. Washington, 46…
In Faretta v. California, the Supreme Court held that the Sixth Amendment also guarantees the defendant in a criminal trial "a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so." Faretta was based on three interrelated arguments. First, historical evidence showed that a right of self-representation had existed since the founding. Se…
From the very outset of its modern Sixth Amendment jurisprudence, the Supreme Court has recognized that "it is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice" (Powell v. Alabama, at 53). Thus, lower courts have reversed defendants' convictions when they are unreasonably de…
American Bar Association. ABA Standards for Criminal Justice: Providing Defense Services, 3d ed. Washington, D.C.: American Bar Association, 1992. …
Argersinger v. Hamlin, 407 U.S. 25 (1972). Berkemer v. McCarty, 468 U.S. 420 (1984). Brewer v. Williams, 430 U.S. 387 (1977). Burger v. Kemp, 483 U.S. 776 (1987). Coleman v. Alabama, 399 U.S. 1 (1970). Coleman v. Thompson, 501 U.S. 722 (1991). Colorado v. Connelly, 479 U.S. 157 (1986). Davis v. United States, 512 U.S. 452 (1994). Douglas v. California, 372 U.S. 353 (1963). Estelle v. Smith, 451 U.…
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