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Right to Counsel

The legal responsibility for the government to provide every defendant in a criminal action with LEGAL REPRESENTATION that also must be deemed effective.

The SIXTH AMENDMENT to the U.S. Constitution holds, in part, "In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence." This clause grants to all defendants the right to an attorney from the moment they are taken into police custody.

The decisions of the U.S. Supreme Court have also construed this Right to Counsel Clause to mean that an impoverished, or indigent, defendant has the constitutional right to the presence of a court-appointed attorney at critical stages in the criminal proceedings. These critical stages include CUSTODIAL INTERROGATION, post-indictment lineups, preliminary hearings, ARRAIGNMENT, trial, sentencing, and the first appeal of conviction.

The Right to Counsel Clause was a reaction against the English practice of denying the assistance of an attorney in serious criminal cases and requiring defendants to appear before the court and defend themselves in their own words. The 1586 trial of Mary Stuart, Queen of Scots, illustrates the harshness of denying the assistance of counsel in a criminal case. Queen Mary was charged with TREASON for allegedly conspiring to assassinate Queen Elizabeth I. Mary asked for the assistance of counsel, PLEADING that "the laws and statutes of England are to me most unknown; I am destitute of counsellors … and no man dareth step forth to be my advocate" (Winick 1989, 787). Her requests were denied, and Mary was summarily convicted and executed by decapitation.

The Framers of the U.S. Constitution considered the deprivation of counsel repugnant to basic principles of criminal justice. According to the Framers, the assistance of counsel was a critical element in maintaining an accusatorial system of justice. (An accusatorial system places the burden on the prosecution to establish the guilt of the defendant. This is opposed to an INQUISITORIAL SYSTEM, wherein guilt or innocence is determined through interrogation of the defendant.)

For 150 years, the Right to Counsel Clause was construed as simply granting to a defendant the right to retain a private attorney. This did not mean that an impoverished criminal defendant had the right to a court-appointed attorney without cost. In 1932, the U.S. Supreme Court began to reverse this interpretation in POWELL V. ALABAMA, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158. In Powell, nine black youths were accused of raping a white girl in a train going through Alabama on March 25, 1931. A sheriff's posse rounded up the youths and held them in custody. The youths were not from Alabama, and they were not given the opportunity to contact their family.

The youths were indicted on March 31. On April 6, they were tried with the assistance of unprepared counsel and convicted, and subsequently sentenced to death. The youths thereafter received the assistance of counsel for their appeals. The Supreme Court of Alabama affirmed the convictions. The U.S. Supreme Court reversed the convictions and returned the case to the Alabama state court. According to the Court, the trial court's appointment of an unprepared attorney in a capital case is a violation of the defendant's DUE PROCESS rights.

The Powell decision did not mandate the appointment of an attorney for all impoverished defendants. The Court in Powell merely held that due process requires the appointment of prepared counsel to indigent defendants in a case that involves the death penalty. Powell did, however, provide the basis for the requirement of free counsel for defendants faced with serious federal charges.

In Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), the U.S. Supreme Court held that an indigent federal criminal defendant who faces a serious criminal charge, such as a felony, is entitled to an attorney at the expense of the government. According to the Court, the right to counsel is "one of the safeguards …deemed necessary to insure fundamental HUMAN RIGHTS of life and liberty." In making this decision, the Court noted "the obvious truth that the average defendant does not have the professional legal skill to protect himself."

Significantly, the Johnson opinion did not force states to provide the right to counsel for all indigent criminal defendants in state court; this right to counsel applied only to indigent defendants facing serious charges in federal court. In state court, by virtue of the Powell opinion, only indigent defendants accused of capital crimes had the right to a court-appointed attorney. Many states did provide for the right to an attorney for accused felons through statutes; other states did not. In 1963, the Supreme Court corrected these inequalities in GIDEON V. WAINWRIGHT, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799.

In Gideon, defendant Clarence Gideon was charged in a Florida state court with breaking and entering a poolroom with the intent to commit a misdemeanor. Under Florida law, this was a felony. Gideon valiantly represented himself, but he was found guilty and sentenced to five years in prison.

On appeal to the U.S. Supreme Court, Gideon was represented by ABE FORTAS, who had been appointed by the Court. Through Fortas, Gideon argued that the right to counsel was a fundamental right and essential to a fair trial. The Court agreed, stating that the "noble ideal" of a fair trial cannot be achieved "if the poor man charged with a crime has to face his accusers without a lawyer to assist him." The Court reversed Gideon's conviction, holding that all states must provide counsel to indigent defendants who face serious criminal charges. The legal basis for the decision was the Due Process Clause of the FOURTEENTH AMENDMENT to the U.S. Constitution. This clause forbids states to enact laws denying due process of law to citizens of the United States. On retrial, represented by appointed counsel, Gideon was acquitted.

In a companion case decided the same day as Gideon, the U.S. Supreme Court created the right to counsel for indigent defendants on appeal. In Douglas v. California, 372 U.S. 353, 82 S. Ct. 814, 9 L. Ed. 2d 811 (1963), defendants William Douglas and Bennie Will Meyes, represented by a single public defender, were tried jointly in a California state court and convicted of various felonies. Both defendants appealed to the California District Court of Appeal. This first appeal was granted as a matter of right to all criminal defendants. Under California law, however, indigent defendants did not have the right to an appointed attorney for the first appeal.

Douglas and Meyes, both indigent, prepared and filed their own appeal briefs. The District Court of Appeal affirmed the convictions. Meyes petitioned to the California Supreme Court for himself and on behalf of Douglas. That court denied the petition without a hearing.

On appeal to the U.S. Supreme Court, Douglas and Meyes, this time represented by Supreme Court-appointed counsel, argued that they deserved the right to an attorney on their appeal. The Court agreed, lecturing that "there can be no equal justice where the kind of an appeal a man enjoys depends on the amount of money he has" (Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 [1956]). According to the Court in Douglas, the EQUAL PROTECTION and Due Process Clauses of the Fourteenth Amendment prevent states from granting criminal appeals in such a way as to discriminate against poor people.

Thus, under the Douglas decision, a state must provide free counsel to indigent defendants on appeal, if the state offers an appeal as a matter of right. All states do allow one appeal as a matter of right. For discretionary appeals, or appeals that are not granted as a matter of right—such as appeals to the state's highest court in states with a lower reviewing court, and appeals to the U.S. Supreme Court—there is no right to counsel. However, many states maintain laws that provide free counsel to indigent defendants even for these discretionary appeals.

A year after Gideon and Douglas, the Supreme Court decided two more cases that further extended a defendant's right to counsel. In MASSIAH V. UNITED STATES, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), defendant Winston Massiah was indicted by a federal GRAND JURY on narcotics charges. Massiah retained a lawyer and pleaded not guilty. While free on bail, Massiah was contacted by a codefendant, Jesse Colson. Unbeknownst to Massiah, Colson was cooperating with federal law enforcement authorities. Massiah and Colson met and spoke in an automobile for several hours about the case, and Massiah made incriminating statements that were transmitted by radio to a federal agent located a few blocks away. The statements were used as evidence in Massiah's trial. Massiah was convicted and sentenced to nine years in prison.

On appeal to the Supreme Court, Massiah argued that he had the right to counsel while being interrogated by law enforcement, even when the interrogation was not conducted in person by an officer. The Court agreed and reversed Massiah's conviction. The Court in Massiah established that the police may not interrogate someone who has been indicted unless the person's attorney is present or the person has knowingly waived the right to have counsel present.

Approximately one month later, the Supreme Court extended Massiah in ESCOBEDO V. ILLINOIS, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964). In Escobedo, defendant Danny Escobedo was arrested and taken to police headquarters for questioning regarding the recent murder of his brother-in-law. Escobedo was not indicted for the crime. However, he was held in police custody and was not free to leave. Escobedo's retained attorney arrived at police headquarters while Escobedo was being questioned, but the police prevented the two from speaking to each other. Under interrogation, Escobedo admitted to some knowledge of the murder. Eventually, Escobedo confessed to having participated in the crime.

At trial, Escobedo's statements were admitted as evidence, and Escobedo was convicted of murder. On appeal, the Supreme Court overturned Escobedo's conviction. The Court specifically held that where an investigation is "no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect," the suspect is effectively in custody and has the right to consult a lawyer. Citing the prolific legal theorist Dean JOHN HENRY WIGMORE, the Court warned that any criminal justice system that relies on "compulsory self-disclosure as a source of proof must itself suffer morally thereby." The Escobedo opinion established that when a suspect asks to speak with an attorney, the police must comply with the request, even before formal charges have been filed against the suspect.

After this slew of right-to-counsel cases, it remained for the Supreme Court to decide what criminal charges required the availability of free counsel. Under Johnson and Gideon, a defendant had the right to counsel for all "serious" cases, but this standard proved difficult to apply. To clarify this aspect of the right to counsel, the Court seized on Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972).

In Argersinger, the defendant, Jon Richard Argersinger, an indigent person, was charged in a Florida state court with carrying a concealed weapon. The offense carried a punishment of up to six months in prison and a $1,000 fine. Proceeding without counsel, Argersinger was convicted and sentenced to 90 days in jail.

On appeal, the Supreme Court vacated Argersinger's conviction. The Court concluded that "the problems associated with misdemeanor and petty offenses often require the presence of counsel to insure the accused a fair trial." Under the rule formulated in Argersinger, an indigent defendant who is not offered the services of a court-appointed attorney at trial may not be sentenced to prison, even if the defendant is convicted of a crime for which incarceration is an authorized punishment.

The apparent fairness of the rule established in Argersinger can be deceiving. In Nichols v. United States, 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994), defendant Kenneth O. Nichols pleaded guilty in federal court to conspiracy to distribute cocaine. Nichols was sentenced to 19 years and seven months imprisonment. To justify this lengthy term, the sentencing court relied on a previous misdemeanor conviction that resulted from a trial in which Nichols was not represented by counsel. When Nichols appealed the sentence, the Supreme Court held that it is not a violation of the Sixth and Fourteenth Amendments to enhance punishment based on a prior conviction in which an indigent defendant was not afforded an attorney.

The Supreme Court has, at times, displayed considerable latitude in deciding various right-to-counsel issues. The Court has held that an indigent defendant has the right to counsel in deciding whether to submit to a psychiatric examination when statements made during that examination may be used at trial (Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 [1981]). Under United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), an indigent defendant has the right to have appointed counsel present during post-indictment identification lineups. Under the Sixth Amendment, juveniles have the right to an attorney when their liberty is at stake (Application of Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 [1967]).

The Court has also read the Sixth Amendment to mean that a criminal defendant is entitled to effective legal counsel. This means that a defendant has the right to conscientious, meaningful representation. If a defendant does not receive effective assistance of counsel at trial, the conviction will be reversed. However, the standard of proof for the defendant is high. Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant has to prove not only that the attorney's performance was less than reasonable but that this sub-standard performance changed the outcome of the trial. The second factor is very hard to prove, especially when the evidence of guilt is overwhelming. Nevertheless, courts will overturn convictions when it finds that a defense lawyer was asleep during critical parts of the proceedings. Claims of ineffective counsel are often made against court-appointed lawyers, whether they are members of a public defender office or individuals chosen by a trial judge. Absent egregious behavior by a lawyer such claims are usually unsuccessful because a liberal attitude would lead to second-guessing the decisions of trial counsel by appellate courts.

The Supreme Court has been less generous on other issues. Generally, an indigent defendant has no right to counsel in a proceeding after conviction (Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L. Ed. 2d 539 [1987]). An indigent defendant does not have an absolute right to counsel for revocation of PAROLE or PROBATION hearings (Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 [1973]). If the parolee or probationer denies committing the offense or if there are MITIGATING CIRCUMSTANCES that may limit the parolee or probationer's guilt, the court may appoint an attorney. An indigent defendant has no constitutional right to an attorney for a HABEAS CORPUS petition (Finley) unless the defendant faces death, in which case he or she is entitled to an attorney for a habeas corpus petition (McFarland v. Scott, 512 U.S. 849, 114 S. Ct. 2568, 129 L. Ed. 2d 666 [1994]).

An indigent defendant has the right to appointed counsel during pre-indictment identification lineups conducted by the police (Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 [1972]). Kirby would seem to contradict Escobedo, where the defendant was entitled to counsel after arrest but before indictment. However, Escobedo has been limited to its facts and has been construed as upholding the defendant's right against SELF-INCRIMINATION more than the right to counsel.

The Supreme Court has carved out other exceptions to the right to counsel after an arrest. It has allowed law enforcement officials to have ex parte contacts with defendants to determine whether the defendant is in fact represented by counsel. It has also allowed ex parte communications that are made with the consent of defendant's counsel; those made pursuant to discovery procedures, such as subpoenas; communications in the course of a criminal investigation; communications necessary to protect the life or safety of another person; and those made by a represented person, so long as the person has knowingly, intelligently, and voluntarily waived the right to have counsel present. These exceptions apply to all persons, regardless of whether they can afford their own attorney.

Finally, law enforcement officials need not advise criminal suspects of their right to an attorney until those suspects are actually taken into custody or are not free to leave the presence of the officers. This rule gives law enforcement the freedom necessary to conduct reasonable investigations for the safety of the general public.

Congress sought to restrict the ability of convicted defendants to successfully argue that they received ineffective counsel when it passed the Anti-Terrorism and Effective Death Penalty Act of 1996 (Public Law 104-132, 1996). A provision of this act states that federal courts may not grant habeas petitions unless they find that the state court proceedings "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law." The Supreme Court has ruled that "clearly established federal law" means a decision it has rendered. In Bell v. Cone, 535 U.S. 685, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002), the Court had to decide which of its precedents constituted "clearly established federal law." It ruled that its more stringent precedent in Strickland v. Washington controlled in this case, signaling that it wished to limit successful death penalty appeals.


Sonneborn, Liz. 2004. Miranda v. Arizona: The Rights of the Accused. New York: Rosen.

Tomkovicz, James J. 2002. The Right to the Assistance of Counsel: A Reference Guide to the United States Constitution. Westport, Conn.: Greenwood Press.

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